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People v. Cauthen

OPINION FILED AUGUST 5, 1977.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JERRY CAUTHEN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JOHN NORDBERG, Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Following a jury trial, defendant was convicted of the business offense of commercial bribery in violation of section 29A-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 29A-1) and was fined $2,000. He contends the trial court erred when (1) it failed to require the State to produce two electronic tape recordings; (2) denied his motion for a bill of particulars; (3) allowed the State to amend the complaint at the close of its case; and (4) adjudged him guilty beyond a reasonable doubt.

Defendant was charged in a criminal misdemeanor complaint filed by Michael Wells with committing the offense of offering a bribe in that he:

"conferred a benefit (United States currency) upon Michael Wells (an employee of Allstate Insurance Company — Property Adjustor) without the consent of Allstate Insurance Company (an Illinois corporation) with the intent to influence his conduct in relation to his employer's business affairs, to wit: inflate the amount of fire loss for a building located at 8715 S. Houston, Chicago, Illinois, which is insured by Allstate Insurance Co., in violation of Chapter 38, Section 29A-1."

Defendant filed a pretrial motion to compel disclosure of all exculpatory materials, any confession by defendant, all electronic surveillance information, and to require the State to answer a bill of particulars giving the time, date, location, manner and method of the offense. Following a hearing on the motion, the trial court ordered the State to produce all exculpatory materials, confessions and a list of witnesses, but denied defendant's motion for a bill of particulars and for discovery of any electronic surveillance.

Defendant then filed a second pretrial motion to compel disclosure of the electronic surveillance material. The record on appeal does not contain a ruling by the trial court on this motion. Thereafter, defendant filed a motion to suppress the use of the tapes at trial on the grounds that the seizure and nondisclosure of the tapes deprived him of his rights under the Federal and State constitutions. The trial court denied this motion.

After the jury was selected, the assistant State's attorney read the complaint and explained that the evidence would show defendant offered a bribe intending to influence Wells to inflate the amount of the fire loss for the building. In his opening statement defense counsel stated that defendant gratuitously offered Wells $300 after he had secured the repair job from Allstate, and, therefore, defendant did not intend to influence Wells to inflate the job's cost estimate.

The following pertinent evidence was adduced at trial.

Michael Wells for the State

He is a claim adjuster for Allstate Insurance Company. He was assigned to adjust a fire loss at 8715 South Houston in Chicago. Defendant, a contractor was originally contacted by Ron Heflin, an Allstate adjuster, to bid on the repair job for the building. Wells first met defendant on February 3, 1975, at the damaged building and they prepared specifications and estimates of the work to be done.

On February 13, 1975, he went to defendant's office at 3815 West Division Street. Defendant brought his revised written estimate into a room and placed it on the corner of a desk. Defendant said "I want you to know that this is in it for you," wrote 500 on a piece of paper, and drew an arrow pointing to the estimate. When Wells replied that he did not do business that way, defendant discarded the paper. At this time Allstate was not bound to do business with defendant.

Prior to his next meeting with defendant on February 26, 1975, he met with his supervisors and an assistant state's attorney. He consented to having a tape recorder attached to his body. At the February 26 meeting, defendant asked Wells if he was interested in what they had talked about before. When Wells said he was not sure what that was, defendant wrote $800 on a pad of paper, and asked "is eight pieces okay?" Wells asked what he would have to do for the money and defendant said "zero." Defendant specifically told him that he would not be required to "jack up the estimate." Defendant later stated that he wanted Wells to make sure the Peculises placed the repair job with defendant and that he wanted the repair price to include the depreciation previously deducted. Defendant agreed to advance part of the money to Wells and they left defendant's office to cash a check. Defendant again stated that Wells should sell the Peculises on having defendant perform the repairs. Throughout their conversations that day, defendant advised Wells not to let the money upset him because this was a common practice and defendant often engaged in it. When the bank would not honor the check, they returned to defendant's office and parted.

On February 28, 1975, he met defendant at the Peculis' residence. Wells was again equipped with a tape recorder. After explaining the loss estimate and depreciation deduction and telling them that defendant was willing to do the repairs needed, he met with defendant on the second floor. He asked defendant what would happen if Allstate did not pay his estimated price. Defendant replied that Wells would still receive something. He also asked what would happen if he could not give defendant the job. Defendant replied that they would not have any sort of arrangement in that event. Defendant then gave him $300 and said the balance would be forthcoming when the job was completed. Defendant added that he could net Wells "ten big ones a year" in return for 10 large repair jobs and would also pay for additional estimating job referrals.

Wells financial condition throughout this period was stable. When he and defendant had lunch together on February 13, 1975, he paid his own check. He identified Allstate's standard defalcation letter ...


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