People v. Pirrello

• Decision Date: 19 February 1988
• Docket Number: No. 2-86-0724,2-86-0724
• Citation: 117 Ill.Dec. 238,520 N.E.2d 399,166 Ill.App.3d 614
• Parties: , 117 Ill.Dec. 238 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Peter PIRRELLO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 399

520 N.E.2d 399

166 Ill.App.3d 614, 117 Ill.Dec. 238

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Peter PIRRELLO, Defendant-Appellant.

No. 2-86-0724.

Appellate Court of Illinois Second District.

Feb. 19, 1988.

G. Joseph Weller, Deputy Defender, Paul J. Glaser, Elgin, argued, for Peter Pirrello.

Paul A. Logli, Winnebago County State's Atty., Rockford, William L. Browers, Deputy Director, State's Attys. Appellate Pros., Martin P. Moltz, State's Attys. Appellate Pros., Elgin, for the People.

Justice DUNN delivered the opinion of the court:

Defendant, Peter Pirrello, was charged by information with murder. Defendant admitted killing the victim, Mark Thomas, but testified at trial that he had done so in self-defense. Defendant was, nevertheless, found guilty by a jury, and was sentenced to a 40-year term of imprisonment. Defendant now appeals, arguing that he was denied a fair trial in several respects. We reverse and remand for a new trial.

Mark Thomas' body was found about 7:30 p.m. on July 26, 1985, at the Kapota Gun Club near Shirland, Illinois, by a member of the club. He had been shot three times with a shotgun, the cause of death being a shotgun wound to the back of the head. Several shotgun shells, both fired and unspent, were found near the body.

The State presented the testimony of Melissa Bouma, age 25, who had known Thomas for 10 years and had lived with him the last four years. She testified that she last saw Thomas at Calhoun's, a bar in Rockford, on July 23, 1985. When Bouma arrived at the bar at 11 a.m., she recognized Danny Allen. She told Allen that Thomas would be coming to the bar, and shortly thereafter Allen made a phone call. Ten minutes later, the defendant, whom Bouma knew as "Algie," came to Calhoun's and sat with Allen at a table near the front door. Thomas arrived a few minutes later and went to where Bouma sat at the bar. Allen called Thomas over to the table. A few minutes later, Bouma walked over to the table where she heard Allen ask if Thomas could get cocaine for defendant. Bouma testified that Thomas said he could take defendant to a friend and that his friend would have to go get the cocaine. Bouma returned to the bar from where she heard defendant say that Thomas would need sunglasses to ride on defendant's motorcycle. Allen obtained a pair for Thomas. Thomas told Bouma he would be back in an hour and left the bar with defendant. Bouma never saw Thomas again.

The State also called Danny Allen as a witness. He testified that he knew both Thomas and defendant. When he testified that he knew Thomas because of their past dealings in cocaine, the trial court asked if the State had informed Allen that he did not have to answer questions which might incriminate himself. The State responded that it did not intend to prosecute Allen with respect to his testimony and asked that Allen be granted immunity with respect to any cocaine dealings on July 23, 1985. The trial court appointed attorney Gordon Ring to consult with Allen. When Ring asked what the extent of the immunity would be, the State refused to extend immunity beyond any drug transactions on July 23, 1985, and then withdrew its request for immunity entirely. Ring then informed the court that his advice to Allen "would be to invoke his right to the fifth amendment on anything it involves." When direct examination was resumed, Ring advised Allen to invoke his fifth amendment rights after each question, and Allen did so. Defendant moved for a mistrial based on the questioning of Allen, but the motion was denied.

The State also presented the testimony of three witnesses, Steve, Kathy and Vicky Peppers, with whom defendant had talked shortly after the shooting. Each testified that defendant told them he had shot someone who was involved in the killing of defendant's ex-wife.

Jay Long was the first witness for the defense. He testified that on the morning of July 23, 1985, defendant called home. Karen Christen, defendant's landlord's daughter, answered the call and gave the phone to Long. Defendant asked Long to get defendant's gun out of his closet and bring it and his leather jacket to the bar from where defendant was calling. Defendant explained that he was going to sell the gun and would then pay Long $75 that defendant owed him. Long took the gun, which was in a gun sock, along with the jacket, and Christen drove him to a bar on Seventh Street. Long gave defendant the jacket and gun in the parking lot and left.

Defendant also testified in his own behalf. He testified that his ex-wife, Leslie, had been murdered on July 15, 1985, and that he had taken her death very hard. After that, defendant drank heavily, as was also testified to by the Peppers.

On the morning of July 23, 1985, defendant was drinking at the Railroad Tap in Rockford, where he met and talked with Danny Allen. The trial court did not allow defendant to testify as to their conversation. Defendant left the Railroad Tap and went to Calhoun's where he had another drink and met and talked with Allen once more. Some time later, a man, whom defendant did not recognize, came into Calhoun's and talked with Allen and a woman, whom defendant later learned was Melissa Bouma, at the bar. Allen brought the man to defendant's table and introduced him as Mark Thomas. Again, defendant was not allowed to testify to the content of his conversation with Allen and Thomas, although in an offer of proof, defense counsel stated that at the Railroad Tap Allen told defendant that Thomas wanted to buy a shotgun. Defendant said he had a shotgun and would sell it to Thomas. At Calhoun's, the offer of proof continued, the conversation was about the sale of the gun, and drugs were not mentioned.

Defendant went on to testify that while at Calhoun's, he called home and asked Long to bring him his shotgun so he could sell it. The gun was a Winchester Model 97 .12 gauge pump action shotgun. Long brought him the gun and his jacket, which defendant tied to the front of his motorcycle. He and Thomas then left the bar to test fire the gun at the Kapota Gun Club, where defendant had been on previous occasions.

When they arrived at the club, defendant gave the shotgun and some shells from the case to Thomas. As they walked toward the firing range, Thomas loaded the gun. Thomas then pointed the gun at defendant's forehead and ordered defendant to his knees, saying that he was going to kill defendant. Defendant testified that Thomas yelled, "I know who you are. You are going to die like Leslie did. I'm going to blow your fucking head off. You better be praying." Thomas then pushed defendant, who was on his knees, with the shotgun and pulled the trigger, but the gun did not fire. As Thomas tried to work the pump action, defendant grabbed the barrel of the gun and they began to fight. The wooden stock of the gun came off in Thomas' hands, and defendant grabbed the rest of the gun as he fell back. Defendant turned the gun around, pushed the slide up, and the gun fired. Thomas hit defendant on the head with the stock. Defendant shot again, got up, and backed away, firing in a panic as he moved. He testified that all of the shooting occurred in a matter of seconds. Defendant then threw the gun down, got on his motorcycle, and rode back to Rockford.

Back in Rockford, defendant went to Good Time Charlies. He tried to call a friend for help, but got no answer. He then sat at the bar for about an hour drinking whiskey and trying to talk to Kathy and Vicky Peppers. He then went home, dropped off the motorcycle, and was driven back to the gun club by Long. Defendant found the gun and threw it into a river a mile or two from the club.

On cross-examination, defendant testified that Bouma was never close enough to hear the conversation at the table in Calhoun's. He also testified that he had owned the shotgun for four years but had only fired it on one occasion because it had no safety and was very unsafe. He said the gun had a short barrel and that the stock had been cut short by a previous owner.

It was stipulated that Thomas had been convicted of battery in May 1984.

In rebuttal, a State's witness testified that the stock from defendant's shotgun was found by the police on defendant's bedroom dresser on July 27, 1985. The State also called Deputy Coroner David Swanson, who testified about and demonstrated a Winchester Model 97 shotgun that he owned. He testified that the Model 97 would not fire if the exposed hammer was only pulled half way back, but that it could also be fired by putting pressure on the trigger and pumping the slide forward. He also stated that there were several different versions of the Model 97.

After closing arguments and instructions, the jury deliberated for five hours before returning a guilty verdict.

Defendant's first argument is that the trial court erred in allowing Bouma to testify to the conversation in Calhoun's, while later denying defendant the opportunity to testify to the same conversation. As noted above, Bouma testified that she overheard a conversation between Thomas and Allen at defendant's table. Over defendant's objection, she testified that Allen "[a]sked if Mark could get [defendant] some cocaine." She then testified to Thomas' response: "He said he could take him to a friend of his house [sic ] and that his friend would have to go get it." Defendant contends that Bouma's testimony was hearsay, while the State responds that the testimony was offered for a nonhearsay purpose.

Hearsay is classically defined as evidence of an out-of-court statement offered to show the truth of the matter therein. (People v. Jones (1986), 140 Ill.App.3d 660, 673, 95 Ill.Dec. 20, 488 N.E.2d 1363.) The State argues that Bouma's testimony was elicited to show that defendant and Thomas left the bar together and, more importantly, to show why Thomas left with defendant. The State now posits that the shooting was not actually drug related,...