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The People of the State of Illinois, Appellant v. Teryck Taylor

October 6, 2011


The opinion of the court was delivered by: Justice Burke

JUSTICE BURKE delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Karmeier, and Theis concurred in the judgment and opinion.


¶ 1 The principal issue presented in this case is whether under the so-called "silent witness" theory, a videotape recording was properly admitted at defendant's trial. The appellate court held that it was not and reversed defendant's conviction for misdemeanor theft. 398 Ill. App. 3d 74. For the reasons that follow, we reverse the judgment of the appellate court.


¶ 3 In 2005, several thefts occurred at the office of Kevin Marsh, dean of students at Deerfield High School in Deerfield, Illinois. Marsh had been collecting money for a fundraiser. He had placed the money in a bank pouch and then put the pouch in his office desk. Money disappeared several times from the pouch over weekends when Marsh's office door had been locked.

¶ 4 Following the thefts, Detective William Annen of the Deerfield police department met with Marsh and suggested they set up a surveillance camera in Marsh's office. On Friday, December 1, 2005, Annen set up the equipment, which consisted of a motion activated, wireless, digital camera concealed within a clock radio and a digital video recorder (DVR). Annen had only recently begun using such equipment. He testified that an employee at the store where he purchased the equipment had shown him how to set it up and use it. Annen further stated he read the instructions that came with the equipment. Annen explained how the equipment worked:

"Simply *** plug in the camera which was inside of a clock radio, a working clock radio, that plugs into a power source. You aim that camera wherever you want to observe. That camera sends a signal to the wireless transmitter which is connected to the DVR which is a digital video recorder, just like a computer drive and that records the images that the camera sees."

Annen testified that he placed the clock radio on Marsh's desk, in front of the drawer from which the money had been taken. Annen tested the equipment by turning everything on and making sure there was a good picture coming from the camera. Annen stated that when any moving object came into the viewing area of the camera, the recording process would start.

¶ 5 On Monday, Annen returned to Marsh's office and checked the equipment. He found that the motion sensor had triggered the DVR and a recording had been made. However, the images on the recording were not visible due to insufficient light.

¶ 6 On Friday, December 9, Annen set up the equipment again and placed a small lamp on Marsh's desk. He left a note next to the lamp requesting that it be left on.

¶ 7 On Monday, December 12, Annen returned to Marsh's office after Marsh advised him $20 was missing from the pouch. At this time, the DVR, transmitter and camera were all still on. Again, the DVR had been triggered. Annen, along with Marsh and Paul Mocogni, the school's facility manager, viewed the DVR recording. Marsh and Mocogni identified defendant, Teryck Taylor, as the individual in the recording. Defendant worked at the school as a night watchman.

¶ 8 On December 16, Mocogni, Sue Hebson, the school's principal, and Barry Bolek, the school's assistant superintendent, met with defendant. During the interview, defendant admitted to stealing cash from Marsh's office on December 10. However, defendant stated it was only $10. Defendant also admitted to taking cash on three to four other occasions.

¶ 9 According to a Deerfield police report summary, authored by Annen, on December 16, Annen "made a copy of the video surveillance on the hard drive, specifically the segment where Taylor was in Marsh's office[,] onto a VHS tape." Annen removed the tape's recording tab, and locked the VHS tape in his desk, "to be later locked in an evidence locker." The report further stated that Annen viewed all the footage recorded by the DVR from December 9 to December 12 and that no one other than defendant went into Marsh's office.

¶ 10 Annen interviewed defendant on January 4, 2006. During this interview, according to Annen, defendant admitted to stealing money from Marsh's desk on December 10.

¶ 11 Prior to trial, defendant filed a motion in limine to bar the State from using the VHS tape at trial, arguing that the State would be unable to lay a foundation for the VHS tape because it contained a 30-second skip. The trial court denied this motion, but the record does not include the reason for the denial.

¶ 12 When the State sought to admit the VHS tape at trial, defendant objected on foundational grounds, arguing that the video skips forward 30 seconds and the State failed to explain why the gap existed. Defense counsel also argued that it had not been shown that the camera was working properly. The trial court advised the State to lay a better foundation. Annen then testified the camera was still working on December 12 as it had been on December 9. Defense counsel again objected, stating there were five elements for admission: "capability of the device [for] recording, competency of the operator, proper operation of the device, preservation of recording with no changes, additions or deletions and identification of the speakers." Defense counsel took issue with the competency of Annen, since he was not present when the device recorded, and with the absence of proof that the motion sensor was operating properly. The trial court again advised the State to lay more foundation.

¶ 13 Annen then testified that, on December 9, he plugged a portable 13-inch monitor into the feed from the DVR to determine if the devices were working properly. This allowed him to see what the camera was seeing. As the camera was on Marsh's desk, Annen had Marsh walk in front of the camera to check that the motion sensor was working. When Marsh walked in front of the camera, the DVR turned on. According to Annen, this showed that the connection was working. At this point, Annen assumed the DVR was recording. When Annen returned to Marsh's office on December 12, he again plugged his monitor into the DVR. Annen saw a live feed of Marsh's desk. Everything was still on and working properly.

¶ 14 Defense counsel again objected, arguing there was no proof the sensor was working between Friday the 9th and Monday the 12th. The trial court overruled the objection, finding that Annen's testimony established the motion sensor was working over the weekend.

¶ 15 The State was then allowed to play the video. The video, which is part of the record on appeal, contains two successive segments depicting a man in Marsh's office at approximately 5 a.m. on Saturday, December 10. The first segment, which runs from 4:52:00 to 4:52:12, shows a man entering the frame from the right, crouching behind the desk, opening the drawer, and removing the bank pouch. While doing this, the man is looking around. The second segment, which runs from 4:52:41 to 4:52:49, shows the man still crouched behind the desk, then shows him rising and turning, and exiting the frame to the right.

ΒΆ 16 During the viewing of the videotape, defense counsel again objected, arguing that the State failed to show the recording was preserved without any changes, additions or deletions and that the 29-second skip in the tape from the end of the first segment to the beginning of the second, ...

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