Appeal from the Circuit Court of Clay County; the Hon. Paul M.
Hickman, Judge, presiding.
JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:
Defendant John E. Pecka was found guilty of murder following a trial by jury in the circuit court of Clay County. Defendant was sentenced to 30 years' imprisonment. The issues presented on appeal are (1) whether defendant was denied a fair trial by the court's failure to provide the jury with the proper instruction regarding the affirmative defense of voluntary intoxication (Illinois Pattern Jury Instruction (IPI), Criminal, No. 24-25.02A (2d ed. 1981)); (2) whether the evidence at trial was sufficient to prove defendant guilty beyond a reasonable doubt; (3) whether defendant was unfairly prejudiced by certain statements of the prosecuting attorney during closing argument; and (4) whether the trial court imposed an excessive sentence upon defendant.
On the evening of December 16, 1981, defendant attended a party at the mobile home of his friends Marie Kuhlman and Randy Meares. Four others attended: Scott Merritt, Donald McElyea, Robert Thompson, and Richard Gregory. During the course of the evening, defendant displayed a .38 caliber pistol. Eventually, defendant held the pistol as it fired into Scott Merritt's head, killing him.
Marie Kuhlman testified that she was standing in the kitchen area of the mobile home when the shot was fired. She looked up and observed defendant in a crouched position. Defendant was holding the gun. Scott Merritt was on the floor. She heard defendant say, "Oh, my God, I don't know what happened. It just went off." Ms. Kuhlman testified that defendant and Robert Thompson had experienced a disagreement earlier in the evening, but had reconciled after Randy Meares intervened.
Randy Meares stated that at the time the shot was fired, he was conversing with Richard Gregory. After the shot, Mr. Meares observed defendant holding the gun. He testified that there had been no argument between defendant and Scott Merritt. He stated that, when defendant had been asked what had happened, defendant replied, "I don't know." Richard Gregory agreed that there had been no argument between defendant and Scott Merritt.
Robert Thompson testified that defendant had in fact argued with Scott Merritt prior to the shooting. Merritt told defendant to "put the gun away." Defendant stated that such a response constituted "fighting words." Both men stood up, defendant pointed the gun at Merritt, and fired.
Donald McElyea also stated that defendant and Merritt had disagreed prior to the shooting and that he saw defendant rise from his chair, take aim at Merritt, and fire.
Defendant testified that he remembered arriving at the party, but remembered little or nothing of events after the group had moved, early in the evening, to the dining room area where the shooting occurred. He remembered the sound of the shot, someone lying on the floor, and saying to Randy Meares that he should call an ambulance and the police. Dr. Mary Montgomery, a psychiatrist, testified that she had examined defendant over an eight-day period and administered various tests. She offered her expert opinion that defendant was suffering from an alcoholic blackout on the evening of the shooting. Dr. Leon Jackson, a psychologist, and Dr. Richard Herndon, a specialist in internal medicine, also examined defendant, and offered contrary expert opinions. Each testified that, in his opinion, defendant did not experience an alcoholic blackout on the evening in question. There was conflicting testimony among the experts regarding the precise nature and length of alcoholic blackouts.
The jury received Illinois Pattern Jury Instruction (IPI), Criminal, No. 24-25.02 (2d ed. 1981) (definition of voluntary intoxication). The jury did not receive IPI Criminal No. 24-25.02A (issues in defense of voluntary intoxication), and this instruction was not offered to the court by defense counsel. The jury received the following instruction regarding the elements of murder:
"To sustain the charge of murder, the State must prove the following propositions:
First: That the defendant performed the acts which caused the death of Scott Allen Merritt; and
Second: That when the defendant did so, he knew that his act would cause death or great bodily harm to Scott Allen Merritt; or he knew that his acts acts created a strong probability of death or great bodily harm to Scott Allen Merritt.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you ...