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People v. Shaw





Appeal from the Circuit Court of Cook County; the Hon. Roger J. Kiley, Judge, presiding.


Following a jury trial, defendant was convicted of two counts of theft and sentenced to consecutive four-year terms. On appeal, he contends that (1) the trial court erred (a) in not dismissing one of the indictments because there was no grand jury testimony concerning his involvement and because a witness' testimony before the grand jury was perjured, (b) in admitting into evidence photographs of the vehicles involved in the offenses as well as certain business records, and (c) in allowing two State's witnesses to testify concerning certain documents and to give expert testimony; (2) he was denied a fair trial when a mistrial was refused after a witness testified concerning newspaper articles about insurance fraud; (3) he was not proved guilty beyond a reasonable doubt; and (4) he was improperly sentenced to consecutive terms.

It appears that on February 11, 1980, Anthony Capinegro drove his white 1979 Lincoln Mark V, vehicle identification number (VIN) 9 Y89S615650, into a tree. His insurance company — Allstate — paid him on the basis that the car was a total loss, and it was then sold for salvage. Then, on July 13, 1980, defendant went to a Chicago police station and filed an accident report, stating that while driving a white 1979 Lincoln Mark V having the same VIN-9Y89S615650 — he was struck by a Hunt's U-Drive rental truck. He returned to the station the next day to report that the car radio had been taken from the car while it was parked at the scene of the accident. Thereafter, defendant settled his claim against Hunt's, receiving two checks from them — one for $7,350 and the other for $383.

On July 26, 1980, a man identifying himself as Stansbury, who was later identified as defendant, walked into a different police station and reported that his white 1979 Lincoln Mark V — subsequently determined to have the same VIN as the Capinegro car — had been involved in a collision with a Ryder Truck Company rental truck. Two days later, he returned to the police station to report that his car radio was taken while he was reporting the accident. He settled his claim for damages because of this incident with Earl Podolsky of Ryder Truck Company, receiving a check in the amount of $8,286 — which the record shows was deposited into the savings account of defendant's wife.

Capinegro testified that on February 11, 1980, he was driving his white 1979 Lincoln Mark V on the driveway to his home when the car skidded on some ice on a hill, bounced off a small tree, and smashed into a larger tree. His insurance carrier — Allstate Insurance Company — notified him that they considered the car a total loss, and after receiving a $12,640.25 check for the vehicle, he transferred the title to Allstate. He testified that three sets of photographs — People's group exhibits A, B, and C — *fn1 portrayed the condition of his car as he observed it upon returning from the hospital, except that the hood of the car was missing in groups B and C. He also testified that the crack in the windshield depicted in groups B and C showed where he hit his head.

Brian Hanson, the property unit claims manager for Allstate, testified that one of his responsibilities was Allstate's total loss unit, which, among other things, appraised vehicles when the damages exceeded the value of the car itself. In this case, he authorized the classification of Capinegro's car as a total loss, and payment was made on that basis; Allstate then sold the car for salvage to A-1 Auto Sales without doing any repair work on it. He testified also that photo groups A, B, and C depicted the same automobile and that, based on his 12 years of experience, the damage shown in the B group of photographs was not caused by an automobile or a truck but by contact with some type of large cylindrical object such as a pole or a tree. He testified, on redirect examination, that the differences he saw in the photographs showed the different angles used by the photographers, rather than any actual difference in the damages, and that, although the angles made comparison more difficult, he had no doubt that the damages were the same in all three groups of photographs.

Officer Peron testified that defendant and another individual came into the station on July 13, 1980, to report an accident, and they made out an accident report stating that their vehicle was struck broadside by the rental truck. Defendant also told him that the people in his car had been injured and were going to the hospital after he finished reporting the accident.

Officer Demaar testified that defendant came into the station on July 14, 1980, to report that the radio had been taken from his car while it was parked at the scene of the accident.

Farron Brougher, a casualty claims adjuster for General Adjustment Bureau, whose position involved investigation, evaluation, and settlement of such casualty claims, testified concerning the contents of his company's file on the adjustment of the reported accident on July 13, 1980, involving defendant and the Hunt's truck, driven by Richard Breakfield. Brougher stated that the repair estimate for the Lincoln was $10,741 and the point of contact was the front end. Brougher settled the claim of defendant for $7,350 and also paid $383 for defendant's son's personal injury claim.

Hector Hunt, president of Hunt's U-Drive truck rental, testified that Richard Breakfield rented a truck on July 12, 1980, and returned the truck on July 13, 1980. Hunt's procedure upon both rental and return of a truck requires an employee to walk around the truck to check for damage and to make a notation on the rental contract if there is any such damage to the truck. This rental contract did not have such a notation, and after he found out that the truck was reported to have been involved in an accident, Hunt notified his attorney and also asked General Adjustment Bureau to investigate the incident. He also stated that he personally inspects a truck if it has been involved in an accident where there is a possibility of personal injury, and he did so here on the day after the truck was returned and found the condition of the truck to be the same as it was prior to the rental, with no apparent additional damage. Hunt told his law firm that the truck was not damaged, but his company eventually settled with defendant, his son, and defendant's two passengers.

Officer Pearson testified that he handled a walk-in traffic accident report on July 26, 1980, involving an International truck driven by a Mr. Paige, a 1979 Lincoln (having the same VIN as the Capinegro car) driven by Mr. Stansbury, and a Volkswagen. He testified that front-end damage was reported on the Lincoln.

Officer Marva Smith testified that two individuals came into the station on July 28, 1980, one of whom identified himself as Edward Stansbury and reported that his car radio was taken from his car after he had an accident on July 26, 1980. Officer Smith also testified that she had seen both individuals on July 26 when they came to the station to report the original accident, and she identified defendant as the individual who had given his name as Edward Stansbury.

Earl Podolsky, a safety manager for Ryder Truck Rental, testified that the truck allegedly involved in the July 26, 1980, accident was rented by Carlos Paige on that same day and, although the rental contract indicated that the truck was "dispatched with damage," no additional damage to the right front corner was noted on the contract when the truck was returned. Two days after the Ryder accident report was made, Podolsky received a telephone call from the individual who was driving the Lincoln, and after discussing the incident with him, Podolsky called Independent Auto Appraisers to obtain an estimate on the collision repairs. The photographs of the truck showed only minor damage, such as a bent bumper, scrapes on the fender, and scrapes at the rear of the hood. He also testified that he told "Edward Stansbury" in person at the Ryder offices on August 18, 1980, that he would have to have proof of title before the claim could be finalized. "Edward Stansbury" also gave Podolsky a new address at that time — 2111 East 83rd Street — which the record indicates is the address of defendant. Podolsky testified that he also spoke to "Mr. Stansbury" on August 26, when the latter signed a release of his claim against Ryder and received its check in settlement. Podolsky identified defendant as the individual with whom he spoke at the Ryder offices and who had given his name as Edward Stansbury. On cross-examination, he stated that the Ryder file contained a certificate of title for the 1979 Lincoln Continental which listed the VIN as 9Y89S615650, the purchase date of the vehicle as June 8, 1980, the issue date of the certificate as July 3, 1980, and the name and address of the owner as Edward Stansbury of 2208 East 68th Street.

Don Baron, formerly employed as an appraiser by Auto Damage Appraisers, testified that he followed normal procedures during the appraisal of the 1979 Lincoln for Ryder truck, which included taking photographs of its damaged areas, and he suggested to Ryder that the car be considered a total loss. He also testified that the condition of the damage shown in People's group exhibit B was very similar to the damage in the group exhibit C photographs taken by Auto Damage Appraisers. He testified that the point of impact seemed to be identical in exhibits A-2, B-1, and C-2; that from the damage it looked like the car hit a post, a tree, or a fireplug; and that, if the Ryder truck did the damage depicted in the photographs of the Lincoln, the truck would have suffered more damage because it had a fiberglass hood or nose. He did not believe that the damage on the truck was related to the damage to the Continental. On cross-examination, he stated that in photographs A-2 and B-1, the grill, head, mirror, and bumper guard were not in the same position in both pictures, and he agreed to several other minor discrepancies pointed out by defense counsel. He also stated that several of the items appeared to be at a different angle because the car was photographed from ...

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