concurring in part and dissenting in part:
While I concur in the majority’s holding that the trial court erred in refusing to give a voluntary manslaughter instruction and in the reversal of the defendant’s murder conviction and remandment for a new trial, I dissent to the majority’s holdings that evidence of the defendant’s “other crimes or bad acts” was admissible against the defendant and “there was no error in the denial of the testimony of the mental health therapist regarding defendant’s state of mind 11 days prior to Adrienne’s death.” 181 Ill. App. 3d at 213.
The 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’s mother that the defendant on that date smashed the windows of Adrienne’s father’s car had absolutely no probative value on any issue in the case and was inadmissible on the defendant’s 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’s hostility towards Adrienne’s father at that time. It did not and it could not have established the defendant’s state of mind two months later on June 6, 1983, when he killed Adrienne. This is also true of Adrienne’s mother’s testimony of the defendant’s 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).
The 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’s father’s 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’s intent at the time he shot Adrienne.
Moreover, the defendant’s intent was not an issue in this case. The State’s eyewitnesses established, it was uncontested, the defendant admitted that he shot Adrienne — five times — 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’s defense, as stated in his attorney’s 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 — 2 (presently second degree murder, Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2).) It was clearly erroneous to have admitted this evidence of the defendant’s “other crimes as bad acts.”
If evidence of the defendant’s damage to Adrienne’s father’s car on April 3, 1983, and evidence of the defendant’s assault upon Adrienne and her mother two weeks later was admissible to establish the defendant’s 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’s testimony “regarding defendant’s state of mind 11 days prior to Adrienne’s death” was likewise admissible to establish his state of mind at the time the defendant shot her. If “the defense of heat of passion depends on a defendant’s state of mind immediately prior to the killing, [and] not [on] what he was thinking 11 days before the event,” as the majority holds (181 Ill. App. 3d at 213), the same rule likewise applies to the defendant’s state of mind of intent, i.e., “the defendant’s state of mind immediately prior to the killing” and not what the defendant’s state of mind was, not “11 days before the event,” but rather, two months “before the event.”
Accordingly, I dissent to the majority’s holdings that the aforementioned evidence of the defendant’s “other crimes or bad acts” was admissible and that the aforementioned testimony of the mental health therapist was inadmissible.