Appeal from the Circuit Court of Fulton County; the Hon.
William L. Randolph, Judge, presiding.
JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 12, 1983.
Defendant Shirley Fernetti was convicted at a bench trial of the offenses of involuntary manslaughter (Ill. Rev. Stat. 1981, ch. 38, par. 9-3) and armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A-3(a)), and sentenced to the minimum term of six years on armed violence. On appeal she claims that: (1) The evidence of guilt of armed violence predicated on involuntary manslaughter was insufficient to prove her guilty beyond a reasonable doubt; (2) the trial court improperly denied her plea of guilty to the charge of involuntary manslaughter; (3) the trial court abused its discretion in failing to declare a mistrial as a sanction for the prosecutor's violation of a discovery order; and (4) the prosecutor denied her a fair trial by interjecting racial prejudice into the case. We affirm.
On December 28, 1981, defendant shot and killed her neighbor and friend Marguerite "Sue" Fernetti from a distance of 105 feet with a gun which defendant testified she believed to be an unloaded pellet gun, but which turned out to be a loaded .22-caliber rifle. The events leading up to this tragic result are not in serious dispute between the parties. An issue raised by the defendant is whether her acts were reckless beyond a reasonable doubt and support a conviction of involuntary manslaughter.
In 1973, defendant married Dixie Fernetti and moved into his home in Hooty, Illinois, a small unincorporated town in Fulton County. Shortly after defendant's marriage, decedent married Carl Fernetti and moved into the house adjacent to Dixie. Carl Fernetti had been raised by Dixie's brother and sister-in-law, and had adopted the Fernetti name when he was 18.
Relations between the Fernettis were cordial in the early years that Sue and Carl and defendant and Dixie lived there, but in 1979 discord developed over a boundary dispute between Carl Fernetti and Otto and Irma Wells, other Hooty residents. Apparently, Shirley and Dixie were partial to the Wells' claim and were concerned that Carl would harass the Wells. Following the boundary dispute, Dixie ordered defendant to call the County Health Department and report Carl for burning garbage on his property. After this incident the husbands stopped speaking to each other, and Shirley was told by Dixie that Sue could not come over to their house. The friendship between Shirley and Sue continued, but only while Dixie and Carl were away at work. Testimony of several witnesses indicated that Shirley and Sue had at one time been good friends, especially after Sue had children, but that once the men began "feuding" the friendship became strained. For two years neither Carl nor Dixie spoke to each other.
On December 28, 1981, Dixie was unable to work due to inclement weather and instead he and defendant drove to Canton, Illinois, to purchase chrome treatment for antiques he was restoring. Before leaving Hooty, Dixie noticed Carl Fernetti's children and their dog in his yard and told them that they should keep the dog out of the yard, or he was going to call the dogcatcher. Upon their return, Dixie decided to work on antiques which were stored in a trailer adjacent to their home, and Shirley went inside to watch television with her 79-year-old mother who lived with them. In the meantime, Carl had returned home and was told that Dixie reprimanded the children for allowing the dog to run loose. When Dixie exited the trailer, Carl went outside and yelled to Dixie that if he had anything to say to his kids, he should say it to him. Dixie replied that he had not hollered at the children, and Carl retorted with curse words. The argument soon escalated and within minutes both men were on the ground fighting.
Defendant, who had been inside with her mother watching television and playing cards, looked out the kitchen window which faced the adjacent lot and saw Carl and Dixie on the ground. She told her mother that there was going to be a fight and the mother stated that she didn't want to have anything to do with it, and walked into the living room. Shirley testified that she wasn't going to watch the fight, but something kept pulling her back to the window. Moments later, Sue came out to see what was going on, and two other men who had heard the commotion walked over to the scene.
Defendant had been pacing back and forth in the house and was very upset. She testified that she saw Sue come out of the house and kick Dixie and that she thought the other men were going to help Carl. She screamed to her mother "they're going to kill Dixie," put on her coat, walked to the back porch where Dixie kept some guns, picked up a rifle and ran outside. She testified that when she went outside, Sue and the two men were standing fairly close to where Carl and Dixie were struggling. She yelled to Sue, "let it be a fair fight," and Sue replied, "well if it isn't big mother" and motioned for her to come over. Defendant yelled back, "Sue, I have a gun here," and she replied, "well go ahead and shoot me." Defendant pulled the rifle to her shoulder and shot Sue from a distance of 105 feet. The .22-caliber bullet hit Sue in the forehead causing her death. Defendant testified that when Sue fell she thought that she was just goofing off, but once she realized what had happened she was hysterical. She dropped the gun, ran to where Sue was lying, and then ran back into her house to call for help. On December 29, defendant was charged with murder, involuntary manslaughter, and armed violence.
The only matters which were the subject of conflicting testimony were whether the decedent merely pushed Dixie off of Carl, or kicked him twice, and, most importantly, the extent of defendant's knowledge of the gun. After the shooting, defendant gave lengthy statements to sheriff's deputies and the State's Attorney of Fulton County, including statements that she knew the gun she thought she picked up had been used by Dixie to shoot birds; she thought the projectile would go over the decedent's head; she knew nothing of guns; and, she had picked up the gun to prevent Sue and the other men from intervening in the fight between Carl and Dixie.
At trial, defendant testified that she thought the gun she had picked up was an unloaded pellet gun which had been used by her husband to shoot birds. This testimony was corroborated by Dixie and defendant's mother, both of whom testified that Dixie kept a pellet gun and a rifle on the back porch and that normally Dixie placed the pellet gun immediately to the right to the door. Dixie stated that on Christmas day he replaced the pellet gun with a .22-caliber rifle which he had also been using to shoot birds. Defendant likewise indicated that she thought Dixie normally kept the pellet gun to the immediate right of the door. A photograph of Dixie's pellet gun and the .22-caliber rifle shows a remarkable similarity in appearance.
Other evidence supported the theory that the bullet had ricocheted off a tree standing several feet to the south of the bullet trajectory which the State's witnesses had reconstructed. This theory was predicated entirely on the testimony of Dr. Robert Herbert, who had examined the site six months after the shooting. Other testimony tended to establish that the defendant was acting in defense of her husband. Defendant also presented testimony to support a defense of insanity, although she does not argue on appeal that the State failed to meet its burden of proving her sane beyond a reasonable doubt. Insofar as this evidence is relevant to our inquiry, it tended to show that defendant has severe nerve problems and is unable to perform ordinary tasks without shaking. Defendant's treating psychiatrist related that defendant had a history of nervous tremors, and described her condition as an anxiety disorder with panic attacks.
• 1 To sustain the defendant's conviction for armed violence based on the felony of involuntary manslaughter, the State was required to prove beyond a reasonable doubt that while armed with a dangerous weapon defendant recklessly performed acts likely to cause death or great bodily harm and which, in fact, caused the death of another without lawful justification. (Ill. Rev. Stat. 1981, ch. 38, pars. 9-3, 33A-2.) An act is performed recklessly when a person consciously disregards a substantial and unjustifiable risk that circumstances exist, or that a result will follow, and such disregard constitutes a gross deviation from the degree of care which a reasonable person would exercise. Ill. Rev. Stat. 1981, ch. 38, par. 4-6.
• 2 The pointing of a gun, whether loaded or believed to be unloaded, as well as the reckless handling of a loaded gun, has been held sufficient evidence of a conscious disregard of a substantial and unjustifiable risk that death or great bodily injury would follow. (People v. Moczarney (1978), 65 Ill. App.3d 410, 382 N.E.2d 544; People v. Bembroy (1972), 4 Ill. App.3d 522, 281 N.E.2d 389; People v. Rodgers (1971), 2 Ill. App.3d 507, 276 N.E.2d 504; People v. Schwartz (1978), 64 Ill. App.3d 989, 382 N.E.2d 59.) An accidental discharge of a gun, however, has been held insufficient proof to sustain a conviction of involuntary manslaughter. (People v. Spani (1977), 46 Ill. App.3d 777, 361 N.E.2d 377.) The inquiry here is between an accidental and a reckless shooting. The element distinguishing the two and resulting in the imposition of criminal liability is the fact finder's conclusion that the defendant's conduct was not merely negligent but was reckless by reason of a gross deviation from the standard of care a reasonable person would exercise. Where an accused has fired a fatal shot while aiming at, or in the direction of the decedent, it is the province of the fact finder to ...