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March 4, 1994


Appeal from the Circuit Court of Tazewell County, Illinois. No. 84-CF-2412. Honorable J. Peter Ault, Judge, Presiding

Petition for Leave to Appeal Denied June 2, 1994.

Present - Honorable Kent Slater, Presiding Justice, Honorable Allan L. Stouder, Justice, Honorable Tobias Barry, Justice

The opinion of the court was delivered by: Slater

PRESIDING JUSTICE SLATER delivered the opinion of the court:

The defendant, Joshua Fierer, was charged with murdering his wife, Mary Fierer. At the Conclusion of defendant's first trial, he was found guilty but mentally ill of murder and he was sentenced to a term of 30 years imprisonment. The defendant appealed and this court reversed his conviction and remanded the cause for a new trial. ( People v. Fierer (1987), 151 Ill. App. 3d 649, 503 N.E.2d 594, 104 Ill. Dec. 879.) The Illinois Supreme Court subsequently affirmed our decision. ( People v. Fierer (1988), 124 Ill. 2d 176, 529 N.E.2d 972, 124 Ill. Dec. 855.) Following defendant's second trial, the jury found the defendant guilty of voluntary manslaughter (Ill. Rev. Stat. 1985, ch. 38, par. 9-2) and he was sentenced to a term of 10 years imprisonment. The defendant now appeals, contending that: (1) he proved by a preponderance of the evidence that he was insane at the time he killed his wife; (2) he was denied a fair trial by improper cross-examination of his expert witnesses; (3) the jury was improperly instructed; (4) the trial court erred in limiting defense counsel's cross-examination of a prosecution witness; and (5) he was denied a fair trial by improper closing arguments by the prosecutors. We affirm.

Peoria attorney John Brady testified that he had been appointed guardian ad litem for the children of Joshua and Mary Fierer in connection with the Fierers' divorce proceedings. On the morning of December 6, 1984, he met with the defendant and Mary at the family residence in Morton, Illinois, to supervise the division of property. At the time, Mary and two of the children were living elsewhere in Morton. According to Brady, matters proceeded fairly smoothly from about 9 a.m. to 10:50 a.m. Both of the Fierers appeared somewhat ill at ease but were generally cooperative. During the course of the morning, Brady and the Fierers were joined by two professional movers. Shortly before 11 a.m., Mary went home to get more boxes and to transport some fragile items which she did not want the movers to handle. She returned after about 20 or 30 minutes.

At approximately 11:40 a.m., Brady telephoned his office, using the kitchen telephone while standing in the adjoining family room. The movers were outside and the Fierers were cleaning out the closet in a bedroom down the hall from the kitchen. While on the phone, Brady noticed defendant in the kitchen and then saw defendant leave the kitchen carrying a plastic trash bag. Within a minute or so thereafter, Brady heard a commotion coming from the bedroom, as if items had fallen down in the closet. He then heard Mary calling for help in a loud, excited voice.

Brady dropped the telephone and ran into the bedroom. He saw defendant on the floor near the closet with his elbows extended perpendicular to his body and they were moving very rapidly. Eventually realizing that defendant was attacking his wife, Brady, who is 6 feet 7 inches tall, tried to pull the defendant away, but he was unable to do so. Brady then ran to the front door and yelled to the movers for help. He returned to the bedroom and tried to pull defendant away by the shoulders but was again unsuccessful. Brady then took a case containing phonograph records and hit defendant on the head with it. When this had no effect, Brady left the room and called the police.

The movers, Keith Mordue and William Vogel, Jr., testified that they were outside in the truck when they heard a woman's screams coming from inside the house. Brady then came outside and told them, "He is killing her." Mordue ran into the bedroom and saw Mary Fierer leaning against the back of the closet and defendant leaning against her and stabbing her. Mordue tried to pull defendant away by his belt but he could not do so. Defendant did not say anything or even seem to realize that anyone else was present. Mordue then got a baseball bat from Vogel and returned to the bedroom with Vogel. They saw Mary on the ground with her head in the closet and her legs outside the closet and the defendant on top of her. Mordue told defendant to stop but he did not respond. Mordue then raised the bat over his head and brought it down hard onto defendant's right shoulder or collar bone. Defendant did not cry out in pain or grab his shoulder. He merely turned and stared at Mordue. As Mordue ran out of the room, he shouted that the police had arrived, but this also had no effect on the defendant. The movers then left the house to contact the police.

Morton police officers Mart Tatum and David Frank testified that they were the first policemen at the scene. They found defendant lying on top of his wife's body. They asked the defendant to get up but he did not move. The officers helped defendant to his feet and took him into the hallway. Defendant was told to lie down on his stomach and he did so. Defendant was asked his name but did not respond, nor did he respond to any other questions.

Dr. Grant Johnson testified that he performed the autopsy on Mary Fierer. A knife was embedded in her left chest and her body showed numerous stab wounds. She died from internal and external hemorrhaging resulting from the various wounds.

After the State rested, the defense called Daron Ray Perry, who testified that he was a member of the ambulance crew which reported to the Fierer residence on December 6, 1984. The defendant was disoriented and he did not respond to questions or to painful stimuli, nor did he react when an I.V. was inserted. Once inside the ambulance, defendant began saying, over and over in a high, squeaky voice, "Mary don't. My hands are cut. Mary, you stabbed me." Ambulance personnel Thomas Eaton and Robert Cloyd testified in rebuttal that defendant moved his head and eyes in response to words and sounds made in the ambulance. Eaton confirmed, however, that defendant kept repeating during the ride to the hospital, "Mary, don't do it. Put the knife down. Mary, please don't. My hand is cut, don't stab me, Mary."

Dr. Richard Corley, a plastic and reconstructive surgeon, testified that he treated the defendant in the emergency room of St. Francis Hospital. When Corley first saw defendant he was moaning and incoherent. Defendant had incurred 34 wounds to his hands and fingers. In Corley's opinion, those wounds were defensive wounds suffered when defendant attempted to grab the blade of a knife being thrust towards him. When Corley asked the defendant how he had been injured, he told Corley that his wife had attacked him with a knife, he had attempted to take the knife away from her, and the next thing he remembered was waking up in the emergency room.

Dr. Phillip Immesoete and Dr. John Feegel agreed with Dr. Corley that defendant's wounds were more likely defensive wounds incurred while attempting to ward off the knife rather than slippage wounds incurred while using the knife. Dr. Edmund Donoghue testified in rebuttal that defendant's wounds were more likely due to slippage than self-defense, while the wounds on Mary Fierer's hands were defensive. Donoghue acknowledged, however, that defendant's wounds could be defensive or slippage or a combination of both.

Defendant Joshua Fierer, 47 years old at the time of the incident and 54 years old at the time of the second trial, testified that he and his wife were married in 1959. Defendant graduated from medical school in 1963, and at the time of the incident, he was chairman of the pathology department of the University of Illinois Medical School in Peoria, a position he had held since 1978. Defendant and his wife had four children.

Defendant testified that, although Mary had a troubled childhood during which she was hospitalized and received electroshock and psychotherapy after slashing her wrist and arm with a razor blade, she was a good wife and mother and they had a happy marriage up until her mother's death in 1981. Prior to that time, Mary was very supportive of defendant in his work, helped him entertain fellow faculty and students, and played the primary role in running the household and raising the children. After her mother's death, Mary became distant and took less interest in the children and the household. She began drinking and twice in 1983 had to be hospitalized after overdosing on pills and alcohol. She went to work selling household items for Exclusive Home Products and she told defendant that she was making numerous sales, but he later learned that she never made any legitimate sales and that she had falsified orders to make it look as if she had. Mary told defendant that she had to travel to Springfield and Indianapolis on business but he later learned that she went to those cities to meet with the couple's former rabbi, with whom Mary was having an affair. Defendant also learned that Mary had rented a house in Peoria where she and the rabbi sometimes spent the night. Defendant also testified that Mary converted funds intended for the children's trust accounts to her own use.

As a result of their problems, the Fierers saw two marriage counselors and a psychiatrist but Mary eventually refused to participate further. In addition to his marital problems, defendant experienced pressures at work because the medical school was undergoing reorganization and there was a possibility defendant could lose his job. Defendant became very depressed and had difficulty concentrating and sleeping. The head of the psychiatry department at the medical school began treating defendant for depression and prescribed medication which defendant took on a daily basis up to and including December 6, 1984.

In January of 1984, defendant filed for divorce at Mary's suggestion. Initially, they used the same lawyer but Mary subsequently hired her own lawyer and the proceedings became bitter. In June, Mary obtained an ex parte order prohibiting defendant from entering the family home. The order was later rescinded and it was agreed that Mary would move out of the house and that the two youngest children would live with her. Defendant subsequently learned that, contrary to ...

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