People v. Purifoy

• Decision Date: 04 August 1988
• Docket Number: No. 2-87-0195,2-87-0195
• Citation: 172 Ill.App.3d 980,527 N.E.2d 654
• Parties: , 123 Ill.Dec. 191 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert PURIFOY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 654

527 N.E.2d 654

172 Ill.App.3d 980, 123 Ill.Dec. 191

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert PURIFOY, Defendant-Appellant.

No. 2-87-0195.

Appellate Court of Illinois Second District.

Aug. 4, 1988.

Mary Kay Schick, Asst. Defender, Office of the State Appellate Defender, Alexander & Cicero, and Josette Skelnik (argued), Robinson & Skelnik, Elgin, for Robert Purifoy.

Paul A. Logli, Winnebago County State's Atty., Rockford, William L. Browers, Deputy Director (argued), State's Attorneys Appellate Prosecutor, Elgin, Dale M. Wood, State's Attorneys Appellate Prosecutor, Springfield, for the People.

Justice DUNN delivered the opinion of the court:

After a jury trial, defendant, Robert Purifoy, was found guilty of murder and was sentenced to a term of 30 years' imprisonment in the Department of Corrections. On direct appeal, where the only issue raised was whether defendant's sentence was excessive, this court affirmed the judgment in a Rule 23 order (People v. Purifoy (1985), 135 Ill.App.3d 1164, 100 Ill.Dec. 212, 496 N.E.2d 1277 (unpublished Rule 23 order)). The present appeal is from the denial of defendant's petition for post-conviction relief.

Defendant now argues that he was denied effective assistance of counsel because his trial attorney did not move to suppress defendant's statements. He also contends that he was denied effective assistance of counsel on direct appeal because appellate counsel did not raise as error the ineffective assistance of trial counsel or the trial court's refusal to give certain instructions tendered by defendant. For the reasons set forth below, we affirm.

Defendant was charged in a two-count indictment filed on May 2, 1984, with the murder of Oscar Perez. The first count alleged that defendant, with the intent to kill or do great bodily harm to Perez, shot and killed him. The second count alleged that defendant killed Perez while attempting or committing the forcible felony of burglary.

The shooting with which defendant was charged occurred at the home of Sergio Guzman, 1317 Harold Avenue, in Loves Park, Illinois, on the evening of April 14, 1984, a Saturday. The victim of the shooting, Oscar Perez, was Guzman's brother. Perez did not live at the house but was there on the evening of April 14 with his girlfriend, Yolaida Morell. The State's evidence demonstrated that the victim had died from a single gunshot wound which penetrated his heart muscle and which entered through the front door of the house. Another shot also went through the front door of the house, and that projectile was found lodged in the wood trim of the south wall of the house, several feet from the base of the floor.

Upon their arrival at the scene, the police recovered a .38 caliber gun from near the victim's left side and a spent cartridge from next to his right leg. The spent cartridge had been discharged from a .38 caliber weapon, while the projectiles removed from Perez's body and from the wood trim of the house were .22 caliber. With regard to the two bullet holes discovered in the front door of the house, the police determined that one bullet had passed through the solid part of the door, while the other had passed through the door curtain, blackening the area of the curtain around the hole. In the opinion of firearms and tool mark examiner Peter Striupaitis, both of these gunshots were probably close to contact shots with respect to the door.

Sergio Guzman, the owner of the house on Harold Avenue, testified that he had two stereos inside his home as of April 14. One, an old one, was kept by the front door and was blocking it, because he never used his front entrance. Rather, he used only the side entrance and kept the front door locked. He also had a newer stereo in his home which his brother Oscar had bought. In addition, he kept some coins in his home in a cement container.

On occasions prior to the shooting of his brother, Guzman had experienced problems with people trying to break into his home. On one occasion, he observed someone face-to-face who was tampering with his door, whom he described to the police as a teenager, approximately 5 feet 3 inches in height and stocky. On the Friday evening before his brother was shot, someone had tried to open a back window at the house. The next evening, Guzman left to play pool, leaving his brother and his brother's girlfriend behind in the house. Before leaving, he discussed the attempted break-in of the prior evening with his brother and told him that if someone tried to break in that night, he should use the gun in the house to defend himself. Although he testified that three Purifoys had played cards at his house about one week prior to the shootings, the witness stated he did not know the defendant and had never seen him before.

Yolaida Morell, Oscar Perez's girlfriend, testified that after Guzman left the house, she and Perez watched television until about 9 p.m. They then turned off the set and went into the bedroom where they sat and talked; no lights were on in the house at the time.

Not long after going into the bedroom, they heard a knock at the side door. Perez, looking out the window, told Morell he saw a car belonging to one of his relatives, but he instructed her to not answer the door because he wanted whomever was trying to break in to think no one was home. Shortly thereafter, they heard another knock on the side door, and Perez looked out but did not see any cars. Whoever was at the door then began knocking very hard, and Perez told the witness that it must be the person who had been trying to break into the house before. At Morell's urging, Perez picked up the gun which his brother kept on a table in the bedroom.

Shortly thereafter, Morell heard a sound at the front door like someone cutting glass and also heard sounds as though someone were going through papers, although she did not see anyone in the house. Someone shone a light in the living room, and she heard a voice say, "Come out, we want your money." Perez moved out of the bedroom and toward the kitchen and then squatted down next to the television set with the gun in both hands, pointing it in the direction of the front room. Right after that, the witness heard two shots. She stayed in the bedroom for a few more minutes and then went out and discovered Perez lying in the doorway between the kitchen and the front room. Morell could not identify anyone as being at the house that evening.

Terry Purifoy, a cousin of the defendant, testified at trial as a witness for the State. On the evening of April 14, 1984, he and his girlfriend, Sue Mackey, drove over to the home of Robert Purifoy's parents, where they sat in Terry's car to await the return of Terry's mother from a nearby church. While they were sitting in the car, Robert came up and asked Terry if he would go with him to check out a stereo and television. Terry agreed and walked with Robert over to a house on Harold Avenue, about one block away from where Robert's parents lived.

When they arrived at the house, Terry and Robert went up to the side door and Robert knocked five or six times but got no response. Robert then walked around to the front door, and Terry followed within 30 seconds thereafter. When he went to the front door, Terry observed Robert squatting down and looking through the door, which was open about three inches. When he saw that the door was open he said to Robert, "Cos, let's go." Robert responded, "Someone is in there." Terry again attempted to persuade the defendant to leave, and he then left on his own and returned to his aunt's house.

Fifteen or twenty seconds thereafter, Robert also returned. Robert told Terry that he wanted to go back to the house, and he, Terry, and Robert's older brother, Roger, headed back in that direction, with Robert taking along a flashlight. When they returned, Roger stood near the street, and Terry stood behind a tree while Robert went back to the front steps. Within a minute thereafter, Terry heard two shots, and he and Roger took off running. As they were running, Terry heard one more shot. All the shots were within seconds of each other, with the third shot being more solid and heavier sounding than the first two.

Terry stated that neither he, Roger, nor Robert ever went into the house on Harold Avenue that night. In addition, he never saw Robert attempt to enter the house, nor did he ever see Robert with a gun. During the minute and a half or so that Robert was on the porch on their second visit to the house, Terry only observed him trying to look in to see who was inside. The witness denied that he had gone over to the house with defendant in order to burglarize it. Rather, he said, "I went over with him because he wanted me to check out a stereo. When I say check out, I mean look at the stereo."

Terry acknowledged that he had given a statement to the police about one week subsequent to the shooting in which he said that he had seen Robert with a gun that night, but testified that he made that statement "through force." He explained that he was told he had a choice either to admit he saw Robert with a gun or to be locked up under no bond and charged with murder. The detectives who questioned him about the shooting informed him that, if he told the truth, and if he was not the person who pulled the trigger, he would not be charged with any offense. Thereafter, he gave the detectives the statement in which he told them that Robert had a gun. Winnebago County Detectives Roland Kincannon and Robert Ferger confirmed that they had told Terry that he would not be charged if he told the truth and was not the one who had fired the gun.

Sue Mackey, Terry Purifoy's girlfriend, also testified for the State. On the evening of April 14, Terry and Robert left Robert's parent's house and returned about 10 minutes later. They left a second time and were gone for about 15 to 20 minutes. During the second time they were gone,...