APPEAL from the Circuit Court of Cook County; the Hon. MARK E.
JONES, Judge, presiding.
MR. JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
Defendant, Juan Carr, tried in a bench trial on a charge of murdering his estranged wife, was convicted instead of voluntary manslaughter and sentenced to five years' imprisonment.
There were no eyewitnesses to the homicide. The State's evidence established that approximately 2 weeks before the homicide, the defendant told James Webb, a cousin of the victim, that he would kill his wife if she tried to return to their home to remove any furniture. The victim's son found her wounded and lying on the floor of a bedroom in defendant's apartment. Later that day, she died from bullet wounds. Approximately an hour before her son found her in the defendant's apartment, she had a telephone conversation with the defendant, who was then in his apartment. The uncle of the victim testified that on the day of her death she told him she was going home to talk with her husband.
Police Lieutenant Elmer Brown, a watch commander at a district police station, testified that later that day the defendant, accompanied by two relatives, entered the watch commander's office and told the lieutenant that he had shot his wife. One of his relatives then handed a revolver wrapped in a handkerchief to the lieutenant and the defendant said, "This is the gun." Police ballistics tests established that the defendant's gun was the weapon used to kill his wife.
The defense presented 22 character witnesses including several police officers with whom the defendant had worked, three of his childhood friends, a first cousin of the defendant and his dry cleaner.
The defendant, having admitted to police officers at the time he turned himself in that he shot and killed his wife, did not deny the killing. The only defense he offered was insanity. To support this defense he called two psychiatrists. The first (Dr. Michael Reinstein) saw the defendant approximately 2 weeks and again 8 months after the murder. He offered the opinion that the defendant was suffering from an associative psychosis at the time he shot his wife, was not aware of what he was doing and did not appreciate the criminality of his act. The second psychiatrist (Dr. Frank Lorimer), who first saw the defendant more than 11 months after the killing, expressed the opinion that the defendant was suffering at the time of the shooting from a disassociated hysteria, that he was legally insane when he killed his wife and that the defendant was unable to restrain himself at the time.
Dr. Reinstein, over the State's objection that anything the defendant related to him was hearsay, testified that the defendant told him that the following occurred on the day of the shooting: His wife returned to their home after a 2-week separation and requested that she be allowed to take a couch and a television to her new apartment. An argument ensued during which she told the defendant, "At least now I have a real man." The defendant informed the psychiatrist he was stunned by the remark and reacted by getting his gun and shooting his wife.
Dr. Lorimer also testified that the defendant informed him that the victim told him just prior to the shooting, "Yeah, I got a man, I got a good man." In addition Dr. Lorimer testified that defendant told him of many arguments in the 6 months preceding the shooting, most of them over suspicions of the wife's infidelity. The State also objected on the ground of hearsay to this testimony.
The State called one witness in rebuttal — Dr. Edward Kelleher, a psychiatrist. He expressed the opinion that the defendant was not suffering from disassociative hysteria on the day of the shooting and that he was sane at that time. He also testified that defendant told him that the victim said immediately prior to the shooting, "I have got a man, a good man."
At the conclusion of the testimony, the trial judge received written memoranda on the question of sanity; after hearing closing arguments, he found that the defendant was sane at the time of the shooting. The trial judge then went on to rule that the defendant was guilty of voluntary manslaughter. His explanation was:
"[T]he State has supported the burden with regard to the sanity of Juan Carr. * * * [T]he evidence all is that the defendant did shoot her, undisputed, and that there was just before this an encounter, some words between them and that * * * there was an immediate intent. * * * But I did find there was immediately prior to the time he shot her some provocation sufficient to incite an intense passion by him, particularly her words that, "I'm leaving you. I'm gone. I've finally got me a real man.' And on that occasion he did shoot her. He is guilty, therefore, of voluntary manslaughter."
The defendant's position in this appeal is that the court's adjudication that although sane he was guilty of voluntary manslaughter was an acquittal of the murder charge, that there was not sufficient competent evidence to establish he was guilty of voluntary manslaughter, and therefore he must be acquitted. He argues that the trial judge should not have relied upon the testimony of any of the three psychiatrists in determining that the defendant shot his wife after being provoked to a sudden and intense passion.
The defendant contends first that the testimony of the psychiatrists could not be used to establish that just before the defendant shot his wife she told him of her relationship with another man. The use to which the psychiatric testimony could be put was a matter of such skirmishing at the trial. The issue was first raised when the State objected to testimony by Dr. Reinstein and Dr. Lorimer regarding the victim's statement to the defendant. Both objections were on hearsay grounds. The defendant, arguing that both statements had been made to treating physicians, urged that for this reason they were admissible. The State argued that both psychiatrists were examining rather than treating physicians. At the conclusion of the defendant's case, the State moved that the testimony of these two psychiatrists be stricken because they referred to matters not personally known to them. The trial judge ruled he would allow the testimony regarding the defendant's statements to the physicians, but only as evidence of the defendant's state of mind and the basis for the experts' opinions on the issue of sanity.
The defendant's counsel during the course of the trial stated that the limited acceptance of the testimony of Dr. Reinstein and Dr. Lorimer would also, in his view, apply to the defendant's statement to Dr. Kelleher which the State was intending to use in rebuttal. The prosecutor disagreed, and the matter was not referred to again during the progress of the trial. When Dr. Kelleher was called as a rebuttal witness, the defendant registered no objection to his testimony.
The defendant now argues that, the testimony of Dr. Reinstein and Dr. Lorimer having been admitted because of the State's objection only for a limited purpose, the testimony of the State's psychiatrist should be treated the same way even without any objection being presented. But, the testimony of the State's psychiatrist stands on a ...