People v. Thompson

• Decision Date: 25 April 2014
• Docket Number: No. 5–12–0079.,5–12–0079.
• Citation: 21 N.E.3d 1
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Jeremy R. THOMPSON, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

21 N.E.3d 1

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Jeremy R. THOMPSON, Defendant–Appellant.

No. 5–12–0079.

Appellate Court of Illinois, Fifth District.

April 25, 2014.

Modified Upon Denial of Rehearing Nov. 18, 2014.

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 Appellant.

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, for Appellee.

OPINION

Justice GOLDENHERSH delivered the judgment of the court, with 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.

¶ 3 FACTS

¶ 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 methamphetamine. Joslin also admitted that her husband had charges pending against him for tampering with anhydrous ammonia.

¶ 16 Chief Deputy Will Sandusky

¶ 17 On August 17, 2011, Chief Deputy Sandusky interviewed defendant. Before addressing his interview of defendant, Sandusky was asked about his initial involvement with the case and whether he witnessed a video. Sandusky testified that he watched the recording, but “did not immediately recognize the subject in the video.” Sandusky testified that he began his interview by telling defendant that “he had been caught on surveillance stealing anhydrous ammonia.” Sandusky then described the importance of a printout of a still image from the surveillance video:

“Q. [Attorney for State:] Okay. And why was this photo significant to [defendant] after you told him that you had reportedly caught him on video?

A. After I informed [defendant] that he had been caught on surveillance video, he asked that he could—wanted to know if he could see the evidence. I showed him the still image. And he looked at it for several seconds and said, I wish this wasn't me—or I wish I could say this wasn't me. But it is.”

¶ 18 Defendant also stated that the photo was “pretty cool” and wanted a copy. According to Sandusky, defendant admitted that he had been manufacturing methamphetamine for several months and had stolen approximately two gallons of anhydrous ammonia from Hamson Ag on four or five different occasions. Sandusky stated that as they were leaving the interview room, defendant stated that it was not really him in the video as he had been in custody in Johnson County. Sandusky stated that his inquiry revealed that defendant had been released from custody in Johnson County on July 18.

¶ 19 As part of closing argument, the prosecution stated: “You saw the photograph of the defendant. You had several officers identify the defendant that had prior dealings with him.”

¶ 20 The jury returned a verdict of guilty on both counts. The court entered judgment on the verdict and defendant was sentenced to 18 years' imprisonment. Defendant appeals.

¶ 21 ANALYSIS

¶ 22 I. Identification Testimony

¶ 23 At trial, several police officers and an apparent informant testified that defendant was the one pictured in surveillance. The State contends that this testimony was an appropriate lay opinion on identity. Considered separately, none of the witnesses met the standards for identification testimony. None of these witnesses aided the jurors' own identification of who was depicted in the surveillance. Considered collectively, the identification testimony encroached on the function of the jury to such an extent that no confidence can rest in the verdict.

¶ 24 Illinois has long allowed identification testimony by witnesses who did not personally observe events depicted in a video recording. People v. Starks, 119 Ill.App.3d 21, 25, 74 Ill.Dec. 760, 456 N.E.2d 262, 265 (1983) ; see People v. Owens, 394 Ill.App.3d 147, 154, 333 Ill.Dec. 468, 914 N.E.2d 1280, 1286 (2009) ; People v. Sykes, 2012 IL App (4th) 111110, ¶ 35, 362 Ill.Dec. 239, 972 N.E.2d 1272. In establishing the standard for admission of such testimony, Illinois looked to the Federal Rules of Evidence and procedures adopted by other jurisdictions. Starks, 119 Ill.App.3d at 25, 74 Ill.Dec. 760, 456 N.E.2d at 265 ; Fed.R.Evid. 701. Subsequently, Illinois has adopted its own rules. The procedure for evaluating identification testimony first established by Starks is consistent with Illinois Rule of Evidence 701. Ill. R. Evid. 701 (eff. Jan. 1, 2011) (opinion testimony by lay witnesses); see also Ill. R. Evid. 704 (eff. Jan. 1, 2011) (opinion on ultimate issue). Starks provides the framework for our decision.

¶ 25 In Starks, two inmates were convicted of felonies after participating in a prison riot. Cameras monitored the area where the riot occurred. At trial, correctional officers identified the defendants as among those shown on the video. Starks, 119 Ill.App.3d at 24, 74 Ill.Dec. 760, 456 N.E.2d at 264.

¶ 26 Starks rejected the claim that the guards rendered expert opinions. Starks first looked to federal cases interpreting Federal Rule of Evidence 701. Starks noted that federal courts had found identification testimony met the standards of Rule 701 when...