APPEAL from the Circuit Court of Lake County; the Hon. HARRY
D. STROUSE, Judge, presiding.
MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 8, 1978.
The defendant, Frank Slago, was convicted of murder after a trial by jury in Lake County, Illinois, and was sentenced to a term of not less than 25 years nor more than 75 years in the penitentiary.
On appeal he contends the trial court erred in excluding from evidence the testimony of a psychiatrist; a threatening note found by defendant's father; and a composite sketch prepared by defendant. In addition, he contends these evidentiary rulings of the trial court denied him his right to present his defense and that the sentence imposed was excessive.
On January 3, 1976, the partially frozen body of Kimberly Muno, a 16-year-old high school girl, was found lying in a creekbed in a rural area off Hanlon Road in Mundelein, Illinois. The next day defendant, who was acquainted with the victim, was called to the Libertyville police station because he had been seen at Hawthorne Center, a retail shopping complex where the victim was employed, at about the time she had last been seen there.
Defendant told the Libertyville police he had gone to Hawthorne Center on January 2, 1976, to see Karen Krueger, a friend and co-worker of the victim whom he had previously dated, to attempt to arrange a date. Defendant saw Karen come out of the store at about 9:30 p.m. and asked to talk to her. While they sat in her car, defendant put his arm around her and his hand on her leg and asked if she would go out with him. She became upset and told him to get out of the car. The defendant apologized, they talked for a few more minutes and he got out. He said he then saw the victim sitting in her car a short distance away warming it up and asked if he could talk to her. Defendant told police he was feeling bad about the way he had made a fool of himself with Karen and wanted to ask Kimberly what he should do. Defendant told police the victim left by herself after they had talked for a few more minutes about Karen and Karen's boyfriend.
When requested by the officers to go to Waukegan for further questioning, he agreed and permitted them to take his photograph together with fingerprints, nail scrapings and hair samples. Upon being questioned by the Waukegan officers, defendant ultimately stated to them, "I did it, I was there" and demonstrated how the victim was choked. He gave a typed and signed statement of the occurrence to them and a further conversation between defendant and an assistant State's Attorney was recorded on tape. At trial, both the signed confession and tape recording were admitted in evidence and submitted to the jury.
In his confessions, defendant said he had talked to the victim at the shopping center and they drove around for awhile in her car stopping on a pathway near Hanlon Road. They left the car and defendant put his arm around her neck and pulled her to the ground where she struck her head; she seemed dazed and did not move or struggle. Defendant stated he partially removed her clothing, then, realizing what he had done, he panicked and choked her with both hands for several minutes and pushed her body down into the creekbed. He said he drove back near Hawthorne Center in her car where he picked up his own car and returned home. Defendant stated he had not been threatened or promised anything to induce him to make the statement and had been treated well by the officers.
At trial, however, defendant testified his confessions were false. On this occasion he stated that after having made the aborted advances to Karen in the shopping center which he had described to the police, that he and Kimberly left in her car to go to Karen's boyfriend's home in Vernon Hills where defendant intended to apologize for that incident. He stated that the victim picked up two hitchhikers along the road who got into the back seat of her car. Both of these men wore Skidoo ski hats and the one sitting behind the victim had wire-rimmed glasses. Defendant testified these men directed the victim to drive to the Hanlon Road area where the man in glasses forced the screaming girl from the car while the other man restrained defendant from assisting her. He said the first man returned to the car in a little while, threatened defendant with a rock and left again with the girl's purse. Defendant testified they drove him back near Hawthorne Center and, after telling him that if he told anyone what had happened they would kill him or his family, they threw him from the car and drove off. Defendant testified he walked to his car and drove back out near Hanlon Road, saw nothing there, then went home arriving about midnight. His sister and her boyfriend corroborated his time of arrival. He testified he did not report the matter to the police or anyone else as he feared retaliation from the hitchhikers and, also for that reason, falsely confessed to the murder.
The victim's parents reported her absence to the police at about 11 p.m. on January 2 and her car was located the next morning a mile and a half from Hawthorne Center. The girl's body was discovered late that afternoon in the creekbed and her purse and wallet were found nearby still containing her money. A fingerprint examiner from the Northern Illinois Police Crime Laboratory testified he lifted a palm print from the trim below the window of the inside of the driver's door of the car which, in his opinion, was made by defendant.
Dr. Zech, a physician and pathologist, performed an autopsy on the victim and testified that in his opinion the cause of death was a compression injury of the neck tissues and larynx causing obstruction of the airway. He further testified the injury was probably caused by a series of intermittent pressures and that his observations were compatible with a finding of force applied to the throat with the human hands, either through a series of severe blows, such as karate chops, or the holding of hands on the throat. It was stipulated by the parties that tests of the larynx, mouth, vagina, rectum and skin of the victim, as well as her clothing, proved negative for the presence of spermatozoa.
Defendant contends first that the trial court erred in refusing to allow Dr. Leo Goldman, a qualified psychiatrist, to testify to his opinion that defendant, or someone in defendant's circumstances, could have confessed falsely to the murder of the girl either from fear of the threats allegedly made by the hitchhikers or from shame or guilt for having failed to protect the victim from them. In making this offer of proof outside the presence of the jury, it was shown that Dr. Goldman had examined defendant on two occasions prior to trial. On the second examination, he injected defendant with sodium amytal and, under its influence, defendant related his version of the events which occurred on the night in question, which, according to the doctor, was substantially in accordance with his subsequent testimony at trial.
Defendant's offer of proof consisted first of Dr. Goldman's opinion based upon his examination of and conversations with defendant and, alternatively, on a hypothetical question propounded to him by defendant's counsel based upon defendant's testimony in trial. The trial court excluded Dr. Goldman's testimony based upon his conversations with defendant because he was an examining, not a treating psychiatrist; the trial court then excluded his testimony based upon the hypothetical question as an invasion of the province of the trier of fact.
1 Concededly, Dr. Goldman was not a treating, or attending, psychiatrist who saw defendant to assist him with some physical or mental illness; there has been no claim in this case that defendant suffered from either a physical or mental illness at any time. He interviewed defendant for the sole purpose of giving ...