APPEAL from the Circuit Court of Tazewell County; the Hon.
JAMES D. HEIPLE, Judge, presiding.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
Defendant, Ronald Grashoff, was convicted on three counts of criminal damage to property following a jury trial in the circuit court of Tazewell County. He was sentenced to probation for 2 years and has appealed his conviction. These charges grow out of incidents of vandalism on April 23, 1972, at two high schools and a rental agency in Pekin. The defendant was arrested together with three other persons at about 1:30 A.M. on April 24, 1972, because when stopped by the police bits of rock and concrete were discovered in the car. Since one of the arguments raised on appeal is the sufficiency of the evidence to support the verdict the facts will be discussed at greater length later in this opinion.
The first issue in the case concerns the admission into evidence by the trial court of certain items of physical evidence. The trial court admitted into evidence two cardboard boxes (People's Exhibits Numbers 1 and 5) containing envelopes of rocks taken from the scenes of criminal property damage and from the car in which defendant was riding just prior to his arrest. People's Exhibit Number 1 contained three envelopes of rocks (People's Exhibits Numbers 2, 3 and 4) all of which were admitted into evidence over defense objection. People's Exhibit Number 5 contained two envelopes (People's Exhibits Numbers 6 and 7) which were admitted into evidence over defense objection and one envelope (People's Exhibit Number 8) which was excluded after defense objection.
It is defendant's contention that it was error to admit the envelopes of rocks into evidence because there was evidence of tampering and of a breach in the chain of custody. The State argues that there was no evidence of tampering and that it was mere speculation that the chain of custody was broken.
Louis Pollock, Pekin Police Officer, testified that he saw People's Exhibits Numbers 2, 3 and 4 for the first time on April 24, 1972. He stated that he locked them in the evidence locker and that some of them had come open. He testified that a couple of the bags were open when he placed them in the locker and that about 15 officers have keys to the locker. He further stated on cross-examination "I do not know how many rocks were in the bags or if anybody took them out and replaced them. It is possible that the rocks could have been switched."
Pekin Police Officer Donald McAtee testified that on April 25, 1972, he placed People's Exhibits Numbers 2, 3, 4, 6, 7 and 8 in a large cardboard container (People's Exhibit Number 1) and transported them to the Pekin crime lab to Mr. Brent DeWitt. McAtee also testified there were other packages of large manila envelopes inside People's Exhibit Number 1 in addition to People's Exhibits Numbers 2, 3, 4, 6, 7 and 8.
Brent DeWitt testified that he received People's Exhibit Number 1 on April 25, 1972, and that when he opened it on May 22, 1972, he removed approximately 19 envelopes from the box. He testified on cross-examination, "I returned sixteen envelopes in People's Exhibit No. 1 and there are now only three in there. There should be thirteen more." DeWitt stated that he placed People's Exhibits Numbers 6, 7 and 8 and another manila envelope in a cardboard box (People's Exhibit Number 5) and forwarded them to the Joliet crime laboratory.
James Cerven of the Joliet crime laboratory testified that he received People's Exhibit Number 5 on May 23, 1972, and that when he opened the Exhibit on May 26, 1972, he recalled looking at People's Exhibits Numbers 6 and 7 but did not recall seeing People's Exhibit Number 8. On cross-examination Cerven testified that there were three envelopes in People's Exhibit Number 5 when he opened it but that he did not see where the third one is now "Specifically, I do not recall seeing People's Exhibit Number 8."
The State cites People v. Harris, 17 Ill.2d 446, 161 N.E.2d 809, in support of its contention that it was not error to admit the envelopes of rocks into evidence. Harris was a prosecution for unlawful possession of narcotics. Defendant in Harris argued that the package taken from him was not shown to be the same one as that tested by the police chemist and and that no field test was made of its contents. The court rejected defendant's contention in the following language, "The officers testified that the package was given to Sims, who placed it in a safe, initialed it, and the following afternoon delivered it to the chemist. There is nothing in the evidence to indicate that it was tampered with, or that a different package was substituted. In the absence of evidence to the contrary, the facts testified to are enough to show the contents were not disturbed." The State also cites People v. Banks, 17 Ill. App.3d 512, 308 N.E.2d 247, which in turn relied on People v. Wrona, 7 Ill. App.3d 1, 286 N.E.2d 370, and People v. Scott, 3 Ill. App.3d 493, 279 N.E.2d 19, in support of the principle, "in the absence of any indication or suggestion of substitution, or alteration or other form of tampering * * * reasonable protective techniques are sufficient." In the present case it cannot be said that there was an absence of any indication or suggestion of substitution or alteration or other form of tampering.
• 1 In applying the foregoing principles we believe the objections to Exhibits 1, 2, 3 and 4 should be treated differently than those to Exhibits 5, 6 and 7. As noted above, Exhibit 1 when originally delivered to DeWitt, the officer in charge of the Pekin Crime Laboratory, contained 19 envelopes or sacks of rocks when opened on May 22 and then when Exhibit 1 was returned to the evidence locker it contained 16 envelopes or sacks of rocks (three exhibits, later identified as Exhibits 6, 7 and 8 and one other manila envelope had been withdrawn and sent to the Joliet Crime Laboratory). However, when Exhibit Number 1 was thereafter opened only three envelopes remained. No explanation was offered and no one seemed to know what may have happened to the 13 exhibits. It is therefore undisputed that Exhibit Number 1 and its contents were not in the same condition when opened by the police custodian and the changed condition was unexplained. Under such circumstances there can be no doubt that the integrity of the evidence was not preserved. Additionally, it should be observed two of these exhibits (2 and 4) had unexplained openings in the bottom of the envelopes. This rendered doubtful any conclusion that the contents removed from the envelopes at the time of trial were the same as originally placed in the envelopes and in fact there was no such testimony offered by any of the witnesses who may have observed the contents from time to time. This is of particular significance in view of the unexplained disappearance of other envelopes in the box.
However, the effect in the unexplained change in condition in an exhibit should depend on the purpose for which the exhibit is introduced and in our view the only purpose of introducing Exhibits 1, 2, 3 and 4 was to show that the windows had been broken by foreign objects. This was not a disputed issue in the case and since the State's own witness testified there was no similarity between Exhibits 2, 3 and 4 and those later discovered in the car, such exhibits could have no tendency to prove the identity of the culprits, the only disputed issue in the case. DeWitt testified that he examined the 19 envelopes of rocks contained in Exhibit 1 and that as a result of his visual inspection he concluded that there were similarities only between those later identified as Exhibits 6 and 7. Under the facts of this case we therefore conclude that the unexplained change in condition of Exhibit 1 and its contents was not prejudicial to the defendant.
• 2 This brings us to a consideration of Exhibits 5, 6 and 7. Again it seems undisputed that Exhibit 5, the container which DeWitt testified was sent to the Joliet crime laboratory containing Exhibits 6, 7, 8 and an unidentified manila envelope, was not in the same condition when received by the Joliet crime laboratory or when later returned by the crime lab to the Pekin Police Department. Thus according to DeWitt there were four envelopes in Exhibit 5 when mailed to the laboratory but according to Cerven there were only three exhibits in the box when he received it and Exhibit 8 was not one of those received. To compound the confusion Cerven's testimony relates to tests performed on only two samples of concrete. The court excluded the exhibit later identified as Number 8 agreeing that its integrity had been impaired by its unexplained appearance, disappearance and reappearance. Not only did such confusion affect the integrity of Exhibit Number 8 but in our opinion the circumstances impaired the integrity of Exhibits 5, 6 and 7 as well. We do not see how the testimony supports the conclusion that pieces of concrete discovered at the scene of the windows broken at the rental agency and the rock discovered in the car were actually the exhibits claimed to be 6 and 7 and not some other pieces of concrete. Since the testimony of Cerven did indicate some similarity, although not conclusive, between the samples examined, this testimony did have a tendency to suggest that defendant was the culprit and consequently the erroneous admission of these exhibits was prejudicial.
• 3 The next issues relate to the sufficiency of the evidence and propriety of giving an accountability instruction. It is our conclusion that the evidence in this case was insufficient to support the verdict. The instruction to the jury was as follows,
"A person is responsible for conduct which is an element of an offense if the conduct is either that of the person himself or that of another and he is legally accountable for such conduct. A person is responsible for the conduct of another person when either before or during the commission of a crime, and with the intent to promote or facilitate the commission of a crime, he knowingly ...