People v. Friedman

• Court: Appellate Court of Illinois
• Writing for the Court: BOYLE; SEIDENFELD, P. J., and GUILD
• Citation: People v. Friedman, 382 N.E.2d 684, 65 Ill.App.3d 613, 22 Ill.Dec. 364 (Ill. App. 1978)
• Decision Date: 02 November 1978
• Docket Number: No. 77-343,77-343
• Parties: , 22 Ill.Dec. 364 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Morris FRIEDMAN, Defendant-Appellant.

Page 684

382 N.E.2d 684

65 Ill.App.3d 613, 22 Ill.Dec. 364

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Morris FRIEDMAN, Defendant-Appellant.

No. 77-343.

Appellate Court of Illinois, Second District.

Nov. 2, 1978.

Stephen M. Komie, Paul Bradley, Chicago, Elizabeth E. Clarke, Elgin, for defendant-appellant.

Dennis Ryan, State's Atty., Waukegan, William J. Scott, Atty. Gen., Stuart W. Opdycke, Donald B. Mackay, Melbourne A. Noel, Jr., Asst. Attys. Gen., Chicago, for plaintiff-appellee.

BOYLE, Justice:

A Lake County jury found the defendant-appellant, Morris Friedman, hereafter the defendant, guilty of 10 counts of theft by deception and one count of conspiracy. The trial court imposed concurrent sentences of 3 1/3 to 10 years on five of the theft counts, to be served consecutively with concurrent 3 1/3-to-10-year sentences on the remaining five counts of theft by deception. The defendant has appealed, essentially raising seven issues. First, the defendant argues that the indictment against him was improperly obtained. Secondly, he asserts that he was not proved guilty beyond a reasonable doubt. His third contention is that he was denied his constitutional right to counsel of his choice. Fourthly, the defendant asserts that the trial court made several errors, mandating a reversal of his conviction. Fifth, the defendant contends that he was improperly convicted of conspiracy. Sixthly, he argues that the jury was supplied with improper verdict forms; and, finally, the defendant argues that his sentence was excessive.

After reviewing the record and weighing the arguments presented, we are of the opinion that this cause must be remanded to the circuit court of Lake County for a new trial on the grounds that the defendant was denied his constitutional right to counsel of his own choice.

The facts relevant to our disposition of this case begin on May 24, 1976, when the State's Attorney of Lake County, Illinois, appeared before the grand jury seeking the indictment which was the basis for this case. At that time, the State's Attorney of Lake County introduced two Assistant Attorneys General and informed the grand jury " * * * that the Attorney General is cooperating with the State's Attorney of Lake County for the purpose of seeking an indictment * * * " and that " * * * the questions will be asked by the Assistant Attorney General who will cooperate with me in this case for prosecution in Lake County, Illinois." After the Assistant Attorney General had presented the evidence to the grand jury, it returned a 32-count indictment against seven individuals, including the defendant.

The defendant was brought to trial with one other individual, Ted Moore, who is not a party to this appeal. The trial of the two men commenced on January 17, 1977. At the beginning of the proceedings, the defendant informed the court that he was dissatisfied with his court-appointed counsel and requested a continuance so that he might be represented by counsel of his own choice. At that time, the defendant presented the trial court with a letter from Attorney Raymond J. Smith of Chicago in which Mr. Smith stated that he would be engaged in a trial in Federal Court until January 25, 1977, but if the trial court would grant a continuance until after that time, Mr. Smith stated that he would represent the defendant. Although the letter was not in the proper form of a motion, the trial court stated that it would treat it as one and denied it. The defendant was compelled to go to trial represented by the public defender. Two days into trial, the public defender was joined by Attorney Gerald Werkman, who took charge of the defendant's defense for the remainder of the trial.

During the course of the trial the State presented evidence which tended to show that the defendant and Mr. Moore were part of a scheme to inveigle people to invest large sums of money (at least $6,500) to purchase distributorships from various companies controlled by the defendant which were in the candy business.

The first step in this scheme was the appearance of an ad in a local newspaper advertising the distributorships. The ad was written by the defendant and promised established accounts for a large candy manufacturing company that had proven, chain-store acceptance. The next step was for Mr. Moore to contact the prospects by phone. During this initial conversation, Mr. Moore would give the prospect the phone numbers of several references for the prospect to call to inquire about the company. These references were supposedly successful distributors. However, the State called two of these referenced persons as witnesses, and each testified that the defendant had paid them to tell the prospects who called them essentially that they were successful distributors when, in fact, they were not.

The third stage of this scheme was a visit to the prospect's home by Mr. Moore, who gave the sales pitch that included the implication that the accounts that the prospect would be getting would be in stores such as K-Mart, Jewel, Eagle, Osco and Walgreens. In fact, no account was ever established in such a store. The prospect was told that his accounts would be established by "marketing experts." One of these so-called "marketing experts", a young man who had taken two marketing-related courses in college, was called by the State. During his testimony he described the procedure he used to establish accounts. He testified that he would pick out a store in a shopping center usually a small drugstore or florist shop and observe it for 30-45 minutes to observe its foot traffic. After this mere modicum of research, this so-called "marketing expert" would set up the account.

If Mr. Moore was successful in his sales pitch, he would take the prospect's check for at...