APPEAL from the Circuit Court of Williamson County; the Hon.
WILLIAM A. LEWIS, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Following a jury trial in the Circuit Court of Williamson County, defendant was convicted of the murder of his wife, Barbara A. Proper. Defendant appeals challenging the propriety of the trial court's refusal to instruct the jury on criminal capacity, voluntary intoxication and on the lesser offense of voluntary manslaughter. In addition, defendant challenges the trial court's ruling permitting the State to re-create the murder scene in a separate courtroom.
The testimony at trial revealed that during the day prior to the death of Barbara A. Proper no tension or controversy existed between defendant and his wife. At approximately 2 p.m. of that day, defendant and his family went to the home of Bill Fisher, where they socialized and ate dinner. During this visit, which lasted approximately nine hours, defendant and his wife had a number of drinks. Defendant estimated that he had 12 beers before supper and one to two six-packs thereafter. On cross-examination, defendant admitted that he had previously made a statement to the police that he had had only 12 beers. Defendant testified that "I guess I was drunk" upon leaving the Fisher residence at 11 p.m. that evening. Bill Fisher testified that defendant had 8 to 10 beers the entire evening and appeared sober when he left. Robert Woodson, a guest at the Fisher residence, testified that when he left at 9 p.m., defendant did not appear intoxicated.
During the car ride home, defendant and his wife began to argue about a $109 phone bill. The quarrel continued at home shortly after Barbara put her son to bed. Defendant stated that they did not need a telephone if they could not keep the bills down and then proceeded to rip the phone off the wall. Barbara then told defendant that she was going to take their son and live in Chicago. Apparently, she had previously left her husband for a short period of time. He asked her not to go, but she refused his request.
Defendant was aware that he had a .45 automatic pistol in his back pocket although he could not remember how it got there. He later admitted that his prior statement to the police indicated that he had taken the gun from his dresser while his wife was putting their son to bed. He removed the gun from his pocket and pointed it at his wife to scare her. He raised the weapon waist high and it "went off." He continued to shoot the gun until all eight shots were fired. It was later determined that Barbara Proper died from the multiple gunshot wounds. After defendant saw Barbara fall in front of him, he ran out of the house and went to the police station.
Sandra Lee, the police dispatcher, testified that defendant walked into the police station at 12:15 that evening. Defendant told Ms. Lee that he had shot his wife and needed help. Defendant was crying and kept beating his hands against his head. He showed emotions ranging from anger to sadness and shouted that he "didn't mean to do it." Defendant realized that his son was still at home and asked for someone to remove him before he saw his mother. Ms. Lee was close enough to defendant to have smelled alcohol, but did not. In her judgment defendant was not intoxicated. One of the officers at the police station testified that defendant appeared to be sober.
At trial, the State, over the objections of defense counsel, was permitted to re-create the living room of the Proper residence in an adjoining courtroom. As part of the set, the State used the couch which was covered with blood stains and, according to defense counsel, human excrement. Both the courtroom and the living room rug were sprayed with "Glade" to contain what was characterized as a musty odor. In overruling defendant's objections, the trial court stated that the couch was less gruesome than the photographs already admitted into evidence; that the demonstration would be relevant to shed light on whether defendant had the requisite intent to commit murder; and that the reconstruction would aid the jury in understanding the layout of the room in which the shooting occurred. After the State rested, defense counsel chose to examine defendant in the courtroom containing the re-creation exhibit. After defendant indicated that the television and some lamps were missing, he utilized the set to recount the events of the shooting.
At the instruction conference, defendant tendered Illinois Pattern Instructions, Criminal, No. 24.02 ("Voluntary Intoxication or Drugged Condition") (hereinafter IPI), IPI Criminal No. 25.02 ("Issues in Defense of Voluntary Intoxication or Drugged Condition") and IPI Criminal No. 7.04 ("Issues in Voluntary Manslaughter-Provocation"). In refusing these instructions, the trial court stated that there was no evidence that would support a voluntary manslaughter conviction nor sufficient evidence that would support the defense of voluntary intoxication.
The State argues that defendant has waived any contentions of error by his failure to file a post-trial motion. Notwithstanding the general rule that the failure to proffer a post-trial motion constitutes a waiver of errors raised on appeal (People v. Hammond, 48 Ill. App.3d 707, 362 N.E.2d 1361 (5th Dist. 1977)), we nevertheless feel compelled to give consideration to defendant's contentions to determine the existence of any possible plain error.
Defendant first argues that the trial court erred in refusing to allow the jury to consider evidence of defendant's insanity at the time of the commission of the offense. Apparently, defendant objects to the trial court's refusal of defense instruction No. 2 (IPI Criminal No. 25.02), which provides in part:
"To sustain the charge of murder, the State must prove the following propositions:
Third: That the defendant was then capable of acting knowingly or intentionally."
Although this instruction is usually submitted to the jury as part of the affirmative defense of voluntary intoxication, defendant sought to introduce it to present a defense that defendant's diminished mental state prevented him from forming the requisite intent to commit murder. We note that defense counsel did not tender IPI Criminal No. 25.01 ("Issues in Defense of Insanity") and apparently conceded at oral argument that defendant was not insane at the time of the offense. Nevertheless, he asserts that the jury should have been allowed to consider the possibility of defendant's insanity. While it is not clear what defendant is contending on appeal, we give him the benefit of the doubt and address the issue whether the court erred in refusing to submit the insanity defense to the jury.
The law is well established that in order to present the issue of an accused's insanity, the evidence must be sufficient to raise in a juror's mind a reasonable doubt of defendant's sanity at the time of the commission of the offense. See People v. Redmond, 59 Ill.2d 328, 320 ...