Appeal from the Circuit Court of Will County; the Hon. Robert
R. Buchar, Judge, presiding.
PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Following a jury trial in the circuit court of Will County, the defendant, Sally Estes, was convicted of the offense of voluntary manslaughter (Ill. Rev. Stat. 1981, ch. 38, par. 9-2). Subsequently, she was sentenced to a term of four years' probation with the condition that she serve a term of six months in the Will County jail.
On appeal, the defendant raises three issues: (1) whether the State proved beyond a reasonable doubt that she did not act in self defense; (2) whether the prosecutor's remarks during closing argument deprived her of a fair trial; and (3) whether the trial court erred in refusing to give the second paragraph of the circumstantial evidence jury instruction.
Prior to considering the issues raised by the defendant, it is necessary to review the relevant facts. The victim in the instant case was Floyd Estes, the defendant's husband, a 6-foot-tall, 200-pound crane operator. He and the defendant were married February 23, 1980.
Witnesses for the State included Josephine Prock, who had known the defendant between 25 and 30 years. She testified that at approximately 11 on the morning of January 22, 1982, she received a telephone call from the defendant. During that phone conversation, the defendant told her that Floyd had come home and started a fight with her and then left, and that she was scared and wanted to leave. Mrs. Prock testified that she told the defendant that she could not get her until 5 p.m. because she would not have a car until then, but that the defendant should leave her home and go to a neighbor's or to a restaurant and she would come and get her. According to the witness, the defendant "sounded scared" at the time of the call.
Josephine Prock further testified that she received another telephone call from the defendant, later that day, between 1 and 1:15 p.m. At this time the defendant told her that she was still nervous but that she had gotten the green car started and she was going to leave. According to Mrs. Prock, at this time the defendant was "nervous and scared." She thought that the defendant was coming to her house.
Finally, Josephine Prock testified regarding a third telephone call, which she made to defendant, between 2:30 and 3 p.m. that same day. She said that a police officer answered but that the defendant was eventually put on the line.
Other witnesses for the State included Frank Lyons, Wilmington police chief, who testified that on the date in question he had received a call from the defendant stating that she had just shot her husband and requesting assistance. Chief Lyons was the first on the scene. Chief Lyons testified that the defendant told him that her husband had come home, seen tracks in the driveway, and accused her of having an affair. An argument ensued and he choked her, pulled her hair, and knocked her glasses off. On cross-examination, he described the defendant's emotional condition as "emotional hyper" and indicated that in his written report he had used the term "hysterical."
Also testifying was Ronald Pruss, Will County deputy sheriff. Deputy Sheriff Pruss' testimony laid the foundation for the introduction into evidence of the tape of the telephone call made by the defendant to the police. Much of the taped conversation is rather confused; however, it contains this statement by the defendant: "He was trying to kill me. Oh no. Call my mother. Call my mother. Please, call my mother."
Deputy Sheriff Pruss testified concerning the physical evidence at the scene as well. He indicated that a pair of glasses with very thick lenses belonging to the defendant, with strands of hair attached to the earpieces, were found on top of the stove in the kitchen. He also identified photographs of the defendant, taken on January 22, 1982, showing redness or abrasions around the cheek, nose, and neck and left hand.
Finally, James Fetzner, investigator for the Will County Sheriff's Department, testified for the State. He testified that after he and another investigator arrived at the defendant's home, he conducted an interrogation of the defendant, the transcript of which was admitted into evidence. According to Investigator Fetzner, he advised the defendant of her rights and she agreed to an interview, but she refused to sign the written form because she could not read it without her glasses.
Investigator Fetzner further testified that the defendant told him that her husband had arrived home at 9:45 or 9:50 on the morning in question. While they were drinking and talking, her husband accused the defendant of having an affair because there were tire tracks in the driveway. After making these accusations, her husband shoved her and pulled her hair and then left. According to Fetzner, the defendant also told him that later that day her husband returned when she was in the other car and leaving. She told her husband that she was going to get cigarettes, then got her car stuck, and she returned to the house. According to Fetzner, the defendant said that, once in the house, her husband started on her family again, knocked her glasses off, and she shot him. Investigator Fetzner indicated on cross-examination that his testimony was a "more or less edited version" of what the defendant had said during the interview.
Also, on cross-examination, Investigator Fetzner testified that the defendant had told him that she was afraid of her husband and that on Thanksgiving, when they had another argument, he had knocked her down, breaking her tailbone. According to Fetzner, the defendant described the pain from her broken tailbone as the worst she had ever had and stated that she continued to have pain from the injury. At the time of this incident, the defendant's husband took her to the hospital, but told her that he had a gun in his pocket and threatened to harm her again if she told anyone how it happened. Fetzner also indicated that his partner had recovered a loaded gun from the victim's car. He described the victim as "stocky," weighing approximately 200 pounds.
The taped interview, which was played for the jury, revealed that on prior occasions, the defendant's husband had "taken a belt" to her, leaving bruises which were still there, and kicked her in the stomach. She had previously left him. She also stated that she loved her husband and that he sometimes gave her a "hard time" and was "very jealous."
Also on cross-examination, the following quotation, from interview transcript, was read by the investigator to the jury:
"Yeah, and he hated that, I was in fear the rest is dashes. I couldn't do anything right, I guess and he pulled back up and he came, as I came in before he did and he started on me and he started on my family like he usually did. I wanted to stop him. He wouldn't stop and he was coming for me again and the last time he came for me, I wound up in the hospital with a broken talk [sic] bone and I had the gun in my pocket because when I came in the house I got the gun and I put it in my pocket and I just wanted to scare him."
The taped interview revealed that the defendant was describing the events which occurred after she had begun heading north in her car and met her husband heading south in his. He pulled in front of her, she got out and said that she was going for cigarettes, then tried to back her car up and slid and got stuck.
Additionally, Investigator Fetzner identified a pair of torn jeans as those that the defendant was wearing on the day in question.
For the defense, Mark Surman testified that he was a neighbor of Sally and Floyd Estes. He described the victim as a stout man who, when he was not drinking, was "not a bad guy" but who was "unruly" when he was drinking. Surman further indicated that he could not get along with Floyd Estes when he was drinking and that he "just got away from him." Surman testified that, on the day in question, the defendant came over to his house without her glasses on, wearing a pair of torn jeans with part of her back end sticking out, and asked for his help. According to the witness, the defendant's neck seemed to be "blood shot" or bruised and her hair was "all bushed out," not the way she normally looked.
Mary Vaira also testified as a witness for the defense. She indicated that she and the defendant had taken a nurse's aid training course together. She described the victim as "very boisterous" and "very obnoxious" when he had been drinking. She testified that on December 5, 1981, she and her husband had gone to the home of the defendant. According to the witness, Floyd Estes appeared to be drinking and very abusive and the defendant was acting very nervous and scared. During the course of the visit, Floyd Estes told the witness that he supposed that the defendant had opened her big mouth and told her that he had broken her tailbone.
The defendant also testified at trial. According to the defendant, on Thanksgiving Day, 1981, she was at home making turkey dinner when the defendant, who had been drinking and was in a bad mood, left. He returned a few hours later and informed her that he was tired of her big mouth, her lies and her family and friends and that they were going to get a divorce. He then became violent, ripped her blouse off, pushed her around, and pushed her onto the kitchen floor. She suffered a broken tailbone as a result.
On the way to the hospital, Floyd Estes took a gun out of a Kleenex box in his car, put it in his pocket, and told defendant that if she said anything to anyone about what had happened he would kill her. At the hospital, the defendant told the emergency room personnel that she had slipped and fallen on grease. Her injury caused a sharp stabbing pain and required her to miss work between three and four weeks. Three days after her injury, she was hospitalized for three days.
The defendant further testified that on January 22, 1982, her husband returned home from work between 9:45 and 10 a.m. He walked in the house with a can of beer in his hand and was complaining about the hedge in front of their house and the tracks in the snow. According to the defendant, her husband accused her of having someone at the house. She attempted to calm him down, denying that anyone had been there, but he would not believe her and it got worse. According to the defendant, her husband called her a lot of names and then came at her and they started to physically fight.
The defendant testified that her husband got her down on the kitchen floor, pulled her hair, and tried to choke her, twisting her neck with his hands. The defendant managed to get away from him and he left, still yelling. She stated that she was in pain, very frightened, and extremely upset. According to the defendant, she knew that she had to leave but was not able to handle a car in the state she was in, so she called Josephine Prock.
Later, she scraped the car window and started driving north. Her husband approached in his car and blocked her so that she could not get by him on either side. She attempted to back the car around but it became stuck. According to the defendant, at this point she knew she was "in trouble" and went back into the house. She then went into the bedroom and got a gun from under the mattress, kept there for ...