APPEAL from the Circuit Court of McLean County; the Hon.
CHARLES E. GLENNON, Judge, presiding.
PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Defendants, Allen Mack, Jr., Bruce Jefferson, and Arthur Jones, appeal convictions of violations of section 3-6-4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1003-6-4(a)) entered by the circuit court of McLean County after a jury trial. Section 3-6-4(a) provided that a person committed to the Illinois Department of Corrections who while participating in holding any person as a hostage "while participating in any disturbance, demonstration or riot, causes, directs or participates in the destruction of any property" is guilty of a Class 2 felony. (Emphasis added.) On October 2, 1980, each defendant was sentenced to a term of 3 years' imprisonment. As Jefferson was serving a different sentence at the time of sentencing than he was serving at the time of the offense, his sentence was ordered to be concurrent with the sentence he was serving at sentencing. The others were serving the same sentence at sentencing as at the time of the offense so their sentences were ordered to be consecutive to that sentence. (Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-4(f).) We affirm.
Defendants assert: (1) Their guilt was not proved beyond a reasonable doubt; (2) the trial court erred in allowing a motion to dismiss a defense motion to dismiss the charges because of prosecutorial misconduct; (3) the trial court erred in not suppressing identification testimony which was tainted; (4) defendants were prejudiced by the prosecutor's direct and indirect references to the use of polygraph examinations given to State witnesses; (5) the judge originally assigned to try the case erred in disqualifying himself based on defendants' motions requesting substitution as a matter of right rather than on their motions made for cause; (6) defendants were denied a fair trial by the trial court's moving the venue to McLean County rather than a county more distant from the occurrence and one having a larger black population; and (7) the court erred in not giving certain instructions.
We consider first the sufficiency of the evidence to support the verdicts. The following background facts are undisputed. On July 22, 1978, defendants were inmates at the Illinois State Prison at Pontiac in Livingston County. On that day the inmates at that institution rioted and by 9:40 a.m. the riot had reached massive proportions. Hostages had been taken. Many inmates were then in the yard and could not return to their cell blocks because the cell blocks had been locked. A forklift had been taken from one of the buildings and was used by inmates to punch holes in windows and doors in buildings which were subsequently looted and torched. As the forklift was driven about by certain inmates various other inmates mounted it and rode on it. The contention of the State is that the defendants were among those that did so and thereby participated in the destruction of property which was effectuated by use of the forklift. The proof of their participation came entirely from the testimony of other inmates.
Prosecution witness James Sims testified that he was at a fence between buildings called the captain's office and the industrial building when he saw the forklift break through a door of the latter building and go toward the cold storage building, at which time defendant Mack got on the forklift and rode as it broke through a fence and went on to the cold storage building. Sims stated he had known Mack for three or four months prior to the riot. State's witness Maurice Childs testified to having been in about the same area as Sims and to having seen Mack on the forklift as it broke through the fence. Childs stated he had known Mack for about three weeks before the event. In return for their testimony, Sims was released from the prison 90 days earlier than scheduled and Childs was transferred to a medium security prison pursuant to his request that he needed the transfer for his safety.
Both Sims and Childs were impeached in ways other than the concessions made to them for their testimony. They both were, of course, convicted felons. Sims had been in one of the buildings when some guards were assassinated by inmates and expressed fear that he might be charged for the homicide. No showing was made, however, that the State had any evidence to support a charge. Sims had been given a disciplinary ticket for giving false information and had, in the past, been a user of heroin. Sims, also, admittedly had very poor eyesight. Childs admitted lying at his initial interview with a law enforcement agent concerning the riot.
Danny Newell testified that he was standing near the captain's office when he saw the forklift move to the cold storage building. He said that defendant Jefferson was behind the forklift as it ran into the cold storage building. Napoleon Hughes testified to having been standing between the cold storage building and one called R and D when the forklift came through a gate and thereafter Jefferson got on the lift. Hughes stated that the lift then went to the cold storage building, but he did not say that Jefferson was on it as it ran into the door of that building. Perry Murphy testified that from the north corner of the industrial building, he saw Jefferson get on the lift and ride upon it as it went to the cold storage building and that there the lift was used to try to break open the door to that building. Murphy stated that Jefferson was on the lift when an attempt to break the door was made but did not state definitely that Jefferson was on the lift at the time it made impact with the door.
The latter three witnesses were impeached in much the same way as were Sims and Childs. For his testimony, Hughes received 90 days' credit on his sentence and a letter of appreciation to the parole board. He was subsequently paroled after 6 years' incarceration on an indeterminate sentence of 10 to 30 years for attempt murder. Murphy received 30 days' good time credit. After his release from prison, the State found secret places for him to live in Illinois and Indiana, paid his rent and found a job for him. Newell was subsequently paroled.
Six witnesses identified defendant Jones as having ridden on the forklift. Danny Patton said he saw Jones riding on it and waving his arms as it went west from the cold storage building. James Hubbard testified to seeing Jones on the lift as it was removing a metal gate from a window of the captain's office. Hughes said Jones was on the lift when it broke the back door at the cold storage building. Murphy's testimony also placed him at that place at that time. Charles Media and Newell also testified to seeing Jones riding the lift at one time or another. Patton and Media both also received concessions from the State for their testimony.
Defendants maintain that the proof of their guilt was insufficient both because the witnesses whose testimony we have related were unbelievable and because, even if the testimony were believed, it did not show that the defendants had participated in the destruction of property within the meaning of the statute defining the offense of which they were convicted.
We agree with defendants that their mere presence at the scene of the destruction of the property would not have been sufficient to convict them. However, section 3-6-4(a) of the Unified Code of Corrections defines the activity giving rise to the offense as causing, directing or participating in the destruction of property. Because of the use of the disjunctive, the defendants need not have caused or directed the destruction to be guilty even though they were charged with causing and participating in the disturbance. (People v. Calcione (1938), 369 Ill. 154, 15 N.E.2d 859.) By use of the additional word "participates" the legislation evidences an intention that it be given wide coverage. The appropriate mental state for the offense would logically be knowledge. The circumstantial evidence presented, if believable, clearly showed that the defendants would have known the lift was stolen, was being used illegally and was being used to destroy property. A defendant riding on the vehicle, knowing it was an instrument of destruction on its way to perform destruction, would be participating in the destruction even if he was not on the vehicle at the time it actually made contact with objects to be destroyed.
• 1 In arguing the State's inmate witnesses were not worthy of belief, defendants emphasize the undisputed evidence that (1) concessions were made by the State to the witnesses for their testimony; (2) all inmates including the witnesses had endured a strict lockup during the period in which they were being interviewed and deciding whether to testify for the State; (3) agents of the State were vigorous in their attempt to get testimony; (4) during the interview period many witnesses changed their position in regard to the occurrence and made statements inconsistent with prior statements; and (5) some of the testimony of the State's witnesses at trial was inconsistent with prior statements made by those witnesses. Ordinarily the weight to be given to the testimony of witnesses who have given direct testimony of the commission of an offense by an accused is for the trier of fact even though the witness was thoroughly impeached. Nevertheless, in some instances the impeachment and inherent weakness of the testimony requires as a matter of law that the accuseds be acquitted. In arguing that this is such a case, defendants cite a number of cases but rely primarily upon People v. Kiel (1979), 75 Ill. App.3d 1030, 394 N.E.2d 883; People v. Richardson (1974), 21 Ill. App.3d 859, 316 N.E.2d 37, and People v. Smith (1971), 3 Ill. App.3d 64, 278 N.E.2d 551.
In Kiel, a conviction for conspiracy to commit murder was reversed where based solely on the testimony of an accomplice who was admittedly so much under the influence of narcotics at the time of the event that he did not then know what he was doing. The witness had made no mention to police of the defendant's participation in the offense for two years and had mentioned it only after he had been arrested for armed robbery and burglary for which he was not prosecuted. The witness had denied remembrance of the event at a preliminary hearing and made conflicting statements. In Richardson, the conviction of a defendant for reckless homicide was based entirely upon a police officer's testimony that defendant had admitted to him that he was driving 65 or 70 miles an hour going over a bridge. The officer had made no mention of this admission until trial and it was contrary to his notes of the occurrence. The defense put on substantial evidence of the defendant's having driven properly and that a mechanical failure caused the collision. In Smith, a murder conviction was reversed because it was based solely on the testimony of a witness whose testimony was impeached and directly contradicted at trial.
The proof here differs from that in the cited cases most strongly in that the guilt of none of the defendants was based solely upon the testimony of a single witness. Secondly, we do not find the testimony of the State's witnesses to be substantially out of conformity with each other except that of Charles Media. As his testimony aided only the prosecution against defendant Jones and that defendant's participation was testified to by several other witnesses, that inconsistency was not a fatal flaw. We also do not find the testimony of individual witnesses to be grossly internally inconsistent. We recognize that their testimony was often inconsistent with previous statements they had made or actions taken. Such a situation is inherent when inmates, after protecting other inmates or wishing not to be involved, turn State's evidence. We are also aware of the ...