Appeal from the Circuit Court of Sangamon County; the Hon. C.
Joseph Cavanagh, Judge, presiding.
JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
On May 21, 1984, defendant, Ronald Dale Durham, was charged by information in the circuit court of Sangamon County with the May 8, 1984, murder (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(a)(1)(2)) of his wife, Janet. After a jury trial defendant was found guilty and convicted on December 17, 1984. On January 25, 1985, the court sentenced him to 30 years' imprisonment. He appeals, contending the trial court erred (1) in refusing to suppress and admitting into evidence over defense objection admissions obtained from defendant in violation of his Miranda rights; (2) in refusing to suppress other statements of defendant taken in violation of his Miranda rights even though no objection to the admission of the evidence was ever made; (3) in refusing to ask prospective jurors certain voir dire questions submitted by defendant; (4) in admitting in evidence at trial a statement made by defendant to a physician who was then examining him in regard to his fitness to stand trial; and (5) in imposing an excessive sentence. We affirm.
Although defendant does not contest the sufficiency of the evidence to support the verdict, some recitation of the evidence is necessary to an understanding of the defendant's claims of error. The evidence was undisputed on some significant points. Both defendant and the victim, Janet Durham, had previously been married, and their present marriage had not run smoothly. They had been separated for five or six weeks prior to the victim's death, and some 10 days before her death, they had a dispute in which defendant was alleged to have drawn a handgun. Evidence also indicated that the victim had a problem with over-consumption of alcoholic beverages.
On the night of May 7, 1984, she had gone to Spencer's tavern in Springfield. Sometime after midnight, she left the tavern and went to her parked car where she talked for awhile with Rex Griffin, who had been in the tavern. Defendant drove up at that time and upon his request, Griffin left. At about 2 a.m. on May 8, 1984, a police officer called to the scene found the body of Janet Durham in the front seat of the vehicle.
Dr. Grant Johnson, a pathologist who performed an autopsy on Janet's body, testified to finding bullet entry wounds (1) at the back of the head, (2) at the upper right chest, (3) below the right breast, and (4) in the back region. He stated an opinion that the upper right chest wound had been the first one and that bullet had gone to the heart and caused death within a few seconds. He was of the opinion that all wounds resulted from shots fired from a gun in "tight contact" with Janet's body. Johnson also testified to finding a pattern of soot deposits on Janet's hands which would indicate that her hands were in close proximity to the junction between the barrel and the cylinder of the revolver when it was fired. According to the doctor, the pattern on Janet's left hand could have occurred if she had fired the gun herself if the right hand had been used to pull the trigger, but he had never seen such a pattern in a suicide case.
Defendant testified to the following version of events on the evening of Janet's death: (1) He was suspicious of her relationship with other men; (2) he drove past Spencer's tavern and saw Janet's car in the parking lot; (3) he then parked nearby and watched for awhile and then went to Riverton to buy some beer; (4) he then returned to park outside Spencer's and watch; (5) at about 10 p.m. a police officer came by, asked what he was doing, and at defendant's invitation, searched defendant's vehicle and found no gun in it; (6) after driving around further, defendant returned and saw his wife talking to three men; (7) he went home but decided to go back and talk to his wife about their proposed divorce; (8) upon returning, defendant found Janet in her car talking to a man who was sitting in the car with her; (9) at defendant's request, the man left and defendant got into the car with Janet and told her he no longer wanted anything to do with her; (10) he saw no gun in the car at that time; and (11) defendant shortly got out of the car and walked off.
According to defendant, after he walked a short distance, he heard a "loud noise" and returned to the vehicle where he saw his wife leaning to one side with a gun in her right hand. Defendant stated that he shook her body, recognized that she was dead, took the gun, and fired shots into her side or stomach, her back and her head. Defendant described his mental state then as jumbled and angry but that he did not want her to suffer. Defendant testified that he remembered the events but did not think that, at the time of the shooting, he was conscious of what he was doing. According to defendant's version of the events, he then drove from the scene, stopping on the way to vomit and throw the gun into a sewer.
Dr. Leslie Fyans, a certified clinical psychologist who had examined defendant, testified that in his opinion defendant had a personality disorder that constituted a mental disease or defect which caused defendant to lack the ability to conform his behavior to the requirements of the law at the time Janet Durham was killed. In rebuttal, Dr. Fenton Drake, a psychiatrist, who had also examined defendant, testified that, in his opinion, defendant's personality disorder was not a mental illness and was not such a condition as would deprive defendant of the power to conform his conduct to the requirements of law.
A substantial portion of the proof of defendant's guilt arose from statements he was alleged to have made to police officers upon his first contact with them after his wife's death and subsequently while he was being held. His motion to suppress the statement he was alleged to have made upon first contact with the officers was denied and the evidence was admitted over his objection. The other statements were also covered by defendant's motion to suppress which was denied, but were admitted without objection. Defendant contends that the admission of this evidence was plain error and the failure of his counsel to object constituted incompetency.
Defendant testified at trial that after throwing the gun in the sewer, he drove to the residence of Mary Jo Leeds and went to her door. According to defendant, he said "Mary Jo, call the police. I think Jan has been killed." Ms. Leeds testified at trial and at defendant's earlier motion to suppress that she was sure defendant said, "You better call the police. I think I just killed Jan." Ms. Leeds further testified that defendant also asked her to call a list of people, saying he thought he would be in jail by morning. In any event, the police were called and Officers Hubbs and Charles came to the Leeds' home.
Hubbs testified at the suppression hearing and at trial that upon his arrival at the Leeds' home Mary Jo Leeds met him at the door and told him that defendant was in the kitchen and had told her that he believed he had killed his wife. According to Hubbs, upon his entry into the kitchen he saw defendant there and asked defendant what his name was and then asked what was the matter and defendant responded, "I think I have just killed my wife." According to Hubbs, he then read defendant his Miranda rights. According to Charles, defendant merely stated that he thought his wife was dead and she had been shot. Charles thought the Miranda warnings were not given until 15 to 20 minutes later. Both at the hearing and at trial defendant testified that his statement to Hubbs was as Charles testified.
• 1 Under the ruling in Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed. 2d. 694, 86 S.Ct. 1602, any statement made by a defendant to a law enforcement officer during custodial interrogation prior to being given the required warnings is involuntary and subject to suppression. Defendant argues strenuously that the statement Hubbs claims he made arose from custodial interrogation by a police officer prior to Miranda warnings and should have been suppressed. Clearly, Hubbs was a police officer and no Miranda warnings had been given at that time. The evidence indicated that Hubbs expected to receive an answer from defendant that was likely to be incriminating. Accordingly, the questions asked by Hubbs constituted interrogation. (See Rhode Island v. Innis (1980), 446 U.S. 291, 64 L.Ed.2d 297, 100 S.Ct. 1682; 1W. LaFave & J. Israel, Criminal Procedure sec. 6.7(b) (1984).) However, the trial court, in denying suppression, found that defendant was not in custody at the time. We must determine whether that finding was, as claimed by defendant, contrary to the manifest weight of the evidence and contrary to law.
• 2 In People v. Berry (1984), 123 Ill. App.3d 1042, 463 N.E.2d 1044, this court discussed four factors which are relevant in determining whether custody exists. These factors are: (1) the place of interrogation; (2) statements or nonverbal conduct indicating an accused is not free to leave; (3) the extent of the knowledge of the police officers and the focus of their investigation; and (4) the intention of the police officers. This court also stated that the question of whether interrogation is custodial should be decided upon the totality of the circumstances and the question of "what a reasonable man innocent of any crime would perceive" to be the situation. (123 Ill. App.3d 1042, 1046, 463 N.E.2d 1044, 1048.) The Berry court cited People v. Wipfler (1977), 68 Ill.2d 158, 368 N.E.2d 870, and indicated the court was following the holding in that case. Wipfler is the most recent Illinois Supreme Court decision on the question of the elements of custody.
In Wipfler, police officers had learned that (1) defendant had been seen riding a motorcycle in the vicinity of where a house was burglarized, and (2) motorcycle tracks were present around the house where the burglary took place. Police officers then phoned the defendant's mother requesting she have defendant meet them at the local police station that evening. The defendant arrived at the police station and submitted to questioning about the burglary. The defendant first contended that he knew nothing ...