Petition — Scarpelli v. Illinois

Supreme Court, U.S.

80-876 Siig

No. NOV 28 1386

MICHAEL RODAK, JR., CLERK

In the

Supreme Court of the United States

OctosEeR TERM 1980

GERALD H. SCARPELLI,

Petitioner,

vs.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE APPELLATE COURT OF ILLINOIS,

SECOND DISTRICT

EDWARD M. GENSON

JEFFREY B. STEINBACK

SAM ADAM

134 North LaSalle #300

Chicago, Dlinois 60602

(312) 726-9015

Attorneys for Petitioner

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

QUESTION PRESENTED

Whether Petitioner was substantially prejudiced and

deprived a fair trial by reason of the trial court’s repeated

and improper restrictions foisted on defense counsel in

his legitimate efforts to cross examine the key State wit-

ness against Petitioner in numerous areas of both tra-

ditionally legitimate inquiry and crucially relevant inquiry.

INDEX

men PAGE

Question Presented .............-----..scssssceeeeeseensessensesseeeensasesteneee i

CDRA TRON nnn nnnnnnceccervcncnccsnsoseseensccscorccesoece 1

ok suspen chectvanenennrerecnserencunesarenate 2

Constitutional Provisions Involved ..............-..---.-::---0++++ 2

Statement Of The Case ..........................0-.ceccscesessensscsecesoesees 3

Reasons For Granting The Writ:

The decision of the Appellate Court below, im-

properly characterizing the obvious error com-

mitted by the trial court in its wholesale fore-

closure of the legitimate efforts of defense

counsel to cross examine the State’s key witness

as harmless when in fact it was unduly preju-

dicial, conflicts with Petitioner’s right to a fair

trial as guaranteed under the Fifth and Sixth

Amendments to the United States Constitution .... 5

ITS IEE IS SS a a 21

Appendix A, Opinion of the Appellate Court for the

Second District dated March 28, 1980 ...................... App. 1

Appendix B, Order denying Petition for Leave to

Appeal to the Supreme Court of Illinois dated

September 29, 1960 ......................cecssscscsesecscerssoseseess App. 15

—_—_—-—-_--

| PREVIOUS PAGE WAS BLANK |

iv

AUTHORITIES CITED

Cases

PAGE

Alford v. United States, 282 U.S. 687, 51 S.Ct. 218,

Dy aes I © aster drsceriindciticteddongncevsonccncbanltenssidesinecaisong 11

Allison v. Gray, 603 F.2d 633 (1979) 2.000000... 15

Allison v. State of Wisconsin, 214 N.W.2d 437 (1974) 15

Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.

Pl, I. Sis a 11

Chapman v. California, 368 U.S. 18, 17 L.Ed.2d 705,

OE Ts I) aacccenc leach ncccisticlhiaiatacihcarieesanbcbiisiee decal 8

Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Dad.

A Ue - RAD vickccesebictasstceshateliihaeceucistadscapnrlentiagenadios albanians 11

Harrington v. California, 359 U.S. 250, 23 L.Ed.2d

, ts Me Ef __: SRUte ey Dae e UR MemNC CNT eal an 8

Milton v. Wainwright, 407 U.S. 371, 33 L.Ed.2d 1, 92

ATR. RO Cae pred oictiatedeantead eUinsoninidenapiaconssneansee 8

Rilison v. Gray, 603 F.2d 633 (1979) .......22.2....a.... 15

Schneble v. Florida, 405 U.S. 427, 31 L.Ed.2d 340, 92

A AFas TE MIP. © incastintsd:sunscennnctebeeticnchlghicuctaisasmioiednceliiligtes 9

Smith v. State of Illinois, 390 U.S. 129, 89 S.Ct. 748,

BD FeO Be COD | ciseincniicticsicesticerbabewtab insane 11,19

United States v. Jackson, 482 F.2d 1167 (10 Cir.),

cert. den. 414 U.S. 1159, 94 S.Ct. 918, 39 L.Ed.2d

BR Ce siceasctscaeetiigeasdacheatilha cecasee ehciciseashnpdecepnaeiensbiaias 1l

Other Authorities

Fifth Amendment to United States Constitution ... 5

Sixth Amendment to United States Constitution ........ 5

In the

Supreme Court of the United States

OcroBer ‘T'erM 1980

No.

GERALD H. SCARPELLI,

Petitioner,

Vs.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE APPELLATE COURT OF ILLINOIS,

SECOND DISTRICT

Petitioner Gerald H. Scarpelli prays that a writ of cer-

tiorari be issued to review the judgment of the Appellate

Court of Illinois for the Second District.

OPINION BELOW

The published opinion of the Appellate Court of Mlinois,

Second District, is appended to this Petition as Appendix

A. The order denying Petitioner leave to appeal to the

Supreme Court of Illinois is likewise appended to this Pe-

tition as Appendix B.

JURISDICTION

The opinion and judgment of the Appellate Court of

Illinois, Second District, was entered on March 28, 1980.

The Supreme Court of Illinois denied a timely filed Peti-

tion for Leave to Appeal on September 29, 1980. The in-

stant Petition for Writ of Certiorari is filed within sixty

(60) days of said denial of the Supreme Court of Illinois.

The jurisdiction of this Court is invoked pursuant to Title

28, U.S.C., See. 1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth and Fourteenth Amendments to the United

States Constitution are herein involved. The Sixth Amend-

ment to the United States Constitution provides, in per-

tinent part:

‘*In all criminal prosecutions, the accused shall en-

joy the right .. . to be confronted with the witnesses

against him; ... and to have the assistance of counsel

for his defense.’’

The Fourteenth Amendment to the United States Consti-

tution provides, in pertinent part:

‘*No state shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any state deprive any

person of life, liberty,or property, without due process

of law; nor deny to any person within its jurisdiction

the equal protection of the laws.’’

3

STATEMENT OF THE CASE

A. Procedural Posture.

In the Cireuit Court of DuPage County, Illinois, under

Cause Nos. 77 CF 296 and 297, the Petitioner Gerald

Scarpelli was charged with theft and the possession of

burglary tools in violation of Chapter 38, Sec. 16-1(a)-1

and Chapter 38, Section 19-2, of the Illinois Revised Stat-

utes, respectively. On June 9, 1979, this cause came on

for trial before the Honorable Carl Henninger and a jury

on the above charges. On July 13, 1979, the jury returned

a verdict of guilty as charged after over four hours of

deliberations, the trial court entering judgment thereon.

Thereafter, sentence was imposed in this cause. Peti-

tioner was sentenced to the custody of the Illinois Depart-

ment of Corrections for a period of five (5) years for the

theft and for a period of three (3) years for the possession

of burglary tools, each sentence to run concurrent with the

other.

From this judgment and sentence, Petitioner did timely

prosecute his appeal with the Appellate Court, Second

District. On March 28, 1980, the judgment and order of

the Appellate Court, Second District, was returned for

publication, affirming the conviction of Petitioner in Cause

No. 79-501. Subsequently, notice of intention to file Peti-

tion for Rehearing was filed with the Clerk of the Appel-

late Court. On April 28, 1980, the Appellate Court en-

tered its order denying the aforesaid Petition for Rehear-

ing. Petitioner did then file his Petition for Leaye to

Appeal to the Supreme Court of Illinois in timely fashion.

Ultimately, on October 1, 1980, Petitioner did receive noti-

fication by the clerk of the Supreme Court of Illinois that

4

his Petition for Leave to Appeal in Cause No. 53468 was

denied on September 29, 1980. The instant Petition for

Writ of Certiorari follows.

B. Statement of Relevant Facts.

For the purposes of the instant petition, the statement

of facts advanced by the Appellate Court in its Slip

Opinion at pages 1 through 5, which is appended hereto

as Appendix A, will be utilized. In order that Petitioner’s

position with respect to these facts be made salient, it is

important to note that on no less than sixty-three occasions

during Petitioner’s efforts to cross examine the State’s

key witness, Officer Culen, the prosecution and the trial

court amalgamated their efforts improperly to defeat Peti-

tioner from testing the credibility and understanding of

this witness with respect to his means of obtaining in-

formation, the certainty and source of his purported knowl-

edge, his powers of discernment, his memory and perhaps

most importantly his ability to describe the man or men

in the parking lot, each of which critical areas was central

to a conviction of Petitioner or to Petitioner’s acquittal.’

' For illustrations from the transcript of these proceedings, see, for

example, the record at Pages 413-15; 419-20; 436; 470-74; 482;

484-85 ; and 489-91.

qo

REASONS FOR GRANTING THE WRIT

The decision of the Appellate Court below, improperly

characterizing the obvious error committed by the trial

court in its wholesale foreclosure of the legitimate efforts

of defense counsel to cross examine the State’s key wit-

ness as harmless when in fact it was unduly prejudicial,

conflicts with Petitioner’s right to a fair trial as guar-

anteed under the Fifth and Sixth Amendment to the United

States Constitution.

Petitioner was substantially prejudiced and deprived a

fair trial by reason of the trial court’s repeated and im-

proper restrictions foisted on Petitioner’s counsel in his

efforts to cross examine investigating Officer Culen, the

only incident witness against Petitioner, in numerous

areas of both traditionally legitimate inquiry and crucially

relevant inquiry. The foreclosure of cross-examination

was so acute and improper as to work an effective denial

of Petitioner’s constitutional guarantee of confrontation

and the effective assistance of counsel as well.

At the outset, it is of critical importance to note that

Officer Culen was no mere incidental witness for the State

in its case against Petitioner. Rather, as characterized by

the panel, Officer Culen was ‘‘the State’s chief witness’’.

(Appendix A, p. 2). Thus, it was Culen’s means of obtain-

ing information, the certainty and source of his purported

knowledge, his powers of discernment, his memory and his

description of the man or men in the parking lot that were

central to a conviction of Petitioner or to Petitioner’s ac-

quittal. Yet, on no less than sixty-three occasions during

Petitioner’s efforts to cross-examine Officer Culen, the pro-

secution and the trial court amalgamated their efforts im-

6

properly to defeat Petitioner from testing the credibility

and understanding of the principal State witness with re-

spect to each of these critical areas.

The Panel opinion below chose to characterize Peti-

tioner’s contentions here as limited to foreclosure of ques-

tions calculated to demonstrate prior inconsistent state-

ments of Officer Culen, to foreclosure from examination

into whether Culen utilized police reports or conversations

with the State’s Attorney to refresh his memory, and to

preclusion from legitimate inquiry into the precise nature

of Culen’s recollection regarding the height of the indi-

vidual Culen saw exit the first vehicle and enter the Monte

Carlo. Notably, as to each of these areas, the Panel either

outright admits that such foreclosure of cross-examination

was error or at least recognizes the probability of error

in the alternative. Thus, for example, the Panel at page

11 of Appendix A admits to the commission of error by.

the trial court in the following fashion:

‘*Admittedly, defendant has a right to question an

identifying witness regarding any matter which goes

to discredit, modify or explain his testimony during

direct examination. (citations omitted) Since the na-

ture and credibility of the witnesses’ identification is

a legitimate area for cross-examination and since such

examination should be accorded a wide latitude (cita-

tions omitted), it would appear that the trial court

erred here by unduly restricting defendant’s right to

cross-examine Officer Culen regarding the officer’s

identification of the alleged perpetrator of the crime.’’

(Emphasis added)

As such, the Panel correctly notes the undue restriction

of Petitioner’s Constitutional right to cross-examine Officer

Culen, the principal State witness, insofar as his identifica-

tion of the alleged perpetrator is concerned. Unfor-

>

7

tunately, the Panel opinion does not go far enough. In

fact, the Panel opinion overlooks numerous additional in-

stances of efforts by Petitioner to cross-examine Culen

concerning obviously relevant and material areas of in-

euiry. The following have been selected to illustrate the

point:

(a) The Court on no less than eight occasions fore-

closed inquiry into Culen’s preparation as a witness,

experience on the police force and employment back-

ground as irrelevant;

(b) The Court on no less than five occasions fore-

closed inquiry into Culen’s routine, time assigned to

stake-out, success on other stake-outs, and assistance

on this stake-out as either irrelevant or immaterial ;

(c) The Court on no less than seventeen occasions

refused to permit Petitioner to inquire of Culen as to

his memory concerning the parking lot in which Peti-

tioner was apprehended, the appearance of the park-

ing lot, the configuration of the vehicles in the park-

ing lot, the volume of vehicular traffic in the parking

lot, the volume of pedestrian traffic in the parking lot

as either not impeaching, collateral or, with respect to

a diagram, ‘‘the jury can see for itself’’;

(d) The Court precluded Petitioner from efforts

to impeach Culen as to the number of people who ex-

ited the vehicle in question, as to the height of the

individual in the parking lot, as to the volume of traffic,

as to the position of the individual in the car, as to the

absence of critical facts in his police report, as to

the chase through the parking lot, and as to the ar-

rest as not impeaching or collateral; and

(e) The Court precluded Petitioner from bringing

out important facts concerning observations of Culen

made just prior to the arrest, concerning the color of

the vehicle in question, concerning the failure to run

license checks of other vehicles, concerning the identity

r

8

of the package alleged to contain burglar tools, and

concerning the purported display of Culen’s badge as

irrelevant.

The foregoing illustrations amply portray the courtroom

scenario of repeated interposing of improper objections

by the State’s Attorney to questions propounded by Peti-

tioner to Culen on cross-examination, and the concomitant

improper sustaining of those objections by the trial court

extending to virtually every legitimate area of cross-ex-

amination and resulting in the complete emasculation of

this fundamental constitutional right. Of critical import,

in this context, is the fact that Petitioner presented a clear

and consistent innocent explanation for his activity, cor-

roborated by three people, two of whom had never before

met Petitioner. Notwithstanding this, it was the Panel’s

conclusion that this pattern of admitted error of Consti-

tutional dimension was ‘‘harmless’’. The law in this area

and the facts of this particular case plainly militate against

this conclusion and require that the instantly sought peti-

tion be granted.

The proper legal guide to be utilized in determining

whether admittedly improper restrictions on cross-exami-

nation constitute harmless error has been articulated as

follows:

‘*. . . Before a federal constitutional error (fore-

closure of cross-examination) can be held harmless,

the court must be able to declare a belief that it was

harmless beyond a reasonable doubt.’’ Chapman v.

area” 368 U.S. 18, 24, 17 L.Ed.2d 705, 710-11, 87

.Ct. 824.

See also, Harrington v. California, 359 U.S. 250, 251, 23

I..Ed.2d 284, 286, 89 S.Ct. 1726 (1969); see, generally,

Milton v. Wainwright, 407 U.S. 371, 372, 33 L.Ed.2d 1, 4,

92 S.Ct. 2174 (1972).

9

Subsequent to Chapman, supra, this Court elaborated

on the Constitutional harmless error standard in Schneble

v. Florida, 405 U.S. 427, 430, 31 L.Ed.2d 340, 344, 92 S.Ct.

1056 (1972), in explicating that only where the ‘‘admitted

evidence of guilt is so overwhelming, and the prejudicial

effect of the (erroneously foreclosed examination) is so

insignificant by comparison, that it is clear beyond a rea-

sonable doubt’’ that the error did not contribute to the

conviction will a new trial not be afforded. In the instant

case, for the Panel to have found the error committed by

the trial court harmless reveals a clear misapprehension

of the nature of the case against Petitioner. It strains

credulity to find the error harmless under these circum-

stances where the numerous precluded questions” to the

critical witness were so fundamental and where the evi-

dence against Petitioner was not so overwhelming, and in

fact was weak.

In this case, Petitioner’s version of the events just prior

to his arrest was highly plausible and his testimony was

clear and consistent. Simply stated, Petitioner was

present at the bowling alley premises, there intending to

have a drink while awaiting a ride home. There was

nothing inherently unusual about having a drink on these

bowling alley ~-emises, certainly during early to mid-

evening hours. Petitioner was sidetracked from his drink,

however, when he heard a car start up and turned to see

what appeared to be its driver slumped over in his seat.

Petitioner merely walked over to the car to discern the

problem, if any, and was, at that time, confronted by a

man dressed in blue jeans and a sweater pointing a gun

directly at him. To this extent, the evidence is uncontra-

dicted as there is no question but that Officer Culen, the

10

man who confronted Petitioner, was dressed in plain clothes

and had his gun drawn.

'wo other individuals, who happened to be in the park-

ing lot at that particular time, corroborated Petitioners

testimony, explaining at trial under oath how they hap-

pened to see a man standing next to a vehicle and a second

man, standing not too far away, pointing a gun at the first

man. This of course as to the first man, would be Peti-

tioner, and as to the second man, would be Officer Culen in

plain clothes. What is most interesting about the testi-

mony of these two additional individuals, William Congle-

ton and Linda McCormick, is that they had no connection

to Petitioner whatsoever prior to his arrest and their

testimony at trial was unimpeached.

The most salient aspect to these two corroborative wit-

nesses is the fact that they observed the third man exit

the car which Petitioner had been standing next to, and

further observed this third individual run in the opposite

direction of the first two men. Thus, the testimony of

Petitioner, which standing by itself presents strong evi-

dence of innocence, was corroborated in significant respects

by the testimony of two disinterested and unimpeached

witnesses.

A third and final witness, a companion of Petitioner,

Karen Garcia, testified that she had dropped Petitioner

at the bowling alley so that he could have something to

drink while she stopped at a nearby store to shop. As

such, all aspects of Petitioner’s testimony were corrobor-

ated. Certainly, the Appellate Court must have mis-

apprehended the fair import of the testimony of these

witnesses in order to have found the trial error ‘‘harm-

less.’’? At the very least, this defense testimony plainly

raises sufficient doubt to obviate any finding of harmless-

11

ness in connection with the foreclosure of cross-examina-

tion.”

It is against this backdrop of a strong case presented

by the defense that the undue restriction of the cross-

examination of Officer Culen must be viewed. It bears

repeating that Culen was no mere incidental or buttressing

witness. Rather, Culen was the chief witness for the State,

upon whose testimony the entire case against Petitioner

hinged. Culen was the sole occurrence witness against

Petitioner testifying for the State who actually identified

Petitioner as the perpetrator of the alleged offenses. With

respect to the balance of the State’s case, Petitioner was

merely demonstrated to be present at the scene.

Under circumstances such as these, where a critical

State witness is concerned, there are no known cases which

have upheld the complete denial of access into several

areas otherwise properly the subject of cross-examination.®

Thus, while it appears from the Panel decision that the

Appellate Court at least’articulated the status of Culen as

‘‘the State’s chief witness,’’ (Slip Op. p. 1, App. p. 2), it

2In the argument which follows under Subsection C, infra, Peti-

tioner further contends that such testimony, even when viewed in a

light most favorable to the State, casts a reasonable doubt on the

guilt of Petitioner as to both charges, warranting reversal.

8’ There are, on the other hand, numerous cases in which various

courts, having been confronted with improper limitations on cross-

examination of not near the magnitude as contained in this case,

could not consider the error harmless and, in fact, reversed. See, e.g.,

Smuth v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956

(1968) ; Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d

514 (1966); Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39

L.Ed.2d 347 (1974); Alford v. United States, 282 U.S. 687, 51

S.Ct. 218, 75 L.Ed. 624 (1931); United States v. Jackson, 482

F.2d 1167 (10 Cir.), cert. den. 414 U.S. 1159, 94 S.Ct. 918, 39

L..Ed.2d 111 (1973).

‘ol

12

remains in the context of this case that the Panel paid no

more than lip service to that status.

What greatly exacerbates the far less than overwhelming

nature of the case against Petitioner and the fact that it

was the crucial witness involved in the foreclosure of cross-

examination is the nature of the questions which were in

fact foreclosed by the trial co. ct. Witness for example

the fact that Petitioner was precluded on not less than five

occasions from inquiring of Culen as to the number of

people who exited the subject vehicle. As there was a

genuine issue of fact as to whether a third individual,

other than Petitioner, actually exited the subject vehicle,

this inquiry was critical. Unbelievably, in this context,

the trial court found such inquiry to be ‘‘collateral.’’

What is more, Petitioner was precluded of inquiring of

Culen as to the volume of pedestrian traffic during these

events. Thus, the jury was, in turn, precluded from find-

ing out whether it was reasonable under the circumstances

for Culen to have missed seeing the third man. An addi-

tional exacerbating circumstance is the fact that the trial

court on at least five occasions refused to allow Petitioner

to inquire of Culen as to the height of the man in the lot

that he first observed as compared with the height of

Petitioner. The trial court found this again to be

‘‘collateral’’ and further stated ‘‘the jury can see.’

* This comment by ie trial court reflects a gross misunderstanding

of what it was Petitioner attempted to accomplish through cross-

examination of Culen. It was Petitioner’s efforts to demonstrate a

variance between the description Culen provided of the individual

he initially observed in the lot that evening and the actual descrip-

tion of Petitioner. Petitioner was not simply trying to obtain Culen’s

on-the-stand assessment of his current description although this, too,

would be permissible to test Culen’s powers of discernment. By the

commentary “the jury can see,” the trial court completely foreclosed

a critical area of inquiry to Petitioner. More importantly, the trial

court may well have misguided the jury away from Petitioner’s

theory of the defense, thereby seriously prejudicing Petitioner.

r

13

While the Panel admits that this is ‘error, it incredibly

stands steadfast to the characterization that it is harmless.

Highlighting the error in the court’s undue limitations

on cross-examination and the concomitant failure of the

Panel to recognize this as prejudicial is the fact that the

particular officer in question, Culen, was an officer, at the

time of the arrest of Petitioner, of comparatively little

experience. Yet the trial court never allowed Petitioner,

despite his persistent efforts, to inquire of Culen the extent

to which he prepared as a witness, the extent of his em-

ployment background, his experience on the force, his

success in other stakeouts, or the extent to which he re-

viewed his own report or discussed the matter with the

State’s Attorney. Since it was Culen’s observations which

were critical to Petitioner’s conviction or acquittal, not

only were these questions traditionally legitimate but, in.

the context of this particular case, central to Petitioner’s

theory of defense. Precluding the same in effect denied

Petitioner effective cross-examination of Culen and can-

not possibly be deemed harmless.

Moreover, the trial court improperly precluded Petition-

er from exploring Culen’s general courtroom experience

or lack thereof, the validity of his present memory or lack

thereof, and whether Culen recently used police reports or

conversations with the State’s Attorney to refresh his

memory. As the Panel conceded, the instant record plain-

ly bespeaks the error in foreclosing inquiry into these

traditionally legitimate areas of inquiry:

‘BY MR. GENSON: Well, you—prior to testify-

ing today—you have testified in courtrooms before to-

day, have you not?

MR. BART: Objection.

THE COURT: Sustained.

14

MR. GENSON: Your Honor, this is regarding the

experience of the police officer in regard to testifying.

THE COURT: I ruled on the objection. Sustained.

MR. GENSON: You have, prior to testifying to-

day, read reports on this matter, had you not?

MR. BART: Objection.

THE COURT: Sustained.’’ (R. 413-414)

The Court and prosecutor continued in the same vein to

prevent Petitioner from questioning Culen on these critical

areas:

‘“‘MR. GENSON: And prior to having the con-

versations—with regard to the conversations with the

State’s Attorney, you were furnished certain reports

and preliminary hearings to read, were you not?

A. The reports I was furnished to read were the

reports written by myself, sir.

Q. That’s what |’m talking about. And you have

read them; is that correct?

MR. BART: Objection.

THE COURT: The objection is sustained. Are you

trying to impeach the witness? I don’t understand

what it is you are trying to do at this point.

MR. GENSON: In regard to the preparation of the

witnesses. This is a long time ago and with regards

to—it is a proper inquiry and has always been with

regard to his preparation before testifying.

THE COURT: Objection is sustained. The jury

is instructed to disregard the statement made by

counsel.

MR. GENSON: In any event, though, how often

or how many times did you prepare or talk to the

State’s Attorney prior to the testimony in this case?

MR. BART: Objection.

THE COURT: Sustained.’’ (R. 415)

15

The Panel, as noted above, correctly ruled that ‘‘the

practice of inquiring on cross-examination in the criminal

case, as to whether, and under what circumstances and

with whom a witness has discussed the facts of the case is a

standard question. Such questions are generally approved.’’

(See Slip Op., at p. 10, App. p. 10)° However, the Panel

most improperly concluded ‘‘that the exclusion of this tes-

timony’’ could not have contributed to the conviction of

Petitioner. In reaching this conclusion, the Panel engaged

in just the sort of improper speculation as to what in fact

Culen’s testimony may have been that was absolutely

proscribed by the Seventh Circuit in the very recent deci-

sion of Allison v. Gray, 603 F.2d 633 (1979). The Allison

Court put to rest once and for all the impermissible specu-

lation into which the Panel delved in its opinion.

In Allison v. State of Wisconsin, 214 N.W.2d 437, (1974),

the Supreme Court of Wisconsin held it to be harmless

error where the defendant was precluded from presenting

alibi witnesses because of his failure to comply with the

Wisconsin notice-of-alibi statute. The United States Dis-

trict Court for the Eastern District of Wisconsin agreed

and denied a writ of habeas corpus, but on appeal the

Seventh Circuit reversed (Allison v. Gray, supra), in lan-

guage which directly rejects the position taken by the

Appellate Court in its Panel opinion as follows:

‘‘As Allison points out in his brief, if his alibi wit-

ness had been the keeper of records at the Wisconsin

State prison who should have testified that Allison

was released from prison the day after the crime oc-

curred, the exclusion of such evidence could hardly

be deemed harmless, despite the evidence against Alli-

son. Since there is nothing in the record to show that

5 In fact, this is the first reported case known to Petitioner where-

in a trial court ‘actually foreclosed inquiry on cross-examination of

the State’s principal witness on these areas.

16

Allison’s alibi was not equally compelling, the State

has not met its burden under Chapman of proving that

the erroneous exclusion of the alibi is harmless beyond

a reasonable doubt.’’ (603 F.2d at 635)

Accordingly, Allison effectively destroys the reasoning

advanced by the Panel opinion in the case at bar. Quite

simply, the court cannot say that the exclusion of the

Culen testimony could not have contributed to the convic-

tion of Petitioner where the Court, or for that matter any-

one else, did not know what the testimony would have

been. Thus, for example, if Culen had responded that the

State’s Attorney and he had discussed the matter on

numerous occasions, and, as a result thereof, he decided

to change his testimony from seeing someone other than

Petitioner behind the wheel of the Monte Carlo originally,

the exclusion of such evidence could hardly be deemed

harmless, despite the evidence against Petitioner.

Likewise, the Allison decision has significant ramifica-

tions with reference to the trial court’s obvious interfer-

ence with Petitioner’s right to question Culen concerning

the identification of the individual near the Monte Carlo.

The following colloquy illustrates the point:

‘‘MR. GENSON: How tall was the man you saw

get out of the car, sir?

A. (Culen): From the distance | was, I could

tell he wasn’t overwhelmingly large, because of the

amount of his head sticking up from above the vehicles.

Q. Could you estimate how tall he was?

A. I would 4efinitely say he wasn’t any taller than

myself.

Q. How tall are you?

A. Five foot nine inches tall.

17

Q. Well, was the man then five foot nine inches

tall?

MR. BART: Objection.

THE COURT: Sustained.

MR. GENSON: At the preliminary hearing, page

15, did you say that the person was between five foot

six inches tall and five foot ten inches tall?

MR. BART: Objection.

THE COURT: Sustained.

MR. GENSON: At the preliminary hearing, you

did not know, within four inches, how tall the man

was, did you?

MR. BART: Objection.

THE COURT: That’s sustained. If you ask

another question, I’m going to hold you in contempt of

court, for I have sustained an objection.

MR. GENSON: I will make an offer of proof again,

Judge.

THE COURT: The objection is sustained. The

jury is instructed to disregard it. It’s an attempt by

counsel to impeach on collateral matters and that’s

improper. Proceed.’’ (R. 489-491)

Assuming for the sake of argument that the prejudicial

impact of this forclosure and the concomitant uncalled for

remarks of the trial court are not self-evident,® then at

6 There is perhaps no more telling illustration of the prejudicial

effect of the trial court’s actions than here, where the trial court

went so far as to threaten defense counsel with contempt if he per-

sisted in the admittedly proper questioning of the chief State eye-

witness about the physical characteristics of the perpetrator of the

offense where the theory of the defense was that a third individual,

seen by two bystanders, was the actual perpetrator.

18

least the Panel should not have been free to speculate that

the exclusion of what Culen may have testified to was

harmless. If for example, Culen was permitted to testify

as he should have been and did testify that the man he saw

get out of the Monte Carlo was six feet tall, or even five

foot ten inches tall and two hundred pounds, certainly the

exclusion of such evidence could hardly be deemed harm-

less, again despite the evidence against Petitioner.

Allison is again instructive with regard to the Court’s

improper restriction of the scope of cross-examination con-

cerning the license number checks on other vehicles in the

parking lot. (R. 422) Such inquiry was critical to the

defense as there weie at least three vehicles involved at

the scene of Petitioner’s arrest, supporting Petitioner’s

theory that a second individual other than Petitioner was

the culpable party. “As Petitioner was precluded from in-

quiring of Culen to the results of any license checks

which may have been conducted, the Panel erred in assum-

ing that the results of such checks would have been fruit-

less. In this regard, it is important to emphasize that

the burden is not on the defense to prove—or offer to

prove—the anticipated testimony; rather, the burden rests

with the State to demonstrate beyond a reasonable doubt

its harmlessness. Absolutely no such demonstration has

been made in this case and the Panel is left to speculate

erroneously that the preclusion was ‘‘harmless.’’

While the record is replete with instances in which the

scope of cross-examination was improperly restricted, one

final Allison-type illustration bears specific mention. At

trial, Culen was questioned about the location of the gun

he drew upon Petitioner at their initial confrontation. This

testimony differs substantially from Culen’s earlier state-

ments and was at variance with the testimony of two eye-

19

witnesses presented by the defense. (R. 499-500) This line

of inquiry was essential to the substantive issue of Peti-

tioner’s state of mind, causing him to flee. Depending

on the precise circumstances under which Culen drew his

gun, Petitioner’s flight from the scene may have appeared

quite reasonable. In this instance, on a dark winter even-

ing, an individnal dressed in jeans drew a gun and pointed

it at Petitioner. While the ordinary reaction of some

would be to freeze in fear, others may instinctively run.

Yet the trial court erroneously foreclosed Petitioner from

this line of inquiry. It is simply not proper under the

case law to assume the exclusion of Culen’s testimony was

harmless where there was no way of knowing what he

would have said; and this particularly in light of the

fact that the State had the burden of showing harmless-

ness beyond a reasonable doubt.

Finally, and by way of a summary, Petitioner invites

the attention of the Court to the decision in Smith v. State

of Illinois, 390 U.S. 129, 89 S.Ct. 748, 19 L.Ed.2d 956

(1968). The Smith decision is something of a compendium

of the several factors important to a just resolution of the

instant issue. First Smith makes clear that the essence

of a fair trial is that reasonably wide latitude be given to a

cross-examiner, even where he is unable to state to the

court what facts a reasonable cross-examination might

develop. Thus, in this case, foreclosure of the numerous

areas of traditionally legitimate inquiry alone warrants

reversal. Further, Smith defines for reviewing courts just

when prejudice emerges in the denial of cross-examination.

In Smith, the Court found prejudice to ensue from the

denial to the cross-examiner of an opportunity to place

the witness in his proper setting and put the witness’

credibility to a test, without which no jury could fairly

appraise the witness. Here, unquestionably, Petitioner

20

was precluded from just such opportunity. Additionally,

Smith is noteworthy for the way in which it highlights

the care courts have taken in protecting so fundamental a

constitutional right as cross-examination. In Smith, the

bare fact that the cross-examiner was precluded from ask-

ing the State informer, ‘‘ Where do you live?’’ was deemed

prejudicial, warranting reversal. Here, the length and

breadth of foreclosure of cross-examination dwarfs that

which was condemned in Smith. Furthermore, Smith, like

this case, involved the testimony of a ‘‘principal’’ prose-

cution witness. Finally, Smith reiterates the very funda-

mental obligation imposed on a trial court, apparently

overlooked in this case, to see that a defendant is given

a fair trial, and not to protect a witness from being dis-

credited on cross-examination as it seemed the trial court

attempted to do here.’

7 For one of the many examples, see the record at page 422, where-

in the trial court, after sustaining an objection to a legitimate question

propounded by a defense counsel on cross-examination, stated : “The

issue here is whether or not the defendant committed the offense he's

charged with. This officer is not on trial.’’ Evidently, the trial court

conceived of his chief function as-being the protector of the dignity

of the officer-witness, rather than insuring that the Petitioner was

afforded a fair trial.

Of additional interest in this context is the fact that the prosecu-

tion never provided any reason for its consistent pattern of other-

wise improper objections. Whatever the reasons, the result was the

undue interference with the effective cross-examination of the State’s

key witness.

21

CONCLUSION

For all the foregoing reasons, the Petition for Writ of

Certiorari should be allowed to review the instant decision

of the Appellate Court of Illinois for the Second District.

Respectfully submitted,

Epwarp M. Grenson

JerrrEy B. STEINBACK

Sam ADAM

Attorneys for Petitioner

134 North LaSalle #300

Chicago, Illinois 60602

(312) 726-9015

APPENDIX

APPENDIX A

No. 79-501

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

v.

GERALD H. SCARPELLI,

Defendant-Appellant.

Appeal from the Circuit Court for the 18th Judicial Circuit,

DuPage County, Illinois.

Filed March 28, 1980

MR. JUSTICE VAN DEUSEN delivered the opinion

of the court:

The defendant was found guilty by a jury of the of-

fenses of theft in excess of $150 and possession of burglary

tools. For offense of theft in excess of $150 he was sen-

tenced to the Illinois Department of Corrections for a term

of 5 years and fined $10,000; for the offense of possession

of burglarly 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 con-

victions.

App. 2

At trial, conflicting versions were presented regarding

the events that transpired on the evening of February 8,

1977. Officer Culen, a Willowbres! 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 10p.m. During these particular hours bowl-

ing 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, ob-

served a vehicle enter the lot and drive slowly up and

down several aisles or rows, past a number of empty park-

ing 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 re-

turned 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 Culeu radioed for as-

sistance 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

App. 3

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 ve-

hicle 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 appre-

hended. 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, testi-

App. 4

fied that a subsequent search of the 1975 Monte Carlo re-

vealed an open black bag with a small flashlight that was

still on, a pair of vice grips, a lock pulling device, a screw-

driver, 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 bowl-

ing 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 con-

tacted 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 near-

by 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 ap-

parently 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 ve-

hicle pointing a gun at him. Continuing, defendant testi-

App. 5

fied 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 of ‘‘An Act to

revise the law in relation to change of venue’’ (Ill. Rev.

Stat. 1973, ch. 146, par. 1) 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

App. 6

automatic motion for substitution of judges provided for

in section 114-5(a) of the Code of Criminal Procedure

(Ill. Rev. Stat. 1975, ch. 33, 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 substitu-

tion 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. 33, 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 substitu-

tion of judges. (People ex rel. Walker v. Pate (1973), 53

Ill. 2d 435, 506-507; People v. Davis (1977), 54 Ill. App. 3d

517, 524; In re Stiff (1975), 32 Ill. App. 3d 971, 974.) 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 cause (U.S. Const., amend. IV; IIl. Const.

1970, art. 1 §6) and the state statutory standard of rea-

sonable grounds (Ill. Rev. Stat. 1977, ch. 38, par. 107-2(c))

are synonymous. (People v. Wright (1974), 56 Ill. 2d 523,

528; People v. Lawson (1976), 36 Ill. App. 3d 767, 770.)

Both parties agree that reasonable grounds or probable

cause jutisfying a warrantless arrest exist where the facts

and circumstances within the arresting officer’s knowledge

App. 7

are sufficient to justify a man of reasonable caution in be-

lieving that a person is committing or has committed an

offense. People v. Wright; People v. Lower (1955), 55

Ill. App. 3d 1014, 1019, cert. denied (1973), 439 U.S. 358,

58 L. Ed. 2d 166, 99 S. Ct. 174; People v. Denwiddle (1977),

50 Ill. App. 3d 134, 189; Ill. Rev. Stat. 1977, ch. 38, par.

107-2(¢).

Since police officers are subject to a variety of suspicious

events and circumstances during the course of their duties,

it is not possible to state a general rule regarding what

information satisfies the constitutional and statutory prob-

able cause requirements in the area of warrantless arrest.

Bach case is governed by its own particular facts and

circumstances. (People v. Clay (1973), 55 Ill. 2d 501, 504-

505; People v. Doss (1970), 44 Ill. 2d 541, 546; People v.

McCrimmon (1967), 37 Ill. 2d 40, 43, cert. denied (1967),

389 U.S. 863, 19 L. Ed. 2d 131, 88 S. Ct. 120.) Some addi-

tional guidelines, however, have been established. The facts

upon which probable cause to arrest is based need not be

sufficient to convict (People v. Williams (1978), 62 Ill. App.

3d 874, 877), but something more than a hunch or mere

suspicion is required (People v. McGowan (1977), 69 IIl.

2d 73, 77-78, cert. denied (1978), 435 U.S. 975, 56 L. Ed. 2d

69, 93 S. Ct. 1624; People v. McCrimmon, at 43).

Defendant contends that he was under arrest the moment

the officer told him to halt or freeze, and that at this

particular time the officer did not have reasonable grounds

or probable cause to arrest him. His position regarding

the moment of arrest is erroneous. A police officer’s iden-

tifying himself as such and ordering the subject to stop

does not necessarily constitute an arrest. (People v. Beall

(1976), 42 Ill. App. 3d 452, 456.) In fact, an arrest is

made by an actual restraint of the person or by that per-

son’s submission to police custody. (People v. Ruffolo

~

App. 8

(1978), 64 Ill. App. 3d 151, 156; People v. Guhlstorf (1978),

56 Ill. App. 3d 381, 383; People v. Lawson, at 771; Ill.

Rev. Stat. 1977, ch. 38, par. 107-5(a).) Since the defendant

fled upon being confronted by the officer, he was not under

actual restraint of his person nor did he submit to custody

at that time. The defendant’s arrest occurred when he

was captured by the police following a chase which im-

mediately ensued.

Section 107-14 of the Code of Criminal Procedure (Ill.

Rev. Stat. 1977, ch. 38, par. 107-14) provides that a police

officer, after having identified himself as such, may stop

any person for purposes of investigating criminal behavior

‘«* * * when the officer reasonably infers from the circum-

stances * * *’’ that criminality is afoot. The requirements

for making an investigatory stop of a subject under the

above statute are less than those required for making an

arrest. (People v. McGowan, at 77-78; People v. Kennedy

(1978), 66 ill. App. 3d 267, 272; People v. Garza (1976), 44

lll. App. 3d 30, 33; People v. Hellemeyer (1975), 28 Ill.

App. 3d 491, 495.) The officer’s decision to investigate

possible criminal behavior must be based on specific and

articulable facts which, when combined with rational infer-

ences from those facts, reasonably warrant the investiga-

tive intrusion. People v. Lee (1979), 69 Ill. App. 3d 756,

758; People v. Gunderson (1978), 66 Ill. App. 3d 516, 522;

People v. Montgomery (1977), 53 Ill. App. 3d 298, 301-302;

People v. Hellemeyer, at 495.

In reaching its decision, the trial court found that a

combination of all of the facts and circumstances known

to the officer at the time of the arrest supported a reason

to believe on his part that the defendant was committing a

crime on the evening in question. We agree with this

finding.

App. 9

The trial court pointed out that car thefts had previ-

ously occurred in the bowling alley parking lot and the in-

vestigating officer was well aware of this pattern of crime

and as a matter of fact was on a stake out. The bowling

leagues were in mid-progress on the night of the incident.

There was very little activity in the parking lot at the time;

the vehicle which entered the parking lot drove up and

down the various rows of cars, passing a number of vacant

parking spaces in each row; the officer observed the sub-

ject carrying a black bag, which did not appear to be a

bowling bag, against his stomach; the officer saw the

subject enter a vehicle which was parked some distance

from the subject’s own car; the officer observed exhaust

fumes coming from the car which the subject had entered ;

and he saw the car start to move, at which time he

blocked the same vehicle with his own car. At that time

he exited his car, with his badge in one hand and his pistoi

in the other, and called out ‘‘ Police officer, freeze or halt.’’

In light of the facts and circumstances of this case as

outlined and discussed above, the officer’s decision to stop

the vehicle in order to maintain the status quo while he

investigated for criminal activity was based on more than

a mere hunch, and there were sufficient articulable facts

from which he could reasonably infer from the circum-

stances that criminality was afoot. If there be any ques-

tion that the officer did not have probable cause to arrest

defendant at the time of the initial stop, the added factor

of the defendant’s flight from the police officer, who had

identified himself as such, is sufficient to justify a belief by

a person of reasonable caution that the defendant was com-

mitting or had committed an offense. (People v. Addison

(1977), 56 Ill. App. 3d 92, 98; People v. Beall, at 457;

People v. Cribbs (1972), 8 Ill. App. 3d 750, 753; People v.

Staples (1971), 1 Ill. App. 3d 922, 926.) The requisite de-

App. 10

gree of probable cause to arrest did exist under the facts

and circumstances of this case, and the motion to quash

and suppress was properly denied.

Another ground upon which defendant seeks reversal

is that he was substantially prejudiced and deprived of

a fair trial by the trial court’s restriction of his cross-

examination of the investigating officer in areas of in-

quiry which the defendant labels as traditionally legiti-

mate. Generally, defendant’s main contentions here are

that the trial court sustained objections to questions in-

tended to test the credibility of Officer Culen, prevented

the defendant from exploring whether the officer had uti-

lized police reports or had had conversations with the

State’s Attorney to refresh his memory, and restricted his

inquiry into the credibility of the officer’s identification of

the defendant.

We have carefully reviewed all of these areas of pro-

posed inquiry. More specifically, with reference to the

alleged prior inconsistent statements, the judge’s ruling

were correct, since either no inconsistency was shown or

the question dealt with an immaterial matter. However,

even if the rulings were erroneous, the variance was so

slight that the exclusion constituted no more than harm-

less error.

The trial court also prevented defendant from examin-

ing the officer regarding whether the officer had utilized

police reports or had had conversation with the State’s

Attorney to refresh his memory. The practice of inquiring

on cross-examination in a criminal case, as to whether,

and under what circumstances and with whom a witness

has discussed the facts of the case is a standard question.

Such questions are generally approved. (See People v.

Davis (1970), 126 Ill. App. 2d 114, 118; West Chicago

Street R.R. Co. v. Byrne (1899), 85 Ill. App. 488; Annot,

App. 11

35 A.L.R. 2d 1045 (1954).) Even if the trial court erred

in not allowing the cross-examination here, the error is

harmless unless a reasonable doubt exists that the restric-

tion of the cross-examination of Officer Culen could have

contributed to the defendant’s conviction. (People v. Reh-

bein (1977), 54 Ill. App. 3d 93, 100, aff’d (1978), 74 Ill. 2d

435; People v. Lewis (1974), 18 Ill. App. 3d 281, 285.)

Since we conclude that no reasonable doubt exists that

the exclusion of this testimony could have contributed to

the conviction of the defendant, any error resulting from

its exclusion was harmless.

Defendant also contends that he was precluded from

legitimate inquiry into the precise nature of Officer Culen’s

recollection regarding the height of the individual he saw

exit the first vehicle and enter the Monte Carlo. Admit-

tedly, defendant has a right to question an identifying

witness regarding any matter which goes to discredit,

modify or explain his testimony during direct examina-

tion. (People v. Morris (1964), 30 Ill. 2d 406, 409; People

v. Lewis, at 284.) Since the nature and credibility of a

witness’s identification is a legitimate area for cross-ex-

amination and since such examination should be accorded

a wide latitude (People v. Lewis), it would appear that

the trial court erred here by unduly restricting defen-

dant’s right to cross-examine Officer Culen regarding the

officer’s identification of the alleged perpetrator of the

crime. However, again in the totality of the circumstances

shown by the evidence in this case, such error could not

possibly be of such magnitude as to require reversal. The

alleged inconsistent statement of the officer which was not

admitted dealt with a slight discrepancy in the height of

the alleged offender. It should also be kept in mind that

this is not a case where the defendant was apprehended

some time later on the basis of a description based on

clothing, height and size. The investigating officer testified

App. 12

that he saw the individual walk from the first car to the

Monte Carlo, enter the Monte Carlo on the driver’s side,

and that he actually watched this individual exit the car

and flee upon confrontation with the officer. The officer

was within 20 feet of him at all times during the flight,

and he was at all times within sight and within 20 feet

of the officer until apprehended. Again, in light of the

totality of the circumstances in this case, we determine

that no reasonable doubt exists that the restriction of

the defendant’s cross-examination in this area could have

influenced the jury’s determination of guilt. Hence, the

error was harmless.

We also have considered the argument of defendant

that it was the total or cumulative effect of the restrictions

of the trial judge in these areas of cross-examination which

denied him his fair trial. The law in Lllinois is that even

where the trial judge has committed error, such error will

not require reversal unless the defendant has been preju-

diced or the outcome of the trial unduly influenced. Appel-

late court review is intended to seek out prejudicial error

and is not intended to determine whether the record is

totally devoid of error. (People v. Mathis (1977), 55 Il.

App. 3d 680, 688.) Although the trial court here may have

committed error on a few occasions in restricting defen-

dant’s cross-examination of the investigating officer, in

the context of the entire trial we are satisfied that such

foreclosure did not deprive defendant of his constitutional

right to confront the witnesses against him or deny him

substantial justice or a fair and impartial trial.

Finally, defendant contends that the state failed to

prove beyond a reasonable doubt all of the essential ele-

ments of the two offenses with which he was charged.

App. 13

First, he argues that the evidence produced at the trial

by the State failed to overcome evidence offered by the

defendant which presented an innocent explanation for

his presence and activities on the evening in question.

Although defendant presented an alternate and contra-

dictory version of the evening’s events, it is well estab-

lished that the testimony of a single witness, provided

that the witness is credible and observed the accused

under conditions which would allow a positive identifica-

tion to be made, is sufficient to support a conviction, not-

withstanding the fact that his testimony is contradicted

by that of the accused. People v. Stringer (1972), 52 Il.

2d 564, 569; People v. Gates (1977), 47 Ill. App. 3d 109,

114.

In contrast to the testimony presented by the investi-

gating officer, defendant’s testimony appears highly im-

probable and may have been rejected by the jury as un-

worthy of belief. A defendant who explains his presence

at the scene of a crime must articulate a reasonable or

believable story or be judged by its unreasonableness or

improbabilities. (People v. Davis (1977), 54 Ill. App. 3d

517, 524; People v. Harter (1967), 86 Ill. App. 2d 461,

471; People v. Booher (1966), 73 Ill. App. 2d 226, 229.) In

order to give credence to defendant’s testimony, the jury

would necessarily have been forced to conclude that the

officer deliberately lied on the stand in order to secure a

conviction. Since there is no evidence in the record to

indicate that the officer or any other State’s witness had

acted out of bad motives, the jury apparently chose to

give little credence, if any, to defendant’s testimony. The

jury may have also determined that the testimony of de-

fense witnesses, Congleton and McCormick, regarding the

presence of a third man on the evening in question, did

not contradict or seriously impugn the credibility of the

App. 14

investigating officer. It is clear in Illinois that it is the

responsibility of the trier of fact

‘** * * to determine the credibility of the witnesses,

the weight to be given their testimony and the infer-

ences to be drawn from the evidence. [ Citation. ] Where

the evidence is merely conflicting a court of review

will not substitute its judgment for that of the trier

of fact. [Citation.]’’ People v. Akis (1976), 63 Ill. 2d

296, 298-299.

Nor do we choose to do so in this case.

Next the defendant argues that the State did not prove

the essential element of ownership of the 1975 Monte Carlo

beyond a reasonable doubt and thus failed to prove a

material part of its case under the Illinois theft statute.

Ill. Rev. Stat. 1975, ch. 38, par. 16-1(a) (1).

There is no merit in this contention. In this case, there

is ample competent evidence from which the jury could

have found that the defendant was caught in the act of

stealing an automobile and that the owner of the vehicle

appeared at the scene and recognized his car, which was

in the custody of the police and remained impounded until

the owner retrieved it. The inconsistencies in the testi-

mony of the police officers and Mr. Panoch regarding the

color of the car do not constitute a sufficient basis for dis-

turbing the finding of the jury.

We find that the essential elements of the offenses with

which the defendant was charged were proved beyond a

reasonable doubt.

The judgment of the circuit court of DuPage County is

accordingly affirmed.

AFFIRMED.

SEIDENFELD, P.J. and WOODWARD, J., concur.

App. 15

APPENDIX B

53468

ILLINOIS SUPREME COURT

CuetL L. Woops, Clerk

Supreme Court Building

Springfield, Ill. 62706

(217) 782-2035

September 29, 1980

Mr. Jeffrey B. Steinback

Attorney at Law

134 N. LaSalle St., S#300

| Chicago, IL 60602

No. 53468—People State of Illinois, respondent, vs. Gerald

H. Scarpelli, petitioner. Leave to appeal, Ap-

pellate Court, Second District.

The Supreme Court today denied the petition for leave

to appeal in the above entitled cause.

Very truly yours,

/s/ Clell L. Woods

Clerk of the Supreme Court