APPEAL from the Circuit Court of Cook County; the Hon. DANIEL
WHITE, Judge, presiding.
MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant was found guilty of two counts of official misconduct and sentenced to three years probation and one year of periodic imprisonment. On appeal, he contends that: (1) he was denied due process where evidence of other acts of misconduct was admitted at his trial; (2) the prosecutor made improper opening and closing statements; (3) the trial court erred in allowing the jury to use his handwriting exemplars in its deliberations; and (4) he was not proven guilty beyond a reasonable doubt. We reverse and remand. The pertinent facts follow.
Defendant, who was president of the Central Area Park District in Maywood from 1968 to 1969 and from 1971 to June 3, 1975, was indicted for six counts of official misconduct. Two counts were nolle prossed prior to trial. Counts I and II alleged that he solicited and accepted a fee of $6,000 in his capacity as a public official from William Valkner on or about April 8, 1974. Counts IV and V alleged that he solicited and accepted a $2,000 fee from Valkner on or about May 2, 1974.
Prior to trial, defense counsel objected to the State's motion requesting the court to order defendant to provide handwriting exemplars. The court granted the State's request and reserved until later the question of whether this exemplar could be used in examination or entered before the jury.
In his opening statement, the prosecutor told the jury that Valkner operated a landscaping business and had to pay defendant in order to get the contract to do landscaping for the Central Area Park in Maywood. He indicated that defendant was thrown out of office. Defense counsel objected, but the State indicated the evidence would show this. The prosecutor continued his statement, telling the jurors that the evidence would show that Valkner was required to carpet defendant's girlfriend's house, to which the defense objected and was refused a sidebar.
The jury was also told that defendant told Valkner he would get paid after a tax referendum. The prosecutor indicated that defendant held a tax referendum to obtain more money to pay off contractors from whom he had been stealing. Defense objected but was overruled. The prosecutor further stated that the day the new president of the park district was elected, defendant hired people to take records out of the park district. Defense counsel's objection to this statement was also overruled.
Lastly, the prosecutor indicated that defendant received $8,000 and services from Valkner so that Valkner could get paid from a public body. The defense moved for a mistrial at the close of the State's opening statement, indicating it contained inflammatory characterizations and statements beyond the evidence. The court reversed its earlier rulings, thus sustaining defense's objections, but indicated that the evidence of the removal of the records would be admitted if the State could connect it up, and denied the defense motion for a mistrial.
Following defense's opening statement, the court indicated that it was reversing its ruling on the admission of other work done because of its reading of applicable law and because the defense could have made a motion in limine to exclude this evidence. The court told the jury, upon their return to the courtroom, that the objections to the State's opening statement were overruled, but not to consider it as evidence.
Valkner testified that he was president of the Abendale Landscaping Company until 1975 when it went out of business. He submitted a bid to the Central Area Park District in 1973 when he received the plans and bid specifications of the project. He met with Alan Caskey in the early or middle part of January 1974 at the park district offices. Defendant was also present at this meeting. Valkner told defendant that he could not pay the $6,000 that he had requested unless it was returned to him in salary, and, only if defendant would agree to pay the income taxes on that amount. Defendant agreed to pay $1,200 to Valkner to cover taxes. He received the written contract from defendant and was told that he would also have to decorate and furnish a park district office.
Valkner stated that he prepared a pay request for $22,000 and submitted it to defendant, who told him he would have to pay back the $6,000 previously agreed to. He told defendant that it would be difficult to justify his pay request because inside work was not allowed under HUD funding. He was told to redo the pay request to accommodate the $6,000. He then received a check from the park district in the amount of $28,000, of which he returned $6,000 to defendant.
Valkner met with defendant and Theodore Elders, the park district's treasurer in April 1974. He was told there would have to be a second pay-off of $1,500 done in the same way as the first. After Elders left the office, defendant increased the amount to $2,000. He prepared another pay request for $23,700 and received payment from the park district, whereupon he met defendant at the home of Geraldine Broome on May 2, 1974, and returned $2,000 of these monies to him. He had been at Broome's home on a prior occasion to remove a broken tree. Defendant requested him to relandscape his yard, for which the park district was billed. He was also requested to redecorate Broome's basement and install carpeting in her bedroom and hallway. He did not redecorate the basement but he did install the carpeting and added this amount to his contract.
Valkner indicated that he submitted more pay requests under the contract as he completed all the work. In June 1974, defendant informed him that the park district was low on funds and there would be no money until the tax revenues came in. In October 1974 he received a $2,500 check from defendant. Defendant told him that once a tax referendum was passed he would get paid more money.
On cross-examination, Valkner stated that he recorded the $6,000 and the $2,000 payments to defendant on company books as an officer's loan. He also admitted that he did not pay Federal or social security taxes for his employees, even though he filed sworn quarterly statements with the government, indicating these amounts were being deposited.
At the end of Valkner's testimony, the State indicated it was going to call Broome to testify. The defense made a motion to exclude her as a witness as her testimony was not relevant. The State indicated that her testimony would in part corroborate Valkner, and this evidence was so entwined that the offense of putting in the carpeting would show the relationship between Valkner and defendant. The defense indicated that the common scheme or design exception did not apply as there was no evidence to indicate that Valkner was required to do the work in order to get paid. The ...