Appeal from the Circuit Court of Cook County; the Hon. Robert
J. Collins, Judge, presiding.
PRESIDING JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 18, 1983.
Defendant, Anthony R. Martin-Trigona, appeals his conviction for forgery and theft (Ill. Rev. Stat. 1975, ch. 38, pars. 17-3(a), 16-1(a)), and raises the following issues for review: (1) whether the court erred in finding him guilty of theft; (2) whether the court erred in failing to dismiss the forgery counts and in finding him guilty of forgery; (3) whether an indictment may be voted by less than a quorum of informed grand jurors; (4) whether the indictment should have been dismissed because of improper conduct by the prosecutors before the grand jury; (5) whether his prior conviction was improperly introduced into evidence; and (6) whether his sentence was based on improper considerations.
We affirm in part and vacate in part and remand, with directions.
Most of the facts in this case are undisputed. In early 1977, defendant decided to construct 14 townhouses on property he already owned in Champaign, Illinois. The real estate was held as a land trust by the National Boulevard Bank and Trust Company. Defendant employed Gene T. Hardwick as architect, and the latter recommended John Wright as contractor. In February 1977, the Bloomington Federal Savings and Loan Association (Bloomington) made a construction loan to defendant of $400,000. The project was insured for $500,000 by the Maryland Casualty Company. The building was partially complete when all but five units were destroyed by fire in June 1977. Defendant decided to complete only the five remaining townhouses, and the construction loan was reduced to 5/14ths of the original amount, $142,500.
The insurance company paid a partial settlement of $60,000 which Wright used to continue the project. Defendant and Wright disagreed on whether or not to accept the insurance company's settlement offer of $327,738. Defendant believed the settlement should be for $345,000, but Wright wanted to settle for the lower amount because of cash flow problems. When Wright discounted the remaining work by $18,362, defendant agreed to sign the proof of loss for $327,738. Wright prepared a change order which represented the amount of money needed to finish the building. He wrote on the document that the net balance due to him was $45,125.75. He gave this document to defendant just before defendant signed the proof of loss.
The insurance company issued a draft for $267,738 which represented the remainder of the settlement, payable to the National Boulevard Bank as trustee for defendant, Bloomington and Wright. Wright picked up the draft in Milwaukee, Wisconsin, and delivered it to defendant in Chicago around November 1, 1977. Defendant directed the National Boulevard Bank to endorse the draft to himself so that he could negotiate it at the closing on the construction loan.
Ralph Sackett, a loan officer at the University Federal branch of Bloomington, prepared the final settlement statement after conversations with defendant and Wright. The $267,738 draft was to be split three ways: Bloomington was to be paid about $150,000, the amount necessary to reduce the mortgage to $142,500; Wright was to be paid $42,342, an amount described as including retainage; and defendant would receive the remainder, $72,433.
Defendant, Sackett, Wright and architect Hardwick attended the closing on November 8, 1977. Wright had not finished the building on that date. A dispute arose between Wright and defendant. Defendant said that he only owed Wright $45,000 because that was the net balance due which Wright had listed on the proof of loss. Wright insisted that he was owed an additional $39,000 for retainage. Ten percent had been held back from each pay-out to Wright to be paid when he obtained a certificate of completion from the architect; Hardwick never issued this certificate. Defendant offered to put the disputed amount into escrow and settle the dispute by litigation. Wright refused this offer and refused to endorse the draft. Bloomington would not settle without Wright's signature on the insurance draft.
After the failure to reach a settlement, defendant typed on the back of the draft "Anthony R. Martin-Trigona, Attorney in Fact for Bloomington Federal Savings and Loan" and "Anthony R. Martin-Trigona, Attorney in Fact for John Wright." Defendant signed his name and had his signature guaranteed at the National Boulevard Bank. Neither Bloomington nor Wright gave defendant authority to sign on their behalf. Defendant deposited the draft in his personal checking account at LaSalle National Bank in Chicago on November 10, 1977.
A $50,000 check dated November 7, 1977, and drawn on defendant's LaSalle account was returned for insufficient funds the first time it was presented. On second presentment, after deposit of the settlement draft, it was paid. On November 23, 1977, defendant requested a wire transfer of $175,000 to defendant's personal account in the Connecticut Bank and Trust Company. Defendant used these funds to purchase a 30-day $115,000 certificate of deposit in January 1978, and later, a 7-day $100,000 bank note. Eventually the money wound up in the account of a New Haven radio station which defendant owned. The parties stipulated that all withdrawals from the LaSalle Bank and the Connecticut Bank were written and authorized by defendant and used by him to make payments on various mortgages or loans.
In December 1977, defendant approached Bloomington about a settlement and filed a lawsuit against it and Wright. Defendant never advised Bloomington or Wright that he had negotiated the draft. In April 1978, when Bloomington discovered that the draft had been cashed, it contacted the Cook County State's Attorney.
Bloomington made a total pay-out on the construction loan of $270,000. When the loan was first made, Bloomington charged $8,000, or two points. This was not reduced when the loan was renegotiated to the amount actually paid. Defendant never paid interest on the loan and never made any mortgage payments. Bloomington instituted foreclosure proceedings, and the property was sold for $115,000. Neither Wright nor Bloomington ever received any proceeds of the settlement draft.
Defendant was indicted on three counts of forgery and four counts of theft. At trial defendant testified that he acted in economic self-defense. He stated that he never intended to defraud or permanently deprive Wright or Bloomington of their share of the proceeds. After doing his own legal research, defendant, a law school graduate, decided that the payees on the settlement draft were tenants in common. His strategy was to gain control of the money, precipitate or file a lawsuit, and let the court decide on the proper distribution of the proceeds. Defendant claimed that there were defects in the building, that Wright had waived the right to his retainage, and that Bloomington should have reduced the points because the original construction loan was reduced.
On rebuttal, defendant's Federal conviction of mail fraud was received into evidence. And, at the close of this bench trial, defendant was found guilty on all counts and sentenced to the custody of the Attorney General of the United States for three years, the sentence to run concurrently with a sentence imposed by a Federal judge on September 26, 1980. Defendant appeals his conviction.
Defendant's first contention is that the court erred in finding him guilty of theft because he did not intend to permanently deprive Wright and Bloomington of their property. Defendant argues that his endorsement of the draft constituted economic self-defense because Bloomington was billing him for interest every day until the loan was paid. His filing of a lawsuit against Bloomington and Wright in December 1977 was a good faith attempt to settle the dispute. Defendant's signing of the draft in his own name and the deposit of the insurance proceeds in his own accounts showed no intent to hide his actions. His use of the money to pay mortgages and for contract purchases of real estate was the best way to keep the money from depreciating. Finally, ...