People v. Thompson ( 2014 )

2014 IL App (5th) 120079NOTICE
Opinion filed April 25, 2014. NO. 5-12-0079
Modified upon denial of
rehearing November 18, 2014.
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Hamilton County.
)
v. ) No. 11-CF-50
)
JEREMY R. THOMPSON, ) Honorable
) David K. Frankland,
Defendant-Appellant. ) Judge, presiding.
________________________________________________________________________
JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion.
Justices Spomer and Cates concurred in the judgment and opinion.
OPINION
¶1 Defendant, Jeremy R. Thompson, was charged in the circuit court of Hamilton
County with illegal procurement of anhydrous ammonia and tampering with equipment
in violation of the Methamphetamine Control and Community Protection Act (720 ILCS
646/25 (West 2010)). After trial, a jury found defendant guilty on both counts and the
court entered judgment on the verdict. On appeal, defendant raises issues as to whether
he was denied a fair trial by the trial court admitting lay opinion testimony identifying
him from surveillance recordings.
¶2 We reverse and remand.
1
¶3 FACTS
¶4 Prior to trial, defendant filed a motion in limine regarding the admissibility of
witness opinions. Defendant asserted that the State's anticipated use of witnesses to
testify that they believed defendant was shown on surveillance recordings would be an
opinion as to ultimate fact that would invade the province of the jury. The trial court
denied the motion.
¶5 Deputy Jason Stewart
¶6 At trial, the first witness called by the State was Deputy Jason Stewart of the
Hamilton County sheriff's department. Deputy Stewart described how anhydrous
ammonia was used in the production of methamphetamine and how it was often stolen
from local farm supplies. In June 2011, Deputy Stewart personally oversaw the
installation and maintenance of a surveillance camera at Hamson Ag in Dahlgren.
¶7 On the morning of July 21, 2011, Deputy Stewart was dispatched to Hamson Ag.
Upon seeing that three tanks had their caps removed, Deputy Stewart reviewed and
copied recordings made by a surveillance camera trained on the tanks in case of theft.
The sensor for the camera was initially tripped at 6:26 a.m. Deputy Stewart described the
actions of a white male in the surveillance video. Deputy Stewart described the physical
appearance of the man with a bald spot, large forehead, and receding hairline, wearing a
gray cut-off tee shirt and baggy pants. Stewart described how the man was carrying a
five-gallon bucket and a green soda bottle with a clear hose attached. Stewart testified
that, based on his training and experience, a soda bottle attached to a hose is commonly
used to steal anhydrous ammonia.
2
¶8 Deputy Stewart did not recognize the white male, but he circulated the video
through his department and gave a copy to Chief Deputy Will Sandusky, a member of the
Illinois State Police Drug Task Force, to distribute throughout other counties and
agencies.
¶9 Officer Brian Huff
¶ 10 Officer Brian Huff of the Mt. Vernon police department saw a still image derived
from the surveillance video at the roll call table. Over defendant's objection, Huff stated
that he recognized the person in the image as defendant and identified defendant in the
courtroom. Huff agreed with the prosecutor that the image was somewhat blurry, but
Huff recognized defendant because he "had previous dealings with him." Huff testified
that in the background there were anhydrous ammonia tanks and a bucket and a tube
typically used to procure anhydrous. Huff notified his supervisor that he recognized the
person in the video as defendant.
¶ 11 Officer Kevin Jackson
¶ 12 Officer Kevin Jackson of the narcotics division of the Mt. Vernon police
department testified that he assisted the Hamilton County sheriff's department on the
case. Jackson stated Hamilton County had provided a video to his supervisor, who then
circulated a still-image photo to the patrol division. When asked to describe the still
image as an exhibit, Jackson stated that it was defendant carrying a five-gallon bucket
with a plastic tube attached to what looked like a soda bottle.
¶ 13 When asked if he was able to identify who was depicted when the still image was
first shown to him, Officer Jackson responded: "At the time, no. I knew it resembled
3
[defendant], but the video–the picture that I had was a black and white picture. And it
had been–looked like it had been Xeroxed or faxed." When asked if he was able to
subsequently determine who was depicted, Officer Jackson replied that after looking at
the video, he was "able to positively identify the person to be [defendant]." Over
defendant's objection, Officer Jackson identified defendant in open court. On cross-
examination, Jackson testified that he had not viewed the video until a week before trial.
¶ 14 Jessica Joslin
¶ 15 Officer Jackson stated that within a week of receiving the still image, he showed it
to Jessica Joslin. Apparently, Officer Jackson showed Joslin a color copy of the distilled
image Officer Huff reviewed at the roll call table. Both copies of the distilled image
were submitted to the jury as exhibits. Joslin testified that when Jackson showed her the
still image, she believed it was a person she knew by the name "Jeremy." Joslin stated
she had never carried on a conversation with "Jeremy," but had "seen him sleeping on a
front porch one time." On cross-examination, Joslin admitted that when she saw
"Jeremy," she herself was strung out on methamphetamine. Joslin also admitted that her
husband had charges pending against him for tampering with anhydrous ammonia.
¶ 16 Chief Deputy Will Sandusky
¶ 17 On August 17, 2011, Chief Deputy Sandusky interviewed defendant. Before
addressing his interview of defendant, Sandusky was asked about his initial involvement
with the case and whether he witnessed a video. Sandusky testified that he watched the
recording, but "did not immediately recognize the subject in the video." Sandusky
testified that he began his interview by telling defendant that "he had been caught on
4
surveillance stealing anhydrous ammonia." Sandusky then described the importance of a
printout of a still image from the surveillance video:
"Q. [Attorney for State:] Okay. And why was this photo significant to
[defendant] after you told him that you had reportedly caught him on video?
A. After I informed [defendant] that he had been caught on surveillance
video, he asked that he could–wanted to know if he could see the evidence. I
showed him the still image. And he looked at it for several seconds and said, I
wish this wasn't me–or I wish I could say this wasn't me. But it is."
¶ 18 Defendant also stated that the photo was "pretty cool" and wanted a copy.
According to Sandusky, defendant admitted that he had been manufacturing
methamphetamine for several months and had stolen approximately two gallons of
anhydrous ammonia from Hamson Ag on four or five different occasions. Sandusky
stated that as they were leaving the interview room, defendant stated that it was not really
him in the video as he had been in custody in Johnson County. Sandusky stated that his
inquiry revealed that defendant had been released from custody in Johnson County on
July 18.
¶ 19 As part of closing argument, the prosecution stated: "You saw the photograph of
the defendant. You had several officers identify the defendant that had prior dealings
with him."
¶ 20 The jury returned a verdict of guilty on both counts. The court entered judgment
on the verdict and defendant was sentenced to 18 years' imprisonment. Defendant
appeals.
5
¶ 21 ANALYSIS
¶ 22 I. Identification Testimony
¶ 23 At trial, several police officers and an apparent informant testified that defendant
was the one pictured in surveillance. The State contends that this testimony was an
appropriate lay opinion on identity. Considered separately, none of the witnesses met the
standards for identification testimony. None of these witnesses aided the jurors' own
identification of who was depicted in the surveillance. Considered collectively, the
identification testimony encroached on the function of the jury to such an extent that no
confidence can rest in the verdict.
¶ 24 Illinois has long allowed identification testimony by witnesses who did not
personally observe events depicted in a video recording. People v. Starks, 119 Ill. App.
3d 21, 25, 456 N.E.2d 262, 265 (1983); see People v. Owens, 394 Ill. App. 3d 147, 154,
914 N.E.2d 1280, 1286 (2009); People v. Sykes, 2012 IL App (4th) 111110, ¶ 35, 972
N.E.2d 1272. In establishing the standard for admission of such testimony, Illinois
looked to the Federal Rules of Evidence and procedures adopted by other jurisdictions.
Starks, 119 Ill. App. 3d at 25, 456 N.E.2d at 265; Fed. R. Evid. 701. Subsequently,
Illinois adopted its own rules. The procedure for evaluating identification testimony first
established by Starks is consistent with Illinois Rule of Evidence 701. Ill. R. Evid. 701
(eff. Jan. 1, 2011) (opinion testimony by lay witnesses); see also Ill. R. Evid. 704 (eff.
Jan. 1, 2011) (opinion on ultimate issue). Starks provides the framework for our
decision.
¶ 25 In Starks, two inmates were convicted of felonies after participating in a prison
6
riot. Cameras monitored the area where the riot occurred. At trial, correctional officers
identified the defendants as among those shown on the video. Starks, 119 Ill. App. 3d at
24, 456 N.E.2d at 264.
¶ 26 Starks rejected the claim that the guards rendered expert opinions. Starks first
looked to federal cases interpreting Federal Rule of Evidence 701. Starks noted that
federal courts had found identification testimony met the standards of Rule 701 when the
defendant's appearance had changed between the offense and the trial. Starks, 119 Ill.
App. 3d at 25, 456 N.E.2d at 265. The federal courts had concluded that the admission of
such testimony was not an error of constitutional dimensions. Starks, 119 Ill. App. 3d at
25, 456 N.E.2d at 265 (citing United States v. Calhoun, 544 F.2d 291 (6th Cir. 1976), and
United States v. Butcher, 557 F.2d 666 (9th Cir. 1977)). Starks then looked to the
California courts. In California, identification testimony had been seen as an appropriate
aid to the trier of fact in instances where the surveillance did not render a clear depiction.
Starks, 119 Ill. App. 3d at 26, 456 N.E.2d at 265 (quoting People v. Mixon, 180 Cal. Rptr.
772 (Cal. Ct. App. 1982) (nose, chin, and cheek betrayed identity despite cap being
pulled below ears), and citing People v. Perry, 131 Cal. Rptr. 629 (Cal. Ct. App. 1976)
(defendant shaved mustache)).
¶ 27 Starks found that the guards' testimony was a proper aid for explaining an unclear
depiction. It noted that the record did not indicate the defendants had changed
appearances before trial. Starks, 119 Ill. App. 3d at 26, 456 N.E.2d at 265-66 (citing
United States v. Jackson, 688 F.2d 1121, 1126 (7th Cir. 1982) ("defendant did, in fact,
alter his appearance somewhat, by cutting his hair and shaving his mustache, during the
7
brief period of just over one month")). Nonetheless, Starks noted that the surveillance
was in the form of a video, and not just a photograph, and that the identified subjects
were in the background of the surveillance. Starks, 119 Ill. App. 3d at 26, 456 N.E.2d at
266; see also United States v. White, 639 F.3d 331, 336 (7th Cir. 2011) (surveillance
video was not of best quality and perpetrator was concealed by his attire). Starks
concluded that the guards' testimony was a proper aid to the jury because they were more
"familiar with the defendants' mannerisms and body movements." Starks, 119 Ill. App.
3d at 26, 456 N.E.2d at 266.
¶ 28 If Starks is read as a set of instructions on how to develop identification testimony,
the prosecution failed to follow these instructions. Starks allows a witness familiar with a
defendant to aid the jury if the offering party can demonstrate how the witness was better
able to discern who was depicted in the surveillance. See Ill. R. Evid. 701 (eff. Jan. 1,
2011) (opinion testimony by lay witnesses). The record here contains no such
foundation. The identification testimony consists of bare conclusions. None of the
witnesses suggested how they were better able than the jury to discern who was depicted.
None testified that defendant's appearance had changed. None testified that they
identified defendant's mannerisms, clothing, or body language. Nor can this court glean
from the record any reason why any of these witnesses were better able than the jury to
identify who was depicted in the video.
¶ 29 For appellate review, Starks establishes a two-part test. Starks, 119 Ill. App. 3d at
25, 456 N.E.2d at 265; see People v. Owens, 394 Ill. App. 3d 147, 154, 914 N.E.2d 1280,
1286 (2009); People v. Sykes, 2012 IL App (4th) 111110, ¶ 35, 972 N.E.2d 1272. First,
8
the witness must have been familiar with the defendant prior to the offense. Starks, 119
Ill. App. 3d at 25, 456 N.E.2d at 265. Second, the testimony must aid in resolving the
issue of identification without invading the duties of the trier of fact. In discussing how
testimony could be a proper aid in identification without invading the province of the fact
finder, Starks discussed two types of situations. Starks, 119 Ill. App. 3d at 25, 456
N.E.2d at 265. The first type of situation is where a defendant's appearance has changed
between the time of the recording and date of trial. The second category is where the
video is an unclear or limited depiction.
¶ 30 Starks's interpretation of the Federal Rules of Evidence is consistent with the
subsequently enacted Illinois rules. Illinois Rule of Evidence 701 allows a lay opinion if
it is based on a witness's perception and is helpful to a determination of a fact in issue
without invading the province of the jury. Ill. R. Evid. 701 (eff. Jan. 1, 2011). Similarly,
Rule 704 has been interpreted to permit opinion testimony on an ultimate issue only in
instances where it is of assistance to the trier of fact. Ill. R. Evid. 704 (eff. Jan. 1, 2011);
Sykes, 2012 IL App (4th) 111110, ¶ 35, 972 N.E.2d 1272. In other words, Rule 704
" 'excludes opinion testimony of a lay witness "wherever inferences and conclusions can
be drawn by the jury as well as by the witness." ' " Sykes, 2012 IL App (4th) 111110,
¶ 36, 972 N.E.2d 1272 (quoting Freeding-Skokie Roll-Off Service, Inc. v. Hamilton, 108
Ill. 2d 217, 221, 483 N.E.2d 524, 526 (1985), quoting 7 John Wigmore, Evidence § 1917,
at 10 (Chadbourn rev. ed. 1978)).
¶ 31 Starks answers the focus of the briefs on appeal. At trial, four witnesses identified
defendant as the person depicted in surveillance. The primary justification for admission
9
asserted by the State is that this testimony is a direct aid to identification.
¶ 32 Each witness met the first test of Starks by being familiar with the defendant prior
to the offense. These witnesses either directly testified to prior dealings with defendant
or indirectly insinuated familiarity.
¶ 33 Nonetheless, none of the witnesses fit in either of the categories laid out in the
second step of Starks. None of the witnesses had a better perspective than the jury to
interpret the surveillance. None of the witnesses even alluded to the first category of
defendant's appearance having changed before trial. The State's assertion of such a
change of appearance is not documented by the record and is purely speculative.
¶ 34 This leaves the type of situation exemplified by Starks. In Starks, the testimony
served the utility of helping describe an unclear depiction. Starks concluded the guards
were in a better position to compare the prisoners to the body language of the persons
depicted in the background of the video. Starks, 119 Ill. App. 3d at 26, 456 N.E.2d at
266. Starks informs courts to evaluate each witness according to the form of recording
they are deciphering in front of the jury. In this case, the jury and witnesses were
presented with two different depictions–a still image derived from the video and the
video itself.
¶ 35 The record substantiates the premise that the still image was an unclear depiction.
Officer Huff testified that the still image was "somewhat blurry," but the most exacting
testimony on the clarity of the still image came from Officer Jackson. Officer Jackson,
however, did not identify defendant from a still image. Officer Jackson testified that he
thought the character in the black-and-white still picture that was apparently faxed to his
10
department resembled defendant, but when he looked at the video the week before trial,
he was able to positively identify defendant.
¶ 36 Two witnesses identified defendant to the jury off a still image. Despite the
presentation of the video to the jury, both Joslin and Officer Huff stated they recognized
defendant in a distilled still image.
¶ 37 Under Starks, their identification testimony would have been of questionable value
even if the still image had been the only recording available to the jury. Starks views
photographs and videos differently. Starks illustrated how an unclear depiction in a video
revealed body language and mannerism familiar to the witnesses, but suggested that no
such information could be gleaned from a still photograph. Starks, 119 Ill. App. 3d at 26,
456 N.E.2d at 266. None of the witnesses described any particular features or aspects of
defendant that would serve the demands for a proper aid to interpreting an unclear
depiction. Indeed, any claim that either Joslin or Officer Huff recognized defendant from
his body language or mannerisms is belied by their identification off a still image.
¶ 38 In any event, the jury was able to compare both the video and the distilled image
against defendant, who was present in court. There is no reason to assume that Joslin or
Officer Huff could make a more informed assessment of who was depicted in the
surveillance than the jury itself. Indeed, as the jury had the original moving video in
front of it, the jurors were in a position superior to these two witnesses.
¶ 39 The record strongly argues that the video was a clear depiction that the jury would
need no help in deciphering. Unlike Starks, nothing indicates that the suspect was in the
background of the video or the depiction is unclear. Nor is this a case in which an
11
uncertain depiction can be imputed from a silent record. The record speaks to the clarity
of the depiction. Foundation for the video was laid through the testimony of Deputy
Stewart. Deputy Stewart described how the camera was installed with an eye on
capturing images of a thief. Deputy Stewart left no doubt that the video captured the
suspect in exacting detail, from the suspect's gray cut-off tee shirt and baggy pants up to
his bald spot and large forehead.
¶ 40 Applying Starks, the testimony interpreting the identity of who was depicted in the
video was improper. Again, Starks would allow witnesses to identify a defendant from a
recorded image if his appearance had changed or the image was unclear. Starks found
that in such instances, the identifications were an aid to the jury. On the other hand, if the
standards of Starks are not met, such an opinion would serve no utility and the province
of the jury is invaded. Starks, 119 Ill. App. 3d at 26, 456 N.E.2d at 266.
¶ 41 Nonetheless, two additional law enforcement officials informed the jury that they
recognized defendant in the video. Officer Jackson directly declared his personal
conviction that defendant was the person depicted in the video. His testimony, as with
the other witnesses, does not reveal how he came to his conclusion, nor did he describe
any particular feature of defendant that he discerned. Moreover, Officer Jackson's
testimony as a whole counters any claim that the video presented an unclear depiction to
the jury. Despite the lack of any expressed discernment, Officer Jackson testified the
clarity of the video was superior to that of the "Xeroxed or faxed" still image. In the end,
Officer Jackson did not view the video until one week before his testimony, after
defendant had been identified as a suspect and in apparent anticipation of trial. This
12
testimony relayed Officer Jackson's comfort with viewing defendant as a suspect, but
nothing indicates that he had a better perspective to identify who was in the video than
the jurors.
¶ 42 One other witness alluded to his personal recognition of defendant in the video.
Similar to Officer Jackson, Chief Deputy Sandusky did not reach a conclusion about the
surveilled individual until after defendant was identified as a suspect. Sandusky was
asked if he had the opportunity to "witness a video" in the days after the offense. Instead
of testifying that he contacted other departments because he did not know who was
depicted, Sandusky responded that he "did not immediately recognize the subject in the
video." This lack of immediate recognition implies an ultimate recognition.
Furthermore, given the context of the prior familiarity of other law enforcement officers,
Chief Deputy Sandusky's ultimate recognition alludes to a prior acquaintance with
defendant.
¶ 43 In closing argument, the prosecution asserted that "several officers" had identified
defendant from their prior dealings. Although defendant points out the prosecutor's
closing comment, on appeal defendant does not argue directly to Chief Deputy
Sandusky's insinuated opinion. Still, Sandusky's comment indicated that he was one of
the several officers who had prior dealings with defendant. Likewise, Chief Deputy
Sandusky's testimony bolstered a string of witnesses who identified the person in the
surveillance as defendant, despite none of these witnesses being in a better position to
interpret the video than the jurors. This court cannot ignore the insinuated interpretation
of the video nor the allusion to defendant's character.
13
¶ 44 The record strongly suggests that the trial court never considered whether any of
the witnesses met the second part of Starks. This leads to the more plausible explanation
for the trial court's allowance of this unduly prejudicial testimony–the testimony was
directed at police procedure. Unfortunately, the record does not justify the cumulative
testimony.
¶ 45 II. Police Procedure
¶ 46 In general, the consequential steps of an investigation are relevant to explaining
the State's case to a jury. People v. Johnson, 116 Ill. 2d 13, 24, 506 N.E.2d 563, 568
(1987). In particular, the State must be allowed to explain why a previously unidentified
defendant became a suspect. People v. Byrd, 43 Ill. App. 3d 735, 742, 357 N.E.2d 174,
179 (1976). Silence as to this point would leave open the question of why, of all the
people in the world, the police arrested defendant. People v. Gonzalez, 379 Ill. App. 3d
941, 950, 884 N.E.2d 228, 236 (2008). This would invite speculation and baseless
innuendo that the investigation lacked rigor. Byrd, 43 Ill. App. 3d at 742, 357 N.E.2d at
179.
¶ 47 The record presents a series of dots that suggests a timeline for the investigation.
Officer Huff informed his supervisors that he believed defendant was depicted in the
surveillance. Thus, Officer Huff's testimony was relevant to explaining the investigation
and was permissible in order to counter any claim by defendant that he was unfairly
considered a suspect.
¶ 48 Joslin, an apparent informant, also identified defendant before he was brought in
for an interview. If the only other witness identifying defendant had been Joslin, the
14
admission of her testimony would have been questionable. The relevance of her role in
the investigation appears limited in light of Officer Huff's already making defendant a
suspect. In contrast, the potential for prejudice from presenting her identification
testimony was greater because of its cumulative nature. Moreover, her apparent status as
an informant alludes to the social circles occupied by defendant. Although this
determination would have rested in the discretion of the trial court, the record gives no
indication that her relevance to the investigation or the potential for prejudice was
weighed. In any event, a scenario in which both Joslin and Officer Huff, and only the
two of them, identified defendant is merely hypothetical.
¶ 49 The State presented a parade of law enforcement officers identifying defendant as
the one depicted in the surveillance. After Officer Huff and Joslin had identified
defendant as a suspect, Officer Jackson and Chief Deputy Sandusky came to believe the
image in the video was defendant. Their review of the video displayed a comfort level
with proceeding with the investigation. However, this testimony does not explain how
defendant became a suspect. Defendant had already been identified as the suspect by the
time either of these officers made the identification they relayed to the jury. See, cf.,
Byrd, 43 Ill. App. 3d at 742, 357 N.E.2d at 179. Relaying Officer Jackson's and Chief
Deputy Sandusky's comfort with proceeding with the investigation after viewing the
video did not assist the jury's understanding of the steps of the investigation or how
defendant became the suspect. Instead, this simply conveyed the officers' personal
opinions. The personal convictions of these officers were irrelevant and highly
prejudicial.
15
¶ 50 III. The Province of the Jury
¶ 51 Even if each witness had offered a proper lay opinion, offering cumulative
identification testimony would have run the risk of prejudice. Under any circumstance,
having several witnesses interpret a video runs the risk of supplanting the function of the
jury. Starks recognized this potential. Starks cautioned: "Trial judges should limit the
amount of such cumulative evidence." Starks, 119 Ill. App. 3d at 27, 456 N.E.2d at 266.
¶ 52 In this case, the identifications painted multiple layers of prejudice on the images
presented to the jury. On one level, by meeting the first test of Starks and establishing a
prior familiarity with defendant, the law enforcement officers and apparent informant
insinuated defendant was a dissolute character. On another level, by failing to satisfy the
second test of Starks, each of these witnesses invaded the province of the jury. Repeating
these bare conclusions as to who was depicted in the surveillance compounded the error
and leaves this court with no confidence that the jury based the verdict on its own
unfiltered interpretation of the evidence.
¶ 53 The first layer of prejudice, stemming from defendant's familiarity to law
enforcement officials, was not present in Starks. Starks began by noting that the jury was
already fully aware that the prisoners were convicted criminals. Starks, 119 Ill. App. 3d
at 26, 456 N.E.2d at 265. Thus, Starks did not have to weigh otherwise instructive
testimony against this risk of prejudice.
¶ 54 In contrast, the witnesses in this case conveyed a prejudicial message about
defendant's character to the jury. The mere suggestion of prior police acquaintance is
susceptible to prejudicial implication. People v. Eghan, 344 Ill. App. 3d 301, 313, 799
16
N.E.2d 1026, 1036 (2003) (officers called the defendant by first name during arrest);
People v. Bryant, 113 Ill. 2d 497, 514, 499 N.E.2d 413, 421 (1986) (improper to elicit
testimony that a police officer yelled the defendant's name in pursuit). Moreover, the
context of comments can indicate that a defendant had issues with substance abuse. See
People v. Carter, 297 Ill. App. 3d 1028, 1035, 697 N.E.2d 895, 900 (1998) (plain error
when two narcotics officers allude to familiarity with the defendant).
¶ 55 This is not a case where the insinuation is vague or the impact miniscule. See,
e.g., People v. Adkins, 239 Ill. 2d 1, 26, 940 N.E.2d 11, 28 (2010) (impact of police
recognition miniscule as the defendant relied on his status as skilled burglar for defense
against charge of murder). In this case, the implication of defendant's bad character was
repeated and, at times, direct. Three law enforcement officers insinuated that they were
familiar with defendant, with Officer Huff going so far as to say he had "previous
dealings" with defendant. This was in addition to the hazy cloud of drug use implied by
the informant Joslin.
¶ 56 The most cogent reading of the record suggests no underhanded improper motive
on the part of the prosecution. Nonetheless, the prejudice of having not one, but several,
law enforcement officers and an apparent informant allude to their prior dealings with a
person charged with a drug-related theft is unmistakable and profound.
¶ 57 The prejudice, however, is not limited to a disparagement of defendant's character.
Although no one was in a better position to interpret who was in the video than the jurors,
the good character of the officers was placed before the jury. This mixed their functions
as officers with their role as witnesses. Naturally, after defendant was under
17
investigation, these officers would have asked themselves if they believed it was
defendant in the video. This is certainly good police work, but undoubtedly their
subjective beliefs during the course of investigation were not an aid to identification at
trial, as required by Starks, nor to explaining the consequential steps of their work, as
allowed by Byrd.
¶ 58 The inherent unreliability of the verdict stems from the error of conducting the
trial as a display of the subjective aspects of the police investigation. The visual images
presented at trial were colored by the unanimous conclusion of witnesses who, though in
a position of authority, had no better vantage point than the jury to compare defendant to
the video. Although not helpful in explaining the course of the investigation, by
introducing these opinions in the context of the investigation, the jury was invited to base
its verdict on the propriety of the investigation instead of the adequacy of the proof of the
crime. The jurors were faced with more than a challenge of forming their own
interpretation of the video; in order to reach a verdict of not guilty, the jurors would have
needed to interpret the surveillance contrary to the investigating officers.
¶ 59 A conviction based upon video surveillance would seem unassailable to doubt.
Unfortunately, the parade of witnesses issuing conclusions about who was depicted
tainted the jury's interpretation and makes other evidence inconsequential. The State
contends that even if the testimony was improper, other evidence supports conviction,
including incriminating statements by defendant and physical evidence from the scene.
Given the singular role of surveillance, a conviction obtained after several witnesses
improperly opined on its contents cannot be trusted. The introduction of these multiple,
18
concurring witnesses pointing to defendant would have erased any reasonable doubt the
jurors might otherwise have held. Moreover, the jurors understood that the officers had
prior dealings with this suspect. No confidence can be placed in the verdict.
¶ 60 Mindful of the potential of an overly broad interpretation of this opinion, two
related points need to be clarified. First, this opinion should not be read as handcuffing a
prosecutor's ability to present witnesses that meet the minimal standards of Starks.
Again, the jury was presented with multiple bare conclusions with no indication that any
of these witnesses would have been better able to interpret the surveillance than the jurors
themselves. The failure of the prosecution to follow the standards of Starks, and to do so
with numerous witnesses, is likely to be a rare scenario. Second, the reversal of this
conviction should not be read as a criticism of the work of the officers. Cumulative
identification by police officers might be considered in determining probable cause, but
its potential impact on a jury means that its admission at trial should be measured.
People v. Green, 88 Ill. App. 3d 929, 932, 410 N.E.2d 1003, 1006 (1980) (evidence at
hearing on probable cause need not be admissible at trial); see also, e.g., People v. Sykes,
2012 IL App (4th) 100769, ¶ 43, 968 N.E.2d 174 (discussing option of laying foundation
outside of presence of jury). Absolutely nothing in the record suggests any step in the
police investigation was improper. To the contrary, the personal conclusions of the
police officers were bound to carry such weight that this court can have no confidence
that the jury reached its verdict through its own interpretation of the evidence.
¶ 61 Finally, double jeopardy does not bar retrial. Although the verdict was made
unreliable by the improper evidence, the reversal does not stem from a finding that the
19
record was otherwise insufficient to sustain a conviction. People v. Alfaro, 386 Ill. App.
3d 271, 314, 896 N.E.2d 1077, 1113 (2008). A review of the record indicates that a
rational trier of fact could have found the essential elements of the crime absent the error,
but this court reaches no conclusions binding on retrial as to guilt. People v. Lopez, 229
Ill. 2d 322, 367, 892 N.E.2d 1047, 1073 (2008).
¶ 62 Defendant asserts plain error on other issues that need not be addressed, as this
court reverses the conviction.
¶ 63 On appeal, the State confesses that convicting defendant of both attempting to
procure anhydrous ammonia by tampering with equipment (720 ILCS 646/25(a)(2) (West
2010)) and tampering with anhydrous ammonia equipment (720 ILCS 646/25(d)(2)
(West 2010)) was error in that these two charges were based on the same physical act.
See People v. King, 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844 (1977). We agree and are
confident such error would not reoccur on remand.
¶ 64 For the reasons stated above, defendant's conviction is reversed and the matter is
remanded. In all other respects, the petition for rehearing is denied.
¶ 65 Reversed and remanded.
20
2014 IL App (5th) 120079NO. 5-12-0079
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Hamilton County.
)
v. ) No. 11-CF-50
)
JEREMY R. THOMPSON, ) Honorable
) David K. Frankland,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
Opinion Filed: April 25, 2014
Modified Upon Denial of Rehearing: November 18, 2014
______________________________________________________________________________
Justices: Honorable Richard J. Goldenhersh, J.
Honorable Stephen L. Spomer, J., and
Honorable Judy L. Cates, J.,
Concur
______________________________________________________________________________
Attorneys Michael J. Pelletier, State Appellate Defender, Ellen J. Curry,
for Deputy Defender, Lawrence J. O'Neill, Assistant Appellate
Appellant Defender, Office of the State Appellate Defender, Fifth Judicial
District, 909 Water Tower Circle, Mt. Vernon, IL 62864
______________________________________________________________________________
Attorneys Hon. Justin Hood, State's Attorney, Hamilton County Courthouse,
for 100 South Jackson Street, McLeansboro, IL 62859, Patrick Delfino,
Appellee Director, Stephen E. Norris, Deputy Director, Sharon Shanahan,
Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, 730
East Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL
62864
____________________________________________________________________________