APPEAL from the Circuit Court of Peoria County; the Hon.
STEPHEN J. COVEY, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
This appeal is taken from the conviction of the defendant, Kathleen Moore, for voluntary manslaughter after a jury trial. She was sentenced to a term of not less than 2 1/2 nor more than 9 years imprisonment.
The following issues are raised on appeal: whether the evidence of the State established the defendant's sanity beyond a reasonable doubt; whether the trial court erred in failing to instruct the jury on the lesser-included offense of involuntary manslaughter; whether the trial court erred in refusing to give the instruction which the defendant tendered dealing with the reputation of the victim for being a violent person; whether the trial court properly excluded evidence of the victim's prior conviction for attempt murder; and whether the trial court erred in sentencing the defendant to a 2 1/2- to 9-year term of imprisonment. As to all issues raised, we affirm the judgment of the trial court.
On July 19, 1977, the defendant was indicted for murder, pursuant to section 9-1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(a)(2)). She was charged with shooting and killing her husband, Terry Moore, on July 3, 1977. After various continuances the case was tried by a jury on May 15-18, 1978, but a mistrial was declared because the jury was hopelessly deadlocked. The defendant obtained different counsel and the case came to trial for the second time on September 19-21, 1978.
Just prior to the beginning of the second trial, the State moved in limine that any evidence of a prior conviction for attempt murder of Terry Moore, the victim in the present case, be excluded from the evidence at trial. The trial court granted the motion in limine, finding that the excluded evidence had nothing to do with the defendant's sanity at the time of the offense or her self-defense claim, as the defense counsel had argued. The incident which formed the basis of the defendant's indictment began when the defendant's cousin drove her to her estranged husband's apartment to pick him up for a family gathering. When the defendant knocked on her estranged husband's door, he answered it unclad and having an erection. He told the defendant that he had company. When she tried to push her way into the apartment, he physically attacked her. She crawled to a neighbor's apartment for assistance. She then left the building and returned to her mother's residence to change clothes and obtain a weapon to be used, in her words, "to scare Terry." By her own admission the defendant was upset at this time. The door to her mother's residence was locked, so she climbed in through a window.
Approximately 10 minutes later she returned to her cousin's vehicle carrying a shotgun. When her cousin questioned her regarding the gun, she told him that it was unloaded. Her cousin examined the gun and determined that it was in fact unloaded. He then drove the defendant back to her estranged husband's apartment.
According to the testimony of the woman in the apartment with the defendant's husband, the following events then took place. The defendant knocked on the apartment door and when her husband opened the door and said, "What are you going to do now? Shoot me?" she replied, "Damn right, mother fucker." She then shot her husband and threatened the woman in the apartment saying, "I'm going to get sent up for one. I might as well get sent up for two." At that time the defendant did not have a weapon. The defendant then retrieved the shotgun from the floor and reloaded it, saying, "Bitch, you made me kill my husband." The woman ran into a bathroom and closed and locked the door. The defendant left the apartment complex before the police arrived and threw the shotgun in a wooded area behind the complex.
The defendant testified that she had dated Terry since she was 13 years old and that she lived with him for 7 years prior to their marriage on November 1, 1976. According to the defendant, she and Terry were separated on the night of the incident but had spent the night of July 2 together and were planning a reconciliation.
The defendant's version of the events which occurred on July 3 was basically in agreement with that given by the State's witnesses up to the point that she returned with the shotgun to the apartment building to "scare" her husband. She testified that when she knocked on the door she held the gun at her side and did not aim it at Terry. In response to his query "What are you going to do? Kill me?" she testified that she said nothing. She then stated that Terry made a jump or motion toward her and the gun "somehow went off." She did not remember pulling the trigger, loading the gun, or pointing it at the victim.
After Terry fell to the floor the defendant stated that she called for help. She denied entering the apartment and threatening the woman who was there. The defendant stated that she really did not know what happened after the shot as her mind was "blown," but she did pick up the gun, which had fallen or been thrown to the floor, reload it, run from the apartment building, and drop the gun as she exited.
Two occupants of the apartment building occupied by the victim corroborated the defendant's testimony regarding the beating she received when she first attempted to enter the apartment. They stated that following the shooting the defendant ran into their apartment in an hysterical state, saying that she had killed her husband and that an ambulance should be called. She then left the building.
The defendant and several defense witnesses testified to Terry's bad reputation and violence and the defendant's reputation for being a peaceful citizen. Many of these same witnesses testified that the defendant and Terry argued often, always at his instigation, and that he beat the defendant more than one thousand times during the relationship, sometimes laughing during the beatings.
The defendant and some members of her family also testified to her mental condition. The defendant fell off a swing at the age of four or five and was unconscious for a considerable period of time. Doctors prescribed phenobarbital and dilantin, two drugs used to treat epilepsy. A history of severe headaches and seizures suffered by the defendant was recounted by her and other members of her family. The accounts of the seizures were not corroborated by other evidence.
Dr. Marvin Ziporyn, a specialist in forensic psychiatry, was the final defense witness. He stated that in his opinion the defendant was unable to conform her conduct to the law at the time of the offense due to a cerebral paroxysm she suffered at the time of the shooting. Dr. Ziporyn characterized the seizure as a manifestation of epilepsy classified as a psychomotor equivalent in which the person suffering the seizure would act out behavior, usually of uncontrollable violence. In Dr. Ziporyn's opinion the defendant suffers from a non-psychotic organic brain syndrome. A person with such a condition would show such symptoms as accentuation and exaggeration of basic personality traits with ...