Appeal from the Circuit Court of Cook County; the Hon. John N.
Hourihane, Judge, presiding.
JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Opinion filed January 31, 1984. Rehearing denied March 27, 1984;
Andrea J. Dungy (defendant) appeals from her September 30, 1981, conviction by a Cook County circuit court jury of retail theft (Ill. Rev. Stat. 1979, ch. 38, par. 16A-3(a)) and the trial court's April 1, 1982, order denying her post-trial motions. Defendant was sentenced to six months' conditional, non-reporting discharge.
On appeal, defendant contends that the trial court erred in: (1) violating her fifth and fourteenth amendment rights by denying her pretrial motions thereby allegedly allowing her to be twice subjected to prosecution for the same crime; (2) permitting the jury to separate during deliberations; (3) giving the "Prim Charge" jury instruction; and (4) denying her post-trial motions.
On October 21, 1977, defendant was arrested at Marshall Field's (Field's) State Street store in Chicago after being detained on suspicion of "shoplifting" by a store security guard, Thomas Seablom (Seablom). Seablom signed a complaint charging defendant with the theft of a purse. Defendant was accused of the theft of a purse valued less than $150. On November 14, 1977, this complaint was filed in Cook County circuit court. On June 7, 1979, because the original complaint apparently had been misplaced and was unavailable, the State was granted leave by the trial court to file a "substitute" complaint. On November 28, 1979, prior to the beginning of trial, the State was, over defendant's objection, granted leave of court to amend the June 7, 1979, complaint changing the description of Field's from "an Illinois corporation licensed to do business in the State of Illinois" to "a retail mercantile establishment" as prescribed by the retail theft statute (Ill. Rev. Stat. 1979, ch. 38, par. 16A-3(a)). On November 28, 1979, defendant's first trial ended in a mistrial due to her hospitalization. On January 21, 1980, following her second trial, defendant was found guilty of retail theft. On May 5, 1980, the trial court granted defendant's motion for a new trial based on the possibility that "manufactured" evidence was used at trial. *fn1 On January 14, 1981, defendant's third trial ended with a hung jury and, upon defendant's motion, a mistrial was declared.
On September 21, 1981, prior to the start of defendant's fourth trial, she filed a motion to dismiss the charges against her. She contended that reprosecution would violate her rights to be free from "double jeopardy." Defendant also argued that the original complaint of October 21, 1979, was "insufficient as a matter of law to sustain the charge of retail theft" and that the second complaint was improperly filed. On September 22, 1981, defendant's motion was denied and defendant's fourth trial began.
Thomas Seablom, a Field's store security guard, testified to the following:
On October 21, 1977, Seablom was on duty in the fifth floor Wabash area of Field's Chicago State Street store when he observed defendant remove a purse from around the neck of a display mannequin, "take the price tag off the purse and drop it on the floor and insert the purse into a plastic bag." Defendant then approached the "adjustment desk" and "requested a refund." She was "unable" to obtain a refund and carrying her own purse and the plastic bag containing the display purse, she walked from the adjustment desk to a "down" escalator. Seablom got on the escalator behind defendant, identified himself as a Field's security guard and asked her to accompany him to the second floor security office. Defendant did so. Defendant was taken to a small interrogation room and the plastic bag she was carrying was taken from her by Seablom. Seablom returned to the fifth floor and retrieved the price tag that defendant allegedly dropped on the floor. When he returned to the interrogation room, he searched the contents of defendant's purse. In so doing he noted and recognized the name of defendant's brother, Dennis Dungy, as that of an individual he had detained for shoplifting one year earlier. Seablom "assumed" that defendant and Dennis Dungy were related.
During cross-examination Seablom acknowledged that during a previous trial in this matter he testified that defendant told him that she was attempting to exchange the purse because of a defect.
Three other Field's security guards, including two supervisors Charles Brown and Timothy J. Bogert, testified to the procedures utilized by Field's when securing materials to be used as possible evidence in future prosecutions.
Samuel Toia, a Field's employee, next testified to the following:
On October 21, 1977, while working in the fifth floor shoe department, he saw defendant "walk up to a display and take a handbag off a display." Defendant placed the handbag in "a bag" and then walked around a coat display to the adjustment desk where defendant requested a refund. He contacted a floor manager, Susan Lawler, and told her what he had seen. He then "returned to [his] business."
During cross-examination Samuel Toia acknowledged that only two days before her arrest he had unsuccessfully attempted to sell defendant a coat. Toia stated that although defendant "was dissatisfied [he] didn't have her size," he could not say that she had insulted him.
The State rested and defendant's motion for a directed verdict was denied.
Dennis Dungy testified on his sister's behalf to the following:
In 1976 he was detained by Thomas Seablom on suspicion of "shoplifting." He was arrested on that charge after Seablom signed a complaint. The State's objection to Dennis Dungy's further testimony regarding that incident was sustained. Defense counsel, however, was permitted to make a "question-and-answer" offer of proof for the purpose of establishing Seablom's alleged bias toward defendant and her family. Following the offer of proof, the court concluded that the testimony added nothing to the testimony previously elicited during the State's case in chief and, as such, would not be presented to the jury. *fn2 The court explained that "the testimony of [Dennis Dungy] does not indicate that the party who arrested him had any knowledge of who his sister was at the time the incident [October 21, 1977] occurred."
Other defense witnesses included defendant's mother, Mildred Dungy, who stated that defendant was "given the privilege to use" her Field's charge card. Loretta Kinach-Boffa, a Field's employee, testified that a sales receipt offered in evidence by defendant reflected that on October 18, 1977, three days before defendant's arrest, Boffa had in fact sold an "Aigner" purse model number 4115 priced at $62. Jim Jensen, another Field's employee, testified that the price tag allegedly retrieved by Seablom after observing defendant tear it from the display purse and drop it on the floor, contained a "style number" different than that of the purse defendant was accused of ...