Appeal from the Circuit Court of Cook County; the Hon. John P.
McGury, Judge, presiding.
JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
Defendant, Alberta Peebles, was indicted along with her husband, Eugene Peebles, on 111 counts of theft and one count of conspiracy to commit theft. The two co-defendants' cases were severed and after a jury trial, Alberta was convicted of conspiracy and acquitted of theft. She was sentenced to two years. On appeal from her conviction of conspiracy to commit theft, the defendant contends that her conviction was invalid on two grounds: (1) she was not proven guilty beyond a reasonable doubt and (2) the statute of limitations had run on the conspiracy count. She also contends that she was denied a fair trial because her husband's testimony was stricken and because the State made improper and prejudicial remarks to the jury during closing argument. Finally the defendant contends that she received an excessive sentence.
The State contends that the defendant for a period of 10 years, starting in June 1967, conspired with her husband to defraud the State of Illinois out of approximately $130,000. The State presented extensive documentation as evidence of the existence of a conspiracy. This evidence revealed that in June 1967, the defendant filed an application for public aid due to the desertion of her husband. She indicated her address as 6425 South Parnell and her husband's as 222 East 60th Street. She informed the State that Eugene had been working at Ward Baking Company and was earning approximately $120 per week. Other documentary evidence refutes the above information given to the Department of Public Aid. These documents indicate that on several occasions during 1967-1968, Ward reascertained Eugene's address, and its personnel records listed his home address as 6425 South Parnell. In addition, Eugene's income for 1967 from Ward was $11,116 and for 1968 was $10,346. These amounts totaled nearly twice the amount the defendant informed the State her husband was earning for those time periods. Further documentation reveals that Eugene opened a bank account at Michigan Avenue National Bank in March 1970, and the home address listed was the same as the defendant's. Eugene was the sole signator.
This pattern of identical addresses for the defendant and Eugene, despite her claim of desertion, can be traced by the documentation for each of the following years of the alleged conspiracy. The defendant informed the State in November 1971, that she had moved to 10535 South Prairie Avenue. In January 1972, the defendant received a public aid warrant for $125. Subsequently, this instrument bore two endorsements, the defendant's and Eugene's, and was stamped with the account identification number of Eugene's savings account at Michigan Avenue National Bank. Moreover, in 1971, a mortgage was executed on the 10535 South Prairie property bearing the names of both Alberta and Eugene Peebles. In 1972, Eugene filed a signature card at a currency exchange and also listed her home address as 10535 South Prairie. In October 1973, the defendant filed a signature card at the same currency exchange and also listed her home address as 10535 South Prairie. In 1974, Eugene founded a corporation, and as its incorporator, listed his address as 10535 South Prairie. He also opened a checking account for the corporation and had the statements mailed to the Prairie Avenue address.
In February 1975, the defendant informed the State that she had moved to 12110 South Emerald Avenue. In March 1975, she requested additional assistance listing the same Emerald Avenue address. In July 1975, an official from the State conducted a redetermination visit upon the defendant at 12110 South Emerald Avenue. The defendant was asked about any changes in her income and the whereabouts of her husband. She continued to represent that Eugene was not living with her and that he was earning $120 per week. Eugene worked at Ward Baking Company until November 1974, at which time he applied for unemployment compensation. The unemployment records list Eugene's address in November 1974 as 10535 South Prairie; he also listed 12110 South Emerald as his address for 1975. Eugene Peebles earned well over $10,000 each year he was employed at Ward.
The defendant's address for 1976 was listed with the Department of Public Aid as 9106 South Harvard. Also in 1976, Eugene's signature card at the currency exchange was amended to reflect the new address at 9106 South Harvard and also to allow the defendant to negotiate checks that named Eugene as payee. Between May and June of 1976, seven unemployment warrants were sent to Eugene at 9106 South Harvard; five of those checks were deposited in a joint savings account Eugene held with the defendant at the Union National Bank. In 1976, an additional corporation was set up by Eugene, Gino's Tax and Information Center. Eugene was listed as the owner, living at 9106 South Harvard. Gino's also had an account at Union National Bank. During 1976, two particular deposits into Gino's account were welfare warrants issued to the defendant. In addition to the defendant's endorsement, these warrants bore second endorsements, providing, "Pay to the order of Union National Bank of Chicago for deposit only Gino's Tax and Information Center."
In April 1977, the defendant applied for food stamps and listed her address as 9106 South Harvard. She also indicated that her "Aid to Dependent Children" was her sole source of income. In August 1977, Ms. Joanne Cobb, a caseworker for the Department, went to 9106 South Harvard for a redetermination visit of the defendant. At trial, Cobb testified that when she arrived, a young boy directed her to the kitchen where she observed a man cooking. Cobb was then informed by the defendant that the man was Eugene and that they had reconciled. The defendant then instructed Cobb to cancel her aid since Eugene was presently employed on a full-time basis.
Robin Kunze, a document examiner for the Illinois Department of Law Enforcement, testified that the endorsements that appeared on public aid warrants issued to the defendant that were deposited in Eugene's account and on unemployment warrants issued to Eugene were positively identifiable as the defendant's signature.
Arthur Turner, a friend of Eugene, testified for the defense stating that he had known Eugene since 1969 and as far as he knew, Eugene had never lived with his family. Bobbie Richards, the defendant's daughter, testified that she had lived at home from 1967 to 1972 and that her father did not live with them during that time period.
Finally, after waiving his rights under the fifth amendment, Eugene testified for the defense. He testified that he moved out of 6425 South Parnell in 1967 and that he moved back with his wife in 1977 for a month or two. He stated that his wife did not sign a mortgage on the 10535 South Prairie property and that he never discussed the bank accounts at Michigan Avenue National Bank and Union National Bank with the defendant. On cross-examination, Eugene refused to answer any more questions on the grounds that to do so would tend to incriminate him, after the State attempted to impeach him regarding prior inconsistent statements about his residence. The trial court then struck all of Eugene's testimony and instructed the jury to disregard it. The jury returned a verdict of guilty on the charge of conspiracy to commit theft.
Pursuant to section 8-2 of the Criminal Code of 1961, the requisite elements of conspiracy are (1) an agreement to commit an offense, (2) with an intent the offense actually be committed, and (3) the commission of an act in furtherance of the agreement by a co-conspirator. (Ill. Rev. Stat. 1977, ch. 38, par. 8-2.) However, because of the clandestine nature of the conspiracy agreement and the foreseeable difficulty of the prosecution's burden of establishing the defendant's conspiratorial intent and agreement by direct proof, the courts> have permitted broad inferences to be drawn from the circumstances, acts and conduct of the parties. People v. Mordick (1981), 94 Ill. App.3d 497, 418 N.E.2d 1057.
• 1 In the instant matter, the State presented extensive documentation tending to show that the defendant and Eugene were not separated as the defendant had represented to the Department of Public Aid, and that Eugene was earning more than the defendant had suggested. Furthermore, the State's evidence tended to show that the defendant and Eugene were sharing their income, thus making the defendant's receipts of public aid fraudulent. We believe that the cumulative effect of the substantial circumstantial evidence is sufficient to justify a finding of guilty of conspiracy to commit theft. People v. Weaver (1982), 92 Ill.2d 545, 442 N.E.2d 255.
A second issue raised on appeal by the defendant is that her conviction of conspiracy is invalid because the statute of limitations had run on the conspiracy count. In Illinois, the statute of limitations for conspiracy is three years after the commission of the offense. (Ill. Rev. Stat. 1977, ch. 38, par. 3-5(b).) Case law provides that every overt act in furtherance of a conspiratorial agreement is a renewal of the conspiracy, and the statute of limitations begins to run from the date of the commission of the last overt act. (People v. Isaacs (1967), 37 Ill.2d 205, 226 N.E.2d 38.) Included as an act in furtherance of the conspiracy are subsequent efforts of concealment which are directed at enabling the conspirators to escape punishment. People v. Meagher (1979), 70 Ill. App.3d 597, 388 N.E.2d 801.
• 2 The indictment in the present action, brought on June 23, 1979, charged the defendant with conspiracy to commit theft "on or about April 2, 1975, July 2, 1975 and August 23, 1977." Without dispute, the first two dates alleging conspiratorial acts are clearly not within the applicable three years statute of limitations. The third date listed in the indictment, August 1977, does come within the three-year period. However, the defendant asserts that the August 1977 act, which was when the defendant told the State caseworker that she and her husband had reconciled and that she no longer needed public aid, was not an act in furtherance of the conspiracy. We disagree. The evidence presented at trial is clearly sufficient for a jury to draw the inference that the defendant and Eugene had consistently lied to the State regarding their living arrangements and their income level. It appears that the Peebles were living together continuously from 1967, despite the defendant's representation to the contrary, so that, the time Cobb made an unannounced redetermination visit on the defendant, it became necessary for the defendant to conceal the long-term fraud she and Eugene had been perpetrating on the State by telling Cobb that Eugene had just moved back home. As previously stated, the law provides that subsequent efforts of concealment are acts in furtherance of the conspiracy, therefore, the defendant's attempt to conceal from the State her 10-year-long fraud was an act in furtherance of the conspiracy. This act in August 1977, was well within the three-year statute of limitations period. Accordingly, the defendant's conviction of conspiracy is not invalid.
• 3 The defendant next contends that she was denied a fair trial because Eugene's testimony was completely stricken from the record. It is well established that a defendant who takes the stand in his own behalf, is not entitled to claim the privilege against self-incrimination on cross-examination on matters reasonably related to the subject matter of his direct examination. (Jenkins v. Anderson (1980), 447 U.S. 231, 65 L.Ed.2d 86, 100 S.Ct. 2124.) The defendant must testify truthfully and accurately and in order to assure compliance, the prosecution is equipped with, and obligated to use, the traditional truth-testing devices of the adversary process. Harris v. New York (1971), 401 U.S. 222, 28 L.Ed.2d 1, 91 S.Ct. 643.
• 4 In the instant matter, after voluntarily waiving his fifth amendment rights Eugene testified for the defense. However, during cross-examination, Eugene asserted his right against self-incrimination when asked questions regarding matters in which he testified during direct. While Eugene is not the defendant, the legal principles stated above equally apply to a nonparty witness. Eugene's testimony on direct was not subject to proper cross-examination due to the assertion of his fifth amendment right. This testimony was untested and clearly unreliable; thus, the trial court acted properly by striking Eugene's testimony from the record.
The defendant further asserts that she was unfairly and substantially prejudiced by improper remarks made by the State during closing argument. However, the defendant has waived the issue of any impropriety in the State's remarks by failing to object ...