Appeal from the Circuit Court of Lake County. No. 99--CF--1830 Honorable James K. Booras, Judge, Presiding.
The opinion of the court was delivered by: Justice Callum
Following a jury trial, defendant, Ramon Dominguez, was convicted of first-degree murder (720 ILCS 5/9--1(a)(1), (a)(2) (West 1998)). He was sentenced to 28 years' imprisonment. He appeals, arguing that (1) his counsel and the trial court erred in failing to instruct the jury on the lesser-included offense of involuntary manslaughter (720 ILCS 5/9--3(a) (West 1998)); and (2) he was entitled to a hearing on his fitness to be tried and sentenced. We affirm.
At trial, the State produced the following evidence. Dawn Ramirez testified that she was a 911 operator for the North Chicago police department. On May 28, 1999, about 10:30 p.m., a male called 911 and reported that his wife had been shot at his house. He stated that the shooter had run away. The caller lived at 1224 Park. According to Ramirez, the caller was "hysterical."
Gerardo Reyes testified that defendant lived at 1224 Park with defendant's wife Martha Reyes and their children, G.D. and S.D.
S.D., defendant's six-year-old daughter, testified that she and her mother were in a bedroom when defendant walked in. S.D. saw defendant talk loudly to her mother, retrieve a gun from a closet, put it back, retrieve it again, and use it to kill her mother. Defendant then called the police.
Richard Wilson, a North Chicago police officer, testified that he was dispatched to 1224 Park. Defendant was standing on the porch. He was hysterical, and he said that his wife had been shot. He spoke English but with a Spanish accent. He led Wilson into the house, and Wilson saw a woman lying on the floor in a bedroom. In the same room, Wilson found a semiautomatic handgun under a bed.
Christopher Berg, another North Chicago police officer, was at the scene with Wilson. Berg testified that he and defendant spoke to each other in English and had no difficulty understanding each other. Defendant said that he and his children had been in the house and that his wife had been on the porch. Defendant stated that he heard a gunshot, ran outside, and saw someone running away. Defendant said that he dragged his wife into the house and went to retrieve his gun. Outside the house, Berg found no evidence of any kind. Inside the house, Berg saw no indication that anyone or anything had been dragged.
Robert D. Peters, a North Chicago firefighter/paramedic, was also dispatched to 1224 Park. He testified that he had smelled gunpowder in the bedroom.
William Jones, another North Chicago police officer at the scene, testified that the gun under the bed was lacking a magazine and thus appeared to be empty. There were no signs of a struggle inside the house.
Dean Kharasch, a North Chicago police officer, was at the scene as well. He testified that he asked defendant about the gun. Defendant said that the shooter had used the gun to shoot his wife in the living room. Defendant added that he fought with the shooter, who then threw the gun under the bed. Kharasch had no trouble understanding defendant's English. Kharasch's investigation confirmed that the shooting had occurred inside the house. In the bedroom closet, Kharasch found the magazine to the gun and a box of ammunition.
Brian Carder, a North Chicago police detective, testified that he found a shell casing on a dresser in the bedroom. No other casings were found in the house. No fingerprints were found on the gun. The gun could have been fired without a magazine if a bullet had been in the chamber.
The parties stipulated that Elizabeth Horvath, a physician, would testify that Martha Reyes died from a gunshot wound to the chest. Nancy Jones, a forensic pathologist, testified that Reyes was shot from no more than 18 inches away.
Robert Wilson, a firearms examiner for the Northern Illinois Police Crime Laboratory, testified that the shell casing on the dresser had been ejected from the gun found under the bed. He further stated that the same gun had fired the bullet recovered from Martha Reyes's body. That bullet matched the bullets found in the closet.
The State rested, and defendant presented no evidence. In response to the court's inquiry, defendant stated that he did not wish to testify. During the conference on jury instructions, neither the parties nor the court addressed the propriety of an instruction on involuntary manslaughter. No such instruction was tendered to the court or given to the jury.
In his closing argument, defense attorney Michael Melius acknowledged that defendant had shot his wife. Melius stated, however, that defendant's act did not evince an intent to kill or do great bodily harm. Melius argued:
"We read about it all the time. It happens in accidents. It happens when people are negligent. It happens when people are reckless. It happens when people are stupid. It happens when people pick up weapons without determining whether or not the gun is loaded.
Is that intent to kill somebody then if you pick up that gun, and *** you believe that it's not loaded and then you pull the ...