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People v. Rodriguez





Appeal from the Circuit Court of Cook County; the Hon. Kenneth Gillis, Judge, presiding.


Rehearing denied February 3, 1984.

Following a jury trial, defendant was found guilty of burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19-1) and sentenced to an extended term of 10 years. On appeal, defendant contends that: (1) the trial court erred in denying his motion for a continuance predicated on the sudden death of his 14-year-old daughter; (2) the State injected improper and prejudicial evidence which suggested that defendant had committed prior crimes; and (3) the State's improper comments during closing argument prejudiced defendant's right to a fair trial. For the reasons stated below, we affirm the judgment of the trial court.

Defendant was charged with the burglary of Midwest Wire Specialties Co., Inc. (MWS), Chicago, during which a quantity of blank payroll checks was taken. Pursuant to the record, the parties first appeared before the trial court on March 3, 1982, and after seven continuances, were scheduled to commence jury selection on May 24, 1982. On that date, defendant presented a motion in limine requesting a one-week continuance on the ground that he was suffering from extreme mental distress as the result of his daughter's death from cancer the previous day, and, as a result, his ability to make trial strategy decisions, such as jury selection, was extremely impaired. In response, the court stated that accommodations would be made for defendant to attend the wake and funeral. However, the motion for continuance was denied on the grounds that (1) the illness was not sudden; (2) defendant knew that his daughter had cancer, thus, had time to prepare himself mentally for this eventuality; (3) defendant failed to present any evidence to establish that people are physically or mentally incapacitated as a result of such a tragic event; and (4) defendant failed to prove that to proceed would prejudice his right to a fair trial.

Thereafter, John Radzak, MWS plant manager, testified that upon arriving at the plant on November 13, 1981, approximately 6:45 a.m. he noticed that one of the plywood panels had been knocked out of the rear garage lift door, leaving an opening approximately two feet wide. Inside the plant, Radzak noticed that the main office door was hanging by one hinge and the lock was pulled out, all of the plywood on the office side was ripped out of the wall, desk and cabinet drawers throughout the offices were ransacked, and the washroom and closet doors were open. He immediately notified the police about the break-in, but did not report anything stolen as nothing appeared to have been taken.

Radzak further stated that MWS employs approximately 35 people, all of whom he knows. To his knowledge, defendant was never employed at MWS. Radzak then identified several obsolete MWS payroll checks which the company had stopped using in December 1980, but he did not recognize the signature on any of them. Further, Radzak did not recognize the photo identification card purportedly issued by MWS and stated that MWS has never issued employee identification cards of any kind.

On cross-examination, Radzak stated that until the president of MWS told him on November 13 that some blank obsolete payroll checks had been removed from a cardboard box that she kept in a closet outside her office, he did not know such checks even existed. Radzak had never seen defendant on the MWS premises and did not see defendant take the payroll checks.

Next, Marion Sitkiewicz, president of MWS, testified that when she arrived at the plant on November 13, 1981, she was told that there had been a burglary, but that nothing had been taken. At that point, she asked if anyone had checked the box of blank obsolete payroll checks which were on the shelf in the coat closet. The checks were packaged chronologically in plastic-wrapped bundles of 50. As she looked through the checks, Sitkiewicz noticed that a series of 250 checks were missing from the middle of the box. After calling the bank to stop payment, Sitkiewicz called the police, informed them about the missing checks and gave them the check numbers. From approximately two weeks following the burglary until the beginning of February 1982, Sitkiewicz received approximately 30 calls from angry local business people. Others came to MWS in person, complaining about stop-payment checks they had received. Sitkiewicz then identified the checks from the missing series, stating that the dollar-amount stamp used on the front of the checks was different from that which had been used by MWS. Further, the signature on the checks was not that of Radzak which it purported to be. In fact, Radzak had never had authority to sign payroll checks. Sitkiewicz also confirmed that MWS has never issued employee identification cards or printed caps.

On cross-examination, Sitkiewicz stated that in addition to herself, only the bookkeeper would have known about the existence of the blank payroll checks. When the checks arrived from the printer, the numbers were verified to be certain none were missing. The box which contained the checks had only the number sequence written on it and had been on the closet shelf since December 1980. The closet does not lock and is accessible to anyone who is working in the main office. Sitkiewicz had never seen defendant on the MWS premises and did not see him take the checks. On redirect, Sitkiewicz stated that, prior to November 13, 1981, she had never received complaints from local businessmen about payroll checks from the missing series.

Fred Lauback, evidence technician for the Chicago police department, testified that because of the pervasive oil-smoke mist which covered virtually every surface in the MWS plant and offices, he was unable to procure any fingerprints.

Next, John Iberle, manager of New Division Pulaski Currency Exchange (the Exchange), Chicago, testified that on November 28, 1981, defendant attempted to cash an MWS payroll check, made out to Jaimie Rodriguez. For identification, defendant gave Iberle his Illinois driver's license and social security card. Because Iberle had never cashed an MWS payroll check, he telephoned a currency exchange located near MWS to verify the company's existence and also checked the serial number against the "fraud card" issued by the Currency Exchange Association. When he noticed that the serial number on the check presented by defendant was one of those reported stolen, he dialed the police and locked the front door via an electrical switch in his office. While he was trying to get through to the police, another customer tried to enter the Exchange, but could not because the door was locked. Iberle told defendant to tell the other customer that the Exchange was closed and continued trying to reach the police. Suddenly, Iberle heard loud noises from the front of the Exchange and saw defendant kicking out the glass panel on the door. At that point, Iberle unlocked the door, but defendant escaped through the kicked-out panel anyway. When the police arrived, Iberle gave them the MWS payroll check plus defendant's driver's license and social security card.

Rosie Ramos, cashier at Balaban Furniture Store, Chicago, testified that on December 6, 1981, approximately 6 p.m., defendant purchased a television set on layaway, using a MWS payroll check for down payment and receiving change from the transaction. For identification, defendant gave Ramos a photo employee identification card purportedly from MWS. The picture on the card was of defendant. On December 8, approximately 6 p.m., defendant returned to make another payment on the television set. Again, he made the payment with a payroll check from MWS, showed his identification card and received change. Two days later, approximately 8:30 p.m., defendant, wearing a white painter's hat with the MWS name on the front, returned to make his final payment. This time, however, because Ramos had been informed by the store's bank that defendant's payroll checks were bogus, she summoned the police and told the sales manager to keep defendant busy until they arrived. At trial, Ramos identified the two MWS payroll checks that she had cashed and identified the photo identification card as depicting defendant.

Next, Victor Rivera, Chicago police officer, testified that when he arrested defendant at Balaban Furniture Store on December 10, 1981, he found an MWS payroll check in defendant's right sock. Rivera then identified the check he had removed from defendant's sock and identified defendant as the person he had arrested.

David Wechsler, owner of two retail clothing stores in Chicago, testified that on December 24, 1981, defendant purchased approximately $100 worth of clothing from one of his stores with an MWS payroll check from which he received change. Wechsler then identified defendant as the purchaser and identified the check he had used to pay for his purchases. Several days later, Wechsler received a similar check from his bank, marked "stop payment," which had been used to pay for purchases at his other store. When Wechsler ...

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