People v. Kroll

• Court: Appellate Court of Illinois
• Writing for the Court: DRUCKER; LORENZ, P.J., and ENGLISH
• Citation: People v. Kroll, 280 N.E.2d 528, 4 Ill.App.3d 203 (Ill. App. 1972)
• Decision Date: 25 February 1972
• Docket Number: Gen. No. 53639
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Mark KROLL, Defendant-Appellant.

Page 528

280 N.E.2d 528

4 Ill.App.3d 203

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Mark KROLL, Defendant-Appellant.

Gen. No. 53639.

Appellate Court of Illinois, First District, Fifth Division.

Feb. 25, 1972.

Rehearing Denied March 28, 1972.

Harry J. Busch and Warren D. Wolfson, Chicago, for appellant.

Edward V. Hanrahan, State's Atty. of Cook County, Chicago (Robert A. Novelle Alan M. Polikoff and Stephen J. Connolly, Asst. State's Attys., of counsel), for appellee.

DRUCKER, Justice.

Defendant appeals from a conviction for conspiracy to commit theft for which he was sentenced to a term of one to three years. He was tried without a jury.

On appeal defendant contends: (1) that the judge based his findings on matters not in evidence thus depriving defendant of his rights to confrontation and due process of law; (2) that defendant's right to remain silent was violated by improper remarks of the prosecution and evidenced by the oral opinion of the trial judge; (3) that the court erred when it failed to strike the direct testimony of two state witnesses upon defendant's motion, after defendant learned that their grand jury testimony had not been recorded; (1) that the court erred in failing to order the production of the grand jury testimony of two persons who did not testify at trial; and (5) that defendant was not proven guilty beyond a reasonable doubt.

The record in this case is voluminous; over 5000 pages of testimony were recorded and hundreds of exhibits were introduced. Defendant was tried on 24 counts of theft and three counts of conspiracy to commit theft. At the end of the State's case in chief, the 24 substantive counts were dismissed; the court denied defendant's motion to dismiss the remaining conspiracy counts. At the close of all the evidence, the court found defendant guilty of the conspiracy.

Both parties agree that the State's case lay essentially in the testimony of three witnesses, Raymond Wernke, William Jones and Harold Peck ¹ and the extensive documentation inferentially supporting the conspiracy theory. The defense relied on an extensive cross-examination of the three State witnesses and the testimony of its only witness, Thomas Harris.

The State's theory of the case is that the defendant, through the use of a web of corporate entities, was the instrumental figure in draining a substantial amount of funds from Oxford General Insurance Company, an Illinois corporation. Defendant was not an officer of Oxford General. He was not authorized to sign checks on its behalf, nor did he in fact do so. Rather, he directed this draining process indirectly, through the figures of Raymond Wernke, Harold Peck and William Jones.

The defense's theory of the case is that the defendant was simply not connected to the process by which Oxford General was victimized. It contends that the three key State witnesses were the real perpetrators of this crime and that they were now trying to shift the blame onto the defendant.

There were three conspiracy counts in the indictment differing from each other only with respect to the location where the alleged agreement to commit theft and acts pursuant thereto took place. They each stated that defendant and Harold Peck committed the offense of conspiracy in that they:

(w)ith intent that the offense of theft of property, money, funds, bank credits, bank deposits, checks * * * and securities, of a value of more than one hundred fifty dollars, the property of that certain aforesaid mutual insurance company duly organized, incorporated and existing under and pursuant to the terms of the Illinois Insurance Code and having the names, successively, of Columbia General Mutual Casualty Company and Oxford General Mutual Insurance Company, be committed, agreed with each other to the commission of that offense, and in furtherance of said conspiracy they committed certain acts, including, but without limitation to, the following: (The first three overt acts are omitted.)

(4) On or about March 13, 1963, Mark Kroll and Harold Peck, and each of them, caused and directed the transfer, by means of a check and order for the Payment of money, of money, funds and credits, in the amount and of the value of $55,000.00, the property of said mutual insurance company, on deposit at the American National Bank and Trust Company of Chicago, in said County, to the Central Trust Company, a banking institution in Cincinnati, Ohio.

(5) On or about May 21, 1963, Mark Kroll and Harold Peck, and each of them, caused and directed the transfer, by means of a check and order for the payment of money, of money, funds and credits, in the amount and of the value of $16,000.00, the property of said mutual insurance company, on deposit at the American National Bank and Trust Company of Chicago, in said County, to Oxford Financial Corporation, a corporation.

(6) On or about June 10, 1963, Mark Kroll and Harold Peck, and each of them, caused and directed the transfer, in said County, by means of a check and order for the payment of money, of money, funds, and credits, in the amount and of the value of $2,000.00, the property of said mutual insurance company, on deposit at the American National Bank and Trust Company of Chicago, in said County, to an individual payee located in the City of Chicago, in said County.

(7) On or about August 26, 1963, Mark Kroll and Harold Peck, and each of them, caused and directed the transfer, by means of a check and order for the payment of money, of money, funds and credits, in the amount and of the value of $750.00, the property of said mutual insurance company, on deposit at the American National Bank and Trust Company of Chicago, in said county, to said Oxford Financial Corporation.

(8) On or about August 30, 1963, Mark Kroll and Harold Peck, and each of them, caused and directed the transfer, by means of a check and order for the payment of money, of money, funds and credits, in the amount and of the value of $1,000.00, the property of said mutual insurance company, on deposit at the American National Bank and Trust Company of Chicago, in said County, to Agency Management Corporation, a corporation.

(9) On or about September 27, 1963, Mark Kroll and Harold Peck and each of them, caused and directed the transfer, by means of a check and order for the payment of money, of money, funds and credits, in the amount and of the value of $11,300.00, the property of said mutual insurance company, on deposit at the American National Bank and Trust Company of Chicago, in said County, to North American Securities Company, Inc., a corporation.

Opinion

Defendant first contends that the judge based his decision on matters not in evidence thus depriving defendant of his rights to confrontation and due process of law. Specifically, defendant argues that the court concluded that the defense's only witness, Thomas Harris, was biased, and that this conclusion was based on various findings of fact which were unsubstantiated by competent evidence in the record.

We find it unnecessary to consider whether Harris was or was not a credible witness since the trial court found that Harris 'did not and could not testify to any of the overt acts alleged in the conspiracy counts, in Paragraphs Number 4 through 9, * * *.' We might also add that Harris did not and could not testify as to either the many business office meetings at which the agreement to commit theft was arrived at or the extensive documentation inferentially supporting the conspiracy theory since he was in Florida operating North American Underwriters, a Florida based insurance company, and the victimization of Oxford General took place essentially in Chicago and Cincinnati, the latter city being the location of the corporate officers of Oxford General and the other corporate entities involved.

Since proof of only one overt act in carrying out the conspiracy is necessary to support the conviction, ² we will specifically analyze paragraph six of each conspiracy count. It in substance alleges that the defendant and/or Harold Peck caused $2000 to be transferred by check from Oxford General's bank account to 'an individual payee in Chicago.' At the trial the named payee, a prominent Chicago based attorney, testified that a company owned by the defendant (Twentieth Century Underwriters) had incurred a tax liability which could be settled for $2000. The three State's witnesses all corroborated the fact that the defendant owed a tax assessment and that this particular Chicago attorney was representing him in the matter. Jones stated that on June 10, 1963, acting on the defendant's instructions, he issued a check from Oxford General payable to the named attorney; said check was admitted into evidence as People's Exhibit 15. The attorney testified that he had never performed legal services on behalf of Oxford General and that Oxford General owed him nothing. He simply accepted the check for his attorney's fees in settling the tax liability defendant had incurred in the operation of Twentieth Century Underwriters.

Five additional checks, for $200 each, were paid to this attorney out of Oxford General's funds. They were for services rendered for the defendant concerning matters wholly unrelated to the operation of Oxford General. Peck, Wernke and Jones knew that the checks were not issued for services rendered on behalf of Oxford General but nevertheless acquiesced in defendant's instructions. Jones ultimately drew these five checks and they were admitted as People's Exhibits 13, 16, 17, 18 and 24.

As previously noted, Harris did not testify at all as to the above facts, nor as to any of the other overt acts contained in paragraphs 4 through 9 of the conspiracy counts. Therefore, even if the trial judge erred in stating his reasons for finding Harris a biased witness, this error had no significance and did not result in prejudice to the defendant.

Defendant's second contention is that his constitutional and...