{ "id": 3520051, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL KISSINGER, Defendant-Appellant", "name_abbreviation": "People v. Kissinger", "decision_date": "1983-07-20", "docket_number": "No. 82\u20141833", "first_page": "826", "last_page": "834", "citations": [ { "type": "official", "cite": "116 Ill. App. 3d 826" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "385 N.E.2d 649", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "74 Ill. 2d 286", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994719 ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0286-01" ] }, { "cite": "377 N.E.2d 17", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "72 Ill. 2d 36", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5443247 ], "opinion_index": 0, "case_paths": [ "/ill-2d/72/0036-01" ] }, { "cite": "381 N.E.2d 321", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "64 Ill. App. 3d 453", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3329978 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-app-3d/64/0453-01" ] }, { "cite": "372 N.E.2d 1052", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "57 Ill. App. 3d 134", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3422291 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/57/0134-01" ] }, { "cite": "362 N.E.2d 14", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "47 Ill. App. 3d 529", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3366502 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/47/0529-01" ] }, { "cite": "197 N.E.2d 436", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "30 Ill. 2d 359", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2826177 ], "opinion_index": 0, "case_paths": [ "/ill-2d/30/0359-01" ] }, { "cite": "402 N.E.2d 677", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "82 Ill. App. 3d 252", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3224393 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/82/0252-01" ] }, { "cite": "343 N.E.2d 489", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "62 Ill. 2d 448", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2971950 ], "opinion_index": 0, "case_paths": [ "/ill-2d/62/0448-01" ] }, { "cite": "125 N.E.2d 506", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "5 Ill. 2d 337", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2702991 ], "opinion_index": 0, "case_paths": [ "/ill-2d/5/0337-01" ] } ], "analysis": { "cardinality": 671, "char_count": 14232, "ocr_confidence": 0.768, "pagerank": { "raw": 1.292007164348515e-07, "percentile": 0.620018001049482 }, "sha256": "05e7a2eb49799428343e4c359c582baa0ac5b449332805c166bf2b89e78dbf8b", "simhash": "1:9268450eefe69f4f", "word_count": 2294 }, "last_updated": "2023-07-14T17:34:21.721217+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL KISSINGER, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE McNAMARA\ndelivered the opinion of the court:\nDefendant, Daniel Kissinger, was charged with theft of services and obtaining services with intent to defraud. The services in question involved the transmission of 97 mailgrams and five overseas telephone calls, all of which were charged to another person without that person\u2019s authorization. After a trial without a jury, he was found guilty of both charges and was sentenced to periodic imprisonment for four weekends.\nVictor Weiss operated an automobile repair business in Kenilworth, Illinois. Over defense objection, Weiss testified that he repaired the brakes of defendant\u2019s pick-up truck in July 1981. A month later defendant complained that the brakes were not working properly, and installation of a new part cost defendant an additional $80.\nIn October 1981, Weiss, who is Jewish, began receiving magazines to which he had not subscribed. They were addressed to J. Mengele, whom Weiss recognized as a German war criminal. Other addressees were Nazi generals and admirals. In November 1981, Weiss began to receive confirmations of mailgrams sent in his name to various people around the country. Weiss was billed a total of $450 for the mail-grams, none of which had been sent or authorized by him. Some of the mailgrams announced that Weiss was about to merge with a large company. Other mailgrams asserted that because the addressees owed Weiss at least $400, he did not wish to do business with them. Many mailgrams were sent to people in the neighborhood informing them that, because they were classified as Semites, Weiss did not want to do business -with them. Merchandise was also ordered in Weiss\u2019 name and unauthorized newspaper ads for his business resulted in thousands of telephone calls.\nThomas Hartel, a friend and fellow college student of defendant, testified for the State that defendant had complained of being ripped off by Weiss, \u201cthat Jew in Kenilworth.\u201d In the presence of another student, Adam Schellenberg, defendant added that possibly something could be done about it. In November 1981, Schellenberg told Hartel and defendant that he had placed orders for magazines and merchandise for Weiss. During the same month, defendant and Hartel were present when Schellenberg called in mailgrams for Weiss Tire Company.\nOn cross-examination and on examination by the court, Hartel stated that it was Schellenberg\u2019s idea to send the mailgrams and that he had not seen defendant order any of them. Schellenberg was harassing Weiss in exchange for defendant\u2019s help in writing a letter to a school dean. Hartel also stated that he had been charged with regard to sending the mailgrams.\nAfter a recess, over defense objection, the State was allowed to recall Hartel on the grounds that new evidence had come to light. Hartel then testified that he and defendant had helped write the mail-grams and had helped look up the addresses. Furthermore, it was defendant\u2019s idea to use Mengele\u2019s name. Defendant, Schellenberg and the witness all made overseas telephone calls and charged them to Weiss.\nAdam Schellenberg testified for the State and corroborated the testimony of Hartel that defendant had helped compose the mail-grams and had helped find addresses, and that both he and defendant had made telephone calls to England and New Zealand in Weiss\u2019 name. It was Schellenberg\u2019s idea to send mailgrams, and it was defendant\u2019s idea to use Mengele\u2019s name.\nDefendant testified that he had been a little upset about the brake work done by Weiss and he told Hartel and Schellenberg that he had been ripped off by Weiss, referring to him as a Jew. Defendant denied expressing any desire to get even with Weiss, denied sending any magazines to Weiss or making any telephone calls in Weiss\u2019 name. Defendant was not present on November 7 and 20 when mailgrams were sent, nor did he have any previous knowledge of these mail-grams. Although Schellenberg told him of his plan to send the November 14 mailgrams, defendant was present for only a few minutes and he did not participate in any way.\nOn cross-examination, over defense objection, defendant was asked whether his referral to people as Jews ever had an anti-semitic connotation and whether he was anti-semitic, whether he harassed Jews in his business and whether he automatically added a surcharge for all Jewish customers. Defendant denied all this and denied that he had dressed up as Hitler.\nMoreen Alexander, a customer of defendant, testified in rebuttal that defendant informed her he did not like working in West Wilmette because of all the Jews and though that they should get rid of West Wilmette. Schellenberg testified in rebuttal that defendant told him he automatically added a $5 surcharge for all of his Jewish customers. In October 1981, Schellenberg saw defendant walking on their campus dressed as Hitler, complete with ROTC uniform, boots, swastika, penciled-in mustache, and hair parted on the side. Defendant was not dressing in that manner for a Halloween party.\nOn appeal defendant contends that the trial court erred in allowing testimony regarding materials sent prior to the alleged offense; that it erroneously admitted evidence regarding the ethnic background of Weiss and of the persons whose names appeared on the magazine labels; that it erred in allowing defendant to be cross-examined with regard to his anti-semitic attitude and behavior and in allowing rebuttal testimony based upon defendant\u2019s denials of such behavior; that it erred in allowing Hartel to be recalled; that the prosecutor\u2019s closing argument was prejudicial; and that defendant was not proved guilty beyond a reasonable doubt.\nWe first address defendant\u2019s contention that the trial court erred in admitting evidence that, prior to the alleged offense, defendant sent magazines to Weiss in the names of Nazi war criminals.\nEvidence of other crimes is generally inadmissible to show that defendant had a propensity to engage in the criminal activity with which he was charged. (People v. Lehman (1955), 5 Ill. 2d 337, 125 N.E.2d 506.) However, such evidence may be admissible if relevant for another purpose. (People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489.) Proof of other crimes tending to establish motive, intent, absence of mistake or accident, identification, or common scheme or plan has been held admissible. People v. Lehman.\nWe reject defendant\u2019s argument that this evidence was offered merely to show defendant\u2019s propensity to commit the crime with which he was charged. We find rather that it tended to establish a common scheme to harass Weiss by ordering items and services in his name with intent to defraud. In addition, the fact that some of the magazines sent by defendant were addressed to J. Mengele, the war criminal whose name was also used as signator in the mailgrams, is relevant with regard to the probability of defendant\u2019s participation in the crimes charged. While this evidence could have been excluded if the trial court found that its prejudicial effect outweighed its probative value, such balancing is in the first instance left to the sound discretion of the trial court and we cannot say that the court abused its discretion. People v. Kirkwood (1980), 82 Ill. App. 3d 252, 402 N.E.2d 677.\nDefendant also contends that the trial court erred in allowing testimony that Weiss and some of the recipients of the mailgrams were Jewish and that the labels on the magazines bore the names of Nazi war criminals. He urges that such evidence had no relevancy to the present issues and served only to prejudice defendant.\nPrejudicial evidence which has no relationship to a defendant\u2019s guilt or innocence should not be admitted. (People v. Bernette (1964), 30 Ill. 2d 359, 197 N.E.2d 436.) The evidence in question here was prejudicial to defendant in that it implied that he was anti-semitic. Yet, it did bear on his guilt and was therefore properly admitted. The evidence indicated the anti-semitic nature of defendant\u2019s harassment of Weiss. Moreover, the use of Mengele\u2019s name in both the magazines and the mailgrams not only links one incident with the other, thus revealing a common scheme to harass Weiss in a uniquely anti-semitic manner, but also tends to implicate defendant in both incidents.\nDefendant next contends that the trial court erred in permitting him to be cross-examined with regard to his attitude toward Jews and that it further erred in allowing rebuttal evidence based upon that cross-examination.\nOn direct examination defendant not only denied participating in any harassment scheme, but he also denied wanting to get even with Weiss. He further stated that his reference to Weiss as a Jew was not unusual nor used in a derogatory manner. Due to the anti-semitic nature of the mailgrams therefore, we find that the evidence that the State attempted to elicit in an effort to establish defendant\u2019s negative attitude toward Jews and toward Weiss in particular was relevant in that it tended to demonstrate that defendant participated in sending the mailgrams. Defendant\u2019s attitude toward Weiss and Jews was a material issue in this case, and it was proper to offer rebuttal evidence to contradict defendant\u2019s denials. People v. Gardner (1977), 47 Ill. App. 3d 529, 362 N.E.2d 14.\nDefendant next argues that it was improper for the trial court to allow the State to recall Hartel as a witness after he was excused. Although the court allowed Hartel to give further testimony based upon the State\u2019s representation that new evidence had come to light, defendant maintains that no new evidence was offered but rather that Hartel\u2019s testimony on recall was completely contradictory to his earlier testimony.\nPermission to recall a witness is within the sound discretion of the trial court. (People v. Thompson (1978), 57 Ill. App. 3d 134, 372 N.E.2d 1052.) Contrary to defendant\u2019s contention, Hartel\u2019s testimony on recall was not completely contradictory to his earlier testimony. Hartel initially testified that defendant had not actually placed any of the mailgram orders himself. The State failed at that time, however, to ask whether defendant had helped in any other way. Therefore, Hartel\u2019s testimony on recall regarding defendant\u2019s role in composing the mailgrams did not contradict his earlier testimony. Recall of a witness for the purpose of allowing the State to elicit additional testimony is within the court\u2019s discretion. (People v. Faulkner (1978), 64 Ill. App. 3d 453, 381 N.E.2d 321; People v. Thompson (1978), 57 Ill. App. 3d 134, 372 N.E.2d 1052.) The only inconsistency concerned the number of occasions on which both defendant and Hartel were present during the sending of mailgrams. Hartel at first stated that defendant was present on one occasion and later asserted that he was present twice. There was no evidence of collusion by the prosecutor, however, and defendant had ample opportunity to cross-examine Hartel a second time. Furthermore, since Hartel was recalled during the State\u2019s case, defendant was not prevented from preparing his case to counter the additional testimony. We find no prejudice to defendant and conclude that the trial court did not abuse its discretion in allowing the State to recall Hartel as a witness.\nDefendant next maintains that he was denied a fair trial because of certain prejudicial remarks made by the prosecutor during closing argument. Specifically, the prosecutor referred to defendant as \u201ca hate spewing bigot\u201d and \u201ca hot-tempered bigot.\u201d In addition, the prosecutor stated that the issue of anti-semitism was \u201crelevant because it * * * offended Mr. Weiss who is obviously Jewish\u201d and that there were \u201cfar reaching ramifications beyond the criminal complaint.\u201d\nDefendant neither objected at trial when these comments were made nor did he raise them in a motion for a new trial. Consequently, the issue has been waived. (People v. Sullivan (1978), 72 Ill. 2d 36, 377 N.E.2d 17.) Moreover, in this trial without a jury, the remarks complained of could not be considered sufficiently prejudicial to warrant reversal.\nDefendant urges that the trial court revealed that it had been influenced by these prejudicial remarks when it commented, upon sentencing defendant, \u201cI wish I could send you to Dachau to take a tour of that. There is no room in this world for hate.\u201d\nThis comment was made, however, at the time of sentencing, after defendant had already been found guilty. Since this was a trial without a jury and since there is no indication in the record that the comments were considered in making a determination of guilt, it must be presumed that the court relied only upon proper evidence in reaching a determination on the merits. People v. Berland (1978), 74 Ill. 2d 286, 385 N.E.2d 649.\nDefendant finally contends that he was not proved guilty beyond a reasonable doubt in that undue weight was given to the testimony of Hartel and Schellenberg where that testimony was both contradictory and vague as to dates and times. Defendant also urges that the testimony of these two witnesses, as accomplices, should have been viewed with suspicion.\nIn the present case two eyewitnesses clearly and positively testified that defendant participated in the offenses. While their position as accomplices required that their testimony be scrutinized carefully by the trial court, we note that the court was aware of their position as accomplices when it made a determination with regard to the credibility of their testimony, much of which was corroborated by the physical evidence. Furthermore, the testimony of the accomplices with regard to dates was sufficiently specific. Defendant was proved guilty beyond a reasonable doubt.\nFor the reasons stated, the judgment of the circuit court of Cook County is affirmed.\nJudgment affirmed.\nRIZZI and WHITE, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE McNAMARA" } ], "attorneys": [ "Norman Nelson, Jr., of Chicago (Ray Sabransky, of counsel), for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Paula Carstensen, and Randall E. Roberts, Assistant State\u2019s Attorneys, bf counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL KISSINGER, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 82\u20141833\nOpinion filed July 20, 1983.\nNorman Nelson, Jr., of Chicago (Ray Sabransky, of counsel), for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Paula Carstensen, and Randall E. Roberts, Assistant State\u2019s Attorneys, bf counsel), for the People." }, "file_name": "0826-01", "first_page_order": 848, "last_page_order": 856 }