APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. BAILEY, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a jury trial defendants were convicted of conspiracy to commit theft. (Ill. Rev. Stat. 1973, ch. 38, par. 8-2.) Defendant Korb was also convicted of seven counts of forgery (Ill. Rev. Stat. 1973, ch. 38, par. 17-3), two counts of attempt theft (Ill. Rev. Stat. 1973, ch. 38, par. 8-4) and two counts of theft (Ill. Rev. Stat. 1973, ch. 38, par. 16-1). Collins was sentenced to five years probation while Korb was sentenced to three to nine years imprisonment on each count, each sentence to run concurrent. On appeal they both contend that the trial court erred in failing to suppress illegally seized evidence. Collins also contends that he was not proven guilty beyond a reasonable doubt while Korb also contends that the State failed to lay a proper foundation for the introduction of business records and that her sentence is excessive.
The following pertinent evidence was adduced at the hearing on defendants' motion to suppress evidence.
Robert Hanssen, Chicago Police Officer
At approximately 6 p.m. on October 26, 1973, he, Officer Sonnevelt and several other police officers went to apartment 26E at 6033 N. Sheridan Road with arrest warrants for defendants. The officers knocked on the door and when they "didn't find anyone," they went directly across the hall to apartment 26F which they had been using for surveillance purposes. Although the door to apartment 26F contained a "peephole" through which the front door to apartment 26E could be seen, it was impossible to see the back door of that apartment. The doors to apartment 26E exited on the same hallway. After waiting half an hour, he left the building and was standing on the sidewalk outside when he observed a cab arriving. From approximately four feet away, he saw Collins in the cab. The cab passed him and turned into the driveway at 6033 N. Sheridan Road, approximately 100 feet from where he was standing. He and Sonnevelt "briskly" returned to the building. Collins had apparently already entered the elevator when they returned so they proceeded to the 26th floor and knocked on the door to apartment 26E. When Collins opened the door they placed him under arrest. They searched and handcuffed Collins while standing in the "front vestibule of the apartment." Several feet from where he arrested Collins he observed a Polaroid photograph and a piece of paper on a room divider. He recognized the photograph as that of Terri Martin who had earlier told him about having her photograph taken. The piece of paper listed names of banks, some of which he recognized as being involved in the offenses he was investigating. Although he was not certain as to the evidentiary value of the list at that time, he took possession of both the list and the photograph.
He and Sonnevelt took Collins into the living room while Officer Blahusiak searched the apartment for Korb. Blahusiak reported that Korb was not in the apartment, but that he did find five checks on the bedroom floor. The officers decided to wait in the apartment for Korb to return. He and Collins went into the bedroom to watch television while the other officers waited in the living room. When the phone rang Collins answered it while Hanssen listened. He heard the caller tell Collins, "Hurry up. The bank closes at eight." Collins "mumbled" an answer and then said it must have been a mistake.
Later that evening Hanssen called the police station for a squadrol for Collins and after Collins was taken away, he and Officer Reilly remained in the living room for approximately an hour waiting for Korb. She never showed up.
On October 31, 1973, he filed an affidavit in support of an application for a search warrant for the same apartment. He, other officers and two postal inspectors executed the warrant on November 1, 1973. Property was seized and inventoried, but was not returned to court.
John Blahusiak, Chicago Police Officer
He arrived at apartment 26E as Hanssen was arresting Collins in the vestibule. While searching the apartment for Korb he found five personal checks scattered on the bedroom floor next to the bed. He gathered them up, saw that they were personal checks and gave them to Hanssen.
Following presentation of evidence at the hearing, the trial court denied defendants' motion to suppress. The matter proceeded to trial, at which the following pertinent evidence was adduced.
In 1973 he and Sylvia Elickson lived together in an apartment at 6033 N. Sheridan Road in Chicago. He was acquainted with defendants Korb and Collins who lived together in apartment 26E of the same building. During a conversation in his apartment on July 23, 1973, Korb told him and Elickson that she had taken "three checks from Merrill, Lynch, Pierce, Fenner and Smith out of the mailbag at Wacker Drive" and that she wanted to use these checks to open three checking accounts, Korb showed him the checks and offered him $50 per account to open three accounts. The next morning he told Korb that he would open the accounts in return for "half the cash" and $50 per check. Korb agreed. On July 25, 1973, Korb brought three checks and an IBM typewriter to his apartment. Elickson was also present. Korb instructed him to open an account with an answering service for the purpose of receiving checks from the bank after he had opened an account. Korb also produced a gun registration card, an automobile registration card and a police traffic ticket book which had been taken from a police car. She used the IBM typewriter to complete the gun and automobile registrations and then printed the same names on the traffic tickets. When Collins entered the apartment, Korb told him to get a Polaroid camera from their apartment. Collins left, returned with a Polaroid camera and took several color photographs of Guild. Collins trimmed the finished photographs and pasted them to the gun registration cards. Korb completed three sets of identification each set consisting of a gun registration, an automobile registration and a traffic ticket. The identification cards were in the names of Richard Woods, George Hamilton and Leslie Bajak and were to be used in opening bank accounts.
Guild opened an account at an answering service in order to receive the "permanent checks" from the bank. On July 26, Korb gave him a Merrill, Lynch check made out to Richard B. Woods and a set of identification cards. Korb then accompanied him to the North Bank in McClurg Court where he used the check and identification cards to open a checking account in the name of Richard B. Woods. When he returned to the car with "some temporary checks," Korb stated that she wanted "business size checks." He then returned to the bank, received "business size temporary checks" and gave them to Korb.
The following day Korb gave him a check and a set of identification cards for Leslie Bajak. After he endorsed the check in the name of Leslie Bajak, and Korb endorsed it in the name of Sylvia Bajak, he used the check to open an account in the Bajaks' names at the North Bank in Lake Point Towers. He received temporary checks and a blank signature card which he gave to Korb. After Korb signed "Sylvia Bajak" on the card, he returned it to the bank.
Korb next gave him a check payable to George Hamilton and another set of identification. He and Korb endorsed the check in the names of George and Marjory K. Hamilton. He then used this check and set of identification cards to open an account under the name of George Hamilton at the Marina City Bank. He again received temporary checks which he gave to Korb. Guild kept one temporary check from each of the three accounts and made withdrawals totaling approximately $450.
Guild saw Korb use a similar IBM typewriter to "type up checks" in her own apartment. During August 1973, he heard Korb state in the presence of Collins and Elickson, that, "Anyone who says crime does not pay is a fool."
On cross-examination, he admitted that he had been granted immunity from prosecution in return for his testimony. He stated that he destroyed the three sets of identification cards after using them.
She met Korb in August 1972, when Korb explained a "foolproof" system for cashing checks. Korb told her "to dress like I had money" and to become indignant if questioned. In October 1972, Korb gave her $100 to open a checking account at Lakeview Trust and Savings Bank in the name of "Rita Decker, Interior Decorator." Korb suggested this bank because "they didn't ask you for as much identification as the other banks." Korb also told her to obtain business checks because they could be cashed for larger amounts than personal checks. She did not sign any of the checks which she received from the bank.
She met Korb, whom she knew as "Brandy," in October 1971 when they were employed together at a retail store in Chicago. From May 1973 until October 1973 she lived with John Guild in an apartment at 6033 N. Sheridan Road. When she had financial difficulties in November 1972 she contacted Korb for assistance. Korb offered to "give me a check to cash" and told her she could keep one-third of the proceeds. When Sylvia expressed apprehension about being caught, Korb assured her that "You don't have to worry too much about it because you haven't had any previous offenses" and promised to provide bond money.
In January or February 1973 she rented a "Selectric" typewriter at Korb's request. The typewriter was delivered to her apartment. She forwarded the monthly invoices on the typewriter to Korb, paid the rental charges herself, and was reimbursed by Korb.
She and Korb were present in her apartment in July 1973 when Collins used a Polaroid camera to take pictures of John Guild "for identification pictures." Collins put the finished picture on an identification card. At this time Korb wanted Sylvia to have her picture taken in order to represent a person named Sylvia Lake, but she refused.
In July 1973 Korb drove her to the Gary-Wheaton Bank and gave her a check for more than $200. She was neither the maker nor the payee of this check. She presented the check to the teller and received cash which she gave to Korb. Korb gave her one-third of the cash. In October 1973 Korb drove her to the Naperville Bank and gave her a check payable to Charlotte Engler. She deposited this check and received over $200 in cash from the teller. She gave this cash to Korb and again received one-third of the total amount. Again in October 1973 Collins and Korb drove her to the Gary-Wheaton Bank where Korb, in the presence of Collins, gave her a check to cash. She objected because the payee was the same as on the check she had cashed at the Gary-Wheaton Bank in July. Korb assured her she would not be recognized. After presenting the check she was arrested for attempting to pass a forged check and was held in jail for two days until she was "bonded out" by Collins and Korb. Korb later told her not to appear in court on the matter.
She testified that she last saw Collins in January 1975 when he told her that she could be "offed" if she ...