Appeal from the Circuit Court of Boone County; the Hon. ALBERT
S. O'SULLIVAN, Judge, presiding. Remanded with directions.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.
Vincent A. Moscatello, Frank Cullotto and Mike Swiatek, defendants, appeal from a judgment of conviction of armed robbery, and a sentence of 5 to 15 years in the penitentiary, after a jury verdict.
Defendants charge constitutional error in the denial of a pretrial petition for rendition of a prisoner held in another state (Kentucky) as a witness who had confessed to the instant crime in his extradition hearing held in Wisconsin; and in the denial of admission of the transcript of the third-party confession at the trial. Defendants also argue that the evidence failed to establish guilt beyond a reasonable doubt and that they were prejudiced by inflammatory arguments of the prosecutor.
The appeal was filed contemporaneously in both this Court and the Supreme Court of Illinois. We transferred the case on defendants' motion to the Supreme Court which subsequently returned it here on the ground that no substantial constitutional question was involved. *fn1
The action was commenced by the filing of an indictment on November 13th, 1967, charging the defendants with armed robbery of $14,413 from the One-Stop Pacemaker, Inc. in Belvidere, Illinois, alleged to have occurred on September 1, 1967.
Willie Halcomb, the co-manager of the Belvidere Pacemaker, testified that the robbery occurred shortly after the 10:02 a.m. Brinks money delivery. He heard the cashier, Sherry DalPra, state, "What are you doing in here?" He then saw a man, in back of her, lifting his sweater and pulling a revolver "half way out." The man told everyone to get back on the floor and allowed Sherry to cash checks. He testified that he only had a side view of the man; that he was in the office for only a few seconds; and that he was dressed in a black sweater and dark pants. Later he saw pictures and picked out a photograph that looked like the man and still later he saw him in person. He stated that the man was sitting in court with a small scar above his cheek, sitting to the right of his attorney.
On cross-examination he testified he had gone to a lineup approximately two or three weeks later and he did not see anyone that he could positively identify in the lineup. He could "halfway identify someone" but was not sure that any of the men in the lineup were one of the men that held them up. The man had his back to the witness and also his back to Sherry DalPra except for a few seconds, and he only faced Ramona Thornton for a few seconds.
Gerald DalPra, the manager of the store, testified that he was at the check-out counter, which was 10 to 15 yards from the office. He was not aware that the robbery had taken place until after it had been completed. He went to the office and was informed by Mrs. Thornton, his head checker, that they were robbed, and Mrs. Thornton pointed out one of the men who was the only one left in the store at that time. DalPra left the office and walked towards the man until he got within a few feet of him, and the man then stepped back and put his hand underneath his shirt and said that he had a gun, which the witness did not see. DalPra, in the courtroom, identified that man as defendant, Frank Cullotto, and testified that he was wearing a loud, green sport shirt outside his pants. The man walked out of the store, and DalPra went back to the counter and told someone to call the police. He then went back to the door and tried to write down the license number of a cream-colored Chevrolet, 1959 or 1960 model, which the man was entering. Later that day he was shown some photographs by Sheriff Aten and picked out a picture of Frank Cullotto. Approximately a week later he went to a lineup in Chicago, saw five men, and picked out the defendant Cullotto from the lineup.
On cross-examination he testified that he had given the police a description of the man as wearing a loud, green sport shirt and glasses and that he was between 5 feet 10 and 5 feet 10 1/2 inches, and 170 pounds. He stated that he was standing 6 or 8 feet away from him and looked at him for possibly 15 seconds, and that the man was a stranger to him. When he went to the lineup in Chicago he already knew the name of the man whose picture he had identified was Frank Cullotto. During the lineup, each man was required to state his name. At the lineup the witness possibly said, "The man who said his name is Frank Cullotto, that's the man whose picture I identified and the clothing he wore at the time." He recognized Frank Cullotto in the courtroom as the man whose picture he had identified and he had no doubt in his mind after viewing the pictures. He had no doubts as he testified that defendant Cullotto was in the Pacemaker store on September 1st, 1967.
Ramona Thornton, the head cashier, testified that a few minutes after Brinks had made a delivery of money to the store, she was in the office and had the bag of money in her hand and had not yet put it in the safe. She heard the door and turned around, and Sherry Dal Pra came into the office and right behind her was a man. The man walked up alongside of her and had a gun in his hand and a yellow plastic pail. He said, "This is a holdup, don't try anything funny." Then he told her to get down on the floor. The robber told her to open the safe, and she replied that she couldn't. He then opened the safe and took all the currency out and took two envelopes out of the top. He then turned from the safe and took the Brinks bag from her. He went over to the register and took three bundles of money from the drawer under the register. She saw another man standing just outside the courtesy counter, behind a carton of cigarettes, who had a gun. She also saw a third man who was standing by the wall near the shampoo rack. He walked out of the store when the man in the office who had been taking the money moved out. Then the one in front of the courtesy counter moved over in that position.
She was later shown pictures in the upstairs office of the store and she identified two men and the man inside the office tentatively. The man she identified tentatively was Vincent Moscatello and the other two were Frank Cullotto and Mike Swiatek. She described Moscatello as wearing a golf cap, black wash slacks, a black sweater, open down the front and buttoned at the waist, which had a yellow and white stripe diagonally down to the waist, and a sport shirt underneath. Cullotto wore some type of a yellow sweater, gray wash slacks and a cap and glasses that she believed to be the same type he was wearing in the courtroom. She testified that Swiatek had a cap, a loud, tropical print shirt and wash pants. She was not sure of the color. She was later taken to Chicago and saw a lineup where she identified Cullotto and Swiatek. She was doubtful as to Moscatello because of height, but when she saw him sitting down in the courtroom she would say that it was him.
On cross-examination she testified that she had given a verbal statement to Sheriff Aten. She recalled also being interviewed by the two young lawyers from Kentucky on April 8th, 1968, and telling them that the reason she could not identify the man the sheriff said had entered the cage was because of height difference.
Sheryl DalPra, a sister of Gerald DalPra, testified that she entered the office of the store shortly after the Brinks messenger left and she was followed in by a man. She asked him what he was doing and he told her don't try anything that this was a holdup. He then told her, Ramona Thornton, and Halcomb to get down on the floor. He also told her that if anyone came to the office to cash any checks, that she was to do so. She had her back to him when he followed her in, and then she turned and looked at him. The man then walked over towards the back of the courtesy counter and told Ramona Thornton to open the safe. After she replied that she didn't know how, he put on a brown glove and opened the top safe and put on another glove and opened the bottom safe and took an envelope from the top and took the money out from the bottom, as well as the Brinks bag that Ramona Thornton had in her hands. The phone then rang and Sheryl answered it. She also cashed a check for a customer and gave him money for returned bottles. By that time it was all over.
During the period of time the man was in the office she was back to back, or more or less to the side of him. There was another man outside the cage who showed her part of a gun, and then she turned her back on him. She looked off the side to her left, and there was another man standing over by the doorway near the shampoo display. Prior to the robbery she had noticed all three men as having walked into the store together, more or less single file, with about 5-foot intervals between them. They walked back into the produce department where she was putting up an ad and then walked over to the meat department where she was putting up an ad.
In court she identified Moscatello as being the man inside the cage, Cullotto as being the man in front of the courtesy counter, and Swiatek as being the man off to the side of the doorway. On the evening of the robbery she had been shown photographs by Sheriff Aten and she identified all three of the defendants. She testified that Moscatello at the time of the robbery had a dark cap on, a sport shirt, a black sweater and black slacks, that the sweater had a diagonal yellow and white stripe which went downward and buttoned where the stripes met; that Cullotto had on a brown, bright print shirt, glasses which looked like army glasses, and light slacks; and that Swiatek had on a yellow sport shirt, a sweater, a jacket type of thing, with a cap and grayish slacks.
On cross-examination she testified that the descriptions she gave of the clothing were the same descriptions she gave to Sheriff Aten on the day of the robbery. She told the sheriff that Moscatello had a visible scar over his left eye, but that as she looked at Moscatello in court the scar was not over the left eye, but was on the side of his eye. She said that when she gave the descriptions to the sheriff and to the police captain both men wrote them down.
Ruth Ellen Brown testified that she was a customer at the store, arriving there at approximately 10:00 o'clock. She went outside the store to drive her car around to pick up boxes and as she left the store and was walking through the check-out counter the manager of the store, Jerry DalPra, was right behind her. He more or less followed her out. Three men came out of the store following her, walking rapidly, and as she approached her car, she noticed a white Chevrolet sitting next to it. The three men got into the white Chevrolet and as they opened the door they bumped her car. She recognized two of the men and later that day she looked at certain photographs which were shown to her by Sheriff Aten and picked out Cullotto and Swiatek. About a week later she went to a lineup in Chicago involving five people and at that time again picked out Swiatek and Cullotto. She testified that the driver of the car, Swiatek, was dressed in gray trousers and yellow-gold sweat shirt. The other man, Cullotto, had on a bright shirt, an Hawaiian-type shirt, dark trousers, and his glasses were tinted.
On cross-examination she testified that she had only seen the men a couple of seconds or so. She testified that at the lineup Frank Cullotto had stepped forward and had given his name and she may have heard that name before. She did not recall how Cullotto was dressed on the day of the lineup.
Lester Aten, the Sheriff of Boone County, testified that on September 1, 1967, he found a cream-colored Chevrolet, 1959 or 1960, by the Highland Hospital and that the car had been reported stolen by a Mr. Boerdman.
On cross-examination he testified that he did not go thru the car to determine if there was anything in the car to connect any of the defendants. He further testified that he did not take any written statements from any of the witnesses and that none of the witnesses had described to him the wearing apparel of the men who held up the store.
Vincent Moscatello testified for the defendants that he had a scar on the left side of his cheek since he was about 4 years old. He testified that between the 11th and 15th of September, 1967, he was in a showup in Chicago and after the showup he was not charged with any offense and he left and went home. He denied being present in the City of Belvidere and participating in the holdup at the One-Stop Pacemaker on September 1, 1967.
Moscatello testified that around the time of the robbery he was dating a woman named Gloria Dante, and was in her home in Chicago. He had stayed at that address all night. Gloria's sister Karen was there also, as well as Gloria's mother, Carol Dante, and Marie Kuputta, a close friend of Carol and Karen. The further of the girls, James Dante, was not there. He testified that Carol Dante and James were divorced.
Carol Dante testified that Moscatello roomed and boarded at the house and that she was sure he was there on September 1st, 1967. She was not divorced on that date. Her husband was not there at the ...