APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. COLLINS, Judge, presiding.
MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 12, 1981.
Defendant, Frank Purrazzo, was charged in an information with murder and armed violence. (Ill. Rev. Stat. 1977, ch. 38, pars. (9-1(a), 33A-2.) Following a jury trial defendant was found guilty of both offenses and was sentenced to serve two concurrent terms of 20 years in the Department of Corrections. From those judgments defendant has appealed, presenting the following issues for review: (1) whether the trial court erred in refusing to instruct the jury on the issues of voluntary manslaughter and justified use of force; (2) whether the State's cross-examination of defendant was improper and prejudicial; (3) whether the State improperly argued facts not based upon the evidence to the jury; and (4) whether the State improperly attempted to impeach defendant through the use of his post-arrest silence. For the reasons hereinafter set forth, we affirm the judgments finding defendant guilty of murder and armed violence.
Defendant's common-law wife, Esperansa Delarosa, was shot to death on the evening of December 1, 1978. At approximately 10:30 p.m. on that evening Chicago police officers Thomas Czapiewski and Jerritt Yedlinski received a radio report of a woman shot at an apartment building located at 4415 North Lawndale. After the officers arrived, they entered the vestibule of the building and started to ring the doorbells. Czapiewski knocked at the door to the garden apartment. Defendant opened the door, Czapiewski identified himself as a police officer and asked, "What happened?" Defendant answered, "I just shot my wife." The officers entered the apartment and saw a woman, later identified as Esperansa Delarosa, sitting in a pool of blood on the couch in the living room. Talia Purrazzo, the 3 1/2-year-old daughter of the victim and defendant, was also present. Officer Yedlinski immediately checked the woman's vital signs but could not detect a heartbeat. There was blood on her clothes and on the wall behind her as well as what appeared to be two bullet holes in the same wall. Yedlinski observed bullet wounds to the woman's upper thigh and torso.
Officer Czapiewski found a handgun on the floor in the living room a few feet from the couch. He also discovered two spent shells, one on a chair in the living room and one on the floor. Neither officer saw any marks, bruises or bloodstains on defendant.
Area 5 Homicide Investigator Michael Miller arrived at the apartment at about 11:30 p.m. He noticed the weapon on the floor approximately six feet from the couch. After the evidence technicians had processed the weapon, Miller inspected it and identified it as a Browning .380 semi-automatic pistol, which still contained two live rounds. He testified that a separate pull of the trigger would be necessary to fire each shot from the weapon. While he was at the scene Miller saw blood on the sofa underneath the victim by her right thigh, on the rear of the sofa behind her head and on the wall behind. There was no other blood in the apartment.
Miller recovered three expended cases in the apartment, one from a chair in the living room and two from the floor next to the sofa. The cases would have been ejected from the right side of the weapon as it was being fired. Miller also found some clothing and a broken wine glass on the floor of the kitchen.
Dr. Eupil Choi performed the autopsy on the body of the victim on December 2, 1978. In the course of his examination Dr. Choi observed entrance wounds to the right side of the head, the abdomen and the right side of the groin, and one exit wound on the left side of the head. Only the bullets fired into the victim's abdomen and groin were recovered. The abdominal entrance wound was approximately two inches above the navel. The bullet traveled in a "backward and mildly downward direction," pierced her intestines and came to rest in her lower back on the left side. The bullet that entered the right side of her groin proceeded in a "mildly leftward and backward and upward direction" and lodged beneath the pelvic floor. The course of the bullet that passed through the victim's head was straight but "sharply leftward."
In Dr. Choi's opinion the victim died from bullet wounds to her head, abdomen and groin which penetrated her brain and intestines. He could not determine whether she was sitting or standing when she was shot. There were no contact wounds and the pathologist saw no signs of "strippling," i.e., powder burns which would have been evident had the pistol been fired at the victim within arm's length, approximately 12 inches.
Defendant took the stand in his own defense and testified that as of December 1, 1978, he had been living with the victim for five years and that she had given birth to his daughter, Talia. Defendant arrived home about 6:30 p.m. that evening. The victim, their baby daughter and their German Shepherd dog were present. Defendant and the victim went to the corner tavern and each consumed three small beers. Defendant walked back to the apartment by himself to prepare dinner.
Defendant said that when the victim came home 45 minutes later she was drunk. As they sat down to eat, the victim started arguing with defendant and pitched her paper plate onto the floor. When defendant asked her why she did that, the victim threw a wine glass at him which missed defendant and hit the china closet behind him. She started pushing him around in the kitchen, and defendant ran and hid in the bathroom for a few minutes. After he came out, the victim rushed out of the kitchen to defendant and told him that he would never see daylight again. She then proceeded into the living room. Defendant picked up the baby and followed her into that room. According to defendant, the victim then approached him and pointed his gun at him. Worried about the baby who was still in his arms, and fearing that his life was in danger, defendant tried to disarm the victim. While he was struggling with her, the gun discharged accidentally and defendant pushed her onto the couch. The dog jumped at defendant, and the gun kept "going off." Defendant "dropped everything" and called the police.
Defendant testified that he did not intentionally shoot and kill the victim and denied that he intended to cause her death or great bodily harm.
On cross-examination defendant could not recall how many times he fired the gun. He did not believe that the first shot hit the victim. After the first shot he had the gun in his own hands. Defendant explained: "I had the gun, took it from her, dog jump on me like as he was jumping, thing went off, and I went goofy." The dog would not "bite us but he thought we hurt the baby." Defendant stated that he explained to the police the circumstances of what had happened. He told them that the victim had argued with him and threw a wine glass at him, and that he had acted in self-defense. Defendant, however, never informed the police that the gun discharged accidentally because the dog had been jumping on his arm. He assumed that they knew.
Defendant did not recall telling the police that he was "deathly afraid" of the victim or that she had called the police and requested that a unit be sent to their apartment. Defendant denied informing the police that his wife attempted to remove the gun from the dresser. He also denied saying to the police that the gun had come from the dresser drawer, that he had the gun and was angry with the victim and shot her.
The State and defendant stipulated that a toxicologist found evidence of 113 milligrams of alcohol in the victim's blood. They also stipulated that the victim called the police at 10:23 p.m. on the evening of the shooting.
In rebuttal the State recalled Investigator Miller who testified that he interviewed defendant at Area 5 Homicide about 1 a.m., December 2, 1978. Defendant was nervous, upset and crying. He was advised of his Miranda rights and said that he wanted to make a statement regarding the shooting of the victim. Defendant told the investigator that he had argued with his wife in the evening and that during the course of their argument his wife called the police and requested that a unit be sent to his apartment. According to Miller, defendant also stated that after the victim called the police she threw a wine glass at him. The argument went from the kitchen into the living room where there was a dresser. Defendant said his wife had gone to the dresser and attempted to take a gun out of it. He wrestled with his wife to obtain control of the gun and then shot her.
At the conclusion of Investigator Miller's testimony, both sides rested. The trial court refused defendant's proferred instructions on voluntary manslaughter and justified use of force because in the court's judgment defendant's theory at trial was that the shooting was an accident. The jury returned verdicts finding defendant guilty of murder and armed violence. The trial court sentenced defendant to serve 20 years in the Department of Corrections on each charge, the sentences to run concurrently.
Defendant's first argument on appeal is that the trial court erred in refusing to instruct the jury on the lesser included offense of voluntary manslaughter and on the use of justified force. The People respond that the jury was properly instructed.
Section 9-2 of the Criminal Code of 1961 states in pertinent part:
"(a) A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense ...