APPEAL from the Circuit Court of Coles County; the Hon. THOMAS
M. BURKE, Judge, presiding.
MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Defendant appeals his conviction of murder entered upon a jury verdict and a sentence of 20 to 60 years imposed.
Upon appeal, defendant argues that (1) prejudicial argument by the prosecution required defendant to prove his innocence, (2) the trial court erred in admitting into evidence two photographs of the body of the victim after it was removed from the stream where found, and (3) that the trial court erred in refusing to instruct the jury upon circumstantial evidence in the language of the second paragraph of Illinois Pattern Jury Instructions, Criminal, No. 3.02 (hereinafter IPI Criminal) requiring the jurors to exclude "every reasonable theory of innocence." No issue of proof beyond a reasonable doubt is explicitly raised.
On April 24, 1977, the body of the victim was discovered in shallow water beneath a bridge by an individual on a family outing. The autopsy disclosed that death resulted through a massive crushing blow to the right front portion of the skull. The medical opinion was that the degree of injury required that a blunt object be swung through a wide arc with great force.
The significant witnesses at the trial include Fasig, Leonard, Ruffner, and the defendant. These witnesses, as well as several lesser players, had established records of felony convictions and were impeached to some degree both by reason of convictions and through testimony disclosing inconsistent statements. The defendant had been convicted of burglary, theft, and armed robbery and was on parole at the time of this offense.
On September 9, 1977, a search warrant was executed at the home of defendant and the latter's car was impounded and searched. A baseball bat was seized at the home and forensic examination disclosed a spot of Type B blood on the handle. This was the blood type of the victim. Defendant's blood was Type O. The expert testimony is that Type B blood is found in 8 1/2 percent of Caucasian persons. Examination of defendant's automobile produced nothing of evidentiary value.
It appears that the search under warrant followed the receipt of information in late August from the mother of Sharon Ross, wife of defendant, and Tana Little, a sister of Sharon.
Tana Little testified that she was staying at the home of her sister, Sharon, and the defendant on the night of April 23, 1977, and that defendant returned home at about 1 a.m. on April 24. Defendant was described as intoxicated. He left at about 2 a.m. and again returned sometime after 4 a.m. He was described as intoxicated. At Sharon's request, the witness went to defendant's car where she observed a small amount of blood on the trunk bumper, inside the trunk, and in the car. She observed a baseball bat in the trunk with an apparent blood stain on the handle. The witness stated that the baseball bat seized upon search of the house was not the same as the one she saw in the trunk.
The witness testified that defendant then explained that he had been in a fight at a tavern and that he stated that he would wash out the trunk of the automobile.
Fasig and the victim had spent the evening on Friday, April 22, at various bars drinking and using drugs. They retired at the home of a friend. Beginning on Saturday morning, they spent the day going to various taverns and continued the drinking. The victim was also said to be using "downers."
Fasig testified that he and the victim planned to live together and that they went to view certain premises as a place to live. After the bars closed for Saturday night, he and the victim went to the home of a friend as a place to stay but could arouse no one. They then parked adjacent to an intersection hoping that a friend might pass who would permit them to stay overnight. At this time the victim was "passed out," and as they waited Fasig "passed out."
Such account was verified to the extent that city police observed Fasig's automobile at 1:10 a.m. at the stated location and they observed Fasig sleeping. They also observed an individual with long hair sleeping on the seat and believed that it was a woman. Fasig was unsure whether he had later taken the victim to any place for the night. His mother testified that he returned home at about 2 a.m., went to sleep on the couch and remained the rest of the morning. The mother was particularly wakeful and concerned because she had expected Fasig to drive to Carbondale that night, while he was obviously intoxicated.
Fasig testified that on Sunday, April 24, late in the morning, he went to several places looking for the victim; that he resumed drinking with friends and learned of the death of the victim on Sunday evening. He testified that he then called the sheriff to say that he had been with the victim and later delivered the victim's shoes and socks which had been in his automobile to the sheriff. He subsequently consented to a search of his home and was interviewed by the police on several occasions. During cross-examination, the jury was advised that Fasig had been considered a suspect in the murder. On cross-examination, Fasig could not recall that he had stated to Sandra French, with whom he had formerly lived, that he, Fasig, did not know whether or not he had killed the victim.
Fasig's testimony is correlated with other prosecution testimony in certain aspects. He testified that he had been acquainted with defendant for several years and that they met in a bar on the afternoon of April 23. At that time he introduced defendant to the victim. Incident to this meeting, Fasig delivered some "downers" to defendant, and they parted with ...