Appeal from the Circuit Court of Cook County; the Hon. Kenneth
L. Gillis, Judge, presiding.
JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
A jury convicted defendant of theft (Ill. Rev. Stat. 1979, ch. 38, pars. 16-1(a)(1), (b) (1)), and conspiracy to commit theft (Ill. Rev. Stat. 1979, ch. 38, par. 8-2), from which he appeals. He had been charged with obtaining $4,064.50 from State of Illinois warrants (checks) by filing fraudulent "circuit breaker" tax rebate applications, issued pursuant to the Senior Citizens and Disabled Persons Property Tax Relief Act. Ill. Rev. Stat. 1979, ch. 67 1/2, pars. 401 through 412.
The principal issues presented for review are whether: (1) other warrants from which defendant received proceeds, but which were themselves time-barred from prosecution, were properly admitted in evidence; and (2) the jury was properly instructed as to co-defendant's guilty plea testimony.
Defendant and Eva Brown *fn1 were charged on May 5, 1980, in a 61-count indictment with having fraudulently obtained 50 State circuit breaker property tax rebate warrants between September 29, 1976, and June 30, 1977, totaling $10,793.43. The circuit court concluded that the 29 applications for tax relief allegedly filed by defendant constituted 29 separate transactions rather than one continuous transaction as the State contended. The State amended to reflect only those warrants cashed within the statute of limitations, namely, from June 14, 1977, to June 30, 1977 (surviving counts). The circuit court allowed the State to introduce in evidence the earlier time-barred warrants for the limited purpose of showing common scheme, design, intent, or other similar motives, "or any of the other reasons set forth in the cases."
The State called 21 witnesses; the defense called none. The State's evidence essentially showed the following: to qualify for circuit breaker tax relief, one must be 65 years old, or disabled and over 16 years of age; be a resident of Illinois both at the time of application and for the time period for which one seeks that assistance; have paid rent or property taxes during that period; and have an annual income of less than $10,000. The application forms required one's name, address, social security number, date of birth, income, and amount of his property taxes or, if he were renting, the name and address of his landlord, the period of time he had been renting from him, and the amount he was paying. The original 50 circuit breaker applications which defendant had allegedly prepared with the foregoing information, and the warrants that were issued pursuant to them, were received in evidence.
Applications relating to the surviving counts were labeled exhibits 2A1 through 2A18 and those relating to the stricken counts were marked exhibits 3A1 through 3A32. Before the latter were introduced, the circuit court informed the jury that no charges had been brought against defendant in connection with them and admonished the jury that they could be considered only for the limited purpose of showing defendant's knowledge, intent, motive, absence of mistake, or common design. Certain warrants marked exhibits 4B1 through 4B18 were issued pursuant to those applications previously marked 2A1 through 2A18, relating to surviving counts; warrants marked exhibits 5B1 through 5B32 related to stricken applications marked exhibits 3A1 through 3A32. Before admitting the latter series of cancelled warrants into evidence, the circuit court again admonished the jury as to the limited purpose for which they were being admitted. Each warrant bore the applicant's name, address, social security number and a specific dollar amount, and had been returned cancelled, the amounts specified having been debited from the State's accounts. Almost none of the names and social security numbers entered on the earlier series of applications matched; some of the social security numbers had not yet been issued by the Federal government.
Brown and her fiance, Johnny Isabel, had opened a joint checking and a joint savings account on June 12, 1976, at La Grange State Bank. Exhibit 15 was a deposit ticket copy processed June 29, 1977, showing a net deposit of $2,400 into Brown and Isabel's checking account that day. Warrants 4B1 through 4B11 bore the bank's stamp indicating payment of the funds involved. All these warrants were processed at the same time and constituted the exhibit 15 deposit. Exhibit 16 was a deposit ticket copy processed July 12, 1977, in the amount of $1,050.63, credited to Brown and Isabel's savings account when exhibits 4B12, 4B13 and 4B14 were presented for payment that day and matched the amounts stated on those warrants. A series of other deposit slip copies marked exhibits 18 through 27 were matched with a number of warrants that had been presented for payment and credited to one or the other of Brown and Isabel's joint accounts, with the jury first having been admonished by the circuit court as to the limited evidentiary purpose involved.
Exhibit 36 was a business checking account signature card which defendant had signed at Union National Bank on behalf of Geno's Tax and Information Center (Geno's). Exhibit 37 was a similar card which defendant had signed at the same bank on behalf of Community Service and Information Bureau (Community). Exhibit 17 was a copy of a check for $1,200 drawn by Brown on the La Grange State Bank made payable to Ernest Parker which bore his endorsement and Community's limited, "for deposit only" endorsement. The check was paid and credited to Community's account. Exhibit 33 was a copy of a check for $100 drawn upon La Grange State Bank, signed by Brown and made payable to Community which was endorsed by Geno's "for deposit only" and credited to the same account. Exhibit 34 was a copy of a check for $800 drawn upon La Grange State Bank, signed by Brown, payable to Community, endorsed by it, and credited to its account.
Witnesses testified with respect to unauthorized use of their names on rebate applications, improper addresses, losses of their wallets, unauthorized endorsements on tax rebate warrants, and in one case, the death of an applicant six years before the application was filed. One witness stated that defendant had come to her house four or five times. Defendant had called her before trial and told her not to testify against him.
Eva Brown testified that she owned and lived in a two-flat at 7342 South Harvard Street, Chicago, where she ran a senior citizens' sheltered care home. She admitted receiving circuit breaker warrants, exhibits 4B1 through 4B11, which had been addressed to her sheltered care home. When she received them, she called defendant, who endorsed them. Brown then gave the checks to Isabel, who deposited them in one of their joint accounts at the La Grange State Bank. She wrote exhibit 17, a check for $1,200, payable to Ernest Parker, at defendant's request and in his presence. She cashed warrants marked exhibits 4B15, 4B16, 4B17 and 4B18 at a local currency exchange because she received them on a Saturday, when banks were closed, and gave defendant half the money she received. She had been indicted for her part in these activities and been charged with theft and conspiracy to commit theft. She was to plead guilty and, in exchange for her testimony, the State's Attorney's office was to recommend that she receive probation rather than a jail sentence.
Before continuing, the circuit court again informed the jury that the evidence they were then about to hear was being admitted for the limited evidentiary purpose, which it detailed. Brown then explained that defendant suggested she fill out circuit breaker applications for six or seven senior citizens under her care. Two or three weeks later, after "her people" had received their warrants, defendant told her that he needed a mailing address for others. She permitted him to use her address in the hope that some of them would stay with her. Brown had seen warrants marked exhibits 5B1 through 5B32 before. Some she received through the mail and others defendant brought her. Defendant told her to open a bank account to facilitate their cashing, which she did. She always gave him half the money, sometimes in cash and other times by check. A few days before she was scheduled to testify, defendant told her not to testify against him; that if she did not, his trial would soon be over; and suggested that she get a new lawyer and ask for a jury trial herself.
On cross-examination, Brown admitted that she had been told by the State's Attorney that she would be sentenced to from two to five years in the penitentiary for what she had done if she did not plead guilty and agree to testify against defendant.
Johnny Isabel, a fork-lift truck driver, testified he had known Brown for 15 to 20 years and she was his "lady." He and she opened a joint checking and a joint savings account at the La Grange State Bank where he already had two savings accounts of his own. He never put any of his money into either joint account and withdrew money from them only when Brown asked. He signed several deposit slips and presented many checks for deposit on her behalf, in particular exhibits 4B12, 4B13 and 4B14. After the circuit court again instructed the jury as to the limited evidentiary purpose of the evidence to follow, Isabel testified that he had deposited many other checks for Brown, which he then identified.
James Piper, an assistant State's Attorney, testified that on March 15, 1978, while he was supervisor of the Welfare Fraud Unit, defendant told him that he owned the Community Service and Information Bureau. Defendant consented to and signed a "permission to search" statement, exhibit 62, which authorized the search of his place of business and seizure of any letters, papers, or other property. Piper, accompanied by two policemen, seized and removed all defendant's files containing circuit breaker applications. Exhibits 44 through 55 were copies of claim forms found in defendant's files. They were paired with the originals that had been filed with the State and previously had been marked exhibits 2A1 through 2A14. Following the circuit court's cautionary instruction as to evidentiary ...