APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
511 N.E.2d 847, 158 Ill. App. 3d 232, 110 Ill. Dec. 670 1987.IL.1051
Appeal from the Circuit Court of Du Page County; the Hon. Robert A. Nolan, Judge, presiding.
PRESIDING JUSTICE NASH delivered the opinion of the court. LINDBERG, P.J., and INGLIS, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH
Defendant, Louis Early, was convicted of official misconduct (Ill. Rev. Stat. 1985, ch. 38, par. 33-3(b)) and he appeals, contending that: (1) due process required the trial court to dismiss the indictments against him; (2) he was not proved guilty beyond a reasonable doubt of one of the counts of official misconduct; and (3) he was improperly ordered to make restitution in an amount exceeding the losses sustained by the clerk of the circuit court as a result of defendant's criminal conduct.
Defendant was charged with five counts of official misconduct and after a stipulated bench trial he was found guilty on all counts. Defendant was sentenced to a two-year term of probation, 191 days' imprisonment in the county jail with credit for time served, and he was ordered to make restitution of $5,400.
Prior to trial, the defendant filed a motion to dismiss the indictments, alleging that the sheriff of Du Page County had agreed not to file criminal charges against him if defendant made certain inculpatory statements and made restitution. Defendant alleged that he had fulfilled his part of the agreement, and that due process required that the criminal charges against him be dismissed in accordance with the agreement by the sheriff. The motion was denied by the trial court.
The defendant also made a pretrial motion to suppress statements, alleging that the statements were not voluntarily made and, after a hearing, the trial court suppressed defendant's statements.
At the stipulated bench trial, the prosecutor stated that the stipulated facts included that the defendant was employed by the sheriff of Du Page County as a sheriff's deputy and was on duty on the dates of June 23, July 5, July 11, July 27, and August 5, 1984, and his assignment on those dates was to collect bond money. That Christine Santa Maria and Marguel Garza would testify that on August 5, 1984, they gave defendant $500 bond money to obtain the release of a person then in custody and were given a receipt signed by defendant, but the records of the sheriff's office did not show that the money had been received. That James Picardi would testify that on July 11, 1984, he gave $150 to the defendant for a bond and received a receipt, but the sheriff's records did not evidence that money had been received. That Paul Rothe would testify that on June 23, 1984, he gave defendant $1,000 in cash in order to post bond, and he received a receipt, and the records failed to indicate that the sheriff received that money. Peter Gorski would also testify that on July 5, 1984, he gave defendant $1,500 in order to post bond, and received a receipt, but again the records of the sheriff's office did not show this transaction. Also, Robert and Donald Bendis would testify that on July 27, 1984, they gave defendant $500 bond money and received a receipt, but the sheriff's records did not show that the men had posted this money.
In addition, the prosecutor stated that each of the persons posting a bond was shown a roster book containing 240 pictures of people employed by the sheriff's department and all identified the defendant as the man to whom they gave their cash for the purpose of posting bond. The prosecutor further stated that the records in the sheriff's department did not reflect that bond money was received from those persons, and the money actually received by the sheriff balanced with the amount reflected in the sheriff's records. The persons involved had receipts which were either signed by the defendant or were left unsigned. The prosecutor stated that as part of the stipulation the parties would agree that the witnesses would identify the defendant in open court.
Defense counsel then clarified the facts by making certain corrections and additions. He stated that James Picardi picked out four photographs, saying that defendant was the one to whom he may have given the money, but he was not sure. Defense counsel further elaborated on Picardi's identifications, stating that Picardi had said that none of the other three men, whose photos he had chosen, was the man to whom he gave the bond money. Also, that the deputies would testify that while the defendant was assigned to take the bond money on the dates at issue, he was not the only person working at the jail at that time. Defense counsel stipulated that the State's witnesses would testify as stated, with the corrections noted.
Defendant contends first that the trial court should have dismissed the indictments because the sheriff entered into an agreement not to proceed criminally against him. At the hearing of defendant's motion to dismiss the indictments, a tape of an interview conducted by Staff Sergeant Zaruba of the defendant was played. During the interview, Zaruba stated, "At this time, Lou, you realize we are not going criminally on this, it's just an internal thing." After the defendant denied taking the money, Zaruba said that he was aware that defendant was operating under the stress of financial strain, and stated, "The Sheriff realizes that, and that's why he's going this way instead of criminal." Zaruba added, "He hopes, and I hope, that we can end everything right here and get it taken care of without going in that direction." After defendant asked Zaruba what he wanted, Zaruba said, "I just want the truth, I want to get everything laid out so we can end the whole, the whole scenario here. The whole investigation, the whole everything, right here, right now, and we'll take care of it without going any further action, without me giving you these."
At the hearing, the defendant testified that Zaruba had motioned to some criminal complaints made out against the defendant when Zaruba stated that if he gave a truthful statement "these" would not have to be given to him. Defendant testified further that he was not advised of his rights, and that before he made inculpatory statements, Zaruba turned off the tape and promised that there would be no criminal prosecution. According to defendant, Zaruba called the sheriff during their meeting, then told defendant that the sheriff demanded full restitution and that the sheriff promised that no criminal prosecution would ensue if he cooperated fully and disclosed any knowledge as to misappropriation of funds. The defendant then made admissions as to four occasions on which he took bond money and he agreed to make restitution, to resign his position, and to assign his accrued pay. Defendant testified he later met with the sheriff, who ...