Appeal from the Circuit Court of Madison County; the Hon.
Philip J. Rarick, Judge, presiding.
PRESIDING JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:
On January 3, 1983, defendant William Middleswart shot his wife, Patricia Middleswart, in the parking lot of a truck stop in Troy, Illinois, causing her death. He has not denied shooting her. The primary issue presented by this appeal is instead whether the defendant was acting under a sudden and intense passion resulting from serious provocation when he did so. A jury in the circuit court of Madison County found the defendant guilty of murder, but he asserts that the evidence at trial proves him guilty only of voluntary manslaughter. He also takes issue with certain jury instructions and his 30-year sentence of imprisonment.
The defendant had been married to Patricia for several weeks at the time of her death. He was divorced from his first wife, Carla, shortly before his marriage to Patricia. The defendant was an over-the-road trucker, and in late December 1982 and early January 1983 he was traveling with Patricia on what was intended as a combination of a business trip and honeymoon. He picked up a load of paper in Green Bay, then they spent New Year's Day in Madison, Wisconsin, and the following evening in Bloomington, Illinois. They left Bloomington in the morning of January 3, and arrived at a truck stop in Troy, Illinois, in the mid-afternoon hours. The defendant was scheduled to deliver his load of paper at Granite City that day.
Soon after arriving in Troy, the defendant walked to a nearby western store, bought his wife a cowboy hat, and then they entered the "This is It" lounge, across the street from the truck stop. Patricia and the defendant ordered several beers and watched a football game on television, after he finished working on his log books. Carl Kirchaner, who was tending bar at the tavern that afternoon, recalled a couple who entered at 3 p.m. He served them three or four beers apiece. Kirchaner described the couple as amicable, and as "having a joyous time," but he was not certain whether he could identify the defendant. Kirchaner left the bar after 6 p.m.
The defendant and Patricia remained at the lounge after Kirchaner's departure. Kirchaner was replaced by Patricia Gum, who owns the "This is It" lounge. Ms. Gum observed the defendant and Patricia enter her establishment at about 3 p.m., and she testified that, at first, the Middleswarts did not appear contentious. She spoke with Patricia Middleswart and ascertained that she was from Nebraska.
At about 9 p.m., the defendant and Patricia began to quarrel. Patricia instigated the argument, according to Ms. Gum and the defendant. She told the defendant that she was unhappy because the defendant's family did not accept her since she had been a prostitute before their marriage. Patricia told him that his family did not appreciate the sacrifice she had made in giving up prostitution for him. At trial, the defendant acknowledged that he was aware of Patricia's previous activities long before he married her.
Ms. Gum recalled that she turned up the juke box so that the Middleswarts would not disturb the other patrons. She said that the defendant then left the bar twice by himself and returned to persuade Patricia to go with him, but she would not. The defendant testified that he left the lounge only once by himself, with his log books, and he went to his truck to wait for Patricia. When she did not join him, he returned to the bar.
Upon the defendant's return, Ms. Gum overheard Patricia warn the defendant not to touch her or "Mr. X would do away with him." The defendant did not strike Patricia during the argument, but he occasionally took hold of her arm. Ms. Gum heard Patricia tell the defendant that she intended to leave him, and that defendant corroborated that statement, but she did not hear Patricia say that she made a date for that evening with another man. Patricia did speak with another truck driver at the tavern, and he shared some food with her. That conversation took place in the presence of Ms. Gum and the defendant.
After 10 p.m., the Middleswarts finally left the tavern. Ms. Gum did not consider either of them intoxicated, but the defendant said that he had had "more than enough to be considered legally drunk," because he drank two or three beers every hour at "This is It." He also indicated at trial that he took one double dexedrine pill in Bloomington and another pill upon arriving at Troy. However, in statements given the day of the shooting and the next day, the defendant told the authorities that he drank only five or six beers that night and did not take any drugs. The defendant testified that Patricia was not intoxicated.
Patricia and the defendant returned to the parking lot of the truck stop, where Patricia locked herself in the cab of the defendant's truck. The defendant later recounted to police that he had to break a vent window to enter the cab. Once he was again inside the cab, the defendant continued the argument with Patricia. She told him that things would be better once they moved from Kearney, Nebraska, to Omaha because she "could make a lot of money in Omaha." She explained that she wanted to go back to prostitution, starting that evening. Patricia said that a truck driver had offered her $20 to stay the night with him, and she intended to accept his offer. She also told the defendant that she wanted a divorce and she would find her own way back to Nebraska. Patricia informed the defendant that she would be in another truck several trucks away from the defendant's rig, and then she exited the cab.
The defendant followed her out of the cab, exhorting her not to leave. She shouted an obscenity to him in reply. The defendant then removed a pistol from his pocket. He recalled at trial, "And all I could think of at that time was, it's all over, you know, my whole world's gone. I gave up one woman and two children to I gave up my two sons, I walked out on them and left a house, a steady job and now Patricia's leaving and I won't have her, * * * I don't have anything left." Two psychologists who examined the defendant described him as an anxious and explosive individual, capable of generating anger and hostility and with a tendency to overreact to an emotional situation. In a statement made the night of the shooting, the defendant indicated, "I flipped out."
At trial, he recounted that while standing outside the truck, Patricia was screaming at him at the top of her lungs. He had told police that she stated, "Okay, big man blow me away." According to the defendant, "she tried to reach out and grab at me and I took a step back and I heard an explosion. Patricia fell." The defendant continued to shoot her after she fell to the ground. The pathologist who performed an autopsy on Patricia's body was of the opinion that her death was caused almost instantaneously by the shots, three of which entered her brain.
After shooting Patricia, the defendant pointed the revolver at himself. He pulled the trigger, but the bullet only grazed his head. He went back into the cab, searched in the sleeper for more ammunition, and then reloaded the gun. As he later told police, he reconsidered his decision to kill himself, and thought that as long as he had missed himself, he "might as well leave." He returned to Patricia's body, saw that it was partially under his trailer, then moved it under another trailer. The defendant left the truck stop in his rig, quickly and with his lights off. He was apprehended in minutes, several miles from the truck stop, after he had tossed the revolver away near an interstate ramp. It was later recovered.
With the exception of a few details, the evidence presented at trial is not conflicting. The defendant argues that this evidence establishes his guilt of voluntary manslaughter rather than murder. A person commits voluntary manslaughter when he kills an individual without lawful justification, "acting under a sudden and intense passion resulting from serious provocation * * *." (Ill. Rev. Stat. 1983, ch. 38, par. 9-2(a).) Serious provocation is "conduct sufficient to excite an intense passion in a reasonable person," and thus provocation must be shown objectively, not subjectively. (Ill. Rev. Stat. 1983, ch. 38, par. 9-2(a); People v. Matthews (1974), 21 Ill. App.3d 249, 314 N.E.2d 15.) The acts which the law recognizes as serious provocation are substantial physical injury or ...