Appeal from the Circuit Court of Cook County; the Hon.
Nicholas T. Pomaro, Judge, presiding.
PRESIDING JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Defendant, Daniel Kissinger, was charged with theft of services and obtaining services with intent to defraud. The services in question involved the transmission of 97 mailgrams and five overseas telephone calls, all of which were charged to another person without that person's authorization. After a trial without a jury, he was found guilty of both charges and was sentenced to periodic imprisonment for four weekends.
Victor Weiss operated an automobile repair business in Kenilworth, Illinois. Over defense objection, Weiss testified that he repaired the brakes of defendant's pick-up truck in July 1981. A month later defendant complained that the brakes were not working properly, and installation of a new part cost defendant an additional $80.
In October 1981, Weiss, who is Jewish, began receiving magazines to which he had not subscribed. They were addressed to J. Mengele, whom Weiss recognized as a German war criminal. Other addressees were Nazi generals and admirals. In November 1981, Weiss began to receive confirmations of mailgrams sent in his name to various people around the country. Weiss was billed a total of $450 for the mailgrams, none of which had been sent or authorized by him. Some of the mailgrams announced that Weiss was about to merge with a large company. Other mailgrams asserted that because the addressees owed Weiss at least $400, he did not wish to do business with them. Many mailgrams were sent to people in the neighborhood informing them that, because they were classified as semites, Weiss did not want to do business with them. Merchandise was also ordered in Weiss' name and unauthorized newspaper ads for his business resulted in thousands of telephone calls.
Thomas Hartel, a friend and fellow college student of defendant, testified for the State that defendant had complained of being ripped off by Weiss, "that Jew in Kenilworth." In the presence of another student, Adam Schellenberg, defendant added that possibly something could be done about it. In November 1981, Schellenberg told Hartel and defendant that he had placed orders for magazines and merchandise for Weiss. During the same month, defendant and Hartel were present when Schellenberg called in mailgrams for Weiss Tire Company.
On cross-examination and on examination by the court, Hartel stated that it was Schellenberg's idea to send the mailgrams and that he had not seen defendant order any of them. Schellenberg was harassing Weiss in exchange for defendant's help in writing a letter to a school dean. Hartel also stated that he had been charged with regard to sending the mailgrams.
After a recess, over defense objection, the State was allowed to recall Hartel on the grounds that new evidence had come to light. Hartel then testified that he and defendant had helped write the mailgrams and had helped look up the addresses. Furthermore, it was defendant's idea to use Mengele's name. Defendant, Schellenberg and the witness all made overseas telephone calls and charged them to Weiss.
Adam Schellenberg testified for the State and corroborated the testimony of Hartel that defendant had helped compose the mailgrams and had helped find addresses, and that both he and defendant had made telephone calls to England and New Zealand in Weiss' name. It was Schellenberg's idea to send mailgrams, and it was defendant's idea to use Mengele's name.
Defendant testified that he had been a little upset about the brake work done by Weiss and he told Hartel and Schellenberg that he had been ripped off by Weiss, referring to him as a Jew. Defendant denied expressing any desire to get even with Weiss, denied sending any magazines to Weiss or making any telephone calls in Weiss' name. Defendant was not present on November 7 and 20 when mailgrams were sent, nor did he have any previous knowledge of these mailgrams. Although Schellenberg told him of his plan to send the November 14 mailgrams, defendant was present for only a few minutes and he did not participate in any way.
On cross-examination, over defense objection, defendant was asked whether his referral to people as Jews ever had an anti-semitic connotation and whether he was anti-semitic, whether he harassed Jews in his business and whether he automatically added a surcharge for all Jewish customers. Defendant denied all this and denied that he had dressed up as Hitler.
Moreen Alexander, a customer of defendant, testified in rebuttal that defendant informed her he did not like working in West Wilmette because of all the Jews and though that they should get rid of West Wilmette. Schellenberg testified in rebuttal that defendant told him he automatically added a $5 surcharge for all of his Jewish customers. In October 1981, Schellenberg saw defendant walking on their campus dressed as Hitler, complete with ROTC uniform, boots, swastika, penciled-in mustache, and hair parted on the side. Defendant was not dressing in that manner for a Halloween party.
On appeal defendant contends that the trial court erred in allowing testimony regarding materials sent prior to the alleged offense; that it erroneously admitted evidence regarding the ethnic background of Weiss and of the persons whose names appeared on the magazine labels; that it erred in allowing defendant to be cross-examined with regard to his anti-semitic attitude and behavior and in allowing rebuttal testimony based upon defendant's denials of such behavior; that it erred in allowing Hartel to be recalled; that the prosecutor's closing argument was prejudicial; and that defendant was not proved guilty beyond a reasonable doubt.
We first address defendant's contention that the trial court erred in admitting evidence that, prior to the alleged offense, defendant sent magazines to Weiss in the names of Nazi war criminals.
• 1 Evidence of other crimes is generally inadmissible to show that defendant had a propensity to engage in the criminal activity with which he was charged. (People v. Lehman (1955), 5 Ill.2d 337, 125 N.E.2d 506.) However, such evidence may be admissible if relevant for another purpose. (People v. McDonald (1975), 62 Ill.2d 448, 343 N.E.2d 489.) Proof of other crimes tending to establish motive, intent, absence ...