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People v. Winters





APPEAL from the Circuit Court of Cook County; the Hon. JOHN J. MORAN, Judge, presiding.


Following a jury trial Henry Winters, the defendant, was convicted of murder and was sentenced to the Illinois Department of Corrections for a term of 40 to 60 years. On appeal the defendant argues that he was denied a fair trial due to the admission of eight objects into evidence without proper foundations. The objects were a .38-caliber revolver, wooden slug, a spent cartridge, a key case and keys, a guard log book and time sheets and a vial of blood allegedly taken from the murder victim.

• 1 A proper foundation for the introduction of an object into evidence may be laid either through identification of the object by a witness or through the establishment of a chain of possession. Both proofs are not required. (People v. Greer (1963), 28 Ill.2d 107, 190 N.E.2d 742; People v. Mendoza (1978), 62 Ill. App.3d 774, 379 N.E.2d 380.) The character of the object will determine which foundation is required. If the object possesses characteristics that are fairly unique and readily identifiable and if it is impervious to change, the object can be admitted merely on the basis of unimpeached testimony that the item is the one in question and is in a substantially unchanged condition. (People v. Gilbert (1978), 58 Ill. App.3d 387, 374 N.E.2d 739; In re Rivera (1977), 46 Ill. App.3d 515, 361 N.E.2d 84.) A chain of custody foundation is required when the offered evidence is not readily identifiable or is susceptible to alteration by tampering or contamination. The chain of custody must be of sufficient completeness to render it improbable that the item has either been exchanged with another or contaminated or tampered with. People v. Cole (1975), 29 Ill. App.3d 369, 329 N.E.2d 880.

Since the trial court's discretionary ruling on the admissibility of evidence and the sufficiency of identification is subject to reversal only for an abuse of discretion (People v. Mendoza; In re Rivera), we will examine the evidentiary foundations for the items admitted in the instant case to determine whether an abuse of discretion occurred.

Guard Log Book and Time Sheets

Ronald Steiner, a witness for the prosecution, testified that he was employed with Burns International Security Services, Inc. (Burns Security), and that on September 4, 1976, he was assigned to work at the Dietzen Corporation Building, an abandoned warehouse located at 1000 West Fullerton in Chicago, Illinois. He had worked the noon to midnight shift and was relieved at 12 a.m., on September 5, 1976, by John Fogli, the murder victim, and Henry Winters, the defendant. Steiner left the warehouse at approximately 12:07 a.m. He testified that he saw the defendant fill out the guard log book which was located on a desk near the main entrance doors. He identified People's Exhibit No. 7 as the guard log book that was signed by the defendant, and said the names of the defendant and deceased were on People's Exhibits Nos. 8 and 9, two time sheets. On cross-examination, Steiner admitted he was not the keeper of the log book or records and stated that he did not sign the book on September 4 or 5, 1976.

John Schulz, a captain at Burns Security, testified that he went to the Dietzen Building on September 5, 1976, and found the body of John Fogli. When he entered the building he saw the Burns log book and the Burns time sheets on top of a desk. Schulz admitted on cross-examination that he was not the keeper of the log book or records for Burns Security and had not initialed or marked the exhibits. He said Exhibit No. 7 was the official log book for 1000 West Fullerton.

Chicago Police Officer Lee Epplen testified that he was assigned to investigate the homicide. He identified People's Exhibit No. 7 as the guard log book he found laying on top of the desk in the foyer of the warehouse on September 5, 1976. He said he put his initials on the lower right-hand corner of the first page and said the log was in the same condition as when he had taken it off the desk.

• 2 The defendant objects to the admission into evidence of the guard log book and the time sheets because the State failed to show a continuous chain of possession. The log book and time sheets were properly admitted based on a foundation laid through the positive and unequivocal identification testimony of witnesses Steiner, Schulz and Epplen. The log book and time sheets were unique and readily identifiable because they contained entries and information peculiar to Burns Security and the warehouse at 1000 West Fullerton. Therefore, the chain of possession was not necessary.

The defendant also argues that error was committed when the prosecutor stated in closing argument that the signatures in the log book belonged to the defendant and the victim. There was no testimony in this regard and the signatures had not been authenticated. The State argues that the defendant waived this issue on appeal because he did not object to the comments when they were made.

• 3 The record discloses that the prosecutor did refer to handwritten entries made by the defendant and the victim. He stated that the Burns Security records showed that John Fogli received a .38-caliber revolver and that the defendant had signed himself out at 8:30 and at 9:30 on two different sheets. The defendant did not object to the former comment and has, therefore, waived any error in that regard. (People v. Pearson (1972), 52 Ill.2d 260, 287 N.E.2d 715; People v. Williams (1980), 85 Ill. App.3d 850, 407 N.E.2d 608.) The defendant did object to the reference to the conflicting times the defendant signed out of work, but we cannot say that the comment was improper. The State is permitted to comment on all facts which have been properly admitted into evidence and may draw all reasonable inferences from those facts. (People v. Dominique (1980), 86 Ill. App.3d 794, 408 N.E.2d 280.) While there was no testimony that the handwriting or signatures in the Burns Security log book or on the time sheets belonged to the defendant, we believe that one can reasonably infer from the evidence that the defendant in the regular course of business and in accordance with Burns Security practices had made the entries alleged. Since the documents were properly admitted into evidence, the weight and credibility to be given to the information stated therein was for the jury to decide. People v. Lewis (1977), 52 Ill. App.3d 477, 367 N.E.2d 710.

Even assuming, however, that the prosecutor's comment was not supported by the evidence presented at trial, this error would have been harmless, because we cannot say it was a material factor in the defendant's conviction. People v. Fields (1974), 59 Ill.2d 516, 322 N.E.2d 33, cert. denied (1975), 423 U.S. 843, 46 L.Ed.2d 65, 96 S.Ct. 80; People v. Hawkins (1980), 88 Ill. App.3d 178, 410 N.E.2d 309; People v. Calderon (1980), 85 Ill. App.3d 1030, 407 N.E.2d 840.

Revolver, Wooden Slug and Spent Cartridge

Ronald Steiner identified a .38-caliber revolver, People's Exhibit No. 10, as the weapon belonging to Burns Security that was assigned to the guards at the warehouse. The last time he saw the gun was on September 5, 1976, when he showed it to the victim while the defendant was sitting at the desk filling out the guard log book. Steiner also identified a wooden slug, People's Exhibit No. 11, and testified that he had ...

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