APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
522 N.E.2d 876, 168 Ill. App. 3d 636, 119 Ill. Dec. 214 1988.IL.596
Appeal from the Circuit Court of Kane County; the Hon. Joseph M. McCarthy, Judge, presiding.
JUSTICE WOODWARD delivered the opinion of the court. INGLIS and DUNN, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD
Defendant, Esteban Flores, appeals his conviction of murder entered in the circuit court of Kane County. Defendant contends that the trial court erred in refusing to give his tendered instruction on the lesser included offense of voluntary manslaughter and in admitting hearsay evidence of the decedent's state of mind.
The victim was defendant's wife, Virginia Flores. Defendant and decedent had been married for approximately 10 years at the time of the killing and lived in Aurora with their six-year-old daughter, Marissa, and David Marquez, decedent's son from a previous marriage. Apparently, the Floreses had been having marital difficulties for some time prior to the killing. Defendant had suspected his wife of marital infidelity for the previous eight months. About two weeks before the incident, decedent consulted an attorney, Eugene Griffin, about instituting dissolution of marriage proceedings.
At about 10 p.m. on July 15, 1983, defendant asked David Marquez if he wanted to spend the night with his sister, Migdalia, and offered to give him a ride. David refused, and defendant sent him to bed. Defendant then fell asleep himself, lying across the bed and sleeping with his clothes on. David testified that defendant kept a loaded .357 revolver in the house.
Defendant woke David about 3 o'clock the next morning and told him to call an ambulance. Defendant was nervous and crying and would not say why an ambulance was needed. David went to the kitchen, picked up the phone, and dialed 911. He set the receiver down and ran to his mother's bedroom, where he found her with what appeared to be a gunshot wound. He returned to the kitchen and told the operator to send the police and an ambulance. Defendant, meanwhile, had left in his car. Virginia Flores was pronounced dead at 4 a.m. Defendant went to see his brother, who drove him to his sister's house in Jersey City, New Jersey, where he stayed for three months before turning himself in to Aurora police.
On November 1, 1983, defendant was indicted for the murder of his wife. David Marquez, in addition to the facts related above, stated that approximately two weeks before the incident, defendant asked him if his mother was seeing another man. David answered that she was not. Defendant responded that if David was lying he would kill her. Migdalia Marquez, decedent's daughter, Leandro Gonzalez, decedent's brother-in-law, and Emeteria Melendez, decedent's mother, also testified that defendant talked about killing decedent if she obtained a divorce.
Griffin testified that the decedent consulted him about a dissolution of her marriage in early July 1983, and that she appeared upset and nervous. She told Griffin that defendant had threatened her, accused her of infidelity, and called her employer on numerous occasions to see if she was working.
Defense counsel objected to Griffin's testimony on hearsay grounds before trial, but the trial court reserved ruling. Immediately before Griffin testified, defense counsel renewed his objection. Counsel stated:
"Any statements that would be offered by the deceased to her lawyer are clearly hearsay and I think they have to be. Although Counsel has argued earlier that it goes to show the intent or state of mind of the deceased, I think it is really offered to the truth of the matter asserted."
The court permitted Griffin to testify that decedent had sought a divorce and also to testify in general terms that defendant had threatened her. The court did not permit ...