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03/17/89 the People of the State of v. Thomas Clankie Et Al.

March 17, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

THOMAS CLANKIE ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

536 N.E.2d 176, 180 Ill. App. 3d 726, 129 Ill. Dec. 492 1989.IL.351

Appeal from the Circuit Court of Stephenson County; the Hon. Lawrence A. Smith, Jr., presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. UNVERZAGT, P.J., and REINHARD, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

Defendants, Thomas Clankie, a/k/a Tom or Tommy Clankie, and Karen Clankie, appeal from the judgment of the circuit court of Stephenson County finding them guilty of the offense of State benefits fraud (Ill. Rev. Stat. 1985, ch. 38, par. 17-6(a)). The trial court sentenced Thomas to four years' imprisonment and Karen to 30 months' probation conditioned upon her performing 1,000 hours of public service and serving 60 days in jail. Two issues are raised on appeal: (1) whether the trial court erred in refusing to authorize defendants, who are indigent, to hire an independent handwriting expert to assist in their defense; and (2) whether the trial court erred in considering the statutory provisions for good-behavior allowance when sentencing Thomas. We affirm.

On April 3, 1986, a grand jury indicted defendants for theft, State benefits fraud, and conspiracy based on defendants' alleged acts of obtaining and receiving public aid by failing to report that Thomas was employed on a full-time basis and by misrepresenting his domicile. Defendants were appointed separate trial counsel, and each waived the right to a trial by jury. The trial court scheduled a bench trial for January 20, 1987.

On December 26, 1986, the State filed a motion requesting handwriting exemplars from both defendants. On January 20, 1987, the scheduled date of trial, the State renewed its request for handwriting exemplars and also moved for a continuance. The trial court granted the State's motions and continued the cause for trial to March 17, 1987. The court set February 15, 1987, as the cutoff date for discovery. The State did not disclose the results of the handwriting analysis until March 3, 1987, and did not identify its expert until March 9, 1987. The State's expert, Fabian Tasson, was an employee of the Illinois Department of Public Aid, the State agency which is the designated victim in this action.

On March 10, 1987, Thomas filed a motion to have an independent handwriting expert appointed to assist him in his defense. No hearing was scheduled on his motion. On March 17, 1987, prior to trial, Thomas renewed his motion. Although the court invited argument on that motion, Thomas did not argue its merits. Rather, Thomas complained generally about the discovery that had taken place up to that point and noted that he had only recently received disclosure of the State's handwriting expert and the results of his tests. Thomas also argued that the State had not made a timely disclosure of 15 to 17 of its witnesses and ultimately sought to bar the testimony of those witnesses. Karen joined in that request. The court declined to bar the testimony of the State's witnesses and stated instead that it would hear objections to each witness at the time the witness was called. Thomas did not seek a ruling on his motion to appoint an independent handwriting expert, and the trial commenced on schedule.

On March 18, 1987, prior to Tasson's testimony, Thomas objected to the State calling Tasson as a witness. Thomas argued that the State had not disclosed the results of the handwriting analysis until March 3, 1987, and had not disclosed Tasson's identity until March 9, 1987. Thomas argued in the alternative that if Tasson was allowed to testify, the trial court should provide Thomas with an independent handwriting expert. Karen joined in that request. The court overruled Thomas' objection to Tasson being called to testify and denied defendants' request for an independent handwriting expert on the basis that it was not timely. The court concluded that defendants waived their objection to Tasson's testimony since they knew that a handwriting expert would be called and failed to object when he was not disclosed by the discovery cutoff date. The court also concluded that defendants' request for appointment of an independent handwriting expert was not timely, stating that it was not "appropriate to wait until the middle of trial."

According to evidence introduced at trial, defendants began receiving benefits from the Illinois Department of Public Aid in 1980 for themselves and their minor children. Defendants were advised to report any changes in income. Defendants did not report any income from employment despite testimony indicating that Thomas worked as a motor route driver for the Freeport Journal Standard and earned approximately $1,100 per month. Thomas was paid in checks made out to "Fred" Clankie. Fabian Tasson, the State's handwriting expert, testified that the Freeport Journal Standard checks made out to "Fred" Clankie and the public aid checks written to Thomas Clankie bore endorsements in the handwriting of Thomas Clankie, Karen Clankie, or both. A witness from the Illinois Department of Public Aid testified that defendants' benefits, which fluctuated between $348 and $491 per month, would have been discontinued if a member of the household was employed full time.

Other evidence indicated that in July 1983, Karen reported that Thomas no longer resided in the household. Karen reiterated that representation in December 1984 and again in July 1985. However, in November 1984, in an unrelated court proceeding, Karen testified that she and Thomas were living together. In addition, several neighbors testified that Thomas was residing in Karen's household during the period that Karen represented that he was absent.

On April 1, 1987, the trial court filed a memorandum of opinion finding defendants guilty of the offense of State benefits fraud. The remaining charges ...


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