People v. Szymanski

• Decision Date: 10 March 1992
• Docket Number: No. 2-90-0054,2-90-0054
• Citation: 226 Ill.App.3d 115,589 N.E.2d 148,168 Ill.Dec. 34
• Parties: , 168 Ill.Dec. 34 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Brian SZYMANSKI, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 148

589 N.E.2d 148

226 Ill.App.3d 115, 168 Ill.Dec. 34

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Brian SZYMANSKI, Defendant-Appellant.

No. 2-90-0054.

Appellate Court of Illinois Second District.

March 10, 1992.

G. Joseph Weller, Deputy Defender, Office of the State Appellate Defender, Joshua Sachs, Chicago, Ill., for Brian Szymanski.

James E. Ryan, Du Page County State's Atty., Wheaton and William L. Browers, Deputy Director, State's Attys. Appellate Prosecutor, Elgin, for the People.

Justice DUNN delivered the opinion of the court:

Following a jury trial, the defendant, Brian Szymanski, was convicted of the offense of forgery (Ill.Rev.Stat.1989, ch. 38, par. 17-3(a)(1)). He was sentenced to probation for a term of two years and was ordered to pay restitution in the amount of $500. The defendant raises two issues on appeal: (1) whether he is entitled to a new trial or, in the alternative, an evidentiary hearing, because of evidence of jury misconduct; and (2) whether improper argument by the prosecutor deprived him of a fair trial. We affirm.

The defendant was charged by indictment with the offenses of forgery (Ill.Rev.Stat.1989, ch. 38, par. 17-3(a)(1)) and theft of property in excess of $300 (Ill.Rev.Stat.1989, ch. 38, pars. 16-1(a)(1)(A), (b)(4)). At trial, the State presented evidence that Joyce Lenart operates a business known as Trend Design Associates, Inc. The business is located at 200 North Washington Street in Naperville. On January 11, 1989, Lenart gave a signed, blank check to one of her employees, Julie Olson, so that Olson could pay to ship some packages. Olson put the check in her pocket and left the office shortly before noon. She got into her car, which was parked on the street, and went home for lunch. Approximately 45 minutes later, Olson was getting ready to do her errands and realized that the check was gone. She called the Trend Design office to have the office cancel the check.

Dorothy Strutz was employed by the Harris Bank, which she testified is located at "Washington Street, 503" in downtown Naperville. She remembered that at 12:24 p.m. on January 11, 1989, she cashed a check signed by Joyce Lenart, the wife of bank vice-president Ray Lenart. She was uneasy about the check because it was signed by Lenart but made out by someone else. She looked for Ray Lenart, but he was not in his office. She then double-checked the account for funds and double-checked the signature to make sure that it was Joyce's signature. Strutz testified that the person presenting the check was about 6 feet tall and had light brown hair. She asked him for identification. He produced a driver's license, or what looked like one, and Strutz compared the picture on the license to the person presenting the check and also wrote the driver's license number on the back of the check. She stated that the identification document she examined was not a copy of a traffic ticket. Strutz could not identify the defendant as the person who cashed the check on January 11, 1989.

The check to which Strutz referred was admitted into evidence. On the front, it was dated January 11, 1989, drawn on the Harris Bank, and payable to "Brain [sic ] Szymanski" in the amount of $500. This writing on the front was in black ink. The signature line showed "Joyce Lenart" written in blue ink. The back of the check was endorsed, in black ink, "Brian Szymanski." A driver's license number was written under the endorsement signature.

Both Lenart and Olson testified that they did not know Brian Szymanski. Lenart also testified that she had not given Szymanski permission to possess the check or any money from her account. Documents were admitted into evidence to show that the driver's license number written on the back of the check was the defendant's driver's license number.

Police detective Michael Cross testified that he and Detective James Griffith interviewed the defendant on January 25, 1989. The defendant told the officers that on January 11 he was at the Naperville Recycling Center from 8 a.m. to 9 a.m. After he left the center, the defendant said, he went to the library and was there most of the day. According to Officer Griffith, the recycling center is located in the area of Fisk Street and Ogden Avenue, and the library is located seven or eight blocks south of the Harris Bank.

When the defendant allowed the officers to search his wallet, it contained no driver's license, but a traffic ticket issued November 11, 1988. The defendant stated that he had posted his license for bond on that date. He also gave the police 14 pages of handwriting samples.

John Gorajczyk, the sergeant in charge of the identification section of the Du Page County crime laboratory, was qualified as an expert in the field of handwriting analysis. He testified that he compared the handwriting samples given by the defendant to the handwriting on the check. He stated that he could not be positive that the date, "Brain [sic ] Szymanski," and $500 notations on the front of the check were written by the defendant. He also stated that the signature on the front of the check appeared to have been written by "a different writer." He testified that the endorsement on the back of the check was written by the defendant.

Joel Kagann, chief deputy circuit court clerk of Du Page County, testified on behalf of the defendant. He stated that pursuant to a traffic citation the defendant's driver's license was posted as bond on November 11, 1988. The license remained with the file in the circuit clerk's office until it was sent to the Secretary of State on March 22, 1989.

The defendant testified that he was not in the Harris Bank on January 11, 1989. He also testified that he did not write out the check or endorse it. He stated that he was at the library on January 11, 1989, from 10:30 a.m. until 3 p.m.

During closing arguments, the prosecutor argued that Dorothy Strutz may have been mistaken when she testified that she was shown a driver's license for identification. The prosecutor argued that Strutz might, instead, have been given a traffic ticket for identification or that the defendant might have had more than one driver's license. During his rebuttal argument, the prosecutor argued that prosecutors were not going to make up a case against the defendant and stated, "[n]obody is going to put their law license on the line over Brian Szymanski to try and make up a case against him."

The jury returned verdicts of guilty on the forgery charge and not guilty on the theft charge, and it was discharged. The verdicts were not read until the next day since the defendant and the State had stipulated to waive polling of the jury. When the verdicts were read, the court denied the defendant's oral motion to question two jury members who were present outside the courtroom. Those two jurors had expressed dissatisfaction with the verdicts, and one had tried to communicate with the court. The court read the verdicts into the record and entered judgment on them.

Prior to sentencing, the defendant filed a motion for a new trial. Handwritten statements of four jurors were attached to the motion. All four statements were signed, and one of the statements was signed and notarized. The statements essentially stated that one of the women on the jury had appointed herself foreperson. They also stated that at one point during the deliberations six of the jurors believed that the defendant was guilty and six believed that the defendant was not guilty. At that point, the jurors sent a note to the judge, stating that they could not reach a unanimous decision. The judge responded: "Please continue with your deliberation." The jury eventually reached a compromise verdict, finding the defendant not guilty of theft but guilty of forgery.

The statements also stated that after the jurors received the note from the judge, the "self-appointed" foreperson drew a map of part of Naperville. One of the juror's statements said that the map showed the location of the Trend Design office, the recycling center, the Harris Bank and the library. Another statement said that the foreperson told them that she lived in Naperville and that she used the map to demonstrate the route the defendant took from the recycling center to the bank to the library. Another juror's statement said that the map was used to show that the buildings in question were located in a small area. All of the statements stated that the map was inaccurate.

On November 9, 1989, the court heard the defendant's argument that, based on the statements of the jurors, an evidentiary hearing should be held to determine whether the verdict should be vacated. The trial court denied the defendant's request for a hearing. The court found that the map referred to in the statements was merely an extension of the jury foreperson's mental processes and was not "extraneous" to the actual deliberations.

The defendant later filed an amended post-trial motion based on allegations that the State engaged in improper closing argument and on the jurors' statements. The defendant attached to the motion the signed, notarized statement of a fifth juror who referred to the foreperson's map and stated that it was inaccurate. The court heard the post-trial motion on January 11, 1990. It denied the motion and sentenced the defendant to two years' probation and $500 in restitution.

On appeal, the defendant argues that based on the supreme court's decision in People v. Holmes (1978), 69 Ill.2d 507, 14 Ill.Dec. 460, 372 N.E.2d 656, those portions of the jurors' statements which referred to the map drawn by the foreperson were admissible to show that the jury improperly considered an informal "exhibit" which he had no opportunity to confront or refute. The defendant contends that the purpose of the map was to demonstrate that he had the opportunity to commit the crime. He argues that the trial court should have reversed his conviction on...