APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
521 N.E.2d 1256, 167 Ill. App. 3d 790, 118 Ill. Dec. 563 1988.IL.502
Appeal from the Circuit Court of Du Page County; the Hon. Robert A. Nolan, Judge, presiding.
PRESIDING JUSTICE LINDBERG delivered the opinion of the court. HOPF and DUNN, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG
Defendant, Maurice Chevalier, was charged with murdering his wife, Shirley Chevalier, in a two-count indictment returned in the circuit court of Du Page County. A jury found him guilty of murder, and he was subsequently sentenced to a 40-year term of imprisonment. Defendant has appealed from this conviction.
Defendant raises six issues on appeal. He argues that: (1) his conviction should be reduced from murder to voluntary manslaughter because the State failed to prove beyond a reasonable doubt that he was not acting under a sudden and intense passion resulting from provocation by his wife; (2) he should receive a new trial because the trial court erred in refusing to admit psychiatric testimony on the question of whether he had acted under a sudden and intense passion as a result of provocation by his wife; (3) he should receive a new trial because the jury was not instructed that in order to find him guilty of murder it had to be established beyond a reasonable doubt that he was not acting under a sudden and intense passion resulting from serious provocation by his wife; (4) he should receive a new trial because "the prosecutor in his rebuttal closing argument ridiculed the defendant for claiming that . . . he acted in the heat of passion as a result of provocation by his wife"; (5) he should receive a new sentencing hearing because the court improperly considered as an aggravating factor that he contemplated his criminal conduct would cause serious physical harm to the victim; and (6) his sentence should be reduced because the court abused its discretion in sentencing him to a 40-year term of imprisonment. Our view of this case makes it necessary to consider only the first three issues. We reverse and remand for a new trial based upon the third issue raised.
It is undisputed that Shirley Chevalier arrived at home sometime after 8 p.m. on Friday, June 8, 1984. Not long thereafter, while they were in the bedroom, defendant killed her with a single bullet to her head from his .357 magnum revolver. Defendant then attempted to coverup the killing. He put Shirley's body in the trunk of his car and cleaned up the bedroom. He took her car to her place of employment and parked it in the parking lot there. He later drove to Michigan where he knew the weeds along the highway were high (and may have known that they were only cut once a year) and left Shirley's body in the weeds. Defendant lied several times over the course of two or three days regarding his knowledge of her whereabouts. Finally, on Monday, June 11, 1984, under questioning by a detective, defendant confessed to having killed his wife and indicated on a map where he had left the body. Late June 11, 1984, Shirley's body was found very near to where defendant indicated he had left it.
There was no question in the trial court that defendant killed his wife and that the killing was without lawful justification. The dispute at trial was whether defendant had committed a murder or a voluntary manslaughter. (Ill. Rev. Stat. 1985, ch. 38, pars. 9-1, 9-2.) Specifically, defendant claimed and the State denied that he had been "acting under a sudden and intense passion resulting from serious provocation by" Shirley at the time of the killing. Ill. Rev. Stat. 1985, ch. 38, par. 9-2(a)(1).
Most of the evidence on this question came from the testimony of defendant, with other evidence either tending to corroborate or conflict with that testimony. Defendant testified that he left his first wife and Shirley left her third husband to marry each other. Shirley, all of whose prior marriages had ended in divorce, and defendant began to have marital difficulties a year after they were married. Over the course of 18 months, Shirley left defendant three times to live with defendant's best friend, Mel Patterson. Defendant was distraught in the periods when she was away from him and was the one who initiated the reconciliations that followed each period of separation. Two of defendant's adult children, Sherry Klupta and Maurice, Jr., corroborated defendant on this point, testifying to how upset he was in the periods of separation and how much happier he was after the reconciliations. Also, Cora Marmo, a psychotherapist, testified that she had counseled defendant and Shirley during one of these separations in 1981 and that defendant was "very intent on wanting to reconcile with" Shirley and "very much wanted to get back with her and reconcile their differences."
In May 1984 Shirley started coming home late from work. This was corroborated by testimony from James Kuta, a co-worker of Shirley's, who testified that it was about that time he and Shirley started meeting for drinks after work. Kuta, who was married, admitted to having kissed Shirley but denied having sexual intercourse with her or being interested in her romantically.
Defendant testified that on June 6, 1984, the Wednesday before the shooting, he called Shirley at about 2:30 p.m. at work but was told she was not there. That night defendant and Shirley argued after defendant confronted her with not having been at work. Later that night, defendant told her he "was going to divorce her if she kept this up." They reconciled before retiring that night and slept in the same bed. The next night, defendant discovered a brown paper bag containing a pair of soiled panties belonging to Shirley in her car. He did not say anything to her about the panties that night but rather reminded her of a meeting with defendant's ex-wife at 7 p.m. to discuss his daughter Sherry's impending wedding.
On June 8, 1984, defendant arrived home at about 3:30 p.m. Greg Martin, one of Shirley's sons with whom defendant did not get along, was living with them. Greg, who worked at the same place as Shirley, arrived home at about 4:45 p.m. Defendant asked Greg where Shirley was. Defendant testified Greg said he did not know, and Greg testified he said she "went out with a couple of girls from work in her department." Both agreed that defendant then said something close to, "This shit is going to have to stop" and then left the house. Greg testified that defendant left at about 6 p.m., and, while he was gone, Greg noticed that the .357 magnum revolver was missing from its customary place under defendant's mattress. Defendant testified that on June 8, 1984, he had moved the gun to the drawer of the nightstand, where Greg did not look, because the cleaning lady was scheduled to change the linens that day. Defendant returned at about 7 p.m., and Greg testified that when he looked again the gun was under the mattress. Later, during the investigation of Shirley's disappearance, Greg told defendant he was going to tell the police about this, and defendant asked him not to say anything about the missing gun.
Defendant testified that, after he had returned from the bar, he had called his ex-wife at about 7 p.m. to cancel the meeting. Another of Shirley's sons, David Ransom, testified that he arrived at about 7:30 p.m. Defendant told him that Shirley had gone out again, that David had better find a new place to live, and that he was not going to take this "shit" anymore. David left at about 8 p.m. Defendant testified that he drank steadily from 3:30 p.m. to 8 p.m.
Shirley arrived shortly after 8 p.m. Defendant testified:
"Q. Calling your attention, Mr. Chevalier, to the conversation in the kitchen, what did you first say to your wife?
A. I asked her where she had been.
A. I asked her -- I said didn't you know we was supposed to meet my ex-wife?
A. She had better things to do with her time.
Q. What next did you say?
A. I said are you messing around again?
Q. What did she respond to that?
Q. What did you say to her?
A. I said I know you are messing around again.
Q. What did she answer to that?
A. She started calling me names.
Q. What names did she call you?
A. Called me no good dirty bastard."
They both went into the bedroom, where the argument continued.
A. I says I know you are messing around, who are you messing around with now, Mel Patterson?
Q. Did she answer that question?
Q. Did you say anything else to her?
A. Yes, sir, I asked her -- I kept asking her ...