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People v. Kloiber





APPEAL from the Circuit Court of Rock Island County; the Hon. DAVID DeDONCKER, Judge, presiding.


Rehearing denied June 1, 1981.

The defendant, Rudy Kloiber, was convicted of murder and armed robbery following a jury trial in the Circuit Court of Rock Island County. The defendant was sentenced to the Department of Corrections for a term of natural life on his murder conviction. No sentence was imposed following his armed robbery conviction.

The defendant raises several issues on appeal. Prior to reviewing each of the issues presented for review, it is necessary to discuss the factual context from which the defendant's conviction occurred and this appeal is taken.

On November 18, 1979, the defendant was employed as a maintenance man at the Plantation restaurant in Moline, Illinois, when the owner of the Plantation, Nicholas J. Chirekos, was murdered.

The State's evidence indicated a hostess at the restaurant heard two gunshots at approximately 1:50-1:55 a.m. on the night of the murder. The shots appeared to have come from the upstairs office of the restaurant where Mr. Chirekos had taken the nightly receipts. The hostess' husband, an ex-police officer, was waiting in the parking lot for his wife and verified the time and place of the shooting.

The Moline Police Department was notified to report to the Plantation at 2:08 a.m. and officers arrived there at approximately 2:15 a.m. They found the door to Chirekos' office locked and had to gain entrance by means of the manager's key. Inside they found Chirekos lying on the floor and discovered that one of the side panels of a window air conditioner had been removed.

Detectives later discovered several items which were admitted into evidence, including a block of cement ledge from outside of Chirekos' office, and in the cement were footprints pointing toward the office. It was the opinion of a forensic scientist that the footprints matched the tennis shoes worn by the defendant at the time of his arrest. Several witnesses testified as to having observed the defendant working on the roof of the Plantation not long before the incident.

According to police investigators, Chirekos' office had not been ransacked and there was no evidence of a struggle. Chirekos' body was described as being in an "assumed" or "orderly" position. There were no finger prints of significance found at the scene or on the various exhibits.

A pathologist testified that Chirekos suffered two bullet wounds in his head, one of which penetrated the skull and was the cause of death. The shots had apparently been fired through a cloth bag which was found at the scene. A forensic scientist examined the bullets and determined them to be .25-caliber ammunition. He also determined that the eight holes in the cloth bag were bullet holes. A box for a .25-caliber pistol was discovered in an apartment shared by the defendant, Clarence Phelps and Georgia Heaslip, Phelps' fiance. Phelps testified that he owned such a weapon; however, it was never found by the police.

The key witness for the State was Clarence Phelps, who was the chef at the Plantation restaurant and the defendant's roommate. The police turned up the names of Phelps and the defendant as suspects during an interview with Plantation employees, and, as a consequence, Phelps was arrested at his apartment the morning after the crime and was charged with murder. The defendant was not arrested until the following day, November 19, 1979.

Phelps was questioned by police after his arrest but he denied any involvement in the murder of Chirekos. He was interrogated again the next day and continued to deny any direct involvement in the crime itself, but he admitted having helped the defendant dispose of materials connected with the robbery. The charge against Phelps was subsequently changed from murder to aiding a fugitive, a charge which was pending against him when he appeared as a witness for the State at the defendant's trial.

Phelps testified that the defendant left the apartment sometime after midnight to go for a drink. According to Phelps, the defendant returned shortly after 2 a.m. and announced in a loud voice that he needed assistance because he was having some problems with three men at a bar called the Glass Rainbow. Then, in a quieter voice, unheard by Heaslip, he informed Phelps that he had killed Chirekos, i.e., "skeeted the old man." Phelps admitted that, afterward, he helped the defendant sort out the loot and dispose of unwanted material at a marina. The defendant also explained to Phelps how the crime was committed. Specifically, Phelps testified that the defendant told him that he entered through the window at the same time Chirekos walked into his office and that he shot Chirekos twice in the head after ordering him to lie down on the floor. The defendant was in possession of Phelps' gun. Phelps claimed that he did not give the foregoing story to the police right away because he was afraid of the defendant.

Acting upon the information provided by Phelps, the police made a search of the area around the Rock Island Sunset Marina where they found a number of items — including bank bags, receipts, and register tapes from the Plantation restaurant.

The prosecution also called Phelps' fiance, Georgia Heaslip, to the stand in support of Phelps' testimony that the defendant returned to their apartment at 2:15 a.m. and that Phelps had been in bed with her during the time the defendant was absent. Heaslip acknowledged that she was the one who purchased the gun for Phelps which the defendant allegedly used in the commission of the charged offenses.

In addition, Heaslip recounted the events immediately prior to the defendant's arrest on November 19, 1979. She stated that he suddenly reappeared at their apartment and changed his clothes while she called the police. The defendant was arrested at the apartment in response to Heaslip's call.

At the police station, the defendant was interrogated and stated that he had been at the Glass Rainbow at the time of the murder and that he had been drinking and driving around the Quad Cities during the 24-hour period prior to his arrest.

The interrogation of the defendant resumed later, but the defendant continued to profess his innocence. However, when the defendant was confronted with the statement given by Phelps, he reacted by saying, "that is a very interesting story," followed by "it is all right there" upon being asked for his own version. Finally, the defendant was asked if Phelps' statement was true, and he replied with such words as "it is true" and "you've got it all there." ...

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