People v. Kluppelberg

• Decision Date: 28 December 1993
• Docket Number: No. 1-90-1114,1-90-1114
• Citation: 628 N.E.2d 908,257 Ill.App.3d 516
• Parties: , 195 Ill.Dec. 444 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James KLUPPELBERG, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 908

628 N.E.2d 908

257 Ill.App.3d 516, 195 Ill.Dec. 444

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James KLUPPELBERG, Defendant-Appellant.

No. 1-90-1114.

Appellate Court of Illinois First District, Second Division.

Dec. 28, 1993.

Jack O'Malley, State's Atty., County of Cook, Chicago (Renee Goldfarb, William D. Carroll, William L. Toffenetti, of counsel), for plaintiff-appellee.

Rita A. Fry, Public Defender of Cook County, Chicago (Mary C. Arundel, of counsel), for defendant-appellant.

Justice DiVITO delivered the opinion of the court:

After a bench trial, defendant James Kluppelberg was found guilty of murder and arson, and was sentenced to natural life in prison for murder with concurrent terms of 14 years for three counts of arson. He now appeals, raising numerous issues. We affirm.

On March 24, 1984, in the early morning hours, a fire broke out in the vacant first floor of 4448 South Hermitage, a three-flat apartment building. The second floor apartment was occupied by the Lupercio family, Santos and Elva and their five children under age ten. Mrs. Lupercio and the five children burned to death, and Mr. Lupercio suffered a fractured skull and severe burns. The building to the north at 4446 South Hermitage was damaged, and the building to the south at 4450 South Hermitage was destroyed, but no injuries were reported in these buildings.

On December 24, 1987, Detectives John Schmitz and Leonard Rolston of the Chicago Police Department Bomb and Arson Squad were assigned to investigate two car fires which had occurred at 820 West Belle Plaine in Chicago. The fires had been reported by defendant, who worked at that location as a security guard. On January 12, 1988, defendant was brought to the Bomb and Arson office at 1121 South State Street to be interviewed about those fires, and to look at photos of arson suspects to see if he recognized any individual as the person he claimed to have seen running from the scene. During the course of the interview, defendant admitted to setting fire to the cars himself. He also admitted to having started several other fires. Further, defendant admitted to starting the fatal fire at 4448 South Hermitage. Assistant State's Attorney Larry Axelrood was called, and defendant gave a brief oral statement to him admitting setting that fire. On January 27, 1988, defendant was indicted for the six killings and the arson that caused them.

On November 9, 1988, the circuit court held a hearing on defendant's motion to suppress his statement. In addition to the above facts, testimony adduced at the hearing indicated that when defendant was admitted to the Cook County Jail on January 14, 1988, he had several bruises in his kidney area. This along with other evidence offered by defendant that he had been beaten by the police led the court to conclude that defendant's statement had been involuntarily given. The circuit court suppressed defendant's statement.

Defendant then filed a motion in limine to exclude from evidence the testimony of Dawn Gramont, Michelle Briton, and Dwayne Glassco. The reasoning behind the motion was that but for the illegally obtained confession, the police would not have known of these witnesses, and they would not have been questioned and presented to the grand jury. The court ruled that Dawn Gramont and Dwayne Glassco had been previously known to the police, and denied defendant's motion as to them, but granted it as to Michelle Briton.

At trial, Santo Lupercio and Oscar Siller testified as to the events of the fires summarized above. Captain Francis Burns of the Chicago Fire Department testified that he was commander of the Office of Fire Investigation of the Chicago Fire Department. This unit was charged with determining the cause and origin of fires, but was not operational until April 1, 1984, approximately one week after the fire at 4448 South Hermitage. The unit was in training, however, and after the fire was extinguished Burns took the trainees to the scene to investigate the fire. After being qualified as an expert, Burns testified that upon entering the remains of the building he noticed large, shiny "alligatoring", which indicated a fast-spreading fire rather than one which had smoldered. He found that the majority of the fire had been confined to the back of the structure. Burn patterns indicated that, contrary to a fire's natural tendency to burn upwards, this fire had also burned down through the floor boards into the crawl space. He also testified that the fire had begun on the first floor, but a search through the wreckage showed that there had been nothing in the apartment at the time of the fire that might have caused it. He also stated that the apartment had been vacant and that the gas and electricity had been shut off, eliminating them as possible causes of the fire. Burns testified that, because of the burn patterns he found, in his opinion an accelerant had been used. Combustible materials, such as newspapers or rags, must have been brought in to provide fuel for the fire in an otherwise empty apartment. The fire had originated six to ten feet inside the rear section of the first floor apartment. In Burns's opinion, the cause of the fire was arson. On cross-examination, Burns stated that he did not know of any test that had been done to find traces of an accelerant, but some accelerants leave no residue. He also stated that because his unit was still in training and not yet operational, he made no report as to his findings or conclusions. He was able to remember the details because this was a major fire with six fatalities.

Dawn Gramont testified that at the time of trial she was 24 years old and she had four children, one by defendant and three by Dwayne Glassco. On March 24, 1984, she was living at 1748 West 45th Street, which was around the corner from 4448 South Hermitage. She was living with defendant at the time in a small cottage, consisting of a front room, two bedrooms, a kitchen, a bathroom, and an attic. At the time Glassco and Michelle Briton, Glassco's fiancee, were temporarily staying in the attic. On March 23 1984, Gramont arose at about 1 p.m. She spent the day drinking, cleaning the house, and taking the children to the park. Some time during the course of the day, defendant left the cottage and went to his wife's house. He returned home at about 7 or 8 p.m. Gramont and defendant got into an argument about his having been at his wife's house, and they argued about it off and on all night. Defendant left the house and "turned off" the street light just outside and next to the building where the alley meets the street. This was not uncommon, because it interfered with their television reception. Defendant returned and made dinner for the children. Then defendant left the house again and was gone five or ten minutes. This was about an hour and a half before the fire. When he returned, defendant and Gramont had sex, and then played cards with Glassco and Briton. While they were playing cards they noticed the fire through the kitchen window. They continued to play cards until a firefighter or a police officer came and told them to evacuate. Glassco and defendant went to the building in front of their own to help evacuate their landlord, an old man. They then watched the fire. Gramont saw defendant hand out cards for a board-up service he worked for. By this time it was daybreak, and they went home and went to bed.

At this point in her testimony Gramont was asked if she had given sworn testimony before the grand jury in this case. She admitted that in her grand jury testimony she stated that defendant had left the cottage four times during the night of the fire, and that she had followed him out of the house. She had stated that she saw defendant climb a lamp post behind the building at 4448 South Hermitage and cut the power to the street light. The second time he left, defendant went to that pole again. The third time he left, defendant went to the rear of the building at 4448 South Hermitage and looked through the back door into the first floor apartment. When he left the fourth time, she did not follow him. He returned about 15 minutes later, and said there was going to be a fire over near the light pole where he had been earlier. About ten minutes later they heard fire engines. Grafton also admitted that she had told the grand jury that defendant admitted starting the fire.

During a conference with the court, the prosecutor told the court that the verbatim transcript of Gramont's grand jury testimony was unavailable because the court reporter's notes had been destroyed in a house fire. The People were using the notes of the assistant State's Attorney who had presented Gramont to the grand jury. While there was no verbatim transcript available, the State sought to have her answers regarding defendant's actions and admissions on the night of the fire admitted as substantive evidence under section 115-10.1 of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1987, ch. 38, par. 115-10.1, now codified at 725 ILCS 5/115-10.1 (West 1992)).

During cross-examination, Gramont admitted to having given the above summarized testimony, but stated that she had been coerced into doing so by a police officer who had struck her and who had threatened her life and the lives of her children. She had lied to the grand jury, and had filed a complaint with the Office of Professional Standards and had testified before it, although she could not remember the name of the officer who coerced her. Finally, Gramont testified on cross-examination that the building at 4448 South Hermitage was not visible from the window of the attic of the cottage.

Dr. Eupil Choi of the Cook County medical examiner's office testified that he performed autopsies on the six victims. Mrs. Lupercio died of carbon monoxide intoxication and thermal burns. The five children died of burns. The manner of death was homicide....