{ "id": 8498218, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID McCARTHY, Defendant-Appellant", "name_abbreviation": "People v. McCarthy", "decision_date": "1989-03-23", "docket_number": "No. 1\u201485\u20142485", "first_page": "208", "last_page": "216", "citations": [ { "type": "official", "cite": "181 Ill. App. 3d 208" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "509 N.E.2d 1337", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "156 Ill. App. 3d 742", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3505068 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/156/0742-01" ] }, { "cite": "530 N.E.2d 651", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "175 Ill. App. 3d 932", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3554846 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/175/0932-01" ] }, { "cite": "449 N.E.2d 821", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "96 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3115107 ], "opinion_index": 0, "case_paths": [ "/ill-2d/96/0176-01" ] }, { "cite": "473 N.E.2d 840", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "105 Ill. 2d 22", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3141932 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-2d/105/0022-01" ] }, { "cite": "488 N.E.2d 949", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "109 Ill. 2d 514", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3126394 ], "opinion_index": 0, "case_paths": [ "/ill-2d/109/0514-01" ] }, { "cite": "517 N.E.2d 745", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "164 Ill. App. 3d 99", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3582674 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/164/0099-01" ] }, { "cite": "379 N.E.2d 30", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "62 Ill. App. 3d 75", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5622633 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/62/0075-01" ] }, { "cite": "421 N.E.2d 406", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "96 Ill. App. 3d 212", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 12127273 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/96/0212-01" ] }, { "cite": "301 N.E.2d 608", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "13 Ill. App. 3d 1038", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5344357 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/13/1038-01" ] }, { "cite": "522 N.E.2d 876", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "168 Ill. App. 3d 636", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3514027 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/ill-app-3d/168/0636-01" ] }, { "cite": "382 N.E.2d 358", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "65 Ill. App. 3d 25", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3325050 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/65/0025-01" ] }, { "cite": "262 N.E.2d 282", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "127 Ill. App. 2d 322", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2474080 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/127/0322-01" ] }, { "cite": "449 N.E.2d 78", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "95 Ill. 2d 535", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3111774 ], "opinion_index": 0, "case_paths": [ "/ill-2d/95/0535-01" ] }, { "cite": "314 N.E.2d 324", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "20 Ill. App. 3d 911", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5343980 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/20/0911-01" ] }, { "cite": "382 N.E.2d 421", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "65 Ill. App. 3d 60", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3325719 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-app-3d/65/0060-01" ] }, { "cite": "518 N.E.2d 82", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "119 Ill. 2d 69", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3193089 ], "opinion_index": 0, "case_paths": [ "/ill-2d/119/0069-01" ] }, { "cite": "488 N.E.2d 1304", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "140 Ill. App. 3d 413", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3531495 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/140/0413-01" ] }, { "cite": "509 N.E.2d 648", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "156 Ill. App. 3d 331", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3505509 ], "pin_cites": [ { "page": "340-44" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/156/0331-01" ] }, { "cite": "147 Ill. App. 3d 891", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3604708 ], "year": 1987, "pin_cites": [ { "page": "896-909" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/147/0891-01" ] }, { "cite": "509 N.E.2d 662", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 1 }, { "cite": "156 Ill. App. 3d 365", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3505706 ], "year": 1986, "pin_cites": [ { "page": "374-94" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/156/0365-01" ] }, { "cite": "523 N.E.2d 1327", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 1 }, { "cite": "168 Ill. App. 3d 816", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3514449 ], "year": 1987, "pin_cites": [ { "page": "821-44" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/168/0816-01" ] }, { "cite": "523 N.E.2d 943", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 1 }, { "cite": "169 Ill. App. 3d 536", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3551011 ], "year": 1988, "pin_cites": [ { "page": "541-81" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/169/0536-01" ] }, { "cite": "370 N.E.2d 1155", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 1 }, { "cite": "55 Ill. App. 3d 421", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3406785 ], "year": 1988, "opinion_index": 1, "case_paths": [ "/ill-app-3d/55/0421-01" ] }, { "cite": "436 N.E.2d 667", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 1 }, { "cite": "106 Ill. App. 3d 993", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3030849 ], "year": 1977, "opinion_index": 1, "case_paths": [ "/ill-app-3d/106/0993-01" ] }, { "cite": "473 N.E.2d 387", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 1 }, { "cite": "130 Ill. App. 3d 41", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3492006 ], "year": 1982, "opinion_index": 1, "case_paths": [ "/ill-app-3d/130/0041-01" ] }, { "cite": "499 N.E.2d 499", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 1 }, { "cite": "148 Ill. App. 3d 678", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3644548 ], "year": 1984, "opinion_index": 1, "case_paths": [ "/ill-app-3d/148/0678-01" ] }, { "cite": "402 N.E.2d 238", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 1 }, { "cite": "79 Ill. 2d 129", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3070395 ], "year": 1986, "opinion_index": 1, "case_paths": [ "/ill-2d/79/0129-01" ] } ], "analysis": { "cardinality": 837, "char_count": 18684, "ocr_confidence": 0.74, "pagerank": { "raw": 1.434189606753157e-07, "percentile": 0.6518943768536313 }, "sha256": "a092ade348e1e1a8f987cc9189aea95fb1f56db37c2f2c08f3ebef4de83c4074", "simhash": "1:3a96b2d8bb968d90", "word_count": 3071 }, "last_updated": "2023-07-14T20:30:31.344826+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "COCCIA, J., concurs." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID McCARTHY, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE MURRAY\ndelivered the opinion of the court:\nDefendant David McCarthy appeals his jury conviction for murder. The fact that defendant shot and killed Adrienne Neal is undisputed. The record contains the following additional facts.\nDefendant and Adrienne began dating in 1974 when they were both high school freshmen. In 1978, they had a child and then lived together for six months in 1979. After a second child was born to Adrienne and defendant in 1981, they again lived together until April 3, 1983 (Easter), when Adrienne ended the relationship and moved, with the two children, initially into her mother\u2019s home and then into her own apartment. The couple were never legally married. On the day Adrienne moved out, her mother testified that defendant went to her home and smashed the windows of a car parked in the driveway belonging to Adrienne\u2019s father. Two weeks later, defendant again went to the Neal home and physically assaulted Adrienne and her mother. Defendant denied these acts.\nEarly in May, Adrienne began dating an old grade school friend, Winifred Johnson, and defendant began \u201cseeing\u201d Michelle Gardner. Approximately 10 days before the shooting incident, defendant was referred by his probation officer to Englewood Mental Health Center and told a therapist that he was depressed and was having homicidal and suicidal thoughts. On June 3, defendant bought a gun. Three days later, he picked up Michelle, who testified that they drove around for about an hour and stopped several times, looking for some marijuana. Michelle said that she did not notice anything unusual about defendant and that there was no evidence that he had been drinking. Defendant testified that they had just driven around talking about Adrienne and the children and that they never stopped for marijuana. Around 11 p.m., defendant parked near Adrienne\u2019s apartment building and, taking an object from beneath the seat, left Michelle in the car and went to the back of the building.\nDefendant went up to Adrienne\u2019s second-floor apartment and knocked on the back door. Adrienne\u2019s sister, Anita, who was in the kitchen with her boyfriend, Woodrow McGuire, let defendant in. McGuire testified that earlier in the evening, defendant had gone to McGuire\u2019s house and said, \u201cI know Anita is hiding behind the door, tell her to take her last look.\u201d Anita and McGuire then went to Adrienne\u2019s house. Adrienne and Johnson came home and went into the bedroom. According to Anita and McGuire, defendant came into the kitchen and pointed a gun seven to eight inches away from Anita\u2019s face and then knocked her to the floor, pulled her up again putting the gun to her head, and then dropped her back to the floor. Neither McGuire nor Anita saw any signs that defendant had been drinking.\nDefendant then went to the bedroom, where he shot Adrienne five times. Johnson testified that he and Adrienne had fallen asleep in their underwear while watching television when they were awakened by Anita\u2019s screams. They had both jumped out of the bed when defendant burst in and shot at Johnson, grazing him. Johnson ran out of the room and jumped off the back porch. Anita, McGuire, and Johnson all heard more shots as they were fleeing. The evidence shows that Adrienne was shot from two to six feet away. Defendant then fled to California, and Michelle followed to give him some belongings his mother had sent, after which Michelle returned to Chicago.\nDefendant, and his sister, testified that after the Easter breakup, he became extremely depressed, suicidal, and began drinking heavily. Although not legally married, defendant stated that he thought of Adrienne as his \u201cwife.\u201d He also testified that he did not threaten Anita and that he had purchased the gun to kill himself, and that when he went to Adrienne\u2019s home, he intended to kill himself if she refused to reconcile.\nThe record also indicates that defendant was seeing other women both before and after the Easter breakup, and that he, in fact, married one of them, Raydell Lacey, six months after killing Adrienne. In January 1984, defendant, accompanied by counsel, turned himself in to the police.\nBefore trial, the court granted the State\u2019s motion in limine barring the testimony of the mental health therapist and also denied a defense motion to bar evidence of other crimes, i.e., breaking the car windows and the batteries against Adrienne and her mother. In the opening statement, defense counsel conceded that defendant shot his \u201ccommon law wife\u201d but asserted that the shooting was manslaughter resulting from the provocation of seeing her in bed with another man. However, the trial court refused to instruct the jury on voluntary manslaughter and defendant was convicted of murder and subsequently sentenced to 34 years\u2019 imprisonment.\nOn appeal, defendant contends that the trial court committed error in refusing to give a voluntary manslaughter instruction, in permitting admission of other crimes evidence and barring the therapist\u2019s testimony, and further, that defendant\u2019s sixth amendment right to effective assistance of counsel was denied because his attorney conceded that defendant had shot Adrienne.\nDefendant bases his voluntary manslaughter defense on the long, \u201cmarital-type\u201d relationship between him and Adrienne, the breakup of which caused him to become extremely depressed with homicidal and suicidal thoughts. Under such circumstances, the sight of finding his \u201cwife\u201d in bed with another man caused him to act in the heat of passion when he killed her. Defendant asserts that there was evidence in the record suggesting provocation so that the jury, not the court, was entitled to determine the sufficiency thereof. The State argues that a marital-type relationship cannot give rise to serious provocation and, even if it could, there was no such relationship here since it had ended several months prior to the killing.\nVoluntary manslaughter is a lesser included offense of murder and is a legal compromise between murder and exoneration. (People v. Dare (1986), 140 Ill. App. 3d 413, 488 N.E.2d 1304.) Voluntary manslaughter occurs when a person kills another without lawful justification while acting under a sudden and intense passion resulting from serious provocation; serious provocation is conduct sufficient to excite an intense passion in a reasonable person. (Ill. Rev. Stat. 1983, ch. 38, par. 9 \u2014 2(a).) Where there is evidence in the record which, if believed by the jury, would reduce the crime of murder to manslaughter, the appropriate instruction should be given. (People v. Foster (1987), 119 Ill. 2d 69, 518 N.E.2d 82.) Moreover, whether the provocation is sufficient to cause intense passion is a matter to be determined by the trier of fact (People v. Yates (1978), 65 Ill. App. 3d 60, 382 N.E.2d 421) and a defendant is entitled to have the jury consider any legally recognized defense theory that has some foundation in the evidence, however tenous. People v. Dortch (1974), 20 Ill. App. 3d 911, 314 N.E.2d 324.\nThe categories of serious provocation recognized by Illinois courts are substantial physical injury or assault, mutual quarrel or combat, illegal arrest, and adultery with the offender\u2019s spouse. (Peo ple v. Fausz (1983), 95 Ill. 2d 535, 449 N.E.2d 78.) Thus, the issue in the present case is whether, on the facts of this case, defendant\u2019s heat of passion defense can be legally recognized under the spousal adultery category of provocation. We find that it can, and therefore a voluntary manslaughter instruction should have been given to the jury-\nIn 1970, this court in People v. Newberry (1970), 127 Ill. App. 2d 322, 262 N.E.2d 282, sustained a conviction of manslaughter of a depressed and suicidal defendant who had killed his girlfriend of three years several weeks after she ended the relationship. There is no indication in Newberry as to whether the defendant and victim had been living together. However, it was in the later case of People v. Wesley (1978), 65 Ill. App. 3d 25, 382 N.E.2d 358, that this court recognized that the breakup of a marital-type relationship is an occurrence that can cause a sudden and intense passion resulting from provocation sufficient to reduce murder to voluntary manslaughter. While it is true, as the State points out, that in Wesley there was also mutual quarrel or combat, it is also apparent that the court recognized that \u201cthe testimony on the breakup of the common law marriage is significant here. Courts have found that the breakup of a marital-type relationship is a type of situation which can give rise to sudden and intense passions. [Citations.]\u201d (Wesley, 65 Ill. App. 3d at 31, 382 N.E.2d at 362.) We note here that it has also been recognized, contrary to common law, that under certain circumstances, words informing a spouse of adultery can be the basis for provocation. People v. Flores (1988), 168 Ill. App. 3d 636, 522 N.E.2d 876; People v. Ahlberg (1973), 13 Ill. App. 3d 1038, 301 N.E.2d 608.\nOf course, the breakup of a marital-type relationship will not always support a voluntary manslaughter instruction. (See, e.g., People v. Miller (1981), 96 Ill. App. 3d 212, 421 N.E.2d 406 (argument over breakup of relationship insufficient provocation where deliberation and malice were evidenced); People v. Pequino (1978), 62 Ill. App. 3d 75, 379 N.E.2d 30 (killing occurred one year after breakup of relationship).) While we also agree that the breakup of a relationship does not always entitle a defendant to a manslaughter instruction, such an instruction should have been given in the present case.\nThis case contains an element missing in the cases referred to above \u2014 -it is undisputed that defendant found Adrienne and Johnson in their underwear, either in bed according to defendant, or near the bed according to Johnson. Defendant testified that he was depressed and suicidal when he went to Adrienne\u2019s apartment to effect a reconciliation and, if unsuccessful, had planned to kill himself. Whether this was provocation sufficient to reduce the murder charge to manslaughter is an issue that should be resolved by a jury. Very slight evidence upon a given theory will justify a manslaughter instruction. (People v. Williams (1987), 164 Ill. App. 3d 99, 517 N.E.2d 745.) Defendant submitted evidence that he was distraught and suicidal over the breakup, had persistently attempted to reconcile, and found Adrienne, the mother of his two daughters, in bed with another man. These and other considerations urged by the State \u2014 e.g., whether defendant had a girlfriend after the breakup, the two-month lapse between the breakup and killing \u2014 are factors to be considered by a jury in determining whether defendant killed Adrienne with malice or in the heat of passion. Accordingly, it was reversible error not to give a voluntary manslaughter instruction in this case.\nSince we must remand this case for a new trial, defendant\u2019s other issues on appeal need only be briefly addressed. His objection to the admission of the \u201cother crimes or bad acts\u201d evidence that he committed batteries on Adrienne and her mother approximately six weeks before the killing is without merit. Although other crimes evidence is inadmissible if relevant only to establish a defendant\u2019s propensity to commit the crime charged (People v. King (1986), 109 Ill. 2d 514, 488 N.E.2d 949), it may be admitted if relevant for other purposes (People v. Stewart (1984), 105 Ill. 2d 22, 473 N.E.2d 840). One of the accepted purposes is to show intent. People v. McKibbins (1983), 96 Ill. 2d 176, 449 N.E.2d 821.\nIn our case, in order to counter a defense of manslaughter, the State would have to prove defendant killed Adrienne with intent rather than in the heat of passion. The State further argues that the bad acts evidence was relevant to demonstrate the type of relationship that existed between defendant and Adrienne after their breakup. This also is a valid rationale for admission of the evidence. (See People v. Crayton (1988), 175 Ill. App. 3d 932, 530 N.E.2d 651; see also People v. Groleau (1987), 156 Ill. App. 3d 742, 509 N.E.2d 1337 (defendant\u2019s altercation with his wife three weeks prior to her murder admissible to show motive and his state of mind).) Therefore, it was not error to admit the prior bad acts of defendant.\nSimilarly, there was no error in the denial of the testimony of the mental health therapist regarding defendant\u2019s state of mind 11 days prior to Adrienne\u2019s death. The defense of heat of passion depends on a defendant\u2019s state of mind immediately prior to the killing, not what he was thinking 11 days before the event. As a result of our conclusions, there is no need to address the ineffectual assist-anee of counsel allegation.\nFor the above reasons, we reverse and remand this matter for a new trial.\nReversed and remanded.\nCOCCIA, J., concurs.", "type": "majority", "author": "PRESIDING JUSTICE MURRAY" }, { "text": "JUSTICE PINCHAM,\nconcurring in part and dissenting in part:\nWhile I concur in the majority\u2019s holding that the trial court erred in refusing to give a voluntary manslaughter instruction and in the reversal of the defendant\u2019s murder conviction and remandment for a new trial, I dissent to the majority\u2019s holdings that evidence of the defendant\u2019s \u201cother crimes or bad acts\u201d was admissible against the defendant and \u201cthere was no error in the denial of the testimony of the mental health therapist regarding defendant\u2019s state of mind 11 days prior to Adrienne\u2019s death.\u201d 181 Ill. App. 3d at 213.\nThe deceased, Adrienne Neal, discontinued living with the defendant, moved out and ended her relationship with him on April 3, 1983. Clearly, the testimony of Adrienne\u2019s mother that the defendant on that date smashed the windows of Adrienne\u2019s father\u2019s car had absolutely no probative value on any issue in the case and was inadmissible on the defendant\u2019s trial for the murder of Adrienne on June 6, 1983. This act by the defendant on April 3, 1983, was a manifestation of the defendant\u2019s hostility towards Adrienne\u2019s father at that time. It did not and it could not have established the defendant\u2019s state of mind two months later on June 6, 1983, when he killed Adrienne. This is also true of Adrienne\u2019s mother\u2019s testimony of the defendant\u2019s assault upon her and Adrienne two weeks after their April 3, 1983, breakup. Likewise, the testimony of Michelle Gardner that before the shooting she and the defendant stopped several times, looking for marijuana, had no probative value, was highly prejudicial and was inadmissible. If the prosecution was unable to make a case against the defendant confined to the gory facts of the instant homicide by the eyewitnesses, it should not have been allowed to buttress its case with the foregoing irrelevant inflammatory evidence. People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238; People v. Grabbe (1986), 148 Ill. App. 3d 678, 499 N.E.2d 499; People v. Davis (1984), 130 Ill. App. 3d 41, 473 N.E.2d 387; People v. Barbour (1982), 106 Ill. App. 3d 993, 436 N.E.2d 667; People v. Miller (1977), 55 Ill. App. 3d 421, 370 N.E.2d 1155; see dissenting opinions in People v. Howard (1988), 169 Ill. App. 3d 536, 541-81, 523 N.E.2d 943; People v. Hayes (1988), 168 Ill. App. 3d 816, 821-44, 523 N.E.2d 1327; People v. Partin (1987), 156 Ill. App. 3d 365, 374-94, 509 N.E.2d 662; People v. Harris (1986), 147 Ill. App. 3d 891, 896-909; see People v. Wachal (1987), 156 Ill. App. 3d 331, 340-44, 509 N.E.2d 648 (Pincham, J., specially concurring).\nThe defendant was charged with and on trial for the June 6, 1983, murder of Adrienne Neal, during which trial he was compelled to defend against evidence of his commission of four separate, independent earlier offenses: (1) criminal damage to Adrienne\u2019s father\u2019s car; (2) and (3) assaults upon Adrienne and her mother; and (4) a conspiracy with Michelle Gardner to acquire marijuana, an illegal drug. Most assuredly, the prejudicial impact of this evidence clearly outweighed any probative value this evidence may remotely have had and it should not have been admitted. None of this evidence was admissible to and did not establish the defendant\u2019s intent at the time he shot Adrienne.\nMoreover, the defendant\u2019s intent was not an issue in this case. The State\u2019s eyewitnesses established, it was uncontested, the defendant admitted that he shot Adrienne \u2014 five times \u2014 and that he intended to shoot her and that he intended to kill her. His defense was not lack of intent. Such a defense on the facts in this case would have been absurd. Conversely, the defendant\u2019s defense, as stated in his attorney\u2019s opening statement, was that the shooting was voluntary manslaughter, that the defendant shot Adrienne under a sudden and intense passion resulting from the serious provocation of the defendant seeing Adrienne in bed with another man. (Ill. Rev. Stat. 1985, ch. 38, par. 9 \u2014 2 (presently second degree murder, Ill. Rev. Stat. 1987, ch. 38, par. 9 \u2014 2).) It was clearly erroneous to have admitted this evidence of the defendant\u2019s \u201cother crimes as bad acts.\u201d\nIf evidence of the defendant\u2019s damage to Adrienne\u2019s father\u2019s car on April 3, 1983, and evidence of the defendant\u2019s assault upon Adrienne and her mother two weeks later was admissible to establish the defendant\u2019s intent, i.e., his state of mind, when he shot Adrienne five times two months later, as the majority holds, certainly then the mental health therapist\u2019s testimony \u201cregarding defendant\u2019s state of mind 11 days prior to Adrienne\u2019s death\u201d was likewise admissible to establish his state of mind at the time the defendant shot her. If \u201cthe defense of heat of passion depends on a defendant\u2019s state of mind immediately prior to the killing, [and] not [on] what he was thinking 11 days before the event,\u201d as the majority holds (181 Ill. App. 3d at 213), the same rule likewise applies to the defendant\u2019s state of mind of intent, i.e., \u201cthe defendant\u2019s state of mind immediately prior to the killing\u201d and not what the defendant\u2019s state of mind was, not \u201c11 days before the event,\u201d but rather, two months \u201cbefore the event.\u201d\nAccordingly, I dissent to the majority\u2019s holdings that the aforementioned evidence of the defendant\u2019s \u201cother crimes or bad acts\u201d was admissible and that the aforementioned testimony of the mental health therapist was inadmissible.", "type": "concurring-in-part-and-dissenting-in-part", "author": "JUSTICE PINCHAM," } ], "attorneys": [ "Randolph N. Stone, Public Defender, of Chicago (James H. Reddy, Assistant Public Defender, of counsel), for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Inge Fryklund, Patricia Y. Brown, and Laura J. Diamant, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID McCARTHY, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1\u201485\u20142485\nOpinion filed March 23, 1989.\nRandolph N. Stone, Public Defender, of Chicago (James H. Reddy, Assistant Public Defender, of counsel), for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Inge Fryklund, Patricia Y. Brown, and Laura J. Diamant, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0208-01", "first_page_order": 230, "last_page_order": 238 }