People v. Friedman

• Decision Date: 04 June 1986
• Docket Number: No. 84-0825,84-0825
• Citation: 98 Ill.Dec. 638,494 N.E.2d 760,144 Ill.App.3d 895
• Parties: , 98 Ill.Dec. 638 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Marlene FRIEDMAN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 760

494 N.E.2d 760

144 Ill.App.3d 895, 98 Ill.Dec. 638

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

No. 84-0825.

Appellate Court of Illinois,

First District, Third Division.

June 4, 1986.

Jeffrey Neal Cole, Ltd., Chicago (Jeffrey Cole, Andrew T. Staes, of counsel), for defendant-appellant.

Richard M. Daley, Chicago (Michael E. Shabat, James S. Veldman, of counsel), for plaintiff-appellee.

Justice McGILLICUDDY delivered the opinion of the court:

Following a jury trial, defendant, Marlene Friedman, was convicted of three counts of forgery and one count of felony theft. She was sentenced to thirty months probation, the first 90 days to be served in the Cook County Department of Corrections. On appeal, defendant contends: (1) the trial judge erred in failing sua sponte to disqualify himself; (2) two of the jury instructions for counts I through IV were plainly erroneous; (3) the trial court's comment to the jury regarding sequestration was coercive and unconstitutionally hastened the verdict; (4) the trial court erred in allowing mug-shots of the defendant to be published to the jury without limiting instructions and (5) the trial court erred in admitting testimony regarding the contents of a written document in violation of the "best evidence rule."

On August 21, 1982, at approximately noon, Robin Nemetz was on her way to the airport to leave for a European vacation. She opened her purse, discovered her checkbook and credit cards were missing and asked her sister, who was in the car with her, to notify the bank and stores which had issued the credit cards.

After she returned from Europe, Nemetz received her bank statement. In it was a check she had not written, dated August 21, to a shoe store. She called the police and reported the incident. A few days later, she received her monthly statement from Saks Fifth Avenue (Saks). Included with the monthly statement were three sales checks signed with her name for purchases made August 21, 1982. The three sales receipts were for merchandise in the amounts of $927.55, $176.55 and $254.66.

Nemetz called Saks and arranged to see Jeffrey Biro, the head of store security. She told Biro she was out of town on August 21, 1982, and that she had neither made the purchases nor signed the sales checks. On August 21, Biro had been alerted by Andrea Cross, a sales person, that a purchase was being made with a credit card reported stolen. He and another store security agent, Maureen Schmidt, watched the purchase being made and followed the buyer through the store as she made two other purchases.

The woman left the store and the security personnel followed her and asked her to return to the store. She was informed that the credit card she was using had been reported stolen. Biro then asked the woman questions about Robin Nemetz using information taken from her account records. The woman correctly provided Nemetz' birth date, social security number, business address and home phone number. Biro dialed Nemetz' home phone number and got a recorded message which sounded like the woman using the credit card. Biro then let the woman leave the store with the merchandise and kept the credit card.

When Biro described to Robin Nemetz the woman who had made the purchases and correctly answered the questions, she identified the defendant, whom she had known for a year. On August 20, 1982, the defendant and Nemetz were together at a disco and Nemetz had asked the defendant to watch her purse while she danced. Nemetz subsequently called the police and told them about the Saks transactions, and that she suspected the defendant.

On October 25, 1982, after his meeting with Nemetz, Biro was shown 12 mug-shots by the police. He identified defendant as the woman who had made the purchases and signed the charge slips on August 21. A warrant was issued and defendant was arrested on October 27, 1982. That day, Biro identified her from a lineup at the police station.

Maureen Schmidt, a former store security agent at Saks, gave testimony substantially similar to Biro's about the transactions they watched on August 21, 1982. On October 27, she received a telephone call from the police asking her to view a lineup. She identified the defendant and told Biro and the detectives that defendant was the woman involved in the transactions on August 21.

Detective John Lorrie of the Chicago police department testified that around October 1, 1982, he was contacted by Nemetz regarding her stolen checkbook and credit cards, and was informed that someone had used her Saks credit card to make purchases while she was out of the country. He contacted Biro, got a description of the woman who had made the purchases and arranged to meet him. On October 25, he took a picture of the defendant and several other women to Biro to see if he could identify the person who had used Nemetz' credit card. Biro identified the defendant and, on the morning of October 27, Detective Lorrie and his partner arrested her at her home. Biro and Schmidt identified her out of a lineup and she was charged with the offenses.

Maureen Casey-Owens, chief documents examiner for the Chicago police department, testified that after examining several of Nemetz' and the defendant's handwriting exemplars, she was unable to either identify or eliminate defendant as the person who signed the charge slips. She was also unable to determine whether the signatures had been written by Nemetz, or that all three charge slips were signed by the same person.

Defendant's first contention on appeal is that the trial judge erred in failing to disqualify himself from her trial. On May 9, 1983, while she was under indictment for the charges in the instant case, defendant contacted the Special Prosecutions Unit of the Office of State's Attorney of Cook County. She indicated she was aware of a criminal investigation of some members of the Cook County bar and judiciary, that she was disgusted with the criminal justice system and wanted to cooperate in the investigation. She stated that she was the former girl friend of associate judge Alan Lane, who allegedly asserted that he could influence or help her with her pending criminal case before the trial judge. The State's Attorney contacted the office of the United States Attorney for the Northern District of Illinois (U.S. Attorney's office) and arranged for the defendant to meet with him, a member of the U.S. Attorney's office and several F.B.I. agents to discuss the information she had to offer. There were several meetings with the Federal prosecutors over the next few days. Defendant maintained a relationship with the prosecutors for several months but the investigators were unable to verify defendant's allegations about Lane's assertions of influence and no results were achieved by her participation in the investigation.

At some point in this series of events, defendant expressed a desire for counsel. The prosecutors cautioned her that the matter was extremely sensitive and that complete confidentiality was essential. It is unclear from the record whether she did not want to involve her attorney of record in the criminal case, or whether the government prosecutors asked her to retain other counsel. The prosecutors suggested several attorneys as appropriate candidates and defendant retained Thomas Sullivan, a former member of the United States Attorney's office. Her relationship with Sullivan lasted from late May to July 1983. In July 1983 defendant retained new counsel in the criminal case. In September 1983, defendant filed a motion to dismiss the indictment in the instant case alleging that the prosecutors' actions had deprived her of her right to the effective assistance of counsel.

On September 12, 1983, the trial court held a hearing on the motion to dismiss the indictment. The hearing received extensive news coverage. On September 30, prior to making its ruling, the court expressed outrage at what it considered to be distorted and malevolent reports of the hearing which had appeared in the newspapers and on television. The court then stated that the abortive cooperation between the prosecutors and the defendant was "distinctively independent" of the pending criminal case, had nothing to do with the merits of the case and that the consideration of the evidence in the case would in no way be affected by whatever transpired between the defendant and the prosecutors relating to the Greylord investigation. The court therefore denied defendant's motion to dismiss the indictment.

Defendant argues that the court's statements regarding the news coverage of the hearing were indicative of bias against her and that the court had a duty sua sponte to disqualify itself from presiding at defendant's trial. The State maintains that in the absence of a motion for substitution of judges, the court was under no duty to disqualify itself. There is, in Illinois, no duty incumbent upon a trial judge to disqualify himself when the defendant has failed to move for substitution of judges prior to trial. (People v. Pettit (1983), 114 Ill.App.3d 876, 70 Ill.Dec. 697, 449 N.E.2d 1044.) Indeed, the failure to so move waives the issue on appeal. People v. Pettit; People v. Mitchell (1979), 76 Ill.App.3d 878, 32 Ill.Dec. 466, 395 N.E.2d 696.

Defendant, however, cites Johnson v. Mississippi (1971), 403 U.S. 212, 91 S.Ct. 1778, 29 L.Ed.2d 423, and Payne v. Coates-Miller, Inc. (1979), 68 Ill.App.3d 601, 25 Ill.Dec. 127, 386 N.E.2d 398, as authority for the proposition that the court has a duty to act sua sponte whenever there is such a likelihood or appearance of bias as to deny the accused a fair and impartial trial, thus depriving him of due process of law. We note first that the defendants in Johnson and Payne had been cited for contempt of court by the judges subsequently presiding over their trials. The record in the instant case discloses no hostile exchange...