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05/09/89 the People of the State of v. Arlo Perry

May 9, 1989





540 N.E.2d 379, 183 Ill. App. 3d 534, 132 Ill. Dec. 639 1989.IL.696

Appeal from the Circuit Court of Cook County; the Hon. Thomas T. Maloney, Judge, presiding.

Rehearing Denied June 14, 1989. Modified opinion filed June 20, 1989.


JUSTICE EGAN* delivered the opinion of the court. HARTMAN and SCARIANO, JJ., concur.


Bernard Fisher was a friend of the deceased, Tyrone Crosby, and had known the defendant, whom he called Otto, from seeing him in the neighborhood "just about every day" for more than 10 years. On November 22, 1986, at about 6:30 p.m., Fisher left Crosby's apartment at Champlain Avenue between 49th and 50th Streets in Chicago with Crosby and Tommy Jones. They had shared a pint of wine and a marijuana cigarette. They went to a tavern on 50th Street. Fisher left the tavern to meet his girlfriend Gloria Cox at the home of Joanne Mack at 49th and St. Lawrence. That home was on the west side of St. Lawrence and faced a vacant lot across the street. He and Cox were talking. (Fisher said that he had the conversation with Cox on the front porch of Mack's home. Cox later testified that the conversation took place on the street in front of Mack's home.) Cox saw Crosby come out of a liquor store at 50th and St. Lawrence and yell something to her. She saw Crosby walk towards 59th Street with another black man whom she did not know. She continued to talk to Fisher and then heard what sounded like firecrackers. At the time she was facing Fisher and had her back to the vacant lot. Fisher ran across the street toward the lot, and she ran after him. Fisher ran across another lot, and again she ran after him. She ran over Crosby's body in the lot. He was lying on his back about three feet from the alley. She did not know the defendant.

Fisher testified that as he was talking to Cox, he saw Crosby and the defendant going through the vacant lot which runs all the way from Champlain to St. Lawrence. He was on St. Lawrence and could see all the way to Champlain. He heard a gunshot come from the vacant lot. He noticed the defendant standing in the lot, but he no longer saw Crosby. The defendant had a gun in his hand and fired three or four rounds while pointing the gun at the ground. The defendant then ran towards Champlain.

Fisher testified to the same circumstances of the discovery of Crosby's body as had Cox. He saw Crosby's body after Cox found it and noticed a hole in the middle of Crosby's forehead. Crosby was still alive and was trying to say something; his eyes were open. The body was at the exact spot at which Fisher had seen the defendant firing the gun. After the police arrived Fisher told them what he had seen. He later searched the area and saw the defendant hiding in another vacant lot looking back towards the officers. Fisher returned to the police and told them where he had seen the defendant. The police searched for the defendant but were unable to find him. After the killing, Fisher did not see the defendant in the neighborhood again. An autopsy of Crosby's body disclosed five through and through bullet wounds.

The police and Fisher then went to a woman's home in a nearby apartment building where the defendant reportedly had been seen entering a basement apartment, but the defendant was not there. That night Detective Guy Habiak interviewed both Fisher and Cox at Area 1 Headquarters. Fisher provided the name Otto Perry as the person who had done the shooting and gave his address at 4943 South Champlain. He also identified the defendant's picture from a group of five photos. After subsequent questioning in the area turned up no information regarding the whereabouts of the defendant, Habiak obtained an arrest warrant. On December 6, 1985, he placed the defendant's photograph in the Daily Bulletin for police officers. The defendant was subsequently arrested on June 19, 1986, in the same neighborhood in which the shooting took place.

The defendant initially claims that his attorney was incompetent, and his argument is advanced in two stages: first, he contends that the attorney must have been incompetent because he had pending certain disciplinary proceedings at the time of trial and, therefore, was so preoccupied with his own problems he could not have devoted his abilities and energies for the benefit of the defendant to the degree required. (The attorney was subsequently disbarred. (In re Levin (1987), 118 Ill. 2d 77, 514 N.E.2d 174).) Second, he points to various alleged errors on the part of the attorney to illustrate his incompetence.

The question of the pending proceedings against the defendant's attorney was first brought up by the Judge before the trial began. He informed the defendant's attorney that the defendant should be apprised of the pending proceedings. After conferring with the defendant the attorney returned to open court with the defendant, and the following occurred:

"MR. LEVIN [Defense Attorney]: I have explained to him the situation. He has indicated to me that he wants me to continue in the representation, that he is ready for jury selection at this time.

THE COURT: What you explained to him, without any details, dealt with what?

MR. LEVIN: The disciplinary proceedings pertaining against me and the ramifications of that.

THE COURT: They have nothing to do with your competence as a lawyer?

MR. LEVIN: They have nothing to do with this case.

THE COURT: I mean they do not have anything to do with your competence to represent him?

MR. LEVIN: Correct.

STATE'S ATTORNEY: Just for purposes of the record, I think the client himself has to indicate in his own words that he understands the problem.

THE COURT: Yes. I think that is probably right. Do you understand, Mr. Perry, I mean?

THE DEFENDANT: Yeah. I understand what he was saying. Yeah. Actions against him, and it does not affect my case in no kind of way.

THE COURT: It does not affect his ability as a lawyer. It is just something completely aside?


THE COURT: They have sometimes held, and what I was talking about before is, where a lawyer has something like that pending against him that he could be so occupied and concerned with it that he could not devote his attention to the case at hand. You do not believe that to be the case, is that correct?

THE DEFENDANT: I believe he can represent me."

The defendant now argues that the record does not demonstrate that he was told the nature or extent of the disciplinary proceedings. In effect, the defendant urges us to assume, in the absence of any evidence, that he was not fully apprised of the disciplinary proceedings against his attorney. That is an assumption we are unwilling to make. Contrary to the defendant's views, we do not believe the action taken by the ...

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