Appeal from Circuit Court of Piatt County. No. 89CF12. Honorable John P. Shonkwiler, Judge Presiding.
As Corrected May 13, 1994. Released for Publication June 1, 1994.
Honorable Robert J. Steigmann, J., Honorable James A. Knecht, J., Honorable Frederick S. Green, J.
The opinion of the court was delivered by: Steigmann
JUSTICE STEIGMANN delivered the opinion of the court:
In April 1990, a jury convicted defendant, Scott Alan Morrison, in absentia, of four counts of theft by deception of property having a value in excess of $300, a Class 3 felony (Ill. Rev. Stat. 1985, ch. 38, pars. 16-1(b)(1), (e)(3)), and four counts of conspiracy to commit theft by deception of property having a value in excess of $300 (Ill. Rev. Stat. 1985, ch. 38, pars. 8-2(a), 16-1(b)(1)). The trial court vacated the four conspiracy convictions and, in May 1990, sentenced defendant, in absentia, to an extended term of eight years' imprisonment on each of the four counts of theft. The court ordered the sentences on counts I and II to run concurrently and the sentences on counts III and IV to run concurrently to each other but consecutively to the sentences on counts I and II. The court also ordered defendant to pay restitution in the amount of $45,500 to the victim. Later, however, the court reduced the amount of restitution to $18,349.49 because the victim had received payment of a codefendant's proportionate share and a portion of defendant's forfeited bail deposit.
Defendant appeals his convictions and sentences, arguing that (1) the trial court improperly denied his request for substitution of the trial Judge; (2) the State did not prove him guilty beyond a reasonable doubt; (3) the court improperly allowed certain testimony from an attorney; (4) the court improperly considered unreliable evidence when sentencing him; (5) the court improperly imposed consecutive sentences; and (6) the court erred by imposing a restitution order.
In May 1989, the State charged defendant with four counts of theft by deception of property having a value in excess of $300 and four counts of conspiracy to commit theft by deception of property having a value in excess of $300. In October 1989, as defendant climbed the Piatt County courthouse stairs in an attempt to receive a distribution from a fictitious trust created specifically to induce him to return to Illinois, the Piatt County sheriff's department arrested him on those charges. While awaiting trial, he posted bond, and the court granted his request to leave the jurisdiction. However, he failed to appear at his trial in April 1990 or his sentencing hearing in May 1990.
Mrs. Dorothy Courson, defendant's former mother-in-law, was 74years of age at the time of trial and testified that defendant had married her daughter, Tina, in May 1984. Tina died in May 1987. Mrs. Courson also stated that she approved of the marriage and that as of late August 1986, she got along well with defendant.
Mrs. Courson testified that in late August 1986, defendant told her he had passed a test to become an investment broker, obtained his broker license, and could make investments for her. Defendant then asked her if she had a certificate of deposit (CD) maturing in the near future which he might invest on her behalf and achieve a higher rate of return than she could get if she simply reinvested in another CD. Defendant told her about a company named Network International, Inc. (NII), which loaned money to small businesses, and then showed her a graph which indicated that NII had the highest rate of return among the businesses listed. Defendant also told her that she could expect a guaranteed rate of return of 20% on an investment with NII.
Mrs. Courson decided to invest in NII based upon defendant's recommendations, the graph defendant showed her, and the guaranteed interest rate. She also testified that normally she kept her money in CD's or bank accounts at a local bank, but because of the high rate of return that she believed she would receive from investing in NII, she thought investing with NII would be a good idea. Thus, on August 31, 1986, she withdrew $20,000 from a recently matured CD and signed a written agreement to invest this money in NII. Defendant, apparently acting as NII's agent, and Mrs. Courson's husband also signed this agreement.
Mrs. Courson testified that she thought defendant would receive a commission from each investment she made with NII, which would help her daughter and defendant. She explained that based upon the graph defendant had shown her, she thought that NII had been in existence for quite some time. Defendant did not tell her that he had an ownership interest in NII or that Eddie Stiffler, defendant's friend and business associate, also had an ownership interest in NII. She knew Stiffler to be a friend of defendant's.
The investment agreement had been prepared by an Illinois attorney and listed NII's address as Hawthorne Boulevard, Torrance, California. Under the agreement, the Coursons were to receive 20% interest on their $20,000, paid in six-month intervals or, alternatively, reinvested and compounded. At defendant's trial, when handed the $20,000 check which she had given defendant in August 1986, Mrs. Courson testified that she recognized Stiffler's signature as the endorser on the check. She explained that she had given defendant the $20,000 check to invest in NII, but not for either defendant's or Stiffler's personal or business expenses.
In September 1986, defendant again asked Mrs. Courson if she had any more CD's coming due and mentioned that he could get her a better interest rate as he did with the $20,000 she had just invested with NII. She testified that she agreed to invest another CD worth $11,500 with NII. Defendant brought her another investment agreement dated September 8, 1986, identical to the first agreement except stating an investment amount of $11,500. Mrs. Courson, her husband, and defendant each signed this agreement, and she tendered a $11,500 check to defendant.
At the time Mrs. Courson made these investments, she knew defendant was running a jewelry business at the Chanute Air Force Base in Rantoul, which sold jewelry to the servicemen. She explained that her investments with NII were not made to help defendant's jewelry business.
Mrs. Courson further testified that in the latter part of 1986, defendant moved to Denver, Colorado, and Stiffler moved with defendant to Colorado. However, her daughter stayed in the Piatt County area until late January 1987, when she also moved to Denver to live with defendant.
In late February 1987, Mrs. Courson received a "Federal Express" package from NII containing a letter dated February 20, 1987. (Every correspondence she received from NII came to her by Federal Express.) This particular letter was on NII letterhead showing a Torrance, California, address and signed by "Kathie E. Holloway, Director of Accounts." The Federal Express receipt accompanying the package also listed "Kathie Holloway" as the sender. The letter welcomed Mrs. Courson and her husband to the NII "smart family of investors" and quoted a guaranteed interest rate of 20% for their investments. The letter also listed investment options for the interest payments that would be coming due under the August 1986 and September 1986 agreements. The letter further stated that NII's records indicated that defendant was Mrs. Courson's agent and thanked the Coursons for joining the "NII family."
Mrs. Courson testified that in early March 1987, defendant called her and again requested that she invest in NII. She did so, investing another $10,000 with NII pursuant to a third agreement dated March 1, 1987. This agreement followed the form of the first two and indicated an interest rate of 25%. At this time, she also received a letter on NII letterhead dated February 27, 1987, containing a $2,000 check and stating that a $2,000 interest payment was enclosed. A few days after receiving this check, she received another $1,150 check for her September 1986 investment. Both of these letters were signed by Kathie Holloway.
Mrs. Courson testified that in April 1987, defendant again called to ask if she would invest some additional money with NII. She agreed to invest another $20,000 with NII and signed a fourth agreement dated April 15, 1987, again following the form of the prior agreements and indicating an interest rate of 30%. When she made the March 1987 and April 1987 investments, she did not authorize defendant or Stiffler to use that money for their personal or business expenses.
In the fall of 1987, Mrs. Courson received "interest" payments on each of her four investments which corresponded to the interest rate that she was supposed to receive on those investments. Each of these interest payments was accompanied by a letter on NII letterhead listing the Torrance, California, address and signed by Kathie Holloway, director of accounts.
In the spring of 1988, Mrs. Courson received additional "interest" payments on all four of her investments. The correspondence she received with the first interest payment in 1988 was no longer on NII stationery and none of the correspondence she received from NII thereafter had a letterhead. This first letter was signed again by Kathie Holloway, director of accounts, and informed Mrs. Courson that NII had changed its address to a location in Aurora, Colorado. This letter contained a handwritten note at the bottom of the letter. The second correspondence she received in 1988 was handwritten (all previous correspondence were typed), expressed sympathy for the recent death of Mrs. Courson's husband, and was also signed by Kathie Holloway. The third correspondence she received in 1988, which accompanied an interest payment, was also handwritten and signed by Kathie Holloway, "Account Department." The handwriting of these two letters differed from the handwriting in the note on the first letter. Also, the signature on the first letter differed from the signatures on all the other letters received from NII, including the two handwritten letters.
Mrs. Courson testified that in March 1988, she additionally received a form "1099--INT" for her 1987 income tax preparation. This Internal Revenue Service 1988 form listed NII as the payor and her as the recipient and indicated interest payments totally $10,550, which matched the total amount she received from NII in 1987.
The last correspondence Mrs. Courson received from NII was dated August 31, 1988, and asked her if she would like to combine all of her interest payments due in the fall of 1988 into one payment. This letter was not on stationery but was signed Kathie Holloway, director of accounts. In most of the letters Mrs. Courson received from NII, defendant was mentioned as the Coursons' agent forinvestment matters with NII. Mrs. Courson did not receive any interest payments in the fall of 1988, and she testified that in late September 1988, she sent a certified letter to NII, as required under the four investment agreements, asking to terminate each of the agreements and to receive a refund of all her principal. Stiffler signed for receipt of her certified letter in early October 1988. She also attempted to call defendant a few times about this matter, but his phone was disconnected. She received no further correspondence or payment from NII.
On cross-examination, Mrs. Courson explained that she had "loaned money to invest" in NII, but noted that defendant never discussed the structure of NII with her or the arrangement he had with NII regarding investments. She also reiterated that the money she invested with NII was not for defendant's jewelry business, which her daughter had helped operate. Mrs. Courson stated that while she was making these investments with NII, her husband was sick with cancer and unable to be directly involved in any business or financial decisions. However, she did discuss these investments with him. She also denied any knowledge or awareness of the fictitious trust arrangement that her attorney, Keith Hays, ultimately created in an attempt to bring defendant to Illinois.
On redirect examination, Mrs. Courson explained that defendant never used the term "loan" when discussing these investments with her, nor was the term "loan" used in any correspondence she received from NII. She noted that each of the letters from NII only stated or discussed her "investments" with it.
Nancy Joe Merz, an assistant vice-president at Busey Bank in Urbana, testified that on August 28, 1986, defendant and Stiffler set up a commercial bank account under the name of "Network International, Inc. (NII)." They listed an address for NII in Torrance, California. Both defendant and Stiffler signed the signature card; as a result, either could individually gain access to the account. She testified that defendant and Stiffler initially deposited $200 in cash to open the account. Thereafter, on September 3, 1986, they deposited $20,000 into the account, and on September 9, 1986, they deposited an additional $11,500. They made numerous transactions during that September, bringing the balance down to approximately $1,550 by the end of the month. These transactions included writing checks to "cash" or themselves totaling approximately $17,600, writing checks to "S&M Industries" totaling $5,000, and obtaining a cashier's check of $3,100 for an unknown destination. The activity on the account decreased dramatically in October, November, and December 1986 as the balance slowly decreased to approximately $80 by year's end. The account was closed in February 1987.
Hays, a Monticello attorney, testified that Mrs. Courson contacted him in January 1989 about retrieving the money she had invested in NII. Pursuant to her request, he filed a civil suit on her behalf in February 1989 against defendant, Stiffler, and Kathie Holloway. This lawsuit claimed that they had fraudulently converted the Coursons' funds paid to NII.
To further investigate the matter and in an attempt to serve papers from this civil action upon the listed defendants, Hays went to Denver in February 1989. He explained that the purpose of this trip was threefold: (1) to locate the listed defendants; (2) to determine whether NII was an identifiable ongoing business and to locate any evidence of such a business; and (3) to determine whether the listed defendants had any assets against which a judgment could be obtained.
Hays testified that he first went to defendant's apartment in Denver. Hays knew this apartment's address had also been listed as defendant's business address. Hays described this property as "a classic apartment complex, rental in nature, nothing but residential premises." Hays also visited an address on Havana Street in Aurora, Colorado, which the correspondence Mrs. Courson received in early 1988 listed as NII's new address. There, Hays found a business called the "Mailroom" located in a strip mall. The Mailroom was not an official United States Post Office, but offered private mailboxes and other mailing services, including United Parcel Service and Federal Express shipping. Hays also mentioned that no office building existed at this address, and no separate offices or suites existed within the Mailroom itself.
Hays also went to a Troy Street address in Aurora, Colorado. Defendant had given this address to Mrs. Courson as NII's new address, and it was also listed on the last few Federal Express receipts Mrs. Courson received. At this address, Hays found an office complex consisting of single rooms that the landlord rented, including secretarial services, mailroom services, and telephone answering services. Hays could not locate an existing NII office at the complex. While in Colorado, Hays could not locate any of the defendants in the civil action and therefore did not serve any of them with Mrs. Courson's lawsuit.
Hays also testified about a fictitious trust that he had created in an effort to induce defendant to return to Illinois. In the spring of 1989, Hays sent a letter to defendant at his mother's address in Arkansas, stating that defendant's deceased wife, Tina (Mrs. Courson's daughter), was an heir to a trust which had been created by an estate of a deceased relative of Tina. The letter explained that thistrust had expired and that upon its distribution, defendant could possibly receive up to $78,000 as Tina's husband.
Hays testified that initially defendant had retained an attorney to contact Hays regarding this trust. However, defendant personally contacted Hays in July 1989, stating that he had discharged his attorney on this matter. Defendant indicated that he was in the process of moving, but if Hays could contact defendant's sister, who lived in Arkansas, she could give defendant any message concerning this trust. Hays next heard from defendant in mid-September 1989, and Hays told him that he expected the estate trust to pay out soon, but he did not know the details. He asked defendant call him back in early October 1989. As requested, defendant called Hays, who informed defendant that he would have to appear in court in Piatt County on October 10, 1989, to receive his distribution from the trust.
Hays testified that on October 10, defendant called him to tell him that he could not be there that day and requested to delay the receipt of his portion of the trust until October 11. Defendant told Hays that he wanted to avoid seeing any of the Courson family and that he was not looking for a "family reunion." On October 11, Hays told defendant that he had arranged for defendant to appear at the Piatt County courthouse at 11 a.m. that day. Hays testified that defendant appeared at that time and was promptly arrested on the courthouse stairs.
Hays also testified regarding the IRS 1099 tax form that Mrs. Courson received from NII. He noted that a 1099 form for the tax year 1987 would indicate the year 1987 on the form; however, the form Mrs. Courson received from NII displayed the year 1988. Hays also noted that instructions on how to use the 1099 form are listed on the back of a 1099 form. However, no instructions appeared on the reverse side of the 1099 form that Mrs. Courson received from NII. Hays further noted that a taxpayer's copy of the 1099 form is typically a carbon copy or a copied version of an original 1099, but the 1099 form that Mrs. Courson had received from NII was typed as an original. Hays also stated that the 1099 form that she received looked as if it had been clipped from a book of forms or instructions for use in 1988, not the proper form for reporting 1987 income.
On cross-examination, Hays testified that when he went to Denver, he discovered that Stiffler and defendant had filed articles of incorporation for NII. These articles of incorporation stated that the purpose of NII was "to market wholesale and retail jewelry to wholesalers and the general public[, to] market wholesale and retail products[, and to] run and operate a telephone and referral talk service." The articles were filed with the Colorado Department of State in January 1987. In August 1987, defendant and Stiffler amended the articles of incorporation to expand the purpose of the corporation to include any legal or lawful purpose under the Colorado Corporation Code (Colo. Rev. Stat. Ann. § 7-1-101 et seq. (West 1990)). Additionally, defendant was listed as the registered agent for NII.
Also, during cross-examination, Hays stated that he shared the information he obtained during his investigation of this matter with the Piatt County State's Attorney and the local United States District Attorney. Defense counsel asked Hays whether he had encouraged these offices to commence a criminal investigation or prosecute defendant regarding these matters. Hays denied doing so, insisting that he merely shared this information with these offices. Defense counsel then asked Hays if he was attempting to gain an advantage over defendant by pushing the criminal matter against defendant. Hays responded that he was not.
On redirect examination, Hays stated that during his trip to Denver, he could not confirm whether NII was a viable business entity which provided loans to small companies and paid out investments to investors. He explained that he was unable to confirm any operations on behalf of NII other than its opening of a bank account and its articles of incorporation. Hays also mentioned that he shared the information from his investigation with the Federal and State governments because he thought evidence existed which demonstrated defendant had violated criminal laws.
Kenneth Baughman, also an attorney in Piatt County, testified that at Hays' request, he visited the Torrance, California, address which had been listed as NII's first address. At this address, Baughman found what he described as a "private mailing station with mailboxes." This mailing station was located in a commercial complex with several small service outlets and restaurants. The mail station contained a wall of private mailboxes and maintained facilities for mailing items.
Robert Manint, chief deputy for the Piatt County sheriff's department, testified that he participated in an interview of defendant after he was arrested on October 11, 1989. Hays and the Piatt County State's Attorney were also present at this interview. During the interview, defendant stated that he and Stiffler had formed a partnership and sold investment stocks to the Coursons under the name of Network International. Defendant indicated that the total amount that the Coursons had invested was $61,500 over four separate contracts. Defendant told them that NII was headquartered in Denver, Colorado. Defendant also told them that he knew KathieHolloway, who was Stiffler's sister. He told them that Holloway had done several things for NII, including writing letters to the Coursons regarding their investments on NII letterhead, and that she had opened a mail drop box in Torrance, California, under the name of NII.
Defendant denied any knowledge of NII's incorporating in Colorado. He indicated that the money he had received from the Coursons was used to invest in a jewelry show conducted in Memphis, Tennessee. He stated that the jewelry booth set up at this fair was done under the name of another company defendant had formed with Stiffler. Defendant also told them that the Coursons had not been informed how their money would be used. Defendant further explained that Stiffler thought of the idea to form NII and had talked defendant into asking the Coursons for money to invest in the company. Defendant stated that he knew interest payments were given to the Coursons and that he himself had received checks from Stiffler for his work for NII.
Manint further testified that during this interview, defendant also discussed a trip to Europe he took in May 1987 with Stiffler, Holloway, and Tina. Defendant indicated that Stiffler made all the arrangements for this trip, purchased the tickets, and provided expenses for the trip out of money from NII. Defendant also stated that the Coursons were notified that NII was just an investment company, but they were not informed about the jewelry sales or any operations of NII. Defendant admitted that Holloway had no direct involvement with NII other than her writing letters to the Coursons, and that she was not director of accounts with NII.
On cross-examination, Manint testified that defendant had also mentioned that his mother had invested $15,000 in NII. Defendant also indicated that the trip to Europe was a vacation that included attending the wedding of Stiffler's son.
Defense counsel presented no evidence on defendant's behalf. As stated above, the jury found defendant guilty on all four counts of theft by deception and all four counts of conspiracy to commit theft by deception. The trial court vacated the four conspiracy ...