Appeal from the Circuit Court of Livingston County; the Hon.
William T. Caisley, Judge, presiding.
JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 7, 1983.
After a trial by jury in the circuit court of Livingston county, defendants, Terry Starks and Travis Miller, were convicted on January 12, 1983, of a violation of section 3-6-4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1003-6-4(a)). On February 16, 1983, the court sentenced them to terms of 12 and 11 years' imprisonment, respectively. Each sentence was ordered to be consecutive to sentences each defendant was then serving. Separate notices of appeal were filed but the cases have been consolidated in this court.
Defendant Miller maintains that the indictment was defective. They both contend that: (1) The trial court erred in allowing correctional officers to give testimony identifying defendants as persons the officers had seen on a videotape taken during the occurrence giving rise to the charges; (2) the prosecutor's closing argument was prejudicially improper; and (3) the court erred in sentencing.
The indictment returned on October 6, 1982, charged of each defendant that on July 29, 1982:
"being a person committed to the Department of Corrections, he caused or participated in the destruction of property during a disturbance at the Pontiac Correctional Center by knowingly tearing conduit off pipes and damaging other property, of the State of Illinois, Pontiac Correctional Center,"
in violation of section 3-6-4(a) of the Unified Code of Corrections. Relevant portions of that section state:
"A committed person *** 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.) (Ill. Rev. Stat. 1981, ch. 38, par. 1003-6-4(a).)
Thus, the charges did not state in the language of the statute that the defendants were "participating in [a] disturbance" while they participated in destruction of the property. Defendants maintain that, accordingly, the indictment was fatally defective.
• 1 Defendants' contentions concerning the sufficiency of the indictment are viewed in the posture of the failure of the defense to raise the issue in the trial court. When attack is made upon a charge at this time, the charge "is sufficient if it apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct." (People v. Pujoue (1975), 61 Ill.2d 335, 339, 335 N.E.2d 437, 440.) In Pujoue, a complaint purporting to charge unlawful use of weapons (Ill. Rev. Stat. 1973, ch. 38, pars. 24-1(a)(4), 24-1(a)(10)) failed to make the required allegation that the weapon involved was either concealed or loaded. The supreme court, nevertheless, deemed the charge sufficient to enable preparation of a defense and to protect the defendant from double jeopardy.
• 2 We need not decide whether any defect in the charges here would constitute error, if timely raised, because any claimed defect was no more prejudicial to defendants here than was the defect in Pujoue which failed to apprise the defendant that the State claimed his weapon was concealed or loaded. Here, as in Pujoue, a resulting conviction could be pleaded in bar of subsequent prosecution. The defect in the charge did not require reversal.
The evidence undisputedly showed that on July 29, 1982, defendants were inmates at the Pontiac Correctional Center and that a riot occurred at that institution on that date apparently arising from a dispute between rival gangs. An inmate was killed during the course of the riot. The evidence was also undisputed that a telephone communication conduit was torn from a wall during the episode. One inmate testified that he saw defendant Miller tear portions of the conduit off of a wall and pass it to another inmate. This witness was impeached by evidence that he had previously told an investigator that he knew nothing of the incident and then told of seeing Miller's conduct only after receiving favorable treatment from the administrative officer of the center. All of the rest of the testimony tying either defendant to the offenses charged came from the testimony of correction officers who had viewed a videotape of the occurrence made by cameras which had been trained on the area where the riot occurred. This testimony identified Miller as a person shown in the tapes to be tearing a portion of a conduit from a wall and Starks as a person shown there to have passed the torn conduit to other inmates.
• 3 Defendants argue that the testimony of the guards was expert testimony by persons not experts and on a subject upon which the jury was fully capable of making its own determination by viewing the tapes after they were admitted into evidence. (People v. Dixon (1980), 87 Ill. App.3d 814, 410 N.E.2d 252.) However, we do not deem the testimony to have been expert testimony but rather lay testimony of persons familiar with the defendants, identifying persons shown on tapes as defendants. Although the witnesses did not all know the names of the defendants, all testified to having seen the defendants they identified on numerous occasions prior to the event. Some of them had to look at mug shots containing the defendants names in order to learn the names of the defendants.
The United States Circuit Courts> of Appeal have considered the problems of the introduction of testimony of lay witnesses identifying the accused as being a person depicted in pictures. At issue has been the application of ...