People v. Pursley
Annotate this Case
No. 2--94--0961
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) Winnebago County.
)
Plaintiff-Appellee, )
) No. 93--CF--1174
v. )
)
PATRICK A. PURSLEY, ) Honorable
) Robert G. Coplan,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________
JUSTICE COLWELL delivered the opinion of the court:
Defendant, Patrick Pursley, appeals his conviction of first
degree murder. Pursley contends (1) the State did not prove beyond
a reasonable doubt that he committed murder; (2) prejudicial and
irrelevant evidence was improperly admitted; (3) the prosecutor
engaged in purposeful misconduct in his opening statement; (4) the
court failed to determine the voluntariness of a prior inconsistent
statement; and (5) his sentence of natural life imprisonment is an
abuse of discretion. We affirm.
On April 2, 1993, at approximately 10 p.m., Andrew Asher and
his girlfriend, Becky George, were seated in a parked car in front
of George's brother's apartment in Rockford. As they were talking,
a man approached the driver's door, where Asher was seated, and
pulled it open. The man pointed a gun at Asher and George and
said, "This is a stickup, hand me your money." George grabbed
about $60 from her purse and leaned over to put it on Asher's lap,
and Asher reached into his pocket for his wallet. George testified
that she held the money in her hand stretched out toward the
robber, but that he did not take it. She began to look for more
money in her purse when she heard two "noises that were like pops."
She turned toward Asher and saw him slouch down. Then, George
stated that the robber turned toward the east and ran. George
looked at Asher and noticed that he had been shot, so she ran to
her brother's apartment and called the police.
The Rockford police did not find any suspects in the area, but
did find a spent bullet in the car. Additionally, the county
coroner recovered a bullet from Asher's shoulder. A forensic
scientist examined the bullets and determined them to be of 9
millimeter caliber fired from the same firearm.
George told the police that the man was wearing dark clothing
and that she vividly remembered the man was wearing a blue ski mask
with a hood over the mask. She also said that she saw black skin
around the eyes.
On June 8, 1993, Marvin Windham called Crimestoppers about
Asher's murder. He stated that he had visited Pursley the day
after the murder and that Pursley told him that he killed Asher.
Windham did not give his name.
On June 10, 1993, Officer Mark Schmidt and four other police
officers set up a surveillance of an apartment the defendant shared
with Samantha Crabtree. At 1:25 p.m., Pursley and Crabtree entered
a vehicle and Crabtree started driving. The officers followed in
an unmarked van. While they were following the vehicle, the
vehicle stopped suddenly and Pursley jumped out of the car and
began running. The police attempted to pursue, but lost him.
Crabtree voluntarily agreed to go to the police station.
On the way to the station, the police stopped at Crabtree's
apartment and conducted a search pursuant to a valid search
warrant. The police recovered a 9 millimeter gun, a black hooded
sweatshirt, black jeans, and a document from the Illinois
Department of Employment Security with Pursley's name on it.
At the station, Crabtree told the police that Pursley told her
that if she ever said anything to the police he would kill her. At
approximately 6 p.m., Crabtree took the police on the route Pursley
and Crabtree took the night of Asher's murder. When they returned
to the station, Crabtree made a statement outlining the events
before, during, and after the murder. According to the statement,
Crabtree and Pursley were out driving around to look for a house
for Pursley to rob. She stated that Pursley was wearing black
combat boots, black jeans, a black hooded sweatshirt, and had a
navy blue ski mask with him. After they passed some apartments,
Pursley told her to pull over to the side of Silent Road and wait
there with the car running. Crabtree stated that Pursley exited
the car and walked back toward the apartments they had just passed.
Two or three minutes later, she heard gunshots. A minute later,
Pursley returned to the car and told her to drive.
Crabtree stated that when Pursley returned to the car he was
carrying her 9 millimeter gun in his hand. She said that while she
was driving home she made several wrong turns because she was
nervous and that Pursley threatened several times to kill her.
When they arrived at her apartment, Crabtree said that Pursley took
what "looked like" about $100 from his pocket. She stated that
later that night she and Pursley saw a news report concerning
Asher's death, and Pursley told her not to say anything to anyone.
On June 12, 1993, Windham called Crimestoppers again after
hearing that the police were unable to arrest Pursley on June 10.
He also gave a statement to the police.
On June 16, 1993, the police received a call from
Crimestoppers that a suspect by the name of Patrick Pursley was
walking around the Fairground housing projects. The police
searched the area, but could not find Pursley. The police then
received another Crimestoppers call that the suspect was just seen
running northbound. While searching the area, an officer observed
a person hiding under a ramp of an abandoned building. The police
pulled out the person, who was Pursley, and arrested him.
At trial, George testified to the events of that evening, and
a ballistics expert testified that the 9 millimeter gun the police
found at Crabtree's apartment was the weapon used in Asher's
murder. Diane Winters, a friend of Pursley, testified that Pursley
called her a month before Asher's murder and asked if she would buy
bullets for Crabtree's gun.
Windham testified that he visited Pursley early in April 1993,
at which time Pursley showed him a newspaper clipping about the
murder and told Windham how he had robbed Asher and George and then
killed Asher. On cross-examination, Windham stated that he had
received a total of $2,650 in reward money for his information.
Additionally, Windham said that the reason he waited two months
after learning Pursley was the murderer before calling
Crimestoppers was because Pursley did not threaten him until June
1993. Windham also admitted that he had two criminal charges
currently pending against him.
Crabtree's testimony at trial contradicted her June 10, 1993,
statement and her testimony before the grand jury. At trial, she
stated that her prior two statements were coerced and that she and
Pursley did not leave her apartment on April 2, 1993.
Several witnesses testified to the whereabouts of Pursley on
April 2. Myra Foster, the grandmother of Pursley's nine-year-old
son, Anthony, and Tracy Foster, Anthony's mother, testified that on
April 2 Pursley was in Rockford with his son and Aaron, Myra's
seven-year-old son. However, on cross-examination they admitted
that two weeks before their testimony they told the police that
they were not sure that Pursley came to Myra's home on April 2.
Penny Bunnell, a friend of Mrs. Foster, testified that on
April 2, 1993, she was visiting Mrs. Foster when Pursley came and
picked up Anthony and Aaron for a visit around 5:30 p.m. that day.
Eleven-year-old Aaron Davis and ten-year-old Anthony Pursley
testified that Pursley took them to his house the night of April 2.
They both stated that they and Pursley played with Anthony's
chemistry set until 11 p.m. on April 2 and that Pursley never left
the house. On cross-examination, however, Aaron stated that he
thought that April 2 was a Saturday. Also, they both admitted that
they told the police two weeks before their testimony that Pursley
had picked them up in the afternoon, not at night.
Sixteen-year-old David Bodell testified that he lived in the
neighborhood where Asher was murdered. He stated that on April 2,
1993, he heard three gunshots and a woman scream. He said that
"not too long" afterward he walked outside and saw a man crouched
down in front of a dumpster that was located about 30 feet from
him. Bodell testified that the man began running toward an open
field and Silent Road Trail when the police sirens "started
coming," which was about 30 or 40 seconds after he saw the man. He
said that the man was about 6 feet 3 inches tall and that he could
not tell if the man was black or white. On cross-examination,
Bodell stated that the man was "either a white male with a very
dark tan or possibly black." Additionally, Bodell stated that he
told a police officer on April 3, 1993, that the man was wearing a
dark blue sweatshirt and black jeans and ran in a southeasterly
direction across a field after hearing the police sirens.
Finally, Pursley presented his own ballistics expert, who
testified that he was unable to make a conclusive identification
that the bullets from the scene were fired from Crabtree's gun.
On rebuttal, a police officer stated that the distance between
where Bodell showed him he was standing to the dumpster was about
100 feet and that Bodell told him that the man was black.
The jury found the defendant guilty of first degree murder.
At sentencing, the court noted Pursley's "long history of criminal
conduct" and sentenced him to natural life without parole.
We turn first to Pursley's claim that the jury improperly
heard evidence that tended to show that he had the propensity to
commit other crimes. Evidence is relevant if it has any tendency
to make the existence of a material fact more or less probable than
it would be without the evidence. People v. Williams, 228 Ill.
App. 3d 981, 989 (1992). Indeed, evidence will not be excluded
merely because it may prejudice the accused. People v. Calderon,
98 Ill. App. 3d 657, 661 (1981). It is within the discretion of
the trial court to decide whether evidence is relevant and
admissible. People v. Hayes, 139 Ill. 2d 89, 130 (1990).
Consequently, a trial court's determination of whether evidence is
relevant and admissible will not be reversed absent a clear abuse
of discretion resulting in manifest prejudice to the defendant.
People v. Nichols, 235 Ill. App. 3d 499, 506 (1992).
Pursley points this court to statements made by three
witnesses. First, Pursley argues that Ms. Winter's testimony
regarding his request that she buy bullets for Crabtree's gun
because he did not want the bullets traced to him was extremely
prejudicial and served no purpose other than to show that Pursley
had the propensity to commit violent crimes in the month before
Asher was killed. We disagree. Evidence that tends to prove a
fact in issue is admissible even though it may be evidence showing
that the accused has committed a crime other than the one for which
he is being tried. People v. McDonald, 62 Ill. 2d 448, 455 (1975).
Moreover, while evidence may not be introduced solely to show a
defendant's propensity to commit a crime, the State may offer
testimony relating to events that are not themselves criminal
offenses that go to the motive and intent of the defendant. People
v. Rachel, 123 Ill. App. 3d 600, 605-06 (1984).
We agree with the trial court that Ms. Winter's testimony was
relevant and did not raise any inference of a propensity to commit
a crime. The State presented evidence through a ballistics expert
that Crabtree's 9 millimeter Taurus gun was the firearm involved in
the murder. Ms. Winter testified that Pursley asked her to buy
bullets for Crabtree's 9 millimeter gun. A substantial part of
Pursley's defense was denying that the 9 millimeter Taurus gun
found in Crabtree's apartment was connected to him. Ms. Winter's
testimony, however, established that Pursley was aware of
Crabtree's gun. Further, her testimony established the
availability and proximity of the gun to Pursley. As a result, we
find that the trial court did not abuse its discretion by
determining that Ms. Winter's testimony helped show that Pursley
had access to the alleged murder weapon.
The second instance of alleged misconduct involves statements
by Windham. During cross-examination, the defense asked Windham
about the alleged threats Pursley made to him in June that led to
Windham's calling Crimestoppers. On redirect examination, the
prosecutor questioned Windham about what Pursley said to him, and
Windham replied, "He said before he go back to the penitentiary he
will know who told, either me or [Crabtree], and he will--." The
defense objected to Windham's statement, and the court overruled
the objection. On appeal, Pursley argues that Windham's statement
was improper because it showed his propensity to commit crimes. We
disagree. A defendant is entitled to have his guilt or innocence
determined solely with reference to the crime charged. People v.
Gregory, 22 Ill. 2d 601, 603 (1961). Accordingly, it is well
settled that evidence of other offenses unrelated to the crime for
which a defendant is on trial is incompetent. People v. Goodwin,
69 Ill. App. 3d 347, 349 (1979). However, it is also well settled
that a party who "opens the door" on a particular subject is barred
from objecting to questioning based upon the same subject. People
v. Griffiths, 112 Ill. App. 3d 322, 328 (1983).
We find that the court did not abuse its discretion by
admitting Windham's testimony because the defense "opened the door"
by calling into question this issue. From reviewing the
transcripts of the trial in this case, it is clear that the defense
strategy was to show that Windham created his story concerning
Pursley to capture reward money and to gain assistance with other
criminal matters. The defense repeatedly asked whether Windham
invented his story after reading newspaper articles about the case
and asked him about his prior drug use and current problems with
the law. Further, the defense questioned Windham about the reward
money he received and why he waited two months before calling
Crimestoppers. Finally, the defense asked Windham about Pursley's
threat several times and implied that Windham had made up his
entire meeting with Pursley to make money.
When the State attempted to rehabilitate its witness, the
defense objected to Windham's testimony stating how Pursley
threatened him. We find that, by questioning Windham's credibility
and his testimony that Pursley threatened him, the defense opened
the door regarding Pursley's threat to Windham. See People v.
Dent, 266 Ill. App. 3d 680, 687 (1994) (defense "opened the door"
to the prosecutor's rehabilitating his witness by informing the
jury that the witness did not have a criminal record, and made
prior consistent statements, because defense strategy was to
implicate the witness in the murder and show that the witness was
an original suspect and had omitted pertinent information when
giving his statement to the police). Thus, in the present case we
find that the trial court did not abuse its discretion by refusing
to grant a mistrial or strike Windham's testimony.
Pursley argues that another statement by Windham also amounts
to prejudicial error. When discussing Pursley's threat on redirect
examination, Windham also stated that Pursley told him that if
Windham wanted to continue to visit with Pursley, Windham would
have to "start doing crimes" with him. The defense objected to
this testimony, and the court sustained the objection. Then, the
court instructed the jury to disregard the answer. Pursley,
however, contends that the instruction did not cure the error and
the statement denied him a fair trial. We disagree. First, we
find that Windham's statement was not "highly prejudicial" and note
that there is nothing in the record to show that the jury did not
follow the court's instruction. See People v. Jones, 222 Ill. App.
3d 206, 211 (1991). Second, we find that the comment concerned
Pursley's threat, to which the defense opened the door as
previously discussed. Accordingly, Windham's second statement does
not amount to prejudicial error warranting a reversal.
The next instance of alleged error concerns the testimony of
Officer Ronald Gillardo, who testified to the circumstances
surrounding Pursley's arrest. Pursley argues that Officer
Gillardo's testimony that he was hiding under a ramp when he was
arrested was substantially prejudicial. Pursley also contends that
Officer Gillardo's testimony of the Crimestoppers tip--"that a
suspect by the name of Patrick Pursley wearing dark clothing
carrying a shotgun was walking"--denied him a fair trial because it
showed that he had a propensity to commit other crimes. We
disagree. Other crimes evidence is properly admitted to show
identity, absence of mistake, defendant's state of mind, and the
circumstances of his arrest. People v. Wilson, 257 Ill. App. 3d
826, 831 (1994). Moreover, evidence of other crimes is admissible
when it is relevant to the police investigation of the offense at
issue where such investigatory procedures involved an integral part
of the circumstances of the defendant's arrest. People v. Davis,
93 Ill. App. 3d 187 (1981). Indeed, evidence of flight is
admissible as a circumstance tending to show a consciousness of
guilt. People v. Harris, 52 Ill. 2d 558, 561 (1972). Overall, the
determination of the admissibility of evidence, including evidence
of other crimes, rests within the discretion of the trial court,
and that decision will not be reversed absent a clear abuse of
discretion. People v. Holloway, 225 Ill. App. 3d 47, 51 (1991).
We find that the court did not abuse its discretion by
admitting Officer Gillardo's testimony regarding the events leading
up to Pursley's arrest. The State presented evidence that the
police chased Pursley on June 10, 1993, after he ran from
Crabtree's vehicle, but that they lost him. Consequently, on June
12, 1993, Pursley knew that the police were looking for him, and
testimony that he was hiding is relevant to show Pursley's
consciousness of guilt. Further, Officer Gillardo's reporting the
context of the Crimestoppers tips solely recounts the police
procedure in apprehending Pursley. The tips led the police to
Pursley by telling them that a man known as Pursley was wearing
dark clothing and holding a shotgun in a certain area of the city.
Accordingly, the tips were relevant to show identification and the
procedure used to arrest Pursley.
Finally, aside from Officer Gillardo's testimony, no evidence
was presented concerning whether Pursley possessed a shotgun when
he was arrested, or whether he committed a crime with the shotgun.
Officer Gillardo merely recounted the circumstances surrounding
Pursley's arrest and how the police located and identified Pursley.
Therefore, we find that the events leading up to Pursley's arrest
were relevant, even if they were also prejudicial, and conclude
that the court did not abuse its discretion in allowing Officer
Gillardo to testify to these events.
Pursley's second contention is that the prosecutor engaged in
misconduct in his opening statement by referring to Pursley as an
"executioner," which denied him a fair trial. A prosecutor may
make unfavorable comments about the accused. He may also make
statements and arguments and draw reasonable inferences that are
based on the proofs in the case in front of the jury. He may even
go so far as to " 'denounce [the accused's] wickedness.' " People
v. Terrell, 62 Ill. 2d 60, 64 (1975). On the other hand,
prosecutors may not engage in inflammatory arguments designed
solely to arouse the passions of the jury. People v. Johnson, 119 Ill. 2d 119, 139 (1987). Nevertheless, improper remarks generally
do not constitute reversible error unless they result in
substantial prejudice to the accused. People v. Tiller, 94 Ill. 2d 303, 321 (1982).
In Terrell, the prosecutor referred to the defendant as a
punk. The supreme court stated that the definition of punk was a
ruffian or hoodlum and that the conclusions the prosecutor made
could well have been within the dictionary definition of the words
used. Indeed, the court noted that the language was "needlessly
harsh," but affirmed the appellate court's ruling that the comment
did not warrant reversible error. Terrell, 62 Ill. 2d at 64.
In the present case, the prosecutor referred to Pursley as an
"executioner" in his opening statement. According to the
dictionary, an executioner is "one that puts to death." Webster's
Third New International Dictionary 794 (1971). From the facts in
this case, we find that the prosecutor could have drawn this
inference. Moreover, we do not believe that the word "executioner"
carries the same connotation as other remarks found to be
reversible error. See Tiller, 94 Ill. 2d at 320-21 (prosecutor
referred to defendant as an animal and compared the crime to the
Nazi holocaust); People v. Payton, 72 Ill. App. 2d 240, 249-50
(1966) (prosecutor made numerous improper remarks, one of which
referred to the defendant as a beast).
In this case, the prosecutor used the word "executioner" once,
and this occurrence was in his opening statement. Consequently,
the word at issue was an isolated remark that was not dwelled upon
further by the prosecutor. See Johnson, 119 Ill. 2d at 140
(prosecutor's improper remark was an isolated incident that did not
constitute reversible error). Moreover, in his opening statement,
defense counsel reiterated that opening statements were not
evidence, but that opening statements are only a "sketch of what
*** the evidence [the prosecutor] believes will show." Indeed,
defense counsel even addressed the jury concerning the prosecutor's
use of the word executioner and warned the jury not to let
"emotions and sympathy" get in the way of Pursley's right to a fair
trial. Thus, we find that the prosecutor's remark, even if it was
inappropriate during the opening statement, does not constitute
reversible error because it was not a material factor in Pursley's
conviction.
Next, Pursley contends that Crabtree's June 10, 1993,
statement to the police and her grand jury testimony were
erroneously admitted into evidence. Pursley concedes that these
statements meet the statutory requirements of section 115--10.1 of
the Code of Criminal Procedure of 1963 (Code) (735 ILCS 5/115--10.1
(West 1994)) for admission of prior inconsistent statements, but
argues that, because the court did not make an initial
determination regarding the voluntariness and reliability of the
statements, Pursley's due process rights were violated. We
disagree. The fact that a statement is admissible under section
115--10.1 of the Code already demonstrates its reliability, so no
additional evidence of the statement's reliability need be shown.
People v. Carlos, 275 Ill. App. 3d 80, 84 (1995).
The facts of Carlos parallel the facts in the present case.
In Carlos, the defendant argued that a trial court must make a
finding that a prior inconsistent statement is reliable and
trustworthy in addition to finding that the statement meets the
Code's requirements. The appellate court disagreed, stating that
in section 115--10.1 the legislature expressly enumerated the
circumstances it concluded would indicate a prior inconsistent
statement was reliable. Carlos, 275 Ill. App. 3d at 84; see also
People v. Fauber, 266 Ill. App. 3d 381, 391 (1994). Similarly, in
the case at bar Pursley argues that the court should have made a
determination that Crabtree's statements were voluntary, even
though the statements met the Code's requirements. We decline to
adopt the defendant's argument.
Pursley points this court to People v. Johnson, 255 Ill. App.
3d 547 (1993), to show that a determination of voluntariness is
required in addition to meeting the requirements of section 115--
10.1. In Johnson, the Appellate Court, First District, stated that
it would violate the defendant's due process rights to admit a
prior inconsistent statement, even if the statement met section
115--10.1's requirements, unless an evidentiary basis that the
statement was voluntary and reliable was established. Johnson, 255
Ill. App. 3d at 558. Accordingly, the court noted that, before a
prior inconsistent statement is admissible for constitutional
purposes, the trial court must find that there is a sufficient
evidentiary basis from which a jury could find that the declarant's
prior statements were knowing and voluntary. Johnson, 255 Ill.
App. 3d at 559.
When determining whether the declarant's prior inconsistent
statements were voluntary in the case before it, the Johnson court
explained that the State presented evidence that the declarant
signed a statement and that the declarant voluntarily testified
before the grand jury. Consequently, the court determined that
there was a sufficient reliable basis for the admission of the
prior statements. This analysis, however, is exactly the same as
section 115--10.1 requires. Indeed, as the Carlos court noted, the
legislature determined what would constitute reliability when
drafting section 115--10.1. Therefore, a finding of reliability
and voluntariness is automatically made by concluding that a prior
statement meets section 115--10.1's test. Accordingly, no
additional analysis is needed. Certainly, even the Johnson court
agrees that it is the jury's decision to assign weight to the
statement and to decide if the statement was indeed voluntary,
after hearing the declarant's inconsistent testimony. See Johnson,
255 Ill. App. 3d at 559. As a result, we agree with the Appellate
Court, Fourth District that if a prior inconsistent statement meets
section 115--10.1's requirements it may be admitted into evidence
without an independent determination of its voluntariness.
Pursley's fourth contention is that the State failed to prove
beyond a reasonable doubt that he murdered Asher. Pursley argues
that he had an unimpeached alibi defense, Bodell observed a man
with different physical characteristics hiding near the scene,
Crabtree testified that her previous statements were untrue,
Windham's testimony was not credible, and the State's ballistic
expert was contradicted by another ballistics expert. We disagree.
It is the jury's function to determine the accused's guilt or
innocence, and this court will not reverse a conviction unless the
evidence is so improbable as to justify a reasonable doubt of
defendant's guilt. People v. Frieberg, 147 Ill. 2d 326, 359
(1992). Indeed, the relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. Frieberg, 147 Ill. 2d at 360.
A conflict in the evidence does not establish a reasonable doubt,
and a jury verdict based on substantial and credible evidence is
not rendered reversible by the fact that other evidence was
introduced which might, if believed, have resulted in a different
verdict. People v. Mendoza, 208 Ill. App. 3d 183, 204 (1991).
Instead, only where the record leaves the reviewing court with a
grave and substantial doubt of guilt should the conviction be
reversed. Mendoza, 208 Ill. App. 3d at 204.
In the present case, the evidence was sufficient to prove
Pursley guilty beyond a reasonable doubt. The jury chose to
believe the State's evidence, and we do not find that the testimony
of Bunnell, Crabtree, and Pursley's ballistics expert raises a
substantial doubt of guilt such that a reversal of Pursley's
conviction is warranted.
Although Crabtree testified that she lied in her police
statement and before the grand jury, the jury could have reasonably
believed that she had previously told the truth and was lying at
the trial. Similarly, although Aaron and Anthony testified that
they were with Pursley on April 2 and that he did not leave the
house, they also admitted that they had told the police
investigators a different version of April 2 just two weeks before
the trial. Moreover, both Aaron and Anthony repeatedly stated that
they thought that they had visited Pursley on a Saturday. The jury
could have reasonably believed that the children had confused the
dates and that they were not with Pursley on Friday, April 2.
The same inferences can be made regarding Bodell's testimony
and Windham's testimony. Although the defendant states that
Windham's criminal history and the reward money motivated him to
create a story implicating Pursley in the murder, the jury could
have reasonably believed that he was telling the truth concerning
his meeting with the defendant. Additionally, Bodell's testimony
contradicted what he told the police immediately after the murder,
and the jury could have reasonably believed he was mistaken about
the distance from his garage to where he saw a man hiding from the
police. Finally, it is immaterial that the defense's ballistics
expert contradicted the State's expert. It is settled law that the
trier of fact has the duty to resolve contradictory expert
testimony. People v. Horne, 247 Ill. App. 3d 192, 198 (1993).
Therefore, we find that the State did prove Pursley guilty of
Asher's murder beyond a reasonable doubt.
Finally, Pursley erroneously contends that his sentence of
natural life imprisonment is excessive. A reviewing court may
alter the sentencing judge's disposition only upon a finding of
abuse of discretion. People v. Cox, 82 Ill. 2d 268, 275 (1980).
Numerous witnesses testified for Pursley at the sentencing hearing.
After all the testimony was heard, the court noted that the defense
presented testimony that showed Pursley to be intelligent, capable
of forming and nurturing loving relationships, and that he had made
efforts to further his education. The court stated that, even with
the mitigating factors, the court's responsibility was to weigh the
mitigating and the aggravating factors and to balance them. The
court explained that, because of some of the unusual facts and
circumstances of the case, it would decline to impose the death
penalty. The court added that although Pursley had good qualities
it believed that the defendant, due to his criminal record, was a
menace to society. Accordingly, the court sentenced Pursley to
life imprisonment without parole.
After our review of the record, we conclude that the court did
not abuse its discretion in imposing this sentence. Indeed, the
court balanced the mitigating factors with the defendant's criminal
history. Moreover, the record shows that the court carefully
considered the mitigating factors, and these factors played an
essential role in not sentencing Pursley to death. Therefore, we
find that Pursley's sentence is not excessive.
For the foregoing reasons, the judgment of the circuit court
of Winnebago County is affirmed.
Affirmed.
DOYLE and HUTCHINSON, JJ., concur.
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) Winnebago County.
)
Plaintiff-Appellee, )
) No. 93--CF--1174
v. )
)
PATRICK A. PURSLEY, ) Honorable
) Robert G. Coplan,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________
JUSTICE COLWELL delivered the opinion of the court:
Defendant, Patrick Pursley, appeals his conviction of first
degree murder. Pursley contends (1) the State did not prove beyond
a reasonable doubt that he committed murder; (2) prejudicial and
irrelevant evidence was improperly admitted; (3) the prosecutor
engaged in purposeful misconduct in his opening statement; (4) the
court failed to determine the voluntariness of a prior inconsistent
statement; and (5) his sentence of natural life imprisonment is an
abuse of discretion. We affirm.
On April 2, 1993, at approximately 10 p.m., Andrew Asher and
his girlfriend, Becky George, were seated in a parked car in front
of George's brother's apartment in Rockford. As they were talking,
a man approached the driver's door, where Asher was seated, and
pulled it open. The man pointed a gun at Asher and George and
said, "This is a stickup, hand me your money." George grabbed
about $60 from her purse and leaned over to put it on Asher's lap,
and Asher reached into his pocket for his wallet. George testified
that she held the money in her hand stretched out toward the
robber, but that he did not take it. She began to look for more
money in her purse when she heard two "noises that were like pops."
She turned toward Asher and saw him slouch down. Then, George
stated that the robber turned toward the east and ran. George
looked at Asher and noticed that he had been shot, so she ran to
her brother's apartment and called the police.
The Rockford police did not find any suspects in the area, but
did find a spent bullet in the car. Additionally, the county
coroner recovered a bullet from Asher's shoulder. A forensic
scientist examined the bullets and determined them to be of 9
millimeter caliber fired from the same firearm.
George told the police that the man was wearing dark clothing
and that she vividly remembered the man was wearing a blue ski mask
with a hood over the mask. She also said that she saw black skin
around the eyes.
On June 8, 1993, Marvin Windham called Crimestoppers about
Asher's murder. He stated that he had visited Pursley the day
after the murder and that Pursley told him that he killed Asher.
Windham did not give his name.
On June 10, 1993, Officer Mark Schmidt and four other police
officers set up a surveillance of an apartment the defendant shared
with Samantha Crabtree. At 1:25 p.m., Pursley and Crabtree entered
a vehicle and Crabtree started driving. The officers followed in
an unmarked van. While they were following the vehicle, the
vehicle stopped suddenly and Pursley jumped out of the car and
began running. The police attempted to pursue, but lost him.
Crabtree voluntarily agreed to go to the police station.
On the way to the station, the police stopped at Crabtree's
apartment and conducted a search pursuant to a valid search
warrant. The police recovered a 9 millimeter gun, a black hooded
sweatshirt, black jeans, and a document from the Illinois
Department of Employment Security with Pursley's name on it.
At the station, Crabtree told the police that Pursley told her
that if she ever said anything to the police he would kill her. At
approximately 6 p.m., Crabtree took the police on the route Pursley
and Crabtree took the night of Asher's murder. When they returned
to the station, Crabtree made a statement outlining the events
before, during, and after the murder. According to the statement,
Crabtree and Pursley were out driving around to look for a house
for Pursley to rob. She stated that Pursley was wearing black
combat boots, black jeans, a black hooded sweatshirt, and had a
navy blue ski mask with him. After they passed some apartments,
Pursley told her to pull over to the side of Silent Road and wait
there with the car running. Crabtree stated that Pursley exited
the car and walked back toward the apartments they had just passed.
Two or three minutes later, she heard gunshots. A minute later,
Pursley returned to the car and told her to drive.
Crabtree stated that when Pursley returned to the car he was
carrying her 9 millimeter gun in his hand. She said that while she
was driving home she made several wrong turns because she was
nervous and that Pursley threatened several times to kill her.
When they arrived at her apartment, Crabtree said that Pursley took
what "looked like" about $100 from his pocket. She stated that
later that night she and Pursley saw a news report concerning
Asher's death, and Pursley told her not to say anything to anyone.
On June 12, 1993, Windham called Crimestoppers again after
hearing that the police were unable to arrest Pursley on June 10.
He also gave a statement to the police.
On June 16, 1993, the police received a call from
Crimestoppers that a suspect by the name of Patrick Pursley was
walking around the Fairground housing projects. The police
searched the area, but could not find Pursley. The police then
received another Crimestoppers call that the suspect was just seen
running northbound. While searching the area, an officer observed
a person hiding under a ramp of an abandoned building. The police
pulled out the person, who was Pursley, and arrested him.
At trial, George testified to the events of that evening, and
a ballistics expert testified that the 9 millimeter gun the police
found at Crabtree's apartment was the weapon used in Asher's
murder. Diane Winters, a friend of Pursley, testified that Pursley
called her a month before Asher's murder and asked if she would buy
bullets for Crabtree's gun.
Windham testified that he visited Pursley early in April 1993,
at which time Pursley showed him a newspaper clipping about the
murder and told Windham how he had robbed Asher and George and then
killed Asher. On cross-examination, Windham stated that he had
received a total of $2,650 in reward money for his information.
Additionally, Windham said that the reason he waited two months
after learning Pursley was the murderer before calling
Crimestoppers was because Pursley did not threaten him until June
1993. Windham also admitted that he had two criminal charges
currently pending against him.
Crabtree's testimony at trial contradicted her June 10, 1993,
statement and her testimony before the grand jury. At trial, she
stated that her prior two statements were coerced and that she and
Pursley did not leave her apartment on April 2, 1993.
Several witnesses testified to the whereabouts of Pursley on
April 2. Myra Foster, the grandmother of Pursley's nine-year-old
son, Anthony, and Tracy Foster, Anthony's mother, testified that on
April 2 Pursley was in Rockford with his son and Aaron, Myra's
seven-year-old son. However, on cross-examination they admitted
that two weeks before their testimony they told the police that
they were not sure that Pursley came to Myra's home on April 2.
Penny Bunnell, a friend of Mrs. Foster, testified that on
April 2, 1993, she was visiting Mrs. Foster when Pursley came and
picked up Anthony and Aaron for a visit around 5:30 p.m. that day.
Eleven-year-old Aaron Davis and ten-year-old Anthony Pursley
testified that Pursley took them to his house the night of April 2.
They both stated that they and Pursley played with Anthony's
chemistry set until 11 p.m. on April 2 and that Pursley never left
the house. On cross-examination, however, Aaron stated that he
thought that April 2 was a Saturday. Also, they both admitted that
they told the police two weeks before their testimony that Pursley
had picked them up in the afternoon, not at night.
Sixteen-year-old David Bodell testified that he lived in the
neighborhood where Asher was murdered. He stated that on April 2,
1993, he heard three gunshots and a woman scream. He said that
"not too long" afterward he walked outside and saw a man crouched
down in front of a dumpster that was located about 30 feet from
him. Bodell testified that the man began running toward an open
field and Silent Road Trail when the police sirens "started
coming," which was about 30 or 40 seconds after he saw the man. He
said that the man was about 6 feet 3 inches tall and that he could
not tell if the man was black or white. On cross-examination,
Bodell stated that the man was "either a white male with a very
dark tan or possibly black." Additionally, Bodell stated that he
told a police officer on April 3, 1993, that the man was wearing a
dark blue sweatshirt and black jeans and ran in a southeasterly
direction across a field after hearing the police sirens.
Finally, Pursley presented his own ballistics expert, who
testified that he was unable to make a conclusive identification
that the bullets from the scene were fired from Crabtree's gun.
On rebuttal, a police officer stated that the distance between
where Bodell showed him he was standing to the dumpster was about
100 feet and that Bodell told him that the man was black.
The jury found the defendant guilty of first degree murder.
At sentencing, the court noted Pursley's "long history of criminal
conduct" and sentenced him to natural life without parole.
We turn first to Pursley's claim that the jury improperly
heard evidence that tended to show that he had the propensity to
commit other crimes. Evidence is relevant if it has any tendency
to make the existence of a material fact more or less probable than
it would be without the evidence. People v. Williams, 228 Ill.
App. 3d 981, 989 (1992). Indeed, evidence will not be excluded
merely because it may prejudice the accused. People v. Calderon,
98 Ill. App. 3d 657, 661 (1981). It is within the discretion of
the trial court to decide whether evidence is relevant and
admissible. People v. Hayes, 139 Ill. 2d 89, 130 (1990).
Consequently, a trial court's determination of whether evidence is
relevant and admissible will not be reversed absent a clear abuse
of discretion resulting in manifest prejudice to the defendant.
People v. Nichols, 235 Ill. App. 3d 499, 506 (1992).
Pursley points this court to statements made by three
witnesses. First, Pursley argues that Ms. Winter's testimony
regarding his request that she buy bullets for Crabtree's gun
because he did not want the bullets traced to him was extremely
prejudicial and served no purpose other than to show that Pursley
had the propensity to commit violent crimes in the month before
Asher was killed. We disagree. Evidence that tends to prove a
fact in issue is admissible even though it may be evidence showing
that the accused has committed a crime other than the one for which
he is being tried. People v. McDonald, 62 Ill. 2d 448, 455 (1975).
Moreover, while evidence may not be introduced solely to show a
defendant's propensity to commit a crime, the State may offer
testimony relating to events that are not themselves criminal
offenses that go to the motive and intent of the defendant. People
v. Rachel, 123 Ill. App. 3d 600, 605-06 (1984).
We agree with the trial court that Ms. Winter's testimony was
relevant and did not raise any inference of a propensity to commit
a crime. The State presented evidence through a ballistics expert
that Crabtree's 9 millimeter Taurus gun was the firearm involved in
the murder. Ms. Winter testified that Pursley asked her to buy
bullets for Crabtree's 9 millimeter gun. A substantial part of
Pursley's defense was denying that the 9 millimeter Taurus gun
found in Crabtree's apartment was connected to him. Ms. Winter's
testimony, however, established that Pursley was aware of
Crabtree's gun. Further, her testimony established the
availability and proximity of the gun to Pursley. As a result, we
find that the trial court did not abuse its discretion by
determining that Ms. Winter's testimony helped show that Pursley
had access to the alleged murder weapon.
The second instance of alleged misconduct involves statements
by Windham. During cross-examination, the defense asked Windham
about the alleged threats Pursley made to him in June that led to
Windham's calling Crimestoppers. On redirect examination, the
prosecutor questioned Windham about what Pursley said to him, and
Windham replied, "He said before he go back to the penitentiary he
will know who told, either me or [Crabtree], and he will--." The
defense objected to Windham's statement, and the court overruled
the objection. On appeal, Pursley argues that Windham's statement
was improper because it showed his propensity to commit crimes. We
disagree. A defendant is entitled to have his guilt or innocence
determined solely with reference to the crime charged. People v.
Gregory, 22 Ill. 2d 601, 603 (1961). Accordingly, it is well
settled that evidence of other offenses unrelated to the crime for
which a defendant is on trial is incompetent. People v. Goodwin,
69 Ill. App. 3d 347, 349 (1979). However, it is also well settled
that a party who "opens the door" on a particular subject is barred
from objecting to questioning based upon the same subject. People
v. Griffiths, 112 Ill. App. 3d 322, 328 (1983).
We find that the court did not abuse its discretion by
admitting Windham's testimony because the defense "opened the door"
by calling into question this issue. From reviewing the
transcripts of the trial in this case, it is clear that the defense
strategy was to show that Windham created his story concerning
Pursley to capture reward money and to gain assistance with other
criminal matters. The defense repeatedly asked whether Windham
invented his story after reading newspaper articles about the case
and asked him about his prior drug use and current problems with
the law. Further, the defense questioned Windham about the reward
money he received and why he waited two months before calling
Crimestoppers. Finally, the defense asked Windham about Pursley's
threat several times and implied that Windham had made up his
entire meeting with Pursley to make money.
When the State attempted to rehabilitate its witness, the
defense objected to Windham's testimony stating how Pursley
threatened him. We find that, by questioning Windham's credibility
and his testimony that Pursley threatened him, the defense opened
the door regarding Pursley's threat to Windham. See People v.
Dent, 266 Ill. App. 3d 680, 687 (1994) (defense "opened the door"
to the prosecutor's rehabilitating his witness by informing the
jury that the witness did not have a criminal record, and made
prior consistent statements, because defense strategy was to
implicate the witness in the murder and show that the witness was
an original suspect and had omitted pertinent information when
giving his statement to the police). Thus, in the present case we
find that the trial court did not abuse its discretion by refusing
to grant a mistrial or strike Windham's testimony.
Pursley argues that another statement by Windham also amounts
to prejudicial error. When discussing Pursley's threat on redirect
examination, Windham also stated that Pursley told him that if
Windham wanted to continue to visit with Pursley, Windham would
have to "start doing crimes" with him. The defense objected to
this testimony, and the court sustained the objection. Then, the
court instructed the jury to disregard the answer. Pursley,
however, contends that the instruction did not cure the error and
the statement denied him a fair trial. We disagree. First, we
find that Windham's statement was not "highly prejudicial" and note
that there is nothing in the record to show that the jury did not
follow the court's instruction. See People v. Jones, 222 Ill. App.
3d 206, 211 (1991). Second, we find that the comment concerned
Pursley's threat, to which the defense opened the door as
previously discussed. Accordingly, Windham's second statement does
not amount to prejudicial error warranting a reversal.
The next instance of alleged error concerns the testimony of
Officer Ronald Gillardo, who testified to the circumstances
surrounding Pursley's arrest. Pursley argues that Officer
Gillardo's testimony that he was hiding under a ramp when he was
arrested was substantially prejudicial. Pursley also contends that
Officer Gillardo's testimony of the Crimestoppers tip--"that a
suspect by the name of Patrick Pursley wearing dark clothing
carrying a shotgun was walking"--denied him a fair trial because it
showed that he had a propensity to commit other crimes. We
disagree. Other crimes evidence is properly admitted to show
identity, absence of mistake, defendant's state of mind, and the
circumstances of his arrest. People v. Wilson, 257 Ill. App. 3d
826, 831 (1994). Moreover, evidence of other crimes is admissible
when it is relevant to the police investigation of the offense at
issue where such investigatory procedures involved an integral part
of the circumstances of the defendant's arrest. People v. Davis,
93 Ill. App. 3d 187 (1981). Indeed, evidence of flight is
admissible as a circumstance tending to show a consciousness of
guilt. People v. Harris, 52 Ill. 2d 558, 561 (1972). Overall, the
determination of the admissibility of evidence, including evidence
of other crimes, rests within the discretion of the trial court,
and that decision will not be reversed absent a clear abuse of
discretion. People v. Holloway, 225 Ill. App. 3d 47, 51 (1991).
We find that the court did not abuse its discretion by
admitting Officer Gillardo's testimony regarding the events leading
up to Pursley's arrest. The State presented evidence that the
police chased Pursley on June 10, 1993, after he ran from
Crabtree's vehicle, but that they lost him. Consequently, on June
12, 1993, Pursley knew that the police were looking for him, and
testimony that he was hiding is relevant to show Pursley's
consciousness of guilt. Further, Officer Gillardo's reporting the
context of the Crimestoppers tips solely recounts the police
procedure in apprehending Pursley. The tips led the police to
Pursley by telling them that a man known as Pursley was wearing
dark clothing and holding a shotgun in a certain area of the city.
Accordingly, the tips were relevant to show identification and the
procedure used to arrest Pursley.
Finally, aside from Officer Gillardo's testimony, no evidence
was presented concerning whether Pursley possessed a shotgun when
he was arrested, or whether he committed a crime with the shotgun.
Officer Gillardo merely recounted the circumstances surrounding
Pursley's arrest and how the police located and identified Pursley.
Therefore, we find that the events leading up to Pursley's arrest
were relevant, even if they were also prejudicial, and conclude
that the court did not abuse its discretion in allowing Officer
Gillardo to testify to these events.
Pursley's second contention is that the prosecutor engaged in
misconduct in his opening statement by referring to Pursley as an
"executioner," which denied him a fair trial. A prosecutor may
make unfavorable comments about the accused. He may also make
statements and arguments and draw reasonable inferences that are
based on the proofs in the case in front of the jury. He may even
go so far as to " 'denounce [the accused's] wickedness.' " People
v. Terrell, 62 Ill. 2d 60, 64 (1975). On the other hand,
prosecutors may not engage in inflammatory arguments designed
solely to arouse the passions of the jury. People v. Johnson, 119 Ill. 2d 119, 139 (1987). Nevertheless, improper remarks generally
do not constitute reversible error unless they result in
substantial prejudice to the accused. People v. Tiller, 94 Ill. 2d 303, 321 (1982).
In Terrell, the prosecutor referred to the defendant as a
punk. The supreme court stated that the definition of punk was a
ruffian or hoodlum and that the conclusions the prosecutor made
could well have been within the dictionary definition of the words
used. Indeed, the court noted that the language was "needlessly
harsh," but affirmed the appellate court's ruling that the comment
did not warrant reversible error. Terrell, 62 Ill. 2d at 64.
In the present case, the prosecutor referred to Pursley as an
"executioner" in his opening statement. According to the
dictionary, an executioner is "one that puts to death." Webster's
Third New International Dictionary 794 (1971). From the facts in
this case, we find that the prosecutor could have drawn this
inference. Moreover, we do not believe that the word "executioner"
carries the same connotation as other remarks found to be
reversible error. See Tiller, 94 Ill. 2d at 320-21 (prosecutor
referred to defendant as an animal and compared the crime to the
Nazi holocaust); People v. Payton, 72 Ill. App. 2d 240, 249-50
(1966) (prosecutor made numerous improper remarks, one of which
referred to the defendant as a beast).
In this case, the prosecutor used the word "executioner" once,
and this occurrence was in his opening statement. Consequently,
the word at issue was an isolated remark that was not dwelled upon
further by the prosecutor. See Johnson, 119 Ill. 2d at 140
(prosecutor's improper remark was an isolated incident that did not
constitute reversible error). Moreover, in his opening statement,
defense counsel reiterated that opening statements were not
evidence, but that opening statements are only a "sketch of what
*** the evidence [the prosecutor] believes will show." Indeed,
defense counsel even addressed the jury concerning the prosecutor's
use of the word executioner and warned the jury not to let
"emotions and sympathy" get in the way of Pursley's right to a fair
trial. Thus, we find that the prosecutor's remark, even if it was
inappropriate during the opening statement, does not constitute
reversible error because it was not a material factor in Pursley's
conviction.
Next, Pursley contends that Crabtree's June 10, 1993,
statement to the police and her grand jury testimony were
erroneously admitted into evidence. Pursley concedes that these
statements meet the statutory requirements of section 115--10.1 of
the Code of Criminal Procedure of 1963 (Code) (735 ILCS 5/115--10.1
(West 1994)) for admission of prior inconsistent statements, but
argues that, because the court did not make an initial
determination regarding the voluntariness and reliability of the
statements, Pursley's due process rights were violated. We
disagree. The fact that a statement is admissible under section
115--10.1 of the Code already demonstrates its reliability, so no
additional evidence of the statement's reliability need be shown.
People v. Carlos, 275 Ill. App. 3d 80, 84 (1995).
The facts of Carlos parallel the facts in the present case.
In Carlos, the defendant argued that a trial court must make a
finding that a prior inconsistent statement is reliable and
trustworthy in addition to finding that the statement meets the
Code's requirements. The appellate court disagreed, stating that
in section 115--10.1 the legislature expressly enumerated the
circumstances it concluded would indicate a prior inconsistent
statement was reliable. Carlos, 275 Ill. App. 3d at 84; see also
People v. Fauber, 266 Ill. App. 3d 381, 391 (1994). Similarly, in
the case at bar Pursley argues that the court should have made a
determination that Crabtree's statements were voluntary, even
though the statements met the Code's requirements. We decline to
adopt the defendant's argument.
Pursley points this court to People v. Johnson, 255 Ill. App.
3d 547 (1993), to show that a determination of voluntariness is
required in addition to meeting the requirements of section 115--
10.1. In Johnson, the Appellate Court, First District, stated that
it would violate the defendant's due process rights to admit a
prior inconsistent statement, even if the statement met section
115--10.1's requirements, unless an evidentiary basis that the
statement was voluntary and reliable was established. Johnson, 255
Ill. App. 3d at 558. Accordingly, the court noted that, before a
prior inconsistent statement is admissible for constitutional
purposes, the trial court must find that there is a sufficient
evidentiary basis from which a jury could find that the declarant's
prior statements were knowing and voluntary. Johnson, 255 Ill.
App. 3d at 559.
When determining whether the declarant's prior inconsistent
statements were voluntary in the case before it, the Johnson court
explained that the State presented evidence that the declarant
signed a statement and that the declarant voluntarily testified
before the grand jury. Consequently, the court determined that
there was a sufficient reliable basis for the admission of the
prior statements. This analysis, however, is exactly the same as
section 115--10.1 requires. Indeed, as the Carlos court noted, the
legislature determined what would constitute reliability when
drafting section 115--10.1. Therefore, a finding of reliability
and voluntariness is automatically made by concluding that a prior
statement meets section 115--10.1's test. Accordingly, no
additional analysis is needed. Certainly, even the Johnson court
agrees that it is the jury's decision to assign weight to the
statement and to decide if the statement was indeed voluntary,
after hearing the declarant's inconsistent testimony. See Johnson,
255 Ill. App. 3d at 559. As a result, we agree with the Appellate
Court, Fourth District that if a prior inconsistent statement meets
section 115--10.1's requirements it may be admitted into evidence
without an independent determination of its voluntariness.
Pursley's fourth contention is that the State failed to prove
beyond a reasonable doubt that he murdered Asher. Pursley argues
that he had an unimpeached alibi defense, Bodell observed a man
with different physical characteristics hiding near the scene,
Crabtree testified that her previous statements were untrue,
Windham's testimony was not credible, and the State's ballistic
expert was contradicted by another ballistics expert. We disagree.
It is the jury's function to determine the accused's guilt or
innocence, and this court will not reverse a conviction unless the
evidence is so improbable as to justify a reasonable doubt of
defendant's guilt. People v. Frieberg, 147 Ill. 2d 326, 359
(1992). Indeed, the relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. Frieberg, 147 Ill. 2d at 360.
A conflict in the evidence does not establish a reasonable doubt,
and a jury verdict based on substantial and credible evidence is
not rendered reversible by the fact that other evidence was
introduced which might, if believed, have resulted in a different
verdict. People v. Mendoza, 208 Ill. App. 3d 183, 204 (1991).
Instead, only where the record leaves the reviewing court with a
grave and substantial doubt of guilt should the conviction be
reversed. Mendoza, 208 Ill. App. 3d at 204.
In the present case, the evidence was sufficient to prove
Pursley guilty beyond a reasonable doubt. The jury chose to
believe the State's evidence, and we do not find that the testimony
of Bunnell, Crabtree, and Pursley's ballistics expert raises a
substantial doubt of guilt such that a reversal of Pursley's
conviction is warranted.
Although Crabtree testified that she lied in her police
statement and before the grand jury, the jury could have reasonably
believed that she had previously told the truth and was lying at
the trial. Similarly, although Aaron and Anthony testified that
they were with Pursley on April 2 and that he did not leave the
house, they also admitted that they had told the police
investigators a different version of April 2 just two weeks before
the trial. Moreover, both Aaron and Anthony repeatedly stated that
they thought that they had visited Pursley on a Saturday. The jury
could have reasonably believed that the children had confused the
dates and that they were not with Pursley on Friday, April 2.
The same inferences can be made regarding Bodell's testimony
and Windham's testimony. Although the defendant states that
Windham's criminal history and the reward money motivated him to
create a story implicating Pursley in the murder, the jury could
have reasonably believed that he was telling the truth concerning
his meeting with the defendant. Additionally, Bodell's testimony
contradicted what he told the police immediately after the murder,
and the jury could have reasonably believed he was mistaken about
the distance from his garage to where he saw a man hiding from the
police. Finally, it is immaterial that the defense's ballistics
expert contradicted the State's expert. It is settled law that the
trier of fact has the duty to resolve contradictory expert
testimony. People v. Horne, 247 Ill. App. 3d 192, 198 (1993).
Therefore, we find that the State did prove Pursley guilty of
Asher's murder beyond a reasonable doubt.
Finally, Pursley erroneously contends that his sentence of
natural life imprisonment is excessive. A reviewing court may
alter the sentencing judge's disposition only upon a finding of
abuse of discretion. People v. Cox, 82 Ill. 2d 268, 275 (1980).
Numerous witnesses testified for Pursley at the sentencing hearing.
After all the testimony was heard, the court noted that the defense
presented testimony that showed Pursley to be intelligent, capable
of forming and nurturing loving relationships, and that he had made
efforts to further his education. The court stated that, even with
the mitigating factors, the court's responsibility was to weigh the
mitigating and the aggravating factors and to balance them. The
court explained that, because of some of the unusual facts and
circumstances of the case, it would decline to impose the death
penalty. The court added that although Pursley had good qualities
it believed that the defendant, due to his criminal record, was a
menace to society. Accordingly, the court sentenced Pursley to
life imprisonment without parole.
After our review of the record, we conclude that the court did
not abuse its discretion in imposing this sentence. Indeed, the
court balanced the mitigating factors with the defendant's criminal
history. Moreover, the record shows that the court carefully
considered the mitigating factors, and these factors played an
essential role in not sentencing Pursley to death. Therefore, we
find that Pursley's sentence is not excessive.
For the foregoing reasons, the judgment of the circuit court
of Winnebago County is affirmed.
Affirmed.
DOYLE and HUTCHINSON, JJ., concur.
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