{ "id": 2724132, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WARREN FOSTER, Defendant-Appellant", "name_abbreviation": "People v. Foster", "decision_date": "1976-11-03", "docket_number": "No. 75-359", "first_page": "490", "last_page": "496", "citations": [ { "type": "official", "cite": "43 Ill. App. 3d 490" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "339 N.E.2d 417", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "34 Ill. App. 3d 688", "category": "reporters:state", "reporter": "Ill. App. 3d", "opinion_index": 0 }, { "cite": "244 N.E.2d 424", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "104 Ill. App. 2d 398", "category": "reporters:state", "reporter": "Ill. 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App. 3d 247", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2785445 ], "pin_cites": [ { "page": "255" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/26/0247-01" ] } ], "analysis": { "cardinality": 815, "char_count": 16361, "ocr_confidence": 0.879, "pagerank": { "raw": 1.5694591374289875e-07, "percentile": 0.6784264256333091 }, "sha256": "e2e6d4434d49422ab3282ab2b3a35af891c04ce253e5ce85498562bc2a8fec39", "simhash": "1:2fa770fe3bc711ff", "word_count": 2741 }, "last_updated": "2023-07-14T21:56:30.289259+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WARREN FOSTER, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE EBERSPACHER\ndelivered the opinion of the court:\nDefendant, Warren Foster, was charged by indictment filed in the circuit court of Madison County with the offense of murder. Following a jury trial defendant was found guilty as charged and was sentenced to a term of 14 to 18 years\u2019 imprisonment. From the judgment entered by the trial court, defendant appeals.\nOn appeal, defendant contends that his conviction should be reduced to voluntary manslaughter, that certain evidence was erroneously excluded, and that certain jury instructions were improperly given.\nOn the morning of September 21, 1974, defendant shot and killed Solomon Rogers. He then surrendered himself to the police. Soon after surrendering himself at about 11:30 a.m. of that same day the police interrogated defendant. The interrogation was recorded on a tape recorder. Later that same day at 3:15 p.m., defendant made a confession which was recorded on videotape. A motion to suppress the videotaped confession was denied and during the trial, the jury saw and heard the videotape. The videotape was the States primary source of evidence at trial.\nAccording to the defendant\u2019s videotaped confession, on the day of the occurrence, defendant was at the house of Bud Naylor, a private residence which was also a tavern and gambling casino. When Rogers arrived, he approached defendant and stated that he would not pay a $35 debt owed to defendant. Defendant and Rogers had been friends since their boyhood but the friendly relationship was severed in 1964 when defendant had refused to submit a false statement in connection with a law suit by Rogers against a railroad. Since that time Rogers had insulted, threatened and, at times, had struck defendant. In addition to refusing to pay the debt, Rogers ridiculed and criticized defendant. Defendant responded in kind by ridiculing Rogers. During the argument, Rogers slapped defendant\u2019s face. Defendant then walked over to Houston Terrell and he handed his gun to Terrell to hold for him in order to avoid trouble. Rogers, however, continued by calling defendant a \u201cwhite folks snitcher,\u201d and by displaying a knife. Defendant stated, \u201cSol, if I were you, I wouldn\u2019t use it, if you do I\u2019m going to kill you.\u201d Thereafter defendant stated, \u201cIf you hit me again, I\u2019m going to kill you.\u201d Rogers, after hearing this, slapped defendant again. Defendant took a step toward Rogers but Rogers was then either pushed out of the door by other customers or he backed out of the door. As he was leaving Rogers stated, \u201cI\u2019ll be back.\u201d\nDefendant went to Terrell and demanded to have his gun. Terrell resisted but defendant grabbed the gun and he stated, \u201cI\u2019m tired of him beating me up and I\u2019m sick of him.\u201d He then followed Rogers while shouting, \u201c * * * you called me a white folk snitcher and I told you, God damn it, if you hit me again, I was going to kill you.\u201d Rogers walked quickly down a driveway; defendant, around 40 feet behind him, shouted, \u201cTurn around so I won\u2019t have to shoot you in the back.\u201d Rogers replied, \u201cIf you are going to shoot me, you are going to have to shoot me the way I\u2019m going.\u201d To this defendant stated, \u201cYou\u2019re damn sure shot.\u201d Defendant fired the weapon and Rogers fell and died of a gunshot wound to the back of the head. Defendant went back into the house and announced that he had killed Rogers. Before surrendering himself to the police, defendant went to his home and informed his wife that he had killed Rogers because \u201c * * * he slapped me and he treated me like a damn dog and I got sick of it and I begged him to leave me alone and he didn\u2019t do it and I did it intentionally and it wasn\u2019t no accident.\u201d\nOther evidence produced by the State showed that when defendant surrendered at the Alton Police Station, he appeared to be calm, rational and not intoxicated.\nAt trial, defendant asserted the defenses of insanity, intoxication and self-defense. Instructions and verdict forms were also given, on defendant\u2019s request, on voluntary manslaughter. Extensive uncontroverted evidence was presented concerning Rogers\u2019 reputation in the community for being a violent and dangerous person. The defendant testified that many times in the ten years since the railroad incident, he had been subjected to abuse and threats by Rogers. On three occasions Rogers showed defendant a shotgun which Rogers kept in his car and he threatened to use it against defendant. The last such threat occurred only a week prior to the shooting. Defendant testified that he had grabbed his gun from Terrell because he had thought that Rogers was going to get the shotgun that was in Rogers\u2019 car. He denied that he had himself threatened to kill Rogers and he denied having any conversation with Rogers once outside the house. Furthermore, he testified that he was intoxicated during the time that he had made the videotaped confession and that he had been instructed by the police on what to say. He also said that he only intended to wound Rogers in the shoulder to force him to drop the knife and to prevent Rogers from reaching the shotgun.\nIn support of his defense of insanity, defendant testified that he was an alcoholic and that while intoxicated in March, 1974, he had attempted to put his wife\u2019s head into hot water and in June, 1974, he had attempted to jump out of a moving automobile. Nathan Blackman, a psychiatrist who examined defendant on three occasions prior to trial, testified that defendant suffered from a degree of pathological intoxication which deprived him of the capacity to conform his behavior to the requirements of the law. Blackman stated, however, that a psychological report indicated that defendant had only very minimal brain damage.\nOn rebuttal, the State presented the tape recording of the first interrogation of defendant. A transcript of this recording was not made part of the record on appeal. Deputy Robert Hertz testified that the videotape was made after it was determined that portions of the first tape recording were inaudible. Hertz denied that defendant was intoxicated at the time or had been instructed on what to say.\nDefendant first contends that the evidence shows that he had believed that circumstances existed at the time of the killing which justified his use of deadly force in \u201cself-defense\u201d against Rogers although his belief was, in fact, unreasonable. Thus, he argues that his murder conviction was not supported by sufficient evidence and he should have only been found guilty of voluntary manslaughter. The State responds by contending that this issue was waived by defendant.\nThe record shows that defendant tendered voluntary manslaughter instructions and verdict forms and that these were given by the trial court. In closing argument, defendant argued that he should only be found guilty of voluntary manslaughter. In his written post-trial motion, defendant alleged that the jury\u2019s verdict of murder was not supported by \u201cevidence sufficient to justify such a finding.\u201d It appears from the record that the trial court, in fact, had focused upon the issue now raised on appeal and that the language used in the post-trial motion had been sufficient to inform the court of this point. We therefore will consider the merits of defendant\u2019s contention.\nDefendant argues that the evidence shows that he had believed that Rogers had left the Naylor house and was walking to his automobile in order to get the shotgun that was in the trunk of the auto. Thus in the heated atmosphere, defendant argues, he believed that deadly force was justified in order to prevent his own imminent death or great bodily harm.\nSection 9 \u2014 2(b) of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 91 \u2014 2(b)), under which defendant bases his contention, provides that:\n\u201cA person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.\u201d\nAs we stated in People v. Vaughn, 26 Ill. App. 3d 247, 255, 324 N.E.2d 697, 702:\n\u201cIn effect, section 9 \u2014 2(b) takes into account that human beings, in a heated atmosphere, might reach conclusions which seem to them under the circumstances reasonable, but which in the cold light of rational analysis are obviously unreasonable.\u201d\nDefendant argues that Rogers had a reputation for violence. That just prior to the occurrence, Rogers had slapped defendant twice, had threatened defendant\u2019s life and had pulled out a knife. Defendant testified that he had thought that Rogers was going to get the shotgun, \u201cBecause he had told me he had it and I saw it in his car and the tone of voice he was usin\u2019 would make anyone feel that the man was goin\u2019 to do somethin\u2019 to you.\u201d\nWhile it is undisputed that Rogers was violent and had often threatened and abused defendant, defendant had stated in the videotaped statements that he himself had responded in kind with abuse and threats directed at Rogers. Moreover, on videotape, defendant had stated that he had told Rogers that if Rogers would hit him again he would kill Rogers. After Rogers struck him again, defendant grabbed his gun because he was \u201ctired of him beating me up * * \u00b0Before shooting Rogers in the back of the head, defendant told him, \u201cYou called me a white folk snitcher and I told you, God damn it, if you hit me again, I was going to kill you.\u201d After the killing defendant had stated, \u201c[H]e treated me like a damn dog and I got sick of it \u201d \u00b0 \u00b0.\u201d\nThe evidence was thus conflicting whether defendant thought Rogers was going to get the shotgun or whether defendant simply meant to violently end a long-standing hostility. It was for the jury to resolve the conflicting evidence. (People v. Hurst, 42 Ill. 2d 217, 247 N.E.2d 614, vacated in part on other grounds, 408 U.S. 935.) They saw and heard the testimony of the witnesses and, particularly, they were able to see and hear the defendant\u2019s videotaped confession as well as the earlier tape recorded interrogation. They were thus able to compare defendant\u2019s credibility when he confessed and when he testified. Since we find ample evidence supporting the jury\u2019s verdict, we find defendant\u2019s contention to be without merit.\nWe will consider defendant\u2019s next two contentions together. First, he contends that the trial court erred in sustaining the State\u2019s objections to testimony that one month before the shooting, Rogers had threatened to bum defendant. Second, he contends that the court erred in sustaining the State\u2019s objection to the confusing form of two questions asked of the defense psychiatrist. Neither of these contentions were specifically included in defendant\u2019s written post-trial motion. Generally where the grounds for a new trial are stated in writing, only those errors alleged therein may be raised on appeal and all other errors are deemed to have been waived. (People v. Hairston, 46 Ill. 2d 348, 263 N.E.2d 840; People v. Irwin, 32 Ill. 2d 441, 207 N.E.2d 76; People v. Price, 32 Ill. App. 3d 610, 336 N.E.2d 56.) Citing People v. Whitehead, 35 Ill. 2d 501, 221 N.E.2d 256, and People v. Flynn, 8 Ill. 2d 116, 133 N.E.2d 257, defendant argues that since the State had not objected to the lack of specificity of the motion for a new trial, these alleged errors should not be deemed to have been waived. However, Whitehead and Flynn are distinguishable since those cases involved nonspecific oral motions rather than a written post-trial motion as in the case at bar. Consequently we consider defendant\u2019s motion for a new trial a waiver of the alleged errors he now seeks to raise.\nDefendant further contends that the trial court erred in giving the jury two instructions which had been tendered by defendant. The first of these involves an \u201cissues in murder\u201d instruction which defendant argues was defective since it did not contain the additional proposition that the State must prove that defendant did not believe that circumstances existed which justified the use of force which he used. The second instruction complained of is an \u201cissues in voluntary manslaughter\u201d instruction which defendant argues was defective because it states the proposition that \u201cthe State\u201d must prove that defendant believed that circumstances existed justifying the killing, but the only evidence of his belief was presented by the defense. In addition, defendant argues that his contentions are not \u201cwaived\u201d citing as authority Supreme Court Rule 451(c) (Ill. Rev. Stat. 1975, ch. 110A, par. 451(c)) and People v. Wright, 24 Ill. App. 3d 536, 321 N.E.2d 52. Supreme Court Rule 451(c) provides that in criminal cases substantial defects in instructions are not waived by failure to make timely objections thereof if the interests of justice so require. Thus in Wright the court stated:\n\u201cOne who seeks to avoid waiver of defects in instructions for failure to make specific objection has burden of establishing (a) that the defects in the instruction are substantial, and (b) that the giving of the instruction resulted in denying to the defendant a fair trial and justice.\u201d 24 Ill. App. 3d 536, 540, 321 N.E.2d 52, 56.\nIn the case at bar, we do not deal with instructions to which defendant merely failed to make a specific objection but rather with instructions given at defendant\u2019s request. The case at bar therefor does not fall within the ambit of Supreme Court Rule 451(c). In People v. Riley, 31 Ill. 2d 490, 496, 202 N.E.2d 531, 534, the court stated:\n\u201cIt is axiomatic that an accused cannot complain of error acquiesced in or invited by him, and to this end we have held that a defendant may not complain of defects in instructions which were given at his request. (People v. Beil, 322 Ill. 434, 442, 153 N.E. 639; People v. Fox, 319 Ill. 606, 619, 150 N.E. 347) * *\nTo hold otherwise would permit a defendant to benefit from errors attributable to him. Exceptions to this general rule, however, have been made in connection with the consideration of claims of incompetency of counsel (People v. McCoy, 80 Ill. App. 2d 257, 225 N.E.2d 123) or where the instructions are so misleading or amount to such a misstatement of law as to support a claim of violation of due process (People v. Bender, 20 Ill. 2d 45, 169 N.E.2d 328; People v. Hazen, 104 Ill. App. 2d 398, 244 N.E.2d 424). Neither of these exceptions are found in the case at bar. Therefore defendant may not challenge the propriety of these instructions.\nLastly defendant contends that the court erred in giving the State\u2019s instruction defining the defense of insanity (IPI \u2014 Criminal No. 24.01) referring particularly to the second paragraph which states:\n\u201cAbnormality manifested only by repeated criminal, or otherwise antisocial conduct, is not mental disease or mental defect.\u201d\nThe defendant argues that this paragraph may only be given when the evidence only shows an abormality manifested by repeated criminal or otherwise anti-social conduct. Defendant\u2019s argument, unsupported by authority, does not follow logic. In such a situation the evidence would not be sufficient to raise the affirmative defense of insanity. (People v. Mask, 34 Ill. App. 3d 688, 339 N.E.2d 417.) The Committee Note following IPI \u2014 Criminal No. 24.01 states that the second paragraph should be given only when the evidence shows repeated criminal or other antisocial conduct. The record in the instant case shows evidence to support the giving of the second paragraph. The defendant testified that he had been arrested about 35 or 40 times for intoxication since moving into the Alton area and he described some incidents in which he had tried to put his wife\u2019s head into hot water and, on another occasion, he attempted to jump out of a moving automobile.\nFor the foregoing reasons, we affirm the judgment of the circuit court of Madison County.\nAffirmed.\nKARNS, P. J., and JONES, J., concur.", "type": "majority", "author": "Mr. JUSTICE EBERSPACHER" } ], "attorneys": [ "Stephen P. Hurley and A. Michael Kopec, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.", "Nicholas G. Byron, State\u2019s Attorney, of Edwardsville (Bruce D. Irish and Raymond F. Buckley, Jr., both of Illinois State\u2019s Attorneys Association, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WARREN FOSTER, Defendant-Appellant.\nFifth District\nNo. 75-359\nOpinion filed November 3, 1976.\nStephen P. Hurley and A. Michael Kopec, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nNicholas G. Byron, State\u2019s Attorney, of Edwardsville (Bruce D. Irish and Raymond F. Buckley, Jr., both of Illinois State\u2019s Attorneys Association, of counsel), for the People." }, "file_name": "0490-01", "first_page_order": 520, "last_page_order": 526 }