People v. Delaney ( 1978 )

Mr. JUSTICE DIERINGER

delivered the opinion of the court:

This is an appeal from the circuit court of Cook County. The defendant, Susan Delaney, was convicted of voluntary manslaughter after a bench trial and was sentenced to a term of 5 to 15 years in the Illinois State Penitentiary. The defendant appeals from the conviction and the sentence.

On appeal the defendant raises five issues for review: (1) whether or not the defendant was proven guilty beyond a reasonable doubt; (2) whether or not the conviction for voluntary manslaughter should be reduced to involuntary manslaughter; (3) whether or not the defendant’s fifth amendment rights were violated; (4) whether or not there was prejudicial cross-examination; and (5) whether or not the sentence imposed by the trial court was excessive.

The facts of the case are the defendant had been dating the deceased, Thomas Meyering, for a period of 1/2 years. In July of 1975, the deceased had another girl staying with him in his apartment. The defendant testified she knew the deceased and this other girl had sexual relations previously. The defendant phoned the girl the day before she was to come to visit and the girl testified the defendant asked her not to come to Chicago. The defendant phoned the girl at the deceased’s apartment and visited her while the deceased was at work. Several times, they discussed the sexual relationship between the deceased and the girl who was staying with him. On July 11, 1975, the deceased and the defendant were in the middle of an argument over the status of their relationship and the defendant shot and killed the deceased with a gun belonging to her father. On July 23,1975, a Chicago police officer talked with the girl who had been staying with the deceased. The girl told the officer the defendant had said she would kill the deceased before she would see him with anyone else. The officer then went to the gun registration section of the Chicago Police Department and found a .38-caliber revolver with the same characteristics of the gun the deceased was shot with, registered to the defendant’s father. The defendant was then taken to the police station, advised of her rights, and she then admitted she had shot and killed the deceased. The defendant subsequently was indicted for murder. After a bench trial she was found guilty of the lesser included offense of voluntary manslaughter.

The first issue raised by the defendant is whether or not the State proved her guilty beyond a reasonable doubt. The defendant urges the State did not exclude every reasonable hypothesis of innocence. It is the law in this State the prosecution must exclude every reasonable hypothesis when the evidence of the defendant’s guilt is entirely circumstantial. In the instant case the evidence adduced at trial by the State included the statement of the defendant in which she admitted shooting and killing the deceased. This is direct evidence and the State is not required to exclude every reasonable hypothesis where the defendant has made such a statement. Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254; People v. Carbona (1975), 27 Ill. App. 3d 988.

The second issue raised by the defendant is the evidence does not prove the defendant guilty of voluntary manslaughter as there is no evidence the defendant acted under a sudden and intense passion. The evidence shows the defendant had threatened to kill the deceased a number of times prior to the night in question. The defendant admitted she had threatened the deceased with the gun in question and once had chased him for half a block with her finger on the trigger. The defendant admits she shot and killed the deceased in the course of an argument over whether or not they were going to cease their relationship. Upon such evidence it was proper for the trial court to conclude the defendant was guilty of voluntary manslaughter. Whether or not any particular conduct is sufficient to inflame the passions of the defendant so as to constitute a serious provocation within the definition of voluntary manslaughter, is a matter uniquely within the province of the trier of fact. (People v. Tucker (1971), 3 Ill. App. 3d 152.) The finding of guilty was proven beyond a reasonable doubt and we will not disturb the finding on review.

The third issue raised by the defendant is whether or not her fifth amendment rights were violated when the State elicited testimony on rebuttal which showed the defendant had lied to the police. This exact situation was discussed by the United States Supreme Court in Doyle v. Ohio (1976), 426 U.S. 610, 619 n. 11, 49 L. Ed. 2d 91, 98 n. 11, 96 S. Ct. 2240, 2245 n. 11, where the court said:

“It goes almost without saying that the fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculptory version of events and claims to have told the police the same version upon arrest. In that situaton the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant’s testimony as to his behavior following arrest. Cf. U.S. v. Fairchild, 505 F.2d 1378, 1383.”

In the instant case the rebuttal testimony did not violate the fifth amendment rights of the defendant as it only went to challenge her testimony on direct examination.

The fourth issue raised by the defendant is whether or not the cross-examination concerning her sexual relationship with the deceased was improper. On her direct testimony the defendant testified as to the sexual relationship between herself and the deceased. Counsel for the defendant raised the question a number of times and the defendant testified at great length concerning their sexual activity. The law in Illinois is quite clear it is proper for a prosecutor to pursue a line of questioning which was initiated by the defendant. (People v. Briggman (1974), 21 Ill. App. 3d 747.) The defendant raised the issue in the trial court and cannot now complain about it here.

The fifth issue raised by the defendant is whether or not the sentence imposed by the trial court is excessive. In People v. Perruquet (1977), 68 Ill. 2d 149, the Illinois Supreme Court stated the trial court is normally in a superior position to determine the correct sentence and a reviewing court may not alter such a sentence absent an abuse of discretion. In the instant case we have read the trial judge’s reasoning, as he gave it in open court, for imposing the sentence of 5 to 1-5 years in the Illinois State Penitentiary. We cannot say, given the serious nature of the offense, the trial judge abused his discretion.

Accordingly, for the reasons contained herein, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

JOHNSON, P. J., concurs.