People v. West

691 N.E.2d 177, 294 Ill. App. 3d 939, 229 Ill. Dec. 241, 1998 Ill. App. LEXIS 84
CourtAppellate Court of Illinois
DecidedFebruary 20, 1998
Docket5-96-0095
StatusPublished
Cited by5 cases

This text of 691 N.E.2d 177 (People v. West) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. West, 691 N.E.2d 177, 294 Ill. App. 3d 939, 229 Ill. Dec. 241, 1998 Ill. App. LEXIS 84 (Ill. Ct. App. 1998).

Opinions

JUSTICE CHAPMAN

delivered the opinion of the court:

On August 8, 1990, a fire destroyed the Fash-n-Fab buildings owned by defendant Dwight West. A firefighter was injured while attempting to extinguish the blaze. Following a bench trial, defendant was convicted of five counts of arson and one count of aggravated arson, and he was sentenced to four and six years’ imprisonment on the respective charges. Defendant argues that: (1) the court erred in admitting into evidence photographs of the crime scene; (2) the court’s findings of fact are not supported by the evidence; and (3) the court improperly conducted deliberations prior to defendant resting his case. We affirm.

Defendant’s first argument is that the court erred in admitting crime-scene photographs taken on August 13 and 14, 1990. These photographs, marked as People’s exhibits Nos. 12 to 56, primarily depicted the floors of the Fash-n-Fab buildings. Defendant argues that it was improper to admit these photographs because the State failed to lay a proper foundation for their introduction. Defendant argues that no evidence was produced as to the condition of the floors subsequent to the August 8, 1990, fire and that the court therefore erred in allowing them into evidence. The State argues that defendant waived this argument because he failed to object in a timely manner. Before addressing the substance of defendant’s argument, we will address the waiver issue.

In general, to preserve an issue for review, a defendant must object at trial and include the issue in a written posttrial motion. People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124 (1988). In this case, defendant did object during trial to the use of the photographs marked as People’s exhibits Nos. 12 to 56, and he objected in a post-trial motion. The State argues that defendant’s objection at trial was not made the first time the photographs were identified and that therefore it was untimely.

The issue is not whether a party objects to evidence when it is first identified or referred to, but the issue is instead whether an objection is made when the evidence is offered. In this case, defendant did object to the photographs at trial, both while they were being referred to by various witnesses and when they were offered into evidence. In addition, in a timely posttrial motion defendant objected to the use of the photographs. Under these circumstances, we find that defendant did not waive this issue on review.

We now turn to defendant’s first argument, that the court erred in admitting People’s exhibits Nos. 12 to 56, photographs of the crime-scene floor. Defendant argues that no proper foundation was laid for their admission.

In general, a photograph is admissible into evidence if it is identified by a witness who has personal knowledge of the photographed subject and testifies that the photograph is a fair and accurate representation of the subject at the relevant time. Casson v. Nash, 54 Ill. App. 3d 783, 795, 370 N.E.2d 564, 573 (1977), aff'd, 74 Ill. 2d 164, 384 N.E.2d 365 (1978). A decision to admit photographic evidence is within the trial court’s discretion and will not be reversed absent an abuse of discretion. People v. Greer, 79 Ill. 2d 103, 117, 402 N.E.2d 203, 209 (1980).

In this case, Kim May, an investigator with State Farm Insurance Company, was called to the scene of the fire on August 10, 1990, two days after the fire. May returned to the site on August 13 and 14, 1990. During his investigation of the fire and the excavation of the Fash-n-Fab buildings, May took the photographs. May testified that the photographs, taken on August 13, 1990, fairly and accurately depicted the scene as he observed it on August 10, 13, and 14, 1990.

Defendant argues that the State did not show that the unsecured crime scene had not been tampered with prior to May’s examination of the site on August 10. In considering this argument after defendant’s objection, the court noted:

“May saw the premises on Friday the 10th, for the first time ***. Then he came back on Monday the 13th and was there again on the 14th. Photographs were taken. You have through cross [-] examination elicited the fact from various witnesses that the premises were not secured in any way nor could they have been [and] that there were no guards there except for the suggestion perhaps from one witness that there might have been a yellow tape around the premises. Others have said they were not aware of any. It’s true that the testimony has been from *** May that debris was removed from the premises [and] that the washing down was made to determine burn patterns. Now, you are suggesting that an improper foundation has been laid because the State has failed to negate the possibility of any other person other than those who have testified as being upon the premises.
First, with reference to the burn patterns and burned areas of the various structures, it can hardly be suggested, I think, that there has been a change or moving of the structure that remains standing after the fire and the intense heat. It’s true that there is a possibility that certain objects burned [and that] objects that might have been in the debris on the floor and remained may have been moved from time to time by walking or posing, but I don’t think that there is sufficient basis for this Court to hold that no foundation has been laid for the use of these photographs ***.”

We hold that the court thoroughly considered this issue and correctly found that a proper foundation had been laid for the photographs. May testified that they were fair and accurate representations of what he and the fire chief saw as they inspected the building soon after the fire. The fire occurred on August 8, 1990, around 5:30 p.m. Fire Chief Roger Sutherland testified that the fire was brought under control within 45 minutes to one hour but that it took three to four hours to extinguish it completely. The investigation of the building was suspended until August 9, due to darkness. On August 9, Chief Sutherland returned to the scene and attempted to remove debris from the building, but due to the amount of the debris, he elected to suspend operations until August 10, when State Farm Insurance investigators could assist him. There was nothing to contradict May’s testimony that the photographs were fair and accurate depictions of the building as he had observed it on August 10, 13, and 14.

The fact that the photographs were taken two days after the fire, rather than immediately after the fire, goes to the weight of the evidence, not its admissibility. Burke v. Toledo, Peoria & Western R.R. Co., 148 Ill. App. 3d 208, 213-14, 498 N.E.2d 682, 686 (1986); see also Illinois State Toll Highway Authority v. Grand Mandarin Restaurant, Inc., 189 Ill. App. 3d 355, 360, 544 N.E.2d 1145, 1148 (1989). In this case, it was explained that due to the extensive damage it was impossible to excavate and take the photos immediately after the fire.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

People v. Harris
Appellate Court of Illinois, 2008
People v. Tisdel
Appellate Court of Illinois, 2003
People v. West
691 N.E.2d 177 (Appellate Court of Illinois, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
691 N.E.2d 177, 294 Ill. App. 3d 939, 229 Ill. Dec. 241, 1998 Ill. App. LEXIS 84, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-west-illappct-1998.