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October 27, 1995


Appeal from the Circuit Court of Hamilton County. No. 92-CF-1. Honorable David L. Underwood, Judge, presiding.

Rule 23 Order Redesignated Opinion and Ordered Published October 27, 1995. Petition for Leave to Appeal Denied December 6, 1995.

The Honorable Justice Goldenhersh delivered the opinion of the court: Maag, P.j., and Rarick, J., concur.

The opinion of the court was delivered by: Goldenhersh

The Honorable Justice GOLDENHERSH delivered the opinion of the court:

Defendant, Christopher Campbell, was charged with burglary and criminal damage to property (over $300) stemming from a January 9, 1992, incident in which a rural church was broken into and vandalized, causing over $1,400 in damage to the building. He was convicted and sentenced to concurrent terms of seven years' imprisonment on the burglary charge and three years' imprisonment on the criminal damage to property charge and ordered to make restitution in the amount of $1,491.55 to the church. Defendant asserts that (1) the testimony of his accomplices was insufficiently reliable to prove him guilty beyond a reasonable doubt, and (2) he was denied adequate assistance of counsel because counsel failed to tender a jury instruction on accomplice testimony, denying him a fair trial.

The testimony adduced at the July 23, 1992, trial was as follows. Ronald Ewald, a trustee of the Richardson Hill Church in Dahlgren, checked the church at about 1:50 on the afternoon of January 9, 1992. After making sure the roof was not leaking and that two fresh graves were not jeopardized by recent rainfall, he locked the inner and outer doors and went to his farm, just down the road from the church. At about 2:30 that afternoon, he saw a grey, late-model car drive toward the church, prompting him to return to check on the building. As Ewald drove back to the church, he saw a man running across the fields, away from the building. The grey car was being driven down the road, away from the church. He spoke with the driver of the grey car, Billy Morphis, whom he knew, when their cars met on the road. He recognized Morphis's companion, Cheryl Nordhouse, but was not acquainted with the other woman in the car, Dixie Gumm. Morphis told Ewald: "You never seen me or these girls here at all. You didn't even see us here." When Ewald arrived at the church, the doors were wide open, although they had been securely locked when he left at 1:50 p.m.

Ewald returned home, asked his mother to call the sheriff, and drove back up the road to intercept defendant, who emerged from the field with his shoes and clothing covered with mud. Defendant volunteered that he had fought with Morphis, who had attempted to run him down with the car, prompting him to flee over the fields, he did not know what was going on, he had no part of whatever the others did, and he stated, "I didn't do nothing. They did it all." Ewald waited for the sheriff at the church with defendant. When the sheriff arrived, an investigation of the church revealed that the outer and inner doors had been forced open, the church was "a shambles," and every surface was coated with fine powder from a dry-compound fire extinguisher.

Morphis testified on behalf of the prosecution. He admitted that he was an inmate at Vienna Correctional Center as a result of his plea of guilty to burglary and criminal damage to property stemming from the incident at the Richardson Hill Church; he pleaded guilty in exchange for a lesser sentence; he had previously served time in prison on a conviction for unlawful restraint; and his shoe print was found in the powder on the church floor. He also admitted that he had lied to Ewald when he told him he had not been in the church and lied to the sheriff when he told him that the church doors were open when he arrived at the building. Morphis asserted that he and defendant had been at the church earlier in the week of the burglary, but he did not enter the church with defendant until the day of the incident. He testified that defendant was the person who sprayed the fire extinguisher, and a quarrel between Gumm and defendant prompted defendant to run off across the field. He maintained that his plea of guilty was prompted by a rumor that defendant was going to assert that Morphis was the sole cause of the damage to the church and his fear that he could not avoid conviction.

Cheryl Nordhouse testified that she did not go into the church until she saw what looked like smoke coming out of the windows. When she entered, she saw defendant spraying a fire extinguisher around the interior, and she left because she was asthmatic and the powder irritated her lungs. She admitted that her testimony was given in exchange for the dismissal of the charges against her stemming from the incident at the church and that she had dated Morphis in the past.

Defendant testified that he was never in the church and that he walked away from the church over the fields because he had quarreled with Gumm, his girl friend, and broken her windshield. He stated that the first time he was at the church was the day of the break-in. He saw the church doors standing open and heard Morphis and Nordhouse in the church, but he did not go into the building. He admitted he was on probation for burglary and criminal damage to property at the time of the instant crime and had prior convictions for felony theft and several traffic violations.

Defendant was found guilty of both charges and sentenced. His motion for new trial was denied, and an untimely motion to reduce sentence was dismissed.

Defendant asserts that his counsel provided inadequate assistance through his failure to tender a jury instruction on accomplice testimony. He maintains that both Morphis and Nordhouse were accomplices, in that both were initially charged with the crimes for which defendant was convicted, Morphis pleaded guilty and testified against defendant in a successful attempt to obtain a lesser sentence than he might otherwise have received, and Nordhouse testified in exchange for the dismissal of the charges against her. (See People v. Franklin (1990), 135 Ill. 2d 78, 104, 552 N.E.2d 743, 755, 142 Ill. Dec. 152.) He recognizes that the courts of this State have long held that the uncorroborated testimony of accomplices, if found believable by the trier of fact, is sufficient to sustain a criminal conviction. ( People v. Steidl (1991), 142 Ill. 2d 204, 226-27, 568 N.E.2d 837, 845, 154 Ill. Dec. 616, cert. denied (1991), 502 U.S. 853, 116 L. Ed. 2d 125, 112 S. Ct. 161.) Defendant argues that our decision in In re D.R.S. (1994), 267 Ill. App. 3d 621, 626, 643 N.E.2d 839, 843, 205 Ill. Dec. 548, supports his contention that where there is no corroborating evidence to support a conviction, "[a] judge and a jury are instructed that an accomplice's testimony is to be viewed with the utmost caution and suspicion." The accomplices' testimony here was not uncorroborated, because it was supported by that of Mr. Ewald, who testified that defendant was present at the church when it was vandalized and made spontaneous exculpatory statements which revealed knowledge of wrong-doing in the church.

Illinois Pattern Jury Instruction, Criminal, No. 3.17 (3d ed. 1992) (IPI Criminal 3d No. 3.17) provides the standard instruction on the testimony of an accomplice:

"When a witness says he was involved in the commission of a crime with the defendant, the testimony of that witness is subject to suspicion and should be considered by you with caution. It should be carefully examined in light of ...

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