APPEAL from the Circuit Court of Cook County; the Hon. MARVIN
E. ASPEN, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 8, 1980.
On June 8, 1973, the Cook County grand jury returned a 49-count indictment for conspiracy, perjury, theft, and tax evasion against Benedetto J. Massarella (Massarella); Bee Jay's Truck Stop, Inc. (BJTS), a corporation of which Massarella was president and sole shareholder; Mideast Transport, Inc. (Mideast), a corporation controlled by Massarella; and several others. Prior to trial, all but five counts were dismissed. Massarella was found guilty by a jury of conspiracy, theft, and one count of perjury; sentenced to five years probation, including two years periodic imprisonment (for theft), and one to three years in the penitentiary (for perjury), both sentences to run concurrently; and ordered to pay a $10,000 fine and $425,407 in restitution to the State. BJTS was found guilty of conspiracy and theft; Mideast was found guilty of conspiracy. BJTS and Mideast were each sentenced to pay a $10,000 fine and ordered to pay $425,407 in restitution to the State of Illinois.
On appeal from these judgments and sentences, the defendants raised the following 15 issues for our review: (1) whether the indictment should have been dismissed due to the Attorney General's participation in the proceedings; (2) whether the court erred in refusing to dismiss the perjury count; (3) whether the State sustained its burden of proving Massarella guilty of perjury; (4) whether the State sustained its burden of proving Massarella and BJTS guilty of theft; (5) whether the court erred in denying Massarella's motion for a substitution of judges; (6) whether the trial judge should have recused himself; (7) whether the trial court erred in denying the defendants' motion for a continuance; (8) whether the defendants were prejudiced by their joint trial on the conspiracy, theft, and perjury charges; (9) whether the defendants were denied a fair trial due to certain evidentiary rulings made by the trial court; (10) whether the defendants were denied a fair trial due to the prosecutor's closing argument; (11) whether the verdict forms finding Massarella and BJTS guilty of theft were sufficient; (12) whether the trial court adequately polled the jury upon the defendants' request; (13) whether the imposition of Massarella's two-year sentence of periodic imprisonment as a condition of five years probation was valid; (14) whether the trial court erred in imposing excessive and unlawful sentences upon all of the appealing defendants; and (15) whether Massarella was denied a fair hearing in aggravation and mitigation.
Finding that the indictment should have been dismissed due to the Attorney General's improper participation in the proceedings, we reversed the defendants' convictions without deciding the remaining issues raised on the appeal. (People v. Massarella (1977), 53 Ill. App.3d 774, 368 N.E.2d 507.) The supreme court allowed the State's petition for leave to appeal (58 Ill.2d R. 315), reversed our decision, and remanded the matter to us for consideration of the remaining unresolved issues (People v. Massarella (1978), 72 Ill.2d 531, 382 N.E.2d 262).
The underlying facts giving rise to the 49-count indictment appear in our previous opinion (see 53 Ill. App.3d 774, 775-78, 368 N.E.2d 507), and therefore will not be repeated here. Only those facts necessary to the resolution of the remaining 14 issues will be set forth as they are discussed in the opinion.
Count 3 of the indictment charged Massarella individually with perjury committed on or about August 26, 1971, to on or about August 30, 1971, in a related civil proceeding brought by BJTS entitled Bee Jay's Truck Stop, Inc. v. Illinois Department of Revenue, case no. 71 CH 3608, in the circuit court of Cook County. *fn1 In 1971, the statute prescribing the penalty for perjury provided that:
"A person convicted of perjury shall be fined not to exceed $1,000 or imprisoned in a penal institution other than the penitentiary not to exceed one year or in the penitentiary from one to 14 years, or both fined and imprisoned." Ill. Rev. Stat. 1971, ch. 38, par. 32-2.
Due to the presence of the alternative penalty of imprisonment other than in the penitentiary in 1971, perjury was classified as a misdemeanor. (See People v. Novotny (1968), 41 Ill.2d 401, 403, 244 N.E.2d 182.) The statute of limitations for all misdemeanors at that time was 18 months. (Ill. Rev. Stat. 1971, ch. 38, par. 3-5.) The indictment against Massarella was returned on June 8, 1973, approximately 22 months after the perjury was allegedly committed.
However, the Unified Code of Corrections took effect on January 1, 1973, approximately one month before the 1971 18-month statute of limitations expired in February 1973. (Ill. Rev. Stat. 1973, ch. 38, par. 1008-6-1.) The Unified Code reclassified perjury as a Class 3 felony (Ill. Rev. Stat. 1973, ch. 38, par. 32-2(d)) carrying a maximum term in excess of one year and not exceeding 10 years (Ill. Rev. Stat. 1973, ch. 38, par. 1005-8-1(b)(4)), and extended the statute of limitations for perjury to three years (Ill. Rev. Stat. 1973, ch. 38, par. 3-5(b)). Therefore, under the Unified Code, the indictment charging Massarella with perjury committed in 1971 was timely brought.
Massarella contends that the reclassification of perjury from a misdemeanor to a felony as applied to him violates the ex post facto laws of the Illinois and Federal constitutions. (Ill. Const. 1970, art. I, § 16; U.S. Const., art. I, § 9.) From this premise, Massarella argues that the indictment was barred by the 18-month statute of limitations in force in 1971, and, therefore, the trial court erred in refusing to dismiss the perjury count.
1 A legislative body can extend the period of limitations as to criminal offenses which occurred prior to the effective date of the change without violating the constitutional prohibitions against ex post facto laws, so long as the extended period does not apply to any case in which the accused has acquired, as of the effective date of the change, a right to acquittal through the running of the original statute. (People v. Anderson (1973), 53 Ill.2d 437, 440, 292 N.E.2d 364.) In People v. Liebling (1976), 36 Ill. App.3d 1073, 344 N.E.2d 520, this court held that the legislature's reclassification of conspiracy and bribery from misdemeanors to felonies prior to the expiration of the 18-month statute of limitations and the extension of that statute of limitations to three years did not violate the ex post facto doctrine. (Liebling, 36 Ill. App.3d 1073, 1077.) However, Massarella argues that Liebling is inapplicable because there the defendant did not argue that the very change in the nature of the offense was barred by the ex post facto doctrine. We disagree.
2-4 Since Massarella's trial occurred subsequent to the effective date of the Unified Code of Corrections, he was entitled to be sentenced either under the law in effect at the time of the offense or the law at the time of the trial. (See Liebling, 36 Ill. App.3d 1073, 1076.) Massarella elected to be sentenced under the Unified Code of Corrections and received a sentence of one to three years in the penitentiary. The constitutional prohibition against ex post facto laws is not violated if the defendant is given the option of being sentenced in accordance with the law as it exists at the time of sentencing or as it existed when the offense was committed. (See Liebling, 36 Ill. App.3d 1073, 1076-77.) Moreover, although it is the general rule that punishment for an offense cannot be increased by an amendatory act taking effect after the offense has been committed without violating the ex post facto doctrine (People v. Wyckoff (1969), 106 Ill. App.2d 360, 364, 245 N.E.2d 316), the criterion for determining the lesser penalty is the actual term of imprisonment imposed (People v. Zboralski (1975), 33 Ill. App.3d 912, 913, 338 N.E.2d 925). Massarella's sentence of one to three years in the penitentiary did not exact a penalty greater than that permissible under the 1971 statute classifying perjury as a misdemeanor.
For the foregoing reasons, we find that the trial court did not err in refusing to dismiss the perjury indictment against Massarella.
During the course of the aforementioned civil proceeding wherein Massarella sought to enjoin the Department of Revenue from investigating him individually and his business BJTS, Massarella testified that he had bought no diesel fuel from co-defendant Mid-Town Petroleum, Inc. (Mid-Town), *fn2 prior to January 1971, and that up to December 1970, all of this diesel fuel was supplied by Humble Oil Company. He further testified that he never made purchases of diesel fuel through Rella Enterprises, a sole proprietorship which Massarella owned. Count 3 of the indictment charged that these statements were perjurious. The perjury statute defined the offense as one in which a person under oath at a proceeding makes a false statement material to the issue or point in question, which he does not believe to be true. (Ill. Rev. Stat. 1971, ch. 38, par. 32-2(a).) Massarella contends that the evidence of perjury was insufficient absent any showing that his statements were material, absent proof of falsity, and absent proof of his state of mind. We disagree.
5 Materiality is a question of law for the court to decide. (People v. Berry (1923), 309 Ill. 511, 515, 141 N.E. 132.) However, there is no authority to support the defendant's novel suggestion that, to permit meaningful appellate review, the trial court must make a finding of materiality. An indictment may show the materiality of the testimony on which the perjury is assigned either by setting forth the issue and the sworn statement, or by stating the particular testimony charged to be false, with the allegation that such testimony is material. People v. Berry (1923), 309 Ill. 511, 513-14.
6 Contrary to Massarella's sole contention with respect to the sufficiency of the evidence showing the materiality of his allegedly perjurious statements, a certified and exemplified copy of the pleadings and orders in Bee Jay's Truck Stop, Inc. v. Illinois Department of Revenue, case no. 71 CH 3608, as well as the entire transcript from those proceedings, was received into evidence without objection and upon stipulation of the parties. The issue in the civil proceeding was whether there was a factual basis for the Department's investigation of Massarella's alleged theft and evasion of State motor fuel tax through the diversion of untaxed diesel fuel to BJTS. We therefore further find that the trial court had before it sufficient evidence to properly determine that Massarella's statements were material to the issue of Massarella's alleged guilt of theft. Cf. People v. Harris (1968), 102 Ill. App.2d 335, 242 N.E.2d 782.
The perjury statute also required the State to prove that these statements were false. (See Ill. Rev. Stat. 1971, ch. 38, par. 32-2(a).) Relying on Bronston v. United States (1973), 409 U.S. 352, 34 L.Ed.2d 568, 93 S.Ct. 595, Massarella contends that his testimony was at most evasive, unresponsive, or untrue only by false negative implications, but were not false. In Bronston, the Supreme Court held that the Federal perjury statute does not reach a statement that is literally true and complete, but unresponsive, even if the witness intended to mislead the court. (Bronston, 409 U.S. 352, 357-62, 34 L.Ed.2d 568, 573-76, 93 S.Ct. 595, 599-602.) Massarella contends that the Illinois perjury statute should be interpreted as the Federal perjury statute has been interpreted. We need not determine that question, for the record of the civil proceeding shows that the questions posed to Massarella and his answers thereto were clear, concise, and direct. Moreover, in the instant trial, Raymond Battersby, *fn3 the president and principal shareholder of Mid-Town, testified that pursuant to an agreement personally solicited by Massarella in the summer of 1967, Mid-Town sold Massarella and BJTS several million gallons of diesel fuel from August 1967 to December 1970. Battersby also admitted that he lied in the civil proceeding when he denied selling untaxed diesel fuel to BJTS. James Peterson of the Peterson Oil Company testified that he sold Massarella and Rella Enterprises several million gallons of diesel fuel from February 1969 to May 1971. Gino Fortuna and Earl Pruitt, employees of Massarella and BJTS, and Louis Wright, testified that this fuel was delivered to BJTS. A comparison of this and other testimony presented in the State's case with Massarella's testimony in the civil proceeding shows that his testimony was neither unresponsive nor literally true, but rather was patently false. In light of the patent falsity of his testimony, there can be little doubt that Massarella knew his testimony to be false.
Count 6 of the indictment charged BJTS, a corporation, and Massarella, individually and as president of BJTS, with the theft of motor fuel tax monies of the State of Illinois in excess of $150, committed from June 11, 1970, to May 31, 1971. (Ill. Rev. Stat. 1971, ch. 38, par. 16-1(a)(1).) These defendants contend that the State failed to sustain its burden of proving them guilty of this offense.
7-9 It is uncontroverted that the county in which the alleged crime was committed is a material averment and must be proved beyond a reasonable doubt. (People v. White (1975), 26 Ill. App.3d 659, 661, 325 N.E.2d 313.) The indictment charged that the defendants' theft of the State tax monies occurred in Cook County. The defendants first contend that since the alleged offense was exactly comparable to embezzlement, venue could properly lie only in Sangamon County, Illinois, the site of the State capitol and the office of the Department of Revenue of the State of Illinois. (See People v. Kopman (1934), 358 Ill. 479, 485, 193 N.E. 516.) We find the defendants' argument to be without merit insofar as they were neither charged with embezzlement nor with the violation of the Motor Fuel Tax Law. (Ill. Rev. Stat. 1971, ch. 120, par. 417-34) *fn4 Rather, the defendants were charged with the separate and distinct offense of theft. A person who commits theft of property may be tried in any county in which he exerted control over such property. (Ill. Rev. Stat. 1971, ch. 38, par. 1-6(g).) Venue, like other facts necessary to prove the commission of an offense, may be established by circumstantial evidence. People v. Allen (1952), 413 Ill. 69, 76, 107 N.E.2d 826.
10 The evidence shows that the defendants obtained several million gallons of tax-free motor fuel, that BJTS had six diesel pumps which pumped diesel fuel into diesel tractors, and that the charge that was made at all six pumps included motor fuel tax. The evidence further shows that in 1970 the diesel pumps at BJTS displayed a decal which stated that Illinois motor fuel tax of 7 1/2 cents per gallon was included in the cost of the product. When the Illinois motor fuel tax increased from 6 cents to 7 1/2 cents per gallon in 1969, the pump price of the diesel fuel at BJTS increased from 24 cents to 25 1/2 cents per gallon. BJTS was located at 970 Pershing Road in Chicago, Cook County, Illinois, and was licensed by the city of Chicago. We are of the opinion that the only rational conclusion that can be drawn from the evidence is that the defendants obtained and exerted control over the State motor fuel tax monies in Cook County as alleged in the indictment. (See People v. Mowry (1955), 6 Ill.2d 132, 139-40, 126 N.E.2d 683.) Venue was properly established, and we are satisfied that the State's burden of proof of theft was sustained beyond a reasonable doubt.
On June 12, 1973, Massarella appeared before the presiding judge of the criminal division for arraignment and pleaded not guilty to the charges in the indictment. On June 15, 1973, the remaining defendants were arraigned and the cause was assigned to the Honorable Marvin E. Aspen and continued to July 18, 1973, on which date Massarella filed a written verified motion supported by his affidavit for a substitution of judges pursuant to section 114-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 114-5). The next day the court ruled initially that the motion was not timely filed within 10 days of being placed on the trial call as provided by statute (Ill. Rev. Stat. 1973, ch. 38, par. 114-5(a)), so as to entitle defendant to an automatic order of substitution of judges, but permitted the motion to be amended as one pursuant to ...