APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. COLLINS, Judge, presiding.
MR. JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:
This appeal arises out of a food stamp investigation in the Illinois Department of Public Aid (hereinafter Department) wherein co-defendants Alma Walton and Cora Sowell, employees of the Department, were indicted on a total of 48 counts of theft and official misconduct pertaining to the unauthorized or deceptive control of authorizations to purchase food stamp cards which they allegedly used to illegally obtain food stamps. Walton was convicted on 34 counts of theft and official misconduct after a jury trial, and Sowell was convicted on 18 counts of theft and official misconduct after a bench trial held in conjunction with Walton's trial.
On appeal, the defendants argue that they were not found guilty of the aforesaid offenses beyond a reasonable doubt. Additionally, Sowell argues that her two-year sentence was excessive where she had no prior criminal record and was the custodial parent of a young child. Walton also argues that she was erroneously convicted and sentenced on multiple counts based on the same act. We affirm in part, reverse in part, and remand for resentencing.
While the trial of the instant cause produced a voluminous six-volume record and the State has presented 38 pages of facts in its brief, our review of the facts will be limited to those facts necessary to a discussion of the issues. During the September 1975 to June 1976 period in which the alleged illegal acts occurred both defendants were assigned to the South Suburban office of the Department. Defendant Walton was the head financial clerk and defendant Sowell a food-stamp control clerk under Walton's supervision. The South Suburban office consisted of a main office and a satellite office located approximately one block away. The satellite office housed the food-stamp disbursement operation until March 1976, at which time it was moved to the main office. Prior to this move, Sowell worked at the satellite office and Walton worked at the main office.
The office procedure used in regard to the disbursement of food stamps was outlined through the testimony of a number of the staff of these two offices. According to their testimony an individual comes to the office and makes an appointment to interview with an intake caseworker. At that interview the caseworker determines eligibility for food stamps, the amount the recipient must pay for the stamps, the number of cards he is entitled to, and the expiration date of his food stamps. In a "zero purchase" situation the food stamps would be provided to a recipient free of charge. If eligibility is found, the caseworker prepares an authorization form for food stamps. After the file is reviewed by the supervising caseworker, it is turned over to the food stamp control clerk in the financial department. This clerk transfers the information from the authorization form to a ledger and assigns one or more authorizations to purchase cards (hereinafter ATP cards) to the file. This card is redeemed by the recipient at a currency exchange to obtain his food stamps. The ledger entry lists the ATP cards by serial number in consecutive order and lists the name and address of the recipient, amount of stamps issued per card, the number of cards issued to the recipient, case number, category of aid and the name of the caseworker who authorized the stamps. After posting to the ledger, the control clerk attaches the assigned ATP card(s) to the recipient's authorization form and gives it to a typist, who types information from the authorization form onto the ATP card. After the typist finishes typing a number of these cards, the typist returns the authorization form and ATP card to the food stamp control clerk, who checks the card for errors. If no errors are discovered, the ATP card is mailed to the recipient or given to a waiting recipient. One copy of the authorization form is stored with the ledger, and one copy is returned to the case file. Any voided ATP card is also attached to the ledger. According to Powell, as office manager, he spot-checked the ledgers to insure that all the authorization forms were attached before they were put into storage.
There was extensive testimony during the trial concerning access to the files, the ledger, and the ATP cards as access to these were necessary for the perpetration of the alleged offenses. Powell testified that generally only the file department had access to the case files but that the caseworkers also had access when there was a shortage of file clerks. However, other staff members acknowledged that virtually every person in the office had access to the case files and there was no prohibition against any person going to the file cabinets where the clients' records were stored. Powell also explained in this regard that, as the main office opened at 8 a.m. and as he didn't arrive until 8:30, anyone could have access to the files during that period. Testimony further revealed that, while under the official office procedure outlined by the ex-district supervisor and the office manager, only Sowell, Walton or someone specifically designated by Walton would make entries on the ledger. In fact, Diane Jusk, supervising caseworker at the satellite office, and at least one typist would also make ledger entries on occasion. Jusk also testified that it would take as much as five days from the time the food stamps were authorized until the authorization document reached Sowell's desk.
General responsibility for the ATP cards rested with the office manager Jesse Powell. He ordered the ATP cards from Springfield by written request and received them by United Parcel. Upon receiving a new packet of ATP cards, he verified that he received his full order by checking the first and last number of the serial numbers on the cards and then stored the ATP cards in a safe in his office that he kept solely for that purpose. Annie Robinson, ex-district supervisor, testified that she thought that Walton knew the combination to this safe although Walton denied such knowledge. Five or six hundred ATP cards were kept on hand at all times, and over 7,000 cards were ordered during the period of time in issue. The ATP cards were signed out by Sowell as food-stamp control clerk, Walton as head financial control clerk, Diane Jusk as the supervising caseworker at the satellite office and anyone else designated to disburse the cards by Walton. Despite the apparent concern over the safekeeping of the cards, Jusk testified that ATP cards were left unattended on the typists' desks at various times during the day, a fact verified by two typists. Rusk also testified that Walton was not at the satellite office on a regular basis. It was also noted that at one time the ATP cards were out of sequence and on another some were missing for a period of time. None, however, were ever reported stolen, nor was there a burglary of the premises during this time period.
The investigation out of which the prosecution of this case arose was primarily conducted by Earnest Hines, an investigator with the Bureau of Special Investigations for the Department. The investigation began, according to Hines' testimony, when Howard Walton, the defendant's ex-husband, went to Hines and gave him a photocopy of a document. Based on information which he received from that document Hines checked the ledger entries for four ATP card serial numbers and then compared these to the redeemed ATP cards which he obtained from Springfield. This revealed an inconsistency for each card between the name on the ledger and the name listed on the ATP card. Based on this discovery, he went to the South Suburban office and requested the authorization forms for these four entries. None could be produced, although Sowell stated that she had made the entries and at that time there had been authorization forms. After this discovery, Hines had his investigators check with the currency exchanges in the South Suburban district and found that a good number of "zero purchase" ATP cards had been redeemed at these exchanges. When these ATP cards were investigated further inconsistencies were found and again no authorization forms were found. As the investigation proceeded, neither Sowell nor Walton admitted making the ledger entries involved; however, both told Hines that the entries were all made with the necessary authorization forms, although these forms were never found.
After the investigation was underway, Hines received an Adler typewriter from Howard Walton which he claimed had been used by his wife for typing ATP cards. Maureen Casy, a police expert on document examination, verified that the typewriter characters were of the same type found on the ATP cards. While she found insufficient defects in the type to conclusively link the typewriter with the offenses, she did conclude that the dual ribbon used in the typewriter matched the carbon ink used on the ATP cards. Furthermore, when she unrolled the ribbon, she found the contents of eight of the ATP cards on the ribbon in the same sequence in which they appeared on the cards including typing mistakes made and corrected.
Other witnesses at the trial included each of the individuals named as recipients of food stamps on the various ledger sheets for the ATP cards in question. Some had received food stamps before while others had applied for food stamps but for one reason or another had never received them. Each denied having received the stamps as noted on the ledger or of knowing the person named as the recipient on the ATP cards. None had seen the instant ATP cards before. In addition, testimony was received by most of the individuals actually named on the ATP cards as recipients. Again some had received stamps in the past and others had only applied for them. Some knew defendant Walton but denied having redeemed the food stamps by the use of the ATP card in question. Each with one exception denied that the signature on the redeemed card was their own.
Nellie Ellis testified that she knew defendant Walton, had seen Walton type up the ATP card with Ellis' name on it, had cashed that card and had given Walton $100 for the food stamps she received. Ellis also testified that she had been a friend of defendant Walton and that while at her home she had seen a typewriter similar to the one turned over to Hines by Howard Walton. Her friendship with Walton terminated, Ellis testified, when she discovered from her husband that he was having an affair with Walton.
Several caseworkers who worked at the South Suburban office also testified. One testified that she authorized food stamps near the date one particular ATP card was issued but that she had to reauthorize the stamps for the client because her ATP card never arrived in the mail. Another caseworker testified that while he authorized stamps for two of the individuals named on the ledger, he did so for amounts other than those stated on the ATP card and had not authorized stamps for those named on the ATP cards. A third caseworker also denied authorizing either a card to the individual named on the ledger or to various individuals named on the ATP cards in question although the cards indicated that she was the authorizing caseworker.
Howard Walton's testimony substantiated Hines' testimony concerning the investigation. He testified that on July 14, 1976, he followed his ex-wife as she was on her way to work. At this time he saw her stop her car next to Carl Ellis' car and hand him two envelopes. Howard later saw Ellis redeem the contents of these envelopes for food stamps. Howard also testified that he first saw the typewriter which he subsequently handed over to Hines in February or March, 1975. When he asked his wife about the typewriter she told him that she got it from Carl Ellis. Howard also stated that in January 1975, he, his wife, and Ellis were sitting around the Walton kitchen table discussing Howard's need to have 73 more signatures on a petition in order to get on the Markham, Illinois, aldermanic election ballot. At this time Ellis told him that he could sign the petitions right then and there because he could sign in different handwritings. He demonstrated this talent to the Waltons by duplicating both of their signatures. No signatures were put on the petitions in this fashion, however, Howard stated.
Sowell did not testify in her own defense; however, Walton did testify. Walton testified that in 1976 she had been head financial clerk at the South Suburban office and that as part of her duties she operated a telecommunication terminal; however, she noted that she had never been employed as a typist at the Department and that the keyboard on the terminal was not comparable to that of a typewriter. Walton stated that if Powell was not in the office, head file clerk Pauline Lailos rather than she took over for him. She stated that she did not know the combination to the safe where the ATP cards were kept. She also stated that she had no duties in regard to the preparation of the ATP ledgers which were Sowell's responsibility. She did not know who replaced Sowell when she was absent from the office prior to March 1976, when Sowell's food stamp operation was moved to the main office. After that date, she did make ledger entries when Sowell was absent but only to provide the typists with some work to do. She never checked the typed ATP's against the ledger on these occasions. She stated that on these occasions she never made a ledger entry without an authorizing document. Moreover, according to her testimony, she never typed an ATP card or caused anyone else to type false information on a card. She also testified that she never owned an Adler typewriter, never used one to fulfill her duties as church clerk, and never discussed a typewriter with her ex-husband. She also denied having ...