Modified Upon Denial of Rehearing November 18, 2014.
Appeal from the Circuit Court of Hamilton County. No. 11-CF-50. Honorable David K. Frankland, Judge, presiding.
Reversed and remanded.
Defendant's convictions for illegal procurement of anhydrous ammonia and tampering with equipment in violation of the Methamphetamine Control and Community Protection Act based on the identification testimony of several witnesses, including police officers, arising from a surveillance video and a still image derived from the video were reversed and the cause was remanded, since the prosecution failed to follow the Illinois Appellate Court's decision in Starks, which sets forth the standards for the admission of such identification testimony, most of the witnesses had had prior dealings with defendant, the testimony about the video camera was improper to the extent that it described how the camera was installed with the intention of capturing a thief, and in the end, the jury was invited to base its verdict on the propriety of the investigation, rather than the adequacy of the proof of the crime.
For Appellant: Michael J. Pelletier, State Appellate Defender, Ellen J. Curry, Deputy Defender, Lawrence J. O'Neill, Assistant Appellate Defender, Office of the State Appellate Defender, Mt. Vernon, IL.
For Appellee: Hon. Justin Hood, State's Attorney, McLeansboro, IL; Patrick Delfino, Director, Stephen E. Norris, Deputy Director, Sharon Shanahan, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Mt. Vernon, IL.
JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion. Justices Spomer and Cates concurred in the judgment and opinion.
[¶1] Defendant, Jeremy R. Thompson, was charged in the circuit court of Hamilton County with illegal procurement of anhydrous ammonia and tampering with equipment in violation of the Methamphetamine Control and Community Protection Act (720 ILCS 646/25 (West 2010)). After trial, a jury found defendant guilty on both counts and the court entered judgment on the verdict. On appeal, defendant raises issues as to whether he was denied a fair trial by the trial court admitting lay opinion testimony identifying him from surveillance recordings.
[¶2] We reverse and remand.
[¶4] Prior to trial, defendant filed a motion in limine regarding the admissibility of witness opinions. Defendant asserted that the State's anticipated use of witnesses to testify that they believed defendant was shown on surveillance recordings would be an opinion as to ultimate fact that would invade the province of the jury. The trial court denied the motion.
[¶5] Deputy Jason Stewart
[¶6] At trial, the first witness called by the State was Deputy Jason Stewart of the Hamilton County sheriff's department. Deputy Stewart described how anhydrous ammonia was used in the production of methamphetamine and how it was often stolen from local farm supplies. In June 2011, Deputy Stewart personally oversaw the installation and maintenance of a surveillance camera at Hamson Ag in Dahlgren.
[¶7] On the morning of July 21, 2011, Deputy Stewart was dispatched to Hamson Ag. Upon seeing that three tanks had their caps removed, Deputy Stewart reviewed and copied recordings made by a surveillance camera trained on the tanks in case of theft. The sensor for the camera was initially tripped at 6:26 a.m. Deputy Stewart described the actions of a white male in the surveillance video. Deputy Stewart described the physical appearance of the man with a bald spot, large forehead, and receding hairline, wearing a gray cut-off tee shirt and baggy pants. Stewart described how the man was carrying a five-gallon bucket and a green soda bottle with a clear hose attached. Stewart testified that, based on his training and experience, a soda bottle attached to a hose is commonly used to steal anhydrous ammonia.
[¶8] Deputy Stewart did not recognize the white male, but he circulated the video through his department and gave a copy to Chief Deputy Will Sandusky, a member of the Illinois State Police Drug Task Force, to distribute throughout other counties and agencies.
[¶9] Officer Brian Huff
[¶10] Officer Brian Huff of the Mt. Vernon police department saw a still image derived from the surveillance video at the roll call table. Over defendant's objection, Huff stated that he recognized the person in the image as defendant and identified
defendant in the courtroom. Huff agreed with the prosecutor that the image was somewhat blurry, but Huff recognized defendant because he " had previous dealings with him." Huff testified that in the background there were anhydrous ammonia tanks and a bucket and a tube typically used to procure anhydrous. Huff notified his supervisor that he recognized the person in the video as defendant.
[¶11] Officer Kevin Jackson
[¶12] Officer Kevin Jackson of the narcotics division of the Mt. Vernon police department testified that he assisted the Hamilton County sheriff's department on the case. Jackson stated Hamilton County had provided a video to his supervisor, who then circulated a still-image photo to the patrol division. When asked to describe the still image as an exhibit, Jackson stated that it was defendant carrying a five-gallon bucket with a plastic tube attached to what looked like a soda bottle.
[¶13] When asked if he was able to identify who was depicted when the still image was first shown to him, Officer Jackson responded: " At the time, no. I knew it resembled [defendant], but the video--the picture that I had was a black and white picture. And it had been--looked like it had been Xeroxed or faxed." When asked if he was able to subsequently determine who was depicted, Officer Jackson replied that after looking at the video, he was " able to positively identify the person to be [defendant]." Over defendant's objection, Officer Jackson identified defendant in open court. On cross-examination, Jackson testified that he had not viewed the video until a week before trial.
[¶14] Jessica Joslin
[¶15] Officer Jackson stated that within a week of receiving the still image, he showed it to Jessica Joslin. Apparently, Officer Jackson showed Joslin a color copy of the distilled image Officer Huff reviewed at the roll call table. Both copies of the distilled image were submitted to the jury as exhibits. Joslin testified that when Jackson showed her the still image, she believed it was a person she knew by the name " Jeremy." Joslin stated she had never carried on a conversation with " Jeremy," but had " seen him sleeping on a front porch one time." On cross-examination, Joslin admitted that when she saw " Jeremy," she herself was strung out on ...