Appeal from the Circuit Court of Kane County. No. 97--CF--8 Honorable James T. Doyle, Judge, Presiding.
The opinion of the court was delivered by: Justice Colwell
Following a jury trial, defendant, Sharlean Lewis Bogan, was convicted of first-degree murder (720 ILCS 5/9--1(a)(2) (West 1996)) in connection with the stabbing death of her husband, Karl A. Bogan (Karl). The circuit court of Kane County subsequently sentenced defendant to a prison term of 38 years. Defendant now appeals, contending (a) that the second-degree murder instruction tendered to the jury (see Illinois Pattern Jury Instructions, Criminal, No. 7.06A (3d ed. 1992) (hereinafter IPI Criminal 3d)) is unconstitutional and (b) that her trial counsel provided her with ineffective assistance by proposing IPI Criminal 3d No. 7.06A. We affirm defendant's conviction and also grant the State's request for $50 in fees.
On January 22, 1997, a Kane County grand jury returned an indictment against defendant, charging her with alternative counts of first-degree murder. See 720 ILCS 5/9--1(a)(1), (a)(2) (West 1996). The jury trial was held on April 14 and 15, 1998, during which the following evidence was admitted.
At 4:30 a.m. on January 1, 1997, defendant pounded on the door of the Carpentersville fire department and awoke firefighter Steven Guetschow. Hysterical, defendant told Guetschow that her husband was sick and in need of medical assistance. Guetschow called for an ambulance while several firefighters went to defendant's apartment, which was located directly behind the fire department. There they found Karl, lying supine on the floor just inside the apartment door. He had been stabbed to death.
At 9:41 that same morning, defendant gave a statement to Officer Michael O'Brien of the Carpentersville police department. In that statement, which was audiotaped, defendant told O'Brien that she and Karl were at home the previous evening (New Year's Eve), watching a movie and drinking liquor. At some point in the evening or early morning, defendant went with Karl to a gas station to purchase crack cocaine. Defendant, who was six months' pregnant, brought her two-year-old baby with them. After returning to the apartment and smoking some of the crack, defendant and Karl began arguing. Defendant did not want to continue smoking crack while pregnant, and she threatened to leave Karl. As the argument escalated, defendant obtained a knife from the kitchen and went into the bedroom. She said she took the knife because she was scared. Later, Karl entered the bedroom, placed two other kitchen knives on the bed in front of defendant, and told her, "[O]ne of us is going to die tonight."
A short while later, having decided to leave the apartment, defendant grabbed two of the knives. She argued with Karl in the front room and then began walking down a hallway toward her baby's room. Karl took a lamp and threw it in defendant's direction. Although the lamp shattered near her feet, defendant said she did not believe Karl was trying to hurt her with the lamp. After the lamp broke, defendant turned around and began swinging the knives. Karl then picked up a vacuum cleaner and "touched" her on the back with it. According to defendant's statement, the "touch" was "not hard, like . . . nothing that would hurt me." Yet defendant turned around and began swinging the knives again. After stabbing Karl in the chest, defendant ran to the fire station. She told O'Brien she did not sustain any injuries during the altercation.
An autopsy revealed that Karl sustained 26 stab wounds, 4 of them exceeding 2 inches in depth. The worst was a chest wound, six to seven inches deep, penetrating into Karl's heart. Karl also suffered a two-inch-deep wound to his right shoulder, a three-inch-deep wound to his right armpit, and a four-inch-deep wound to the back of his right shoulder.
Defendant asserted a self-defense theory at trial. Several witnesses testifying for defendant stated that Karl was a cocaine addict and a threatening individual with a violent temper. Karl's ex-wife testified that Karl was an abusive husband who became addicted to crack in the mid-1980s.
Defendant testified that Karl physically abused her during their six-month marriage, causing her to leave him two or three times. Defendant's testimony regarding the New Year's events differed slightly from her January 1, 1997, statement to Officer O'Brien. According to defendant's trial testimony, Karl began choking her with one hand after putting the knives on the bed. Defendant further testified that she then kneed Karl in the groin and went into the front room carrying the knives. Karl followed, took the lamp, and hit her in the back with it. After physically struggling with defendant and threatening to cut her throat, Karl picked up the vacuum cleaner and beat defendant on the back and head with it. Still holding the knives, defendant fell into a fetal position on the ground to protect her unborn child. At that point, Karl told defendant he was hurt, and it was then that defendant ran to the fire department. Defendant testified that she simply told the firefighters her husband was sick because she did not see any blood and because she was too far away from Karl to have stabbed him. She stated on cross-examination that she sustained bruises from being hit with the vacuum cleaner, contrary to her statement to Officer O'Brien.
The jury received instructions on first-degree murder (720 ILCS 5/9--1(a)(1), (a)(2) (West 1996)), second-degree murder (720 ILCS 5/9--2 (West 1996)), and involuntary manslaughter (720 ILCS 5/9--3 (West 1996)). Taken from IPI Criminal 3d No. 7.06A, the second-degree murder instruction stated in relevant part:
"To sustain either the charge of first degree murder or the charge of second degree murder, the State must prove the following propositions:
First Proposition: That the defendant performed the acts which caused the death of Karl A. Bogan; and
Second Proposition: That when the defendant did so, [she] knew that such acts created a strong probability of death or great ...