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04/21/89 the People of the State of v. James Furby Et Al.

April 21, 1989





537 N.E.2d 1133, 181 Ill. App. 3d 872, 130 Ill. Dec. 804 1989.IL.583

Appeal from the Circuit Court of Du Page County; the Hon. Robert A. Nolan, Judge, presiding.


JUSTICE WOODWARD delivered the opinion of the court. McLAREN, J., concurs. JUSTICE LINDBERG, Dissenting.


Following a jury trial, the defendants, James and Thomas Furby, were found guilty of theft in excess of $300 (Ill. Rev. Stat. 1985, ch. 38, par. 16-1(a)). Each defendant was sentenced to 24 months' probation, ordered to perform 50 hours of public service employment, and held jointly and severally liable to pay restitution in the amount of $1,177.56. Both defendants appeal from their convictions.

At trial, the witnesses testified as follows. James Lawson, the complaining witness, testified that on November 7, 1985, he and his partner, Vincent Valentino, owned a restaurant known as Vincenzo's Pizza & Pasta Restaurant. Michael Phillips was employed as the manager. The defendants were employed as pizza deliverymen and had worked for Lawson since August 1985.

Upon the closing of the restaurant each night, Lawson would take home the day's receipts, leaving the petty cash in the cash drawer. Although Lawson usually closed the restaurant at night, on November 7, 1985, he left the restaurant between 2 p.m. and 3 p.m. and did not return until the next morning. Phillips was in charge of closing the restaurant and handling the cash. Phillips was to take the cash receipts and lock them in the cash drawer in Lawson's office, which was in the back of the restaurant. Lawson generally kept about $300 in petty cash in the upper right-hand drawer of his desk. He also kept his business checkbook and payroll disbursement book in the same drawer. The door to the office was normally locked. When Lawson left the restaurant on November 7, 1985, everything was in its place in his office. The back door to the building was in good condition.

At 8 a.m. on November 8, 1985, Lawson entered the restaurant by the front door. While everything in front appeared to be in order, Lawson discovered the door to his office ajar, and that the back door to the building had jimmy marks on it which had not previously been there, and the door had been pried in half. Lawson then observed that the lock on the cash drawer had been pulled off. The drawers on the right-hand side of the desk were empty, but the drawer on the left side of the desk as well as the filing cabinet did not appear to have been touched. The business checkbook was missing, as was the payroll book, which was later found in a dumpster in the alley. Over defense objection, Lawson testified that the register tape showed that $658 should have been in the cash drawer, in addition to the petty cash. Nothing was left in the cash drawer except the cash register receipt.

Lawson further testified that he would make cash disbursements to his employees in his office, and consequently, employees would be present in his office when the cash drawer was open because the office was adjacent to the kitchen. Both defendants had been present on occasions when Lawson would take cash out of the register and place it in the cash drawer in his office. Although at various times both defendants had been given permission to remove money from the cash drawer, neither of them had permission to do so on November 7, 1985.

On cross-examination, Lawson testified that in addition to Phillips and the defendants, there were three other persons employed at the restaurant. Although Lawson signed a complaint charging the defendants with theft on February 3, 1986, he continued to employ both defendants, as well as Michael Phillips. Although James Furby ceased working for Lawson immediately after the warrant for his arrest was issued, he left of his own accord. Michael Phillips (who was interviewed by police but apparently never charged) left a short while after James Furby. Thomas Furby continued to work for Lawson until August 1986. Lawson continued to entrust money to Thomas to make change with on his pizza delivery route. Lawson stated on redirect examination that after the instant charges had been filed, he watched the money he entrusted Thomas with very closely.

On inquiry by the trial Judge, Lawson testified that on November 7, 1985, he had just under $200 in the petty cash plus another $200 in coin and currency which, together with the amount on the register receipt, made a total of approximately $1,058 which should have been in the cash drawer.

Officer Michael Riddle of the Downers Grove police department testified on behalf of the State as follows. On November 8, 1985, at approximately 8:39 a.m., he was dispatched to investigate a complaint of a suspected burglary at Vincenzo's Pizza & Pasta Restaurant in Downers Grove. Upon his arrival at the restaurant, he met the owner, James Lawson. Officer Riddle observed that the rear door had jimmy marks on it and a slide lock nailed to a piece of wood was broken. In Lawson's office, Riddle observed that the padlock on the upper right desk drawer was broken off and the drawer was open on the right side of the desk, though not on the left. Lawson advised him that all the money was kept on the right side of the desk, and it was all missing. Also missing were the payroll checks and other checks used in the business, along with a roll of coins. Officer Riddle located the payroll book in a dumpster in the alley to the rear of the building. When Officer Riddle inquired as to how much money had been taken, Lawson estimated about $800. He was not sure whether a money drop had been made or if his wife had taken home some of the money.

On cross-examination, Officer Riddle testified that Officer Karmia, an evidence technician, arrived on the scene at his request. Officer Karmia was responsible for lifting any fingerprints or footprints at the scene and for photographing the scene. Officer Riddle did not recall if any photographs of the scene were taken. He was aware that Officer Karmia dusted for fingerprints, but he could not recall if any fingerprints were lifted from anything or not. Officer Riddle could not recall if any footprints were taken from the paper strewn on the floor, although one check was taken to have fingerprints lifted from later. Officer Riddle stated there were footprints outside the back door which he believed were photographed by Officer Karmia.

Sergeant Byrne of the Downers Grove police department testified for the State as follows. While a detective, he was assigned to investigate a burglary that occurred at Vincenzo's Pizza Parlor. On December 19, 1985, he conducted an interview with defendant James Furby at the Downers Grove police department. Detective Reinhart was also present during the interview. Byrne advised James that he wished to speak to him about the incident at Vincenzo's restaurant. He further advised James that he was not under arrest and was free to leave at any time. According to Byrne, James indicated that he was willing to speak to the two police officers.

James related to Byrne and Reinhart that on the night of November 7, 1985, he, his brother Thomas, and Michael Phillips had devised a plan to stage a burglary at Vincenzo's and take the day's cash receipts from the cash drawer. James obtained a crowbar and put pry marks on the back door to make it look as though someone had pried the back door. Phillips then took the crowbar and pried open the drawer of the desk where the cash was kept. James threw paper and some checks around to make it look as though a burglary had actually occurred. He also threw a book of business checks into the dumpster. After Phillips removed the money from the cash drawer, James, Thomas, and Phillips went to Phillips' apartment in Woodridge, where they divided up the money. The money was divided up evenly, and James received somewhere between $175 and $180.

James then inquired whether it would be possible to make restitution to the restaurant. After Byrne told him he would look into that possibility, the interview was terminated, and James left the police department. Byrne denied supplying any of the specifics of the burglary to James prior to the interview.

Byrne also interviewed Thomas Furby in connection with his investigation of the burglary at Vincenzo's at the Downers Grove police station. Detective Kirk Schwebe was also present during the interview. Byrne administered Miranda warnings to Thomas, who indicated that he ...

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