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05/04/87 the People of the State of v. Bessie I. Fleming

May 4, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

BESSIE I. FLEMING, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

507 N.E.2d 954, 155 Ill. App. 3d 29, 107 Ill. Dec. 801 1987.IL.581

Appeal from the Circuit Court of Adams County; the Hon. Edward B. Dittmeyer, Judge, presiding.

APPELLATE Judges:

JUSTICE McCULLOUGH delivered the opinion of the court. SPITZ, P.J., and KNECHT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

On March 6, 1986, the defendant, Bessie I. Fleming, was charged by information with three counts of murder. (Ill. Rev. Stat. 1985, ch. 38, pars. 9-1(a)(1), 9-1(a)(2).) The defendant allegedly shot and fatally wounded her husband, Tom Fleming. Following a jury trial, the defendant was convicted of two counts of murder and was subsequently sentenced to the Department of Corrections for a term of 20 years.

The defendant appeals her conviction alleging three errors. First, defendant claims the court improperly instructed the jury regarding the initial aggressor's use of force in self-defense. Second, the defendant maintains that the court erred in failing to instruct the jury that the burden was on the State to negate the "unreasonable belief" and "intense passion" elements of voluntary manslaughter. Finally, defendant asserts that the court erred in conditioning the admission of defendant's expert's testimony upon the disclosure of a written report or by failing to grant the defense reciprocal rights with respect to the State's expert's testimony. We affirm.

On the morning of March 6, 1986, the defendant shot and killed her husband. At trial, the defendant admitted killing her husband, but claimed that she acted in self-defense. In support of this assertion, the defendant maintained that she was a victim of the battered wife syndrome, which caused her to honestly believe that she was in imminent danger of death or great bodily harm at the time of the murder.

Evidence adduced at trial established that the defendant was 48 years old with no prior criminal history. In 1981, the defendant moved in with Tom Fleming and they were married in August of 1984. Tom Fleming was 52 years old, had been previously married three times, and was an alcoholic.

The five-year relationship of the parties was stormy and unpredictable, marred by vicious physical and psychological abuse. This abuse generally occurred after Tom had been drinking and was often followed by periods of calm and loving behavior. Expert testimony at trial was uncontradicted that the defendant was a victim of the battered wife syndrome.

Police were dispatched to Bestom Trucking in Quincy, Illinois, on the morning of March 6, 1986, to investigate the death of Tom Fleming. Bestom was owned and managed by the defendant and her husband. Police advised the defendant of her Miranda rights and proceeded to question the defendant, who was very cooperative and appeared calm, collected, polite, and soft-spoken. Over the course of the next six to eight hours, the defendant told four completely different versions of the events which ultimately transpired in the death of her husband.

Initially, the defendant denied any knowledge of or participation in the shooting. The defendant claimed that she went to work at Bestom, left to buy breakfast, and returned to find Tom lying on the floor. Defendant told the police that she and Tom had a stable and fulfilling relationship.

After being questioned regarding ownership of a gun, defendant gave a second account of what happened. The defendant stated that shortly after she married Tom he began physically abusing her. In July of 1985, the defendant stated that she attempted to take her own life but that Tom had intervened. After her suicide attempt, Tom entered a detoxification center in St. Louis for approximately three weeks. Subsequent to treatment, Tom did not drink for approximately three months. During this time there were no incidents of abuse. The defendant stated that on November 4, 1985, Tom began drinking again and shortly thereafter the physical and psychological abuse resumed.

On the evening of March 5, 1986, defendant and Tom had an argument during which time the defendant informed Tom of her intent to leave him. Tom, who had been drinking, became very upset and told the defendant the only way she would ever leave him would be "feet first." The next morning the defendant again informed Tom that she was leaving him. Tom became very angry, told the defendant that they would talk later, and left for work.

The defendant stated that upon arriving at Bestom, she worked with Tom for a short while and then decided to go get breakfast. The defendant went into the bathroom and when she came out she noticed Tom standing by the tow motor. Tom hollered for her to come to him. The defendant started walking towards Tom and saw that he had a rug draped over his arm. As she drew closer, she noticed that he was holding a gun underneath the rug. The defendant said when she got close enough, she hit the rug and knocked the gun from his hand. Tom bent over to pick up a hook that was lying on the floor. The defendant picked up the gun and the rug, placed the rug in front of the gun to stifle the noise, and shot twice, striking Tom in the head.

Following further questioning by the police, the defendant gave a third statement, which was taped and played for the jury at trial. In this statement, the defendant said that she had gone to the bathroom and come back out when Tom hollered for her. She stated that she felt that something was going to happen because of Tom's previous threats. When she saw the rug draped over Tom's arm, she said that she picked up an iron prong and carried it with her to defend herself. The defendant stated that she saw Tom was holding a gun underneath the rug. The defendant knocked the gun away with the iron bar. The defendant picked up the gun and the rug, putting the rug in front of the gun, and fired once at Tom's ...


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