APPEAL from the Circuit Court of Cook County; the Hon. JAMES
C. MURRAY, Judge, presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
After a bench trial, Rosemary Pappas (defendant) was found guilty of the murder of Peter Pappas, her husband. (Ill. Rev. Stat. 1973, ch. 38, par. 9-1.) She was sentenced to 14 to 20 years. She appeals.
In this court, defendant urges that the State failed to prove her guilty beyond a reasonable doubt because the evidence was insufficient to rebut the evidence of self-defense and the absence of a motive was a material factor; evidence of the motive was not admissible without proof of knowledge by the defendant and admission of the testimony of the pathologist not contained in his report was error. The People urge that the evidence proved guilt beyond reasonable doubt and rebutted the proof of self-defense; since the evidence established guilt beyond a reasonable doubt, proof of motive was unnecessary; evidence of an extramarital relationship in which deceased was involved did not constitute error because the trial court did not consider this evidence and the evidence was not prejudicial and, finally, the testimony of the pathologist was properly admitted as defendant failed to object to the evidence at trial or to preserve the point for review and the testimony was based on the knowledge of the pathologist.
Defendant and the deceased were husband and wife. The deceased was employed in the customer services department of an airline. He became a friend of a female fellow employee. She testified that, starting in December of 1974, they spent some time together almost every day at work and outside of work. On Saturday night, February 15, 1975, the deceased drove her home at about 5 p.m. He left and picked her up again at about 9 p.m. They went to a movie together. At about 2 o'clock on the morning of February 16, 1975, the deceased drove her home and left her about 1 hour later.
A lady named Theresa Sinnema was a friend of Lisa Mangino, mother of the defendant. Mrs. Sinnema testified that, at about 6 o'clock that morning she was awakened by a telephone call from Lisa Mangino. She went immediately to the Mangino home. She saw the defendant standing in the kitchen dressed in a nightgown and robe. On direct examination the witness testified "it was almost like she [defendant] was unusually calm * * *." On cross-examination the witness testified that defendant's appearance was "not normal." Mrs. Mangino was upset and crying. The witness further testified on direct examination that defendant told her that deceased had chased or threatened defendant with a gun and that he had been shot accidentally. On cross-examination she testified that she did not know if this statement was made by defendant or by her mother. Mrs. Sinnema and the defendant proceeded together to the defendant's home by automobile. Mrs. Sinnema's husband followed in another car.
Mrs. Sinnema testified that she saw deceased in his bed at home. She did not enter the bedroom but her husband did. Her husband told her to call the police and she did so. The police arrived within 5 minutes. She did not touch anything except the telephone.
Her husband, Edmond Sinnema, testified that he entered the bedroom and saw the deceased on the bed. There was blood on the pillow. The covers were drawn up about the deceased. He also saw a gun on the kitchen table. Neither he nor anyone in his presence touched the gun. An officer picked it up later.
Police Officer John Kierzyk testified to receipt of a police call regarding an "accidental shooting" at the home. When he arrived he found the deceased in bed, on his right side facing the east wall of the room. He saw a huge amount of blood in the rear area of the head and also on the pillow. He did not touch the body. The body was covered with a sheet up to the neck area including the entire top shoulder area. The officer pulled the sheet down approximately 12 inches. The body disclosed no vital signs. The officer identified a series of photographs and marked one to indicate the position of the sheet prior to being pulled down.
Dr. Ti Li An, a qualified medical doctor and pathologist who specialized in forensic pathology, testified that he performed an autopsy upon the body. He described an entry bullet wound at the back of the head and an exit wound above and to the rear of the left eyebrow. There was a bullet fragment which could be felt at the exit wound. That fragment was removed and was received in evidence. In his opinion the path of the bullet was forward and leftward from the back of the head to the front at the vicinity of the left eye. In his opinion the cause of death was laceration of the brain. He testified on direct examination without objection and also on cross-examination that he did not observe any powder burns on the head of the deceased. This conclusion was reached from visual observation only, without the use of instruments.
Police Officer Gregory Sprague testified that he had accompanied Officer Kierzyk. On the kitchen table he found a Smith & Wesson revolver, .38-caliber with a 4-inch barrel. The hammer was cocked when he first saw it. He returned the hammer to normal position and removed the cartridges. The six cylinders of the gun contained four live cartridges and two empty casings. The firing pin was behind a live round. The two spent casings were to the left or counterclockwise from the firing pin. In his opinion some person had pulled the hammer back to the cocked position after the gun had been fired. On cross-examination the officer testified that his written report made no mention that the gun had been cocked. He handled the weapon without regard to effect on fingerprints because at that time he was advised only that there had been an accidental shooting in the home.
The officer also testified on direct examination that he then saw defendant and Mrs. Sinnema seated in the living room. He asked them what had happened. Defendant responded, "I shot him in self-defense." The officer told her to stop, stated that she was under arrest and her legal rights were then explained. In examining the bedroom, the officer pulled the bed away from the wall. He found a bullet fragment on the floor. This was close to the east wall approximately 1 or 2 inches from the quarter round on the floor; about 4 to 5 feet from the south wall. The officer also observed a small indentation in the wallpaper on the south wall some 6 or 8 inches above the mattress. No other indentations were observed in the bedroom and no other pellets were found.
Donald J. Verbeke, an employee of the Northern Illinois Police Crime Laboratory, testified that he had 4 years of experience in the field of firearms and identification thereof, following a short period of laboratory training. He had fired test bullets from the pistol found on the kitchen table and he had examined the weapon, the test bullets, the expended shells and the bullet fragments above described. He expressed the opinion that both of the two discharged cartridge cases found in the weapon had been fired from this weapon. He also expressed the opinion that both of the two bullet fragments could have been fired from the same weapon. Each of the separate bullet fragments had class characteristics and also individual characteristics which were consistent with the test bullets fired by him from the weapon in question. However, his opinion could not be more definite because there was evidence of mutilation of each of these fired bullets.
As to the weapon itself, the witness testified that when the gun is cocked by drawing back the hammer, the cylinder rotates to the left or in a counterclockwise manner. A pressure of 10 pounds of pull is required to squeeze the trigger to fire the gun when it is uncocked. When the weapon is cocked a pull of 3 1/2 pounds is required to fire it. The hammer must be manually drawn back in order to cock the weapon. The gun was examined for fingerprints but the only identifiable prints were those of Officer Sprague. There were smudges on the gun evidencing that it had been handled. The witness testified that no other scientific test of the fatal weapon had been employed or requested. At the conclusion of this testimony, the State rested.
Defendant testified that she and the deceased were 19 and 21 years old respectively when married for the first time in 1964. One child was born to them. They were divorced in 1970 for physical cruelty. They remarried in 1972 and thereafter a second child was born. Defendant was employed as a real estate agent and earned approximately $20,000 in 1974. The deceased earned some $14,000 that year from his employment. The defendant described in detail the relationship of the couple with the parents of both. In 1974 they purchased their home with funds supplied by the defendant's parents. The marriage was marred by disagreement. The defendant and the deceased had not occupied the same bedroom after the first week in January 1975. The deceased told her that he did not wish to sleep with her any more because he was not feeling good physically and was suffering from a great deal of tension. She also testified that the deceased had incurred various gambling debts.
Defendant testified that the gun was usually kept on a closet shelf in the bedroom where the couple had slept. On one occasion, in December of 1974, the deceased came home and put the gun with its case in the children's playroom. Defendant testified that next morning her older daughter called her and said that the younger child had the gun. The defendant took it away from the child, put it back in the case and gave it to the deceased. She asked him not to leave the gun in the house. She told him she was terrified of the gun. He told her that he would do whatever he wanted. He then took the gun out of its case, opened up a door and fired the gun into the air. She testified that on other occasions she requested the deceased not to leave the gun in the house. He told her that he owed money and that he felt more comfortable with the gun in his possession. On cross-examination defendant testified that she had never hidden this gun, she had never told anyone that she had hidden it and specifically she had never told her friend, Mrs. Conrad Spirrison, that she had hidden the gun.
On Saturday, February 15, 1975, defendant arose early, went to work and thereafter prepared dinner for the family as well as for the parents of the deceased. The deceased stated that he was going out to play cards. His mother requested that he stay home and that the family play cards. Deceased refused. He accordingly left after dinner, as did his parents. Thereafter defendant's mother came and took the children to her home for the weekend as she generally did. Since defendant and the deceased had agreed that whoever went to bed first would sleep in the queen-size bed in the master bedroom, defendant went to sleep there.
She testified that about 5 a.m. she received a telephone call for deceased from one of his fellow employees. She looked over the house for the deceased and did not find him. She informed the caller and went back to sleep. Sometime later she heard the deceased come in. She told him of the call and stated that the message had been that it would be necessary for him to take a flight to Las Vegas that morning. The deceased responded with curses and started to get into bed. Defendant saw he was angry and she wanted to get out of the bed. She started to do so. The deceased was under the sheet. He grabbed her by her left arm and asked "where in hell" she thought she was going. She responded that she wanted to get out to a different bed. She heard a noise and turned. She saw that the deceased had his gun ...