People v. Zehr, No. 81-552

• Court: United States Appellate Court of Illinois
• Writing for the Court: STOUDER; SCOTT; HEIPLE; HEIPLE
• Citation: 442 N.E.2d 581,66 Ill.Dec. 155,110 Ill.App.3d 458
• Parties: , 66 Ill.Dec. 155 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kenneth ZEHR, Defendant-Appellant.
• Decision Date: 10 November 1982
• Docket Number: No. 81-552

Page 581

442 N.E.2d 581 110 Ill.App.3d 458, 66 Ill.Dec. 155 The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Kenneth ZEHR, Defendant-Appellant. No. 81-552. Appellate Court of Illinois,
Third District. Nov. 10, 1982.

Page 582

[66 Ill.Dec. 156] Peter A. Carusona, Asst. State Appellate Defender, Robert Agostinelli, Deputy State Appellate Defender, Ottawa, for defendant-appellant.

Terry A. Mertel, John X. Breslin, State's Attys. Appellate Service Com'n, Ottawa, Gary L. Peterlin, State's Atty. of LaSalle County, Ottawa, for plaintiff-appellee.

STOUDER, Justice:

Defendant Kenneth Zehr was indicted for home invasion, burglary, aggravated battery, and theft. After the theft charge was dismissed, the cause proceeded to a jury trial in the circuit court of LaSalle County. Defendant was convicted of the offenses and received respective, concurrent sentences of 22, 6, and 3 1/2 years in the Department of Corrections.

The incident leading to defendant's convictions began the evening [110 Ill.App.3d 459] of October 27, 1980. Hazel Fox, the 68 year old victim, was living alone as she had lost her husband a week earlier. According to her audio-visual evidence deposition, defendant and a companion came to her home wanting to examine an old car that was for sale. Speaking through her dining room window, she refused to show them the vehicle. The men then left and walked down her driveway toward the road. Fox did not see or hear any vehicle. She then watched television and fell asleep.

Around 11 p.m., she woke up and went downstairs to her basement to check the furnace. In the basement, Fox heard the

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[66 Ill.Dec. 157] rustling of a shower curtain in the bathroom, which was a few feet from the furnace. Two persons appeared in the bathroom doorway. After pausing a moment, one of the persons knocked the witness' glasses off, rendering her virtually blind. She was then bound, gaged, and kept in the basement for several hours. During that time, the attackers ransacked her home and returned to the basement several times to strike their victim. Fox later heard a truck start and drive away, eventually got loose, found an old pair of glasses, and called her cousin. Several items, which the witness said were missing from her home, were later in defendant's possession. Much additional evidence was presented, but as the sufficiency of the evidence is not questioned, we shall only consider that necessary for the resolution of the issues herein.

The first issue presented for our review is whether the trial court erred in allowing the victim's testimony to be recorded by an audio-visual device. Supreme Court Rule 206(e) (Ill.Rev.Stat.1979, ch. 110A, par. 206(e)) provides in part that "[t]he testimony shall be taken stenographically or by sound-recording device, and upon agreement of the parties, or by order of the court for good cause shown, may be taken by audio-visual recording device." As there was no agreement of the parties, the question becomes whether "good cause" for the audio-visual deposition was shown. It should be noted Supreme Court Rule 206(e) (Ill.Rev.Stat.1979, ch. 110A, par. 206(e) is a rule of civil procedure not criminal procedure although its general terms are incorporated into the criminal procedure by Supreme Court Rule 414(b) (Ill.Rev.Stat.1979, ch. 110A, par. 414(b)). At the time Supreme Court Rule 206(e) was amended in 1975 to permit audio-visual recording of evidence depositions, the authors offered no comments or advice about the amendment. This is of special importance since it indicates there was no effort to fashion the amendment in any manner that would have significance in criminal proceedings.

The State contends that the "good cause shown" was the importance of the jury observing the witness' demeanor and reminds us that this is the 20th century. The trial court specifically noted the century[110 Ill.App.3d 460] and the fact the videotape would show Fox's demeanor. We quarrel not with the chronometric reminder and observation regarding demeanor; however, we do not believe the legislature intended either to constitute "good cause" in the present context. Assuming the 20th century reminder suggests that available recording technology be utilized, the "agreement of the parties" and "good cause shown" limitations cause a rejection of the suggestion. As to the observation regarding demeanor, this is a factor which will almost always be present. If the observation of a witness' demeanor were to constitute "good cause", then such would be present in virtually every case. We therefore find no "good cause shown" and the use of the videotape to constitute reversible error.

We note parenthetically that the legislative limitations are not without reason. Historically, evidence depositions were not admissible in criminal cases. (People v. Malone (1976), 41 Ill.App.3d 914, 354 N.E.2d 911.) Even now, the circumstances permitting the use of depositions against an accused in a criminal case must be extraordinary (see 23 Am.Jur.2d Depositions and Discovery, sec. 120 (1965); Annot., 41 A.L.R. Fed. 764 (1979) ("exceptional circumstances" under 18 U.S.C.S., sec. 3503), and statutes allowing such depositions are strictly construed (see 23 Am.Jur.2d Depositions and Discovery, sec. 11 (1965)). Video taped depositions, or televised testimony, present additional problems. Not only do they run the risk of prejudicing the accused by overemphasizing the witness' testimony, the formal court setting has an impact on witness performance in that it creates psychological compulsions, which may not be present when testimony is taken outside the courtroom,...