People v. Thompson

2014 IL App (5th) 120079
NOTICE
Opinion filed April 25, 2014. NO. 5-12-0079
Modified upon denial of
rehearing November 18, 2014.
IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT
________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Hamilton County.
)
v. ) No. 11-CF-50
)
JEREMY R. THOMPSON, ) Honorable
) David K. Frankland,
Defendant-Appellant. ) Judge, presiding.
________________________________________________________________________

JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion.
Justices Spomer and Cates concurred in the judgment and opinion.

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.

1
¶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.
2
¶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
3
[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
4
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.
5
¶ 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, 456 N.E.2d 262, 265 (1983); see People v. Owens, 394 Ill. App. 3d 147, 154,

914 N.E.2d 1280, 1286 (2009); People v. Sykes, 2012 IL App (4th) 111110, ¶ 35, 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, 456 N.E.2d at 265; Fed. R. Evid. 701. Subsequently,

Illinois 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
6
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, 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 the

defendant's appearance had changed between the offense and the trial. Starks, 119 Ill.

App. 3d at 25, 456 N.E.2d at 265. The federal courts had concluded that the admission of

such testimony was not an error of constitutional dimensions. Starks, 119 Ill. App. 3d at

25, 456 N.E.2d at 265 (citing United States v. Calhoun, 544 F.2d 291 (6th Cir. 1976), and

United States v. Butcher, 557 F.2d 666 (9th Cir. 1977)). Starks then looked to the

California courts. In California, identification testimony had been seen as an appropriate

aid to the trier of fact in instances where the surveillance did not render a clear depiction.

Starks, 119 Ill. App. 3d at 26, 456 N.E.2d at 265 (quoting People v. Mixon, 180 Cal. Rptr.

772 (Cal. Ct. App. 1982) (nose, chin, and cheek betrayed identity despite cap being

pulled below ears), and citing People v. Perry, 131 Cal. Rptr. 629 (Cal. Ct. App. 1976)

(defendant shaved mustache)).

¶ 27 Starks found that the guards' testimony was a proper aid for explaining an unclear

depiction. It noted that the record did not indicate the defendants had changed

appearances before trial. Starks, 119 Ill. App. 3d at 26, 456 N.E.2d at 265-66 (citing

United States v. Jackson, 688 F.2d 1121, 1126 (7th Cir. 1982) ("defendant did, in fact,

alter his appearance somewhat, by cutting his hair and shaving his mustache, during the
7
brief period of just over one month")). Nonetheless, Starks noted that the surveillance

was in the form of a video, and not just a photograph, and that the identified subjects

were in the background of the surveillance. Starks, 119 Ill. App. 3d at 26, 456 N.E.2d at

266; see also United States v. White, 639 F.3d 331, 336 (7th Cir. 2011) (surveillance

video was not of best quality and perpetrator was concealed by his attire). Starks

concluded that the guards' testimony was a proper aid to the jury because they were more

"familiar with the defendants' mannerisms and body movements." Starks, 119 Ill. App.

3d at 26, 456 N.E.2d at 266.

¶ 28 If Starks is read as a set of instructions on how to develop identification testimony,

the prosecution failed to follow these instructions. Starks allows a witness familiar with a

defendant to aid the jury if the offering party can demonstrate how the witness was better

able to discern who was depicted in the surveillance. See Ill. R. Evid. 701 (eff. Jan. 1,

2011) (opinion testimony by lay witnesses). The record here contains no such

foundation. The identification testimony consists of bare conclusions. None of the

witnesses suggested how they were better able than the jury to discern who was depicted.

None testified that defendant's appearance had changed. None testified that they

identified defendant's mannerisms, clothing, or body language. Nor can this court glean

from the record any reason why any of these witnesses were better able than the jury to

identify who was depicted in the video.

¶ 29 For appellate review, Starks establishes a two-part test. Starks, 119 Ill. App. 3d at

25, 456 N.E.2d at 265; see People v. Owens, 394 Ill. App. 3d 147, 154, 914 N.E.2d 1280,

1286 (2009); People v. Sykes, 2012 IL App (4th) 111110, ¶ 35, 972 N.E.2d 1272. First,
8
the witness must have been familiar with the defendant prior to the offense. Starks, 119

Ill. App. 3d at 25, 456 N.E.2d at 265. Second, the testimony must aid in resolving the

issue of identification without invading the duties of the trier of fact. In discussing how

testimony could be a proper aid in identification without invading the province of the fact

finder, Starks discussed two types of situations. Starks, 119 Ill. App. 3d at 25, 456

N.E.2d at 265. The first type of situation is where a defendant's appearance has changed

between the time of the recording and date of trial. The second category is where the

video is an unclear or limited depiction.

¶ 30 Starks's interpretation of the Federal Rules of Evidence is consistent with the

subsequently enacted Illinois rules. Illinois Rule of Evidence 701 allows a lay opinion if

it is based on a witness's perception and is helpful to a determination of a fact in issue

without invading the province of the jury. Ill. R. Evid. 701 (eff. Jan. 1, 2011). Similarly,

Rule 704 has been interpreted to permit opinion testimony on an ultimate issue only in

instances where it is of assistance to the trier of fact. Ill. R. Evid. 704 (eff. Jan. 1, 2011);

Sykes, 2012 IL App (4th) 111110, ¶ 35, 972 N.E.2d 1272. In other words, Rule 704

" 'excludes opinion testimony of a lay witness "wherever inferences and conclusions can

be drawn by the jury as well as by the witness." ' " Sykes, 2012 IL App (4th) 111110,

¶ 36, 972 N.E.2d 1272 (quoting Freeding-Skokie Roll-Off Service, Inc. v. Hamilton, 108

Ill. 2d 217, 221, 483 N.E.2d 524, 526 (1985), quoting 7 John Wigmore, Evidence § 1917,

at 10 (Chadbourn rev. ed. 1978)).

¶ 31 Starks answers the focus of the briefs on appeal. At trial, four witnesses identified

defendant as the person depicted in surveillance. The primary justification for admission
9
asserted by the State is that this testimony is a direct aid to identification.

¶ 32 Each witness met the first test of Starks by being familiar with the defendant prior

to the offense. These witnesses either directly testified to prior dealings with defendant

or indirectly insinuated familiarity.

¶ 33 Nonetheless, none of the witnesses fit in either of the categories laid out in the

second step of Starks. None of the witnesses had a better perspective than the jury to

interpret the surveillance. None of the witnesses even alluded to the first category of

defendant's appearance having changed before trial. The State's assertion of such a

change of appearance is not documented by the record and is purely speculative.

¶ 34 This leaves the type of situation exemplified by Starks. In Starks, the testimony

served the utility of helping describe an unclear depiction. Starks concluded the guards

were in a better position to compare the prisoners to the body language of the persons

depicted in the background of the video. Starks, 119 Ill. App. 3d at 26, 456 N.E.2d at

266. Starks informs courts to evaluate each witness according to the form of recording

they are deciphering in front of the jury. In this case, the jury and witnesses were

presented with two different depictions–a still image derived from the video and the

video itself.

¶ 35 The record substantiates the premise that the still image was an unclear depiction.

Officer Huff testified that the still image was "somewhat blurry," but the most exacting

testimony on the clarity of the still image came from Officer Jackson. Officer Jackson,

however, did not identify defendant from a still image. Officer Jackson testified that he

thought the character in the black-and-white still picture that was apparently faxed to his
10
department resembled defendant, but when he looked at the video the week before trial,

he was able to positively identify defendant.

¶ 36 Two witnesses identified defendant to the jury off a still image. Despite the

presentation of the video to the jury, both Joslin and Officer Huff stated they recognized

defendant in a distilled still image.

¶ 37 Under Starks, their identification testimony would have been of questionable value

even if the still image had been the only recording available to the jury. Starks views

photographs and videos differently. Starks illustrated how an unclear depiction in a video

revealed body language and mannerism familiar to the witnesses, but suggested that no

such information could be gleaned from a still photograph. Starks, 119 Ill. App. 3d at 26,

456 N.E.2d at 266. None of the witnesses described any particular features or aspects of

defendant that would serve the demands for a proper aid to interpreting an unclear

depiction. Indeed, any claim that either Joslin or Officer Huff recognized defendant from

his body language or mannerisms is belied by their identification off a still image.

¶ 38 In any event, the jury was able to compare both the video and the distilled image

against defendant, who was present in court. There is no reason to assume that Joslin or

Officer Huff could make a more informed assessment of who was depicted in the

surveillance than the jury itself. Indeed, as the jury had the original moving video in

front of it, the jurors were in a position superior to these two witnesses.

¶ 39 The record strongly argues that the video was a clear depiction that the jury would

need no help in deciphering. Unlike Starks, nothing indicates that the suspect was in the

background of the video or the depiction is unclear. Nor is this a case in which an
11
uncertain depiction can be imputed from a silent record. The record speaks to the clarity

of the depiction. Foundation for the video was laid through the testimony of Deputy

Stewart. Deputy Stewart described how the camera was installed with an eye on

capturing images of a thief. Deputy Stewart left no doubt that the video captured the

suspect in exacting detail, from the suspect's gray cut-off tee shirt and baggy pants up to

his bald spot and large forehead.

¶ 40 Applying Starks, the testimony interpreting the identity of who was depicted in the

video was improper. Again, Starks would allow witnesses to identify a defendant from a

recorded image if his appearance had changed or the image was unclear. Starks found

that in such instances, the identifications were an aid to the jury. On the other hand, if the

standards of Starks are not met, such an opinion would serve no utility and the province

of the jury is invaded. Starks, 119 Ill. App. 3d at 26, 456 N.E.2d at 266.

¶ 41 Nonetheless, two additional law enforcement officials informed the jury that they

recognized defendant in the video. Officer Jackson directly declared his personal

conviction that defendant was the person depicted in the video. His testimony, as with

the other witnesses, does not reveal how he came to his conclusion, nor did he describe

any particular feature of defendant that he discerned. Moreover, Officer Jackson's

testimony as a whole counters any claim that the video presented an unclear depiction to

the jury. Despite the lack of any expressed discernment, Officer Jackson testified the

clarity of the video was superior to that of the "Xeroxed or faxed" still image. In the end,

Officer Jackson did not view the video until one week before his testimony, after

defendant had been identified as a suspect and in apparent anticipation of trial. This
12
testimony relayed Officer Jackson's comfort with viewing defendant as a suspect, but

nothing indicates that he had a better perspective to identify who was in the video than

the jurors.

¶ 42 One other witness alluded to his personal recognition of defendant in the video.

Similar to Officer Jackson, Chief Deputy Sandusky did not reach a conclusion about the

surveilled individual until after defendant was identified as a suspect. Sandusky was

asked if he had the opportunity to "witness a video" in the days after the offense. Instead

of testifying that he contacted other departments because he did not know who was

depicted, Sandusky responded that he "did not immediately recognize the subject in the

video." This lack of immediate recognition implies an ultimate recognition.

Furthermore, given the context of the prior familiarity of other law enforcement officers,

Chief Deputy Sandusky's ultimate recognition alludes to a prior acquaintance with

defendant.

¶ 43 In closing argument, the prosecution asserted that "several officers" had identified

defendant from their prior dealings. Although defendant points out the prosecutor's

closing comment, on appeal defendant does not argue directly to Chief Deputy

Sandusky's insinuated opinion. Still, Sandusky's comment indicated that he was one of

the several officers who had prior dealings with defendant. Likewise, Chief Deputy

Sandusky's testimony bolstered a string of witnesses who identified the person in the

surveillance as defendant, despite none of these witnesses being in a better position to

interpret the video than the jurors. This court cannot ignore the insinuated interpretation

of the video nor the allusion to defendant's character.
13
¶ 44 The record strongly suggests that the trial court never considered whether any of

the witnesses met the second part of Starks. This leads to the more plausible explanation

for the trial court's allowance of this unduly prejudicial testimony–the testimony was

directed at police procedure. Unfortunately, the record does not justify the cumulative

testimony.

¶ 45 II. Police Procedure

¶ 46 In general, the consequential steps of an investigation are relevant to explaining

the State's case to a jury. People v. Johnson, 116 Ill. 2d 13, 24, 506 N.E.2d 563, 568

(1987). In particular, the State must be allowed to explain why a previously unidentified

defendant became a suspect. People v. Byrd, 43 Ill. App. 3d 735, 742, 357 N.E.2d 174,

179 (1976). Silence as to this point would leave open the question of why, of all the

people in the world, the police arrested defendant. People v. Gonzalez, 379 Ill. App. 3d

941, 950, 884 N.E.2d 228, 236 (2008). This would invite speculation and baseless

innuendo that the investigation lacked rigor. Byrd, 43 Ill. App. 3d at 742, 357 N.E.2d at

179.

¶ 47 The record presents a series of dots that suggests a timeline for the investigation.

Officer Huff informed his supervisors that he believed defendant was depicted in the

surveillance. Thus, Officer Huff's testimony was relevant to explaining the investigation

and was permissible in order to counter any claim by defendant that he was unfairly

considered a suspect.

¶ 48 Joslin, an apparent informant, also identified defendant before he was brought in

for an interview. If the only other witness identifying defendant had been Joslin, the
14
admission of her testimony would have been questionable. The relevance of her role in

the investigation appears limited in light of Officer Huff's already making defendant a

suspect. In contrast, the potential for prejudice from presenting her identification

testimony was greater because of its cumulative nature. Moreover, her apparent status as

an informant alludes to the social circles occupied by defendant. Although this

determination would have rested in the discretion of the trial court, the record gives no

indication that her relevance to the investigation or the potential for prejudice was

weighed. In any event, a scenario in which both Joslin and Officer Huff, and only the

two of them, identified defendant is merely hypothetical.

¶ 49 The State presented a parade of law enforcement officers identifying defendant as

the one depicted in the surveillance. After Officer Huff and Joslin had identified

defendant as a suspect, Officer Jackson and Chief Deputy Sandusky came to believe the

image in the video was defendant. Their review of the video displayed a comfort level

with proceeding with the investigation. However, this testimony does not explain how

defendant became a suspect. Defendant had already been identified as the suspect by the

time either of these officers made the identification they relayed to the jury. See, cf.,

Byrd, 43 Ill. App. 3d at 742, 357 N.E.2d at 179. Relaying Officer Jackson's and Chief

Deputy Sandusky's comfort with proceeding with the investigation after viewing the

video did not assist the jury's understanding of the steps of the investigation or how

defendant became the suspect. Instead, this simply conveyed the officers' personal

opinions. The personal convictions of these officers were irrelevant and highly

prejudicial.
15
¶ 50 III. The Province of the Jury

¶ 51 Even if each witness had offered a proper lay opinion, offering cumulative

identification testimony would have run the risk of prejudice. Under any circumstance,

having several witnesses interpret a video runs the risk of supplanting the function of the

jury. Starks recognized this potential. Starks cautioned: "Trial judges should limit the

amount of such cumulative evidence." Starks, 119 Ill. App. 3d at 27, 456 N.E.2d at 266.

¶ 52 In this case, the identifications painted multiple layers of prejudice on the images

presented to the jury. On one level, by meeting the first test of Starks and establishing a

prior familiarity with defendant, the law enforcement officers and apparent informant

insinuated defendant was a dissolute character. On another level, by failing to satisfy the

second test of Starks, each of these witnesses invaded the province of the jury. Repeating

these bare conclusions as to who was depicted in the surveillance compounded the error

and leaves this court with no confidence that the jury based the verdict on its own

unfiltered interpretation of the evidence.

¶ 53 The first layer of prejudice, stemming from defendant's familiarity to law

enforcement officials, was not present in Starks. Starks began by noting that the jury was

already fully aware that the prisoners were convicted criminals. Starks, 119 Ill. App. 3d

at 26, 456 N.E.2d at 265. Thus, Starks did not have to weigh otherwise instructive

testimony against this risk of prejudice.

¶ 54 In contrast, the witnesses in this case conveyed a prejudicial message about

defendant's character to the jury. The mere suggestion of prior police acquaintance is

susceptible to prejudicial implication. People v. Eghan, 344 Ill. App. 3d 301, 313, 799
16
N.E.2d 1026, 1036 (2003) (officers called the defendant by first name during arrest);

People v. Bryant, 113 Ill. 2d 497, 514, 499 N.E.2d 413, 421 (1986) (improper to elicit

testimony that a police officer yelled the defendant's name in pursuit). Moreover, the

context of comments can indicate that a defendant had issues with substance abuse. See

People v. Carter, 297 Ill. App. 3d 1028, 1035, 697 N.E.2d 895, 900 (1998) (plain error

when two narcotics officers allude to familiarity with the defendant).

¶ 55 This is not a case where the insinuation is vague or the impact miniscule. See,

e.g., People v. Adkins, 239 Ill. 2d 1, 26, 940 N.E.2d 11, 28 (2010) (impact of police

recognition miniscule as the defendant relied on his status as skilled burglar for defense

against charge of murder). In this case, the implication of defendant's bad character was

repeated and, at times, direct. Three law enforcement officers insinuated that they were

familiar with defendant, with Officer Huff going so far as to say he had "previous

dealings" with defendant. This was in addition to the hazy cloud of drug use implied by

the informant Joslin.

¶ 56 The most cogent reading of the record suggests no underhanded improper motive

on the part of the prosecution. Nonetheless, the prejudice of having not one, but several,

law enforcement officers and an apparent informant allude to their prior dealings with a

person charged with a drug-related theft is unmistakable and profound.

¶ 57 The prejudice, however, is not limited to a disparagement of defendant's character.

Although no one was in a better position to interpret who was in the video than the jurors,

the good character of the officers was placed before the jury. This mixed their functions

as officers with their role as witnesses. Naturally, after defendant was under
17
investigation, these officers would have asked themselves if they believed it was

defendant in the video. This is certainly good police work, but undoubtedly their

subjective beliefs during the course of investigation were not an aid to identification at

trial, as required by Starks, nor to explaining the consequential steps of their work, as

allowed by Byrd.

¶ 58 The inherent unreliability of the verdict stems from the error of conducting the

trial as a display of the subjective aspects of the police investigation. The visual images

presented at trial were colored by the unanimous conclusion of witnesses who, though in

a position of authority, had no better vantage point than the jury to compare defendant to

the video. Although not helpful in explaining the course of the investigation, by

introducing these opinions in the context of the investigation, the jury was invited to base

its verdict on the propriety of the investigation instead of the adequacy of the proof of the

crime. The jurors were faced with more than a challenge of forming their own

interpretation of the video; in order to reach a verdict of not guilty, the jurors would have

needed to interpret the surveillance contrary to the investigating officers.

¶ 59 A conviction based upon video surveillance would seem unassailable to doubt.

Unfortunately, the parade of witnesses issuing conclusions about who was depicted

tainted the jury's interpretation and makes other evidence inconsequential. The State

contends that even if the testimony was improper, other evidence supports conviction,

including incriminating statements by defendant and physical evidence from the scene.

Given the singular role of surveillance, a conviction obtained after several witnesses

improperly opined on its contents cannot be trusted. The introduction of these multiple,
18
concurring witnesses pointing to defendant would have erased any reasonable doubt the

jurors might otherwise have held. Moreover, the jurors understood that the officers had

prior dealings with this suspect. No confidence can be placed in the verdict.

¶ 60 Mindful of the potential of an overly broad interpretation of this opinion, two

related points need to be clarified. First, this opinion should not be read as handcuffing a

prosecutor's ability to present witnesses that meet the minimal standards of Starks.

Again, the jury was presented with multiple bare conclusions with no indication that any

of these witnesses would have been better able to interpret the surveillance than the jurors

themselves. The failure of the prosecution to follow the standards of Starks, and to do so

with numerous witnesses, is likely to be a rare scenario. Second, the reversal of this

conviction should not be read as a criticism of the work of the officers. Cumulative

identification by police officers might be considered in determining probable cause, but

its potential impact on a jury means that its admission at trial should be measured.

People v. Green, 88 Ill. App. 3d 929, 932, 410 N.E.2d 1003, 1006 (1980) (evidence at

hearing on probable cause need not be admissible at trial); see also, e.g., People v. Sykes,

2012 IL App (4th) 100769, ¶ 43, 968 N.E.2d 174 (discussing option of laying foundation

outside of presence of jury). Absolutely nothing in the record suggests any step in the

police investigation was improper. To the contrary, the personal conclusions of the

police officers were bound to carry such weight that this court can have no confidence

that the jury reached its verdict through its own interpretation of the evidence.

¶ 61 Finally, double jeopardy does not bar retrial. Although the verdict was made

unreliable by the improper evidence, the reversal does not stem from a finding that the
19
record was otherwise insufficient to sustain a conviction. People v. Alfaro, 386 Ill. App.

3d 271, 314, 896 N.E.2d 1077, 1113 (2008). A review of the record indicates that a

rational trier of fact could have found the essential elements of the crime absent the error,

but this court reaches no conclusions binding on retrial as to guilt. People v. Lopez, 229

Ill. 2d 322, 367, 892 N.E.2d 1047, 1073 (2008).

¶ 62 Defendant asserts plain error on other issues that need not be addressed, as this

court reverses the conviction.

¶ 63 On appeal, the State confesses that convicting defendant of both attempting to

procure anhydrous ammonia by tampering with equipment (720 ILCS 646/25(a)(2) (West

2010)) and tampering with anhydrous ammonia equipment (720 ILCS 646/25(d)(2)

(West 2010)) was error in that these two charges were based on the same physical act.

See People v. King, 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844 (1977). We agree and are

confident such error would not reoccur on remand.

¶ 64 For the reasons stated above, defendant's conviction is reversed and the matter is

remanded. In all other respects, the petition for rehearing is denied.

¶ 65 Reversed and remanded.

20
 2014 IL App (5th) 120079

NO. 5-12-0079

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Hamilton County.
)
v. ) No. 11-CF-50
)
JEREMY R. THOMPSON, ) Honorable
) David K. Frankland,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________

Opinion Filed: April 25, 2014
Modified Upon Denial of Rehearing: November 18, 2014
______________________________________________________________________________

Justices: Honorable Richard J. Goldenhersh, J.

Honorable Stephen L. Spomer, J., and
Honorable Judy L. Cates, J.,
Concur
______________________________________________________________________________

Attorneys Michael J. Pelletier, State Appellate Defender, Ellen J. Curry,
for Deputy Defender, Lawrence J. O'Neill, Assistant Appellate
Appellant Defender, Office of the State Appellate Defender, Fifth Judicial
District, 909 Water Tower Circle, Mt. Vernon, IL 62864
______________________________________________________________________________

Attorneys Hon. Justin Hood, State's Attorney, Hamilton County Courthouse,
for 100 South Jackson Street, McLeansboro, IL 62859, Patrick Delfino,
Appellee Director, Stephen E. Norris, Deputy Director, Sharon Shanahan,
Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, 730
East Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL
62864
____________________________________________________________________________