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04/26/88 the People of the State of v. Wayne Cihak

April 26, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

WAYNE CIHAK, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

523 N.E.2d 975, 169 Ill. App. 3d 606, 120 Ill. Dec. 64 1988.IL.605

Appeal from the Circuit Court of Cook County; the Hon. James M. Schreier, Judge, presiding.

APPELLATE Judges:

JUSTICE STAMOS delivered the opinion of the court. HARTMAN, P.J., and SCARIANO, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS

Defendant, Wayne Cihak, was charged with using a fictitious name and making a materially false statement on an Illinois application for a certificate of car title. The trial court found defendant guilty. Defendant appeals contending that the court erred in admitting evidence of defendant's prearrest silence and that he was not proven guilty beyond a reasonable doubt.

On December 19, 1984, Chicago police John Miller arrested defendant for knowingly permitting "another to register a vehicle with a fictitious name and address with the Illinois Secretary of State." Defendant's information charged that defendant was in violation of section 4-105(a)(5) of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 4-105(a)(5)). Section 4-105(a)(5) provides that it is a violation for:

"person to use a false or fictitious name or address or altered, forged, counterfeited or stolen manufacturer's identification number, or make a material false statement, or fail to disclose a security interest, or conceal any other material fact on any application for any manufacturers statement of origin, certificate of title, junking certificate, salvage certificate, registration card, license plate, temporary registration permit, or registration sticker or commit fraud in connection with any application under this Act." Ill. Rev. Stat. 1983, ch. 95 1/2, par. 4-105.

The following evidence was adduced at trial. On December 13, 1984, Officer Miller, who was assigned to a special law enforcement team that investigated professional organized auto theft criminal activities, received a telephone call from Sergeant O'Keefe of the Skokie police department. Pursuant to this telephone conversation, Officer Miller obtained a 1983 Buick Regal (Buick) with Illinois license plate number FSN 980 from the Skokie police department and brought it to the auto pound.

Officer Miller commenced an investigation of the theft of the Buick. He discovered that the Buick's vehicle identification number was lG4AJ47AEH102499. The Secretary of State's office sent Officer Miller a license plate application form and a certified copy of the title for the Buick. While the license number on the chain of title was the same license number that was on the Buick, the VIN number on the chain of title was not the same VIN number that Officer Miller found on the Buick.

The last document on the certified chain of title was an application for an Illinois title dated June 22, 1984. The application referred to the Buick and listed the VIN number as lG4AJ47A7DH837712. The name of the applicant was John Daves or Davis (Daves) and the address that appeared below Daves' name was 1520 North Sheridan Road, Wilmette, Illinois, 60091. It appeared that Daves had signed the application. The application listed the Buick's seller as Ideal Auto Sales of 2853 South Kedzie and revealed that the Buick's title was to be mailed to C&J Automotive Enterprises, Ltd., 1780 North Milwaukee Avenue, Chicago, Illinois, 60647.

Upon receiving this information, Officer Miller endeavored to locate Daves. Officer Miller took the driver's license number that was assigned to that name and placed it into the computer. The computer revealed that there was no record of that driver's license number. Officer Miller's partner endeavored to locate Daves at the Wilmette address.

On December 19, 1984, Officer Miller and Sergeant Patrick McCafferty proceeded to C&J Automotive Enterprises, Ltd., located at 1780 North Milwaukee Avenue in Chicago. Defendant is the co-owner of C&J Automotive Enterprises, Ltd., doing business as Milwaukee Avenue Auto Parts. Defendant was present in the store; Officer Miller and Sergeant McCafferty then questioned defendant.

Officer Miller gave defendant the information regarding the Buick and the fact that the title had been mailed to defendant's address. He asked defendant to explain it. Defendant answered that he remembered it and that John, a friend of his, had asked him to secure an Illinois title for the vehicle and that it was necessary that a registered Illinois dealer apply for an Illinois title for the vehicle. Defendant stated further that he hand carried the application for title to the Secretary of State's office and that he paid the $550 tax and $3 application fee; Daves later reimbursed him in full.

Officer Miller asked defendant who John Daves or Davis was and defendant responded that Daves owned a body shop on Lawrence Avenue and that defendant had seen Daves at automobile auctions. Officer Miller then asked defendant to telephone Daves so that Officer Miller could speak to him. Defendant called Daves but hung up the phone after defendant was told that "John" was not there and would be back until later that afternoon.

Officer Miller asked defendant to redial the number so that Officer Miller could confirm what defendant had just told him. Defendant complied; he redialed and handed the telephone over to Officer Miller. Officer Miller did not recognize the voice of the person who answered the telephone, but he asked if there was a person named John Daves or Davis there. The person on the telephone answered that there was no one there with that name. Officer Miller asked who was the owner of the shop and was told that it was John Hernandez.

Officer Miller hung up the telephone and confronted defendant. Officer Miller told defendant that he felt that defendant was trying to deceive him. Officer Miller told defendant that he did not believe that there was such a person as John Daves at that telephone number and that he believed that defendant attempted to deceive him when defendant made the first call and hung up before Officer Miller had a chance to talk to the party. Defendant made no response; he remained silent. At this point, Officer Miller placed defendant under arrest, advised him of his rights, and transported him to the police station at 1121 South State Street in Chicago.

After defendant was brought to the State Street police station, Officer Miller asked defendant if defendant would look at some photographs to see if he could identify the person that he knew as John. Defendant identified the photograph of one Joseph Mack and told Officer Miller that this was the person that he knew as John.

Defendant testified to the following. Defendant is the co-owner of Milwaukee Avenue Auto Parts. Milwaukee Avenue Auto Parts holds a wrecker's, rebuilder's, and dealer's license. Its primary business is selling auto parts, and side businesses ...


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