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People v. Murphy





APPEAL from the Circuit Court of Kankakee County; the Hon. WAYNE P. DYER, Judge, presiding. MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 20, 1978.

Following a bench trial in the Circuit Court of Kankakee County, defendant was convicted of theft of property having a value in excess of $150. He was sentenced to a term of from one to three years in prison.

Defendant Charles Murphy was an employee of K-Mart A & P Grocery store in the city of Kankakee. On April 12-13, 1976, he was scheduled to work the 10:30 p.m. to 7 a.m. shift along with two other employees, Ulysses Hudson and Michael Graves. It was defendant's job to act as cash register operator during the night shift, but because defendant was one-half hour late for work, Hudson operated the register from 10:30 p.m. to 11 p.m. Defendant operated the register from the time of his arrival until the men broke for lunch at 3 a.m. The men completed lunch at approximately 3:30 a.m. and very shortly thereafter defendant telephoned the Kankakee City Police to report that a robbery had just occurred in which the robber took all the $10 and $20 bills from the cash register.

The police arrived immediately. Officer Steve Williams observed that there were no $10 or $20 bills in the register and asked defendant to write a statement describing the robbery. Defendant said he was too nervous to write down the details of the robbery, but indicated that the robber was a black male who had been in the store twice before that night, once with a pregnant woman. Michael Graves, who was not a witness to the alleged robbery, told police he knew the man who had been in the store with the pregnant woman and that his name was Leon Ross. Tobe Fulford, an assistant manager of the store, arrived on the scene and prepared a cashier's balance sheet for the night which indicated the cash register was $315.82 short.

Defendant accompanied Officer Williams to the police station and gave a written statement describing the robbery. In his statement defendant said that just a minute or two after he had completed lunch a man who had been in the store twice previously during the night came in a third time and demanded all the $10 and $20 bills in the cash register. Defendant said the robber held his right hand on a noticeable bulge in his right coat pocket. Defendant stated he complied with the robber's demand and then started backing away from the register while whistling for help from his fellow employees who were in the rear of the store. Before defendant left the police station Officer Williams asked for permission to search his auto. Defendant allowed the officer to search the interior of the auto, but denied him permission to search the trunk, explaining that there was a C.B. radio in the trunk for which he had no bill of sale. In the auto's glove compartment Officer Williams found the defendant's wallet which contained $105, including five $20 bills. Defendant explained he had borrowed the money from a college student friend so that he could pay his phone bill.

After investigations by both the Kankakee city police and A & P security, the defendant was charged by information on June 17, 1976, with the offense of theft.

At trial the State presented numerous witnesses. Michael Graves testified that immediately before eating lunch he accompanied the defendant to the store parking lot where the defendant placed a box of cleaning pads which he had purchased into the trunk of his car. Graves noticed nothing, other than a spare tire in defendant's trunk at that time, but did notice a tear in the box of cleaning pads. Graves stated he punched all three men back in from lunch at 3:30 a.m. and then resumed working with Hudson near the rear of the store. Defendant also went to the rear of the store after lunch, but stayed only momentarily before returning to the front cash register area. Ulysses Hudson testified that he followed defendant to the front of the store about one minute later and upon his arrival there defendant, who was hanging up the phone, said they had just been robbed. Both Graves and Hudson testified they did not hear the sound made by the store's automatic doors or the ringing sound made by a cash register anytime after 3:30 a.m.

Bill Ryan, the Kankakee city police dispatcher, who took the robbery report from defendant and who immediately dispatched patrol cars to the scene, testified that he received an earlier call from defendant on the night in question, in which defendant asked what he should do if he saw shoplifters in the store. Officer Charles Nolte testified that three minutes before receiving the robbery dispatch he had driven by the A & P store and visually inspected the cash register area. He saw no one, other than the defendant, in the parking lot or the store.

Leon Ross and his girlfriend testified they were at home in bed together at the time of the alleged robbery. The college student, from whom defendant claimed to have borrowed the money found in his auto, testified he loaned defendant $60 about two weeks before the alleged robbery and two of defendant's creditors testified that defendant owed them a total of slightly more than $300.

• 1 Finally, Tobe Fulford, the assistant store manager, testified to the procedure he used in compiling the cashier's balance sheet which was being introduced into evidence. Fulford stated that he counted the contents of the cash register, recorded most of the figures on the balance sheet and did the computations from which he concluded that the register was over $300 short. However, he admitted that some figures were already on the sheet when he started, specifically those under the "Void Section" and the "Empties Refund" section. The witness did not know who recorded those figures, but testified that in the regular course of business they were entered by the checker on duty. The assistant manager also stated he entered $50 on the balance sheet as the amount of money in the register at the beginning of the shift, but he admitted having no personal knowledge of the actual amount in the register at that time. He testified it was store policy to begin each shift with $50 in the cash drawer. The balance sheet was admitted into evidence as was the cash register tape which recorded the transactions of the register on the night in question.

Defendant first contends that the evidence presented by the State was insufficient to prove any property was actually taken from the A & P Grocery store on April 12-13, 1976. The cashier's balance sheet prepared by assistant manager Fulford on the night in question did indicate the register was $315.82 short and defendant concedes that the majority of that balance sheet was properly admitted into evidence under the past recollection recorded exception to the hearsay rule. (People v. Jenkins (1st Dist. 1973), 10 Ill. App.3d 166, 294 N.E.2d 24.) Nevertheless, defendant argues that certain portions of the balance sheet, specifically those figures under the "Void Section" and the "Empties Refund" section as well as the $50 opening balance figure, were inadmissible hearsay. Furthermore, defendant contends that without these figures in evidence it would have been impossible for the trier of fact to determine how much, if any, money was missing from the A & P store's cash register.

• 2 We agree that the figures recorded under the "Void Section" and the "Empties Refund" section of the balance sheet were not admissible as past recollection recorded because they were not recorded by witness Fulford. We also agree that the figures are not admissible as admissions by the defendant because the evidence is insufficient to conclude that defendant, rather than Ulysses Hudson, made those entries. However, we believe that the figures on the balance sheet which were not recorded by Fulford were admissible into evidence under another exception to the hearsay rule. Section 115-5(a) of our Criminal Code of 1961 provides:

"(a) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of such act, transaction, occurrence, or event, if made in regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter." Ill. Rev. Stat. 1977, ch. 38, par. 115-5(a).

In the present case, although assistant manager Tobe Fulford had no personal knowledge of who actually entered the challenged figures, he did testify that those figures were entered in the regular course of business by the cashier on duty. We believe this testimony was sufficient to render the voids and refunds figures admissible as business records. We are, of course, aware that the trial court denied admission of the balance sheet as a whole when originally offered by the State as a business record on the grounds that the majority of the sheet was compiled by Fulford as a part of the robbery investigation. Section (c)(2) of 115-5 precludes records made in the course of a criminal investigation from being admitted as business records. However, it is clear that the entries under the "Void Section" and the ...

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