Appeal from Circuit Court of Champaign County No. 09CM333 Honorable Holly F. Clemons, Judge Presiding.
The opinion of the court was delivered by: Justice Pope
JUSTICE POPE delivered the judgment of the court, with opinion. Presiding Justice Turner and Justice Knecht concurred in the judgment and opinion.
¶ 1 In January 2010, a jury convicted defendant, Duane L. Sykes, of misdemeanor theft (720 ILCS 5/16-1(a)(1) (West 2008)). In March 2010, the trial court sentenced defendant to 150 days in jail.
¶ 2 Defendant appeals, arguing (1)(a) reversible error occurred when (i) the testimony of the State's only witness violated the "silent witness theory" because the witness was allowed to narrate the contents of a video played for the jury and (ii) the error was further magnified by the prosecutor's improper closing argument; or (b) in the alternative, defendant received ineffective assistance of counsel because counsel failed to object to the improper testimony or closing argument therein; and (2) the evidence was insufficient to prove defendant committed theft beyond a reasonable doubt. We reverse.
¶ 4 On March 10, 2009, the State charged defendant by information with misdemeanor theft (720 ILCS 5/16-1(a)(1) (West 2008)), alleging defendant intended to permanently deprive his employer, Bergner's department store, of less than $300.
¶ 6 During defendant's January 6, 2010, trial, the State presented the testimony of one witness, Steven Thuney, a loss prevention manager for Bon Ton stores, which owns Bergner's. Thuney testified Bergner's policy during the holiday season and on busy days was for the closing person to leave $200 in the cash register overnight as a starting fund for the next day. On December 20, 2008, Thuney discovered a cash register located in the men's department was $100 short. As part of his investigation into the loss, Thuney reviewed the detail tape from the cash register to examine the day's transactions and a video from a surveillance camera focused on the terminal where the alleged loss occurred. Thuney testified as to what he recalled observing on the original surveillance video as follows:
"At approximately nine o'clock-while reviewing the video at nine o'clock on the tape, I observed Duane Sykes at the register kind of pacing around. The store wasn't very busy. He looks at one point directly up at the camera for a moment, and then looks back down, wanders around a little bit, around the cash wrap area. Comes back to the cash register, enters what appeared to be his associate number to open the drawer of the register. When the drawer opened, with his left hand he removed it looked like a bill from the far left side of the terminal, cupped it in his hand, closed the terminal, removed the no sale receipt from the top of the terminal, and walked away and his hand went into his left pocket."
¶ 7 Thuney explained an associate number is a unique six-digit number assigned to each individual employee. An associate number must be entered prior to opening the cash register. A "no-sale" transaction is used by an employee to open the register for some reason other than a customer transaction, such as checking to see if the register needs change. To get change, an employee must first fill out a carbonless form indicating the change needed. Then the employee removes the appropriate amount of money from the register and places the money and the form into a blue bank bag, and a manager retrieves the bag and returns with the change. Thuney stated he found no copy of a change receipt filled out by defendant on December 20.
¶ 8 Thuney viewed the entire day's worth of video footage and did not observe any other actions that raised his suspicion as being involved with the missing $100. Days later (the next day defendant worked), Thuney called defendant into the store manager's office and confronted him. Defendant told Thuney he did not want to speak to him and left the office.
¶ 9 Following Thuney's narration of the original surveillance video, the State admitted a digital video recording (DVD) copy of the video into evidence without objection as State's exhibit No. 1 and published it to the jury. After the video was played for the jury, the following dialogue occurred:
"Q. [PROSECUTOR:] The quality of the video appears to be a little bit grainy. When you watched the video the first time on December 20th, what device were you watching it on?
A. [THUNEY:] I was watching it on the same VCR that produced the video.
Q. And at that time did it have the same quality as the DVD we've all just seen?
A. No. The quality was much better.
A. The video you saw was-had a lot of looked like electronic interference in it, and it was a little difficult to watch I guess.
Q. Uh-huh. When you watched it on the VCR, was electronic interference not present?
A. No. It was a clear picture.
Q. And you indicated that when you watched the video, you were able to see the defendant put a bill in his left hand. Were you able to clearly see that in this version of the DVD?
A. You can see it. It is a little bit more difficult based on where the interference occurs, but it is there."
¶ 10 During cross-examination, defense counsel established the DVD viewed by the jury was a copy of the original. Thuney acknowledged he did not personally witness defendant take any money from the cash register and the only knowledge he had about the incident was based on what he observed in the video. Thuney agreed no money was recovered from defendant and five or six other employees had access to the same register on December 20.
¶ 12 At the close of the State's evidence, defense counsel moved for a directed verdict, which the trial court denied. Defendant did not testify or present any evidence.
¶ 13 C. Closing Arguments
¶ 14 1. Prosecutor's Argument
¶ 15 During closing arguments, the prosecutor made the following comments:
"That's how Mr. Thuney knows what happened. He watched an entire day of Christmas shoppers at Bergner's on December 20th, a little over a year ago. He watched the whole day's worth of video, and I know our video is not wonderful. I would love to have the VHS. I don't have it. Mr. Thuney doesn't have it. What we have is the quality of the video that we have here, and if Mr. Thuney hadn't watched it the day, December 20th, maybe we wouldn't know as well what happened, but thankfully, he did watch it, and he remembers. He tells you you can see it mostly on here, but it is clearer on the VHS, that you can see the defendant take the money, put it in his hand, put it in his pocket and walk away. Now we can see all of those movements, but obviously it is just not quite as clear. We can't quite see the dollar bill in his hand, and obviously Mr. ...