Appeal from the Circuit Court of Jackson County. No. 11-CF-636. Honorable William G. Schwartz, Judge, presiding.
For Appellant: Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, Christopher Kopacz, Assistant Appellate Defender, Office of the State Appellate Defender, First Judicial District, Chicago, IL.
For Appellee: Hon. Michael Carr, State's Attorney, Murphysboro, IL; Patrick Delfino, Director, Stephen E. Norris, Deputy Director, Sharon Shanahan, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Fifth District Office, Mt. Vernon, IL.
Goldenhersh and Stewart, Justices concurred in the judgment and opinion.
James R. Moore,
[¶1] The defendant, Joshua Mueller, appeals his conviction for retail theft and the extended-term four-year sentence in the Illinois Department of Corrections that followed the conviction. For the following reasons, we reverse and remand for a new trial.
[¶3] The facts necessary to our disposition of this appeal are taken from the transcript of the defendant's jury trial, which took place on October 31, 2012, and are as follows. During voir dire, the trial court judge questioned the potential jurors individually. With regard to the four principles of law set forth in Illinois Supreme Court Rule 431(b) (eff. July 1, 2012), commonly known among practicing criminal law attorneys as the " Zehr principles,"  his questions varied from potential juror to potential juror. The judge asked many of the potential jurors if they understood that
the defendant was presumed innocent, but not if they accepted this principle. The judge asked all of the potential jurors if they would " require" the State to prove the defendant guilty beyond a reasonable doubt, but he did not ask all of them if they understood what the principle means. He also asked all of the potential jurors if they understood that the defendant did not have to present any evidence or testify, and that if the defendant did not testify they could not hold it against him, but none of the potential jurors were asked if they accepted these last two principles. Counsel for the defendant did not object to the content of the trial judge's voir dire questioning.
[¶4] In her opening statement, counsel for the State described the offense the defendant was alleged to have committed, which was the theft of two men's winter coats, and told the jury that it would " be able to see the video surveillance that took place that day," and that it would " be able to watch the defendant pick up merchandise from the store and exit the doors without paying for the coats." The State also told the jury that it would hear Officer Tim Lomax of the Carbondale police department testify " that he too watched that video surveillance and recognized that individual taking the coats as the defendant."
[¶5] The first witness to testify for the State was Dana Womick. She testified that at the time of the trial, she worked part-time at the Macy's store in the University Mall in Carbondale as a sales associate, but that approximately 11 months earlier, on November 26, 2011, she had been working at the store as a loss prevention officer. Her duties on that date were to " watch for shoplifters or watch our employees for thefts." She testified with regard to the closed-circuit surveillance system at the Macy's store, stating that she had both training and experience in its use.
[¶6] Womick also testified about the manner in which she and her fellow loss prevention officers conducted investigations. She stated that they would " watch our customers for anyone who gives signs," and that sometimes they would monitor the closed-circuit system from the " camera room" and other times would do " walk-abouts" on the sales floor and follow customers of whom they were suspicious. The officers would typically communicate by cell phone, but a store phone was also available for communications.
[¶7] Womick testified that on November 26, 2011, at approximately 5 p.m., she observed a male and a female in the " very back end of the home store." She considered the couple suspicious because they had what Womick characterized as " several totes *** just random totes, empty-looking totes." Womick was watching the couple through the closed-circuit system and called a fellow loss prevention officer, who was on the sales floor, to come observe them through the system in the camera room with her. The suspicious couple separated, with the female going to a fitting room with some clothing and some of the totes and the male staying in the women's clothing area " walking up and down the aisle."
[¶8] Counsel for the State then asked Womick if she was " physically observing the male at this point," and Womick reiterated that she was still watching the male through the closed-circuit camera system. Counsel next asked, " Do you see the male that you were observing at this time in the courtroom today?" Womick answered that she did and identified the defendant as the male she had observed. She then testified that the female subsequently left the store without the items of clothing she had been carrying. Womick testified that
the male remained in the store and that " it appeared he was looking for his wife." The male then left the store " using the entrance to the mall" and reentered " [s]everal--probably three times." Womick testified that she believed the male " was in our store three times." She also testified that she and her coworker believed the male would reenter the store because they " felt like he was looking for his--whoever he was with." By the time he reentered for the first time, Womick had moved from the camera room to the sales floor, while her coworker remained in the camera room. The male left again. When he reentered for what Womick characterized as the " third time,"  she was not aware that he was back in the store until her coworker called her.
[¶9] Womick was then asked if she subsequently learned the male " was about to leave the store," and she testified that she " was walking into the men's department and [her] coworker was on the telephone with [her] saying that he was in the men's department." She testified that she was " coming to find" the male, that it was now approximately " 5:45, 5:50" p.m., and that she watched the male exit the store, " carrying two jackets," through " the west entrance exit into the parking lot." She stated that she " was very close behind him as he went out the door." She followed him, but when he noticed her, he began to run. Womick testified that she yelled for the male to stop, but that she, and a loss prevention officer from JC Penney with whom she had been in contact and who was now outside as well, could not catch the male before he disappeared from view. Along the way, the male discarded the coats he was carrying, " along with one of the fairly empty tote bags of his own." Womick was shown a photograph of two winter coats and identified them as the coats she had observed the male " drop outside of the store." No photographs were shown of, and no additional testimony was adduced with regard to, the tote bag that allegedly belonged to the defendant and was allegedly left behind as well, and the loss prevention officer from JC Penney was not called as a witness at the trial.
[¶10] Counsel for the State then asked Womick more details about the closed-circuit surveillance system. Womick testified that the cameras were " very good" and could be zoomed in so closely that she could " read what is being rang [ sic ] up on the cash register" and could " see the color of a person's eyes." She testified that she was trained " to get a good facial shot" of suspicious persons, and that on the date in question, she was able to zoom " right into [the male's] face." She testified that the cameras recorded directly to a hard drive, and that if she wanted to retrieve footage that had been recorded, she could find the footage she wanted and record it " onto a disk." She testified that with regard to the date in question, she " copied the section where [the male] entered the men's department and picked up the two coats and exited the door." She testified that she did not make any additions to the footage or change it in any way. She testified that the disk she made fairly and accurately depicted the video footage she viewed before making the disk--in fact, she testified that it was " exactly the same" as the footage she viewed before making the disk--and she then authenticated a video disk presented to her by the State as the disk she made.
[¶11] The video disk presented by the State was admitted into evidence without objection and was played for the jury. It is part of the record on appeal and has been viewed by this court. The video disk contains approximately 38 seconds of footage, all of which is somewhat grainy. The first 11 seconds of footage show, from a distance, an individual who appears to be a man looking around at items of clothing in the men's department. At approximately the 11-second mark, two other shoppers pass closely by the individual, who steps away from a merchandise table. After they have passed, the individual then picks up at least one item of clothing from the table and exits the store through a nearby door, disappearing from the footage at approximately the 27-second mark. Approximately three seconds later, a female enters the footage from the far right and makes her way across the screen, at a brisk walk, to the door used by the individual. The female disappears from the footage at approximately the 35-second mark. Nothing of significance is seen in the final three seconds of footage. After the video disk was played for the jury, Womick testified that she was the female seen near the end of the footage. She was not asked--and she ...