Appeal from the Circuit Court of Kane County; the Hon. Paul
Schnake, Judge, presiding.
JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
In a jury trial, defendant, Donald Ishmael, was found guilty of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)) and sentenced to a 20-year term of imprisonment. He raises the following issues on appeal: (1) whether the trial court erred in refusing defendant's tendered involuntary manslaughter instruction; (2) whether the trial court erred in allowing the prosecutor to comment on defendant's failure to cooperate with the State-appointed psychiatrist; and (3) whether the trial court erred in allowing the State to ask improper questions on cross-examination.
On May 31, 1982, defendant shot and killed his wife, Judith. The shooting occurred during a card game in defendant's dining room. Defendant, his wife Judith, a relative of defendant's, and Hector Rodriguez (Hector) and his wife were present. Hector testified that defendant was keeping score during the card game and that at one point Judith told defendant that he had written down the wrong score. Judith then stated to defendant that "as many times as you've been to school you still don't know how to add." Defendant responded by saying, "Keep it up, I'll put you on your funeral. They'll put you in a casket, they slap the casket closed and they'll take you away."
At this point, Judith turned to Antoinette Rodriguez (Toni), Hector's wife, and said she was not going to say anything more to these "assholes." Judith then began to take a drink of iced tea. Defendant hit the bottom of the glass while Judith was drinking, causing the glass to hit her mouth and spill. Judith asked defendant if he would like to wear the tea and defendant responded, "I'll smash your faceplate in."
After another hand of cards had been dealt, defendant "made a statement about a little." Judith commented that "you should be used to that, you know, you always had a little in your hand." Hector believed this comment referred to defendant's penis. Everybody, except defendant, laughed. Defendant then knocked Judith's plastic tea glass over and smashed it on top of the table. Defendant reached for Judith's throat, hesitated, then pulled his hand back. He got up and pushed Judith, went behind her chair, picked it up, put it back down, and walked into the kitchen. Hector heard a noise from the kitchen, then defendant returned to the dining room and uprooted a large plant. He then picked up the pot the plant had been in and slammed it to the floor. Judith said to defendant, "Why don't you leave * * * but if it makes you feel better, just go ahead and break everything in the house." Defendant said, "I don't make any comments [about] your small tits, I don't make any comments about your big ass." Defendant then went into the kitchen and punched the wall "where there was some kind of a little carrier, by the phone." Defendant then walked behind Hector and put his hands on a hutch. He released the hutch and walked behind Hector and another card player. Hector testified that then "I heard a slap. I heard a cock, I looked, there was the gun. He had cocked it back. He pointed the gun in her face and said, `I will blow your brains out', and fired."
Hector testified that defendant had shown him the gun several days before the shooting while they were out together at a bar. Defendant said at that time that a "shotgun shell" would be the first bullet that would be fired from the gun. Toni Rodriguez gave a substantially similar account of the shooting.
Dr. J.E. Habegger, a pathologist, testified that during an autopsy of Judith he recovered many small pellets inside her head. His opinion was that death was caused by a gunshot into the brain.
Arthur Holmes, Judith's father, testified that approximately one month prior to the shooting he had returned the gun used in the shooting to defendant. Defendant had given it to him some time previously. The gun was loaded at the time he returned it to defendant and defendant placed it on top of the hutch at that time. Defendant had requested the return of the gun for protection.
Defendant testified on his own behalf that three weeks prior to the shooting he and Judith agreed to "quit cutting each other down." Shortly after this agreement, defendant's six-year-old daughter told him that she had seen Judith and Hector kissing. Judith and Hector denied this. Defendant testified that within the two weeks prior to the shooting he would come home and find things Hector had brought to his home, while defendant was at work. Defendant believed Judith was having an affair with Hector.
Defendant testified that he bought the gun for protection because of a prior burglary at his house. The gun was normally kept unloaded. He believed that the shot shell he had described in Hector's presence several days prior to the shooting would not hurt a person if you shot him with it. He told Judith to put the shot shell in the first chamber at any time she loaded the gun.
Defendant testified that during the card game Judith made a comment about defendant's inability to add. He hit the bottom of the glass from which she was drinking and said, "You better watch out for your nose" or something similar. Judith said to Toni that she was not going to talk to these "assholes" any more. Defendant stated that she often referred to him as an "asshole" and that her calling him this had been a part of their prior discussion about not cutting each other down. When defendant commented about having a lot of little ones in his hand of cards, Judith said, "You should be used to having something small in your hand, that's the story of your life, you know." Defendant believed she was referring to his penis and the others laughed.
Defendant then smashed Judith's glass and told her she should not have said that because of their prior discussion. He got up, moved Judith's chair to get around her and she pushed him. He pushed her out of the way and went into the kitchen where he believed he heard her call him an asshole again. Defendant broke the casing around the phone. Judith said, "Why don't you go ahead and break everything." Defendant then hit the letter holder and broke it. Defendant returned to the dining room and uprooted a plant. Judith pushed him. Defendant picked up the pot the plant had been in and threw it to the floor. Defendant turned away, Judith mumbled something, and the next thing defendant remembered was a sound like a firecracker going off in a tunnel. Defendant then "[l]ike, woke up out of a sleep" and saw Judith falling and the gun in his hand. Defendant threw the gun down and rushed to try to help Judith.
He testified that, at the time, he did not know the gun was on top of the hutch, and did not know if it was loaded or unloaded. He testified he did not intend to kill Judith.
On cross-examination, over defense objection, defendant testified that on advice of counsel he did not talk with the State-appointed psychiatrist. He told the psychiatrist he ...