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People v. Moore





APPEAL from the Circuit Court of Lake County; the Hon. JOHN A. KRAUSE, Judge, presiding.


Following a joint jury trial in Lake County with co-defendant, Morris Friedman (whose appeal is also disposed of this date in an opinion filed in this court in Case No. 77-343), the defendant, Ted Moore, was found guilty of 1 count of conspiracy and 10 counts of theft by deception in excess of $150. The defendant was sentenced to concurrent 3 1/3- to 10-year terms for each of the above offenses.

On appeal the defendant raises the following issues: (1) Whether the defendant was proved guilty beyond a reasonable doubt; (2) Whether the admission into evidence of certain statements attributable to co-defendant, Friedman, violated the Bruton rule; (3) Whether the trial court's refusal to grant a severance was an abuse of discretion; (4) Whether the trial court erroneously refused to grant defendant's motion for mistrial; (5) Whether the trial court's determination that a conviction of the defendant was admissible was an abuse of discretion; and (6) Whether the defendant's sentence was excessive.

Prior to reaching these issues we must first consider defendant's contention in his supplemental brief. In this brief, filed subsequent to the First District's opinion in People v. Massarella (1977), 53 Ill. App.3d 774, 368 N.E.2d 507, the defendant contends his indictment should be dismissed or alternatively the case should be reversed and remanded for a new trial because his indictment and conviction were obtained pursuant to the activity of the Attorney General who defendant avers had exceeded his statutory and common law authority in presenting the case to the grand jury and prosecuting the case at trial. In People v. Massarella (1977), 53 Ill. App.3d 774, the First District of this court held that where the Attorney General, through his assistants, presents a matter to the grand jury and prosecutes a case at trial unaccompanied by the State's Attorney and where all the State's Attorney's actions are at most ministerial, the Attorney General's actions are improper and beyond his authority and require the dismissal of the defendant's indictment. However, while this appeal was pending, the supreme court reversed the First District and clarified this question of the statutory and common law powers of the Attorney General in People v. Massarella (1978), 72 Ill.2d 531, 538-39, 382 N.E.2d 262, wherein the court stated that "the Attorney General may assist the State's Attorney to the extent that he may discharge all those powers of the State's Attorney at all stages in a prosecution, including the preliminary proceedings such as presentations to a grand jury, where the latter does not object."

• 1 It would unduly prolong this opinion to reiterate the entire rationale posited by the supreme court in People v. Massarella relevant to the statutory interpretation of the Attorney General's authority. It is sufficient to note that we believe that under People v. Massarella, the State's Attorney's statements in the instant case that "the Attorney General is cooperating with the State's Attorney of Lake County for the purpose of seeking an indictment against the seven named individuals * * *" (emphasis added), as well as his acknowledgement that "the questions will be asked by the Assistant Attorney General who will cooperate with me in this case for prosecution in Lake County, Illinois" (emphasis added), clearly indicate that the State's Attorney did not object to the Attorney General's assistance in the discharge of the State's Attorney's own powers both before the grand jury and at trial. Accordingly, we must conclude that the Attorney General was at all times within the scope of his statutory duties because the record does not show an objection by the State's Attorney to the Attorney General's participation either before the grand jury or at trial, nor, in fact, any effort by the State's Attorney to exclude him from these proceedings.

The present case involves the sale of distributorships to purchasers, hereinafter referred to as investors, by the defendant, who represented himself to be both a salesman and a vice-president of various companies — the primary ones being the Candy Merchandising Council of America (hereinafter CMCA), Plantation Candyland, Diversified Marketing and Diversified Electronics. These companies were located in Lake Zurich, Illinois, and were in operation during the years 1973 through 1975.

At trial, 11 witnesses testified that each had responded to an advertisement in the newspaper and were subsequently called upon personally by the defendant. At this time the defendant would inform the investors that for $6,500 to $13,000 they could purchase a distributorship for candy or tape cassettes from one of the aforementioned companies. The investors then signed written contracts which promised that the marketing department of the various companies would obtain retail display locations for the placement of the candy or the tapes. The number of locations or accounts varied between 10-30, depending on the initial investment. Thereafter, the investors, within a couple weeks, would receive approximately $1,500 worth of candy or $700 worth of tapes, depending on the particular distributorship plan for which they had contracted. According to the defendant, the rest of their investment would be credited to their initial investment at the rate of 10 percent of each additional order. The defendant's other written or oral representations consisted of the following: (1) That the accounts or locations would be of the high-volume, high traffic accounts such as Walgreens, Jewel or A & P; (2) That the investors would make $1,000 per year on each account or location; (3) That the companies would furnish specialists who would set up the accounts at the high-volume stores; (4) That, upon request, a refund of their investment would be forthcoming to the investor, subject to adjustment for bills outstanding; and (5) That the references given by the defendant to the investors were other successful business people involved in this line of sales with these companies.

According to the investors at trial, what really happened is that sometimes no one came in to assist in securing these accounts or the actual assistance was, at best, minimal, and the accounts that were obtained were of the low-volume variety such as five tables at the local florist — which was considered five accounts by the companies. All the investors testified that their distributorships lost money and only a few of them even sold their initial shipment of candy or tapes. Further, none of the investors' attempts at obtaining a refund of their money was successful. Similarly, the investors' efforts to locate the defendant and inform him of their difficulties all met with no success. Additionally, there was testimony that at least one phone reference given to the investors by the defendant in the name of Michael Stevens, who was supposedly a prosperous distributor, was, in fact, the telephone number of the defendant himself. Finally, there was testimony from an investigator of the Attorney General's office who analyzed the numerous companies and stated that $1,737,000 went through the companies' accounts and $99,000 was disbursed to the defendant.

Following the presentation of the State's case in chief, the trial court granted the State's motion to dismiss eight counts against the defendant and co-defendant. The defendant's remaining 10 counts of theft by deception and 1 count of conspiracy went to the jury, and the jury found the defendant guilty on all counts.

The defendant contends first on appeal that the evidence failed to prove his guilt beyond a reasonable doubt. The defense argues that the State failed to show that the defendant had the requisite knowledge of what was actually taking place in this business to sustain his conviction for theft by deception.

The requisite knowledge necessary to establish the defendant's intent to commit theft by deception is set forth by section 15-4(e) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 15-4(e)), which states that:

"* * * `deception' means knowingly to:

(e) Promise performance which the offender does not intend to perform or knows will not be performed. Failure to perform standing alone is not evidence that the offender did not intend to perform."

The evidentiary requirement of this particular statute was recently restated by this court in People v. Ballard (Docket No. 76-565, Oct. 20, 1978), ___ Ill. App.3d ___, ...

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