People v. Scarpelli

• Decision Date: 28 March 1980
• Docket Number: No. 79-501,79-501
• Citation: 82 Ill.App.3d 689,402 N.E.2d 915,37 Ill.Dec. 913
• Court: United States Appellate Court of Illinois
• Parties: , 37 Ill.Dec. 913 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gerald SCARPELLI, Defendant-Appellant.

Page 915

402 N.E.2d 915

82 Ill.App.3d 689, 37 Ill.Dec. 913

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gerald SCARPELLI, Defendant-Appellant.

No. 79-501.

Appellate Court of Illinois, Second District.

March 28, 1980.

Rehearing Denied April 28, 1980.

Edward M. Genson, Jeffrey B. Steinback, Chicago, for defendant-appellant.

J. Michael Fitzsimmons, State's Atty., Edmund P. Bart, Asst. State's Atty., Wheaton, for plaintiff-appellee.

VAN DEUSEN, Justice:

The defendant was found guilty by a jury of the offenses of theft in excess of $150 and possession of burglary tools. For the offense of theft in excess of $150 he was sentenced to the Illinois Department of Corrections for a term of 5 years and fined $10,000; for the offense of possession of burglary tools he was sentenced to a minimum term of 1 year and a maximum term of 3 years. The sentences were to run concurrently. Defendant now appeals his convictions.

At trial, conflicting versions were presented regarding the events that transpired on the evening of February 8, 1977. Officer Culen, a Willowbrook police officer and the State's chief witness, testified to the following facts. At approximately 7 p. m. on this particular evening, Officer Culen was sitting in his own car in a residential driveway located across the road from the Willowbrook Bowling Alley parking lot. The officer was not in uniform and was engaged in a stake out of the parking lot because a number of car thefts had recently occurred there between the hours of 7 p. m. and 10 p. m. During these particular hours bowling leagues were conducted at the bowling alley. It was a clear night, and the officer had an unobstructed view of the parking lot, which was illuminated by large vapor lights.

About 8 p. m. the officer, with the aid of binoculars, observed a vehicle enter the lot and drive slowly up and down several aisles or rows, past a number of empty parking spaces in each row. The vehicle stopped at the end of an aisle near the road and close to the officer's location, and two people stepped from the car and were observed to clean the windshield or lights. Both individuals returned to the car, and one of them picked up a small black bag or case from the car and emerged carrying it pressed against his stomach. Officer Culen further testified that he observed this individual walk down a row about three or four stalls to a 1975 Chevrolet Monte Carlo, which was located under one of the lot's vapor lights. As this person approached the Monte Carlo, Officer Culen radioed for assistance since he believed that he had an auto theft in progress. As he saw the individual approach the Monte Carlo, he started his vehicle still keeping his eyes on the individual. He observed the person enter the Monte Carlo from the driver's side and saw the interior lights of the vehicle come on. He saw no other pedestrian traffic at this time in the area. The officer then proceeded to drive his car to the area of the Monte Carlo. He then noticed exhaust smoke coming from the Monte Carlo, and as he continued to approach slowly, he observed back up lights and saw the Monte Carlo start to back up. He then stopped his car directly behind the Monte Carlo and exited his car. As he did so, he grabbed his wallet and badge case in his left hand and had his pistol in his right hand. At this time, the individual was still in the car with the door closed. The individual in the car opened the door on the driver's side and looked at the officer. The officer held out his badge, at shoulder height, with his gun at his side and called out "Police officer, freeze or halt." At this point, approximately 15 feet separated the officer from the individual in question. The individual then exited the vehicle from the driver's side and ran in a westerly direction. He was pursued by Officer Culen who kept him within his sight and within a distance of 20 feet until he was apprehended. He did not see anyone else in the Monte Carlo as he passed it in pursuit.

The officer also testified that the clothing description and basic size and hair of the individual who exited the first vehicle and entered the second vehicle (the Monte Carlo), fit the defendant. He also identified the defendant in open court as the person who was in the 1975 Monte Carlo.

Officer Culen then testified to running a records check of the subject vehicle, which revealed that Mr. Frank Panoch was the registered owner of the Monte Carlo. Shortly thereafter, an unidentified man approached him in the parking lot and while looking at the 1975 Monte Carlo said to him "What the hell is my car doing running", and "That is my car." Officer Culen as well as Sergeant Dusek, who had responded to the call for assistance, testified that a subsequent search of the 1975 Monte Carlo revealed an open black bag with a small flashlight that was still on, a pair of vice grips, a lock pulling device, a screwdriver, a pair of pointed pliers, an ignition locking device and a wrench. These items were introduced as evidence during trial.

Mr. Frank Panoch testified at trial. He had been bowling at the Willowbrook Bowling Alley on the evening in question, and as he was walking across the bowling alley parking lot toward his car he noticed some commotion near his vehicle. He then observed his 1975 Monte Carlo with its engine running and its lights on. A police officer told him to return to the bowling alley where he would be contacted later by the police. The police impounded his car that evening, and he obtained release of the vehicle from the Willowbrook police department two days later. In addition, he had not authorized anyone to use his car on the evening in question. Mr. Panoch had purchased the car in December 1974 for $5,900, and the vehicle was still in good condition on the evening of the incident.

Defendant, Gerald Scarpelli, testified in his own behalf that Karen Garcia and he were together that evening and that she dropped him off at the bowling alley so that he could have something to drink while she shopped at a nearby store. Karen Garcia's testimony is in agreement with that of the defendant on this point. Defendant further testified that as he was walking across the parking lot he heard a nearby vehicle start its engine and that when he turned to look at this vehicle he noticed that the driver apparently had fallen over in the car. Defendant then began to walk toward the car, and when he got next to it he saw another man standing on the other side of the subject vehicle pointing a gun at him. Continuing, defendant testified that he did not know that the man with the gun was a police officer, since he was dressed in blue jeans and a sweater and had not identified himself to the defendant. Out of fear for his life, defendant immediately ran through the parking lot and away from the man with the gun.

Two defense witnesses, William Congleton and Linda McCormick, testified that they were in the same parking lot on the evening in question. Mr. Congleton testified that he saw two men initially; that one man had something in his hand which looked "an awful lot like a gun" and that it appeared that he was pointing the gun toward another man; and that both men ran away from the parking lot, the one with the weapon chasing the other. Ms. McCormick testified in a similar vein, except she said she "assumed" what the person had in his hand was a gun. She did not testify as to whether the gun was pointed at anyone. Both witnesses further testified that they observed a third man in the area after the other two men ran elsewhere and that the third man exited the subject vehicle and ran in the opposite direction of the other two.

On appeal, the defendant contends that his petition for substitution of judges as well as his motion to quash his arrest and suppress evidence were erroneously denied, that he was substantially prejudiced and deprived of a fair trial by improper restrictions imposed upon his right to cross-examine State's witnesses, and that the verdict of the jury was palpably erroneous.

On May 27, 1977, the defendant filed a petition for "change of venue" pursuant to section 1 et seq. of "An Act to revise the law in relation to change of venue" (Ill.Rev.Stat.1973, ch. 146, par. 1 et seq.) before the trial judge to whom the case had been assigned, naming two judges who were prejudiced against him. This motion was treated as an automatic motion for substitution of judges provided for in section 114-5(a) of the Code of Criminal Procedure (Ill.Rev.Stat.1975, ch. 38, par. 114-5(a)), and the cause was immediately assigned to and placed on the trial call of a third judge. Thereafter the cause came on for trial on July 9, 1979. The third judge, being otherwise engaged on that day, transferred the cause to a fourth judge for trial. Defendant immediately filed a motion for substitution of judges pursuant to section 114-5(a) of the Criminal Code. The defendant did not move for substitution of judges for cause as provided for under section 114-5(c) of the Criminal Code (Ill.Rev.Stat.1975, ch. 38, par. 114-5(c).) The court, stating that the defendant had exhausted his rights for such a substitution as a result of the court's having granted his earlier petition, denied the motion.

Illinois case law interpreting section 114-5(a) clearly holds that the section allows only one automatic substitution of judges. (People ex rel. Walker v. Pate (1973), 53 Ill.2d 485, 506-507, 292 N.E.2d 387; People v. Davis (1977), 54 Ill.App.3d 517, 524, 12 Ill.Dec. 362, 369 N.E.2d 1376; In re Stiff (1975), 32 Ill.App.3d 971, 974, 336 N.E.2d 619.) The motion for a substitution of judges was properly denied.

Defendant next contends that his motion to quash and suppress should have been granted because the arresting officer did not have probable cause or reasonable grounds to make a warrantless arrest. With respect to warrantless arrests, the federal and state constitutional requirement of probable...