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People v. Nickson





APPEAL from the Circuit Court of Cook County; the Hon. KENNETH R. WENDT, Judge, presiding.


Rehearing denied April 12, 1978.

Henry Nickson (defendant), was indicted for theft (Ill. Rev. Stat. 1973, ch. 38, par. 16-1(b)), conspiracy (Ill. Rev. Stat. 1973, ch. 38, par. 8-2) and official misconduct (Ill. Rev. Stat. 1973, ch. 38, par. 33-3). After a lengthy bench trial, he was found guilty of conspiracy and official misconduct and sentenced to probation for two years.

After separate bench trials, co-defendant Malcolm Stewart was found guilty of official misconduct and co-defendant Charles Shelton was convicted of official misconduct and theft. These two parties and defendant originally joined in appeals to this court. The appeals were consolidated for disposition. However, the appeals of Stewart and Shelton were disposed of by this court pursuant to Anders v. California (1967), 386 U.S. 738, 18 L.Ed.2d 493, 87 S.Ct. 1396.

In his appeal defendant claims the indictment was fatally defective, guilt was not proven beyond a reasonable doubt, the court erred in not granting the defendant a severance, reversible error resulted from the multiplicity of trial errors, and the conviction for official misconduct must be vacated. We will consider each of these contentions in order.

The defendants were all employed in some capacity in the elevator or security departments of Cook County Hospital. The State's theory is that they conspired with the timekeeper in the security department to receive overtime pay for hours not actually worked during April 1973 through January 1974. The timekeeper, Corine Hayes, pleaded guilty to theft and received a sentence of probation for one year.

On direct examination, Hayes explained the method by which employee work time was normally recorded and then reported to the payroll department. Every morning she would receive a sign-in/sign-out sheet indicating the hours each employee worked on the previous day. If an employee worked overtime she received from him a time-due slip signed by the employee's supervisor. This extra time was also noted on the sign-in/sign-out sheets. Hayes transferred all the information regarding hours worked from these sources to a weekly time record book. This book indicated each employee's name, address, sick time, holiday time and overtime. At the completion of every two-week pay period, Hayes prepared an IBM summary sheet which showed separately straight work time and overtime for each employee. This sheet was theoretically approved by Hayes and the director of the security department. In actual practice Hayes signed the director's name to the sheet pursuant to his authorization and without first showing him the sheet. This IBM sheet was then forwarded to the payroll department and became the basis by which each employee eventually received a paycheck.

Hayes testified she approached the defendant, a security officer, in June of 1973 and suggested addition of unworked hours to his time summary on the IBM sheet and proposed they share the extra money he received. By refreshing her recollection from an IBM sheet she had prepared for trial, Hayes testified to specific pay periods between June 1973 and January 1974 wherein she credited defendant with additional straight time or overtime on the biweekly IBM summary sheets. Several of the pay periods reflected the addition of only a few hours. However, Hayes specifically recalled several pay periods for which larger amounts of time were added in exchange for money or favors: on September 1, 1973, the defendant was given 43 additional hours pursuant to a conversation wherein he agreed to give her $100 although she actually received $75; on October 15, 1973, he was given 15 extra hours and she received $25; on November 10, 1973, he was given 16 extra hours and in turn gave another security officer, "Ivory," a television set as consideration for rides Ivory had often given Hayes's son; on December 8, 1973, she credited defendant with 8 hours in exchange for a ride to the airport by one of his subordinates and on December 22, 1973, he was given 28 hours and he gave her $50.

During her testimony the parties stipulated that for three pay periods the IBM summary sheets revealed more time for defendant than was recorded on the sign-in/sign-out sheets and that defendant was credited with time for days which the sign-in/sign-out sheets indicated defendant had not worked. The IBM sheets for these three pay periods reflected the following discrepancies: on June 23, 1973, an additional 16 hours were added; on September 1, 1973, an additional 43 hours and on December 22, 1973, an additional 28 hours. The original sign-in/sign-out sheets and IBM summary sheets for these and other pay periods were admitted into evidence. Hayes testified she destroyed the time-due slips in November of 1973 as they were "accumulating." It was further stipulated during trial that the director of finance for Cook County Hospital would testify that defendant cashed paychecks for the periods ending September 1, 1973, and December 22, 1973, totaling $350.33 and $240.15 above his normal pay. In total the State claimed defendant received $877.24 in unearned overtime.

Benjamin Isom, testifying on behalf of the defendant, stated he was employed as assistant director of security in charge of field services for Cook County Hospital from April 1973 through January 1974. He stated that for the pay period ending September 1, 1973, it was possible the defendant accumulated as much as 32 overtime hours. During that time another security officer was on vacation and defendant was in charge of the shift. Isom stated that during the pay period ending December 22, 1973, he utilized defendant in an after-hours investigation of thefts possibly involving security department personnel. Defendant was instructed not to report this extra time on the sign-in/sign-out sheets. On cross-examination Isom stated "it wouldn't surprise" him if defendant had not actually worked the additional days reflected during the pay period ending September 1, 1973.

The defendant denied giving Hayes money for additional overtime, agreeing with her to receive extra money, or ever receiving payment for overtime not worked. He stated he worked extra hours for the vacationing security guard during the pay period ending September 1, 1973, and gave Hayes time-due slips reflecting these hours. He stated he had often seen Hayes throw these time-due slips into the wastebasket. He testified he worked overtime on special assignment for Benjamin Isom during the month of December 1973 and submitted time-due slips for these hours although he did not sign the sign-in/sign-out sheets. He denied giving Hayes's friend a television and stated he might have arranged for a subordinate to give Hayes a ride to the airport as it is a supervisor's responsibility to provide an employee with transportation in an emergency.


• 1 Defendant contends that the conspiracy and official misconduct counts are fatally defective because they fail to set forth with particularity the elements of the offenses charged. (See Ill. Rev. Stat. 1975, ch. 38, par. 111-3(a)(3).) These contentions were never presented to the trial court by motion to quash or in any other manner. When the sufficiency of an indictment is attacked for the first time on appeal, the standard for review is that it "is sufficient if it apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to further prosecution arising out of the same conduct." (People v. Pujoue (1975), 61 Ill.2d 335, 339, 335 N.E.2d 437; see also People v. Rege (1976), 64 Ill.2d 473, 478, 356 N.E.2d 537; People v. Gilmore (1976), 63 Ill.2d 23, 29, 344 N.E.2d 456.) In our opinion, the indictments in the instant case fully complied with these guidelines.

• 2 The conspiracy count charges that, defendant, "with intent that the offense of theft be committed * * * agreed with Corine Hayes to the commission of the offense of theft * * *" and alleges Hayes "prepared false and fraudulent representations of the amount of hours worked * * *" and submitted these false representations in order that defendant "could receive a paycheck in excess of the amount to which HENRY NICKSON [defendant] was lawfully entitled * * *." Defendant faults this count for not stating the capacity in which Hayes prepared the allegedly false representations. However, the record shows not only that defendant was fully cognizant of Hayes's employment status as ...

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