People v. Himber, 150 N.E.3d 148

Background:

Defendant Brian Himber, an Illinois state trooper, shot his girlfriend Tracy Mays at a middle‑school graduation party on July 21–22, 2012; he then shot himself and survived. He was charged with first‑degree murder.
Multiple witnesses saw Himber leave the house angrily, heard him say “I’m going to kill that b*,” observed him approach the seated, unarmed victim, and heard multiple gunshots; autopsy revealed three entrance wounds and homicide by multiple gunshots.
Police recovered a Ruger LCP .38, six spent casings and bullets all matched to that firearm; forensic testing showed a ~7‑pound trigger pull and that the weapon was fully operational.
Himber testified at trial, admitting heavy drinking that night and a memory gap about the shooting; defense sought an involuntary manslaughter instruction and proposed expert testimony that Himber had an alcohol‑induced blackout.
The trial court denied the involuntary manslaughter instruction, admitted autopsy photographs, and excluded the defense expert on blackout (voluntary intoxication not a defense); the jury convicted Himber of first‑degree murder and found he personally discharged the firearm.
The court sentenced Himber to 25 years for murder plus a mandatory 25‑year firearm enhancement (total 50 years); the appellate court affirmed.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether court erred by refusing involuntary‑manslaughter instruction	No; overwhelming evidence of intent/knowledge supports murder instruction	Some evidence (Scott’s testimony) supported recklessness and thus an involuntary manslaughter instruction	Denial affirmed: Scott’s statements were speculative; other eyewitness statements, threats, multiple shots at a seated victim show intentional conduct, not mere recklessness
Whether autopsy photos were improperly admitted/published to jury	Photos were relevant to wounds, trajectory, and intent and aided ME testimony	Photos were grisly, cumulative, and not probative on disputed mental state so prejudicial	Admission and use in closing affirmed: photos aided ME testimony and rebutted reckless‑discharge theory; no plain error shown
Whether exclusion of expert testimony about alcohol blackout violated right to present a defense	State: testimony irrelevant because voluntary intoxication is not a defense and expert did not opine on effect of intoxication on mens rea	Defendant: blackout expert would explain memory lapse and negate intent or at least support lesser offense	Exclusion affirmed: Dr. Rone did not opine that intoxication negated mens rea; voluntary intoxication is not a cognizable defense under Illinois law, so testimony was irrelevant
Whether 50‑year sentence was excessive	State: sentence within statutory range, court considered aggravation/mitigation	Defendant: prior good character and suicide attempt (remorse) warrant lower sentence	Sentence affirmed: within statutory range (minimum possible 45 years given enhancement), court considered factors, no abuse of discretion

Key Cases Cited

People v. Hamilton, 179 Ill. 2d 319 (1997) (purpose and role of lesser‑included offense instructions)
People v. McDonald, 2016 IL 118882 (2016) (some‑evidence standard for lesser‑included instruction; trial court discretion)
People v. DiVincenzo, 183 Ill. 2d 239 (1998) (distinguishing mental states for murder vs. involuntary manslaughter)
People v. Sipp, 378 Ill. App. 3d 157 (2007) (shooting at a person is more than mere recklessness; supports intent)
People v. Hines, 31 Ill. App. 3d 295 (1975) (firing to "scare" can support recklessness — distinguished on facts)
People v. Chapman, 194 Ill. 2d 186 (2000) (admissibility of victim photographs to prove nature/extent of injuries and aid pathologist testimony)
People v. Lerma, 2016 IL 118496 (2016) (admissibility of expert testimony and defendant’s right to present defense)
People v. Jackson, 362 Ill. App. 3d 1196 (2006) (recognizing that post‑2002 amendment voluntary intoxication is not an affirmative defense)