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People v. Cepolski

OPINION FILED DECEMBER 11, 1979.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

FELIX CEPOLSKI, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT J. SULSKI, Judge, presiding. MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Defendant, Felix Cepolski, along with his brother and co-defendant, Peter Cepolski, were charged by indictment with the rape and armed robbery of Mattie Kolwitz and the armed robbery of Richard Donta. During a bench trial in the circuit court of Cook County, the court entered a directed judgment in favor of Peter Cepolski on all charges and in favor of defendant on the rape charge. Defendant's trial on the armed robbery charge continued and the court found him guilty after hearing all the evidence. Defendant was sentenced to imprisonment for not less than 4 years nor more than 4 years and 1 day.

The issues on appeal are: (1) whether defendant was proved guilty beyond a reasonable doubt; (2) whether the trial court erred in restricting defense counsel's cross-examination of one complaining witness as to the circumstances surrounding his arrest on the same night the armed robbery allegedly occurred; (3) whether the court erred in finding that the in-court identification of defendant by one witness had an origin independent from a tainted pre-trial identification; (4) whether the court erred in admitting evidence, in rebuttal, that an alleged co-offender was at the scene of an accident involving defendant's automobile on the morning after the alleged armed robbery; and (5) whether the court considered evidence outside the record in finding defendant guilty. The pertinent facts follow.

Prior to trial, a hearing was held on defendant's motion to suppress his identification by Richard Donta and Boyd Pletcher. Donta testified that on September 4, 1974, he was living with his mother, Mattie Kolwitz, in Forest Park, Illinois. Two of Donta's friends, Pletcher and John Linzemann, were also staying with him at the time. Early in the morning of September 4, Donta's home was invaded and he and his mother were robbed. Later that day, Donta viewed over 200 photographs at the Forest Park police station, but he could not make an identification. Some days later, Donta was shown 8 or 10 photographs of white males who were about the same age. Donta testified that the photographs bore no names and the police never suggested that he choose any particular photographs. Donta picked out two men, one of whom was defendant. Although Donta did not view a show-up or lineup involving defendant, he said that he might have seen defendant at the police station, but only after he had already picked out his photograph. Donta admitted being a heroin addict but testified that he was not under the influence of drugs at the time he viewed the photographs.

Boyd Pletcher testified that he also examined police photographs on the morning after the robbery, but he did not identify anyone. On September 12, Sergeant Doss of the Forest Park police showed him two or three photographs and said, "we have the guys." Pletcher selected two photographs, one of which was of defendant. Doss then took Pletcher to defendant's cell and called defendant's first name, Felix, at which time Pletcher again identified defendant as one of the armed robbers.

The trial court denied defendant's motion to suppress his identification by Donta; defendant does not attack this ruling on appeal. The trial court, however, apparently did rule Pletcher's out-of-court identification inadmissible, because the court proceeded to hold a hearing to determine whether Pletcher would be permitted to make an in-court identification of defendant, based on an origin independent from the overly suggestive pretrial identification. Pletcher testified that on September 4, 1974, at 12:15 a.m., he was at Donta's house with Donta, Mattie Kolwitz, and John Linzemann, watching television in the living room. There was a knock at the back door; Donta answered it, but returned to the living room alone. About 10 or 15 minutes later, there was another knock on the back door, and this time Pletcher went into the kitchen to answer the door. The kitchen was well lit. Pletcher asked who was there and a man answered "Chuck." Pletcher opened the door and two men, one carrying a shotgun, entered. Pletcher testified that one of the men was Charles Koblick, while in court he identified the other man, the one carrying the shotgun, as defendant. Koblick asked for Rich (Donta). Pletcher went into the living room and told Donta that two men were there to see him. From where Pletcher was then sitting in the living room, he had a full, unobstructed view of the two men talking to Donta for 3 to 5 minutes, with the exception of no more than 15 seconds.

Pletcher testified that Koblick then grasped the barrel of the shotgun while defendant held it by the butt. They pointed the shotgun at Pletcher and told him to get up against the wall. A masked man entered the house. Pletcher was told to lie on the floor, face down, or he would be shot. He complied, and someone tied him up. The house was ransacked for about 15 more minutes and then the intruders left. Pletcher testified that during the afternoon of September 3, he had smoked marijuana, but he was not under the influence of that or any other drug at the time of the robbery. He also disclaimed over being a narcotics addict.

The trial court denied defendant's motion to suppress his identification in court by Pletcher. At the ensuing trial, the following pertinent testimony by Donta, Pletcher, and Kolwitz was given, according to the respective parts they played in the incident at bar. On September 4, 1974, at about 12:15 a.m., Kolwitz was upstairs asleep in bed, while Donta, Pletcher, and Linzemann were watching television downstairs in the living room. Donta admitted that he had been convicted of a felony sale of drugs, that he was a heroin addict, and that he had used heroin on the afternoon or evening before the robbery. There was a knock at the back door. Donta went into the kitchen, which was lit by flourescent lights, and answered the door. He observed two men, defendant, whom he identified in court, and Koblick. The two asked for "Rick," but because Donta uses the name "Rich," he said Rick was not there. He closed the door and went back to the living room.

There was a second knock at the back door, according to Donta, 5 minutes after the first, but according to Pletcher, 10 or 15 minutes later. This time Pletcher answered the door. The kitchen lights were still on. When Pletcher opened the door he saw defendant, whom he pointed out in court, carrying a shotgun and accompanied by Koblick. The two asked for Rich. Pletcher went into the living room and told Donta someone was there to see him. Donta went and stood with Koblick and defendant, whom he observed carrying a shotgun, in the doorway between the kitchen and living room. While Donta and one of the men conversed, Pletcher sat in the living room, watching the men.

Defendant then lifted the shotgun by its "handle" while Koblick held its barrel. They told Donta to lie on the floor, which he did. Pletcher was told to get up against the wall. A masked man carrying a knife entered the house and pushed Pletcher against the wall. The masked intruder emptied Pletcher's pockets and removed his socks while holding the knife on him. Pletcher was told to lie on the floor and was tied up. The masked man then made Donta stand up, telling Donta that he wanted some money and drugs. Donta replied that he did not have any drugs and the only money he had was in his mother's purse. They went upstairs, where Donta's mother, Mattie Kolwitz, was sleeping. She awoke and saw a man holding her son around the neck. Donta told her to go back to bed, but the other man instructed her to accompany them back downstairs. Kolwitz did not remember stating before the grand jury that there was a knock on the door or that three men carrying guns forced their way into her house.

When they were again downstairs, Kolwitz and Donta saw Pletcher and Linzemann tied up and lying on the floor. Donta was tied up and accosted with the knife by the masked man, who continued asking for drugs and money in the face of Donta's denials. Two of the men then took Kolwitz upstairs. She could not see their faces and could not identify them. She did not remember previously stating that Koblick forced her upstairs. Kolwitz gave her purse, containing $100, to one of the men. One of the men forced her to have intercourse; she was also forced to perform fellatio, which she had never revealed to anyone before because she was ashamed and embarrassed. After she dressed, her assailant placed a rug over her head, took her downstairs, and tied her up along with Donta, Pletcher and Linzemann.

The three intruders left, after spending a total of about 20 minutes in the house. The victims untied themselves and called the police. They observed that a stereo and two television sets had been taken, and Donta testified that a ring had been taken from him. Kolwitz was taken to a hospital and examined by a doctor who, the parties stipulated, could testify to the presence of sperm in her vagina. Later that morning, Donta went to the Forest Park police station and viewed hundreds of photographs, but did not identify anyone. A few days later he was shown 7 to 10 more photographs, from which he identified Koblick and defendant.

In addition to Kolwitz, Donta, and Pletcher, Franklin Locke also testified during the State's case-in-chief. He stated that on the evening of September 3, 1974, he went to Peter Cepolski's house with Koblick. Peter Cepolski asked him where Donta lived, and Locke told him. Locke also gave Peter a name by which he could get Donta to let him into the house. Locke testified that Peter said he wanted to stab Donta in the heart.

Locke left Peter's house and returned the next morning, September 4. Peter said that he had robbed Donta's house and taken two televisions, a stereo, and $100. Peter also admitted wearing a mask and asking Donta for all his money and drugs. Locke then testified that he had been convicted of burglary, attempted burglary, and possession of heroin and of a hypodermic needle.

On cross-examination, Locke admitted having told defendant's attorney that he was so high on heroin and alcohol on September 3 and 4 that he could not recall anything that took place on those days. He also told defendant's attorney that he gave a statement to the police because he wanted to get out of the police station so he could get a fix, although he then testified that that might have been on another occasion. Locke stated that he was a heroin addict and sometimes obtained heroin from Donta. He also testified that he asked defendant's attorney if he could be charged in connection with the robbery, but he was never arrested and at trial, in response to defense counsel's ...


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