People v. Starks

• Decision Date: 03 November 1983
• Docket Number: Nos. 4-83-0144,4-83-0145,s. 4-83-0144
• Citation: 119 Ill.App.3d 21,456 N.E.2d 262,74 Ill.Dec. 760
• Parties: , 74 Ill.Dec. 760 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Terry STARKS, Defendant-Appellant. The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Travis MILLER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 262

456 N.E.2d 262

119 Ill.App.3d 21, 74 Ill.Dec. 760

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Terry STARKS, Defendant-Appellant.

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Travis MILLER, Defendant-Appellant.

Nos. 4-83-0144, 4-83-0145.

Appellate Court of Illinois,

Fourth District.

Nov. 3, 1983.

Rehearing Denied in 4-83-0145 Dec. 7, 1983.

Daniel D. Yuhas, Deputy State Appellate Defender, Karen Munoz, Asst. State Appellate Defender, Springfield, for defendant-appellant in No. 4-83-0144.

Jerome Rotenberg, Chicago, for defendant-appellant in No. 4-83-0145.

Donald D. Bernardi, State's Atty., Pontiac, Robert J. Biderman, Deputy Director, David E. Mannchen, Staff Atty., State's Attys. Appellate Service Com'n, Springfield, for plaintiff-appellee in both cases.

GREEN, Justice:

After a trial by jury in the circuit court of Livingston county, defendants, Terry Starks and Travis Miller, were convicted on January 12, 1983, of a violation of section 3-6-4(a) of the Unified Code of Corrections (Ill.Rev.Stat.1981, ch. 38, par. 1003-6-4(a)). On February 16, 1983, the court sentenced them to terms of 12 and 11 years' imprisonment, respectively. Each sentence was ordered to be consecutive to sentences each defendant was then serving. Separate notices of appeal were filed but the cases have been consolidated in this court.

Defendant Miller maintains that the indictment was defective. They both contend that: (1) The trial court erred in allowing correctional officers to give testimony identifying defendants as persons the officers had seen on a videotape taken during the occurrence giving rise to the charges; (2) the prosecutor's closing argument was prejudicially improper; and (3) the court erred in sentencing.

The indictment returned on October 6, 1982, charged of each defendant that on July 29, 1982:

"being a person committed to the Department of Corrections, he caused or participated in the destruction of property during a disturbance at the Pontiac Correctional Center by knowingly tearing conduit off pipes and damaging other property, of the State of Illinois, Pontiac Correctional Center,"

in violation of section 3-6-4(a) of the Unified Code of Corrections. Relevant portions of that section state:

"A committed person * * * while participating in any disturbance, demonstration or riot, causes, directs or participates in the destruction of any property is guilty of a Class 2 felony." (Emphasis added.) (Ill.Rev.Stat.1981, ch. 38, par. 1003-6-4(a).)

Thus, the charges did not state in the language of the statute that the defendants were "participating in [a] disturbance" while they participated in destruction of the property. Defendants maintain that, accordingly, the indictment was fatally defective.

Defendants' contentions concerning the sufficiency of the indictment are viewed in the posture of the failure of the defense to raise the issue in the trial court. When attack is made upon a charge at this time, the charge "is sufficient if it apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising from the same conduct." (People v. Pujoue (1975), 61 Ill.2d 335, 339, 335 N.E.2d 437, 440.) In Pujoue, a complaint purporting to charge unlawful use of weapons (Ill.Rev.Stat.1973, ch. 38, pars. 24-1(a)(4), 24-1(a)(10)) failed to make the required allegation that the weapon involved was either concealed or loaded. The supreme court, nevertheless, deemed the charge sufficient to enable preparation of a defense and to protect the defendant from double jeopardy.

We need not decide whether any defect in the charges here would constitute error, if timely raised, because any claimed defect was no more prejudicial to defendants here than was the defect in Pujoue which failed to apprise the defendant that the State claimed his weapon was concealed or loaded. Here, as in Pujoue, a resulting conviction could be pleaded in bar of subsequent prosecution. The defect in the charge did not require reversal.

The evidence undisputedly showed that on July 29, 1982, defendants were inmates at the Pontiac Correctional Center and that a riot occurred at that institution on that date apparently arising from a dispute between rival gangs. An inmate was killed during the course of the riot. The evidence was also undisputed that a telephone communication conduit was torn from a wall during the episode. One inmate testified that he saw defendant Miller tear portions of the conduit off of a wall and pass it to another inmate. This witness was impeached by evidence that he had previously told an investigator that he knew nothing of the incident and then told of seeing Miller's conduct only after receiving favorable treatment from the administrative officer of the center. All of the rest of the testimony tying either defendant to the offenses charged came from the testimony of correction officers who had viewed a videotape of the occurrence made by cameras which had been trained on the area where the riot occurred. This testimony identified Miller as a person shown in the tapes to be tearing a portion of a conduit from a wall and Starks as a person shown there to have passed the torn conduit to other inmates.

Defendants argue that the testimony of the guards was expert testimony by persons not experts and on a subject upon which the jury was fully capable of making its own determination by viewing the tapes after they were admitted into evidence. (People v. Dixon (1980), 87 Ill.App.3d 814, 43 Ill.Dec. 252, 410 N.E.2d 252.) However, we do not deem the testimony to have been expert testimony but rather lay testimony of persons familiar with the defendants, identifying persons shown on tapes as defendants. Although the witnesses did not all know the names of the defendants, all testified to having seen the defendants they identified on numerous occasions prior to the event. Some of them had to look at mug shots containing the defendants names in order to learn the names of the defendants.

The United States Circuit Courts of Appeal have considered the problems of the introduction of testimony of lay witnesses identifying the accused as being a person depicted in pictures. At issue has been the application of Rule 701 of the Federal Rules of Evidence which states:

"If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue." (28 U.S.C.A., Rule 701.)

In United States v. Calhoun (6th Cir.1976), 544 F.2d 291, the court stated that testimony of a defendant's parole officer that the defendant was a person shown in a picture taken at the time of the offense would have been helpful because the appearance of the defendant had changed between the time of the offense and trial. The court stated that the evidence "teases the outer limits" of Federal Rule 701. Nevertheless, the court awarded a new trial because of the prejudicial effect of showing that the defendant was subject to parole.

In United States v. Butcher (9th Cir.1977), 557 F.2d 666, testimony similar to that given in Calhoun was given by the defendant's probation officer and two law enforcement officers. The court held that the trial court did not abuse its discretion in considering the probative value of the evidence to outweigh the prejudice arising from the inference that defendant had committed other crimes. The court was concerned with whether the testimony invaded the province of the jury because, unlike in Calhoun, the appearance of the defendant at trial was more similar to that at the time of the crime than that when the witnesses last saw the defendant before the crime. The court concluded that the admission of the evidence was not error of constitutional dimensions. See also, United States v. Barrett (9th Cir.1983), 703 F.2d 1076; United States v. Borrelli (10th Cir.1980), 621 F.2d 1092.

In People v. Mixon (1982), 129 Cal.App.3d 118, 180 Cal.Rptr. 772, California law, as first established in People v. Perry (1976), 60 Cal.App.3d 608, 131 Cal.Rptr. 629, was described as requiring:

"two predicates for the admissibility of lay opinion testimony as to the identity of persons depicted in surveillance photographs: (1) that the witness testify from personal knowledge of the defendant's appearance at or before the time the photo was taken; and (2) that the testimony aid the trier of fact in determining the crucial identity issue." (129 Cal.App.3d 118, 128, 180 Cal.Rptr. 772, 777; see also State v. Jamison (1980), 93 Wash.2d 794, 800, 613 P.2d 776, 779.)

Mixon and Jamison both indicate that the second predicate can be satisfied whenever the surveillance photograph is not a clear depiction of the subject or the defendant's appearance at the time of trial is different from his appearance at the time of the crime.

Here, there was no prejudice from having correctional officers testify because the jury would otherwise have been fully aware that the defendants were convicted criminals. The officers were familiar generally with the defendants' appearances at the time of the occurrence but there was no indication that their appearances had changed by time of trial. The indications of the Butcher opinion was that the court there would have upheld the admission of the evidence under these circumstances. However, in United States v. Jackson (7th Cir.1982), 688 F.2d 1121, 1125, the court implied that testimony of the nature here should be excluded when not necessary because the accused's appearance had changed between time of the offense and time of trial.

In this case there is an additional element referred to in Mixon but not involved in the Federal cases. The tape was such that the...