Appeal from the Circuit Court of Lee County; the Hon. John W.
Rapp, Judge, presiding.
JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:
Defendant appeals his conviction for the murder of his wife. His sole contention on appeal is that the trial court committed reversible error in refusing to give his tendered instructions on voluntary manslaughter. The facts necessary to a determination of this question are as follows.
In August 1980 defendant and his wife, Karren, were married. It was a second marriage for both, and each had two children from the prior marriage. Defendant's children lived with his former wife, from whom he had obtained a bitter divorce in fall 1979, and Karren's 19-year-old daughter Kandy had lived with them when they were first married but was not living with them at the time of the offense. Defendant testified that he had experienced child-visitation problems, which were alleviated about six months prior to the shooting.
Defendant testified at trial that on July 29, 1981, he had some problems at work and decided that he would see the regional vice-president about the transfer that he had requested several months earlier. He discussed the events of the day and the possibility of a transfer with Karren over dinner, and, as in prior discussions on this topic, Karren was negative about it. After dinner, Kandy called about her car battery problems, with which she had had defendant come out and help her earlier in the day.
That evening, Kandy and her boyfriend came over and visited. While defendant and Kandy's boyfriend were out to get some beer, Karren suggested that her daughter move back with them but Kandy refused for the time being. Karren did not say anything that evening about moving but had mentioned it on other occasions. Kandy and her boyfriend left at about 10:30 p.m.
Thereafter, an argument ensued between defendant and Karren. The argument began about the number of checks written; then, they argued about defendant spending the money on drinking, which he first denied and then said he had been drinking more than he should have because of his pain (due to headaches resulting from two laminectomies and a sinus condition). The bulk of the argument concerned the job transfer and Karren's purchase of items for the house from her place of employment. She said she would quit buying those things but she did not want to move. She suggested that he get a job with a different company to stay in the area and that they live off of her income, including payment of his child-support obligations.
Shortly thereafter, defendant decided the argument was not accomplishing anything and that he would leave. He got out two keepsakes, a cup and a shotgun, to take with him. At one point thereafter, defendant said he was leaving, Karren responded that he was always leaving, and the argument continued. At some time, Karren went to bed and defendant began to shave. He looked in the mirror and became "totally disgusted with [himself] and the day and everything else." He went into the bedroom and "thundered" at Karren about the car battery, thus beginning the argument anew. At that point, Karren got out of bed and went into the living room.
She told defendant that he treated her worse than her former husband ever did. She claimed that "you don't love a woman like a woman loves" or "part of you nobody will ever have or own," and John responded, "there's a part of me nobody will ever own * * * no corporation, no woman, or child." In anger Karren asked if he had treated his former wife the same way, and she then declared, "I'm going to call her and see if you treated her this way." John protested that his former wife should not be bothered. When Karren proceeded to the kitchen phone, John offered her his wedding band, which she refused, and she picked up the phone.
John then went into the bedroom to get traveler's checks, his wallet, keys and change. Those items were on a chest of drawers next to two shotgun shells. He put the other items in his back pocket and took one shell, returned to the living room, picked up the shotgun instead of leaving, apparently loaded it, went around the corner to the kitchen doorway and shot from the hip, striking Karren in the chest as she sat on a chair next to the wall phone.
In his statement to police following the shooting, John said that, at the time he fired the weapon, he told Karren, "make your peace." In any event, Karren never responded before being killed. Apparently, he then unloaded the gun and called an ambulance, stating, "I shot my wife" and "I'm going to try to keep her alive until you get here." He then laid her flat on the floor, and the responding firemen observed him over Karren's body apparently administering C.P.R.
Both before and after receiving Miranda warnings, defendant kept repeating that he had shot his wife, and he told police officers that he was sorry he had done it. A tape-recorded confession was taken at the police station on the night of the offense and played to the jury at trial. At the close of all of the evidence, the defense tendered jury instructions and verdict forms on voluntary manslaughter, but the trial court refused them and instructed the jury only on the charge of murder. Defendant was found guilty as charged.
• 1 Jury instructions on voluntary manslaughter are not always proper in every case in which some provocative conduct on the part of the deceased prior to the killing is alleged. In determining whether such instructions should be given over objection, as in the case at bar, the trial court must decide if enough evidence of serious provocation had been presented to even put the issue to the jury. In Illinois, the initial burden of going forward with "some evidence" is upon the defendant who seeks to assert the voluntary manslaughter defense, and, where the circumstances fail to show even "some evidence" of serious provocation, voluntary manslaughter instructions are properly denied. (People v. Seaberry (1978), 63 Ill. App.3d 718, 721-22.) In order to require the giving of the tendered instructions, defendant's voluntary manslaughter theory of defense to the murder charge may have a very tenuous evidentiary foundation, but it must be of such a nature that, if believed by the jury, it would reduce the crime of murder to voluntary manslaughter. See People v. Dortch (1974), 20 Ill. App.3d 911, 914.
In this case, defendant argues that the evidence of his four-hour argument with the victim, which he characterizes as a marital breakup, and of the victim's statement of intent or actual attempt to telephone defendant's ex-wife at 2:50 a.m., which would injure defendant by embarrassing, humiliating and degrading him before his ex-wife and by exacerbating his child-visitation problems, sufficiently showed provocation to warrant the giving of the instructions.
• 2 The State and defendant agree that, as a general rule, mere words are not sufficient provocation to establish voluntary manslaughter. (E.g., People v. Simpson (1978), 74 Ill.2d 497, 502; People v. Ahlberg (1973), 13 Ill. App.3d 1038, 1040.) This is true of language however aggravated, abusive, opprobrious or indecent. (People v. Matthews (1974), 21 Ill. App.3d 249, 253, citing People v. Marrow (1949), 403 Ill. 69, 75.) On appeal, as in the trial court, defendant seeks to avoid the application of this rule by characterizing the facts of the instant case as a heated verbal exchange that reached the level of mutual quarrel or combat. It is well established that mutual quarrel or combat can be sufficient to support ...