People v. Zizzo

• Decision Date: 13 November 1998
• Docket Number: No. 2-97-0227,2-97-0227
• Citation: 301 Ill.App.3d 481,703 N.E.2d 546,234 Ill.Dec. 685
• Parties: , 234 Ill.Dec. 685 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Georgina M. ZIZZO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 546

703 N.E.2d 546

301 Ill.App.3d 481, 234 Ill.Dec. 685

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Georgina M. ZIZZO, Defendant-Appellant.

No. 2-97-0227.

Appellate Court of Illinois,

Second District.

Nov. 13, 1998.

G. Joseph Weller, Deputy Defender (Court-appointed), Thomas A. Lilien (Court appointed), Office of State Appellate Defender, Elgin, Gail D. Zwemke (Court-appointed), Batavia, for Georgina M. Zizzo.

Michael J. Waller, Lake County State's Attorney, Waukegan, Martin P. Moltz, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, Gary K. Chan, Chicago, for People.

Justice BOWMAN delivered the opinion of the court:

Defendant, Georgina M. Zizzo, was charged by indictment with felony theft (720 ILCS 5/16-1(a)(2)(A) (West 1996)). After a jury trial, she was convicted, sentenced to 36 months of probation and 12 months of work release, and ordered to pay $55,000 in restitution. Defendant now appeals, arguing that the State did not prove her guilty beyond a reasonable doubt. We affirm.

I. FACTS

The State's first witness, Carol Carl, testified that, in May 1996, while updating her family's financial records, she discovered a series of unauthorized automatic teller machine (ATM) withdrawals from her account at First Bank of Highland Park (the Bank). Carl immediately called the Bank to report the unauthorized withdrawals, and the Bank's vice-president invited her in to review the matter. After reviewing her records at the Bank, Carl contacted the police and filed a report. The Carls' account records established that the unauthorized ATM withdrawals were made between October 1995 and May 1996 and totaled $62,072.86.

The State next called Billie Carr. Carr testified that he was a good friend of defendant, whom he had met in the summer of 1995. In September 1995, shortly after defendant began working at the Bank, Carr and defendant opened a joint checking account at the Bank. In October 1995, defendant told Carr to go to the Bank because someone named Barb Kubas wanted him to do Kubas a favor. Carr called Kubas, and Kubas asked Carr to come to the Bank. Carr went to the Bank alone and found Kubas at her desk. Kubas walked Carr over to the ATM, opened a file folder, and handed Carr an ATM card bearing the name "Daryl Simson." Asked whether he knew where the name "Daryl Simson" had come from, Carr responded that the name was on the ATM card when he arrived. After using the ATM card to make three withdrawals totaling $500, he left the ATM card and some of the cash by Kubas's car.

Carr went on to testify that, in the spring of 1996, he called Barb Kubas, whom he had now given the nickname, "Tampa," to find out whether he could obtain a second ATM card. Kubas told Carr to come back in and get another card. When he went to pick up the second ATM card, Carr was accompanied by someone who was driving defendant's car. Carr did not speak with defendant about what had happened to the first ATM card, and defendant did not accompany Carr when he picked up the second ATM card. On June 4, 1996, Carr returned to the Bank to pick up a third ATM card because the ATM would no longer accept the second card. On this occasion, defendant was with him. Shortly after requesting the card, defendant was arrested. Carr admitted to using the ATM cards to acquire about $600 but denied knowing what happened to the rest of the money. In a statement given to the police immediately after his arrest, Carr repeatedly referred to his girlfriend, "Tampa," because he did not want to name Barb Kubas.

Carr's trial testimony directly contradicted at least two prior statements he had made. On November 18, 1996, just prior to receiving his sentence for his part in the ATM scheme, Carr testified that (1) defendant had set up the false ATM card using one of the Bank's laptop computers; (2) defendant had told him to go to the Bank to pick up the false ATM card; (3) defendant told him to use the name "Daryl Simson"; (4) after withdrawing $400, he gave the first ATM card to defendant; (5) he played no part in setting up the false ATM card; and (6) Barb Kubas knew nothing about defendant's scheme. Carr emphasized that his story was truthful, that he was willing to retell it under oath at defendant's trial, and that he would accept the service of a subpoena to testify at defendant's trial. At defendant's trial, Carr's November 18, 1996, testimony was admitted as substantive evidence as a prior inconsistent statement under section 115-10.1 of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/115-10.1 (West 1996)).

Carr's testimony at defendant's trial also contradicted an unsworn statement Carr gave to the assistant State's Attorney on January 2, 1996, four days before defendant's trial began. During his direct examination at defendant's trial, Carr admitted to telling the assistant State's Attorney that (1) defendant was responsible for setting up the false ATM card; (2) defendant kept the false ATM card after Carr made his initial withdrawals; (3) "Tampa" was in fact defendant; and (4) Barb Kubas knew nothing about defendant's ATM card scheme. However, Carr denied stating that defendant kept most of the withdrawn money. Carr attributed the inconsistencies between his trial testimony and his January 2, 1996, statement to his not being represented by counsel during the January 2, 1996, interview. The trial court admitted Carr's January 2, 1996, statement for impeachment purposes only.

The State next called Barb Kubas, a retail banker, who worked with defendant at the Bank. Kubas explained that defendant worked as a temporary entry-level receptionist whose duties included greeting customers and filing. Defendant's duties did not include opening accounts.

According to the Bank's records, Kubas issued ATM cards to Daryl Simson in October 1995 and March 1996. Although Kubas did not recall issuing the October 1995 ATM card, she did remember issuing the March 1996 card. According to Kubas, Daryl Simson approached her desk in March 1996 and requested a new ATM card. Without asking for any identification, Kubas pulled Daryl Simson's ATM file, generated a new ATM card, and handed the card to Carr. Kubas testified that, under the Bank's standard operating procedures at the time, she was not required to ask for identification before issuing an ATM card. When asked whether she knew who set up the Daryl Simson ATM account and file, Kubas responded "No."

Sometime after March 1996, Kubas learned that Daryl Simson was in fact Billie Carr, a friend of defendant's. After the Carls discovered the unauthorized withdrawals from their account, Kubas assisted in the Bank's internal investigation. That investigation focused exclusively upon defendant and Billie Carr; nobody else was investigated. When Carr returned to the Bank on June 4, 1996, to obtain a third ATM card, Kubas notified the Bank's security officer. The security officer called the police, and Carr was arrested. Kubas denied any knowledge of, or participation in, the ATM scheme.

The State next called Lillian Herter, a vice-president at the Bank. Herter reviewed the Carls' account records and stated that the unauthorized ATM withdrawals totaled $62,072.86. The same records showed that the unauthorized withdrawals had been made using the Daryl Simson ATM card, which had been programmed to withdraw money from the Carls' account. The records did not show, however, who had created the Daryl Simson ATM account and file. Herter testified that she had no way of knowing from the records who set up the Daryl Simson ATM account and that anyone with access to the Bank's computer accounts system could have done it. Herter then confirmed that defendant worked at the Bank from September 12, 1995, through October 13, 1995, as a temporary receptionist in the retail banking department. As a temporary receptionist, defendant was responsible for filing and, like all employees in the retail banking department, had access to the unlocked ATM records. However, she was not authorized to access the Bank's computer accounts system.

The State next called Dr. Jane Homeyer, executive director of the Northern Illinois Police Crime Laboratory. Homeyer testified that she performed a fingerprint analysis on the Daryl Simson ATM account file. Homeyer found two prints suitable for comparison, both of which matched defendant's. Homeyer noted, however, that her analysis could not establish either when or in what context the fingerprints had been left.

Finally, the State called Mike Nerheim, an intern in the Lake County State's Attorney's office. Nerheim testified that he had been present for Carr's January 2, 1996, interview with the assistant State's Attorney. According to Nerheim, Carr stated in the interview that (1) defendant had set up the fraudulent ATM card scheme; (2) defendant told Carr to go to the Bank and pick up an ATM card for "Daryl Simson"; (3) after Carr had made his initial $400 withdrawal, defendant took and kept the Daryl Simson ATM card; and (4) "Tampa" was in fact defendant. Nerheim added, however, that he did not take any notes during the January 2, 1996, interview and that Carr's interview was neither recorded nor transcribed.

Defendant moved for a directed verdict, arguing that the State's case did not comport with the indictment because the indictment did not allege an accountability theory. The trial court denied the motion. Defendant then rested, and the jury returned a guilty verdict. Defendant refiled her directed verdict motion as a motion for judgment notwithstanding the verdict, and the trial court denied that motion as well. The trial court sentenced defendant to 36 months of probation and 12 months of work release and ordered her to pay $55,000 in restitution. This timely appeal followed.

II. ANALYSIS

Before reaching the merits of this appeal, we must summarily dispose of the State's argument that the issue presented is waived. Citing People v. Enoch,...