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05/31/94 PEOPLE STATE ILLINOIS v. ALAN KAYE

May 31, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ALAN KAYE, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JOHN J. MORAN, JUDGE PRESIDING.

Rehearing Denied July 22, 1994. As Corrected September 6, 1994.

Campbell, Buckley, Manning

The opinion of the court was delivered by: Campbell

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Following a bench trial, defendant, Alan Kaye a/k/a Alan Kirschner, was found guilty on 13 counts of automobile related theft (Ill. Rev. Stat. 1989, ch. 95 1/2 pars. 4-103(a)(1); 4-103(a)(2); and 4-103(a)(4)), and one count of theft of vehicle property by deception (Ill. Rev. Stat. 1989, ch. 38, par. 16-1(a)(2)(A)), and sentenced to 7 years imprisonment. On appeal, defendant contends that: (1) the State failed to prove him guilty of the offenses charged beyond a reasonable doubt; (2) the trial court improperly considered evidence outside of the record; (3) the trial court improperly permitted testimony regarding his prior felony conviction; (4) the trial court improperly permitted a police officer to testify corroborating the out of court statements of a prosecution witness; and (5) the trial court erred in denyingdefendant's post-trial motion to bar admission of his prior felony conviction during sentencing proceedings. For the following reasons, we affirm the judgment of the trial court.

BACKGROUND

The record reveals the following relevant facts. Defendant was charged by indictment with the following violations of the Illinois Motor Vehicle Code (Ill. Rev. Stat. 1989, ch. 95 1/2, et. seq.): knowingly possessing a stolen 1989 Jaguar; knowingly possessing the 1989 Jaguar with a falsified Vehicle Identification Number (VIN); knowingly possessing the 1989 Jaguar with a removed VIN; knowingly falsifying the VIN on the 1989 Jaguar; knowingly removing the VIN on the 1989 Jaguar; knowingly possessing a stolen 1988 Mercedes; knowingly possessing the 1988 Mercedes with a falsified VIN; knowingly selling the 1988 Mercedes with a falsified VIN; knowingly possessing a stolen 1988 Mercedes with a removed VIN; knowingly removing the VIN on the 1988 Mercedes; knowingly falsifying the VIN on the 1988 Mercedes; knowingly obtaining by deception and theft the property of Jerome Purze; knowingly possessing a stolen 1974 Mercedes; and knowingly possessing a 1974 Mercedes with a falsified VIN.

At trial, Kevin Ebel testified as a witness on behalf of the State, that he owns three Ace Hardware stores in Oak Forest, Illinois. Ebel met defendant in early December 1990, through his hairdresser, David Hanson, at Hanson's hair salon in downtown Chicago. Hanson knew that Ebel was looking to buy a car and suggested that defendant could get a car for Ebel. Defendant told Ebel that he was in the business of selling repossessed cars, and that he could get great deals because a buyer only had to pay the balance due on the car. Defendant had for sale a 1989 Jaguar XJ6, and suggested that Ebel test drive the car around the block. Defendant stated that the price of the car was $23,900. Ebel told defendant that he was interested, but would have to think about it.

The next day, defendant brought the Jaguar to Ebel's Oak Forest store, accompanied by a tall man with long hair, wearing a leather jacket and cowboy boots. Defendant told Ebel that the man was the mechanic who took care of the car. Ebel had asked his friend, James Wolff, an auto mechanic at a high-end auto dealership, to inspect the car to make sure it was mechanically sound.

Wolff carefully inspected the Jaguar. Then Wolff, Ebel and defendant went for a ride in the Jaguar. Ebel noticed that the serial number tag on the windshield was broken off and asked defendant about it. Defendant said that the tag had broken off when the windshieldwas replaced. Defendant told Ebel that he could have another tag put on. Ebel asked about the title to the Jaguar, and defendant said he could fax the title to Ebel. Ebel received the title the next day, but stated that the numbers were obscured and illegible.

Ebel called the Oak Forest police, who referred Ebel to the State police. The next day, Ebel gave the State police the title papers, and the police told Ebel they would get back to him. Defendant then called Ebel and asked him if he was still interested in the car. Ebel told defendant that he was checking to see if he could get the money. Ebel informed the State police that defendant had contacted him again, and the State police told Ebel to set up to buy the car so they could investigate.

Ebel contacted defendant and told him that he wanted to buy the Jaguar. Ebel told defendant to meet him at his bank on Wednesday, knowing that the bank would be closed. On Wednesday, Ebel stopped to see the State police, and identified a photograph of defendant. Ebel did not meet defendant at the bank as planned.

On cross-examination, Ebel agreed that he had no reason to believe the Jaguar was stolen at the time he test drove the car from the hair salon. He stated that he now knew the individual who accompanied defendant to be Charles Gross. After Ebel agreed to purchase the Jaguar, defendant told Ebel to make out two checks, one in the amount of $13,500 payable to Tag's Auto Sales, and the other in the amount of $10,000 payable to Charles Michaels, but Ebel never drafted the checks.

On re-direct examination, Ebel was shown a copy of the title to the Jaguar and recalled that he was shocked when he first saw that the car had a Florida title.

Next, James Wolff testified on behalf of the State. Wolff owns a used car dealership in Crestwood, Illinois. On or around December 16, 1990, Wolff met Ebel at his hardware store in Oak Forest to look at a Jaguar Ebel was considering purchasing. At that time, Wolff met defendant. Wolff's cosmetic inspection of the Jaguar revealed the ID tags were missing on all of the body panels, and the ID tag inside the driver's door was not the correct manufacturer's tag. Wolff noted that the tag was in the wrong place and was not the proper shape nor made of the proper material. Wolff also noticed that the body of the Jaguar had been painted. Wolff brought these matters to Ebel's attention. Wolff stated that defendant did not confer with the other man (Gross) in order to answer Ebel's questions.

On cross-examination, Wolff stated that he has been in the business of purchasing and selling used cars for 17 years, and knows how to determine whether cars have been repainted or have hadstructural damage not apparent to the unsophisticated eye. Wolff agreed that an ordinary citizen would not have the expertise that he has, to know where to look for various stickers and identifying numbers on a vehicle.

Next, Jerome Purze testified that he met defendant in early November 1990 at his office building, through a dentist, Dr. Goodman. Defendant told Purze that he had repossessed cars that could be bought cheap because there was only a balance left to be paid. Defendant stated that he had a 1988 Mercedes 300E for sale for $23,500. Purze told defendant that he wanted to pay less, but would like to see the car first.

A few days later, defendant brought the Mercedes to Purze's office in Chicago. Purze noticed that the car was very clean, and told defendant that he was willing to pay $20,000 or $21,000. Within a day or two, defendant called Purze and said he could buy the car for the reduced price, and Purze agreed. Purze said he would pay for the car upon delivery. Within a week, defendant delivered the Mercedes to Purze at his office, and Purze presented defendant with two cashier's checks as payment, one in the amount of $17,500 payable to Tag's Auto Sales and the other in the amount of $3,500 payable to defendant.

Purze received the title to the car in the mail at the end of the month. Purze then had further Discussions with defendant concerning a 1987 Mercedes. Purze asked defendant, "Is it as clean as this car?" and defendant told Purze that the car was clean, but that it was not repossessed as of yet. Defendant told Purze that if he wanted to buy the 1987 Mercedes, he would have to pay defendant up front. Purze agreed and paid defendant by check. Per defendant's instructions, Purze made out two separate checks payable to Tag's Auto Sales in the amounts of $7,000 and $7,500. Purze made out a third check payable to C. Michaels for $5,500. Purze testified that he never received the 1987 Mercedes, nor did he get his money back from defendant.

On January 24, 1991, Purze was contacted by the police. Purze showed the police his 1988 Mercedes, and the police confiscated the Mercedes. Defendant never told Purze that either the 1988 Mercedes or the 1987 Mercedes were stolen cars.

Debra Laiss testified on behalf of the State that she met Charles Gross in January 1990 and dated him for approximately eight months. Laiss met defendant through Gross. In March or April 1990, Gross asked Laiss to put the title to a 1974 Mercedes 450SL in her name. Gross told Laiss that because he was on a work release program from prison, he was not permitted to have a car registered in his own name. When Laiss severed the relationship in August orSeptember 1990, she asked Gross if he had taken her name off the title to the car and Gross said that he had done so.

Laiss stated that on January 3, 1991, she received a telephone call at work from Chicago Police Detective Miller. Laiss went to the Chicago Police station, Auto Theft Division, at Miller's request, and at that time saw defendant in a room along with several police officers. Defendant pointed his finger at Laiss and told the police that Laiss sold him a 1974 Mercedes 450SL. Laiss responded that she did not sell defendant the car, and stated that defendant was lying. At that point defendant put his head down and did not look at Laiss again.

The police asked defendant if he had paid Laiss for the car, and defendant responded that he paid Gross for the car. Laiss stated that she never owned the car that Gross put in her name, and that she never had any business dealings with defendant.

On cross-examination, Laiss admitted that she signed the title to the 1974 Mercedes under the heading "Assignment of Title," but stated that the date of sale as it appeared could not have been November 1990, because she stopped dating Gross in August or September 1990. She stated that Gross never told her that the car was stolen.

Next, Illinois State Police Officer George Fitzgerald testified on behalf of the State, that on December 17 and 18, 1990, he had telephone conversations with Ebel. At noon on December 19, 1990, Officer Fitzgerald went to Palos Bank in Palos Heights along with five other Illinois State Police agents. At that time Officer Fitzgerald saw defendant sitting in the passenger seat of a black Cadillac parked next to a gray Jaguar. Gross was sitting in the driver's seat. After a few minutes, defendant got out of the Cadillac, entered the bank, exited the bank and returned to the Cadillac. After a few minutes, defendant and Gross exited the Cadillac and approached the back of the Jaguar. Defendant opened the trunk, and Gross removed a license plate and began to attach the plate to the back of the Jaguar. At that point, Fitzgerald and the other officers approached defendant and Gross and identified themselves.

Officer Fitzgerald looked at the front of the Jaguar and noticed that there was no VIN. He asked defendant what he was doing with the Jaguar. Defendant responded that he was going to "broker" the car for Gross. Defendant stated that the car did not belong to him, and that he did not know who it belonged to, but that for his services he was going to receive $4,000. The officers escorted defendant and Gross back to State Police headquarters in Crestwood.

Officer Fitzgerald conducted an examination of the Jaguar. He checked for the confidential VIN located under the hood, andcontacted the National Automobile Theft Bureau to obtain the VIN that corresponds to the confidential VIN. Officer Fitzgerald noted that the Federal safety sticker was not the original, because the material was flat rather than shiny, and the numbers appeared to have been typed by a typewriter. Officer Fitzgerald stated that on December 19, 1990, he received from Ebel a facsimile copy of a Florida salvage title for a Jaguar.

Officer Fitzgerald inspected the Cadillac, and recovered a bag containing six blank Federal safety standard stickers for Jaguars, and a list of four salvage vehicles purchased from Tag's Auto Sales. He also recovered a window sticker from a 1990 Corvette. He checked the VIN of the Corvette and found it to be a stolen car.

Officer Fitzgerald talked to defendant at approximately 12:45 p.m. Trooper Zadnick informed defendant of his Miranda rights, and then left the room. Defendant told Officer Fitzgerald that he had met Gross while they were both in jail. Defendant stated that he knew that Gross was imprisoned for auto related crimes. Defendant repeated that he was just a broker for Gross, that the car did not belong to him, and that he was going to receive $4,000. Defendant stated that he did not know who removed the public VIN tag. Defendant stated that he did not know that the vehicle was stolen, and that he had not attempted to sell any other cars for Gross.

Officer Fitzgerald also interviewed Gross. On cross-examination, Officer Fitzgerald admitted that he was aware of Gross' auto theft background. He stated that Gross admitted to arranging to have the Jaguar stolen, and to removing the VIN. The officer agreed that Gross was not charged with any crime and was allowed to leave the police station that day because Gross had agreed to cooperate with the State Police in revealing insurance frauds and information on other stolen vehicles.

Officer Fitzgerald stated that Gross failed to meet the officers as planned at a specified location on December 26, 1990, and had, in fact, fled the jurisdiction. Shortly thereafter, the officer received from Gross a package containing Federal safety standard stickers, blank VIN tags, some body plates and some keys from vehicles. Officer Fitzgerald next saw Gross in 1992 when Gross was in custody in the Cook County jail.

In answer to a question posed by the court, Officer Fitzgerald agreed that he does not have any personal knowledge of any facts through his independent investigation which are contrary to what Gross told him when he interviewed him. He stated that Gross was later arrested in Texas for auto theft.

Chicago Police Detective Frederick Schulz testified that on December 19, 1990, he interviewed Gross at the headquarters of the Illinois State Police in Crestwood. Based on his conversation with Gross, on January 3, 1991, Schulz and his partner, John Miller, went to the ground level parking garage at the McClurg Court Apartments located at 600 West McClurg Court, Chicago, and spoke to Mr. Alva, a garage manager. Subsequently Schulz located a 1974 white Mercedes with the license tag "TIX." He looked at the VIN tag in the window, then opened the driver's door and found a metal Federal sticker with the same number. Then Detective Schulz looked under the seats and found a line-up tape bearing a different serial ...


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