People v. Viramontes, 2014 IL App (1st) 130075 (September). Episode 028.
Second degree murder sudden and intense passion is a legal excuse reducing the punishment for murder. However, the long recognized example of walking in on your spouse during an affair is not the same thing as merely finding text messages of the affair.
Defendant beat his wife into a coma that eventually killed her. At trial Defendant was not contesting that he did it. Instead, he was asking the court for a lesser punishment under second degree murder rather than first degree murder. What do you think the court did?
Defendant and his wife were married a few months but had been together for 16 years and had 2 children. The night of the killing –
- Defendant discovered a sexually explicit text messages
- Sexually explicit photos
- Between his wife and not him
- Were between wife and her lover
Defendant confronted his wife that night. She confirmed the affair. He slapped her. She locked herself in the bathroom. When she existed, Defendant brutally beat her into a coma. She later died of her injuries.
The injuries included severe bruising, including severe bleeding of the brain, and bilateral subdural hematomas (an accumulation of blood on the brain’s surface).
Law On Second Degree Murder Sudden And Intense Passion
We have discussed in other podcasts the difference between first degree and second degree murder. See People v. Guyton
As a quick recap, I’ll note that all second degree murder cases begin as first degree murder cases. That is to “win” a second degree murder conviction you first must commit first degree murder.
The concept behind second degree murder is that the law “mitigates” or punished less severely certain types of first degree murder. Those that qualify are called second degree murder.
The law says that First degree murder may be reduced to second degree murder when, at the time of the killing, the defendant…
“is acting under a sudden and intense passion resulting from serious provocation by the individual killed or another whom the offender endeavors to kill, but he or she negligently or accidentally causes the death of the individual killed.”
Serious provocation is defined as “conduct sufficient to excite an intense passion in a reasonable person.” 720 ILCS 5/9-2(b). Illinois courts recognize four categories of serious provocation:
(1) substantial physical injury or assault;
(2) mutual quarrel or combat;
(3) illegal arrest; and
(4) adultery with the offender’s spouse.
See People v. Garcia, 165 Ill. 2d 409, 429 (1995).
A defendant is entitled to a second degree jury instruction when there is some evidence, even if the evidence is “slight,” to support a claim of serious provocation. People v. Campbell, 2012 IL App (1st) 101249, ¶ 49 (citing People v. Davis, 213 Ill. 2d 459, 478 (2004)).
The first two prongs mentioned above turned into the “unreasonable self defense” I have previously written about.
The last prong, up there is the one of interest in this case.
A Brief History & Example of Second Degree Murder
Before there was an Illinois Criminal Code, in the common law there was a rule that said anytime a man (it was always a man) discovers his wife in bed with another man then any resulting killing shall be punished as second degree murder rather than first degree murder.
The killer basically got a break.
The idea was that any otherwise law abiding man in that situation was likely to enter into a murderous rage it didn’t seem quite fair to punish them as “normal” murders. Who wouldn’t react that way if they came across a naked man in his bedroom?
Also, probably there was probably a little bit of “the victims had it coming” kind of thinking.
Anyways, that was the basic idea.
Defense Theory in This Case
Here, the Defendant did not actually walk in on his wife and her boyfriend “in the act.” He discovered the affair through text messages and photos on her phone remember.
The argument to the court was that in today’s modern era the discovery of the affair in the phone has no meaningful difference than if Defendant had actually walked in on his wife.
It’s not a bad argument. The Supreme Court has just found that cell phones are more than just phones. The contain our lives and our life story.
Defendant may have learned much more from the texts and photos than he would have learned from merely walking in on them. He could gage the amount of time it has been going on, where the rhondavous have taken place, and all kinds of other details that may just destroy a person.
When you walk in on a couple, you know the observations from that instant but nothing more.
So, the defense had a point. The actual rage, anger and violence erupting from Defendant probably was no different than what he would have experienced had he seen the act with his own eyes.
Defendant’s discovery of his wife’s infidelity through sexual text messages and exchanged naked photographs does not, as a matter of law, constitute adultery under the specified bases for provocation in People v. Chevalier, 131 Ill. 2d 66 (1989), and its progeny.
In these cases, our supreme court reinstated defendants’ convictions, holding that the provocation claimed was legally insufficient to constitute the serious provocation necessary to reduce the homicide from murder to voluntary manslaughter. Id at 76. In these cases, the defendants shot their wives after an argument where the wife admitted to an affair and flaunted it to the accused.
The court stated that in Illinois, a spouse’s adultery as provocation is limited to situations in which “the parties are discovered in the act of adultery or immediately before or after such an act, and the killing immediately follows such discovery.” Chevalier, 131 Ill. 2d at 72.
Addressing the legal requirements for provocation, our supreme court noted the appellate court correctly stated:
“Passion on the part of the slayer, no matter how violent will not relieve him from liability for murder unless it is engendered by a serious provocation which the law recognizes as being reasonably adequate. If the provocation is inadequate, the crime is murder.”
People v. Neal, 112 Ill. App. 3d 964, 969 (1983).
The only categories recognized of serious provocation are substantial physical injury or assault, mutual quarrel or combat, illegal arrest, and adultery with the offender’s spouse. Chevalier, 131 Ill. 2d at 71.
Words, no matter how aggravated, abusive or indecent, are not enough. Id. Defendant’s claim that “[i]n this technological era, this visual discovery of the affair is the same as walking into the room to discover the affair” fell flat. In the end, she confirmed the affair after he confronted her and here mere words are insufficient provocation to warrant the second degree instruction.
Court said, “Nice try, but No.”
Specifically the court held that –
“…in Illinois, a spouse’s adultery as provocation is limited to situations in which “the parties are discovered in the act of adultery or immediately before or after such an act, and the killing immediately follows such discovery.” Quoting People v. Chevalier, 131 Ill. 2d 66, 72 (1989).
This was plain old murder and not an example of second degree murder. The court was not going to “mitigate” this crime that easily.
The court was not about to expand the four statutory factors defining second degree murder without a clear directive from lawmakers.
Just so you know where the court was coming from they noted that –
“In considering the provocation argument, we note, although not at issue here, questions regarding the continued availability of the defense of serious provocation based on adultery with the offender’s spouse. Some commentators have noted that treating sexual jealousy by a married offender as a justification for reduced second degree murder charges is a throwback to an earlier era when courts condoned violence in the name of infidelity and that it reflects both gender and marriage bias. See Bureau of Justice Statistics, United States Department of Justice, Intimate Partner Violence, 1993-2001 (2003) (men three times more likely to kill intimate partner than women); People v Strange, 81 Ill. App. 3d 81, 88 (1980) (provocation by adultery unavailable as defense when defendant and victim not married at time of murder); Carolyn B. Ramsey, Provoking Change: Comparative Insights on Feminist Homicide Law Reform, 100 J. Crim. L. & Criminology 33 (2010) (discussing abolition of adultery as provocation defense in three Australian jurisdictions and prospects for reform in United States).” ¶ 46.