People v. Cepolski

398 N.E.2d 351, 79 Ill. App. 3d 230, 34 Ill. Dec. 676, 1979 Ill. App. LEXIS 3698
CourtAppellate Court of Illinois
DecidedDecember 11, 1979
Docket78-1395
StatusPublished
Cited by11 cases

This text of 398 N.E.2d 351 (People v. Cepolski) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Cepolski, 398 N.E.2d 351, 79 Ill. App. 3d 230, 34 Ill. Dec. 676, 1979 Ill. App. LEXIS 3698 (Ill. Ct. App. 1979).

Opinion

Mr. PRESIDING JUSTICE ST AMOS

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 Fletcher. Donta testified that on September 4,1974, he was living with his mother, Mattie Kolwitz, in Forest Park, Illinois. Two of Donta’s friends, Fletcher 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 Fletcher 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.” Fletcher selected two photographs, one of which was of defendant. Doss then took Fletcher to defendant’s cell and called defendant’s first name, Felix, at which time Fletcher 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 Fletcher’s out-of-court identification inadmissible, because the court proceeded to hold a hearing to determine whether Fletcher would be permitted to make an in-court identification of defendant, based on an origin independent from the overly suggestive pretrial identification. Fletcher 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 Fletcher went into the kitchen to answer the door. The kitchen was well lit. Fletcher asked who was there and a man answered “Chuck.” Fletcher opened the door and two men, one carrying a shotgun, entered. Fletcher 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). Fletcher went into the living room and told Donta that two men were there to see him. From where Fletcher 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.

Fletcher testified that Koblick then grasped the barrel of the shotgun while defendant held it by the butt. They pointed the shotgun at Fletcher and told him to get up against the wall. A masked man entered the house. Fletcher 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. Fletcher 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 Fletcher. At the ensuing trial, the following pertinent testimony by Donta, Fletcher, 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, Fletcher, 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 Fletcher, 10 or 15 minutes later. This time Fletcher answered the door. The kitchen lights were still on. When Fletcher opened the door he saw defendant, whom he pointed out in court, carrying a shotgun and accompanied by Koblick. The two asked for Rich. Fletcher 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, Fletcher 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. Fletcher was told to get up against the wall. A masked man carrying a knife entered the house and pushed Fletcher against the wall. The masked intruder emptied Fletcher’s pockets and removed his socks while holding the knife on him. Fletcher 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.

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Cite This Page — Counsel Stack

Bluebook (online)
398 N.E.2d 351, 79 Ill. App. 3d 230, 34 Ill. Dec. 676, 1979 Ill. App. LEXIS 3698, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-cepolski-illappct-1979.