Samuel Partida, Jr. Criminal Defense Attorney, Founder of IllinoisCaseLaw.com

Criminal Nuggets | A Criminal Law Podcast

Criminal Law Podcast
Criminal Nuggets | A Criminal Law Podcast

Description

Smart lawyers know the caselaw. Here, practicing attorneys are injected with all the latest criminal nuggets of valuable legal information. Listeners walk into criminal court immune from ignorance on the latest decisions. The tidbits and key points Illinois appellate judges are making are no longer hidden in voluminous text. For the first time in their careers, practitioners don't have to invest the enormous amounts of time usually required to sift through hundreds of pages of legal text. Now, their ears serve as the portals to vast, instant knowledge. Audio law learning not only will make you the smartest lawyer on the case, you will also have fun! And its all FREE.

Episodes

Illinois v. Caballes: The Police Drug Dog Sniffer Case

Nov 8, 2019 01:44

Description:

Illinois v. Caballes, 543 U.S. 405 (2005). SCOTIS Notice (Duration 1:43)

This is the SCOTUS case that set the framework for the use of drug dogs in the United States.

People v. Caballes on police drug dogs

[insert mp3 player]

This opinion normalized the use of drug dogs by police departments during traffic stops. The case concluded that police don't need a warrant when they walk a drug dog around a car during a traffic stop.

Issue Do police need a warrant to use a drug dog to sniff a car during a traffic stop? Facts Driver was stopped and ticketed for speeding. During the traffic stop, a canine unit appeared and a dog handler walked the dog around the car. The police dog alerted on the trunk. Police searched the trunk. Driver was arrested for trafficking cannabis. Everything happened in under 10 minutes. He was sentenced to 12 years. Analysis A privacy interest (that society recognizes as reasonable) cannot exist from aromas that come from completely illegal contraband. There is no right to privacy that protects illegal smells. Holding Conviction was affirmed because there was no 4th amendment violation. Related Cases Florida v. Jardines, 133 S.Ct. 1409 (2013) (drug dog brought to front stoop of a house) Florida v. Harris, 133 S.Ct. 1050 (2013) (drug dog reliability is determined by a totality of the circumstances) Rodriquez v. United States, 135 S. Ct. 1609 (2015) (any delay during a traffic stop to give the dog time to arrive is unreasonable)

[insert video]

Key Facts In Illinois v. Caballes

Key facts in the case include ...

Defendant’s car stopped He’s ticketed for speeding During stop canine unit appeared Sniff dog handler walks the dog around car Drug dog alerts on the trunk Car searched Cannabis discovered Convicted for trafficking cannabis Everything happened in under 10 minutes

The case began as a traffic stop for speeding. The car was stopped and driver ticketed for speeding. During the traffic stop, a canine unit appeared and a dog handler walked the dog around the car. The police dog alerted on the trunk. Police searched the trunk. Driver was arrested for trafficking cannabis.

Everything happened in under 10 minutes.

Key Finding 

Key findings from the court:

Police Dog Drug Sniffs are Not Searches Practical Limits Remain Not That Many K-9 Units Police Can Not Cause an Undue Delay

The case worked its way up to the United States Supreme Court, where the Court’s central finding was that:

“That any interest in possessing contraband cannot be deemed legitimate, ‘and thus, governmental conduct that only reveals the possession of contraband’ compromises no legitimate privacy interest.” Quoting United States v. Place, 462 U. S. 696 (1983).

You don’t have a privacy interest in illegal smells.

The Aftermath of Illinois v. Caballes

This case threatened to blow this issue wide open in favor of the police and the use of drug dogs. The central finding that a police dog sniff was not a search meant the use of drug dogs could perhaps be expanded to other areas besides a traffic stop.

The gist of the ruling is that a privacy interest (that society recognizes as reasonable) cannot exist from aromas that come from completely illegal contraband.

“A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.”  Caballes, 543 U.S. 405 (2005).

So if a sniff is not a search police can probably do more of them without running afoul of the 4th amendment.

There Are Still Limitations

Yet, even Caballes recognized limits on the use of police dogs during a traffic stop. Beginning with Caballes itself, we can see that fundamental limits on the use of sniffer dogs during traffic stops were built right into the system.

The Court approvingly noted that the police officers detaining Caballes did not delay the traffic stop just so that the drug dog could finish the sniffing.

This is important.

Had the Court found undue delay, the clear inference is that the case would have come out differently. This is what the court is talking about when it mentions a “prolonged” traffic stop.

The Court wrote that:

“A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.” Caballes, 543 U.S. 405 (2005).

If the police try to slow down the interaction with the driver so that the police dog has time to make it to the scene of a traffic stop, that would be illegal.

Similarly, delaying the writing of the ticket or returning a driver’s license so slowly that the dog has time to finish the sniff is unconstitutional. This may also be referred to as going “outside the scope” of the traffic stop.

This “no delay” or “scope” rule serves as a real and practical limitation on the use of police dogs.

Any Undue Delay is Unconstitutional

The simple fact is that K-9 units are far less numerous than normal patrol vehicles. This specialized team is typically only called out on special assignments. The practicality of having a drug dog at every traffic stop is impossible.

The criminal defense bar, however, has to be vigilant about recognizing stone walling by the police. Any proof of an unconstitutional delay must be brought to the trial court’s attention in a motion to suppress evidence illegally seized.

What To Do About Fatally Flawed Criminal Charges: Alan Downen Interview

Oct 8, 2019 31:59

Description:

People v. Rowell, 229 Ill. 2nd 82 (May 2008). Episode 686 (Duration 31:58)

What's the best way to handle legally insufficient criminal charges? In this episode you get a feel for what it's like working in the criminal law.

What To Do About Legally Insufficient Charging Documents?

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Illinois attorney Alan Downen walks us through the detailed intricacies of just one issue in criminal litigation:

In This Episode...

"There's an old saying about losing your 'tall'. 'Tall' is your favorite marble." -- Alan Downen.

Illinois Attorney Alan Downen

Alan Downen has been a member of the Illinois bar since 1974. He's a solo practitioner concentrating his practice in the areas of criminal, DUI, traffic law.

His office is in McLeansboro, Illinois.

"Can't Miss" Moments:

✓ Here's an example of the kind of fatally flawed or legally insufficient charging document we are talking about: A defendant charged with aggravated domestic battery is charged by information. However, the information is missing the mental state. It doesn't state if defendant acted "knowingly" or "intentionally". It also omits the type of battery the defendant is alleged to have done. It doesn't say if he caused bodily harm or committed insulting or provoking contact. (Go to 3:35)

✓ What's the law now? What does a court do when it's confronted with a legally insufficient complaint? Well it depends. There are two legal standards. If a motion to dismiss is filed pretrial the court will adopt a "strict construction" policy and automatically dismiss the charges without prejudice. That means the state is free to refile. If the motion to dismiss if filed on appeal or after the trial is over then a defendant must show prejudice to get the charges dismissed. (Go to 5:07)

✓ Some defense attorneys say they don't the prosecution a darn thing. There's nothing wrong with lying in the weeds and springing the issue on the state when the time is right. (Go to 6:40)

✓ Why some judges really hate a motion to dismiss, and why they'll accuse you of "sandbagging" and other dastardly legal things.  (Go to 7:16) & (Go to 15:40)

✓ "Like any attorney, if the judge asks you a question and you answer like this, 'Yea - I'm ready to go' when you know that there's a problem. That's kinda troublesome to me as an attorney...But that's kinda the scenario." (Go to 8:42)

✓ The problem with informing the state they have a bad charge. (Go to 9:20)

✓ Why it better to save your motion to dismiss until after the trial has started. Sure, you have to show prejudice but a few cases demonstrate that can be done.  (Go to 9:51)

✓ The thing about the Rowell case is that it really highlights how a defense attorney can go about demonstrating the prejudice that results to an accused with a fatally flawed charging document is filed against them.  This is the "bible" on insufficient charging instruments. (Go to 11:49)

✓ Talk about getting caught in court with your pants down. This might be every prosecutor's worst nightmare.  (Go to 11:20)

✓ The number one lesson for prosecutors about this discussion is this. Some of them will do it. Many more won't and that's exactly why criminal defense can be so fun sometimes.  (Go to 13:55)

✓ Why defense attorneys sometimes win by filing "the wrong" motion against all precedent and contrary to clearly applicable laws, and why judges are quick to grant you these "meritless" motions. (Go to 17:49)

✓ "You have a duty to the court as a lawyer to be honest and forthright. But you also have a duty to your client. Sometimes, as you say, the lines are just real clear." (Go to 22:29)

✓ What an older attorney told Alan about the practice of law. Why sometimes it's best to do nothing even when you know something can be done. (Go to 24:25)

Links & Resources 725 ILCS 5/11-3(a)(3) states that In Illinois "a charge shall be in writing and allege the commission of an offense by: Setting forth the nature and elements of the offense charged;" People v. Rowell, 229 Ill. 2nd 82 (May 2008) (Illinois Supreme Court finds prejudice to the defense from a fatally flawed charging document.) People v. Pendleton, 2017 IL App (3d) 140814-U (March) (trial court erred in denying defendant’s midtrial motion to dismiss because defendant was prejudiced by the insufficient charges) See Also

You may also want to check out...

Episode 419 - People v. Sheley, 2017 IL App (3d) 140659 (October) (concurring opinions discussing "sandbagging" and why it's a disfavored practice) Episode 399 - People v. Frazier, 2107 IL App(5th) 140493 (July) (defense attorney accused of being ineffective for filing the motion to dismiss after the trial had started) Episode 249 - People v. Swift, 2016 IL App (3d) 140604 (October) (because defendant waited until the trial to begin he had to show prejudice to win a dismissal)

Disorderly Conduct Conviction For Making A Threat Must Get Past Free Speech Protection

Sep 24, 2019 18:47

Description:

People v. Khan, 2018 IL App (2d) 160724 (October). Episode 561 (Duration 18:46)

Dude posted a message on facebook that he carries a gun on the college campus and people gonna end up in a body bag if they don't stop messing with him.

Gist

Defendant, Aden D. Khan, was convicted of committing disorderly conduct by making a threat of violence against persons at a school (720 ILCS 5/26-1(a)(3.5)) and sentenced to 30 months’ probation.

Facts

At the time, defendant was 17 years old.

He was suspended for five days for that post. Then he posted the thing about brining a gun to the North Central College campus every day.

Defendant admitted he did the posting and said it was a joke. He got arrested this time.

Disorderly Conduct

As pertinent here, a person commits disorderly conduct when he or she

“knowingly *** [t]ransmits or causes to be transmitted a threat of destruction of a school building or school property, or a threat of violence, death, or bodily harm directed against persons at a school, school function, or school event, whether or not school is in session.”

A Threat

“[a] threat is knowingly transmitted if the defendant transmitted a communication for the purpose of issuing a threat of violence directed at persons at a school and with knowledge that the transmitted communication will be viewed as a threat of violence directed at persons at a school.”

The Indictment

The indictment against defendant charged that, he

“knowingly transmitted a threat of violence directed against persons at a school, being North Central College, in that on www.facebook.com/NCCConfessions.1, defendant posted, ‘I bring a gun to school every day. Someday someone is going to p*** me off and end up in a bag.’ ”

Issue

Defendant argues in part that under Elonis and People v. Relerford, 2017 IL 121094, the statute violates constitutional guarantees of free speech (see U.S. Const., amend. I; Ill. Const. 1970, art. I, § 4) because the State need prove only that a defendant knew that he was transmitting a threat, without having to prove that he actually intended to make the recipient feel threatened.

He contends first that the school-threat law is unconstitutional on its face because it does not require a sufficient mental state. 

Elonis v. United States

In Elonis v. United States, 575 U.S. ___, 135 S. Ct. 2001 (2015), the Supreme Court read a heightened scienter requirement into a federal statute that criminalizes transmitting a threatening statement that a person knows or should know would intimidate a reasonable recipient.

The Facebook post was, titled “The people who i want to kill most.” The list included

“1. my stepmother who has f*** up my life[,] 2. my father for the same reason[,] 3. my brother for tormenting me since birth[,] 4. f*** brandon for talking hella s*** and for being a f***[,] 5. ruben bautista for talking too much s*** and cuz i already promised to kill him[,] 6. whatever a*** told casper that i was planning to shoot up the school[,] 7. whatever a*** told casper that i carried a knife[,] 8. the pope, just for laughs[,] 9. ms. limacher: worst teacher ever. gave me a referral for spitting on the sidewalk[, and] 10. god, if he/she/it exists.”

In Elonis, the defendant was convicted of violating a federal statute that makes it a crime to transmit “any communication containing any threat…to injure the person of another.” Elonis, 575 U.S. at ___, 135 S. Ct. at 2004 (quoting 18 U.S.C. § 875(c) (2006)).

The statute in Elonis containted no mental state so the court read a scienter requirement into it. Given its construction of the statute, the Court saw no need to reach any first-amendment issues.

Jury Instructions

Among the instructions that the court gave the jury were the following.

First, “[a] person commits the offense of disorderly conduct when he knowingly transmits a threat of violence directed against persons at his school whether or not school is in session and he intends that the threat would place those persons in reasonable apprehension of violence.”

Second, “[a] threat is knowingly transmitted if the defendant transmitted a communication for the purpose of issuing a threat of violence directed at persons at a school and with knowledge that the transmitted communication will be viewed as a threat of violence directed at persons at a school.”

Mini-Holding

We recognize that the trial court instructed the jury that the State had to prove beyond a reasonable doubt that defendant did intend to make recipients of his message feel threatened. As we shall explain, the statute under which defendant was charged does not actually impose such a requirement on the State and need not do so in order to pass constitutional scrutiny.

There is a reasonable construction of the statute here that obviates any constitutional infirmity.

But See Also People v. Diomedes

In People v. Diomedes, 2014 IL App (2d) 121080, ¶ 3, the defendant was charged with disorderly conduct for e-mailing a threat of violence against the dean of his former school, Geneva High. The e-mail was sent to an anti-bullying activist who had spoken there some time earlier.

Diomedes implicitly held that the school-threat provision of the disorderly conduct statute is not facially unconstitutional. The provision can and may be applied to the knowing communication of a message if the defendant knows that a reasonable speaker would foresee the message as communicating, to a reasonable recipient, a serious intent to commit harm.

Thus, under Diomedes, the provision includes a mental-state requirement that is consistent with the first amendment.

A True Threat Is Required

The knowledge that the communication is a “true threat” is sufficient.

In Diomedes they defined a true threat this way, as to:

“encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur.”

But See People v. Wood

In People v. Wood, 2017 IL App (1st) 143135 the defendant was convicted of threatening the judge who had presided over his criminal case.

As pertinent here, the statute required the State to prove that

(1) he had knowingly and willfully communicated a threat to a public official and
(2) the threat would place the official in reasonable apprehension of immediate or future bodily harm.

720 ILCS 5/12-9(1)(a)(1)(i).

The appellate court held that he had not been proved guilty beyond a reasonable doubt. The court observed that a conviction required “intentionality on the defendant’s part,” i.e., the making of a true threat.

The statute at issue in Wood differs from the one here in that it explicitly requires that the offending communication be of such a character as to place the recipient in reasonable apprehension of harm.

Nonetheless, in its construction of “threat,” Wood is consistent with our opinion in Diomedes. Both opinions follow the command of our supreme court to construe a statute to uphold its constitutionality if reasonably possible.

What Disorderly Conduct and Threatening A Public Official Have In Common

Thus, as used in each statute, the combination of the terms “knowingly” and “threat” requires the State to prove that

(1) the defendant knowingly made the statement and
(2) the statement was a true threat

We return to the interpretation of the school-threat provision as a whole.

The existence of a true threat is one element. As we held in Diomedes, there is also the requirement that the defendant knowingly transmit a true threat and not merely that he should know that he is doing so.

Thus, if the defendant does not know that he is transmitting a true threat, which is unprotected by the first amendment, he is not guilty. Insofar as this case is governed by Diomedes and Wood, the school-threat provision of the disorderly conduct statute is constitutional.

The provision does not punish protected conduct, because it applies only to communications that are true threats, which are unprotected. It also requires the State to prove that the defendant knew that he was transmitting a true threat.

Elonis Is Not A Problem

Insofar as Elonis applies here, it does not help defendant.

Without directly considering first-amendment issues, the Court implicitly held that, by requiring

(1) the mental state of either intent or knowledge and
(2) the communication of a threat to injure another person, both firstamendment problems and the danger of criminalizing innocent conduct were obviated.

Nothing in Elonis is inconsistent with Diomedes and Wood; indeed, they essentially said the same thing.

The primary difference is that in Elonis the Court read a mental state of intent or knowledge into a statute that prohibited communicating threats, whereas in Diomedes and Wood the courts recognized that the statutes already contained the mental state of knowledge.

Jury Instructions Favored Defendant

Defendant’s case was tried on the theory that the State had to prove intent, a higher standard.

The statute required the State to prove that defendant knowingly communicated a true threat—that he knew that his words were a serious expression of an intent to cause harm. The instructions told the jury that the State also had to prove that he intended that his words cause such apprehension. In other words, the jury instructions rewrote the statute in defendant’s favor.

State Wins Either Way

Fortunately, however, we need not decide whether the issue on appeal is the sufficiency of the proof of the offense as defined by the statute or the sufficiency of the offense as redefined by the jury instructions.

The evidence was sufficient either way.

The jury did not exceed its prerogative in finding that defendant knew that his promise to kill someone would cause a reasonable recipient to fear violence to the community.

Further, the jury reasonably inferred that defendant intended his message to cause at least some people to fear violence, as that was a natural and foreseeable reaction to a person telling them that he went to campus every day armed with a firearm and was bound to use it on slight provocation.

Holding

A jury may infer that a defendant intended the natural and probable consequences of his act. For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.

See Also Episode 425 - People v. Relerford, 2017 IL 121094 (November) (anti-stalking statute remains unconstitutional) Episode 543 - People v. Goodwin, 2018 IL App (1st) 152045 (September) (threatening a public official requires intentionality from defendant - this defendant yelled at a prosecutor) Episode 426 - People v. Wood, 2017 IL App (1st) 143135 (November) (defendant left a crazy, ranting voicemail and really let the judge have it but it didn't constitute threatening a public official)  Episode 089 - People v. Dye, 2015 IL App (4th) 130799 (August) (defendant snaps at his public defender and she lashed back but he didn't threaten a public official)

Expert Testimony On Drug Use Is Not Always Required Sometimes Any Joe Shmoe Can Identify Impairment From Drug Use

Sep 24, 2019 14:15

Description:

People v. Gocmen, 2018 IL 122388 (September). Episode 540 (Duration 14:15)

In obvious cases an officer need not be a drug detection expert to conclude a driver is under the influence of drugs.

Lower Case Opinion

People v. Gocmen, 2017 IL App (3d) 160025 (March). Episode 331 (Duration 7:57)

Officer untrained in the use of narcotics doesn't know enough to make this DUI drug arrest.

The trial court found that the officer lacked probable cause to arrest defendant for DUI/drugs because he was not qualified as an expert on the effects of drug use. Similarly, the appellate court concluded that a person with no specialized training could not properly opine on the “detection of controlled substances,” unlike the detection of alcohol use, the effects of which are “commonly known."  2017 IL App (3d) 160025, ¶ 16.

In reaching this conclusion, the appellate court relied, in part, on People v. Shelton, 303 Ill. App. 3d 915 (1999), and People v. Stout, 106 Ill. 2d 77 (1985). 

Facts

The officer had no specific DUI/drug detection training.

He responded to a motorist’s call reporting an unconscious person in a vehicle, possibly having a seizure. When he arrived, paramedics were already on the scene. Defendant’s Ford Explorer was in the eastbound lane of Route 52, with the passenger side tires on the grass and the driver’s side tires on the road. The vehicle’s transmission was in park, and the motor was running.

The officer observed defendant behind the wheel, with his foot on the brake and his left hand on the steering wheel.

Initially, defendant did not respond to the paramedics’ commands to exit the vehicle. He insisted that he was able to drive and said, incorrectly, that he was northbound on Route 59. Eventually, the paramedics convinced him to leave the vehicle; they placed him in the ambulance and transported him to the hospital.

Officer's Observations

The officer saw a Red Bull can “on the passenger’s side in plain view.”

The can had been cut or torn in half and had burn marks on its interior. On the outside bottom surface of the can, he saw a brown residue. He performed a “NARK swipe” test of the residue, which, he said, showed the presence of “opiates.” He also saw an uncapped one-milliliter syringe on the passenger seat. He described the syringe as having been “used.” He also found a small plastic bag containing a brown granular substance in defendant’s wallet in the center console.

Results of testing of this substance were not available at the time of the hearing.

He did not conduct any field sobriety tests. At the hospital, the officer observed that defendant was “tired and lethargic.”

He also testified that prior to the arrest defendant told him that he was diabetic.

Fresh Track Marks

On cross-examination, the officer testified that he spoke to the paramedics at the scene to ask if they had seen any signs of intoxication. They reported that defendant did not smell of alcohol, but they did observe a “fresh track mark” on his arm where a needle had been used.

Paramedics also reported that defendant was sweating, had pinpoint pupils, had a rapid heart rate of 144 beats per minute, and was drifting in and out of consciousness.

Suspension Recession Hearing

A motorist may request a judicial hearing for rescission of a statutory summary suspension in a civil proceeding, subject to civil procedure rules. 625 ILCS 5/2-118.1(a).

The scope of the hearing is limited to four specific statutory grounds for rescission. One of the issues that may be raised is “whether the officer had reasonable grounds to believe that the person was driving or in actual physical control of a motor vehicle upon a highway while under the influence of alcohol, other drug, or combination of both[.]” Id. § 2-118.1(b)(2).

The motorist has the initial burden of establishing a prima facie case for rescission. If he does so, the burden shifts to the State to come forward with evidence justifying the suspension. Id. at 559-60; see also People v. Orth, 124 Ill. 2d 326, 338, 340 (1988) (motorist has initial burden of making prima facie case for rescission; to make prima facie case, defendant must present evidence to support at least one of the statutory grounds for rescission).

Probable Cause Standard

This court has equated the “reasonable grounds” standard with the probable cause standard applied in the context of search and seizure under the fourth amendment. People v. Wear, 229 Ill. 2d 545, 560, 563 (2008). Under this standard, probable cause exists when the facts known to the officer at the time are sufficient to lead a reasonably cautious person to believe that the arrestee has committed a crime, based on the totality of the circumstances. The standard is the probability of criminal activity, not proof beyond a reasonable doubt or even that it be more likely than not.

Issue In This Case

A more precise formulation of the issue is whether defendant made a prima facie case that the officer lacked reasonable grounds to arrest him for DUI/drugs.

This requires us to answer two questions.

First, must an officer be qualified as an expert to testify regarding his inference from the totality of circumstances that a motorist was driving under the influence of drugs?

And, if not, did the totality of the circumstances in the present case provide reasonable grounds for the arrest of defendant for DUI/drugs?

Opinion Testimony

Under our rules, a witness who is not an expert may testify to his opinions or inferences unless they are “based on scientific, technical, or other specialized knowledge.” Ill. R. Evid. 701 (eff. Jan. 1, 2011). If such knowledge is relied upon, the witness must be qualified as an expert. Ill. R. Evid. 702 (eff. Jan. 1, 2011). ¶ 26

People v. Shelton Overruled

We have reservations about the court’s analysis in Shelton.

In Shelton, an officer testified at a criminal jury trial that the defendant was under the influence of drugs, basing his conclusion on the manner in which he was driving, his conduct during the traffic stop, his failing all of the field sobriety tests given, and his statement to the officer that he was “ ‘on Tylenol 3 with codeine.’ ” Shelton, 303 Ill. App. 3d at 917-18.

Although it found the evidence presented sufficient to support the jury’s verdict beyond a reasonable doubt, the appellate court in that case nevertheless commented that the trial court found “ ‘no evidence *** in the record’ ” of the effects of any drugs (id.), apparently discounting the defendant’s speeding, his odd and agitated behavior during the traffic stop, and his failure of field sobriety tests (id. at 917-18).

While such conduct is not always indicative of drug intoxication, it was consistent with the defendant’s being under the influence in light of his admission that he was “on” a prescription pain killer. We, thus, disagree with the Shelton court that expert testimony was necessary to present to the jury the officer’s assessment that the defendant was under the influence.

To the extent that Shelton requires expert testimony in every case in which an officer’s finding of probable cause is based on his or her inference from the totality of circumstances that the defendant was under the influence of drugs, it is hereby overruled.

Defendant Was Acting Wacky In This Case

During the traffic stop, the defendant’s behavior included telling the officer that he did not have a driver’s license before giving him the license, his suggestion that the officer should go for a ride with him, ­ his statement that he was “ ‘getting ready to run’ ” followed by a statement that he was just kidding, his constant talking, his inability to stand still, his lack of balance, and his threats against the officer and his family.

An officer with many years of experience or with specialized training relevant to the issue may be more credible than a rookie. That said, nothing in our precedent requires expert testimony in every case involving the question of whether a defendant was under the influence of drugs.

Sometimes You Do Need An Expert

In some circumstances, expert testimony regarding the basis for an officer’s finding of probable cause is required.

In People v. McKown, 236 Ill. 2d 278 (2010), the defendant was convicted of DUI/alcohol, based in part on the results of the horizontal gaze nystagmus (HGN) test performed by the arresting officer. The defendant argued on appeal that the HGN test did not meet the Frye standard for admissibility of scientific evidence.

We held that “evidence of HGN field-sobriety testing, when performed according to *** protocol by a properly trained officer, is admissible under the Frye test for the purpose of showing whether the subject has likely consumed alcohol and may be impaired.” Id. at 306.

“A properly trained police officer who performed the HGN field test in accordance with proper procedures may give expert testimony regarding the results of the test.” Id.

Defendant Was Obviously Impaired

In the present case, there is no question that the defendant was impaired.

The probable cause question is whether the relatively inexperienced officer could have reasonably concluded that the defendant’s obvious impairment was due to his use of drugs. Had the officer conducted field sobriety tests, his experience and expertise in conducting such tests and interpreting the results would be at issue. However, no such tests were conducted, and the results of such tests were not the basis for the arrest.

The officer’s conclusion that defendant was under the influence of drugs was not based on scientific, technical, or specialized knowledge that required specialized training or experience. The trial court and the appellate court held categorically that a police officer could not opine as to whether a motorist was under the influence of drugs without being qualified as an expert witness. We reject this conclusion, which is not supported by our precedent.

Totality of the Circumstances

Having rejected the lower court’s insistence on expert testimony in this case, we turn to the question of whether defendant made a prima facie case that the officer lacked probable cause to arrest him for DUI/drugs. This question requires assessment of the totality of the circumstances.

The offense of DUI/drugs requires that the individual “drive or be in actual physical control” of a vehicle while “under the influence of any other drug or combination of drugs to a degree that renders the person incapable of safely driving.” 625 ILCS 5/11-501(a)(4).

He Was Driving

Defendant was behind the wheel of the vehicle, with the motor running, on Route 52, so he was in actual physical control of a motor vehicle on a state highway. Clearly, he was incapable of driving safely, having driven his sport utility vehicle off the road while semiconscious.

But Why Was He Impaired?

The only question is whether he was impaired as the result of a medical emergency, the ingestion of drugs or alcohol, or some combination thereof. First, defendant’s physical condition was consistent with drug use.

Trial Court Ignored The Obvious

The trial court, however, overlooked defendant’s semiconscious state and his disorientation, which a reasonably cautious person might suspect was due to drug or alcohol ingestion. The appellate court also discounted defendant’s physical symptoms because the officer “never observed defendant and only knew these symptoms by speaking to the paramedics.” 2017 IL App (3d) 160025, ¶ 14. However, the officer did observe the defendant at the scene and at the hospital, where they spoke.

Hearsay Is Permissible

Further, hearsay is a permissible basis for a finding of probable cause. People v. Macias, 39 Ill. 2d 208, 213 (1968) (probable cause “may be founded on hearsay evidence” and “is based upon the factual and practical considerations of everyday life upon which reasonable and prudent men, not legal technicians, act”); see also People v. Horine, 2017 IL App (4th) 170128, ¶ 16 (in hearing on defendant’s petition to rescind statutory summary suspension, “the officer’s testimony, even if it includes hearsay, is permissible as it provides the court with the necessary information to rule on the petition. Although such testimony may constitute impermissible hearsay at trial, such testimony is permissible in this setting.”).

Thus, the officer properly relied on his own observations, information provided by the paramedics, and his observations of their interaction with defendant.

While defendant’s physical condition, standing alone, did not demonstrate that his impairment was drug-induced, it was consistent with drug use and supports the officer’s conclusion.

Valid Evidence Of Drug Use

Second, the officer performed a swipe test on the burned Red Bull can and detected the presence of opiates.

The officer performed a swipe test for opiates, which revealed the presence of opiates. Further, defendant did not offer an innocent explanation for the presence of the burn-marked metal can, and none is readily apparent. Even a rookie police officer would be aware of this commonly known device for “cooking” drugs prior to injection, as would any person who watches crime dramas on film or television.

Combined with defendant’s physical and mental state, the positive swipe test for opiates supports probable cause for arrest for DUI/drugs.

And He Had Drugs On Him

Third, other evidence showed the likely, or at least possible, presence of illicit drugs.

Although it was reasonable under the circumstances for the officer to suspect that the substance was an illicit drug, the mere presence of the unidentified substance does not—standing alone—provide reasonable suspicion that the individual in possession of the substance was under the influence.

However, the packaging, the location of the small plastic bag, and the appearance of its contents support the officer’s inference that the driver was drug-impaired, especially considering other circumstances. Indeed, given the presence of this suspicious substance and the absence of insulin and a blood glucose meter in the vehicle, it was a reasonable inference that the defendant had recently injected a substance other than insulin.

He Had Track Marks

Fourth, there was evidence of intravenous drug use by the defendant.

The officer’s testimony, which alluded to a “fresh” track mark, does not clearly distinguish between the sort of “track marks” that are caused by repeated intravenous drug use and a single mark on his arm consistent with a recent intravenous injection, as by using the syringe found in the vehicle.

Both the trial court and the appellate court accepted as fact that the defendant’s arms showed track marks indicative of repeated intravenous injections. Because this evidence was elicited by the defendant, any failure to clarify is his responsibility.

Thus, on the record before us, based on testimony elicited by the defendant, we conclude that he had not only a mark showing a recent intravenous injection but also track marks indicative of repeated intravenous drug use. That such track marks are frequently seen in users of illegal drugs is a matter of common knowledge. Courts frequently accept such testimony without the need for explanation by an expert. See, e.g., People v. House, 232 Ill. App. 3d 309, 314 (1992); People v. $1,002 United States Currency, 213 Ill. App. 3d 899, 901 (1991).

Lower Court Off Base With This (Track Marks)

Both the trial court and the appellate court concluded that these track marks could have been caused by regular injections of insulin for diabetes.

If they were basing their conclusions on what they believed was common knowledge, they were incorrect. Absent common knowledge, they lacked any evidentiary basis for this conclusion. Indeed, the trial court and the appellate court demanded a level of expertise from a police officer that they lacked, yet they opined, inaccurately, on the technique for insulin injection.

Insulin is not injected intravenously and, thus, cannot cause the kind of track marks associated with illegal drug use.

Lower Court Messed This Up As Well (Believed Wacked Out Driver)

Finally, the lower courts gave substantial weight to defendant’s uncorroborated statement to the officer that he was diabetic, presumably to explain the presence of the used syringe.

Defendant’s statement to the officer that he is diabetic was not corroborated by any physical evidence or circumstance known to the officer at the time of the arrest. The officer found evidence of opiates in the vehicle but no insulin or blood glucose meter.

In sum, there was no evidence available to the officer at the time of the arrest that defendant’s impairment may have been due, even in part, to diabetes. We do not expect police officers in the field to make differential diagnoses—only to determine based on the totality of the circumstances whether an impaired driver is under the influence of alcohol or drugs, even if he or she may also have a medical condition.

While We Are At It Lower Court Messed This Up Too (Test For Opiates)

The lower court inferred the officer did not even know what kind of test he was performing. Was it a test for opiates or cocaine?

But the officer was quite clear in his testimony that he performed a test for opiates. That's what he trained on, and he said "opiates" more than once. 

The only person to refer to a test for "cocaine" was the prosecutor on cross examination of the officer. Yet, the officer always answered with the word "opiates."

Holding

In this case, the totality of the circumstances supports the officer’s conclusion that defendant had been driving under the influence of drugs. The semiconscious defendant showed signs of recent intravenous injection, he possessed a used syringe, and the only injectable substance present was an opiate, apparently prepared for injection in the depression on the bottom of the aluminum beverage can.

We find no evidence of any circumstance that tends to cast doubt on the reasonableness of the officer’s inference.

Thus, we conclude that the trial court erred in finding that the burden shifted to the State. The defendant failed to present a prima facie case. Thus, the trial court erred by not granting the State’s motion for a directed finding.

Expert testimony is not required in every case for an officer to testify to his opinion that a motorist was under the influence of drugs based on his inference from the totality of the circumstances. When, as here, the totality of circumstances at the time of the arrest is sufficient to lead a reasonably cautious person to believe that an individual was driving under the influence of drugs, probable cause exists.

Thus, defendant failed to make a prima facie case that the rescission of his license was improper and the burden did not shift to the State. For the foregoing reasons, we reverse the judgment of the appellate court, vacate the rescission order entered by the trial court, and remand to the trial court for further proceedings consistent with this judgment. 

This Photo Causes Defense Counsel To Just About Have An Aneurysm

Sep 20, 2019 17:08

Description:

People v. Middleton, 2018 IL App (1st) 152040 (June). Episode 503 (Duration 17:07)

Here's the photo...

Reversible error for the state to spring a doctored image before the jury on rebuttal argument.

Gist

Defendant was arrested and then charged with murder after allegedly shooting to death his girlfriend’s brother on the sidewalk outside the victim's home.

A jury found defendant guilty of the first degree murder while personally discharging a firearm and sentenced to 53 years in prison.

The Eye Witness

At trial, the victim’s neighbor testified that he was standing on his front porch around when he saw defendant near the sidewalk across the street and several houses east from where he stood.

The witness was 13 years old.

The Shooter

He testified that there was nothing blocking his view and he described defendant as an African-American male, with long dreads half pinned back, who was wearing black jogging pants, and a gray hoodie bearing black writing and the hood was hanging down.

Defendant wore a ski mask that covered only the lower half of his face, which the witness described as going up “right here to the nose.” The witness saw defendant look in his direction as he drew a silver revolver from his hoodie. The witness said he saw defendant as he “rammed up on” the victim, who was standing on the sidewalk.

The Shooting

The 13 year old heard the victim plead with defendant not to shoot but defendant fired at his chest, causing the victim to fall to the ground. Defendant returned to his car but “came back like he wasn’t *** finished with him,” and shot the victim again in his upper body.

The Get-A-Way

The witness then saw defendant get into a white car and drive off.

At this point, the witness moved from his porch to the hallway and looked out the window, noting he could see the whole block from that vantage point. He saw defendant, still wearing the half-ski mask as he drove west past his house. The 13 year old could see defendant’s whole upper body and from his nose “all the way up.”

The State did not present the ski mask at trial or ask the witness to identify any image of defendant wearing a ski mask.

Later ID

Less than three months later, the witness identified defendant as the shooter from a photo array.

One month later, the witness identified defendant from a lineup. 

State's Closing

During closing argument, defense counsel honed in on the key question of whether the 13 year old was actually capable of identifying defendant as the shooter.

During its rebuttal argument, the State asserted that the identification was sound notwithstanding the half-ski mask. The State argued the witness “could see the defendant’s hair, the defendant’s eyes, the defendant’s forehead, defendant’s legs, his chest, his shoulders.”

To emphasize this point, the State presented the jury with two, side-by-each photographs. One was defendant’s mug shot taken the day of his arrest. The other photo showed the same mug shot, but in the nature of a crude “photoshop” edit, it blacked out the bottom portion of his face, in an obvious effort to show what defendant might look like if wearing a “half-ski mask.”

The court did not strike the exhibit or the related argument, and it denied the motion for mistrial.

The Picture

The exhibit showed a black half-circle superimposed over the lower portion of defendant’s face in his arrest mug shot and cannot be described as a graphic representation of a mask. 

Issue

Defendant contends the trial court’s denial of defense counsel’s motion for a mistrial on the basis of introducing this exhibit during rebuttal closing argument without having introduced this exhibit at trial constitutes reversible error.

Defendant's Argument

Defendant specifically argues the altered mug shot was inadmissible in the first place as a demonstrative exhibit because it did not depict the “physical facts as they actually existed at the time of the crime” and the display was at the heart of this identification case.

Defendant argues that even assuming the altered mug shot was admissible, the State failed to properly tender it to the defense prior to trial or lay a foundation for its introduction during trial, instead springing the surprise exhibit on the jury during rebuttal argument.

He argues he was deprived of the opportunity to object to the exhibit, move for its exclusion prior to trial, or prepare a counter demonstrative exhibit depicting defendant wearing full ski mask.

Defendant thus asserts the introduction of the exhibit was prejudicial error which could not be cured with any remedial instruction.

States Argument

The State responds that the State’s conduct was not improper because the altered mug shot accurately reflected the victim’s testimony that defendant wore a half-ski mask during the shooting and, moreover, was used as invited comment, in response to defense counsel’s closing argument.

Demonstrative Evidence

We note that demonstrative evidence has no probative value in itself but rather serves as a visual aid to the jury in comprehending the verbal testimony of a witness. See Cisarik v. Palos Community Hospital, 144 Ill. 2d 339, 341-42 (1991).

The overriding considerations in admitting demonstrative evidence are relevancy and fairness. People v. Burrows, 148 Ill. 2d 196, 252 (1992). Thus, before a demonstrative exhibit like the present one can be introduced, a foundation must be laid, by a knowledgeable witness, that it accurately depicts and portrays what it purports to show.

In addition, the exhibit is only admissible if its probative value is not substantially outweighed by the danger of unfair prejudice.

Court Finding

The court agreed with defendant that it was error for the State to introduce a demonstrative exhibit during its rebuttal argument without having produced the exhibit to the defense and without laying any sort of foundation for its use during the trial.

Analysis

While the State and the court found the exhibit to be consistent with Conner’s testimony as to the half-ski mask, we question the wisdom of that conclusion, as it strains credulity that any ski mask could possibly look like a blacked-out half-circle over an individual’s face.

As set forth above, there is no indication that this witness reviewed any photographic or graphic images of defendant wearing a ski mask, when he identified defendant as the shooter to police. At trial, the State did not introduce any mask into evidence or ask the witness to testify about the altered mug shot, let alone defendant’s unaltered mug shot.

Moreover, we cannot say that the witness would not have testified that the altered mug shot, apparently created some two years after the shooting, reflected how the half-ski mask looked or how defendant looked while wearing the half-ski mask when the crime occurred.

The witness testified that defendant had his hair half pulled back and a hoodie on at the time of the shooting. In the arrest photo, by contrast, defendant’s dreadlocks are down, and he’s wearing a white v-neck T-shirt.

The State thus deprived the defense of questioning the accuracy of the image, moving to exclude it or forcing the State to create the image to the defense’s satisfaction, cross-examining the witness regarding the image, and likewise presenting a counterimage of a full ski mask.

Prejudice

The image was central to this prosecution, which revolved almost entirely around the accuracy of Conner’s identification of defendant as the shooter.

Here, the evidence was closely balanced, as there was no physical evidence linking defendant to the crime, and the 13­ year-old witness was the only eyewitness to the shooting. The testimony, while competent, was impeached by the State’s own police reports indicating the shooter wore a full ski mask with velcro and the defense’s two witnesses.

The closely-balanced nature of the evidence made the error especially harmful.

In addition, the side-by-side presentation to the jury of the altered mug shot, introduced absent any evidentiary foundation, with the exact same properly admitted mug shot immeasurably enhanced the prejudice. The jury was then forced to compare how defendant appeared wearing the supposed ski mask to how he looked without it, not on the day of the crime but the day of his arrest, thus boosting the credibility of the State’s main witness.

No Instruction Could Fix This

Furthermore, the judge did not instruct the jury to disregard the altered photo but rather emphasized it was demonstrative, making this case arguably more prejudicial. Putting the trial court’s instruction aside, it is difficult to conceive of any instruction that would be curative of this rebuttal sucker punch.

Holding

Based on the totality of the circumstances, the State failed to maintain its burden of proving the error was harmless beyond a reasonable doubt, and the court abused its discretion in both allowing the State to utilize the undisclosed demonstrative exhibit in rebuttal and also in denying defense counsel’s motion for a mistrial. 

The gravity of the error resulted in a denial of fundamental fairness.

While we reverse and remand for a new trial on the basis of the improper admission of the altered arrest photo, remand for a new trial.

Offensive Rebuttal

In reaching this conclusion, we find the State’s argument that the use of the exhibit was “invited” comment on rebuttal is palpably offensive, as this specific argument was surely expected given the defense theory of the case, announced in opening statement, as being all “about identification” and that “no one could have actually seen the face of the person who shot [the victim].”

Almost all of the evidence related to the identification issue.

The State Had This Ready

If such an argument was unanticipated, the State would have had no opportunity to spring this doctored exhibit on the court because they would not have been on notice.

Instead, it is clear that the prosecution knew the defense would focus on the eyewitness identification, so they prepared this exhibit ahead of time and displayed it without disclosing it and without ever laying a foundation for it. This patently improper tactic would surely be highly prejudicial to defendant’s right to a fair trial.

There’s a picture!

Consensual Blood Draw Has To Be Clear And Unequivocal Especially If You Have Not Been Ticketed

Sep 18, 2019 17:53

Description:

People v. Hayes, 2018 IL App (5th) 140223 (February). Episode 461 (Duration 17:53)

Defendant runs over and kills a 7 year old boy, however, the resulting blood draw is out because defendant was never under arrest.

Hits & Kills A Little Boy

Defendant was driving home from the store with two of his children.

One of the children attempted to hand the defendant a piece of candy to unwrap for him. The defendant looked back to talk to the child. As he did, his vehicle struck seven-year-old David Kirby.

According to witnesses, the boy rode his bicycle between two parked cars onto the roadway and into the path of the defendant’s van. Defendant could have done anything to avoid the accident.

The accident took place near city hall in Sumner, Illinois. The defendant ran into city hall asking for help. Brent Parrott, a volunteer firefighter who was there that day, administered CPR to David. Several police officers responded to the accident, including Lawrence County Deputy Danny Ash, Illinois State Police Trooper Brooks Thomann, and Bridgeport Police Chief Scott Murray.

No Signs of Intoxication
No Tickets Issued

Trooper Thomann testified that he had both training and experience in recognizing the signs of intoxication or influence of drugs in motorists. He did not notice anything about the defendant’s demeanor or appearance that would lead him to believe that the defendant was intoxicated or under the influence. He did not detect the odor of alcohol or drugs, and he noted that the defendant did not slur his speech.

Asked what his conclusion was as to the cause of the accident, Trooper Thomann replied,

“as far as I could see, the child had just ridden out into the street. And when he came around that vehicle, shot out in the middle of the street, and then Mr. Hayes struck him.”

Trooper Thomann testified that he did not issue any traffic citation to the defendant, explaining,

“There was no violation, as far as Mr. Hayes.”

To The Hospital

Deputy Ash asked Chief Murray to transport the defendant to Lawrence County Memorial Hospital to provide blood and urine samples for drug screening.

Chief Murray did so.

He testified that he did not know whether Deputy Ash had placed the defendant under arrest prior to this time. He testified that he did not personally place the defendant under arrest at any time, and he did not issue the defendant any traffic citations. Chief Murray drove the defendant to the hospital. He further testified that during the 10-minute ride to the hospital, the defendant was not handcuffed. At the hospital, Chief Murray accompanied the defendant to the restroom while he provided a urine sample and remained with him while his blood was drawn.

Eventually Charged

Chief Murray testified that he waited with the defendant until Deputy Ash arrived to transport him from the hospital. Chief Murray handed Deputy Ash the DUI kit completed by hospital staff and then left.

He assumed that Deputy Ash transported the defendant back to the police station, but he left the hospital before they did. The test indicated the presence of drugs, and the defendant was charged with aggravated driving under the influence (DUI) (625 ILCS 5/11-501(d)(1)(F) (West 2010)).

Deputy Ash arrived after the samples were taken and drove the defendant back to the police station.

Implied Consent

Deputy Ash was then asked about his decision to have the defendant transported to the hospital for drug testing. Defense counsel asked him on what basis he made that decision. Deputy Ash responded, “He was involved in a personal injury accident. He was the driver of a vehicle involved in a personal injury accident.” Deputy Ash then testified that “consent is implied whenever you receive a driver’s license to obey all the rules in the [Illinois Vehicle Code].”

Blood & Urine Results

The results of initial tests performed by the hospital’s lab were faxed to Deputy Ash later that afternoon. The blood tests revealed the presence of amphetamine. The urine sample collected on that date, however, indicated the presence of methamphetamine, amphetamine, THC, and naproxen.

After receiving these results, Deputy Ash placed the defendant under arrest for DUI. Deputy Ash also issued two traffic citations to the defendant for failing to exercise due care (id. § 11-1003.1) and failing to reduce speed to avoid an accident (id. § 11-601(a)). The next day defendant was charged with aggravated DUI (id. § 11-501(d)(1)(F)).

Second Blood & Urine Tests

Deputy Ash asked the defendant to submit to a second drug testing again a few days later.

This testing of both the blood and urine samples tested negative for the presence of any drugs.

Deputy Ash testified about the timing of the defendant’s arrest for DUI and the issuance of the two traffic citations. He noted that he believed the statute governing implied consent to drug testing required only the issuance of a traffic citation, rather than an arrest.

He conceded that the defendant was not under arrest at the time he was transported to the hospital for testing, testifying that he arrested the defendant on the charge only after receiving the initial test results from the hospital’s lab.

Defense counsel asked Deputy Ash whether he had issued traffic citations to the defendant prior to directing him to be taken to the hospital for drug testing. In response, Deputy Ash stated that the defendant had not been handed a citation prior to this point. He acknowledged that he did not give the citations to the defendant until two days after the initial tests, but he testified that the citations were written earlier.

Asked to explain why he took the unusual step of ordering a second drug test, Deputy Ash explained that someone from the state’s attorney’s office informed him that the initial test might not be valid because the defendant was not given the warning to motorists and because he was not given any traffic citations prior to the tests.

He testified that the second test was intended to remedy this flaw.

Trial Court Says There Was Probable Cause

The court found that the tests were supported by probable cause.

It reasoned that Deputy Ash’s knowledge that the defendant had a history of drug charges and a prior DUI coupled with the defendant’s admitted lack of attention to the road gave Deputy Ash probable cause to believe the defendant may have been under the influence of drugs.

In explaining its ruling, the court noted that Deputy Ash might reasonably have decided that he did not believe the defendant’s version of events and that Deputy Ash might reasonably have concluded that the presence of drugs may have been a contributing factor to the defendant’s inattentiveness.

54 Months Prison!

The matter proceeded to a stipulated bench trial, at which the court found the defendant guilty.

The defendant subsequently filed a motion for a new trial, which the court denied. The court sentenced the defendant to 54 months in prison.

Issue

The question before us is whether the results of the drug tests should have been excluded because they were obtained in violation of the fourth amendment to the United States Constitution.

The Law

The compulsory testing of a defendant’s blood or other bodily fluids is a search within the meaning of the fourth amendment.

To be reasonable under the fourth amendment, a search must ordinarily be conducted pursuant to a warrant supported by probable cause. There are, however, “a few specifically established and well-delineated exceptions” to the requirement of a warrant. Katz v. United States, 389 U.S. 347, 357 (1967).

Consent Is An Exception

Under one exception, a warrantless search is reasonable—and therefore permissible— if there is voluntary consent to the search. People v. Anthony, 198 Ill. 2d 194, 202 (2001); Kratovil, 351 Ill. App. 3d at 1030. Consent to a search is the waiver of a constitutional right. Kratovil, 351 Ill. App. 3d at 1030. The validity of a warrantless search based on consent thus “depends on the voluntariness of the consent.” Anthony, 198 Ill. 2d at 202.

Whether consent is voluntary is a question of fact that must be determined by evaluating the totality of the circumstances. The State has the burden of proving that the defendant’s consent to the search “was truly voluntary.” Id.

No Probable Cause Here

We also agree that the July 25 test was not supported by probable cause.

Here, the court’s finding of probable cause was based on the court’s belief that it would be reasonable for Deputy Ash to disbelieve the version of events given by the defendant, but Deputy Ash never testified that this was the case.

In addition, the court found that it would be reasonable for Deputy Ash to conclude that the presence of drugs might have contributed to inattention on the part of the defendant. However, this reasoning is bootstrapping, and Deputy Ash never testified that he in fact reached that conclusion. We note that because Deputy Ash did not have probable cause to test the defendant for drugs, we need not consider whether exigent circumstances were present under McNeely.

We conclude that the court erred in finding the tests to be justified on the basis of the exigent circumstances-plus-probable-cause exception.

No Consent Either

We turn our attention to the question of consent.

We first consider whether the testing was supported by the defendant’s actual consent.

Must Be Clearly Given

Acquiescence to apparent authority is not the same thing as consent. Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968); Anthony, 198 Ill. 2d at 202. Consent to a search “must be received, not extracted.” Anthony, 198 Ill. 2d at 202 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973)). A defendant can consent to a search without making an express verbal statement of consent; he can instead convey his consent to officers through nonverbal conduct.

As the Illinois Supreme Court observed in Anthony, dueling inferences can easily arise from a single ambiguous gesture. As we explained earlier, consent to a search is the waiver of a constitutional right. Kratovil, 351 Ill. App. 3d at 1030. As such, a “defendant’s intention to surrender this valuable constitutional right should be unmistakably clear.” Anthony, 198 Ill. 2d at 203.

Must Be Voluntary

Moreover, even unmistakably clear consent is not valid unless it is given voluntarily. People v. Green, 358 Ill. App. 3d 456, 462 (2005). Consent is voluntary when it is “given freely without duress or coercion.” Id. (citing People v. LaPoint, 353 Ill. App. 3d 328, 332 (2004)). In determining whether this standard is met, courts consider “whether, in light of all the circumstances surrounding the officer’s request for consent, a reasonable person in the defendant’s position would have felt free to leave” or to refuse to consent to the search. Id. at 463 (citing LaPoint, 353 Ill. App. 3d at 332).

No Consent

Here, the record contains no evidence at all concerning how the test was presented to the defendant or how the defendant responded. We do not know whether Deputy Ash asked the defendant to take the test or demanded that he do so. We do not know whether Deputy Ash told the defendant that he had no right to refuse the test. We do not know whether the defendant agreed to take the test, objected, or merely acquiesced.

The State asks us to presume based on this record that the defendant deliberately got into Chief Murray’s vehicle because he willingly agreed to submit to a test he felt free to refuse. We cannot find the waiver of an important constitutional right based on these circumstances.

Moreover, even assuming the defendant did anything to unambiguously convey consent, the surrounding circumstances indicate that any such consent was not voluntary. He was transported to the hospital for the test by a uniformed police officer. The officer remained with him at all times, even when he went to the restroom to provide a urine sample. Deputy Ash had the defendant’s vehicle towed from the scene of the accident to be stored until Deputy Ash completed his investigation.

We do not believe that a reasonable person confronted with these circumstances would feel free to leave the hospital or refuse to take the test.

Holding

Considering the totality of these circumstances, we find that the State failed to meet its burden of demonstrating that the defendant voluntarily consented to the tests. 

Doesn't Implied Consent Authorize This Testing?

Section 11- 501.6(a) of the Illinois Vehicle Code provides that any motorist “shall be deemed to have given consent” to drug testing if the motorist is

“arrested as evidenced by the issuance of a Uniform Traffic Ticket for any violation of the Illinois Vehicle Code *** with the exception of equipment violations.”

625 ILCS 5/11-501.6(a) (West 2010).

The statute, by its express terms, applies only if the defendant has been arrested for a violation of the Illinois Vehicle Code when asked to submit to testing. We agree with the defendant that this condition was not met in this case.

There is no dispute in this case that Deputy Ash did not issue any traffic citations to the defendant until two days after he directed the defendant to submit to the test.

Sure, the defendant was seized within the meaning of the fourth amendment when he submitted to the tests, but he was not under arrest for a violation of the Illinois Vehicle Code as required by the implied consent provision.

States' Argument

The state argued that if the defendant was arrested that was sufficient for implied consent to kick it.

In support of its position, the State cites People v. Gamblin, 251 Ill. App. 3d 769 (1993), People v. Brantley, 248 Ill. App. 3d 580 (1993), and People v. Wozniak, 199 Ill. App. 3d 1088 (1990).

Moreover, as we emphasized earlier, the court also held that the admission of test results in a criminal case is subject to fourth amendment constraints. We read these cases to say that if a test is otherwise proper under the fourth amendment, its results are admissible regardless of whether the requirements for application of the implied consent provision are satisfied. In a criminal proceeding the fourth amendment governs beyond implied consent law.

Ludicrous Results

Accepting the State’s arguments in this case would mean that almost any driver involved in an accident involving a fatality or serious injury would be deemed to have consented to drug screening. If an officer restricts the driver’s freedom in any meaningful way, the driver would be deemed to have consented to the test through the implied consent provision—even if his movement is only so restricted because of the officer’s decision to administer the test, as happened in this case.

If the officer does not restrict the driver’s freedom to the extent necessary to constitute a seizure or arrest within the meaning of the fourth amendment, the driver will, in many cases, be deemed to have voluntarily consented.

Given the particularly intrusive nature of the blood testing at issue in this case, such a result would be untenable.

Second Holding

We therefore hold that before a motorist may be found to have impliedly consented to this intrusive search, thereby waiving an important constitutional right, he must be under arrest for a violation of the Illinois Vehicle Code.

We note that our holding does not limit the admissibility of test results in cases where the defendant has actually given voluntary consent or in cases where some other recognized exception to the requirement of a warrant applies.

We merely hold that the State cannot rely on the implied consent provision unless the defendant has been arrested for a nonequipment violation of the Illinois Vehicle Code.

The fact that the defendant’s movement is restricted to the degree necessary to be seized within the meaning of the fourth amendment coupled with a decision to issue tickets one to two days after the fact, as occurred in this case, is not sufficient to meet this standard.

To find that standard met in this case would allow the State to do an end-run around the requirements of the fourth amendment. We conclude that the drug test at issue in this case did not fall within any recognized exception to the requirement of a warrant. As such, it was an unreasonable search within the meaning of the fourth amendment, and the results should have been excluded.

Reversed Outright

Because there is insufficient evidence to convict the defendant without evidence of the test results, we will reverse his conviction outright.

See Also

Episode 439 - People v. Sykes, 2017 IL App (1st) 150023 (December). (no police action when police hold a lady down in the hospital)

Episode 423 – People v. Brooks, 2017 IL 121413 (November), (our supreme court recently held that mere police participation, absent the private actors acting as an agent or instrumentality of the State, is not state action)

Episode 319 How Can Police Enforce A Blood Warrant | A Discussion With Anthony Cameron 

Episode 438 – People v. Eubanks, 2017 IL App (1st) 142837 (December) (really bad defendant held down in the hospital)

Episode 186 – Birchfield v. North Dakota, 136 S. Ct. 2160, 2174 (2016)

“No Talking” Command Was An Order Not A Request

Sep 18, 2019 07:00

Description:

People v. Lee, 2018 IL App (3d) 170209 (February). Episode 458 (Duration 6:59)

25 minute wait for the sniff dog was too long.

Drug Charges

The State charged defendants, Wan Fung Lee and Jacky Yao Chuan Xiong, with unlawful cannabis trafficking (720 ILCS 550/5.1(a) (West 2014)), unlawful possession with intent to deliver cannabis (id. § 5(g)), and unlawful possession of cannabis (id. § 4(g)).

The Stop

Sergeant Clint Thulen testified that he pulled over defendants’ vehicle on March 9, 2015, for failure to signal a lane change.

A video recording of the traffic stop was introduced into evidence. Defendants’ exhibit No. 4 is a three-page timeline of the traffic stop. The first page chronicles the stop up until the point where Thulen returns Lee’s license. The second page details Thulen’s requests for consent and the period of waiting for the canine to arrive. The third page covers the period of the stop after the canine arrives.

Defendants agree that the traffic stop in the present case was lawful—based upon Thulen’s probable cause to believe a traffic violation had occurred—up until the point that Thulen issued Lee a warning ticket.

The State agrees that, at that point, Thulen had neither probable cause nor a reasonable, articulable suspicion upon which defendants could be detained.

The Video

The video begins as Thulen commences the traffic stop. Thulen approaches the passenger side of the vehicle and leans into the window. Approximately 1½ minutes later, the driver of the vehicle, later identified as defendant Lee, exits the vehicle and walks to the front of Thulen’s squad car. Thulen sits in the driver’s seat of the squad car and soon thereafter Lee sits in the passenger seat. The officers said they couldn’t smell the weed but they were sure the bags in the car contained weed.

They ask about it when defendant is in the squad car. He denies and the officer tells defendant to shut the door so he doesn’t run.

Thulen radios in defendants’ information. At the seven minute mark of the video recording, a second officer, Sergeant Brian Strouss arrives at the scene. Thulen asks Lee and Xiong, “You guys have got nothing to hide, right? Would you mind waiting for a dog to come and walk around the outside of the car?” Thulen tells them “it won’t take too long.” At the 14:45 minute mark of the video, Thulen radios in requesting a canine. He then tells defendants, “Hey, you’re free to go. You can do anything you want. You know, you’re free to go so I sure appreciate you waiting around for the dog though.” For approximately 25 minutes, defendants and the officers make small talk outside of the vehicle. In that period, Thulen requests that Xiong roll up the windows of the vehicle. The dog alerted. The trial judge granted the motion to suppress and the trial court sustained it.

Issue

Thus, the issue turns upon whether the encounter from that point forward was consensual.

Mendendhall Factors

We need not venture outside the four factors enumerated in Mendenhall to find the most compelling in the present case.

Thulen yelled, “Hey, no talking” at defendants, a plain example of “the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” 

Not only was Thulen’s statement made in a loud and controlling voice, but the substance of that statement was in the nature of an order, dictating what defendants may or may not do.

Moreover, the order was accompanied by Thulen gesturing for Lee to come to him and, later, a direction that Lee look at Thulen. In a short span of time, toward the very beginning of the purportedly consensual portion of the stop, Thulen had thus made a number of demands of Lee. A reasonable person would not believe that he was allowed to leave the scene completely if he was not even allowed to speak to his friend.

Officer Safety

In its initial brief, the State ignores Thulen’s command that defendants not speak, only describing Thulen’s tone and language as “respectful, polite, and deferential to [defendants’] wishes as to whether they would remain on the scene.” In its reply brief, the State simply asserts that Thulen’s command “was merely for officer safety.”

To be sure, this court recognizes an officer’s need to protect himself or herself by preventing individuals from communicating in a language that the officer does not understand.

However, Thulen did not calmly ask defendants to speak in English. Instead, he loudly ordered them to stop speaking completely.

Thulen himself testified that he erred in delivering the command that he did, admitting that he should have asked defendants to speak in English. Again, a reasonable person who has been forcefully commanded by an officer to stop speaking would not feel free to enter his vehicle and drive off.

 

Little Reminder Why Gun Bans Aren’t So Easy

Sep 18, 2019 10:04

Description:

People v. Chairez, 2018 IL 121417 (February). Episode 457 (Duration 10:04)

Another UUW provision is struck down.

Gist

On April 24, 2013, pursuant to a negotiated plea agreement, defendant Julio Chairez pled guilty in the circuit court of Kane County to possessing a firearm within 1000 feet of Virgil Gilman Trail, a park in Aurora, Illinois, in exchange for the State’s agreement to file a nolle prosequi for several other charges and the recommendation that defendant receive a sentence of two years’ probation.

Issue

At issue in this appeal is the constitutionality of section 24-1(a)(4), (c)(1.5) of the unlawful use of a weapon (UUW) statute (720 ILCS 5/24-1(a)(4), (c)(1.5) (West 2012)), which, in pertinent part, prohibits an individual from carrying or possessing a firearm within 1000 feet of a public park.

The Statute

At the time of the proceedings herein, the UUW statute provided:

“§ 24-1. Unlawful Use of Weapons. (a) A person commits the offense of unlawful use of weapons when he knowingly: * * * (4) Carries or possesses in any vehicle or concealed on or about his person except when on his land or in his own abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person’s permission, any pistol, revolver, stun gun or taser or other firearm, except that this subsection (a)(4) does not apply to or affect transportation of weapons that meet one of the following conditions:

(i) are broken down in a non-functioning state; or
(ii) are not immediately accessible; or
(iii) are unloaded and enclosed in a case, firearm carrying box, shipping box, or other container by a person who has been issued a currently valid Firearm Owner’s Identification Card[.] *** * * *

(c) Violations in specific places. *** (1.5) A person who violates subsection 24-1(a)(4) *** on any public way within 1,000 feet of the real property comprising any school, public park, courthouse, public transportation facility, or residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development commits a Class 3 felony.”

720 ILCS 5/24-1(a)(4), (c)(1.5) (West 2012).

The Second Amendment

The second amendment to the United States Constitution provides that

“[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

U.S. Const., amend. II.

Through the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV), this right is “fully applicable to the States.” McDonald v. City of Chicago, 561 U.S. 742, 750 (2010).

The Case Law

In District of Columbia v. Heller, 554 U.S. 570, 592 (2008), the United States Supreme Court determined that there is a guaranteed “individual right to possess and carry weapons in case of confrontation,” based on the second amendment. However, Heller instructs that even though the second amendment guarantees an individual right to bear arms, that right is “not unlimited.”

Adopting the reasoning in Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012), this court in People v. Aguilar, 2013 IL 112116, ¶ 21, recognized that “the second amendment protects the right to possess and use a firearm for self-defense outside the home.”

As such, we held the offense set forth in section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute, which prohibited carrying on one’s person or in any vehicle, outside the home, an uncased, loaded, and immediately accessible firearm, to be unconstitutional on its face.

Two years later, in Mosley, 2015 IL 115872, ¶ 25, we extended Aguilar’s finding of facial unconstitutionality to another portion of the AUUW statute, section 24-1.6(a)(2), (a)(3)(A) (720 ILCS 5/24-1.6(a)(2), (a)(3)(A) (West 2012)), which prohibited carrying an uncased, loaded, and immediately accessible firearm on a public way.

This court has already said that section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute is facially unconstitutional “without limitation” (id. ¶ 29) because “[t]he offense, as enacted by the legislature, does not include as an element of the offense the fact that the offender has a prior felony conviction” (id. ¶ 25). As such, we held there is only one offense of AUUW based on section 24-1.6(a)(1), (a)(3)(A), and a prior felony conviction that enhances the felony classification at sentencing is not an element of that offense but, rather, a sentencing factor which enhances the penalty from a Class 4 felony to a Class 2 felony. People v. Burns, 2015 IL 117387.

Collectively, this court has held that the second amendment protects an individual’s right to carry a ready-to-use gun outside the home, subject to certain regulations.

What About Bans Within 1000 Feet Of A Park?

The question, then, is whether the offense of possessing a firearm within 1000 feet of a public park, as set forth under section 24-1(a)(4), (c)(1.5) of the UUW statute, impermissibly encroaches on conduct at the core of the second amendment right to armed self-defense and whose right it affects.

There Is A Constitutional Test

In sum, what is taught from these cases is that step two of our second amendment analysis begins with a balance of considerations where the quantity and persuasiveness of the State’s evidence required to justify the challenged restrictions varies depending on how much it affects the core second amendment right to armed self-defense and whose right it affects.

The rigor of this means-end analysis “depends on ‘how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on the right.’” The closer in proximity the restricted activity is to the core of the second amendment right and the more people affected by the restriction, the more rigorous the means-end review.

If the State cannot proffer evidence establishing both the law’s strong public-interest justification and its close fit to this end, the law must be held unconstitutional.

Analysis

Applying this framework to the law at issue here requires an initial determination of where on the sliding scale of intermediate scrutiny the law should be analyzed. To answer this question, our first task is to determine the breadth of the law and the severity of its burden on the second amendment.

We find that the 1000-foot firearm restriction at issue more closely resembles the restrictions at issue in Ezell I, Ezell II, Moore, and Aguilar. In fact, the 1000-foot firearm restriction not only directly implicates the core right to self-defense, it does so more severely than the regulations at issue in the Ezell cases.

That is so because section 24-1(a)(4), (c)(1.5) of the UUW statute prohibits the carriage of weapons in public for self-defense, thereby reaching the core of the second amendment.

While in the Ezell cases, the laws only affected a right (maintain firearm proficiency) that was merely a “corollary” to the right to possess firearms for self-defense. Although the firearm restriction at issue is not a comprehensive statewide ban, like in Moore or Aguilar, the restriction is not minimal. The firearm restriction not only covers a vast number of public areas across the state, it encompasses areas this court held in Mosley to be areas where an individual enjoys second amendment protection, i.e., public ways. See Mosley, 2015 IL 115872, ¶ 25.

Big Burden

As to the second variable on the sliding scale, the severity of the law’s burden on the right, the law at issue affects the gun rights of the entire law-abiding population of Illinois like the laws in Moore, Ezell, Aguilar, and Mosley. As in those cases, the law functions as a categorical prohibition without providing an exception for law-abiding individuals. It is therefore a severe burden on the recognized second amendment right of self-defense.

All of this suggests that elevated intermediate scrutiny should apply.

Government's Burden

And under this more rigorous review, the government bears the burden of showing a very strong public-interest justification and a close fit between the government’s means and its end, as well as proving that the “public’s interests are strong enough to justify so substantial an encumbrance on individual Second Amendment rights.”

That means the State must establish a close fit between the 1000-foot firearm restriction around a public park and the actual public interests it serves.

No Legitimate Public Interest

Turning to the State’s proffered public-interest justifications, the State claims a compelling interest in public safety is served by reducing firearm possession within 1000 feet of a public park. In support, the State relies heavily on an analysis of school violence and the 1000-foot firearm ban surrounding schools.

For instance, the State references the federal Gun Free School Zones Act of 1990, which restricts firearm possession within 1000 feet of school grounds. 18 U.S.C. § 921(a)(25) (2012). The State claims that it was in the atmosphere behind the passage of the Gun Free School Zones Act—a rise in school violence in the late 1980s—that the General Assembly passed the law extending the existing restriction on drugs within 1000 feet of schools, public parks, and public housing to also ban firearms from these locations.

The State attempts to relate the reasoning behind the gun-free school zones to public parks, stating that because there is a substantial and distinctive interest in protecting those in parks due to a large number of children who frequent these places, prohibiting firearms near public parks is substantially related to the important government interest in protecting these children and others.

According to the State, the goal of the 1000-foot firearm restriction around public parks is to extend the distance where a shooter might fire a weapon.

Specific Evidence Required

We certainly accept the general proposition that preventing crime and protecting children are important public concerns. After all, “[g]uns are inherently dangerous instrumentalities.” The State, however, cannot simply invoke these interests in a general manner and expect to satisfy its burden.

There must be sufficient evidence to support the State’s rationale.

In sum, based on the record, the State provides no evidentiary support for its claims that prohibiting firearms within 1000 feet of a public park would reduce the risks it identifies. Without specific data or other meaningful evidence, we see no direct correlation between the information the State provides and its assertion that a 1000-foot firearm ban around a public park protects children, as well as other vulnerable persons, from firearm violence.

The State merely speculates that the proximity of firearms within 1000 feet threatens the health and safety of those in the public park. The lack of a valid explanation for how the law actually achieves its goal of protecting children and vulnerable populations from gun violence amounts to a failure by the State to justify the restriction on gun possession within 1000 feet of a public park.

It's Basically A Complete Ban

There is another flaw in the State’s position.

The State claims that the restriction is not overly burdensome because there are areas throughout Illinois where one could exercise their core second amendment right. Indeed an individual can preserve an undiminished right of self-defense by not entering one of the restricted areas.

But the State conceded at oral argument that the 1000-foot firearm restriction zone around a public park would effectively prohibit the possession of a firearm for self-defense within a vast majority of the acreage in the city of Chicago because there are more than 600 parks in the city.

Aside from the sheer number of locations and public areas that would qualify under the law, not only in the City of Chicago, but throughout Illinois, the most troubling aspect is the lack of any notification where the 1000-foot restriction zone starts and where it would end.

Innocent behavior could swiftly be transformed into culpable conduct if an individual unknowingly crosses into a firearm restriction zone. The result could create a chilling effect on the second amendment when an otherwise law-abiding individual may inadvertently violate the 1000-foot firearm-restricted zones by just turning a street corner.

Likewise, in response to a question at oral argument, the State conceded that an individual who lives within 1000 feet of a public park would violate section 24-1(a)(4), (c)(1.5) every time that individual possessed a firearm for self-defense and walked to his or her vehicle parked on a public street. To remain in compliance with the law, the State said that the individual would need to disassemble his or her firearm and place it in a case before entering the restricted zone. This requirement, however, renders the ability to defend oneself inoperable and is in direct contradiction to this court’s decisions in Aguilar, which recognized that the right to carry firearms for self-defense may be especially important when traveling outside of the home, and perhaps even more important than while at home.

Moreover, the State’s proposition conflicts with Heller’s decision that struck down the requirement that firearms be kept “unloaded and disassembled or bound by a trigger lock” because it “makes it impossible for citizens to use them for the core lawful purpose of self-defense.” (Internal quotation marks omitted.) Heller, 554 U.S. at 630. Thus, the State’s suggestion runs counter to established law.

Holding

For these reasons, the State has not established the required means-end fit between the challenged law and its justifications. Accordingly, we hold that possessing a firearm within 1000 feet of a public park in violation of section 24-1(a)(4), (c)(1.5) of the UUW statute is facially unconstitutional.

Removing this single location offense does not undermine the completeness of the remaining locations in section 24-1(c)(1.5). The remaining specific locations are capable of being executed without the offense of possessing a firearm within 1000 feet of a public park.

We, therefore, find the unconstitutional portion of the statute at issue severable from the remaining portions of the statute. For the reasons set forth above, we affirm the circuit court’s judgment vacating defendant’s Class 3 felony conviction of UUW in violation of section 24-1(a)(4), (c)(1.5) within 1000 feet of a public park, which we find to be unconstitutional. We vacate the circuit court’s judgment to the extent that it declared portions of section 24-1(a)(4), (c)(1.5) of the UUW statute not at issue in this case unconstitutional.

See Also

To help get a handle on Illinois Gun Laws see also:

People v. Burns (Aguilar Did Facially Strike Down Specific Sections of AUUW – No Person (Not Even Felons) Can Be Convicted) People v. Whalum, 2014 IL App (1st) 110959 (September 2014) People v. Mosley, 2015 IL 115872 (February 2015) The Unlawful Use of a Weapon by a Felon Notice Requirement Under 725 ILCS 5/111-3(c) Doe Not Exist Illinois Gun Laws Are a Big Mess AUUW Gun Conviction Vacated in the 4th District under Aguilar Even When Defendant Was a Felon! Aggravated Unlawful Use of a Weapon – 720 ILCS 5/24-1.6 Revisited by Illinois Supreme Court People v. Williams, 2015 IL 117470 (November 2015) (Proportionate Penalties Challenge To AUUW No FOID Section Fails)

Retail Theft Statute Countermands This Class Of Burglaries

Sep 18, 2019 11:30

Description:

People v. Johnson, 2018 IL App (3d) 150352 (January). Episode 456 (Duration 11:30)

Stealing from a Walmart was not a burglary.

Sad Facts

Defendant is caught takign $76.91 in girl’s clothing from a Walmart.

He was pro se and got a hung jury the first time. In the second trial was aquitted of retail therfet but convicted of burglary.

Although burglary is a Class 2 felony with a three-to-seven-year sentencing range (720 ILCS 5/19-1(b) (West 2014); 730 ILCS 5/5-4.5-35(a) (West 2014)), the court sentenced defendant as a Class X offender because his criminal record contained prior theft and burglary felony convictions within 20 years. 730 ILCS 5/5-4.5-95(b) (West 2014).

The court sentenced defendant to eight years in prison.

Burglary

The burglary statute identifies two ways in which a person commits the offense:

“A person commits burglary when without authority he or she knowingly enters or without authority remains within a building, *** or any part thereof, with intent to commit therein a felony or theft.” 720 ILCS 5/19-1(a) (West 2014).

To commit either manifestation of burglary, the offender must lack authority to be present within the building.

Issue

The crux of his argument is that he could not enter Wal-Mart “without authority” because he entered and exited the store during business hours and remained in designated public areas.

See Also

Episode 155 - People v. Bradford, 2016 IL 118674 (March).

Defendant relies on Bradford, where our supreme court held that an offender commits “burglary by remaining” only if “he exceeds his physical authority to be on the premises.” Id. ¶ 31.

Defendant claims Bradford applies to either manifestation of burglary. The State argues that defendant never entered the building lawfully; therefore, Bradford does not require reversal.

More On Bradford

The supreme court recently held that the limited authority doctrine does not apply in “burglary by remaining” shoplifting cases. Bradford, 2016 IL 118674. In Bradford, the defendant walked into a Wal-Mart with another man and immediately stole two DVDs from a display near the cash registers. He took these DVDs to the customer service desk and “exchanged” them for a Wal-Mart gift card.

Next, he walked to the men’s clothing department where he selected a hat, removed the price tag, and wore it.

He then retrieved a pair of shoes from the shoe department and placed them in a Wal-Mart bag that he concealed in his pocket— presumably to represent that he already purchased the shoes. He wore the hat and carried the shoes to the cash registers, where he rejoined the other man.

He paid for the man’s merchandise with the gift card he received in exchange for the DVDs and exited the store without paying for the hat or shoes.

The appellate court, citing Weaver, applied the limited authority doctrine and held that the defendant remained in the store without authority once he formed the intent to shoplift. People v. Bradford, 2014 IL App (4th) 130288, ¶¶ 31, 33-34.

Limited Authority Doctrine

The State relies on the “limited-authority doctrine,” which states that “one’s otherwise valid authority to be in certain premises is vitiated when that individual acts in a manner inconsistent with the authority originally granted.” People v. Wilson, 155 Ill. 2d 374, 378 (1993).

According to the State, shoplifters who form the intent to steal before entering a store lack authority to enter.  They commit burglary the instant they cross the building’s threshold.

Bradford Was Charged Differently

The State claims that this case is distinguishable from Bradford because the State charged defendant with “burglary by entering,” whereas Bradford addressed “burglary by remaining.”

Statutory Construction

The limited authority doctrine, relied upon by the State, took shape before Illinois passed its retail theft statute in 1975 (720 ILCS 5/16-25 (West 2014)). 

In Bradford, the supreme court reversed the appellate court’s decision. The court emphasized that the legislature enacted the retail theft statute in 1975, 14 years after enacting the burglary statute and 7 years after Weaver. Based on this timeline, “it strains logic to presume that the legislature intended most incidents of retail theft to be prosecuted as burglaries.” Bradford, 2016 IL 118674, ¶ 28.

The court reasoned that charging every shoplifter with burglary by remaining would “effectively negat[e] the retail theft statute.” Id. ¶ 27. Because stores are often “building[s]” or trailers (720 ILCS 5/19-1(a) (West 2014)), virtually every retail theft would also constitute a burglary if one’s “authority” hinged on whether he or she intended to shoplift merchandise.

Bradford Changes The Law

To be fair, a long line of cases supports the State’s position that one who intends to commit retail theft lacks authority to enter a store. This limited authority doctrine would allow a prosecutor to charge and convict a first time offender who enters a store with intent to steal a candy bar with burglary rather than with the misdemeanor charge of retail theft.

As explained below, we feel that Bradford changes the law and effectively overrules the law upon which the State relies.

Analysis

Courts should not interpret criminal statutes to provide prosecutors unbridled discretion to arbitrarily charge some shoplifters with Class 2 felony burglary and others with Class A misdemeanor retail theft under similar circumstances.

Another reason not to “give improbable breadth” to our burglary statute in retail theft cases is that the retail theft statute occupies the field of shoplifting crimes. Particularly relevant to this case, the statute covers situations where shoplifters knowingly transfer merchandise “to any other container with the intention of depriving the merchant of the full retail value.” 720 ILCS 5/16-25(a)(3) (West 2014). It also covers situations where shoplifters knowingly use a “theft detection shielding device,” which is “any laminated or coated bag or device designed and intended to shield merchandise from detection by an electronic or magnetic theft alarm sensor.” Id. § 16-25(a)(7), (e).

The Statute Contemplates These Facts

Obviously, persons who enter a store with any of these items formed the intent to commit theft before entering.

The statute contemplates all manifestations of retail theft, regardless of whether shoplifters form the requisite intent before or after entering the store. 

The state's attempt to distinguish Bradford does not logically follow the supreme court’s rationale. Under either manifestation of burglary, the offender must lack “authority.” If forming the intent to shoplift does not revoke one’s authority to remain in a store, then it cannot logically revoke one’s authority to enter either.

We suspect that it is a miniscule percentage of shoplifters who form the intent to steal only after entering a store.

Burglary Is Different Than Retail Theft

The State’s position also ignores the purpose for criminalizing burglary. The “crime of burglary reflects a considered judgment that especially severe sanctions are appropriate for criminal invasion of premises under circumstances likely to terrorize occupants.” Model Penal Code § 221.1 (Explanatory Note). In other words, burglary aims to punish circumstances where a trespass and unwelcomed criminal intent combine to harm the victim more than either individual crime; the whole is greater than the sum of its parts. Applying the limited authority doctrine to shoplifting cases disregards the purpose of criminalizing burglary, negates the retail theft statute, and conflicts with Bradford.

Holding

We hold that Bradford’s physical authority test applies to all retail theft cases, regardless of when the defendant forms the intent to shoplift. In this case, the State alleged that defendant stole $76.91 worth of merchandise from Wal-Mart. Defendant entered the store during its business hours, remained in public areas while inside, and left the store before it closed.

He never exceeded his physical authority. We reverse his burglary conviction.

Is Attempt Armed Robbery A Per Se Forcible Felony? Hmmm?

Sep 14, 2019 08:07

Description:

People v. Brown, 2017 IL App (1st) 150146 (May). Episode 377 (Duration 8:07)

Attempt armed robbery is a per se forcible felony.

Facts

Following a bench trial, defendant Dewayne Brown was convicted of the offense of armed habitual criminal. He was sentenced to 8 years’ imprisonment.

Officers are drawn to a parking lot when a car alarm goes off.

In the lot they find defendant and his girlfriend smoking a blunt in their own car. Defendant gets out of his car, but is immediately handcuffed. Inside the car there was a purse. The purse was open, and the handle of a handgun was “sticking out” in “plain view.”

The officer testified that he recovered the weapon, which turned out to be a Highpoint “black 45-caliber semiautomatic handgun.” The gun was loaded and “contained one round in the chamber and seven in the magazine.”

He Fesses Up

Defendant immediately “stated that the weapon was his” and explained that he had put the handgun into Fain’s purse.

On the way to the station, defendant stated that he wanted to apologize to Fain for placing his gun in her purse. Later at the police station defendant explained where and how he purchased the weapon. Defendant had no FOID card.

Criminal History

The State also entered into evidence certified copies of defendant’s prior convictions, including

a 1998 conviction for attempted armed robbery,
a 2006 robbery conviction, and
a 2012 possession of a controlled substance conviction.

Defendant first challenges the sufficiency of the evidence.

Issue

Specifically, he argues that the State failed to prove beyond a reasonable doubt that his prior conviction for attempted armed robbery was a forcible felony sufficient to satisfy the elements of the offense of armed habitual criminal.

Accordingly, because the State simply presented certified copies of his convictions and did not detail the circumstances surrounding his attempted armed robbery conviction, defendant argues that there was insufficient evidence that his crime involved the use or threat of force against another individual.

He submits that attempted armed robbery is not inherently a forcible felony and that the State failed to present any specific details pertaining to his attempted armed robbery conviction to establish that the offense “involved any kind of use or threat of physical force or violence,” such that it could be categorized as a forcible felony.

Armed Habitual Criminal

Section 24-1.7 of the Illinois Criminal Code of 2012 (Criminal Code or Code) sets forth the offense of armed habitual criminal and provides, in pertinent part, as follows:

“(a) A person commits the offense of being an armed habitual criminal if he or she receives, sells, possesses, or transfers any firearm after having been convicted a total of 2 or more times of any combination of the following offenses: (1) A forcible felony as defined in Section 2-8 of this Code[.]”

720 ILCS 5/24-1.7(a)(1).

Forcible Felony

“‘Forcible felony’ means treason, first degree murder, second degree murder, predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary, residential burglary, aggravated arson, arson, aggravated kidnaping, kidnaping, aggravated battery resulting in great bodily harm or permanent disability or disfigurement and any other felony which involves the use or threat of physical force or violence against any individual.”  

720 ILCS 5/2-8.

The "Residual Clause"

Where, as here, an offense is not one of the specifically delineated offenses set forth in section 2-8 of the Criminal Code, it will only be deemed to constitute a forcible felony if it falls within section 2-8’s “residual clause” in that it involved “the use or threat of physical force or violence against any individual.”

Importantly, the Illinois statute that defines forcible felony does not require the actual infliction of physical injury; instead, the statute requires only the ‘use or threat of physical force or violence.

Accordingly, courts construing this provision have emphasized that it is the contemplation that force or violence against an individual might be involved combined with the implied willingness to use force or violence against an individual that makes a felony a forcible felony under the residual category of section 2-8.

Armed Robbery

Therefore, here the relevant inquiry is whether the underlying predicate offense is an inherently forcible felony to satisfy the elements of the armed habitual criminal statute.

Pursuant to Illinois law, a person commits the offense of armed robbery when he or she commits the offense of robbery, which is an enumerated forcible felony that entails knowingly taking property from a person or the presence of another by the use of force or by threatening the imminent use of force, and:

“(1) he or she carries on or about his or her person or is otherwise armed with a dangerous weapon other than a firearm; or
(2) he or she carries on or about his or her person or is otherwise armed with a firearm; or
(3) he or she, during the commission of the offense, personally discharges a firearm; or
(4) he or she, during the commission of the offense, personally discharges a firearm that proximately causes great bodily harm, permanent disability, permanent disfigurement, or death to another person.”

720 ILCS 5/18-2(a).

Attempt Armed Robbery

A person commits the offense of attempted armed robbery, in turn, when, with the intent to commit armed robbery, he or she takes a substantial step toward the commission of that offense. 720 ILCS 5/8-4(a).

Taking into account these statutory definitions, the offense of attempted armed robbery requires evidence that a defendant possessed the specific intent to knowingly take property from another by threat or use of force while armed with a firearm or other dangerous weapon and took a substantial step to accomplish that objective. 720 ILCS 5/8-4(a), 18-2(a).

Holding

Thus, by virtue of his conviction of that offense, defendant necessarily demonstrated the requisite contemplation or willingness to use force by virtue of the fact that he was armed with a firearm or other dangerous weapon and took a substantial step to deprive another person of property by threat or use of force.

The reviewing court then held that the offense of attempted armed robbery qualifies as an inherently forcible felony for purposes of the armed habitual criminal statute.

See Also

Episode 180 - Some Attempts of Forcible Felonies Are Not Forcible Felonies

Episode 126 - Aggravated Battery is Not Necessarily a Forcible Felony

Ron Hain Kane County Sheriff Has Started A Series Of New Jail Programs Designed To Leave Inmates Better Off Than When They Came In

Aug 22, 2019 34:37

Description:

Kane County Sheriff Ron Hain has instituted a series of new inmate programs. Episode 667 (Duration 34:37)

The Kane County Jail's new Diversion Program is making every effort to leave detainees better off than when they came into the jail.

Kane County Sheriff Ron Hain Diversion Program

In This Episode...

"'Go and get that bad guy' is actually a bad way to look at our community." -- Sheriff Ron Hain

Sheriff Ron Hain

Ron Hain was elected Sheriff of Kane County in 2018.

As a deputy his number one focus was on gang and drug enforcement. Now, as Sheriff of Kane County, he's tasked with managing the county jail system and must confront a complicated jail population.

How To Contact The Sheriff of Kane County

Sheriff Ron Hain
Kane County Sheriff's Office
37W755 Route 38
St.Charles, Illinois 60175

KaneSheriff.com

"Can't Miss" Moments:

✓ How "go and get that bad guy" mentality turned into something else. It was drug and gang arrests until the work transformed into a different meaning for Sheriff Hain.  (Go to 2:50)

✓ Doing this over and over helped the Sheriff come to a new understanding about his role in law enforcement. Not everyone will react this way.   (Go to 4:08)

✓ "These are not bad guys they're people, there citizens. And those high crime neighborhoods are also low income neighborhoods. These are people who have never been giving an opportunity in their life. How did we expect them to turn out?"  (Go to 4:50)

✓ The 3 categories of inmates that fill our jails. Understanding the reason people end up in jail is the first step to really helping them.  (Go to 5:25)

✓ 18 of the 122 corrections officers are specially trained certified officers that help triage and help identify this kind of inmate. The most important cog in the system isn't even about providing onsite services. The real work begins with an appropriate "exit strategy".  (Go to 7:37)

✓ When it comes to this "10 is a soft number." When it comes to assisting others what are your practical limits?   (Go to 9:10)

✓ Lane number 1 in the system overpopulates the jail with this kind of inmate. This is the cog in the entire system. Do noble work here and watch the crime rate plummet.  (Go to 9:40)

✓ This type of inmate is 74 times more likely to die of an overdose upon release. Identifying these inmates is literally life saving information.  (Go to 10:04)

✓ How a 30 person pilot program within a month ballooned to 54 people. The Sheriff won't say "no" to people in need. You'll learn all about it in the "Recovery Pod."  (Go to 10:50)

✓ Here's a common comment the Sheriff hears: "Hey I don't want to pay for a criminal's recovery and addiction programs; they should be paying for it." Go here to see what the Sheriff says in response.   (Go to 11:38)

✓ How the jailhouse commissary can be used to run down the crime rate...on the outside. No joke and it doesn't cost Joe Tax Payer a dime.  (Go to 12:50)

✓ If inmates think they'll take a few classes and get a shiny letter from the Sheriff they can give to the judge they got another thing common. The rubber hits the rode in these programs and no inmate is guaranteed placement.  (Go to 13:46)

✓ A positive vibe, real life mentors, and better life skills can be seen in this Kane County Jail pod. Recently, they even started an online store that sells their own pressed shirts. Learn all about it here.  (Go to 14:50)

✓ One of the most successful inmates out of "Recovery Pod" runs his business in the jail. He's not selling contraband either. It's 100% legit and has the Sheriff's blessing. The Sheriff's Office is even prepared to help him when he gets to the outside.   (Go to 16:57)

✓ What does female inmate recovery look like? There's a mural in the Kane County Jail that only inmates can see. The Sheriff says he can look at it for hours. It was painted by the inmates of "female" pod. In many ways it captures the entire focus of the whole jail.  (Go to 18:20)

✓ What "soft skills" training looks like, and how it translates into opportunities for inmates who have historically lacked any meaningful opportunity. One of the most fun things that happens in this jail is a fair. It's a different kind of fair than you are thinking.  (Go to 20:12)

✓ What is the biggest push-back Sheriff Hain is getting? It's coming from prosecutors and other police. How does the Sheriff (the keeper of 500 misdirected soles) respond to these critics? Go here to see what the Sheriff says. (He doesn't mind losing friends over this.  What he minds most is something else.)  (Go to 24:40)

✓ "You have to get it started to see what will work." (Go to 26:50)

✓ A phone call most defense attorneys never expect to receive. They won't believe their clients when the client says the attorney is getting the call. Go here for a message to defense attorneys directly from Sheriff Hain. (Go to 30:36)

Links & Resources Association for Individual Development in Aurora Ecker Center for Mental Health in Elgin Lighthouse Recovery Center in St. Charles The Pie Project (Yoga to Impact People)

Updates On Cannabis Law & Bail Reform With Jamie Mosser Candidate For Kane County State’s Attorney

Jul 31, 2019 26:12

Description:

Jamie Mosser, candidate for Kane County State's Attorney, stops by to provide an update on the new Illinois cannabis law and lets us know what's happening with bail reform in Illinois. Episode 658 (Duration 26:11).

In This Episode…

“What I want to do is take a strong office that we already have with some amazing people, and I just want to make it better.” — Jamie Mosser.

Attorney Jamie Mosser

Jaime Mosser is a former Kane County Assistant State’s Attorney. She’s now in private practice, and is a Democratic candidate for the head Kane County State’s Attorney.

Contact Information

Legal Office
Mosser & Eisenmenger Law, LLC
525 Tyler Rd Ste Q2
St. Charles, IL 60174
(630) 549-0364
https://www.mosserlawfirm.com/

Campaign Office
Mosser For Kane County
https://mosserforkanecounty.com/

“Can't Miss” Moments:

✓ Beginning January 1, 2020 Illinois will do away with all misdemeanor charges for possession of cannabis. However, there are some significant restrictions. (Go to 2:05) & (5:55)

✓ The law makes it quite clear there is still a certain amount you cannot exceed or you risk facing felony drug possession charges. There are exceptions for possession of cannabis for medical purposes. (Go to 2:50)

✓ The distinction between decriminalization and full blown legalization still matters. It's not accurate to say Illinois went full legalization. It's not legal across the board.  (Go to 3:48)

✓ The truth about cannabis decriminalization is revealed when you consider the raw logic behind the law. Minor possession is not crime anymore. Selling the stuff is a different story. The law has a pretty strict licensing requirement. (Go to 4:19)

✓ How Illinois is going to make money from all this. (Go to 5:28)

✓ The list of things you still can't do with cannabis runs deeper than just a prohibition against selling it. Jump to this time stamp for a detailed description provided by Jamie on everything else you can't do with cannabis. (Go to 5:55)

✓ When police get a hint of the "smell of weed" that currently has significant legal ramifications for citizens. Jamie takes a stab and how things will change after the law takes effect...will things change?  (Go to 7:58)

✓ Jamie asks: "What's going to happen with the DUI's?" Carol Stream Police Department is working with scientists to be the fist department in Illinois with this new type of machine. (Go to 9:33)

✓ Bail reform in Illinois is in effect and underway. How's it going? We are suppose to be emptying out the jail system. How's that going? (Go to 12:32)

✓ The 7-Day Rule was created to act as a stop-gap against oppressive pretrial detention. Here's how it works. (Go to 15:50)

Links & Resources New Illinois Cannabis Law The law decriminalization cannabis is called the Cannabis Regulation and Tax Act (CRTA)  See Also HB1438 Story About Carol Stream Police Department New Cannabis Testing Machine Bail Reform In Illinois Article 110 BAIL Meaning of Words and Phrases 725 ILCS 5/102-7.2 Illinois bail reform law draws mixed reviews Bail law a good measure you don't want to use – by Burt Constable See Also

You may also want to check out…

New Illinois Cannabis Law Episode 207 - The New Illinois Marijuana Law: A Ken Wang Debriefing (This is now the old law that was changed) Episode 251 - Jeffrey Hall On The Latest Developments And Problems With The Illinois Cannabis Decriminalization Law Episodesode 258 - Interview With Jeffrey Hall (A behind the scenes look at the legislative process including the good, the bad, and the ugly. ) Episodesode 340 - The Magic Words That Instantly Allow An Officer To Search A Car Without A Warrant With Kim Bilbrey Episode 556 - Charles Schierer On The Best Reason To Change The “Smell Of Cannabis” Rule Episode 509 – Analysis of In re O.S. The Stench Of Weed Still Supports Probable Cause For A Full Vehicle Search Episode 015 – Police Car Search Legal in Illinois if They Smell Marijuana…Police Officer Describes A Faint Odor Of Marijuana Episode 276 - People v. Kavanaugh, 2016 IL App (3d) 150806 (December) (You Just Can’t Ignore The Stench Of Weed…And An Accident) Episode 050 - People v. Burns, 2015 IL App (4th) 140006 (January) (Police Dog Sniff of Apartment Door Is a No-No) Episode 630 - People v. Campbell, 2019 IL App (1st) 161640 (April) (Dropsy, Smells-Me, Front Seating, and Other Testilying Testimony Has To Be Weighed On It’s Own Merit) Episode 621 - People v. Brandt, 2019 IL App (4th) 180219 (April) (Police Can Rely On Their Own Cannabis Detectors Located On Their Face) Episode 623 - People v. Rice, 2019 IL App (3d) 170134 (April) (3 Districts All Have Said The Smell Of Weed Still Justifies A Car Search) Episode 584 – People v. Hill, 2019 IL App (4th) 180041 (January) (4th district says the same thing adding burnt or raw cannabis doesn’t matter that car is getting searched)  Illinois Bail Reform Episode 359 - What You Need To Know About The Illinois Bail Reform Law The Early History of Bail Bonds In Illinois Illinois Bail Bond Law Ten Percent Rule May Cause Heart Attack to the Uninformed Sample Bail Bond Related Criminal Law Motions

Why You Should Never Pass Out While In Police Custody...You May Find Yourself In A Hospital Getting Jabbed For Blood

Jul 8, 2019 22:03

Description:

Mitchell v. Wisconsin, SCOTUS No. 18–6210, Decided June 27, 2019. Episode 647 (Duration 22:02)

Unconscious drivers plus natural BAC dissipation create an exigent circumstance for a blood draw.

Gist

Police get a call of a very drunk man driving off.

Man Is Found

Man is found near a lake stumbling and slurring his words.

He could hardly stand without the support of two officers. Field sobriety tests were hopeless, if not dangerous, but he could blow for a preliminary breath test. It registered a BAC level of 0.24%, triple the legal limit for driving in Wisconsin.

Man Is Arrested

He is arrested for operating a vehicle while intoxicated and, as is standard practice, drove him to a police station for a more reliable breath test using better equipment. By the time the squad car had reached the station, he was too lethargic even for a breath test.

Hospital Instead

Police drove him to the hospital instead.

Defendant lost consciousness on the ride over and had to be wheeled in. Police asked hospital staff to draw a blood sample. Mitchell remained unconscious while the sample was taken, and analysis of his blood showed that his BAC, about 90 minutes after his arrest, was 0.222%.

Issue

We granted certiorari, 586 U. S. ___ (2019), to decide whether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement. 

Implied Consent

A states implied consent scheme is centered on legally specified BAC limits for drivers—limits enforced by the BAC tests promoted by implied-consent laws. In Birchfield, we applied precedent on the “search-incidentto-arrest” exception to BAC testing of conscious drunkdriving suspects. See Birchfield v. North Dakota.

We held that their drunk-driving arrests, taken alone, justify warrantless breath tests but not blood tests, since breath tests are less intrusive, just as informative, and (in the case of conscious suspects) readily available. Id., at ___ (slip op., at 35).

Exigent Circumstances

We have also reviewed BAC tests under the “exigent circumstances” exception—which, as noted, allows warrantless searches “to prevent the imminent destruction of evidence.” Missouri v. McNeely, 569 U. S. 141, 149 (2013).

In McNeely, we were asked if this exception covers BAC testing of drunk-driving suspects in light of the fact that blood-alcohol evidence is always dissipating due to “natural metabolic processes.” Id., at 152. We answered that the fleeting quality of BAC evidence alone is not enough.

Don't Forget About Schmerber

But in Schmerber it did justify a blood test of a drunk driver who had gotten into a car accident that gave police other pressing duties, for then the “further delay” caused by a warrant application really “would have threatened the destruction of evidence.” McNeely, supra, at 152 (emphasis added). See Schmerber v. California, 384 U. S. 757, 765 (1966).

Reasonableness Is The Standard

The Fourth Amendment guards the “right of the people to be secure in their persons . . . against unreasonable searches” and provides that “no Warrants shall issue, but upon probable cause.” A blood draw is a search of the person, so we must determine if its administration here without a warrant was reasonable.

The important question here is what officers may do when a driver’s unconsciousness (or stupor) eliminates any reasonable opportunity for a breath test.

Though we have held that a warrant is normally required, we have also “made it clear that there are exceptions to the warrant requirement.” Illinois v. McArthur, 531 U. S. 326, 330 (2001). And under the exception for exigent circumstances, a warrantless search is allowed when “‘there is compelling need for official action and no time to secure a warrant.’” McNeely, supra, at 149 (quoting Michigan v. Tyler, 436 U. S. 499, 509 (1978)).

Categorical Conclusion

Like Schmerber, this case sits much higher than McNeely on the exigency spectrum.

McNeely was about the minimum degree of urgency common to all drunkdriving cases. In Schmerber, a car accident heightened that urgency. And here this driver's medical condition did just the same.

Here today the court addresses not the specific facts of this case but instead on how the exception bears on the category of cases featuring an unconscious driver. In those cases, the need for a blood test is compelling, and an officer’s duty to attend to more pressing needs may leave no time to seek a warrant.

While our exigent-circumstances precedent requires a “totality of the circumstances” analysis, “the circumstances in drunk driving cases are often typical, and the Court should be able to offer guidance on how police should handle cases like the one before us.” McNeely, 569 U. S., at 166 (ROBERTS, C. J., concurring in part and dissenting in part).

BAC Tests Are Important

The bottom line is that BAC tests are needed for enforcing laws that save lives.

The specifics, in short, are these: Highway safety is critical; it is served by laws that criminalize driving with a certain BAC level; and enforcing these legal BAC limits requires efficient testing to obtain BAC evidence, which naturally dissipates.

So BAC tests are crucial links in a chain on which vital interests hang. And when a breath test is unavailable to advance those aims, a blood test becomes essential.

Dissipation Is Still A Thing

It must be noted that enforcement of BAC limits also requires prompt testing because it is “a biological certainty” that “[a]lcohol dissipates from the bloodstream at a rate of 0.01 percent to 0.025 percent per hour. . . . Evidence is literally disappearing by the minute.” McNeely, 569 U. S., at 169 (opinion of ROBERTS, C. J.). As noted, the ephemeral nature of BAC was “essential to our holding in Schmerber,” which itself allowed a warrantless blood test for BAC. Id., at 152.

When a breath test is unavailable to promote those interests, “a blood draw becomes necessary.” McNeely, 569 U. S., at 170 (opinion of ROBERTS, C. J.).

Thus, in the case of unconscious drivers, who cannot blow into a breathalyzer, blood tests are essential for achieving the compelling interests described above. Indeed, not only is the link to pressing interests here tighter; the interests themselves are greater: Drivers who are drunk enough to pass out at the wheel or soon afterward pose a much greater risk.

It would be perverse if the more wanton behavior were rewarded—if the more harrowing threat were harder to punish. For these reasons, there clearly is a “compelling need” for a blood test of drunk-driving suspects whose condition deprives officials of a reasonable opportunity to conduct a breath test.

Dissipation + Unconsciousness = Exigent Circumstance

The only question left, under our exigency doctrine, is whether this compelling need justifies a warrantless search because there is, furthermore, “no time to secure a warrant.”

So even if the constant dissipation of BAC evidence alone does not create an exigency, Schmerber shows that it does so when combined with other pressing needs:

“We are told that [1] the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where [2] time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case [without a warrant] was . . . appropriate . . . .”

Schmerber, 384 U. S., at 770–771.

Thus, exigency exists when

(1) BAC evidence is dissipating and
(2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application.

Both conditions are met when a drunk-driving suspect is unconscious, so Schmerber controls: With such suspects, too, a warrantless blood draw is lawful.

In Schmerber, the extra factor giving rise to urgent needs that would only add to the delay caused by a warrant application was a car accident; here it is the driver’s unconsciousness.

Indeed, unconsciousness does not just create pressing needs; it is itself a medical emergency. It means that the suspect will have to be rushed to the hospital or similar facility not just for the blood test itself but for urgent medical care.

Just as the ramifications of a car accident pushed Schmerber over the line into exigency, so does the condition of an unconscious driver bring his blood draw under the exception.

An Accident Could Cause Exigent Circumstance

In many unconscious-driver cases, the exigency will be more acute, as elaborated in the briefing and argument in this case. A driver so drunk as to lose consciousness is quite likely to crash, especially if he passes out before managing to park.

And then the accident might give officers a slew of urgent tasks beyond that of securing (and working around) medical care for the suspect. Police may have to ensure that others who are injured receive prompt medical attention; they may have to provide first aid themselves until medical personnel arrive at the scene.

In some cases, they may have to deal with fatalities. They may have to preserve evidence at the scene and block or redirect traffic to prevent further accidents. These pressing matters, too, would require responsible officers to put off applying for a warrant, and that would only exacerbate the delay—and imprecision—of any subsequent BAC test.

Holding

In sum, all these rival priorities would put officers, who must often engage in a form of triage, to a dilemma. It would force them to choose between prioritizing a warrant application, to the detriment of critical health and safety needs, and delaying the warrant application, and thus the BAC test, to the detriment of its evidentiary value and all the compelling interests served by BAC limits. This is just the kind of scenario for which the exigency rule was born—just the kind of grim dilemma it lives to dissolve.

When police have probable cause to believe a person has committed a drunk-driving offense and the driver’s unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver’s BAC without offending the Fourth Amendment.

We do not rule out the possibility that in an unusual case a defendant would be able to show that his blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties. Because Mitchell did not have a chance to attempt to make that showing, a remand for that purpose is necessary.

The Dissent

The dissent took issue with such a broad categorical approach in light of the most recent case law which seemed to counsel against such an approach.

The dissent also questioned whether there was really no time to go get a warrant. Isn't there always time for that?

See Also

Episode 574 - People v. Pratt, 2018 IL App (5th) 170427 (December) (Warrantless blood draw after an accident deemed unconstitutional blood results excluded.)

Episode 469 - Warrantless Blood Draws Coming To A Hospital Near You (A Summary Of Recent Warrantless Blood Draw Cases In Illinois). Including the following cases:

Episode 462 - People v. Turner, 2018 IL App (1st) 170204 (February) (good faith exception applies and allows the admissibility of this warrantless blood draw) Episode 438 – People v. Eubanks, 2017 IL App (1st) 142837 (December) (really bad defendant held down in the hospital) Episode 461 – People v. Hayes, 2018 IL App (5th) 140223 (February) (defendant was not ticketed so so state could not establish consent to the blood draw) Episode 558 - People v. Williams, 2018 IL App (2d) 160683 (October) (Challenging this DUI traffic stop went nowhere fast.) Episode 439 – People v. Sykes, 2017 IL App (1st) 150023 (December) (no police action when police hold a lady down in the hospital) Episode 423 – People v. Brooks, 2017 IL 121413 (November), (our supreme court recently held that mere police participation, absent the private actors acting as an agent or instrumentality of the State, is not state action) Episode 319 How Can Police Enforce A Blood Warrant | A Discussion With Anthony Cameron  Episode 186 – Birchfield v. North Dakota, 136 S. Ct. 2160, 2174 (2016) Episode 258 - Jeffery Hall Interview - He Discusses The Krystin Rennie Case

Gary True On What Happens When Police See Your Gun In Public

Jun 3, 2019 31:52

Description:

Episode 643 (Duration 31:51) Illinois attorney Gary True explains the risk involved for anyone who reveals their gun in public. Licensed and unlicensed gun carriers have something to worry about.

In This Episode...

"A law abiding person that exposes his gun too much, what ever too much is, is subject to being charged and subject to being searched ." -- Gary True.

Attorney Gary True

Gary True practices in the areas of business and corporate law, mergers and acquisitions and estate planning.  He also concentrates in the area of self-defense and firearms law. 

Gary is licensed to practice law in Illinois, Missouri and Wisconsin. He also teaches a course for other Illinois conceal carry instructors.

Contact Information 

Gary True
515 St. Louis Street, Suite 203
Edwardsville, Illinois 62025

Tel: 314.872.0331
Fax: 314.872.0321
gtrue@summerscomptonwells.com

http://www.summerscomptonwells.com

"Can't Miss" Moments:

✓ What does the Illinois Concealed Carry law say about exposing your gun in public? What every properly licensed gun carrier has to be worried about. (Go to 3:58)

✓ This two-word adjective has become a term of art for lawyers and gun owners. Funny how the term is not defined anywhere in the code, and reasonable minds can invent their own working definitions. This is the term we are all waiting for the court to define. (Go to 5:12)

✓ Like it or not, properly licensed gun carriers can still get arrested for carrying a gun if this happens. Here's a clear example of how not to carry your gun in public...when just a few seconds can get you arrested. (Go to 5:49) & (9:42)

✓ A certain group of gun instructors believe this legal term means something else entirely different than what some Illinois judges say it means. The consequences may be dire for certain people if we don't all get on the same page. (Go to 7:15)

✓ The absurdity of it...Guy walking down the street and a gust of wind blows his jacket open a bit exposing the butt of his gun. Some say a crime has just been committed.  (Go to 8:25) & (10:00)

✓ This "ordinary common sense" standard is dead. Why the old rules before the current laws existed don't help us, and in fact, might hurt us. (Go to 8:39)

✓ The real reason you're likely to get arrested if you are seen with a gun in public.  (Go to 10:00)

✓ WARNING - All gun owners licensed to conceal carry better make sure they understand the "traffic stop" rule. If the officer says these magic words a gun carrier has to respond in the right way or risk getting arrested for providing the wrong answer. (Go to 11:55)

✓ What is NOT in the statute is as important as what is in the statute. Knowing what's not in there can save you some hassle. There are a lot of unanswered questions about the law, but Gary says there are some clear-cut examples of when an officer cannot stop you even when they know for sure you have a gun.  (Go to 13:16)

✓ 3 serious hints are out there, if you know where to look, strongly suggesting what the court is going to do next. (Go to 18:30)

✓ How a federal case can come along and upend and change the rules in Illinois. If it's going to happen it will happen this way. (Go to 21:05)

✓ Holding your crotch is not indicative of gun possession precisely because police see no gun. That being said, once you take this out of your pants all bets are off...and if it's fully out then you really have some problems. (Go to 24:01)

✓ Let's face it, most law abiding conceal carry citizens are not going to have trouble with the police. This is the number one thing they have to worry about. (Go to 25:40)

✓ Keep an eye on the case law and look for answers to these questions: (1) What in the world does "mostly concealed" mean? (2) Will the Thomas dicta hold-up? (3) Exactly what other factors can be used to justify a gun search? (Go to 28:40)

Links & Resources People v. Thomas, 2019 IL App (1st) 170474 (March): (in dicta court suggests seeing a gun otherwise properly concealed does not establish probable cause or reasonable suspicion) Illinois Conceal Carry Law Illinois FOID Law Andrew Branca Law of Self Defense People v. Norals, 2019 IL App (1st) 173010-U (Rule 23 case, police see the outline of a gun through this skinny jeans) People v. Harris, 2018 IL App (1st) 151142-U (February) (Rule 23 case, very anoymous tip of person with a gun cannot be used to justify this stop and search) People v. Holmes, 2017 IL 120407 (July) (good faith exception says a stop and a search before the change in the law does not mean evidence has to be suppressed) Here's That Dicta From Thomas

People v. Thomas, 2019 IL App (1st) 170474 (March):

"We wish to emphasize that under the current legal landscape, police cannot simply assume a person who possesses a firearm outside the home is involved in criminal activity. Likewise, they cannot use a firearm in partial view, such as a semi-exposed gun protruding from the pant pocket of a person on a public street, alone as probable cause to arrest an individual for illegal possession without first identifying whether the individual has the necessary licenses."

See Also

You may also want to check out...

Episode 609 - People v. Thomas, 2019 IL App (1st) 170474 (March) (Police see a man hand a gun to another man in dicta court states seeing a gun alone does not create basis for a stop.) Episode  387 – People v. Holmes, 2017 IL 120407 (July) (Before The Conceal & Carry Became Law Police Could Stop You If They Saw A Gun) Episode 601 – People v. Holmes, 2019 IL App (1st) 160987 (March)(police get a tip of man with a gun problem was the tip was completley anoymous) Episode 447 - In re Jarrell C., 2017 IL App (1st) 170932 (December) (holding your crotch is not indicative of carrying a gun)

Matthew Paulson & Larry Vandersnick Explain Exactly What Is Happening During This Common Kind Of Traffic Stop

May 15, 2019 31:43

Description:

People v. Kruckenberg, 2019 IL App (3d) 170505-U. Episode 628 (Duration 31:43). 

Matthew Paulson and Larry Vandersnick describe a drug interdiction traffic stop and analyze where it went wrong for the prosecution.

In This Episode...

"The appellate court is looking at what is actually going on in the case versus just looking at the total amount of time." -- Matthew Paulson.

Matthew Paulson & Larry Vandersnick

Matt Paulson has over 7 years of experience and has distinguished himself in both Illinois and Iowa as a successful criminal defense attorney handling all matters including Drug Trafficking and DUI / OWI cases.

Larry Vandersnick is a former Henry County State's Attorney and a former Rock Island County and Henry County Circuit judge. Now he mainly handles criminal cases in state court.

Contact Information

Paulson & Vandersnick
4709 44th Street Ste 1
Rock Island, IL 61201

(309) 558-0774

https://www.mplvlaw.com/

"Can't Miss" Moments:

✓ Abolish it. Does it still make sense to have Rule 23 cases? What's the point now that information is so easily accessible online? If you know how to find them why can't you use them? (Go to 2:49)

✓ A surprising and disturbing reason why an attorney may not want to ask the court to publish a winning decision. (Go to 5:59)

✓ How the "tag team" approach is used on I-80 to get you to lower your shield so low you don't go home again for a very long time. (Go to 7:15)

✓ How to measure 15 minutes. Everybody doesn't experience the same 15 minutes the same way. Go here to uncover how the appellate court is measuring 15 minutes. (Go to 8:29)

✓ When common day pleasantries is considered outright rude and even illegal. (Go to 9:40)

✓ When the "K-9 search duration principle" that determines if a search is likely to be upheld or stricken down...again exactly what the officer is doing matters. (Go to 12:00)

✓ What police don't want you to know about what exactly they are doing during a traffic stop. What is actually happening doesn't feel like what is happening. It feels much differently to the driver. (Hint: profiling and pretextual stops are 100% legal.) (Go to 13:38)

✓ Drug interdiction officers are there to write speeding tickets. How this officer tipped his hat and showed his cards in a way that revealed his true intentions to the appellate court. (Go to 14:09)

✓ It took just 6 minutes of interaction with the driver, these 6 minutes of nothing much happening, the officer didn't radio in the drivers information until 6 minutes after they got back in his squad car, these were 6 minutes recorded as an eternity. (Go to 14:09)

✓ This is happening all over the place all the time...at least since 1995. Who's gonna stop it. This is the one thing that actually takes longer and has been slowed down by modern computers. (Go to 17:14)

✓ The only way known to man to turn 10 into infinity. (Go to 19:45)

✓ Exactly what is happening when you are "front seated". Wether you know it or not that's when a  Spidey sense is being aimed directly at you. (Go to 20:55)

✓ Doing this one thing in life can get you suspended or expelled from a program. Doing it in the law not only is completely ethical and proper it actually helps you win cases. (Go to 20:55)

✓ If attorneys shared more of this the world would be a better place...or at least for defense attorneys and their clients.  (Go to 26:06)

Links & Resources People v. Kruckenberg, 2019 IL App (3d) 170505-U Illinois Supreme Court Rule 23 ISBA LawPulse: The incredible, unciteable Rule 23 order ISBA Civil Practice Let’s Get Rid of Rule 23 Orders The Battle Over Rule 23: Authority v. Precedent People v. Pulling, 2015 IL App (3d) 140516 Illinois Attorney Dan Dalton People v. Koutsakis, 272 Ill. App. 3d 159 (3rd Dist. 1995) (routine traffic stop may not be used as a subterfuge to obtain other evidence based on an officer's suspicion) Illinois Attorney Anthony Cameron (See also discussion on Timbs v. Indiana, 2019 SCOTUS (February). ) See Also

You may also want to check out...

Episode 458 - People v. Lee, 2018 IL App (3d) 170209 (February) (“No Talking” Command Was An Order Not A Request & 25 Minute Wait For Dog Was Too Long) Episode 069 - Rodriguez v. United States, 135 S. Ct. 1609 (2015)(SCOTUS case that set the unreasonable delay standard for rode side drug dog sniffs) Episode 049 -  A summary of drug dog case law Episode 043 - People v. Thomas, 2014 IL App (3d) 120676 (October) (police dog sniff set-up procedures may be ordered by the police) Episode 087 - People v. Reedy, 2015 IL App (3d) 130955 (August) (this drug dog made it to the scene in a flash) Episode 417 - People v. Paddy, 20172017 IL App (2d) 160395 (October) (police unreasonably delayed this traffic stop to give the dog time to get there) Episode 446 - People v. Heritsch, 2017 IL App (2d) 151157 (December) (this is how you do it if your an officer who wants to conduct a rode side dog sniff every minute has to be accounted for) Episode 533 - People v. Thomas, 2018 IL App (4th) 170440 (August) (Unreasonable Delay For A Drug Dog Sniff – Accumulation of Road Trash Is Not Reasonable Suspicion) Episode 563 - People v. Sadeq, 2018 IL App (4th) 160105 (November) (Steigmann says the delay to have the drug dog come out was justified because defendant was, in part, extremely nervous.)  Fourth District Doing Something Different With Dog Sniff Cases – People v. Pettis – Episode 196 People v. Pulling, 2015 IL App (3d) 140516 (June 2015)(stop was unreasonably prolonged when drug dog is walked around the car) People v. Litwin, 2015 IL App (3d) 140429 (September 2015) (drug trafficking conviction must be reversed because this drug dog sniff exceeded the applicable scope of the traffic stop and oh yea, reviewing court doesn’t believe the officer)  

Double Jeopardy Concern Means There WILL BE A Second Trial In This Case

Apr 24, 2019 11:15

Description:

People v. Drake, 2019 IL 123734 (March). Episode 620 (Duration 11:14)

Although the reversal is still good the lower court judgement that double jeopardy barred a retrial is reversed.

Gist

Defendant was sentenced to 20 years’ imprisonment for aggravated battery of a child.

Facts

At defendant’s bench trial, the nurse testified that, as a registered nurse, she treated J.H. in the pediatric intensive care unit at Stroger Hospital for burns to his buttocks, genital area, and legs.

When the nurse entered his room one day, J.H. called to her and stated he was going to tell her something. J.H. then revealed that defendant poured hot water on him while he was in the bathtub.

When the nurse asked if J.H. had done anything to upset defendant, J.H. replied that he had done nothing.

Statement Came In

The trial court ruled that J.H.’s statement was admissible under the hearsay exception for statements made for purposes of medical diagnosis or treatment. See Ill. R. Evid. 803(4).

Lower Court Opinion

The appellate court held that the trial court erred in admitting J.H.’s statement identifying defendant as the offender under the hearsay exception for statements made for the purpose of medical diagnosis and treatment.

The appellate court concluded the hearsay statement was not made for that purpose and admission of the statement could not be considered harmless error.

Barred Retrial

The appellate court further held that the double jeopardy clause barred retrial because the evidence presented by the State was insufficient to prove defendant guilty of the offenses beyond a reasonable doubt.

Issue Now

According to the State, the appellate court failed to give adequate weight to J.H.’s out-of-court statement identifying defendant as the offender in its double jeopardy analysis. 

More On The Statement

J.H.’s hearsay statement that defendant poured hot water on him was the only evidence that defendant was even present in the bathroom, but the statement is inconsistent with Dr. Fujara’s opinion that the burns could have resulted only from forcible immersion.

Additionally, the evidence showed the hot and cold water lines were reversed, and the hot water temperature was 160 degrees, indicating the burns could have been caused accidentally. Defendant, therefore, concludes that this court should affirm the appellate court’s judgment. The applicable law is well established.

Double Jeopardy

The double jeopardy clause prohibits a second, or successive, trial to afford the prosecution another opportunity to provide evidence that it failed to present at the first trial. People v. Lopez, 229 Ill. 2d 322, 367 (2008).

The double jeopardy clause does not preclude retrial when a conviction has been overturned because of an error in the trial proceedings, but retrial is barred if the evidence introduced at the initial trial was insufficient to sustain the conviction. Lopez, 229 Ill. 2d at 367.

“For purposes of double jeopardy all evidence submitted at the original trial may be considered when determining the sufficiency of the evidence.” People v. Olivera, 164 Ill. 2d 382, 393 (1995).

Retrial is the proper remedy if the evidence presented at the initial trial, including any improperly admitted evidence, was sufficient to sustain the conviction. People v. McKown, 236 Ill. 2d 278, 311 (2010). 

On Double Jeopardy See Also... Episode 583 - People v. Shoevlin, 2019 IL App (3d) 170258 (January) (Serious double jeopardy concerns are raised when the judge declares a mistrial in this domestic battery case.) Episode 398 – People v. Kimble, 2017 IL App (2d) 160087 (September) (judge declares a mistrial too early and now the state cannot recharge defendant). Episode 279 – People v. Staple, 2016 IL App (4th) 160061 (December) (defendant plead guilty to misdemeanor DUI, so the trial judge dismissed the felony DUI without implicating double jeopardy) Episode 389 – People v. Threatte, 2017 IL App (2d) 160161 (August) (prosecutor got sick in the middle of trial and mistrial was declared) Episode 040  – People v. Guillen, 2014 IL App (2d) 131216 (November) (defendant tried to plead guilty to a misdemeanor DUI, the the judge allowed them to dismiss the charges so they could indict on felony charges) Episode 041 – More on Double Jeopardy Definition People v. Ventsias, 2014 IL App (3d) 130275 (July) (Double Jeopardy Does Not Attach on dismissed Charge, Double Jeopardy Attaches After a Guilty Plea)

Double Jeopardy Concerns

Double Jeopardy

The fifth amendment to the United States Constitution, made applicable to the states via the fourteenth amendment, provides, in part, that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const., amend. V. See also Ill. Const. 1970, art. I, § 10; 720 ILCS 5/3-4.

The double jeopardy clause protects against

(1) a second prosecution for the same offense following acquittal, 
(2) a second prosecution for the same offense following conviction, and 
(3) multiple punishments for the same offense.

However, the rules with regard to double jeopardy, however, should not be applied in a mechanical nature, especially if the situation is such that the interests the rules seek to protect are not endangered and a mechanical application would frustrate society’s interest in enforcing its criminal laws.

The Expert Witness

In this case, a rational trier of fact could have credited Dr. Fujara’s testimony that J.H.’s burns resulted from forcible immersion in hot water. Indeed, Dr. Fujara provided the only expert testimony explaining J.H.’s burns.

In this case, Dr. Fujara offered persuasive expert testimony that J.H.’s burns resulted from forcible immersion in hot water.

Dr. Fujara’s testimony ruling out alternative causes rebuts defendant’s argument that J.H. may have been burned accidentally as a result of the faulty water heater installation. We conclude that the trial court reasonably credited Dr. Fujara’s testimony that J.H.’s injuries resulted from forcible immersion.

Was The Evidence Sufficient Beyond A Reasonable Doubt?

The critical issue, therefore, becomes whether the evidence was sufficient to conclude beyond a reasonable doubt that defendant was the offender.

The evidence showed defendant was the only adult present in the house at the time J.H. was injured. He did not seek prompt treatment for the severe injuries suffered. Kid taken to the hospital for treatment only after the other children informed their mother. The injuries apparently occurred when J.H. took a bath at some point in the morning. J.H.’s mother did not return home from work until late that night. Defendant lied at the hospital about his name and relationship. And, of course, the expert evidence outlined above.

Accordingly, substantial evidence pointed to defendant as the offender even without the excluded hearsay statement.

Before concluding that the evidence was insufficient to prove defendant guilty beyond a reasonable doubt, the appellate court observed that “J.H.’s erroneously admitted hearsay statement was the only piece of evidence placing defendant in the bathroom where the injury occurred” and “[t]he State provided no other identification evidence.” 2017 IL App (1st) 142882, ¶ 40.

Analysis

Although the appellate court mentioned the excluded hearsay statement in its analysis, we do not believe that statement was given the proper weight.  The excluded hearsay statement is, therefore, competent evidence that defendant caused J.H.’s injuries for the purpose of the sufficiency of the evidence analysis.

Further, all of the evidence, including J.H.’s hearsay statement, must be viewed in the light most favorable to the prosecution. Given that standard, we believe a rational trier of fact could have considered J.H.’s hearsay statement simply as an identification of the person who caused his injuries.

We do not believe a rational trier of fact is required to completely discount the part of J.H.’s statement identifying defendant as the person who caused his injuries merely because part of his statement is not perfectly consistent with the expert’s testimony.

In sum, our decision in this case is guided by the standard for reviewing this issue.

Holding

We must determine whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  We believe the evidence, including J.H.’s hearsay statement identifying defendant as the person who caused his injuries, was sufficient when viewed in the light most favorable to the prosecution for a rational trier of fact to find defendant guilty beyond a reasonable doubt.

Accordingly, the double jeopardy clause does not bar retrial, and this case must be remanded to the circuit court for retrial without the excluded hearsay evidence.

Butt In The Box Rule Means Your Available For Cross Examination

Apr 23, 2019 14:07

Description:

People v. Smith, 2019 IL App (3d) 160631 (March). Episode 619 (Duration 14:06)

Kid is available for cross even though they don't remember the actual allegation of sexual abuse.

Gist

Defendant was charged with predatory criminal sexual assault of a child (720 ILCS 5/11- 1.40(a)(1)) in that he placed his penis in the mouth of J.H.

Charges

The information alleged that defendant was 17 years of age or older at the time of the offense and J.H. was under 13 years of age. The State filed a motion for a hearing pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10). 

The court found defendant guilty of predatory criminal sexual assault of a child and aggravated kidnapping.

115-10 Statement

The State sought a ruling that J.H.’s recorded interview at the CAC would be admissible if J.H. testified and was subject to cross-examination. After a hearing, the court ruled that the recording of the interview would be admitted into evidence as an exception to the hearsay rule pursuant to section 115-10 of the Code.

Facts

7 year old female victim was at an auction with her 8 year old brother and grandpa.

A man took her into a camper and forced her to undress and put her mouth on his penis. Grandpa found her in the camper and chased the man. He was caught.

The child described the even in a recorded interview.

On The Stand

On the stand she testified to the events of the day including parts of the auction.

Then she said could not remember what happened inside the camper. During cross-examination, defense counsel asked J.H.

questions about watching the recording of the interview previously, whether she had discussed the case with anyone, what defendant was wearing at the time of the incident, and whether J.H. saw defendant getting in trouble with his mother after the incident.

Defense counsel did not ask any questions about the incident itself.

J.H. answered all of defense counsel’s questions.

Independent Witnesses

Four witnesses testified that they were at the auction on the day of the incident.

They all saw a man running and heard another man yell to stop him. They all later identified defendant as the man they saw running.   

Sentence

The court sentenced defendant to natural life imprisonment for predatory criminal sexual assault of a child, which was mandatory based on defendant’s prior conviction for aggravated criminal sexual assault. The court sentenced defendant to 20 years’ imprisonment for aggravated kidnapping, to be served consecutively with his sentence for predatory criminal sexual assault of a child.

Issue

Defendant argues that his right to confront his accusers was violated in that the recording of J.H.’s interview at the CAC was admitted into evidence but J.H. was unavailable for crossexamination.

Specifically, defendant contends that J.H. became unavailable as a witness when she testified at trial that she could not remember the portion of the incident that comprised the offense of predatory criminal sexual assault of a child.

Confrontation

Both the United States Constitution and the Illinois Constitution guarantee a criminal defendant the right to confront his or her accusers. U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8.

“When the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements...The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.” Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004).

“In general, a witness is considered to be present, available for, or subject to cross-examination when the witness takes the stand, is placed under oath, and willingly answers questions, and the opposing party has an opportunity to cross-examine the witness.” People v. Dabney, 2017 IL App (3d) 140915, ¶ 19. The key inquiry in determining whether the declarant is available for cross-examination is whether the declarant was present for cross-examination and answered all of the questions asked of him or her by defense counsel.

Where the declarant appears for cross-examination, even where the declarant does not testify to the substance of his hearsay statement, its admission is a nonevent under the confrontation clause. People v. Garcia-Cordova, 2011 IL App (2d) 070550-B, ¶ 66.

Many Illinois cases have held that child victims of sex offenses were available for cross-examination for purposes of the confrontation clause where they testified at trial and answered the questions posed to them during cross-examination even if they were unwilling or unable to testify as to some or all of charged conduct. See Dabney, 2017 IL App (3d) 140915, ¶ 20 (collecting cases).

“A gap in the witness’ recollection concerning the content of a prior statement does not necessarily preclude an opportunity for effective cross-examination.” People v. Flores, 128 Ill. 2d 66, 88 (1989). “There are no confrontation clause problems merely because the witness’s memory problems preclude him from being cross-examined to the extent the parties would have liked.” People v. Leonard, 391 Ill. App. 3d 926, 934-35 (2009).

What About Rule 804(a)(3)?

Illinois Rule of Evidence 804 is called Hearsay Exceptions; Declarant Unavailable. The rule says,

 “Unavailability as a witness” includes situations in which the declarant–testifies to a lack of memory of the subject matter of the declarant’s statement..." 

Rule 804(a)(3).

Rule 804 concerns certain exceptions to the rule against hearsay that are applicable where a declarant is “unavailable as a witness.” Ill. R. Evid. 804.

To be sure, the definition of unavailability in Rule 804 applies when analyzing the admissibility of hearsay statements pursuant to the exceptions outlined in the rule. However, Rule 804 does not concern availability for cross-examination under the confrontation clause.

Defendant has cited no authority to support the proposition that the definition of unavailability in Rule 804 applies in the context of an alleged confrontation clause violation. We reassert that our supreme court has held that “a gap in the witness’ recollection concerning the content of a prior statement does not necessarily preclude an opportunity for effective cross-examination” for purposes of the confrontation clause.

People v. Learn Is Out

Defendant further relies on People v. Learn, 396 Ill. App. 3d 891, 899-900 (2009), for the proposition that a victim does not testify for purposes of the confrontation clause when the victim’s testimony is not incriminatory.

As we stated in Dabney, “we respectfully disagree with the conclusion reached by the appellate court in that case and do not believe that it reflects the current state of the law on this issue.” Dabney, 2017 IL App (3d) 140915, ¶ 21; see also In re Brandon P., 2013 IL App (4th) 111022, ¶ 44 (noting that much of the Illinois judiciary had distanced itself from Learn and that no court has cited it approvingly).

This Case

In the instant case, J.H. was available for cross-examination for purposes of the confrontation clause. She took the witness stand and willingly answered the questions posed to her by the prosecutor and defense counsel. She answered every question asked of her during cross-examination.

Although she testified that she could not remember what happened between the time she removed her clothing and the time her grandfather entered the camper, her lack of memory did not render her unavailable for cross-examination.

Holding

Conviction affirmed.

See Also Episode 433 - People v. Dabney, 2017 IL App (3d) 140915 (October) (kid was available for cross even though he she didn't describer everything) Episode 123 - People v. Burnett, 2015 IL App (1st) 133610 (December . (Witness Can Be Available Under Crawford But Unavailable Under Domestic Violence Statute) Episode 450 - In re T.Z., 2017 IL App (4th) 170545 (December) (Judge Gets A Little Too Involved With Kid On The Stand: 7 year old victim is allowed to whisper the damaging testimony to the judge who then repeated the statement for the record.)

Eyewitness Expert Not Allowed To Get Into Individual Witnesses Reliability

Apr 22, 2019 11:39

Description:

People v. Corral, 2019 IL App (1st) 171501 (March). Episode 618 (Duration 11:38)

Kid got his eyewitness expert witness on the stand, but the witness was not allowed to get into what she thought about the reliability of the witness.

Gist

Buyers in a deal to purchase some cannabis instead shot the dealers in an attempt to take the weed. The shooter was a 16 year old. One man was hit 8 times and died.

The dealer identified defendant then picked his photo out of a live line-up.

Kid got 31 year sentence.

No Other Physical Evidence

There was no fingerprints, blood, or DNA belonging to defendant discovered at the crime scene. Police could not establish any direct phone contact between the shooter and other codefendant.

However, defendant’s cell phone was missing the “SIM card” and therefore he did not submit the cell phone to the Regional Forensics Computer Laboratory for analysis.

The Eyewitness Expert

Dr. Kimberly McClure testified as an expert in the field of eyewitness identification without objection.

She testified that even under optimal circumstances, i.e., where “a person has all the time in the world to view, the person is not under any duress or stress, and the person has an immediate opportunity to identify the person that they saw,”

there is only “67 to 70 percent” accuracy in those identifications.

Dr. McClure opined that the factors that tend to reduce the reliability of an eyewitness identification were present in the case.

Regarding Vargas’s degree of attention during his encounter with defendant, Dr. McClure testified that,

the encounter commenced as something routine and not very memorable attention seemed to be on the older adult male that was involved not defendant the victim was focused on the weapon memory decay is an issue the longer a witness goes without making an ID on inattentive blindess Inattentive Blindness

“Inattentive blindness” is where “we can interact with someone and we can see that person clearly, and it seems as if we are processing information about them but in fact we are not really processing information that’s related to the person’s face or how she or he might look and how we might subsequently be able to recognize them.”

Intervening Variables

Dr. McClure also discussed the “intervening variables” between the event and the actual identification that can impact memory.

Intervening variables “impact and change memory because we don’t just witness the event and never talk about it again.  We might tell our friends, we might tell our family members. Each time we are retrieving that information it has the potential to change how we remember that experience and how we remember the individual involved.

It is common for these intervening events to actually get incorporated into memories. We call that the misinformation effect.

48 Delay Here

Specifically addressing the 48-day delay between the shooting and the witness ID being presented with the photo array, Dr. McClure testified that it is a “very long time” in terms of memory. 

She noted that after 72 hours there is a detrimental effect on memory and it “drops off quickly, very fast. After 72 hours, 40 to 50 percent is a ballpark figure that I am pulling from my recollection.”

The Photo Array & Lineup

In this case, the lead detective and therefore not an independent administrator, conducted the photo array and lineup. Dr. McClure further testified that it was problematic that defendant was the only individual who appeared in both the photo array and the lineup.

According to Dr. McClure, one cannot be sure that the victim’s identification of defendant was because “he was actually there during the event or was it because he was the only person that was also in the photographic lineup.”

On cross-examination, Dr. McClure testified she was not compensated for her testimony apart from her travel and accommodation expenses and that this was the first time she had testified as an expert in eyewitness identification.

Helpful To The State

Dr. McClure testified that “most of the time people are pretty accurate” when describing basic features such as gender, ethnicity, and general physicality.

Dr. McClure further testified that memories related to traumatic experiences can be retained over time and that an individual’s memory can increase during a traumatic event. According to Dr. McClure, however, there is an upper limit to an individual’s ability to retain memories when under duress. Once an individual’s ability to cope with the stress is exceeded then his memory deteriorates.

Confidence & Retrieval Fluency

Dr. McClure also testified that when one is questioned over a period of time there is not an increase in accuracy in memory, but an increase in confidence. This means that someone can be confident in his memory because he has had “retrieval fluency,” i.e., he has practiced retrieving it and told a story to himself and others for so long that he is confident he is correct when in fact nothing has happened to affect the individual’s accuracy.

To this end, Dr. McClure further testified that while repeating a memory during an interview can “lock in an accurate memory” that only occurs where there is no misleading information or misinformation provided during the interview, because that misinformation can also be incorporated into the memory leading to “irretrievable effects.”

Dr. McClure also testified that the victim had the opportunity to go over the details of the event with detectives and the state’s attorneys several times. In that vein, Dr. McClure testified that eyewitness confidence or certainty is not a good indicator of accuracy and that the retrieval process can actually inflate confidence “so people appear as if they are more confident about what they saw but they are not any more accurate about what they experienced.”

Not Allowed

The only testimony Dr. McClure was excluded from presenting was her own opinion as to whether or not Vargas’s identification of defendant as the shooter was reliable.

Issue

Defendant maintains the trial court abused its discretion when it did not allow Dr. McClure to testify regarding her ultimate opinion of whether or not the victim's testimony was reliable.

Opinion On Credibility Testimony

Notably, in Lerma, Dr. Loftus also indicated he would not “issue judgments” about whether the witnesses’ memories or assertions were correct and that any part that implied the unreliability of the eyewitness should not be construed as meaning that the defendant was innocent. 

Under Illinois law, it is generally improper to ask one witness to comment directly on the credibility of another witness. People v. Kokoraleis, 132 Ill. 2d 235, 264 (1989); People v. Henderson, 394 Ill. App. 3d 747, 753-54 (2009). This is because “[q]uestions of credibility are to be resolved by the trier of fact.” Kokoraleis, 132 Ill. 2d at 264.

Thus, in this case the trial court did not abuse its discretion when it prohibited the defense from presenting Dr. McClure’s opinion regarding the reliability of Vargas’s identification.

Holding

We observe that “[a] trial court is not required to allow an expert to render an opinion on every conceivable question simply because such expert is qualified to do so.” People v. Cloutier, 156 Ill. 2d 483, 502 (1993). Given the facts of this case, the trial court properly limited Dr. McClure’s testimony, as such testimony could constitute direct, adverse comment on Vargas’s credibility.

In doing so, the trial court correctly left the issue of whether the State established the identification of the shooter to the jury. Therefore, based on the record before us, we find that the trial court’s decision was not arbitrary or unreasonable and does not amount to an abuse of discretion.

We therefore conclude that the trial court did not err in prohibiting Dr. McClure from testifying and rendering her opinion as to the reliability of Vargas’s identification, especially where such testimony “is clearly a function of the jury, not a purported expert.”

See Also Episode 293 -  People v. Anderson, 2017 IL App (1st) 122640 (January) (Trial court distinguishes Lerma to deny the use of an eyewitness expert in this case where the facts were stronger against defendant.) Episode 604 - People v. Macklin, IL App (1st) 161165 (March) (defense counsel no ineffective for not calling an eyewitness expert witness)   Episode 132 – People v. Lerma, 2016 IL 118496 (January)(Eyewitness Expert Testimony Validated by Illinois Supreme Court) See also Podcast 027 summarizing the lower court on this eyewitness expert testimony issue Episode 247 - Interview With Karen Daniel on Eyewitness Expert Litigation Episode 246 - Interview With Shari Berkowitz Expert on Eyewitness Identification Episode 578 -In re N.A., 2018 IL App (1st) 181332 (December) (No expert called in this single finger eyewitness identification case) Episode 392 - In re Christian W., 2017 IL App (1st) 162897 (August) (clear case where police fed the witness information)

Be Careful With Admissions By Omissions

Apr 17, 2019 15:48

Description:

People v. Ruiz, 2019 IL App (1st) 152157 (March). Episode 617 (Duration 15:47)

Defendant's conversation with his buddy is recorded and his friend kept telling him he always takes things to far.

Gist

Defendant was convicted of murder. He shot a killed a guy.

Issue

Prior to trial, defendant again tried to exclude recorded statements by filing a motion in limine to preclude the introduction at trial of a conversation between defendant and co-arrestee that took place in adjacent rooms at the police station shortly after the incident.

Defendant stated that he had asserted self-defense and the reasonableness of his actions was directly at issue.

According to defendant, his buddy’s commentary about defendant’s past actions was irrelevant, inadmissible, and highly prejudicial

Facts

As the victim was returning from purchasing cocaine and said, “What’s up?” to defendant, who was about 10 feet away from the victim.

Defendant asked, “Well, what you is?”, and the victim replied, “GD Folks.”

Defendant walked toward the victim, shot him three times, and ran to the back passenger seat of the Taurus, which left the area. 

The Car Stopped

Shortly after the shooting police stopped the car. Defendant had a gun on his lap.

Defendant, a female driver, and defendant's buddy were all arrested and taken into custody. They were taken to a police station and placed in separate rooms. Defendant’s and his buddy’s rooms were across from each other. Each room had video surveillance that was activated the entire time each person was in custody. A video camera is permanently mounted in the corner of each room and records anything that happens inside the room.

The Conversation

At one point, the men started talking to each other in Spanish. 

On the video and the recording you hear the buddy just wanting to know what happened. He wakes up in the car and the police are arresting everybody. He’s asking defendant what happened.

Defendant says things like:

"We did a f*** job, dude. I did it. I caught—I caught an a*** over there, dude. I caught a f***, dude. I let him have it, dude. Dude, you were—you were sleeping or very drunk, dude. I filled a guy with lead close range, n***. Close range—I filled him with lead, dude. He fell, dude, in front of me, dude. And when I—and when I tried to fill him up with lead again I didn’t have anymore, dude. I let him have like four or five, dude. Hey dude!"

The buddy repeatedly made statements such as, “You always take things too far.”

During the conversation, his buddy stated,

“You always take things too far,”

“You guys f*** take things too far, dude,”

“For real, dude, you guys take things too f*** far,”

“You went too far, dude,”

“Come on, man. No s*** man, you guys take things too f*** far,” and

“You guys take s*** too far, dude.”

Accountability

A defendant is legally accountable for another person’s criminal conduct when “either before or during the commission of an offense, and with the intent to promote or facilitate that commission, he or she solicits, aids, abets, agrees, or attempts to aid that other person in the planning or commission of the offense.” 720 ILCS 5/5-2(c).

To establish that a defendant intended to promote or facilitate a crime, “the State may present evidence that either (1) the defendant shared the criminal intent of the principal, or (2) there was a common criminal design.” People v. Fernandez, 2014 IL 115527, ¶ 13.

“Under the common-design rule, if ‘two or more persons engage in a common criminal design or agreement, any acts in the furtherance of that common design committed by one party are considered to be the acts of all parties to the design or agreement and all are equally responsible for the consequences of the further acts.’ ” Fernandez, 2014 IL 115527, ¶ 13 (quoting In re W.C., 167 Ill. 2d 307, 337 (1995)).

Admission By Silence 

The court found that the conversation between defendant and his buddy was not entitled to any constitutional protections because it was not prompted by the police or law enforcement. The court further stated that the statements were voluntary and defendant “could have said, ‘Listen, you’re out of line by saying this,’ otherwise it could be considered *** an admission by silence.”

At the hearing on defendant’s motion, the State asserted that his buddy’s words added context to the conversation.

Tacit Admission

Defendant argues that the court should have excluded the statement that defendant had gone “too far” and the numerous statements about “you guys” taking things “too far.” Defendant asserts that the tacit admission rule is flawed and at a minimum should not apply here because defendant was in police custody when the statements were made.

Under the tacit admission rule, a defendant’s silence may be introduced as a tacit or implied admission of guilt if the defendant remains silent in the face of an accusation of criminal conduct. People v. Sneed, 274 Ill. App. 3d 287, 295 (1995). When an incriminating statement is made in the presence and hearing of an accused and the statement is not denied, contradicted, or objected to, both the statement and the failure to deny it are admissible at trial as evidence of the accused’s acquiescence in its truth. People v. Childrous, 196 Ill. App. 3d 38, 53 (1990).

For the statement to be admitted, the following elements must be met:

(1) the defendant heard the accusative statement,
(2) the defendant had an opportunity to reply and remained silent, and
(3) the accusation was such that the natural reaction of an innocent person would be to deny it.

People v. Goswami, 237 Ill. App. 3d 532, 536 (1992).

The statement does not need to be made in an accusatory tone as long as it is evident that the defendant “was being painted or portrayed as a participant in illegal and prohibited activity.” People v. Miller, 128 Ill. App. 3d 574, 584 (1984). Further, “acquiescence or assent may be manifested by silence or by an evasive, equivocal, or unresponsive reply.” Childrous, 196 Ill. App. 3d at 53.

See Also

People v. Boston, 2018 IL App (1st) 140369 (December). Episode 580 (Duration 9:54) (In Illinois Post Arrest Silence Even Before Miranda Generally May Not Be Commented On)

Error To Apply The Rule Here

We decline defendant’s invitation to dispose of the tacit admission rule.

The tacit admission rule should not have been applied here to admit his buddy’s statements about defendant and “you guys” taking things “too far” and defendant’s failure to deny those statements.

It has been noted that tacit admissions should be “received with caution.” The tacit admission rule appears to be on particularly shaky ground when a defendant is in police custody and knows the police can hear his conversation, as in People v. Soto, 342 Ill. App. 3d 1005 (2003). See also Michael H. Graham, Cleary & Graham’s Handbook of Illinois Evidence § 802.7, at 679-80 (6th ed. 1994))), and that silence could be “motivated by many factors other than a sense of guilt or lack of an exculpatory story” (McCormick on Evidence § 262, at 306), such as “prior experience or the advice of counsel” (Powell, 301 Ill. App. 3d at 278).

Being in jai is a “unique” circumstance, it could not “reasonably be expected that defendant would feel free to respond” to his co-arrestee’s comments.

The statements by his buddy that defendant and “you guys” take things “too far” and defendant’s failure to deny those statements should not have qualified as tacit admissions.

Like the defendant in Soto, defendant here was under arrest and in a room at a police station. Further, defendant knew that an officer could hear him because he called for an officer multiple times while he spoke with his buddy. We find that defendant’s surroundings militate against applying the tacit admission rule to the specified statements made by his buddy and defendant’s failure to deny them.

Holding

We conclude that there is no reasonable probability that the jury would have acquitted defendant if his buddy’s statements had been excluded. The State’s evidence was overwhelming.

The judgment is affirmed.

Prosecutors Questions Could Have Been Presented More Clearly And Completely In The Grand Jury Room

Apr 16, 2019 15:30

Description:

People v. Rebollar-Vergara, 2019 IL App (2d) 140871 (March). Episode 616 (Duration 15:29)

Defendant gets into an argument with a guy and his buddy ups and shoots him, then sloppy questioning happens in the grand jury room.

Facts

Defendant and his buddy approach a rival gang member and trash talking ensues.

At one point the defendant’s buddy takes out his gun and fires 10 shots at the guy. One shot hits him in the back and the man dies. The shooter is convicted of murder in his own trial and gets 62 years.

This defendant says he didn’t know his buddy had a gun and didn’t know he was going to shoot the guy.

More Details

Defendant and the shooter were in the same gang, with the shooter allegedly serving in the role of security for the gang. Defendant and the shooter allegedly acted with the belief that the victim was a member of a rival gang. The state also showed that:

Defendant and the shooter walked to the convenience store, encountered the victim at the counter, and trash talked. Defendant and the shooter quarreled with the victim as he backed out of the store and across the parking lot. Defendant admitted that he wanted a “one-on-one” fistfight with the victim, but the shooter shot him first. The surveillance video shows the shooter flashing gang signs at the victim. Defendant had gang tattoos. Issue

Defendant says he is not accountable and says the indictment should have been dismissed because the evidence presented at the hearing showed that defendant did not confess or flash gang signs and the officers contrary testimony improperly affected the grand jury’s deliberations. Defendant argues that the statement was misleading because the surveillance video, which the grand jury did not view, does not show him flashing gang signs.

Convicted

The jury found defendant guilty of first-degree murder and also found that, during the commission of the offense, defendant, or one for whom he was legally responsible, was armed with a firearm. The court sentenced defendant to 38 years’ imprisonment.

Accountability

The trial turned on whether defendant was accountable for the shooter’s conduct, which the State attempted to show with evidence that defendant and the shooter were acting with a common criminal design to harm the victim, motivated by the victim’s disrespect to them and their gang.

“Accountability is not a crime in and of itself but, rather, a mechanism through which a criminal conviction may result.” People v. Pollock, 202 Ill. 2d 189, 210 (2002).

A defendant is legally accountable for another person’s criminal conduct when “either before or during the commission of an offense, and with the intent to promote or facilitate that commission, he or she solicits, aids, abets, agrees, or attempts to aid that other person in the planning or commission of the offense.” 720 ILCS 5/5-2(c).

To establish that a defendant intended to promote or facilitate a crime, “the State may present evidence that either (1) the defendant shared the criminal intent of the principal, or (2) there was a common criminal design.” People v. Fernandez, 2014 IL 115527, ¶ 13.

Says He Didn't Know

Defendant insists that he had no idea that the shooter would shoot the victim and therefore he did not share a common criminal design with the shooter.

Mere presence at the scene of a crime, or even presence coupled with flight from the scene or knowledge of the commission, is not sufficient to establish accountability. It's noteworthy that a third man was with the defendant's. He didn't approach the victim and stayed clear of the whole thing. He was not charged.

Unless an alleged accomplice intends to aid the commission of a crime, no guilt attaches. Perez, 189 Ill. 2d at 268. 

Common Design Rule

“Under the common-design rule, if ‘two or more persons engage in a common criminal design or agreement, any acts in the furtherance of that common design committed by one party are considered to be the acts of all parties to the design or agreement and all are equally responsible for the consequences of the further acts.’ ” Fernandez, 2014 IL 115527, ¶ 13 (quoting In re W.C., 167 Ill. 2d 307, 337 (1995)).

The State’s position was that defendant and the shooter acted with a common criminal design to harm the victim, and, to establish defendant’s accountability, it relied on his statement that he exited the store with the intent to fight the victim when the shooter shot him.

He's Accountable

Here's what the evidence was:

Defendant and the shooter, were members of the same gang, and Defendant thought the victim was a member of a rival gang. Defendant was heard to make, and admitted making, gang references to the victim While arguing and talking trash with him. Defendant also admitted previously having a fistfight with the victim. Defendant admitted that he knew the shooter But was evasive about their relationship and the shooter’s role as the shooter. Defendant admitted that he exited the store intending to fight the victim. Defendant fled with the shooter. Defendant talked to police only after they sought him out.

The State presented ample evidence from which the jury could infer that defendant’s trash talking and pursuing the victim from the store was a cue to the shooter to escalate the confrontation

The shooter’s act of shooting the victim was in furtherance of the common design to harm the victim. Evidence of an express agreement between defendant and the shooter was not necessary to establish a common purpose to commit a crime, as defendant’s cues to the shooter established his participation in the criminal scheme, even though there was no evidence that defendant directly participated in the actual crime of shooting the victim.

Prosecutorial Misconduct

A prejudicial denial of due process can occur where an indictment is procured through prosecutorial misconduct. Legore, 2013 IL App (2d) 111038, ¶ 23. “ ‘The due process rights of a defendant may be violated if the prosecutor deliberately or intentionally misleads the grand jury, uses known perjured or false testimony, or presents other deceptive or inaccurate evidence.’ ” Oliver, 368 Ill. App. 3d at 694 (quoting People v. DiVincenzo, 183 Ill.2d 239, 257 (1998)).

To warrant dismissal of the indictment, the denial of due process must be unequivocally clear, and the prejudice must be actual and substantial. Oliver, 368 Ill. App. 3d at 694-95. Prosecutorial misconduct resulting in a due process violation is actually and substantially prejudicial only if the grand jury would not have otherwise indicted the defendant. Legore, 2013 IL App (2d) 111038, ¶ 23. 

Prejudice is shown if the evidence was so weak that the misconduct induced the grand jury to indict. Oliver, 368 Ill. App. 3d at 697-98.

The Grand Jury

In this case, the officer answered “yes” to several questions that allegedly conveyed to the grand jury that defendant “confessed” and flashed gang signs at the victim.

The two sets of questions were:

(1) “Subsequently the two defendants were arrested?” and “They did make confessions, is that correct?” and

(2) “As the victim began to walk out of the store, one of the defendants started flashing gang signs at him?” and “The defendants are following the victim out of the store flashing gang signs and arguing with him, is that correct?”

Furthermore, the challenged statement was immediately preceded by the officer affirming that, “as the victim began to walk out of the store, one of the defendants started flashing gang signs at him.”

What Does Confess Mean Anyway?

The Officer's statement that defendant “confessed” was ambiguous and not necessarily false.

Defendant defines “confession” as “a written or spoken statement in which you say that you have done something wrong or committed a crime.” Definitions of “confess” include “to tell of or make known (something private, hidden, or damaging to oneself)” and “to admit as true; assent to; acknowledge, especially after a previous doubt, denial or concealment.” Webster’s Third New International Dictionary 475 (1993).

Defendant claims that he, in fact, “did not confess to any involvement in the murder,” but that assertion is refuted by defendant’s acknowledgements during the police interview. Defendant’s initiation and escalation of the confrontation is now undisputed since the police confronted him with the surveillance video during the interview. Defendant admitted that he was at the convenience store and was at least a former member, if not a current member, of the gang.

Defendant admitted that he directed gang-related trash talk at the victim, whom he identified as a rival gang member. Defendant also admitted that he followed the victim into the parking lot with the shooter and intended a fistfight with the victim while the shooter looked on. He also admitted during his police interview that he argued with the victim as they exited the store.

No Prejudice

Defendant has not shown an “unequivocally clear” due process violation.

Even if the officer's affirmations regarding “confessions” and who flashed gang signs were inaccurate, we conclude that they did not cause “actual and substantial” prejudice.

The validity of the indictment did not turn on whether defendant explicitly “confessed” to being accountable for the shooter’s conduct or flashed gang signs at the victim. The grand jury heard detailed evidence that defendant and the shooter were fellow gang members who jointly confronted and aggressively pursued the victim, who they thought was a rival gang member. From these facts, we cannot say that “without [the complained-of testimony] the grand jury would not have indicted the defendant.” See Oliver, 368 Ill. App. 3d at 696-97.

The remaining evidence supported the grand jury’s determination of probable cause based on defendant’s actions.

Judge Had More Facts During The Hearing

The remaining evidence presented at the hearing shows that defendant admitted to conduct supporting the inference that he and the shooter shared a common criminal design. Defendant’s initiation and escalation of the confrontation was confirmed by the surveillance video that was viewed by the trial court at the hearing. At the request of defense counsel, the trial court also viewed portions of the video-recorded police interview of defendant. 

Counsel made the calculated decision that the surveillance and interview videos undermined the officer’s testimony.

In this appeal we are called upon to determine whether the trial court erred in denying defendant’s motion to dismiss the indictment after conducting a hearing that included the presentation of this evidence. The facts known at the time of the hearing were that:

Defendant admitted that he was at least a former member of the Latin Kings. Defendant admitted directing gang-related trash talk at the victim, Whom he identified as a rival gang member. Defendant admitted that he and the shooter followed the victim into the parking lot Defendant admitted he intended to fight the victim.

Under these circumstances, the grand jury would have indicted defendant even if the challenged testimony by the officer had been excised from the proceedings.

As such, there was no unequivocally clear denial of due process resulting in actual and substantial prejudice.

Holding

We agree with the court that the officer’s testimony could have been presented more clearly and completely, and we do not condone the ambiguities that the prosecution elicited. However, to obtain a dismissal of the indictment for a due process violation, defendant had the burden of establishing that the error was “unequivocally clear” and resulted in “actual and substantial” prejudice. Defendant’s challenge to the indictment rises and falls on this extremely limited scope of review, which supports the court’s decision not to dismiss the indictment.

We hold that the trial court did not err in denying defendant’s motions to dismiss the indictment. We conclude that there was sufficient evidence to support the indictment, even without the challenged testimony that defendant confessed to the police and flashed gang signs at the victim. Second, we hold that the trial court did not abuse its discretion in excluding the shooter’s statement that defendant should not be charged. Third, we hold that the State’s closing argument did not amount to reversible prosecutorial misconduct.

Finally, the evidence presented at trial supported the murder conviction beyond a reasonable doubt.

There Is A Strong Dissent

The majority has exhausted itself trying to find a way to justify―or, at the very least, excuse―the State’s false claim of defendant’s confession; it has misstated law, conjured evidence, and created a false construct wherein the trial court, rather than the grand jury, determines probable cause based on evidence not presented to the grand jury.

Taken to its logical conclusion, the majority’s position supports the theory that no evidence need be presented to the grand jury so long as the defendant is convicted; the lack of evidence before the grand jury is harmless error if the petit jury is presented with proof beyond a reasonable doubt. If this satisfies due process, then I submit that the grand jury is a subverted vestigial organ that needs to be abandoned and replaced.

The majority essentially gives the State carte blanche to present whatever it wants to the grand jury, no matter how false and deceptive, so long as there is any evidence, no matter how equivocal, to support the resulting indictment. That is not the law, never was the law, and should never be the law if the grand jury is to serve its traditional purpose. No longer “a ‘shield’ against arbitrary prosecutions” (Rodgers, 92 Ill. 2d at 289), the grand jury becomes the proverbial mushroom that is kept in the dark and fed false confessions.

See Also People v. Garcia, 2019 IL App (2d) 161112 (March). Episode 615 (Duration 15:28) (Prosecutor used an inartful example to illustrate accountability, but this was not plain error.) People v. Hernandez, 2017 IL App (2d) 150731 (January). Episode 306 (Duration 9:04) (Defendant is accountable for this 7 kilogram heroin deal (he did the heat run).) Don't Beat-Up A Person With An Enlarged Heart - People v. Doolan, 2016 IL App (1st) 141780 (November). Episode 263 (Duration 6:47) (Defendant is accountable for first degree murder because him and his buddies decided to start a fight with a victim with an enlarged heart) What Is Criminal Accountability? - Episode 054 (Duration 16:17) (I created a simple 2 page accountability cheat-sheet for criminal law attorneys. I keep this towards the front of my trial book. It comes in handy in accountability cases when I need exact language quickly) People v. Boston, 2016 IL 118661 (February 2016) (Episode 144 Duration 6:29) (Sloppy grand jury work does not prejudice the defendant.)

An Example Of Inartful Closing Argument And How To Fix It

Apr 15, 2019 15:28

Description:

People v. Garcia, 2019 IL App (2d) 161112 (March). Episode 615 (Duration 15:28)

Prosecutor used an inartful example to illustrate accountability, but this was not plain error.

Gist

Following a trial in the circuit court of Boone County, a jury found defendant, Ricardo A. Garcia, guilty of first-degree murder in connection with the shooting death of Giovanni Galicia (720 ILCS 5/9-1(a)(1), (a)(2), (a)(3)).

Defendant was also found guilty of mob action (720 ILCS 5/25-1(a)(1)). He was found not guilty, however, of the attempted murders of Jesus Casas and Fermin Estrada.

Sentence

The court sentenced defendant to 35 years in prison for first-degree murder, to be served consecutively to a 2-year sentence for mob action.

Facts

Defendant was the driver of black Navigator.

Two men got out of it and pepperred a rival gang members’ car with bullets. The victim got hit in the head and died.

The men then got back in the care and defendant drove away. A police chase ensued and defendant was caught.

Inartful Closing Argument

Although the State’s examples were inartful, we hold that any error that occurred does not require reversal pursuant to either prong of the plain-error doctrine.

Comment 1

In attempting to explain accountability the proseuctor said:

“Now, we recognize this concept every day and we probably don’t even think about it during lawful activities. For example, if you go to JC Penney’s and you want to buy blue jeans and you go into the store and there’s a sales clerk walking by and you stop her and say, ‘Excuse me. Where are your blue jeans?’ And she says, ‘Oh, they’re on the back wall.’ So you go to the back wall, you pick out your Levis, and you go to the cash register and another woman rings you out. Now, the question is who sold you the jeans? Was it JC Penney, was it Levi Strauss, was it the salesperson who pointed you to the back wall, or the salesperson who took your money? Well, in truth they all are responsible for selling you the jeans because they all facilitated the sale. We also see this that we don’t need to see an expressed agreement to know that there was a plan."

Comment 2

The prosecutor continued:

"Again, if you’re walking along the sidewalk next to a park and you watch a car pull up, there’s a parent in the front seat and two children get out and run and start playing in the park, you know that there was a common plan to go to the park between those three people. You know that it existed before they arrived at the park. They decided sometime to go to the park. They got in the car and drove to the park. That plan existed before they got to that park, and you have no evidence of an expressed agreement to go to the park, but you have no problem with the concept that the parents are responsible for the children being at the park because they facilitated that transaction. You don’t need an expressed agreement. You can tell by the circumstances that there was an agreement to go to the park.”

What Was Wrong With The Statements?

These examples, in and of themselves, failed to provide complete and accurate representations of the law of accountability.

Neither scenario mentioned any sort of criminal activity.

Of course, one cannot be held criminally accountable for another’s actions in the absence of a crime. The examples also failed to illustrate that a defendant is not accountable for another’s conduct unless the defendant acts with the intention of promoting or facilitating the commission of an offense. 720 ILCS 5/5-2(c).

Kids Are Dumb

Moreover, the park example did a poor job of illustrating the supposed common plan among the occupants of the vehicle.

The prosecutor asserted that the children, who were of unspecified ages, must have planned in advance to go to the park simply because their parent ended up taking them there. That is not necessarily the case. What if the parent did not tell the children in advance that they were going to the park? What if the parent did not form any plan to take the children to the park until he or she happened to pass the park on the way to a different destination?

Additionally, as defendant correctly notes, driving a person to a destination does not in itself make the driver legally accountable for the passenger’s acts.

Harmless Error

With that said defendant’s concerns about the prosecutor’s use of the phrase “expressed agreement” in the park example are a bit overstated.

The prosecutor clearly used this phrase as part of his attempt to illustrate, albeit through a questionable example, that the State does not need to prove express words of agreement between codefendants and that the common design may instead be inferred from the surrounding circumstances.

Defense Counter Example

Furthermore, defense counsel in his closing argument specifically informed the jury of some of the problems with the prosecutor’s park example:

“Now, when we talk about—when he talks about his analogies, he talks about, well, when you go to a park and two kids get out of the car and they run to the park, you know there was an agreement to go to the park. Okay. When those kids start getting in a fight with somebody else there, the parents did not agree for that fight. The parents did not intend for that fight. The parents did not plan for that fight. They are not accountable for that fight. Merely getting the kids to the park or merely getting these people to this area is not accountability. It is not guilty and it is not beyond a reasonable doubt.”

Holding

Considering that

    Settings

(1) the two examples at issue constituted a small portion of the State’s closing argument, which otherwise reflected a proper legal theory,
(2) defense counsel took the opportunity to explain to the jury the flaws in one of those examples, and
(3) the judge properly instructed the jury, there is no threat that the jury was under any misapprehensions about the applicable law.

For these reasons, defendant has not demonstrated second-prong plain error. 

Conviction affirmed.

It's Structural Error To Proceed With A Bench Trial Without A Knowing Waiver In Open Court

Apr 10, 2019 11:45

Description:

People v. Johnson, 2019 IL App (1st) 162517 (March). Episode 614 (Duration 11:45)

No valid jury waiver in the record even though he apparently signed the waiver form.

Charges

Defendant was charged with armed violence (720 ILCS 5/33A-2(a)), possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(1)(B)), and the unlawful use or possession of a weapon by a felon (720 ILCS 5/24-1.1(a)).

Trial Date Set

After the court discussed defendant’s decision to reject the plea with defendant, the court asked for a trial date and “what kind of trial.”

Defense counsel answered “bench.”

The cause was continued “for bench indicated.”

The file was placed on the bench trial call. On the trial date the case was then passed. When the case was recalled, the court stated that the parties “answered ready for a bench trial in this matter.” Defendant’s signed jury waiver is contained in the record on appeal, and the “Criminal Disposition Sheet” indicates “waiver taken.”

Found Guilty

After a bench trial the court found defendant guilty of armed violence, possession of heroin with the intent to deliver, and the unlawful use or possession of a weapon by a felon.

The trial court merged the unlawful use or possession of a weapon count into the armed violence count and sentenced defendant to 15 years in prison for armed violence. The court also sentenced defendant to a consecutive nine-year sentence for possession of heroin with the intent to deliver.

Issue

On appeal, defendant contends that this cause should be remanded for a new trial because he did not waive his right to a jury in open court.

Right To Jury Trial

The right to a jury trial is protected by the United States Constitution (U.S. Const., amends. VI, XIV) and the Illinois Constitution (Ill. Const. 1970, art. I, § 8) and has been codified by the Illinois legislature.

The right to a jury trial is a fundamental right guaranteed by our federal and state constitutions. People v. Bannister, 232 Ill. 2d 52, 65 (2008). Although the right to a jury trial is fundamental, a defendant remains free to waive that right. Bracey, 213 Ill. 2d at 269.

Any such waiver must be “understandingly” made by the defendant in open court. 725 ILCS 5/103-6. Under section 103-6 of the Code of Criminal Procedure of 1963 (725 ILCS 5/103-6), a bench trial may be held if the right to a jury trial is

“understandingly waived by defendant in open court.”

A written waiver as required by section 115-1 of the Code of Criminal Procedure of 1963, is one means of establishing a defendant’s intent, although not dispositive of a valid waiver. This section provides that

“[a]ll prosecutions except on a plea of guilty or guilty but mentally ill shall be tried by the court and a jury unless the defendant waives a jury trial in writing.”

An Effective Waiver

Generally, a jury waiver is valid if it is made by defense counsel in open court in the defendant’s presence, without objection by the defendant. Id. at 270. “For a waiver to be effective, the court need not impart to defendant any set admonition or advice.” Id. (citing People v. Smith, 106 Ill. 2d 327, 334 (1985)).

Therefore, “the effectiveness of a defendant’s waiver depends on the facts and circumstances of each particular case” and turns on “whether the waiving defendant understood that his case would be decided by a judge and not a jury.” See People v. Reed, 2016 IL App (1st) 140498, ¶ 7 (citing Bannister, 232 Ill. 2d at 66, 69).

A reviewing court can consider a defendant’s silence when his attorney requests a bench trial as well as his “prior interactions with the justice system in determining whether a jury waiver was made knowingly. See also People v. Asselborn, 278 Ill. App. 3d 960 (1996) where the the court found that, despite the absence of a written jury waiver, the record demonstrated that the defendant knowingly waived his right to a jury trial in open court because he was present and failed to object when defense counsel elected to proceed by way of a bench trial. 

Signed Waiver Insufficient

Although the record contains defendant’s signed jury waiver, the record contains nothing that shows defendant was informed he was entitled to choose between a jury or bench trial or that he waived his right to a jury trial on the record. In other words, there is no indication in the record that defendant “understandingly waived” (725 ILCS 5/103-6) his right to a jury trial in open court.

Furthermore, while defense counsel mentioned a bench trial several times on the record, counsel did so only in the context of scheduling and at no point waived the right to a jury trial on defendant’s behalf. See, e.g., People v. Watson, 246 Ill. App. 3d 548, 549 (1993) (“Vague references to a bench trial at the rescheduling conferences were not sufficient to constitute a valid jury waiver, especially in light of the fact that the record is devoid of evidence suggesting that the defendant was ever apprised of his right to a jury trial.”).

See also People v. Ruiz, 367 Ill. App. 3d 236, 239 (2006) where this court has previously held, in a case where there was no discussion in open court of the defendant’s jury waiver but merely a signed jury waiver and discussion of a bench trial in terms of scheduling, that the defendant did not validly waive his right to a jury trial.

In other words, the existence of a written jury waiver is not dispositive of the issue of whether that waiver is valid.

In the case at bar, however, the trial court did not ask whether defendant wanted a bench trial or a jury trial, which would have indicated that defendant could choose how to proceed. There was no indication in the record that defendant knew he had a choice between a bench trial or a jury trial, and there was no discussion of defendant’s signed jury waiver in open court.

Holding

Accordingly, we find that defendant’s right to a jury trial was violated and he has, therefore, met his burden under the plain error doctrine.

Here, defense counsel and the trial court mentioned a bench trial several times on the record in the context of scheduling. This is not a valid jury waiver by, or on behalf of, defendant. Accordingly, we reverse the judgment of the circuit court and remand this cause for a new trial without reaching defendant’s other arguments on appeal. 

Compare This Case To…

People v. Thomas, 2019 IL App (2d) 160767 (March)

In that case defendant refused to sign the jury waiver but still wanted a bench trial.

However, the failure to file a written jury waiver does not require reversal “so long as the defendant’s waiver was made understandingly in accordance with section 103-6 of the Code of Criminal Procedure.” People v. Tooles, 177 Ill. 2d 462, 468 (1997).

The trial court is not required to provide a defendant with any particular admonishment or information regarding the constitutional right to a jury trial, but it has a duty to ensure that any waiver of that right is made expressly and understandingly. People v. Hernandez, 409 Ill. App. 3d 294, 297 (2011).

“Regardless of whether the defendant executed a written jury waiver, the record must show that the defendant understandingly relinquished the right to a jury trial.”

Here, the trial court discussed defendant’s jury waiver at length in the presence of his attorney, who had also discussed the matter with him. He clearly didn’t want a jury trial.

See Also These Other Examples of Structural Error Episode 419 – People v. Sheley, 2017 IL App (3d) 140659 (October) (structural error when judge falls asleep during murder trial but the record didn’t establish that in this case) People v. Vargas, 174 Ill. 2d 355 (1996) (structural error when judge leaves the bench during a trial) Episode 452 – People v. Henderson, 2017 IL App (3d) 150550 (November) (judge brings the jury out to see a video and leaves them alone in the courtroom with court personnel) People v. McKinley, 2017 IL App (3d) 140752 (March) (not plain error when judge played the video in the courtroom) Episode – People v. Lewis, 2018 IL App (4th) 150637 (April) (4th District thinks it’s perfectly fine for trial judge to play video for the jury in the courtroom so long as they do it right.) Episode 270  – People v. Evans, 2016 IL App (1st) 142190 (December). (structural error when grandma kept out during voir dire) Episode 502 – People v. Gore, 2018 IL App (3d) 150627 (April). (not structural error judge locks the doors during a jury question) Episode 371 – Weaver v. Massachusetts, SCOTUS, No. 16-240 (June 2017) (petitioner’s mother and minister were excluded from the courtroom for two days during jury selection but no prejudice to petitioner) Episode 368 – People v. Thompson, 2017 IL App (5th) 120079-B (May)(failure to instruct the jury on an essential element of the case does not necessarily constitute plain error) People v. Belknap, 2014 IL 117094 (December) (failure of the trial court to get the Zehr admonishments right is not strictly plain error). See also People v. Thompson, 238 Ill. 2d 598, 609, 939 N.E.2d 403, 411 (2010)People v. Sebby, 2017 IL 119445 (June) (high court reexplains how plain error works) Episode 244 – People v. Buckhanan, 2016 IL App (1st) 131097 (September) (denial of your counsel of choice is structural error)  

In This DUI The Officer Substantially Complies With His Breathalyzer Certification

Apr 9, 2019 12:55

Description:

People v. Caraballo, 2019 IL App (1st) 171993 (March). Episode 613 (Duration 10:42)

Officer was not certified at the time of the breathalyzer, but he was substantially certified.

Gist

This is a DUI stop with an arrest.

The jury found defendant guilty of driving with an alcohol concentration of .08 or more and guilty of driving under the influence of alcohol. Defendant was sentenced to 12 months’ conditional discharge.

The Breathalyzer

The Officer testified that at the police station, he read defendant his Miranda warnings, and after the required 20-minute observation period, defendant agreed to submit to a breath test.

After The Officer described the test procedures employed, the State offered defendant’s breathalyzer ticket into evidence.

But...

The officer's certification had expired 5 days before the arrest.

He had 11 year employment with the Hickory Hills police department and had specific training for the administration of breath tests through “a class put on through NEMRT at the Burbank Police Department” in 2006 or 2007. He also took a three-day certification class that required him to take practical and written exams relating to the operation of a breathalyzer machine. After passing these exams, The Officer was certified to operate breath machines, specifically the Intoximeter EC/IR II used by the Hickory Hills police department, and he was recertified in 2010.

The officer was able to get recertified the very next day after this arrest. 

Issue

Defendant's sole argument on appeal is that the State did not lay a proper foundation for admission of the results of the breathalyzer test because the administrator of the test was not licensed at the time the test was given and therefore the court’s ruling on the State’s motion in limine was erroneous.

Admissibility of Breathalyzer

The admissibility of breathalyzer test results is governed by standards promulgated by the State Police as dictated by statute.

625 ILCS 5/11-501.2(a) of the Illinois Vehicle Code (Code) states in relevant part:

"(a) Upon the trial of any civil or criminal action or proceeding arising out of an arrest for an offense as defined in Section 11-501 or a similar local ordinance or proceedings pursuant to Section 2-118.1, evidence of the concentration of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof in a person’s blood or breath at the time alleged, as determined by analysis of the person’s blood, urine, breath or other bodily substance, shall be admissible.

Where such test is made the following provisions shall apply:

1. Chemical analyses of the person’s blood, urine, breath or other bodily substance to be considered valid under the provisions of this Section shall have been performed according to standards promulgated by the Department of State Police by a licensed physician, registered nurse, trained phlebotomist, certified paramedic, or other individual possessing a valid permit issued by that Department for this purpose. The Director of State Police is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, to issue permits which shall be subject to termination or revocation at the discretion of that Department and to certify the accuracy of breath testing equipment. The Department of State Police shall prescribe regulations as necessary to implement this Section.”

The Administrative Code

Section 1286.00 of Title 20 of the Illinois Administrative Code states:

“The Director or his/her designee is authorized to license persons to be BAOs [(Breath Alcohol Operators)] subject to the requirements of this Section. BAOs are licensed to perform all appropriate BAO functions described in this Part. Only licensed BAOs may operate evidential breath testing instruments.

a) To be eligible to be a BAO, the individual must be employed by an agency or an accredited law enforcement training academy. BAO candidates, including those who have previously been licensed as a BAO in another state, must successfully attend the course and pass the written and proficiency examination or successfully complete a computer-based training (CBT) course.

b) Under the direction and control of a BAI [(Breath Alcohol Instructor)], BAO candidates must:

1) Complete a training curriculum approved by the Department that includes a minimum of 16 hours of instruction, which includes the following:

A) Presentation and discussion of the psychological, physiological, and pharmacological effects of alcohol in the human body;

B) Demonstration and discussion of instruments and the analytical processes used to measure BrAC [(Breath Alcohol Concentration)];

C) Practical application and demonstration in the use of an evidentiary instrument; and

D) Discussion of current DUI issues, the administrative rules, and case law.

2) Pass the following:

A) The standardized written examination for Breath Analysis Operator provided by the Department with a minimum score of 70 percent.

B) A proficiency examination in which the candidate operates approved evidentiary instruments.

c) A license shall be valid for a period of three years after the printed date of issuance. If the license is not renewed as provided for in Section 1286.110, it shall expire three years after the printed date of issuance.”

20 Ill. Adm. Code § 1286.100.

The Case Law

The requirements for laying the proper foundation of breath test results were outlined by our supreme court in People v. Orth, 124 Ill. 2d 326, 340 (1988). To lay a proper foundation, the State must establish that the test was performed in accordance with both section 11-501.2(a) of the Illinois Vehicle Code (625 ILCS 5/11–501.2(a) (West 2010)) and the regulations promulgated by the Illinois Department of State Police.

The State must lay a foundation establishing five factors:

(1) evidence that the test was performed in accordance with the uniform standard adopted by the Illinois Department of State Police;
(2) evidence that the operator conducting the test was certified by the Department of State Police;
(3) evidence that the breath test machine used was a model approved by the Department of State Police, was working properly, and was tested regularly for accuracy;
(4) evidence that defendant was observed for 20 minutes prior to the test, and during that time, he did not smoke, drink or regurgitate; and
(5) evidence that the results on the “printout” sheet are properly identified as defendant’s test results.

Failure to comply with section 11-501.2(a) and the regulations renders the results of the test unreliable and, thus, inadmissible. People v. Emrich, 113 Ill. 2d 343, 350 (1986).

Substantial Compliance?

Because the administrator was not licensed at the time the test was administered, the breath test was not conducted in conformity with the regulations promulgated by the Department of State Police.

Both Ebert and Bishop involve challenges to tests that deviated slightly from the standards prescribed for administration of the test. These de minimis deviations did not affect the validity or reliability of the results. Substantial compliance was sufficient in those cases where a defendant was not continuously observed for the required 20-minute period because the defendant testified that he did nothing that, if he was observed, would have affected the test and where the State collected a second urine sample because the first sample was taken at the hospital following defendant’s automobile accident.

In this case we cannot find there was substantial compliance where the officer was not licensed at the time he administered the breath test: there simply was no compliance, as required by the statute and the Department’s standards.

The plain language contained in the Department standards and the finding in Orth specifically requires that, to be admissible in evidence, the breath tests shall be “performed” by a licensed administrator according to the standards. The test was not performed according to the required standards in this case, and the failure to strictly comply was not de minimis.

Holding

Because The Officer was not a licensed breath analysis operator at the time he administered the defendant’s test, the State failed to lay the required foundation for the admission of the breath test results in a section 501(a)(1) prosecution and it was reversible error to admit the results into evidence.

 Accordingly, defendant’s motion in limine should have been granted and the breath test results should not have been admitted. We therefore reverse defendant’s conviction for driving with an alcohol concentration of .08 or more (625 ILCS 5/11-501(a)(1)).

We find that there was overwhelming evidence from which the jury could conclude beyond a reasonable doubt that defendant was under the influence of alcohol while in physical control of the vehicle even without the admission of the breath test evidence.

Reckless Homicide Cases

See People v. Keith, 148 Ill. 2d 32 (1992). It's a reckless homicide case where BAC results that didn't comply with the code were admitted. The court held so long as the results were relyably the normal rules of evidence applied. The regs only applied to prosecutions under the DUI statute.

These cases don't help the state here.

More Interesting Facts

The officer was  originally stopped at a stop sign in his marked patrol vehicle when he observed a vehicle pass him and “the passenger’s side tires strike a curb, go over the curb, travel through the grass, just miss a tree and then come back into the lane of traffic.” As the vehicle came back into the lane of traffic, “the driver’s side tires then crossed the solid yellow line before coming back into the road.”

The Officer then initiated a traffic stop based on his observations.

The Officer observed that defendant had “glassy, bloodshot eyes” and “highly slurred” speech. Defendant also had a strong odor of alcohol coming from his mouth. Defendant told The Officer that he had a little to drink.

Defendant attempted to hand The Officer a bottle of Jack Daniels but he missed The Officer’s hand and the bottle fell to the ground.

The video from The Officer’s squad car was played in open court. It showed defendant complying with The Officer’s request to exit the vehicle. As defendant exited, he tripped and almost fell into moving traffic. The Officer had to stop him from hitting the ground.

The Officer asked defendant to complete some field sobriety tests and read the instructions for these tests from a book of standardized instructions. During the one-legged test, defendant placed his foot down, fell off balance, and raised his hand up. These actions suggested impairment. For the walk-and-turn-test, The Officer noted that defendant’s balance was “horrible,” and that he did not seem to understand the directions or The Officer’s demonstration. The Officer observed four or five clues of impairment, when only two are needed. 

The authenticated breathalyzer ticket showed a test result of .260.

See Also  Episode 470 - People v. Robledo, 2018 IL App (2d) 151142 (February). (Defendant blew .082 she argued the margin of error of the machine means the state didn’t prove she was .08.) Episode 454 - People v. Ernsting, 2018 IL App (5th) 160330 (January).  (Ronald Henson testified that blood in the mouth produces unreliable breathalyzer results and would tend to produce a disproportionately higher BAC.) Episode 271 - People v. Cielak, 2016 IL App (2d) 150944 (December).  (Observation period lasted only 19 minutes rather than 20. Is rescission of SSS proper?) Episode 035 - DUI Breathalyzer Machine and Procedure, DUI Expert Witness William Pelarenos Breaks it All Down Episode 211 - People v. Taylor, 2016 IL App (2d) 150634 (July) (Forced PBT leads to suppression of DUI evidence and DUI reversal.)

March 2019 Speed Round (The Illinois Criminal Case Law Round Up)

Apr 8, 2019 44:20

Description:

This is the March 2019 Illinois criminal case law audio round-up (the fast case law summary). Episode 612 (Duration 44:19)

The March 2019 Top Illinois Criminal Law Cases (The Monthly Round-Up)

Here's a quick snapshot of the top cases:

1. People v. Patel

State failed to produce discover for the SSS Hearing, they subsequently blew Trainor.

2. People v. Caraballo

Officer was not certified at the time of the breathalyzer, but he was substantially certified.

3. People v. Sanchez

Defendant is arrested at his home where he found plastered and driven back to the crash scene by police.

4. People v. Thomas

Police see a defendant hand a gun to another person and then try to run and hide.

5. People v. Holmes

An essentially anonymous tip was treated as wholly unreliable resulting in an outright reversal of this gun conviction.

6. People v. Webb

Another version of UUW is held unconstitutional; this time it's the one banning tasers.

7. People v. Cunningham

Defendant gets 3 years for shooting himself in the leg in a housing project; this UUW version is constitutional.

8. People v. Drake

Although the reversal is still good the lower court judgement that double jeopardy barred a retrial is reversed.

9. People v. Lewis

One gun expert testified about the work done a different expert who was out on medical leave.

10. People v. Spicer

Can the prosecution compel you to give up your phone password?

11. People v. Othman

Has the plain error gotten much more liberal?

12. People v. Smith

Kid is available for cross even though they don't remember the actual allegation of sexual abuse.

13. People v. McArthur

17 year old held for more than 70 hours before his probable cause hearing, nonetheless, his confessions were all voluntary.

14. People v. Ruiz

Defendant's conversation with his coarresttee is recorded and his friend kept telling him he always takes things too far.

15. People v. Corral

Kid got his eyewitness expert witness on the stand, but the witness was not allowed to get into what she thought about the reliability of the witness.

16. People v. Macklin

Was defense counsel ineffective for not calling an eyewitness expert witness?

17. In re J.P.

Juvenile court act allows a judge to order the removal of a gang tattoo.

18. People v. Rebollar-Vergara

Defendant gets into an argument with a guy and his buddy ups and shoots him, then sloppy questioning happens in the grand jury room.

19. People v. Garcia

Prosecutor used an inartful example to illustrate accountability, but this was not plain error.

20. People v. Holt

The split deepens between the Second, Fourth and Third Districts on these burglary/retail theft convictions.

21.  People v. Bausch

Grabbing your wife's purse can constitute insulting and provoking contact.

22. People v. McCurine

Defendant says he was prejudiced and due process was violated when the state was allowed to tell the jury he was charged with being a habitual criminal.

23. People v. James

Another SORA conviction reversed because police failed to investigate the circumstances of his living arrangement.

24. People v. Johnson

No valid jury waiver in the record even though he apparently signed the waiver form.

25. People v. Thomas

Defendant refused to sign the jury waiver but still wanted a bench trial.

26. People v. Maya

Even "obvious" matters of sound trial strategy may be rebutted by defendant, here the lawyer kept a sheriff's deputy on the jury.

27. People v. Mooney

Agreeing to continuance was ineffective, outright reversal is the only remedy.

Is It Constitutional To Ban Guns From Public Housing?

Apr 4, 2019 11:05

Description:

People v. Cunningham, 2019 IL App (1st) 160709 (March). Episode 611 (Duration 9:18)

Defendant gets 3 years for shooting himself in the leg in a housing project; this UUW version is constitutional.

See Also These Prior Constitutionality Cases Episode 610 - People v. Webb, 2019 IL 122951 (March) (UUW Provision Banning Stun Guns Is Shot Down) Episode  387 – People v. Holmes, 2017 IL 120407 (July) (Can Police Stop You If They See A Gun?) Episode 457 – People v. Chairez, 2018 IL 121417 (February) (possessing a firearm within 1000 feet of a public park in violation of section 24-1(a)(4), (c)(1.5) of the UUW statute is facially unconstitutional) Episode 513 – People v. Bell, 2018 IL App (1st) 153373 (June) (Gun Laws Banning Firearms In Protected Places Are 100% Constitutional-This Was A Park) Episode 512 – People v. Green, 2018 IL App (1st) 143874 (June) (Gun Laws Banning Firearms 1,000 Feet From Protected Places Are Unconstitutional - School Was The Place In Question)  Episode 060 – People v. Mosley, 2015 IL 115872 (February) (Aggravated Unlawful Use of a Weapon – 720 ILCS 5/24-1.6 Revisited by Illinois Supreme Court Nonprobationable Class 4 AUUW Invalidated) Episode 524 – In re N.G., 2018 IL 121939 (August) (Illinois Supreme Court Admits They Got McFadden Wrong Proceed To Vacate Those AUUW’s) Gist

The State charged defendant with unlawful use of a weapon and reckless discharge of a firearm based on defendant having shot himself in the leg.

Charges

The charging instrument stated the State sought to have defendant sentenced as a Class 3 felon because the incident took place in an apartment owned by the Chicago Housing Authority and used as public housing.

UUW Public Housing

Section 24-1(a)(4), (c)(1.5) (in public housing) of the Criminal Code of 2012 (Criminal Code) which reads, in pertinent part, as follows:

“(a) A person commits the offense of unlawful use of weapons when he knowingly: * * * (4) Carries or possesses in any vehicle or concealed on or about his person except when on his land or in his own abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person’s permission, any pistol, revolver, stun gun or taser or other firearm, except that this subsection (a) (4) does not apply to or affect transportation of weapons that meet one of the following conditions:

(i) are broken down in a non-functioning state; or
(ii) are not immediately accessible; or
(iii) are unloaded and enclosed in a case, firearm carrying box, shipping box, or other container by a person who has been issued a currently valid Firearm Owner’s Identification Card; or
(iv) are carried or possessed in accordance with the Firearm Concealed Carry Act by a person who has been issued a currently valid license under the Firearm Concealed Carry Act; or...* * *

(c) Violations in specific places. * * * (1.5) A person who violates subsection 24-1(a)(4) *** in residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development *** or on any public way within 1,000 feet of the real property comprising any *** residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development commits a Class 3 felony.”

720 ILCS 5/24-1(a)(4), (c)(1.5).

Facts

Defendant was messing around with a gun at his buddies house.

The responsible lady of the house she lived in her apartment with her boyfriend and daughter. When She arrived home on the day defendant was shot, defendant, her boyfriend, and two others were in the apartment. The women saw them running from the area of two back bedrooms.

Defendant exclaimed, “I’m shot, I’m shot.”

When she returned to the living room she saw defendant lying on the floor bleeding from his right leg. She then took the gun from her boyfriend and put it in a different apartment in the building.

When the police got there she was evasive at first but eventually retrieved the gun and gave it to police.

Did Defendant Live There?

At the time defendant was shot he had been staying in her apartment for about one week, but defendant did not pay any rent or bills.

Defendant Confesses

Once at the hospital defendant apologized to the Sergeant for not telling him the truth earlier and stated he (defendant) had shot himself.

Guilty

The court found defendant guilty of UUW and reckless discharge of a firearm and sentenced him to three years’ imprisonment for UUW and a concurrent term of two years’ imprisonment for reckless discharge.

Issue

Defendant argues Chairez demonstrates that section 24-1(a)(4), (c)(1.5) (in public housing) is facially unconstitutional because Chairez establishes that to survive a constitutional challenge the State “must make a strong showing of a substantial justification for subsection (c)(1.5), as well as a close fit between a law that bans firearms in public housing residences and its end: the safety of those residents and invitees.”

The Chairez Standard

The Chairez court stated that answering the question of whether a portion of the UUW statute is constitutional “involves a two-part approach.” Id. ¶ 21.

First, we conduct a textual and historical analysis of the second amendment to determine whether the challenged law imposes a burden on conduct that was understood to be within the scope of the second amendment’s protection at the time of ratification. If the conduct falls outside of the scope of the second amendment, then the regulated activity is categorically unprotected, and the law is not subject to further second amendment review.

Second, if the historical evidence is inconclusive or suggests that the regulated activity is not categorically unprotected, then we apply the appropriate level of heightened means-ends scrutiny and consider the strength of the government’s justification for restricting or regulating the exercise of second amendment rights. 

Clearly Some Bans & Restrictions Are Proper

The scope of the second amendment’s protection is not unlimited.

Some “presumptively lawful regulatory measures” (Heller, 554 U.S. at 627 n 26) include “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms” (Heller, 554 U.S. at 626-27).

But Illinois courts will apply the appropriate level of heightened means-ends scrutiny and consider the strength of the government’s justification for restricting or regulating the exercise of second amendment rights under the second step, even where a “presumptively lawful regulation” is involved.

Under this approach, the second step of the inquiry requires the court to examine the strength of the government’s justifications for restricting certain firearm activity by evaluating the restriction the government has chosen to enact and the public-benefits ends it seeks to achieve. 

A severe burden on the core Second Amendment right of armed self-defense will require an extremely strong public-interest justification and a close fit between the government’s means and its end. However, laws restricting activity lying closer to the margins of the Second Amendment right, laws that merely regulate rather than restrict, and modest burdens on the right may be more easily justified.

Thus, the heightened means-end inquiry is a sliding scale that is neither fixed nor static.

Thus, a substantial curtailment of the right of armed self-defense requires a greater showing of justification than merely that the public might benefit on balance from such a curtailment. Conversely, when a state bans guns merely in particular places, such as public schools, a person can preserve an undiminished right of self-defense by not entering those places; since that’s a lesser burden, the state doesn’t need to prove so strong a need.

The 720 ILCS 5/24-1(a)(4) Exception

Section 24-1(a)(4) provides an exception for persons in their “own abode [or] legal dwelling.” 720 ILCS 5/24- 1(a)(4).

Therefore, the statute at issue in this case could not be applied to a resident of public housing. On the face of section 24-1(a)(4), (c)(1.5), residents of public housing are not prohibited from carrying or possessing a firearm “in residential property owned *** by a public housing agency.” 720 ILCS 5/24-1(a)(4), (c)(1.5).

Residents of public housing, to whom the statute at issue does not apply. As such this case is more akin to a ban on guns merely in particular places. It is a specific ban on the carriage of guns by nonresidents in public housing.

Strong State Interest

The State argues the provision at issue “is substantially related to the important government interest in preventing harm to families, children, seniors, persons with disabilities and other vulnerable populations who reside in public housing.” The State argues that, like the public park in Bell, the law only prohibits firearms “in” a public housing building and, like public parks, public housing buildings are areas where large numbers of people, including children, congregate, and for all the same reasons and the same rationale, the prohibition on possessing firearms in Chicago Housing Authority (CHA) buildings is a reasonable measure to secure public safety.

Not A Categorical Ban

The statutory provision at issue in this case does impose some burden on visitors’ to public housing second amendment rights. However, this burden is not a categorical ban on the carrying of firearms in public and therefore a “more rigorous showing” under heightened.

There is more than a “rational” fit between “protecting the safety of residents, guests, and others who are present from time to time at housing facilities” and limiting the number of guns on public housing properties, thereby limiting potential violence.

Holding

The law and the State’s justification for the provision at issue are not so unreasonable as to fail intermediate scrutiny.

The state’s aim is to protect vulnerable populations in public housing facilities and it has done so with a modest and easily avoidable burden on its citizens’ second amendment rights. We hold the statutory provision at issue in this case survives the heightened intermediate scrutiny that is applicable in this instance and, thus, defendant’s facial challenge to the statute fails.

On A Side Note...

Here, the evidence adduced at trial is insufficient to prove defendant acted recklessly beyond a reasonable doubt.

The reckless discharge conviction is vacated.

The record contains no facts from which to reasonably infer defendant consciously disregarded a substantial and unjustifiable risk to the bodily safety of an individual. 

See Also Episode 531 - People v. Peel, 2018 IL App (4th) 160100 (August) (Another Idiot With A Gun – Reckless Discharge?) Episode 313 - People v. Grant, 2017 IL App (1st) 142956 (February) (Reckless Discharge Requires Endangering The Bodily Safety Of “An Individual”) Episode 215 - People v. Olivieri, 2016 IL App (1st) 152137 (August) (Sympathetic Nervous System Reaction Wins The Day In This Gun Case) Episode 066 - People v. Moreno, 2015 IL App (3d) 130119 (March) (What’s so wrong about about a little firearm discharging during the holidays?)

UUW Provision Banning Stun Guns Is Shot Down

Apr 3, 2019 07:41

Description:

People v. Webb, 2019 IL 122951 (March). Episode 610 (Duration 6:17)

Another version of UUW is held unconstitutional; this time it’s the one banning tasers.

Charges

Defendant was charged by misdemeanor complaint with violating section 24-1(a)(4) of the UUW statute (720 ILCS 5/24-1(a)(4)) after he was discovered carrying a stun gun in his jacket pocket while in his vehicle on a public street.

Gist

He was charged by misdemeanor complaint with violating section 24-1(a)(4) after he was found carrying a stun gun in his backpack in a forest preserve, a public place.

Issue

At issue is the constitutionality of the portion of section 24-1(a)(4) of the UUW statute relating to stun guns and tasers.

Illinois Unlawful Use of Weapons (UUW) Statute

This provision states, in pertinent part:

“(a) A person commits the offense of unlawful use of weapons when he knowingly: * * * (4) Carries or possesses in any vehicle or concealed on or about his person except when on his land or in his own abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person’s permission, any pistol, revolver, stun gun or taser[2] or other firearm, except that this subsection (a) (4) does not apply to or affect transportation of weapons that meet one of the following conditions: * * * (iv) are carried or possessed in accordance with the Firearm Concealed Carry Act by a person who has been issued a currently valid license under the Firearm Concealed Carry Act[.]”

720 ILCS 5/24-1(a)(4)(iv).

“A ‘stun gun or taser’, as used in this paragraph (a) means (i) any device which is powered by electrical charging units, such as, batteries, and which fires one or several barbs attached to a length of wire and which, upon hitting a human, can send out a current capable of disrupting the person’s nervous system in such a manner as to render him incapable of normal functioning or (ii) any device which is powered by electrical charging units, such as batteries, and which, upon contact with a human or clothing worn by a human, can send out current capable of disrupting the person’s nervous system in such a manner as to render him incapable of normal functioning[.]”

720 ILCS 5/24-1(a)(10).

The Second Amendment

The second amendment to the United States Constitution provides,

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

U.S. Const., amend. II.

A Brief History Before Aguilar

In District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010), the Supreme Court of the United States held that the second amendment secures for individuals the right to keep and bear arms and that, through the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV), this right is fully applicable to the states.

Then came Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012) and People v. Aguilar, 2013 IL 112116 (holding the provision of the aggravated unlawful use of a weapon statute that categorically prohibited the possession and use of any operable firearm for self-defense outside the home violated the second amendment).

See also Mosley, 2015 IL 115872 (holding unconstitutional under the second amendment the portion of the aggravated unlawful use of a weapon statute that criminalized the possession of an uncased, loaded firearm on a public way).

In determining whether a statutory provision violates the second amendment we first consider whether the provision imposes a burden on conduct that falls within the scope of the amendment. People v. Chairez, 2018 IL 121417, ¶ 21.

Second Step Analysis

If it does not, our analysis comes to an end. 

Otherwise, we move to the second step of the inquiry, in which we must determine and apply the appropriate level of constitutional scrutiny.

In this case, the State concedes that stun guns and tasers are bearable arms that fall within the protection afforded by the second amendment. We agree. In Heller, 554 U.S. at 582, the Supreme Court rejected the idea that the second amendment extends only to “those arms in existence in the 18th century.” Instead, “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”

Heller defined “bearable arms”: Stun guns and tasers may be taken into one’s hands and used both for defense or “to cast at or strike another.” Clearly, stun guns and tasers are bearable arms within the meaning of the second amendment. People v. Yanna, 824 N.W.2d 241, 244 (Mich. Ct. App. 2012).

Accordingly, the State concedes that stun guns and tasers are bearable arms that fall within the scope of the second amendment.

But The Section Has A Conceal & Carry Exception

Subparagraph (iv) of section 24-1(a)(4) excludes from the offense of UUW only those weapons that are carried or possessed “in accordance” with the Carry Act by a person who has been issued a concealed carry license.

To be “in accordance” with a statute means to be in agreement or conformance with that law.

In our view, the most natural reading of the requirement that weapons be carried or possessed “in accordance” with the Carry Act is that the weapons, themselves, are of the type for which a valid concealed carry license may be issued under the Carry Act.

Indeed, any other reading would lead to absurd results.

Under the State’s reading of the statute, as long as a person has a concealed carry license for a handgun, that person may carry any other weapon, including a rifle or shotgun, and still be acting “in accordance” with the Carry Act, even though the Carry Act is specifically limited to handguns and does not allow for the concealed carry of rifles or shotguns.

We do not think the State’s interpretation is what the legislature intended.

You Can’t Get A Conceal & Carry License For A Stun Gun

Our conclusion that stun guns and tasers cannot be carried or possessed “in accordance” with the Carry Act because a concealed carry license cannot be issued for those weapons is further supported by section 24-2(a-5) of the UUW statute.

This provision states that section 24-1(a)(4) of the UUW statute does not “apply to or affect any person carrying a concealed pistol, revolver, or handgun and the person has been issued a currently valid license under the Firearm Concealed Carry Act at the time of the commission of the offense.” 720 ILCS 5/24-2(a-5).

When read together with section 24-1(a)(4), section 24-2(a-5) makes clear that only those weapons that can be licensed under the Carry Act are meant to be excluded from the reach of the UUW statute.

Holding

Given the foregoing, we reject the State’s argument that section 24-1(a)(4) is merely a regulation of stun guns and tasers. Rather, that provision sets forth a comprehensive ban that categorically prohibits possession and carriage of stun guns and tasers in public.

Thus, that provision necessarily cannot stand.

Accordingly, we hold the portion of section 24-1(a)(4) that prohibits the carriage or possession of stun guns and tasers is facially unconstitutional under the second amendment.

See Also Episode 387 – People v. Holmes, 2017 IL 120407 (July)(Does Aguilar Mean Stops Based On Seeing A Gun Are Unconstitutional?) Episode 457 – People v. Chairez, 2018 IL 121417 (February) (possessing a firearm within 1000 feet of a public park in violation of section 24-1(a)(4), (c)(1.5) of the UUW statute is facially unconstitutional) Episode 512 – People v. Green, 2018 IL App (1st) 143874 (June) (Gun Laws Banning Firearms 1,000 Feet From Protected Places Are Unconstitutional)  Episode 513 – People v. Bell, 2018 IL App (1st) 153373 (June) (Gun Laws Banning Firearms In Protected Places Are 100% Constitutional) Episode 524 – In re N.G., 2018 IL 121939 (August) (Illinois Supreme Court Admits They Got McFadden Wrong Proceed To Vacate Those AUUW’s) Episode 060 – People v. Mosley, 2015 IL 115872 (February) (Aggravated Unlawful Use of a Weapon – 720 ILCS 5/24-1.6 Revisited by Illinois Supreme Court) Episode 008 – People v. Gayfied, 2014 IL App (4th) 120216-B (July) (only some districts support the extension of bans under AUUW)

Police Chase Some Men, See A Gun And Arrest Them - Is That Legal?

Apr 2, 2019 18:16

Description:

People v. Thomas, 2019 IL App (1st) 170474 (March). Episode 609 (Duration 11:51)

Police see a defendant hand a gun to another person and then try to run and hide.

First See Episode 552 - People v. Bonilla, 2018 IL 122484 (October) (Supreme Court Is Pushed To Decide If Apartments Have Less Constitutional Protection Than Houses) Episode 464 - Recap of the Apartment v. House Controversy Episode 595 - In re K.M., 2019 IL App (1st) 172322 (February) (Police Still Haven’t Quite Got The Hang Of This Property Based Rights Thing When They Trample Onto Private Property) Episode  387 - People v. Holmes, 2017 IL 120407 (July) (Can Police Stop You If They See A Gun?) Episode 601 - People v. Holmes, 2019 IL App (1st) 160987 (March) (Police Told Man Has A Gun An Unconstitutional Stop Then Happens) Gist

Defendant was charged with various counts of aggravated unlawful use of a weapon following his arrest at a south side multiunit building, 7555 South Kenwood Avenue in Chicago, on March 25, 2015.

Loitering Youths

As they drove slowly down Kenwood Avenue, from about five feet away, they observed four or five males “loitering on the sidewalk in front” of the aforementioned apartment building.

At that point, the officer saw two of the males, later identified as defendant and his friend, “flee into the building.” At that moment, the officer did not observe defendant holding a gun. Police stopped their car and jumped out and followed the two men.

The men ran inside the apartment building while the other members of the group simply stood still on the sidewalk.

Police Enter The Building

Subsequently, the officer “reopened the door,” then stepped inside the building to what he described was the “common area.” The evidence thus indicates that the building was unlocked, although the officer never explicitly stated this.

Once inside, the officer observed a hallway, and to the right was a first-floor stairwell, where defendant and his friend were standing. At that point, the officer saw that defendant had a gun. He promptly handed it his friend before fleeing to the second floor.

The officer “probably” said “police, freeze.” Defendant went into an apartment unit on the second floor and closed the door behind him. His friend was was “locked out,” froze and then threw the handgun on the second-stair landing. Buddy was detained and arrested. 

The Gun

Police recovered the loaded firearm, a .380, and returned to the locked apartment unit.

The Apartment Unit

A female, whom the officer believed was defendant’s girlfriend, opened the door.

The officer arrested defendant, handcuffing him just outside the unit. 

Only after that did officers learn defendant did not have a FOID or concealed carry card.

Trial Court Grants The Motion

The court noted that there was no evidence of criminal activity from the outset “to suggest that this defendant should be stopped in any way.” The court found that outside the apartment complex, defendant was not committing any crime, and there was no reason to believe he was committing a crime, yet police chased him anyway. The court stated that it was during the “pursuit” that police observed a weapon. However, given the laws permitting the public to possess guns outside the home via a FOID card and concealed carry license, the court ruled that when the police observed defendant with a handgun, they did not have probable cause to stop, seize, and then arrest defendant.

The court noted that the gun was not fully exposed but rather found that “a moment in time in your hand should be partially concealed.” The court, accordingly, found the arrest was unlawful and, further, that the gun recovered “subsequent to the violation of this defendant’s constitutional rights” had to be suppressed under the exclusionary rule.

Issue

The question of law at issue in this case is whether a fourth amendment violation occurred when the police entered an unlocked multiunit apartment building without a warrant and, once inside the common area, observed defendant hand his friend a gun just before both fled upstairs, with defendant entering his purported apartment unit while the friend then discarded the gun.

Reasonableness Requirement

Reasonableness under the fourth amendment generally requires a warrant supported by probable cause. People v. Johnson, 237 Ill. 2d 81, 89 (2010). A limited exception to the warrant requirement under Terry v. Ohio, 392 U.S. 1 (1968), permits a police officer to briefly stop (and therefore necessarily seize) a person for temporary questioning if he reasonably believes the person has committed, or is about to commit, a crime. Johnson, 237 Ill. 2d at 89, 91.

Thus, a “seizure” occurs when an officer has in some way restrained a citizen’s liberty so the person believes he is not free to leave. People v. Thomas, 198 Ill. 2d 103, 111 (2001).

The Initial Encounter: Unprovoked Flight

An individual’s unprovoked flight on seeing police in an area known for crime is suggestive of wrongdoing and may justify police suspecting that individual of criminal activity, which warrants further investigation. See Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000); People v. Timmsen, 2016 IL 118181, ¶¶ 15-19; Thomas, 198 Ill. 2d at 113.

That the defendant’s flight from police is susceptible to an innocent explanation does not vitiate the officer’s right to detain that individual to resolve any ambiguity.

Here, the most rational inference from the officer’s testimony is that the police presence and potential encounter is what prompted defendant’s flight, giving rise to reasonable suspicion. While defense counsel suggested that defendant and Turner could have mistaken the unmarked police vehicle for a potential drive-by shooter, for example, this innocent explanation does not lessen the officers’ objective in resolving any ambiguity under the law.

Contrary to the trial court’s finding, there was no fourth amendment stop or seizure implicated by the officers’ pursuit of defendant, where there was no real encounter or submission.

Police Entry Into Unlocked Apartment Building: Privacy Interest in Apartment Common Area

Notably, the fourth amendment protects people, not places. Pitman, 211 Ill. 2d at 514. The extent to which the fourth amendment protects people may depend on where those people are. As such, a defendant who objects to the search of a particular area must prove a legitimate expectation of privacy in the area searched, i.e., an actual subjective expectation of privacy and one that society deems reasonable. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring); Johnson, 237 Ill. 2d at 90; Carodine, 374 Ill. App. 3d at 22.

Thus, a “search” for purposes of the fourth amendment occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. Carodine, 374 Ill. App. 3d at 22.

The State argues there was no reasonable expectation of privacy in the common area of the unlocked apartment building, which police were permitted to enter. The State further asserts that it was in this common area that police observed defendant “committing a criminal offense” and, as such, there was no “search” at issue. We are inclined to agree.

Illinois courts have found that there is no reasonable expectation of privacy in common areas of apartment buildings that are accessible to others. Martin, 2017 IL App (1st) 143255, ¶ 20. In that sense, Smith, 152 Ill. 2d 229, is instructive. See People v. Smith, 152 Ill. 2d 229, 244 (1992) (police enter apartment building and overhear incriminating conversation police had a right to be there and defendant had no expectation of privacy). See also Carodine, 374 Ill. App. 3d at 24 (holding the defendant did not have an objective expectation of privacy to the dryer vent because it was located in a common area where other tenants of the building, the landlord, and members of the public had access; therefore, the officer’s opening and reaching inside of the vent was not a fourth amendment “search”).

What About Bonilla?

In Bonilla, 2018 IL 122484, the use of a drug-sniff dog at the threshold absent a warrant was an unlicensed physical intrusion that violated the defendant’s fourth amendment rights. Similarly distinguishable is Burns, 2016 IL 118973, ¶ 44, where the court held that a warrantless middle-of-the-night use of a drug-detection dog at the defendant’s apartment door, located within a locked apartment building, violated the defendant’s fourth amendment rights.

Defendant Wanted To Tell The Jury That He Pays For Sex

Mar 28, 2019 10:19

Description:

People v. Encalado, 2017 IL App (1st) 142548 (February). Episode 314 (Duration 10:18)

Trial judge did not allow the defendant to ask the jury if they could remain impartial not withstanding the fact that likes to pay for sex. 

Facts

Defendant was found guilty of a brutal sex assault.

The victim testified she got her into his car on a rouse and then punched her in the face and put her clothes over her face and raped her.

Other Crimes (not an issue)

Other crimes evidence was admitted.

The victim in the older case said essentially the same thing.

The defendant offered her a ride. When she got in the care he punched her in the face and put her clothes over her face then raped her.

She also had some items stolen.

Defendant's Story

Defendant’s defense in both situations was that they were prostitutes who got mad at him after he took back his money.

He asked the court to question the venire as to whether they could evaluate the evidence of assault without bias if they knew he had narcotics with him at the time of the alleged offenses. He testified he offered to pay the women with money and drugs.

Wanted This Question

He also asked the court to say to the venire, “you will hear evidence about prostitution. Would that fact alone prevent you from being fair to either side?”  

"Hell No" Said Judge

The court refused to ask the venire any questions relating to drugs or prostitution.

Judicial Discretion

Our supreme court, in People v. Strain, 194 Ill. 2d 467 (2000), articulated the guiding principles for appellate review of questions asked on voir dire:

The trial court is given the primary responsibility of conducting the voir dire examination, and the extent and scope of the examination rests within its discretion.

However, the trial court must exercise its discretion in a manner consistent with the purpose of voir dire, which is to ascertain sufficient information about prospective jurors’ beliefs and opinions so as to allow removal of those members whose minds are so closed by bias and prejudice that they cannot apply the law as instructed in accordance with their oath.

Unbiased Jurors

The jurors must harbor no bias or prejudice which would prevent them from returning a verdict according to the law and evidence.

Thus, a failure to permit pertinent inquiries to enable a party to ascertain whether the minds of the jurors are free from bias or prejudice which would constitute a basis of challenge for cause, or which would enable him to exercise his right of peremptory challenge intelligently, may constitute reversible error.

Shield Not A Sword

However, the trial court should not permit the parties to use voir dire to indoctrinate the jurors or to ascertain prospective jurors’ opinions with respect to evidence to be presented at trial.

For example, Strain was a gang case.

He was worried about gang membership bias.

Defendant had no right to indoctrinate the jury or ascertain their attitudes towards his defense, so he could not ask whether the venire members could weigh impartially evidence that he robbed prostitutes.

Different Quetion

However, Encalado did not request that question. Instead, he asked the court to say to the venire,

“you will hear evidence about prostitution. Would that fact alone prevent you from being fair to either side?”

Sex Issues Are Goofy

The court noted that some sexual behaviors can evoke from many venire members strong responses that prevent the venire members from assessing evidence without bias.

Courts have noted potential juror bias against persons who exchange sex for money, homosexuals, people who perform in pornography, or pose nude for photos, and persons engaged in sexually immoral conduct.

The court said that jurors may hold similar biases against customers of women who exchange sex for money.

Analysis

The court held that defendant requested an appropriate question during voir dire to help him determine whether the potential jurors could weigh the evidence against him, without a predisposition to find him guilty of criminal sexual assault because he patronized prostitutes.

The trial court’s voir dire questions failed to reveal whether any members of the venire harbored a bias against persons who participate in prostitution, and therefore Encalado could not ascertain whether the minds of the jurors are free from bias or prejudice which would constitute a basis of challenge for cause, or which would enable him to exercise his right of peremptory challenge intelligently.

Holding

The judge chose the course that gave the parties no opportunity to discover whether any members of the venire could weigh the evidence impartially once Encalado testified.

The judge’s choice led to a high likelihood that some persons serving on the jury would react with strong disgust and antipathy toward Encalado when he testified that he patronized prostitutes.

Sure, voir dire is not perfect.

Sometimes biased people make it on a jury.

Nonetheless, questioning on voir dire provides a means for the parties to attempt to discover biases that could affect the parties’ right to a fair trial. The procedure used by the trial court here, and defended by the dissent, removed the possibility of discovering whether a venire member held a widespread bias that would affect his or her ability to weigh the evidence impartially.

Reversed and remanded.

Dissent

See the dissent that this case completely undercuts the purpose and the rationale behind the rape shield law.

The dissent said this was nothing but a transparent ploy, and it was properly rejected by the trial court.

Reckless Discharge Requires Endangering The Bodily Safety Of "An Individual"

Mar 28, 2019 03:49

Description:

People v. Grant, 2017 IL App (1st) 142956 (February). Episode 313 (Duration 3:49)

Defendant shot himself in an empty apartment, reckless discharge?

Facts

Defendant shot himself in the hand.

He told the cops it happened when he was trying to clear it.

The gun belongs to his sister’s boyfriend who also lived there.

Reckless Discharge

"A person commits reckless discharge of a firearm by discharging a firearm in a reckless manner which endangers the bodily safety of an individual." 720 ILCS 5/24-1.5(a).

Defendant conceded the issue that he acted reckless in discharging the gun.

Issue

He took issue with the second prong, that the State failed to satisfy the second element because there is no evidence that his reckless conduct endangered the bodily safety of "an individual."

More specifically, he maintains that the term "an individual," as used in the statute, refers to another person or others and that, bodily injury to himself does not satisfy the second element of the offense.

Thus, the defendant asserts that the evidence presented at trial did not demonstrate beyond a reasonable doubt that his reckless conduct endangered "an individual" since the State presented no evidence that another person or others were in the vicinity of the discharge.

Analysis

When it comes to reckless conduct the case law is clear that the General Assembly did not intend to punish, through the vehicle of the reckless conduct statute, behavior that only harms the person who is reckless.

It is much more likely or reasonable, as the defendant surmises, that the legislature decided that the injury the reckless conduct inflicts on the person who acts in a reckless manner is sufficient punishment and that it was unwise or unnecessary to subject that person to an additional, criminal penalty.

Absurd Results

The State's broad reading of the statute, on the other hand, has the potential to lead to absurdity, and is inconsistent with the language of the statute itself, the intent of the legislature in enacting the law, and Illinois case authority.

Holding

Here too, the defendant’s interpretation offers a reasonable and just result in which a defendant may only be found guilty of reckless discharge of a firearm where he endangers the bodily safety of another person or others.

 The court held that our legislature intended the term "an individual" to mean someone other than the "person" who is charged with the offense of reckless discharge of a firearm.

In this case, there was no one else in the apartment at the time nor is there any evidence any other person was in the building. There is no evidence that another person or others were in the vicinity of the discharge.

The conviction for reckless discharge was reversed.

See Also

Episodes 215 - People v. Olivieri, 2016 IL App (1st) 152137 (August) (Sympathetic Nervous System Reaction Wins The Day In This Gun Case)

Citizen's Arrest Made By Off Duty Officer Way Outside His Jurisdiction

Mar 28, 2019 10:26

Description:

People v. Williams, 2017 IL App (3d) 150879 (February). Episode 312 (Duration 10:26)

Off duty officer outside his jurisdiction stops defendant for swerving; this leads to a DUI arrest.

Facts

Off duty officer is on on his way home after a shift.

He is in an unmarked squad car equipped with a radar gun. He is still in his police uniform. He is driving in another county when he sees defendant driving in the opposite lane towards him.

Defendant is going 60 in a 25 and swerves into the officer’s lane almost striking the off duty officer’s car.

The off duty officer uses his personal cell to call 911 and to get an officer from the jurisdiction out to the scene.

The off duty officer follows defendant to a driveway where he engages him in conversation. He takes his DL and tells him to wait for the Lockport police officer to get there.

When Lockport PD gets there defendant fails the FSTs and he is arrested for DUI.

More Details

The record reveals defendant voluntarily stopped his vehicle once he arrived at the driveway of a friend’s house.

The off-duty Palos Hills police officer did not activate his lights to effectuate a traffic stop at any point in this process.

Instead, defendant voluntarily parked and exited his vehicle without any directive from the off-duty officer.

Defendant was on foot when the off-duty Palos Hills police officer approached defendant and struck up a conversation.

Defendant voluntarily stopped walking in order to speak to the off-duty Palos Hills police officer.

During this conversation, the off-duty Palos Hills police officer asked if defendant had been drinking, asked for defendant’s driver’s license, and instructed defendant to wait with the officer in the driveway until the Lockport police department could reach that location.

Shortly thereafter, the Lockport police officer arrived and spoke to both men.

The off-duty Palos Hills police officer spoke to the Lockport police officer about the erratic driving and improper lane use he witnessed on the night of the incident.

Trial Court

The trial court noted it was undisputed that the Palos Hills police officer was off duty and outside of his jurisdiction when the officer first observed defendant’s vehicle traveling towards him on the roadway.

The court expressed doubts about “the truthfulness and accuracy of the officer’s testimony as it relates to the series and sequence of the officer’s observations.

The court’s findings implied that the court believed the off-duty Palos Hills police officer first used the radar gun to measure defendant’s speed before observing defendant commit the other offenses.

The trial judge stated that when making an extraterritorial arrest, an off-duty police officer may not use powers of his office that are unavailable to a private citizen to obtain evidence. The trial court emphasized that it believed the evidence obtained from the radar gun was the true reason for the stop, not the improper lane usage described by the off-duty police officer. The trial judge was concerned that the Lockport police officer did not charge defendant with an improper lane usage violation.

For these reasons, the trial court judge questioned the off-duty police officer’s “conclusion that the stop was predicated on the lane violation” independent from information gathered by the use of the radar gun.

Accordingly, the trial court granted defendant’s motion to quash the DUI arrest and suppressed all evidence obtained as a result of the first unlawful stop.

Citizen's Arrest

At common law, a police officer cannot lawfully arrest a suspect outside of the jurisdiction that appointed the officer unless acting in “fresh pursuit” of a suspected felon fleeing from that jurisdiction.

An exception to the common law rule arose from section 107-3 of the Code of Criminal Procedure of 1963 (the Code), which allows a private person to arrest another person when “he has reasonable grounds to believe that an offense other than an ordinance violation is being committed.” 725 ILCS 5/107-3.

Under section 107-3, a police officer acting outside of his jurisdiction retains all of the rights of an ordinary citizen to effectuate a citizen’s arrest.

However, an extraterritorial arrest by an officer acting in the capacity of a private citizen will not be upheld by a court pursuant to section 107-3 where the officer, acting as a citizen, relies on information gathered by using powers of his office to create reasonable grounds for the arrest.

What About A Radar Gun?

Powers of office have been construed to include the use of a radar gun because this device is generally unavailable to private citizens. See People v. Lahr, 147 Ill. 2d 379, 383 (1992).

Analysis

Here, an off-duty police officer, acting outside his jurisdiction, stopped defendant for improper lane usage. Improper lane use is an “offense other than an ordinance violation” for the purposes of creating the authority to effectuate a citizen’s arrest under section 107-3 of the Code. See People v. Kleutgen, 359 Ill. App. 3d 275, 279 (2005).

However, the Lockport police officer conducted his own investigation of the DUI offense after arriving on scene.

It was the Lockport police officer that elected to arrest defendant for DUI and speeding, but did not issue a citation for improper lane usage.

The case law provides that the Lockport police officer was not required to charge defendant with all minor violations witnessed by the off-duty Palos Hills police officer because after the stop, the Lockport police officer became aware of a more serious violation. See People v. Goestenkors, 278 Ill. App. 3d 144, 149 (1996).

The reviewing court concluded that the Lockport police officer’s decision not to charge defendant with improper lane usage is not outcome determinative. In spite of these unusual events, the appellate courts said the trial court’s ruling misapplies existing case law.

In People v. Gutt, 267 Ill. App. 3d 95, 99 (1994), the court upheld an extraterritorial arrest, similar to the case at bar. In that case, the off-duty officer first used a radar gun to obtain evidence but later observed the defendant fail to use his turn signal.

Holding

The same circumstances exist here and support the lawfulness of defendant’s arrest for improper lane usage before the Lockport police officer made it to the scene.

The holding is that an off-duty police officer’s use of a radar gun outside of his jurisdiction, before personally witnessing a driver commit other traffic offenses unrelated to excessive speed, will not taint subsequently developed probable cause to conduct an arrest by the officer acting in his civilian capacity.

Reversed and remanded for further proceedings.

What Does Timbs v. Indiana Have To Say About Illinois Asset Forfeiture?

Feb 25, 2019 24:33

Description:

Timbs v. Indiana, 2019 SCOTUS (February). Episode 594 (Duration 24:32)

Eight Amendment ban on excessive fines and forfeitures extends to the states.

Attorney Anthony Cameron

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"Often when the defense wins one, you know, we get excited and we want to apply it to everything." -- Anthony Cameron.

About Anthony Cameron

Anthony Cameron is a lawyer in Quincy, Illinois. Anthony was Adams County state's attorney from 1980 to 1984. Now, his practice does it's fare share of criminal defense.

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"Can't Miss" Moments:

✓ What does Timbs v. Indiana have to say about Illinois DUI vehicle forfeiture? Do innocent owners now have a stronger claim? (Go to 8:41)

✓ Illinois already had a built in Eight Amendment protection clause into its Article 36 Forfeiture statute. To their credit they actually mention the Eight Amendment, but... (Go to 9:41)

✓ Here's a solid example of how Timbs v. Indiana could effect the outcome of a current Illinois based asset forfeiture. (Go to 10:54)

Links & Resources Illinois Crime Related Forfeiture of Vehicles Illinois Crime Related Forfeiture of Property Eight Amendment of The United States Constitution Illinois Innocent Owner Hearing Article 36 Eight Amendment Statement on Proportionality Issue

The question presented: Is the Eighth Amendment’s Excessive Fines Clause an “incorporated” protection applicable to the States under the Fourteenth Amendment’s Due Process Clause?

Facts

Tyson Timbs pleaded guilty in Indiana state court to dealing in a controlled substance and conspiracy to commit theft.

The trial court sentenced him to one year of home detention and five years of probation, which included a court-supervised addiction-treatment program. The sentence also required Timbs to pay fees and costs totaling $1,203. At the time of Timbs’s arrest, the police seized his vehicle, a Land Rover SUV Timbs had purchased for about $42,000.

Timbs paid for the vehicle with money he received from an insurance policy when his father died. Timbs had recently purchased the vehicle for $42,000, more than four times the maximum $10,000 monetary fine assessable against him for his drug conviction.

The Bill of Rights

“The constitutional Amendments adopted in the aftermath of the Civil War,” however, “fundamentally altered our country’s federal system.” McDonald, 561 U. S., at 754.

With only “a handful” of exceptions, this Court has held that the Fourteenth Amendment’s Due Process Clause incorporates the protections contained in the Bill of Rights, rendering them applicable to the States. Id., at 764–765.

A Bill of Rights protection is incorporated, we have explained, if it is “fundamental to our scheme of ordered liberty,” or “deeply rooted in this Nation’s history and tradition.”

The Eighth Amendment

Under the Eighth Amendment, “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Part Of Our History

For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties. Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies, as the Stuarts’ critics learned several centuries ago.

Even absent a political motive, fines may be employed “in a measure out of accord with the penal goals of retribution and deterrence,” for “fines are a source of revenue,” while other forms of punishment “cost a State money.” In short, the historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is overwhelming.

Protection against excessive punitive economic sanctions secured by the Clause is, to repeat, both “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.” McDonald, 561 U. S., at 767.

This Includes Asset Forfeitures

In Austin v. United States, 509 U. S. 602 (1993), however, this Court held that civil in rem forfeitures fall within the Clause’s protection when they are at least partially punitive. We thus decline the State’s invitation to reconsider our unanimous judgment in Austin that civil in rem forfeitures are fines for purposes of the Eighth Amendment when they are at least partially punitive.

As a fallback, Indiana argues that the Excessive Fines Clause cannot be incorporated if it applies to civil in rem forfeitures. We disagree.

Broad Rights Are Protected

In considering whether the Fourteenth Amendment incorporates a protection contained in the Bill of Rights, we ask whether the right guaranteed—not each and every particular application of that right—is fundamental or deeply rooted. Indiana’s suggestion to the contrary is inconsistent with the approach we have taken in cases concerning novel applications of rights already deemed incorporated.

Look At These Recent SCOTUS Cases

For example, in Packingham v. North Carolina, 582 U. S. ___ (2017), we held that a North Carolina statute prohibiting registered sex offenders from accessing certain commonplace social media websites violated the First Amendment right to freedom of speech. In reaching this conclusion, we noted that the First Amendment’s Free Speech Clause was “applicable to the States under the Due Process Clause of the Fourteenth Amendment.” Id. We did not, however, inquire whether the Free Speech Clause’s application specifically to social media websites was fundamental or deeply rooted.

See also, e.g., Riley v. California, 573 U. S. 373 (2014) (holding, without separately considering incorporation, that States’ warrantless search of digital information stored on cell phones ordinarily violates the Fourth Amendment).

Similarly here, regardless of whether application of the Excessive Fines Clause to civil in rem forfeitures is itself fundamental or deeply rooted, our conclusion that the Clause is incorporated remains unchanged. * * * For the reasons stated, the judgment of the Indiana Supreme Court is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

Holding

The Fourteenth Amendment, we hold, incorporates this protection..

Like the Eighth Amendment’s proscriptions of “cruel and unusual punishment” and “[e]xcessive bail,” the protection against excessive fines guards against abuses of government’s punitive or criminal law-enforcement authority. This safeguard, we hold, is “fundamental to our scheme of ordered liberty,” with “dee[p] root[s] in [our] history and tradition.” McDonald v. Chicago, 561 U. S. 742, 767 (2010) (internal quotation marks omitted; emphasis deleted). The Excessive Fines Clause is therefore incorporated by the Due Process Clause of the Fourteenth Amendment.

Before You Go...

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This Feels A Little Like Sheriff Rosco P Coltrane

Feb 18, 2019 13:45

Description:

People v. Bowden, 2019 IL App (3d) 170654 (February). Episode 591 (Duration 11:29)

Another example of evidence that was admitted to demonstrate the course of the police investigation.

Roscoe P Coltrane Traffic Stop

Facts

The officer was following defendant’s vehicle, in Carthage, Illinois, in the westbound lane of Highway 136.

The westbound lane was defined with a solid white fog line on the right and two solid yellow lines on the left. The officer testified that the single westbound lane of Highway 136 became two lanes that were divided by a white dashed line.

He observed that defendant had continued to follow along the right-hand white fog line and crossed over the white dashed line that originated from the right-hand fog line without using a turn signal.

The officer stated, “I think he continued a little bit with the left lane before moving back towards the fog line if I remember correctly.” He initiated a traffic stop, discovered defendant’s driver’s license had been suspended, placed defendant under arrest, and found methamphetamine when searching defendant’s person incident to the arrest. Defendant’s vehicle was subsequently towed.

During an inventory search of defendant’s vehicle, additional methamphetamine was found.

Highway 136

The juncture of Highway 136 at issue was “a white dashed line that starts at the white fog line on the right-hand side of the westbound lanes that moves out into the center of the roadway as the lane—the single lane splits into two lanes.”

There were essentially two fog lines where the single lane splits into two lanes, one solid and one dashed line. Defendant crossed over the white dashed line and proceeded in the right-hand lane without signaling a lane change. By doing so, the officer believed that defendant violated section 11-804(d) of the Vehicle Code (id. § 11-804(d)). The officer pulled defendant over for failure to signal the lane change because he believed defendant had moved from the left lane into the right lane.

Trial Judge Ruling

After viewing the video the trial judge stated:

“The Court can honestly say that it has probably driven this roadway a thousand times over the course of living in this area. And I don’t think any of those times, not only have I traveled the exact same way that the defendant traveled, staying next to the fog line, the Court has never considered that to be a lane change. It’s not a lane change until such time that you would actually be in a lane and then if you go either way, that becomes a lane change. This is confusing at best. But I don’t believe that a signal was required by defendant.”

The trial court also found that the traffic stop was not objectively reasonable because defendant did not commit any traffic violation.

The trial judge stated, “I did not see any violation that the defendant made.”

When Turn Signal Required

Section 11-804(d) of the Illinois Vehicle Code, in pertinent part, provides:

“(d) The electric turn signal device must be used to indicate an intention to turn, change lanes or start from a parallel parked position...” 

Illinois Vehicle Code (625 ILCS 5/11-804(d)).

Analysis

Our review of the video shows that defendant did not move from the left lane into the right lane.

Rather, the video shows that defendant continued to proceed alongside the right-hand white fog line, when a white dashed line abruptly appeared from the right-side white fog line and continued toward the middle of the westbound lane, eventually dividing the single lane into two separate lanes. Defendant crossed the white dashed line as the dashed line appeared on the road in front of him, with the single lane eventually becoming two lanes that were separated by the white dashed line.

At the point defendant crossed over the white dashed line, however, he was continuing along the right-side fog line and did not make any abrupt movements in either direction. Thus, there was no evidence presented indicating that defendant had changed from one lane to another lane.

Instead, the evidence showed that two separate lanes had not yet been formed at the point defendant crossed over the white dashed line. See 625 ILCS 5/1-136 (West 2016) (defining a “[l]aned roadway” as a “roadway which is divided into two or more clearly marked lanes for vehicular traffic”). Therefore, the trial court’s finding that defendant did not execute a lane change was not against the manifest weight of the evidence.

Decline To Follow Theus

We decline the State’s request for this court to follow Theus.

First, we hold that section 11-804(d) is not ambiguous. Section 11-804(d) is clear in its requirement that a turn signal “must be used to indicate an intention to *** change lanes.” 625 ILCS 5/11-804(d).

Despite its eventual holding that section 11-804(d) was ambiguous in its requirement of turn signal when a single lane divides into two separate lanes, the Theus court acknowledged that the signal requirement of 11-804(d) when changing lanes was unambiguous. See Theus, 2016 IL App (4th) 160139, ¶ 34.

Second, we believe that the issue of whether a lane change occurred is a factual determination. The trial court in Theus found that “there was no movement made from one marked lane to another” to require a lane change. ¶¶ 9, 18. Based on that factual determination in Theus, the trial court had found there was no violation of section 11-804(d) of the Vehicle Code.

Third, the facts in Theus are distinguishable from this case. In Theus, the single lane widened with white dashed markings appearing, almost without warning, “in front of” the driver’s vehicle, forming two separate lanes, and the officer testified that the driver had made an abrupt lane change without activating a turn signal. In this case, the single westbound lane of Highway 136 widened, with the white dashed marking originating from the right side of the road toward the center of the road and those white markings abruptly crossing in front of defendant’s vehicle.

The officer said defendant had continued in the newly forming left lane before moving back toward the right-hand fog line, the video showed that defendant continuously followed along the right-hand fog line with no abrupt movement in either direction.

Holding

Therefore, the officer’s belief that defendant committed a traffic violation for failing to signal a lane change was not objectively reasonable where no lane change had occurred. Defendant crossed the white dashed lines as he continued traveling in the single westbound lane, prior to the dash marks establishing two separate lanes. Given these circumstances, Officer Glenn’s belief that defendant had changed lanes was not objectively reasonable.

Accordingly, the officer's belief that a lane change occurred to require a turn signal was not objectively reasonable where the evidence showed that defendant continued following along the right-side fog line and could not have changed lanes at that particular juncture of the road because the white dashed road markings had not yet divided the single lane into two separate lanes.

Therefore, the trial court did not err in granting defendant’s motion to quash arrest and suppress evidence.

See Also 

Episode 579 - An Update On The Barney Fife Traffic Stop

Demon Tells Defendant To Test His Mortality: He Collides Into A Mother's Mini-Van

Feb 15, 2019 13:05

Description:

People v. Oelerich, 2017 IL App (2d) 141281 (February). Episode 295 (Duration 13:05)

Defendant had severe mental delusions and issues when he drove his car head on into a lady's mini van.

Facts

Defendant was either trying to kill himself or test to see if he was invisible when he drove his mother's Cadillac into a minivan with a mother and her two children.

The mother died.

Defendant was convicted of murder.

Mentally Ill

He had been on Haldol, an antipsychotic drug.

He was suffering from schizophrenia and was demonstrating very unusual behavior before the crash, immediately after the crash and all throughout the investigation.

One expert concluded in part that, although defendant “over-reported” symptoms of psychosis, he was not feigning mental illness.

Rather, his elevated scores on the scales for persecutory ideation and paranoia showed that, long after the crash, he continued to have delusional thinking about being persecuted or followed and still had paranoid thinking.

Another expert disclosed “elevated levels of impairment in reality testing,” i.e., “someone who really has a difficult time evaluating objective reality, really had a break with reality.”

Defendant continued to have paranoia and feelings of persecution.

Yea, But What Did He Know?

The State argued that, even had defendant believed that crashing his car into the Nissan was some sort of divine calling, the evidence still proved that he knew that the probable result was death or great bodily harm to another person.

He Wanted The Lesser Included

Defendant argued that his state of mind negated a finding beyond a reasonable doubt that he had had the mens rea for murder. He had had no idea what he was doing.

The main defensive strategy was to ask for the lesser included of reckless homicide.

Defendant never sought nor plead an insanity defense.

His Main Argument

Defendant contends that the evidence, even when viewed most favorably to the State, did not prove beyond a reasonable doubt that, when he drove the Cadillac into the Nissan, he knew that there was a strong probability that the result would be death or great bodily harm to another.

Defendant contends, however, that the evidence left a reasonable doubt of whether he knew that his act created a strong probability of death or great bodily harm. Defendant relies primarily on the evidence that his mind was severely disordered on the evening of the crash.

First Degree Murder v. Reckless Homicide

Defendant notes that, to obtain a conviction of first-degree murder, the State had to prove that he knew that his act created a strong probability of death or great bodily harm. 720 ILCS 5/9-1(a)(2).

By contrast, to obtain a conviction of reckless homicide, the State had to prove only that defendant’s act was likely to cause death or great bodily harm and that he performed it recklessly. 720 ILCS 5/9-3(a).

A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that circumstances exist, or that a result will follow, and that disregard grossly deviates from the standard of care that a reasonable person would exercise in the situation. 720 ILCS 5/4-6.

Analysis

Both his mental state and the character of his act are pertinent; the difference between the offenses is what he knew.

“Knowing” murder requires proof of (1) knowledge of (2) a strong probability. 720 ILCS 5/9­ 1(a)(2).

Reckless homicide requires proof of (1) “conscious disregard” of (2) a substantial (and unjustifiable) risk. 720 ILCS 5/4-6.

The respective criteria numbered (1), which address a defendant’s mental state directly, do not explain the difference between the offenses.

The reviewing court saw no meaningful distinction between “knowledge” and “conscious disregard,” at least not one that aids the defendant.

The Mental States

To consciously disregard something, one must know it.

Therefore, the distinction between the two offenses must lie in the difference between the respective criteria numbered (2).

A “strong probability” is more than a “substantial risk.” This does not mean that defendant’s mental state is irrelevant. Even if he knew that there was a “substantial risk” that his act would cause death or great bodily harm, he might not have known that it created a “strong probability” of this result.

What Did He Know?

The issue is not whether the evidence proved that the act, considered objectively, created a strong probability of death or great bodily harm but whether the evidence proved that the act, considered objectively, created a strong probability of death or great bodily harm and that defendant was aware of that strong probability—and not merely of the substantial risk of death or great bodily harm.

This, indeed, appears to be the nub of defendant’s argument on appeal and the reason that he emphasizes his impaired mental state as negating his guilt of murder.

What Do The Mentally Ill Know?

A person whose perception of reality is compromised might know that he faces a risk of causing a given result but not that he faces a strong probability of causing it.

Defendant contends that the evidence required the jury in his case to so conclude.

The reviewing court said it saw no serious argument that defendant’s act itself did not create a strong probability of causing death or great bodily harm.

The Act

Viewed most favorably to the State, the evidence showed that defendant crossed the median while driving his car at no less than 65 miles per hour, approximately twice the posted speed limit, and rammed it directly into the front of a moving vehicle. That this act created a strong probability of death or great bodily harm cannot be disputed.

State's Burden

The State’s burden was to show guilty knowledge, not to prove that defendant was legally sane at the time of the crash.

The State did not need to prove that defendant intended to kill or cause great bodily harm to another person. It needed to prove only that he knew of the strong probability that he would cause at least one of those results.

As noted, had defendant suffered no psychosis, the evidence would not have been close.

Ordinarily, it is a perfectly reasonable inference that a driver who proceeds at twice the posted speed limit, crosses the median into oncoming traffic, and swerves sharply into the front of a vehicle going the other way, hitting it head-on, knows that he is creating a strong probability of killing or severely harming another person. It would be difficult to imagine a reasonable jury not finding guilty knowledge under this scenario.

How His Illness Affected His Mental State

The evidence of defendant’s psychosis, its severity, and its close relationship to his conduct did not create a reasonable doubt of his guilty knowledge.

A schizophrenic does not lose all contact with reality or all ability to absorb and retain information. And defendant’s apparent delusions did not necessarily cast doubt on whether he knew that his conduct could easily kill or severely injure another person.

Acting On A "Calling"

His belief that he was acting on a “calling” to test his immortality was not inconsistent with a recognition that he would probably get another person killed or severely injured.

Orders From Demons

Defendant’s delusion that he was acting under orders from demons did not negate his recognition that he was causing an automobile collision that would probably be fatal or greatly harmful to another.

Delusional Motive

It is important to note affirmative evidence, beyond the nature of defendant’s conduct itself, that he was aware of reality to a great degree and did perceive the consequences of his act.

His delusional motive itself provides some such evidence.

The jury reasonably inferred that, in believing that he had to test whether he was immortal by crashing his car into another vehicle, defendant recognized that such crashes ordinarily carry a strong probability that someone will be killed (and, a fortiori, severely injured). Otherwise, he would not have considered his act a test of his invincibility.

And if he knew that his conduct could kill him, at least were he not protected by his “calling,” it was fair to infer that he knew that it could kill someone else.

His Words

Other aspects of defendant’s conduct also helped the jury to conclude that his contact with reality had not been so attenuated that he could not have recognized what otherwise was an obvious probability.

Defendant drove to his parents’ home, picked up his mother’s car, and managed to drive it on Cedar Lake Road until he deliberately steered it into the Nissan.

He told the OnStar operator that he had just driven into another vehicle; he was not so deluded that he did not realize what had just happened.

It was a fair inference that, having recognized the reality of the crash just after it occurred, he had also recognized the probability of the crash and its consequences just before it occurred.

Defendant also recognized these consequences later, when he talked to police.

Holding

Here, as we have explained, the circumstantial evidence was extremely strong, based on the character of defendant’s act and its surrounding circumstances. Moreover, the expert psychiatric testimony did not negate the inference that defendant knew the natural and probable consequences of his act, despite the distorted thinking that accompanied it.

Murder conviction affirmed.

Trial Court Distinguishes The Hell Out Of Lerma To Deny The Use Of Eyewitness Expert

Feb 13, 2019 10:23

Description:

eople v. Anderson, 2017 IL App (1st) 122640 (January). Episode 293 (Duration  10:22)

Trial court distinguishes Lerma to deny the use of an eyewitness expert in this case.

Facts

The victims were shot to death as they sat in a vehicle in the parking lot behind Leader Liquors.

Officers just happen to be going to that area when they heard multiple gunshots and saw a man standing near a car shooting at the occupants. A chase ensues.

The officers have moments to observe the shooters face and make a general description. The call it in as they are chasing. A few moments later another officer sees defendant.

He has thrown some gloves on the ground but is arrested.

The officers who witnessed the shooting are able to identify defendant as the shooter. It also turned out they had arrested defendant one year earlier.

Police retrace the steps of the shooter and find the murder weapon on a roof. The gloves had gunshot residue on them. Turns our the defendant used to be friends with the victims.

Identification

Defendant challenged the identification made by the officers and challenged the fact he was denied the use of an eyewitness identification expert witness.

Both officers testified that as defendant was running, his hood fell back, allowing them to see an unobstructed view of his face from a distance of 10 to 12 feet away in a well-lit alley.

They positively identified him only 15 to 20 minutes later.

They testified to a degree of detail that would allow the jury to make a determination as to the appropriate weight to be given their identification testimony. The description of the fleeing offender given over the radio was accurate to the extent that it matched the defendant running through the neighborhood gangways within four minutes of the shooting in close proximity to the scene.

The court also considered the level of certainty the witness demonstrated in identifying defendant as the offender. Both officers identified defendant without hesitation shortly after seeing his face in the alley.

Finally, it considers the amount of time between the commission of the crime and the identification. Here, the officers identified defendant about 15 to 20 minutes after the shooting.

Why The Identification Was Denied

In addressing the admission of expert testimony, the trial judge should balance the probative value of the evidence against its prejudicial effect to determine the reliability of the testimony.

Furthermore, the necessity and relevance of the expert testimony should be carefully considered in light of the facts of the case.

The reviewing court noted that in People v. Lerma, 2016 IL 118496, the court began its analysis by stating that “this is the type of case for which eyewitness testimony is both relevant and appropriate” given that the only evidence of the defendant’s guilt was the eyewitness identifications made by two witnesses.

Lerma Distinguished

There was no physical evidence and no confession or other incriminating statements.

Arrested Nearby &
Quick Identification

Here, defendant’s conviction does not rest solely on the identification made by the two officers. Not only did the officers see defendant shoot the victims, they chased him through an alley. After they lost sight of him, another officer saw the defendant who was wearing clothes that matched a radio broadcast that described the shooter, running through a gangway and alley near the shooting, and defendant was detained four blocks from the shooting only four minutes after it had occurred.

The Gloves

In addition, defendant was seen throwing down a pair of black gloves that later tested positive for gunshot residue.

The Murder Weapon

Additionally, the murder weapon was found on the route between where they chased defendant and where a third officer later observed him running.

2 Witnesses

Defendant was then identified separately by both officers who gave chase and saw the shooting.

The trial court weighed the facts and circumstances of this case and correctly concluded that the conclusion to be reached would not “rise or fall on the identification of two police officers alone.”

Unlike Lerma, there was physical and circumstantial evidence outside of the identification testimony that supported defendant’s conviction.

No Report

Furthermore, unlike Lerma, there was no report submitted by an expert in this case, nor did the defense submit a detailed motion containing the proposed testimony of the expert or a summary of the relevance of that testimony to the issues in this case.

Generalized Motion

Instead, the defense submitted a generalized motion indicating that the expert would testify to common misconceptions regarding eyewitness identifications, the accuracy of eyewitness identifications and the effect of suggestivity or bias, how memory affects eyewitness identification, “factors associated with verified cases of misidentification and as observed in this particular case,” and that “the eyewitnesses in the present case are not reliable based on the factors in this case.”

The trial court conducted a meaningful inquiry of the expert witness and the content to which he would testify at a hearing on defendant’s motion and, in its discretion, denied the motion.

There was no abuse of discretion.

Holding

The record shows that the trial court balanced the probative value against the possible prejudice that may arise from allowing this expert to testify. In addition, the jury was given an instruction on how to weigh eyewitness identification testimony. Even if this was the type of case for which expert eyewitness testimony was relevant and appropriate, which it is not, the trial court’s denial of defendant’s request is a harmless error.

Surveillance Privilege Unjustified When Cop Is The Only Witness

Feb 8, 2019 08:56

Description:

In re Manuel M., 2017 IL App (1st) 162381 (January). Episode 292 (Duration 8:55)

Accused minor was not allowed to cross the officer on the location he said he made his observations.

Facts

The respondent was arrested for reckless conduct after he was seen flashing gang signs at passing cars near Throop Park in Chicago.

When the respondent was searched following his arrest, a pistol was found in his pants.

The State alleged in a petition for adjudication of wardship that the 16-year-old respondent committed two counts of AUUW and one count of UPF.

What Cop Said He Saw

Using binoculars, the office observed the respondent and two other individuals near the park entrance flashing gang signs at passing vehicles, causing the vehicles to swerve toward oncoming traffic or parked cars.

The officer said the group was endangering drivers and pedestrians.

After observing the respondent and his companions for 15 to 20 minutes, he drove to the park with other officers. Upon arriving at the park, he arrested the respondent for reckless conduct, patted him down, and recovered a pistol from his pants.

Officer Refused To Disclose Location

On cross-examination, defense counsel asked the officer to disclose the exact location from which he observed the respondent and his two companions flashing gang signs at passing vehicles.

The officer stated that disclosing the location would endanger his life and the lives of every officer that uses the location. The prosecutor objected to defense counsel’s question on the grounds that revealing the location would endanger officer safety.

Following arguments on the objection, the trial court elected to conduct an in camera examination.

The trial judge ruled that she would not compel disclosure to his "exact location" from which he conducted his surveillance of the park but would permit the defense to inquire regarding "distance, lighting, and everything else."

Issue On Appeal

The reviewing court agreed with the minor that his constitutional right of confrontation was violated when his attorney was prevented from questioning the officer as to the exact location from which he conducted his surveillance and that his constitutional rights to confrontation and to a public trial were violated when, during the in camera examination both he and his attorney were excluded, the prosecutor was, nonetheless, permitted to question the officer and argue in support of the State’s objection to disclosure of the surveillance location.

Surveillance Privilege

Illinois recognizes a qualified privilege from disclosing secret surveillance locations in a criminal proceeding against the target of the surveillance.

When, as in this case, the State invokes the surveillance location privilege at trial, it bears the initial burden of demonstrating that the privilege should apply.

The State can satisfy its initial burden by establishing that the surveillance location was located on private property with the permission of the owner or in a useful location which would be compromised by disclosure.

Once the State has carried its burden, the defense can overcome the privilege by showing that the surveillance location is relevant to the defense or essential to the fair determination of the case.

In Camera Examination

In making its determination of whether to apply the privilege and prevent the defense from inquiring into the exact location from which the surveillance was conducted, the trial court may conduct an in camera examination of the surveillance officer out of the presence of the defendant and his attorney.

Following such a hearing, the court should weigh the defendant’s need for the information against the public’s interest in nondisclosure.

Analysis

The reviewing court said that, the trial court failed to give adequate consideration to the respondent’s need to ascertain the exact location from which the officer conducted his surveillance of Throop Park.

Cross-examination is the principal means by which the credibility of a witness is tested.

The officer was the only witness to testify for the State, and its case against the respondent rested entirely upon his testimony. The defense challenged the credibility of the officer’s testimony that he observed the respondent and his companions flashing gang signs at passing cars from a location more than one block away.

Clearly, the ability to see Throop Park from his point of observation is relevant to the credibility of his testimony; and it was the officer’s observations from that point which supplied the probable cause for the respondent’s arrest and subsequent search leading to the discovery of the pistol underlying the AUUW and UPF charges for which he was on trial.

By sustaining the State’s objection to defense counsel’s inquiry as to the exact surveillance location, the trial court severely hampered the respondent’s ability to test the credibility of the only witness against him on a material issue.

As this court held in Knight, when the case against a defendant turns almost exclusively upon the uncorroborated testimony of the police officer who conducted the surveillance, “disclosure must almost always be ordered."

Holding

The trial court abused its discretion by sustaining the State’s objection to the cross-examination of on that issue.

Defendant’s confrontation and public trial rights were violated.

Also

This panel said the the in camera examination should be conducted by the trial court outside the presence of both the State and the defense. It said that the trial court’s in camera examination of the surveillance officer should be limited to a disclosure of the exact location from which the surveillance was conducted, nothing more.

Any testimony or argument addressing the public interest to be protected by nondisclosure of the location should be made in open court.

Allowing the State to examine a witness in a proceeding outside the presence of the defendant and his attorney, as occurred in this case, violates both the defendant’s right of confrontation and his right to a public trial as guaranteed by the United States Constitution and the Constitution of Illinois.

Permitting the State to make an ex parte argument in support of an objection, as also occurred in this case, violates a defendant’s constitutional right to a public trial.

Reversed and remanded.

See also https://illinoiscaselaw.com/clecourses/defendant-had-a-right-to-know-the-surveillance-location/

What To Tell Defendants About The PSI

Jan 16, 2019 08:55

Description:

People v. Woods, 2018 IL App (1st) 153323 (December). Episode 581 (Duration 8:55)

Defendant was ordered to cooperate with the PSI and the judge turned around and used what he said against him.

Charges & Sentence

Courtney Woods was found guilty after a bench trial of two counts of armed robbery (720 ILCS 5/18-2(a)(2), (3) (West 2012)) and sentenced to concurrent terms of 34 years’ imprisonment.

Facts

In response to Mr. Woods’s motion for a new trial, the trial court reconsidered its ruling and found Mr. Woods not guilty of the three counts of attempted murder. Mr. Woods was sentenced on two counts of armed robbery, one premised on Mr. Woods’s possession of a firearm and the other on his personal discharge of a firearm.

The trial court then ordered a PSI report.

The initial PSI report contained no information beyond a recitation of Mr. Woods’s criminal history and the official version of the offense. The “Summary” section stated that defendant “respectfully declined to answer any questions pertaining to his investigation.”

Issue

Defendant argues his fifth amendment right against self-incrimination was violated when the trial court ordered him to participate in a presentence investigation (PSI) and then used the information that he provided about his prior gang affiliation and educational background against him in aggravation at sentencing.

Get The PSI Done

The trial court ordered him to participate by speaking with the investigator. The information that he told the investigator was then used against him to increase his sentence.

At a hearing after the return of the PSI report, the following exchange occurred:

“THE COURT: We received information that defendant did not talk to probation for the PSI; is that correct?

[DEFENSE ATTORNEY]: Yes, your Honor.

THE COURT: You need to speak with them. I’ve ordered you to speak with them. You need to speak with them. Understood?

[MR. WOODS]: (No verbal response.)

THE COURT: We need to continue to get the presentence investigative report.”

The PSI

Defendant then completed an interview for a PSI, and a new PSI report was filed with the trial court. This revised PSI report included Defendant’s statements regarding his social and educational background.

The investigator reported that defendant “admitted” he was a former member of the Mafia Insane Vice Lords street gang. He joined the gang at age 13 but left at age 24 because he wanted to be a positive role model for his younger half-brothers.

Defendant told the investigator he had a good childhood and that his “whole world literally collapsed” when his mother, who was his “best friend,” died of breast cancer in 2006. That is when defendant started “running the streets” and getting into trouble.

Defendant completed eighth grade but then dropped out because “his heart wasn’t in it.”

Questions About The Crime

In the section of the report titled “Defendant’s Version of the Offense,” the investigator noted that Defendant “did not wish to comment on the facts of this case upon the advice of his attorney.”

His Criminal History

The report set forth his criminal history, including that he received probation for a 2006 AUUW conviction, which was terminated unsatisfactorily, and consecutive three-year terms of imprisonment in 2007 for robbery and AUUW.

How It Was Used Against Him

With respect to school, the trial court noted:

“You said your heart wasn’t into it. What does that mean? You’re supposed to go to school. You need the school to be a better person, to get a job, to be able to support yourself and your family, instead of going to the games and sticking up people and taking their money and taking what they’ve worked hard for.”

The trial court went on to note, from the PSI report, that defendant had “more than other students do, and you just dropped out,” that he

“could have had the, you know, help of the teammates and the basketball team and your coach, but instead, you go to the streets and hang out with the gang members.”

It reiterated that “gangs and guns” was his repeated choice.

For example, Defendant reported that he was a former gang member who had quit because he “wanted to be a positive role model for his younger half-brothers.” The trial court did not mention this, but instead referred repeatedly to his membership in “gangs.”

The Fifth Amendment

The fifth amendment commands that “[n]o person *** shall be compelled in any criminal case to be a witness against himself.” U.S. Const., amend. V.

The fifth amendment applies to the states by virtue of the fourteenth amendment (People v. Hunt, 2012 IL 111089, ¶ 23; U.S. Const., amend. XIV), and its protection against self-incrimination applies to sentencing proceedings (Mitchell v. United States, 526 U.S. 314, 328-29 (1999); People v. Maggio, 2017 IL App (4th) 150287, ¶ 48). There is no dispute that defendant had a fifth amendment right not to be compelled to provide information during the PSI that could be used against him at sentencing.

State's Argument

The State relies on our supreme court’s decisions in People v. Hampton, 149 Ill. 2d 71 (1992), and People v. Hillier, 237 Ill. 2d 539 (2010) to argue that his failure to raise this issue with the trial court results in a forfeiture that precludes review. See also People v. Ashford, 121 Ill. 2d 55, 80 (1988).

The issue in Hampton and Hillier was whether the court should consider a claim that a defendant was not given Miranda warnings, where no objection had been made and the record was unclear as to whether the defendant had, in fact, been given Miranda warnings. 

Judge Made Error

In contrast to those cases, this case represents a direct assault on Mr. Woods’s fifth amendment rights, rather than a possible failure to invoke a “prophylactic” warning.

The error here was made more difficult to correct because of the direct role played by the trial court. A less rigid application of the rule of forfeiture should prevail where the basis for the objection is the conduct of the trial judge.  Sprinkle, 27 Ill. 2d at 401.

Here, defendant was specifically told by the judge that he had to talk to pretrial services and then the judge used that information to increase his sentence. In our view, this error should be reviewed both because it is a direct infringement of a constitutional right, and because that infringement came from the court.

We are sympathetic to the trial court’s premise that, generally speaking, it is helpful to a defendant, as well as to the court, to have some understanding of the defendant’s background at the time of sentencing. This context can often help mitigate the trial court’s view of the criminal conduct for which the defendant has been convicted.

Unfortunately in this case, the trial court appears to have viewed as only negative, some of the information that could have been used as mitigation.

No Doubt It Was Used Against Him

The State does not dispute that defendant had a fifth amendment right not to be compelled to provide information that was used against him at sentencing. Nor does the State dispute that the information he provided was, in fact, used against him.

The first PSI report said nothing about gang involvement or when defendant stopped attending school. There was also no testimony at trial about the offense being gang-related. The PSI report that was provided to the trial court after he was required to participate reflects that defendant told the PSI investigator that he had been affiliated with the Mafia Insane Vice Lords and that he dropped out of school after the 10th grade.

The State emphasized these facts and the trial court made multiple references to his gang involvement, concluding that defendant kept returning to “gangs and guns” throughout his life. The trial court also chastised Mr. Woods for dropping out of school.

The sentence imposed was eight years longer than the lengthy minimum sentence that this conviction required.

Findings

We find that the trial court plainly erred by insisting that defendant cooperate with the PSI and then using this information against him as reflected in the repeated reference to his past gang participation and educational history.

This error deprived defendant of a fair sentencing hearing and therefore requires us to vacate the sentence.

There is no dispute that the record shows that he initially refused to participate in the PSI, then was ordered to do so by the trial court, and then provided information that was used against him at sentencing.

What Normally Happens

The fact that defendant may have been advised by counsel that he did not have to provide information about the specifics of the charged crime or that a probation officer may have “Mirandized” him, in no way diminishes the fact that defendant was ordered by the trial court to surrender his fifth amendment rights.

Holding

We agree that the remedy here is to remand for resentencing to the presiding judge of the criminal division so that defendant can be resentenced before a new judge with a new PSI. People v. Heider, 231 Ill 2d 1, 25 (2008) (the best way to remove any suggestion of unfairness is to have the case assigned to a new judge).

In Illinois Post Arrest Silence Even Before Miranda Generally May Not Be Commented On

Jan 15, 2019 09:54

Description:

People v. Boston, 2018 IL App (1st) 140369 (December). Episode 580 (Duration 9:54)

Long complicated murder case, here is some information on commenting on pre-arrest silence.

Rebuttal Closing

These statements were made by the ASA during rebuttal closing argument:

“The defendant doesn’t say to her, I mean, you know, in his lie, but in reality, he never says I need help, and, in fact, the police told you that when Curry comes with McPherson, the defendant says nothing. If you’re killing someone in self-defense, aren’t you shouting it from the toppist [sic], highest mountain you can find. Wait a minute, thank God you’re here...Drop the knife, police, I was attacked, it’s not what it looks like, I have blood on me, it’s not—I’m cut, I was defending myself, I was attacked, he attacked me. He said nothing to the police. He runs in the back, and then Lieutenant Bankhead comes, and he comes out, and he’s got his hands up, does he say then, listen, it’s a mistake, I am not the one, I am a victim, I was attacked, I had to do it, or to granny, call an ambulance, this is a horrible event. Yeah, if you were truly justified, if you were truly not guilty, that’s what you would do, and that’s not what he did, and that’s how you know.”

A Little History On Pre-Arrest Silence

Here's a historical overview of the law in Illinois regarding the prohibition of the use of pre-Miranda silence, including the silence following a defendant’s arrest but before receiving Miranda warnings, as stated in this court’s opinion People v. Quinonez:

“The United States Supreme Court held in Doyle v. Ohio, 426 U.S. 610, 617-20 (1976), that it was a violation of the due process clause of the fourteenth amendment for the State to impeach a defendant using evidence that defendant was silent following his arrest, after he was advised of his Miranda rights. The Court reasoned that since Miranda warnings carry the implicit assurance that his silence will carry no penalty, it would be fundamentally unfair to allow a defendant’s post-Miranda silence to impeach his trial testimony. Doyle, 426 U.S. at 612. However, the Supreme Court later held that the prohibition applies only to a defendant’s silence after being advised of his Miranda rights. Fletcher v. Weir, 455 U.S. 603, 607 (1982) (per curiam). In doing so, it found that states were free to formulate their own rules with respect to defendant’s silence before arrest, as well as after arrest but before receiving Miranda warnings.”

Quinonez, 2011 IL App (1st) 092333, ¶ 25 (citing Jenkins v. Anderson, 447 U.S. 231, 238 (1980); Fletcher, 455 U.S. at 607).

Issue

What is at issue are the comments made by the prosecutor prior to defendant receiving his Miranda warnings.

Illinois Law

Illinois evidence law prohibits impeachment of a criminal defendant with his or her postarrest silence, regardless of whether the silence occurred before or after the defendant was given Miranda warnings.

As set forth by our supreme court, “an accused is within his rights when he refuses to make a statement at the time of his arrest, and the fact that he exercised such a right has no tendency to prove or disprove the charge against him, thus making evidence of his refusal neither material or relevant to the issue being tried.” Lewerenz, 24 Ill. 2d 295, 299 (1962) (citing People v. Rothe, 358 Ill. 52, 57 (1934)).

The Illinois rule with it's language of relevancy and materiality is based on evidentiary principles, rather than constitutional law.

The Illinois evidentiary rule generally prohibits impeachment of a criminal defendant with his postarrest silence, regardless of whether it occurred before or after he was given Miranda warnings, because under those circumstances, that silence is not considered relevant or material. 

What About Pre-Arrest Silence?

A prosecutor’s comments on prearrest silence, however, are proper. See People v. Manley, 222 Ill. App. 3d 896, 909 (1991); People v. Graves, 142 Ill. App. 3d 885, 890 (1986).

An Arrest

In order to determine whether the prosecutor’s comments were improper, we must first determine at what point defendant was arrested.

“An arrest occurs when a person’s freedom of movement is restrained by physical force or a show of authority.” People v. Surles, 2011 IL App (1st) 100068, ¶ 23.

Factors that may be indicative of an arrest include

“(1) the threatening presence of several officers;
(2) the display of a weapon by an officer;
(3) some physical touching of the person of the citizen; and
(4) the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.”

People v. Luedemann, 222 Ill. 2d 530, 553 (2006).

We determine whether a person is under arrest based on whether an objective reasonable person, innocent of any crime, would conclude that he is not free to leave under the circumstances.

The Arrest In This Case

The record here demonstrates that defendant was not arrested until an officer pointed his weapon at defendant, commanded defendant to ascend the staircase, and guided defendant up the staircase while continuing to point his weapon at defendant.

Although this officer was the only officer on the stairs at that time, defendant was aware of the presence of at least three officers on the scene. In addition, this officer approached defendant with his weapon drawn, gave defendant an order to come with him up the stairs, and continued to point his weapon in defendant’s direction as they ascended the stairs.

Under the totality of these circumstances, we conclude that any interaction defendant had with police officers from that point forward is considered postarrest.

Thus it follows that the prosecutor’s comments regarding the points in time prior to defendant’s arrest were proper.

The Illinois "Exception"

Illinois courts have held that there are two exceptions to the general rule, where postarrest silence will be considered relevant. People v. McMullin, 138 Ill. App. 3d 872, 877 (1985). A defendant’s postarrest silence may be used to impeach his trial testimony when:

(1) the defendant testifies at trial that he made an exculpatory statement to the police at the time of his arrest; or
(2) the defendant makes a postarrest (but still pretrial) statement that is inconsistent with his exculpatory trial testimony.

Quinonez, 2011 IL App (1st) 092333, ¶ 27.

Despite the State’s request, we decline to consider whether defendant’s postarrest silence falls within one of the exceptions to the general rule. First, the facts of this case are nuanced and the State cites no case wherein it was allowed to impeach a defendant with his or her silence where the State itself elicited the testimony it purports to impeach. See Ill. S. Ct. R. 341(i), (h)(7).

Second, even if it did not fall within one of the exceptions, defendant cannot demonstrate plain error. Here, the evidence defendant committed first degree murder was overwhelming.

Holding

We do not believe that any alleged error was “so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial process.” We conclude defendant has not met his burden to demonstrate the error was so serious it affected the fairness of the trial and challenged the integrity of the judicial process.

An Update On The Barney Fife Traffic Stop

Jan 14, 2019 16:26

Description:

What is happening in Illinois with the mistake of law doctrine?

Episode 579 (Duration 16:25) [

In Re Maurice J. 

In re Maurice J., 2018 IL App (1st) 172123 (June). Episode 506 (Duration 8:18)

Officer not knowing the traffic law he says he was enforcing is not the same as being reasonably confused about the law.

Gun Case

The minor respondent was charged in juvenile court and adjudicated for UUW under 21. The minor was sent to JIDOC

Facts

Police see a car “go around a speed bump.” 

Specifically, the driver went toward the curb so that one set of tires was on the speed bump and the other set was level. Although the driver steered around the bump, he did not swerve.

The Stop & The Gun

After the traffic violation, the officer  activated the emergency equipment in order to curb the vehicle.

From 12 to 15 feet away, he “observed the front passenger pass a handgun to the rear passenger.”

The officer could see the gun because the police car was an elevated SUV and illuminated the inside of the car.

Everyone Removed

The driver and respondent, who was in the front passenger seat, were immediately removed form the car and handcuffed. The officer testified that he knew to look for the firearm “[i]n the direction [that] the offender gave it to the co-offender.”

Moreover, the officers searched the occupants and found a firearm in a purse. 

Wells was released with a traffic citation for driving around the speed bump.

Issue

On appeal, respondent first asserts that the trial court erred in denying his motion to suppress evidence because it was not reasonable for an officer to believe that the driver committed a traffic violation.

Specifically, the testimony failed to show that the car drove upon or through private property to avoid a traffic control device.

Fourth Amendment

Under the fourth amendment and the Illinois Constitution of 1970, individuals have the right to be free from unreasonable searches and seizures. U.S. Const., amend. IV, and Ill. Const. 1970, art. I, § 6.

In addition, the stop of a vehicle for a suspected violation of law constitutes a seizure, regardless of whether the seizure is brief and is made for a limited purpose. People v. Gaytan, 2015 IL 116223, ¶ 20. Pursuant to Terry v. Ohio, 392 U.S. 1 (1968), police officers may conduct a brief, investigatory stop if the officer reasonably believes that the individual in question committed or is about to commit a crime.

Mistakes Of Law

In Heien v. North Carolina, 574 U.S. ___, ___, 135 S. Ct. 530, 536 (2014), the United States Supreme Court held that a reasonable suspicion can be supported by an officer’s misunderstanding of the scope of a law.

Consequently, a police officer does not violate the fourth amendment when he stops a vehicle based on an objectively reasonable, albeit mistaken, belief that the driver’s conduct leading to the stop violated traffic laws. 

This reflects that the fourth amendment permits government officials to make some mistakes.

…but

The Court stated in Heien, “an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce.” Heien, 574 U.S. at ___, 135 S. Ct. at 539.

It’s An Objective Standard

That being said, courts apply an objective standard in determining whether a police officer made a reasonable mistake of law, without examining the particular officer’s subjective understanding.

Respondent essentially contends that, even taking the officer’s account as true, the traffic stop lacked a reasonable articulable basis.

The Traffic Code On Avoiding Traffic Control Devices

Section 11-305 of the Illinois Vehicle Code states, in pertinent part, that

“[i]t is unlawful for any person to leave the roadway and travel across private property to avoid an official traffic control device.”

625 ILCS 5/11-305(b).

Thus, section 11-305 clearly applies only where a driver enters private property.

Accordingly, the ordinance unambiguously applies only where the driver enters private property or an alley, or drives on a traffic island.

This Is Pretty Clear

We find the distinction between the street itself and private property, alleys, or traffic islands to be obvious.

The State nonetheless argues that the officer could have reasonably, albeit mistakenly, believed that this was a violation of the ordinance because maneuvering around a speed bump while remaining in the roadway is similar to driving onto a traffic island. While vehicles are permitted to be driven on a public street in most instances, they should almost never be driven on a raised traffic island.

We categorically disagree.

No Mistake Of Law Here

 The case before us does not present an officer’s misunderstanding of the law. Instead, it presents an officer’s failure to know the law.

Here the officer’s mistaken belief that the driver committed a traffic violation was unreasonable where Wells never left the street to avoid a speed bump.

Holding

It follows that the seizure of respondent as an occupant in Wells’s car, which occurred when the police activated their lights and siren, was also unreasonable. Consequently, respondent was entitled to the suppression of such evidence. 

Accordingly, we reverse the adjudication of delinquency outright. 

People v. Mueller

People v. Mueller, 2018 IL App (2d) 170863 (December). Episode 572 (Duration 8:47)

Jeep touches he traffic lines 3 times and gets stopped, reasonable?

Charges

Defendant, Amy Lynn Mueller, was charged with driving under the influence of alcohol (625 ILCS 5/11-501(a)(1), (a)(2)) and improper lane usage (ILU) (625 ILCS 5/11-709(a)).

Innocent Left Turn

Defendant’s Jeep was stopped in the left-turn lane at a light at the intersection at 1:40 am on a rural rode. When the light turned green, she turned left onto Route 31. There was nothing unusual in the turn.

The sheriff’s deputy followed defendant. She was not speeding.

First Touch

Then Jeep’s driver’s-side tires rolled onto the yellow center line and touched it for a few seconds. The vehicle did not cross the line but returned to its lane.

Did It A Second Time

Then a second time after traveling some distance, the Jeep’s passenger’s-side tires touched the white fog line but never crossed over it. The Jeep never left the lane. The Jeep moved back toward the center of the lane without doing anything unusual.

Happened A Third Time

Then a third violation was when the Jeep’s passenger’s-side tires again rode on the white fog line. This was “momentary.” The tires never crossed over the line. Other than the three incidents of what he regarded as ILU, the sheriff’s deputy did not see defendant violate any traffic laws.

Jeep Stopped

He acknowledged that the stretch of road on which he followed defendant was not straight and had “some twists and turns.” Also, he acknowledged that the video system in his squad car had been inoperable since October 2016 and that he had not requested any repair.

Based on the three incidents alone, he stopped the Jeep nearly a mile from where he first saw it.

Trial Court Findings

The trial court said the sheriff’s deputy’s testimony had been “problematic. He either didn’t remember important details or was flippant with defendant’s attorney.  The sheriff’s deputy never saw the Jeep’s tires cross over either the yellow center line or the white fog line, nor did he observe any jerky or erratic driving corrections.

The three lane-line touches occurred over a mile-long twisting and turning stretch of road.

The trial court noted that, current law required evidence that defendant’s tires crossed over the lane lines to create a reasonable suspicion of ILU.

That had not occurred.

Issue

She moved to quash her arrest and suppress evidence, contesting the initial stop of her vehicle for ILU. 

Question: Was there sufficient reasonable suspicion justifying the traffic stop? Does a vehicle have to cross the line or does merely touching it register as an improper lane usage?

Illinois Traffic Code on Lane Usage

Section 11-709(a) states that,

“Whenever any roadway has been divided into 2 or more clearly marked lanes for traffic,..vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”

625 ILCS 5/11-709(a).

Crossing The Lane Will Get You Stopped

Although the statute requires a driver to remain entirely within a single lane only as nearly as practicable, it is settled that an officer may stop a vehicle for driving outside its lane for no obvious reason, without further inquiry into practicability. Hackett, 2012 IL 111781, ¶¶ 27-28.

To be clear what we are asking here is if the sheriff’s deputy had a reasonable suspicion that defendant failed to drive “entirely within a single lane” (625 ILCS 5/11-709(a)), when (1) her driver’s-side tires touched, but did not cross, the yellow center line or (2) her passenger’s-side tires touched, but did not cross, the white fo

Trial Court’s Ruling

The trial court relied on

People v. Hackett, 2012 IL 111781,  ¶ 9 People v. Smith, 172 Ill. 2d 289, 297 (1996) People v. Flint, 2012 IL App (3d) 110165, ¶¶ 8, 17 and People v. Leyendecker, 337 Ill. App. 3d 678, 680, 682 (2003)

…which, it stated, all held that a person commits ILU only when his or her vehicle crosses the center line or the fog line.

However, in none of those cases did the defendant merely touch the line without crossing it. Each motorist crossed the line. In each case the court held that crossing the line is ILU, but in no case did it explicitly hold that only crossing the line is ILU.

What Is A Traffic Lane?

The Illinois statute does not define “lane” and does not specify whether either a center line or a fog line is part of the “lane” in which the driver is traveling.

Although the Code does not specifically define “lane,” it defines “laned roadway” as

“a roadway which is divided into two or more clearly marked lanes for vehicular traffic.”

625 ILCS 5/1-136.

As a matter of established usage, a “lane” is “a strip of roadway for a single line of vehicles.” Merriam-Webster’s Collegiate Dictionary 652 (10th ed. 2001). As these definitions suggest, in common practice, a traffic “lane” is one in which vehicles legally and customarily are driven toward their destinations.

Dividing lines or boundary lines, by contrast, are legally and customarily used only to change lanes, turn, or make other maneuvers (see 625 ILCS 5/11-709(a) (vehicle “shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety”)).

If a line’s purpose is to divide two lanes, then a vehicle has not changed lanes until it has crossed the line.

Moreover, this interpretation is consistent with the official rules of the road, in Illinois and elsewhere. “Yellow center lines separate lanes of traffic moving in opposite directions.”  Ill. Sec’y of State, 2018 Illinois Rules of the Road 76 (Mar. 2018)), https://www.cyberdriveillinois .com/publications/pdf_publications/dsd_a112.pdf. [https://perma.cc/3GA7-MJGH].

Not Ambiguous Either

We conclude that the statute is unambiguous. Therefore, Heien and Gaytan do not apply and the stop cannot be validated as based on a reasonable mistake of law.

Analysis

In any event, we note that a stop for ILU is valid when “a police officer observes multiple lane deviations, for no obvious reason.” Hackett, 2012 IL 111781, ¶ 28.

Here, even if defendant’s multiple touches could be considered “lane deviations,” the road’s “twists and turns” provided an innocent (and obvious) explanation for those brief touches.

Holding

Thus, under any construction of section 11-709(a), the trial court correctly granted defendant’s motion to quash and suppress. We affirm the order of the circuit court of McHenry County.

People v. Walker

People v. Walker, 2018 IL App (4th) 170877 (September). Episode 536 (Duration 10:58)

Turns out we’ve been misreading the “proper turn” statute all along.

Gist

Defendant was stopped for an improper left turn and received a ticket for driving while his license was revoked (625 ILCS 5/6-303 (West 2016)).

He filed a motion to suppress evidence from the stop, asserting the police officer who stopped him lacked reasonable, articulable suspicion defendant had violated the law.

State Argued

The State argued defendant was required to turn into the nearest westbound lane pursuant to section 11-801 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11­ 801). Because defendant did not do so, the traffic stop was valid.

According to the State, section 11-801(a)(2) unambiguously required defendant to enter the leftmost lane legally available when he executed the left turn in this case. In the alternative, the State argues section 11-801(a)(2) is ambiguous.

The Turn

Around 12:30 a.m. on defendant drove his car out of a gas station by making a right turn onto Hershey Road in Bloomington, Illinois. Defendant then proceeded north on Hershey Road, eventually moving into the left turn lane as he approached the intersection of Hershey Road and Empire Street.

The traffic light was red, and defendant stopped at the intersection.

When the light turned green, defendant made a left turn onto Empire Street, exiting the intersection into the farthest available westbound lane, which was the northernmost lane. After making his left turn, defendant was proceeding in a westerly direction on Empire Street, which had two lanes for westbound traffic.

Immediately after defendant exited the intersection, an officer stopped defendant for making an improper left turn because defendant did not exit the intersection into the nearest westbound lane of traffic on Empire Street.

Required Position And Method Of Turning

Section 11-801(a)(2) provides the following:

“(2) The driver of a vehicle intending to turn left at any intersection shall approach the intersection in the extreme left-hand lane lawfully available to traffic moving in the direction of travel of such vehicle, and after entering the intersection, the left turn shall be made so as to leave the intersection in a lane lawfully available to traffic moving in such direction upon the roadway being entered. Whenever practicable the left turn shall be made in that portion of the intersection to the left of the center of the intersection.”

625 ILCS 5/11-801(a)(2) (West 2016).

The first sentence of section 11-801(a)(2) is a compound sentence and states (1) the law as to what lane—“the extreme left-hand lane”—a driver must be in when approaching an intersection to make a left turn and (2) the law as to what lane—“a lane lawfully available to traffic moving in such direction upon the roadway being entered”—the driver should use when exiting the intersection.

The second sentence of subsection (a)(2), which is the focus of the State’s argument, states the law as to what the driver should do within the intersection: “Whenever practicable the left turn shall be made in that portion of the intersection to the left of the center of the intersection.”

Analysis

Pursuant to a plain reading of section 11-801(a)(2), which we do not find to be ambiguous, defendant did not violate the law by exiting the intersection into the farthest westbound lane of traffic on Empire Street. For this court to agree with the State’s interpretation of this subsection, we would have to depart from the plain language of the statute by reading into the statute exceptions, limitations, or conditions the legislature did not express, and we would have to deem other parts of the statute superfluous.

This court would have to determine the legislature intended (1) for the last sentence of subsection (a)(2) to be read to restrict what lane a driver could exit an intersection—without any language in the sentence to that effect—and (2) for language in the first sentence—“the left turn should be made so as to leave the intersection in a lane lawfully available to traffic moving in such direction” (emphasis added)— to be ignored.

We will not interpret this statute in the manner suggested by the State.

Mistake Of Law

The United States Supreme Court in Heien v. North Carolina, 574 U.S. ___, ___, 135 S. Ct. 530, 536, 539 (2014), did hold reasonable suspicion justifying a traffic stop “can rest on a mistaken understanding of the scope of a legal prohibition” as long as the mistaken understanding of the law was objectively reasonable. With regard to the objective standard, the Court stated, “We do not examine the subjective understanding of the particular officer involved.” Heien, 574 U.S. at ___, 135 S. Ct. at 539.

In addition, the Court declared, “[A]n officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is dutybound to enforce.” Heien, 574 U.S. at ___, 135 S. Ct. at 539. According to Justice Kagan: “A court tasked with deciding whether an officer’s mistake of law can support a seizure thus faces a straightforward question of statutory construction. If the statute is genuinely ambiguous, such that overturning the officer’s judgment requires hard interpretive work, then the officer has made a reasonable mistake. But if not, not. As the Solicitor General made the point at oral argument, the statute must pose a ‘really difficult’ or ‘very hard question of statutory interpretation.’ [Citation.] And indeed, both North Carolina and the Solicitor General agreed that such cases will be ‘exceedingly rare.’ ” Heien, 574 U.S. at ___, 135 S. Ct. at 541. 

Holding

Based on the evidence and a plain reading of the unambiguous language of section 11-801(a)(2), defendant did not violate any statute justifying the traffic stop by exiting the intersection in the farthest westbound lane of Empire Street. As we have concluded section 11-801(a)(2) is not ambiguous, the State’s alternative argument “the traffic stop was still lawful due to the ambiguity of the statutory language” also fails.

In this case, the plain language of section 11-801(a)(2) does not present a difficult or hard question of statutory interpretation. The statute clearly allows a driver making a left turn to exit the intersection into any available lane of traffic moving in the proper direction. The officer’s misunderstanding of section 11-801(a)(2) was not objectively reasonable. As a result, the officer’s stop of defendant’s vehicle was not justified. As we have found the stop of defendant’s vehicle was not constitutionally justified, we next turn to the State’s argument the exclusionary rule should not be applied under the circumstances in this case.

For the reasons stated, we affirm the circuit court’s judgment.

See Also

Episode 073 – People v. Gaytan (ball hidge on a license plate blocking the numbers)

Episode 238 – People v. Theus (defendant fails to signal when rodeway jumped from one to two lanes)

Heien v. North Carolina, 135 S. Ct. 530 (2014), (truck stopped because of broken tail light)

Episode 232 – People v. Lubienski, 2016 IL App (3d) 150813 (September) (Crossing The Line One Time Justifies A Traffic Stop)

Episode 434 – People v. Lomeli, 2017 IL App (3d) 150815 (December) (Traffic Stop Based On Dangling Rosary Is Legal)

Episode 142 – People v. Little, 2016 IL App (3d) 130683 (February) (Reasonable Suspicion Does Not Require Ruling Out All Innocent Behavior)

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Aggravated Battery is Not Necessarily a Forcible Felony

Jan 11, 2019 03:01

Description:

People v. White, 2015 IL App (1st) 131111 (December 2015). Episode 126 (Duration 3:01)

Domestic battery is not a forcible felony that can support a conviction for armed habitual criminal.

Defendant was convicted of being an armed habitual criminal and committing armed violence when he was stopped, dropped a gun, and had drugs on his person.

Originally published on January 11, 2016.

Forcible Felony

Because domestic battery is not expressly enumerated in subsection (2) or (3) of the armed habitual criminal statute, it must constitute a forcible felony under subsection (1) in order to be a qualifying felony under the statute. See Armed habitual Criminal statute 720 ILCS 5/24-1.7(a).

Section 2-8 of the Criminal Code of 2012 provides that a…

” ‘[f]orcible felony’ means…any other felony which involves the use or threat of physical force or violence against any individual.”

On First Blush

Here, the record must show that the specific circumstances of defendant’s domestic battery conviction fall under the residual clause or domestic battery must inherently be a forcible felony under the residual clause.

The State presented no evidence at trial concerning the circumstances surrounding defendant’s prior conviction. On first blush, a domestic battery where bodily harm has been causes appears to be a forcible felony.

Not All Batteries Are Forcible Felonies

However, in defining forcible felonies, the legislature has specified aggravated battery based on great bodily harm, permanent disability or disfigurement, to the exclusion of aggravated battery where mere “bodily harm” has occurred.

It cannot be said that defendant’s domestic battery conviction constituted a forcible felony. In turn, that conviction did not satisfy an element of the armed habitual criminal offense and defendant’s conviction for that offense must be vacated.

Armed Habitual Criminal Conviction Reversed

Additionally, the ambiguity in the armed violence statutes must be construed in defendant’s favor. The statute, then, does not authorize multiple armed violence convictions for multiple, simultaneous, underlying felonies. Accordingly, one of his armed violence convictions must be vacated.

Single Finger Eyewitness Identification Cases Remain Alive And Well

Jan 9, 2019 07:08

Description:

In re N.A., 2018 IL App (1st) 181332 (December). Episode 578 (Duration 7:08)

It it still appropriate to allow a conviction based on the word of one eyewitness?

An Armed Robbery

Around 8:10 p.m., victim backed her car into her garage.

Her nine year old daughter sat next to her. As the victim opened her car door, two men walked into the garage and positioned themselves on either side of her car. Still seated, she looked up and saw the man’s face. He pointed a gun at her and demanded her to “hand over everything.” She gave the man her purse and cell phone. The two men left and the victim called the police.

The Identification

The victim looked up at the man from her seated position.

He stood two feet away on the other side of her car door. Because the door was ajar, the car’s dome light activated. A “dim” garage light had turned on and there was some additional “ambient lighting from the alley.” She “immediately” saw the man had a gun. It was a “small pistol-type gun,” dark in color and he held it “close to his body.” From her vantage point, the gun was pointed “pretty much to my face.”

He was African-American and wore a “nondescript,” “dark colored sweatshirt” with the hood on, but she could see his face and “short hair.” They appeared to be 20 years old and she guessed that their heights were between five feet, 10 and 11 inches.

After he demanded, “give me everything” and “don’t move,” the victim surrendered her purse and cell phone. The two men left.

The Photo ID

Detective showed her two sets of photographs. This Detective was an independent administrator, meaning that he had “no knowledge of the case or who the suspect may be in the photo array.”

Before viewing the photographs, she signed a photo lineup advisory form indicating that she did not want to be audio or video recorded. The victim understood she did not have to identify anyone. She identified respondent in the first set of photographs as the man who robbed her. She did not identify anyone from the second set.

About a month later, Chicago police detective went to the victim’s home and showed her two photo arrays. She signed a photo advisory form indicating that that she did not want to be audio or video recorded and understood she had no obligation to identify anyone. The victim identified respondent N.A. in the first photo array as the man who robbed her at gun point.

She did not identify anyone in the second photo array.

She Was Certain

On cross-examination, the victim testified that her focus during the robbery was directed at respondent’s gun. She indicated that the alleged robbery lasted five to seven minutes and that respondent did not speak with an accent when he voiced his demands. On re-cross examination, the victim testified that she had “no problem at all” seeing respondent’s face or identifying him in court.

She testified, “I was able to get a really good look at the guy when it was happening because his face was so close to me. So then, when I saw the photo lineup, you know, I knew the photos that were absolutely not the person. And so, you know, when I identified that person, I was certain.”

Issue

The issue on appeal is whether the victim’s eyewitness identification testimony was sufficient to sustain respondent’s delinquency adjudication beyond a reasonable doubt.

Respondent challenges that identification as unreliable and insufficient to support his delinquency adjudication beyond a reasonable doubt.

Single Eyewitness Sufficient To Convict

A single eyewitness identification of the accused is sufficient to sustain a conviction if the witness viewed the accused under circumstances permitting a positive identification. People v. Davis, 2018 IL App (1st) 152413, ¶ 55.

A vague or doubtful identification will not suffice. Illinois courts look at the totality of the circumstances and consider the following factors to determine whether an eyewitness identification is reliable:

(1) the witness’s opportunity to view the suspect during the commission of the offense
(2) the witness’s degree of attention
(3) the accuracy of any prior descriptions provided
(4) the witness’s level of certainty at the time of the identification procedure and
(5) the length of time between the crime and the identification.

People v. Slim, 127 Ill. 2d 302, 307–08 (1989); Neil v. Biggers, 409 U.S. 188, 199 (1972). Respondent argues that the victim’s identification is unreliable.

They Are All Unreliable

In his brief, however, respondent goes further and takes aim at all eyewitness identifications.

He suggests that the Illinois supreme court has “cast doubt” on the reliability of eyewitness identifications and contends that the legislature shares a similar “skepticism” evidenced by its enactment of the section 107A-2 of the Criminal Code of 1963 (725 ILCS 5/107A-2 ) (the Lineup Statute), which governs the procedure by which lineups are conducted.

Circling back to his case, respondent argues that the Biggers factors are no longer the “end-all-be-all of assessing identification testimony” and urges us to find that the Detective's noncompliance with the Lineup Statute further undercuts the reliability of an already unreliable eyewitness identification.

Analysis

The victim’s testimony showed that she had an ample opportunity to view respondent during the commission of the offense. She had “no problem at all” seeing his face from where she sat in her car and got a “really good look at the guy when it was happening because his face was so close to me.” Respondent stood two feet away from the victim. The encounter lasted “five to seven minutes.”

Respondent contends that the lighting conditions were inadequate because the garage light was “dim.” But there is simply no evidence that the lighting conditions (or respondent’s hooded sweatshirt) obstructed the victim’s view or prevented her from seeing respondent’s face. All the testimony is, frankly, to the contrary. The victim was not impeached and the trial court found her testimony to be credible.

The victim’s degree of attention during the robbery was not “particularly weak,” as respondent contends. To be sure, the victim did testify that her “focus” during the robbery was on respondent’s gun, but on re-direct examination she clarified her testimony and indicated she was able to see respondent’s face while focusing on his gun.

We cannot consider respondent’s scholarly article on “weapon focus” (or his reference to an article on the unreliability of “cross-racial” identifications) as the trial court was not afforded the opportunity to consider that information and heard no argument based upon it. 

The victim was not required to describe the physical characteristics of the offender to police with pinpoint accuracy. Our review of the record indicates that the victim’s use of the word “nondescript” was a reference to respondent’s dark clothing, not his facial or other physical features.

Did The Description Match?

The victim testified at trial that she described respondent to police as a nondescript, 20 year old who stood between five feet, 10 to 11 inches in height. Respondent argues that this description was inaccurate and unacceptable given respondent’s age of 17 at the time of the offense and height of five feet, seven inches. He places particular emphasis on the victim’s use of the word “nondescript” and her failure to include respondent’s short hair and lack of facial hair in her initial description of respondent.

Furthermore, the trial court was aware that the victim ventured a guess as to respondent’s exact height and failed to provide an initial description of his hairstyle to police. The trial court addressed these issues within its province and resolved them against respondent. We defer to the trial court’s decision.

Level Of Certainty

As for the victim’s level of certainty at the time she viewed the photo arrays and identified respondent, she testified to being “certain” of her identification and “knew the photos that were absolutely not the person.” The victim had no problem making the identification.

Respondent argues that an eyewitness’ confidence when identifying an offender is not conclusive of accuracy. But whether or not his argument rings true is immaterial as respondent failed to present this argument to the trial court.

Took Her A Month

As respondent requests, we do not “easily brush off” the fact that a month lapsed between the identification and the armed robbery. However, we have upheld positive identifications involving considerably longer lapses in time. See People v. Malone, 2012 IL App (1st) 110517, ¶ 36 (identification was reliable despite lapse in time between crime and identification of one year and four months).

We therefore see no reason to upend the trial court’s determination as a result of the lapse in time here.

Lerma Not An End All

Respondent urges this court to look beyond the Biggers factors and recognize that our supreme court has moved away from them. He supports his argument with People v. Lerma, 2016 IL 118496 and accurately quotes the case to show that the court’s view of expert testimony on the reliability of eyewitness identifications has changed.

We have not only seen that eyewitness identifications are not always as reliable as they appear, but we have also learned, from a scientific standpoint, why this is often the case.

However, we do not see how Lerma, applies to his case. Respondent did not call, or attempt to call, an expert witness at trial. Accordingly, if Lerma changed the legal framework of eyewitness identification, respondent made no attempt to benefit from it at trial.

The Photo Lineup Was Not Recorded

Did Detective violate the Lineup Statute and, as a result, the victim’s identification is entitled to “less weight?”

The Lineup Statute governs the manner and means by which law enforcement conducts lineups. 725 ILCS 5/107A-2, 107A-0.1  A video record of all lineup procedures must be made unless it is not practical or the eyewitness refuses. § 107A-2(h). If making a video record is not practical or the eyewitness refuses, an audio record shall be made, if practical. §§ 107A2(h)(1), 107A-2(1)(B).

The Lineup Statute identifies the following as “consequences” of noncompliance:

(1) the trial court can consider noncompliance as a factor in adjudicating a motion to suppress an eyewitness identification or any other motion to bar an eyewitness identification; and
(2) when warranted by the evidence at trial, the trial court must instruct the jury that it may consider noncompliance to assist in its weighing of the identification testimony of the eyewitness.

§ 107A-2(j)(1)-(2).

The State argues that the lineup form signed by the victim indicated her unwillingness to be video or audio recorded and therefore, this is a nonissue. But, as respondent points out, the Lineup Statute contains no language that would allow an eyewitness to refuse an audio recording. Id. § 107A-2(h)(1)(B).

The State’s argument is therefore misplaced and, absent any argument as to why an audio recording of the photo array procedure was not practical under the circumstances, we are left with sheer noncompliance.

Given technological advancements, the portability of recording devices and law enforcement’s use of body cameras, we see no reason why Detective could not have made an audio record as the Lineup Statute requires.

But the violation had no affect on the reliability of the victim’s identification.

Respondent was not tried before a jury and he failed to file a motion to suppress or bar the victim’s identification. Accordingly, this noncompliance was inconsequential.

Holding

We hold that the totality of the circumstances and Biggers factors favor the State and support the trial court’s finding that the victim’s identification was reliable. Viewed in the light most favorable to the State, the victim’s testimony was sufficient to support respondent’s delinquency adjudication beyond a reasonable doubt. She was “certain” respondent was the man who robbed her at gun point and took her purse and cell phone, and “had no problem at all” picking respondent out of the photo array or identifying him in court.

Despite respondent’s arguments to the contrary, the basic legal principle that a single eyewitness identification of the accused under circumstances permitting a positive identification is sufficient to convict remains fully intact. In re M.W., 232 Ill. 2d 408, 435 (2009). We have one such identification here.

Other Crimes Evidence In A Sex Case Can’t Touch Basic Joinder Rules

Jan 8, 2019 07:14

Description:

People v. Hayden, 2018 IL App (4th) 160035 (December). Episode 577 (Duration 7:14)

Predatory reversed due to non severance of the charges.

Gist

Life sentence in a predatory criminal sexual assault is reversed because the charges were not severed.

Joinder of Charges

A trial court may order that two or more charges be tried together “if the offenses *** could have been joined in a single charge.” 725 ILCS 5/114-7.

“Two or more offenses may be charged in the same [charging instrument] in a separate count for each offense if the offenses charged *** are based on the same act or on 2 or more acts which are part of the same comprehensive transaction”, unless joining the separate charges would prejudice the defendant. 725 ILCS 5/111-4(a) and 725 ILCS 5/114-8(a).

Thus, assuming the lack of prejudice to the defense, two or more offenses may be charged in the same charging instrument only if

(1) the offenses are based on the same act or
(2) the multiple acts are part of the same comprehensive transaction.

Same Comprehensive Transaction

Case law has developed some factors for determining whether multiple acts are parts of the same comprehensive transaction, including

(1) “the proximity in time and location of the offenses,”
(2) “the identity of evidence needed to demonstrate a link between the offenses,”
(3) “whether there was a common method in the offenses,” and
(4) “whether the same or similar evidence would establish the elements of the offenses.”

People v. Gapski, 283 Ill. App. 3d 937, 942 (1996).

Those are merely factors, however, and we must not allow them to supplant the statutory language. In this case, the critical language in section 111-4(a) is “the same comprehensive transaction.”

Dictionary Meaning

Typically, the word “transaction” is used to mean “an exchange or transfer of goods, services, or funds.” Merriam-Webster’s Collegiate Dictionary 1249 (10th ed. 2000). Less often, the word is used to mean “the carrying on or completion of an action or course of action” (Oxford English Dictionary 387 (2d ed. 1989)) or “an exchange or interaction between people” (New Oxford American Dictionary 1787 (2d ed. 2005)). See also Merriam-Webster’s Collegiate Dictionary 1248 (10th ed. 2000) (“a communicative action or activity involving two parties or things that reciprocally affect or influence each other”).

Section 111-4(a) uses the term “transaction,” in this somewhat unusual way, to mean a course of action or an interaction between people because case law preexisting the statute almost always used the term that way when explaining when separate offenses could be joined in a single charging instrument.

See People v. Fleming, 121 Ill. App. 2d 97, 102 (1970) .

Different Victims At Different Times

If a defendant completes offenses at different times and against different victims, the offenses probably are not parts of the same transaction unless there was “a concerted plan of action or scheme on the part of defendant that would link the two offenses.” See People v. Bricker, 23 Ill. App. 3d 394, 397 (1974).

Thus, if at different times a defendant commits the same type of offense against different victims, a similarity in methodology (such as pointing a gun at a clerk) and a similarity of motive (such as the desire for money) do not make the offenses parts of “the same comprehensive transaction.” 

Analysis

Defendant’s alleged sexual offense against his stepdaughter, T.M., and his alleged sexual offense against his stepdaughter’s friend, A.C., at a different place three years later, are not parts of the same comprehensive transaction.

It is logically irrelevant that both victims were female minors and that he sexually molested them in a similar manner and under similar circumstances. The similarity of the two offenses has no logical tendency to make them a “united, continuous and indivisible act.” These offense were, on the face of the information, separate transactions, and, therefore, the trial court abused its discretion by denying defendant’s motion for a severance.

But Was It Harmless Error?

If the charges had been severed as they should have been, section 115-7.3(b) of the Code (725 ILCS 5/115-7.3(b)), would have allowed T.M. to testify in A.C.’s trial and A.C. to testify in T.M.’s trial. Even though the common law rule against propensity evidence is lifted in prosecutions for the listed sex offenses, there is still a condition of admissibility that no other rule of evidence stands in the way of the propensity evidence. If the propensity evidence is, for example, hearsay, there must be an applicable exception to the hearsay rule

Nevertheless, defendant argues—and here is his crucial point—that T.M. or A.C., as a propensity witness, could have testified to defendant’s alleged assault upon her, but her hearsay statements—her out-of-court statements about the assault upon her—would have been inadmissible absent an applicable exception to the hearsay rule (see Ill. R. Evid. 802), such as the exception for excited utterances (Ill. R. Evid. 803(2)).

Severance Would Have Had A Purpose

Thus, defendant argues, the severance of the charges would have resulted in the exclusion of many of the credibility-bolstering hearsay statements that the State presented in his trial. In other words, defendant traces a causal relationship between the denial of his motion for a severance and the abundance of confirmatory hearsay that was allowed in his trial.

With a severance, he could have objected to propensity evidence that was inadmissible because it was hearsay, not because it was cumulative.

Section 115-10 Is Limited To "Victim" Testimony"

With the charges erroneously unsevered, both A.M. and T.M. were “the victims” in the prosecution, and, consequently, under section 115-10 (725 ILCS 5/115-10), hearsay statements regarding sexual assaults upon them were admissible.

But if the charges had been severed, as they should have been, the hearsay exception in section 115-10, would have applied in A.C.’s case only to hearsay statements regarding sexual assaults upon A.C., and in T.M.’s case only to hearsay statements regarding sexual assaults upon T.M.

Defendant agrees that under section 115-7.3(b), each child could have testified in the other child's trial as a propensity witness. But their propensity testimony would have been limited to their in court testimony. None of the additional hearsay testimony pertaining to the propensity witness would have been admitted.

Section 115-10 of the Code creates a hearsay exception not for the out-of-court statements of any victim, but only for the out-of-court statements of “the victim,” designated in the “prosecution.”  The language of the section makes this clear. Additionally,  “the victim” can mean only the victim (or the victims (see id. § 102-3) named in the “prosecution for a physical or sexual act”—not a propensity witness. When the legislature means propensity witnesses, it naturally uses the term “witnesses,” not “victims.” See id. § 115-7.3(d).

Thus, the definite article in “the victim” (725 ILCS 5/115-10(a)(1), (2)) is a restrictive word, signifying that “victim” is someone previously mentioned in subsection (a) (§ 115-10(a)), namely, the “child under the age of 13,” or “person who was a moderately, severely, or profoundly intellectually disabled person” who is the alleged victim in the “prosecution for a physical or sexual act.” “The victim” means not just any victim but “the victim” named in the prosecution.

Plethora of Hearsay In This Trial

As defendant convincingly argues, the misjoinder of counts made A.C. and T.M. both “the victim” for purposes of section 115­ 10(a)(1) and (2), and, consequently, threw the doors open to a lot of bolstering hearsay evidence that would have been inadmissible if the charges had been severed, as they should have been.

For example, in A.C.’s trial, she could not have testified to what T.M. had told her. Nor could D.O. have testified to what T.M. had told her. Nor could Shirita have testified to what T.M. had told her. Nor could Bunyard have testified to what T.M. had told her. Nor could the DVD of her interview of T.M. been played to the jury.

In T.M.’s trial, maybe, under the hearsay exception for excited utterances (see Ill. R. Evid. 803(2)), A.C.’s hearsay statements to D.O. and D.O.’s parents would have been admissible, assuming that such evidence was not unduly cumulative. However, Cassandra could not have testified to what A.C. had told her. Nor could T.M. have testified to what A.C. had told her. Nor could the DVD of Bunyard’s interview of A.C. have been played to the jury.

There Was Prejudice

We can readily infer that all this hearsay evidence was calculated to bolster the credibility of A.C. and T.M.—and defendant has a reasonable argument that their credibility needed such bolstering. The cumulative, bolstering hearsay statements could have persuaded the jury to overlook those arguable weaknesses and inconsistencies in the State’s case and to set aside any questions about the complainants’ credibility.

The prejudice from the misjoinder of the charges was the admission of hearsay that, but for the misjoinder, would have been inadmissible.

the State use what otherwise would have been inadmissible hearsay to bolster the credibility of the complainants—as the misjoinder of the charges allowed the State to do. The record fails to clearly show that the misjoinder of charges and the resulting admission of bolstering hearsay were not prejudicial.

Holding

For the foregoing reasons, we reverse the trial court’s judgment, and we remand this case for further proceedings consistent with this opinion.

December 2018 Speed Round (The Illinois Criminal Case Law Round Up)

Jan 7, 2019 23:34

Description:

This is the December 2018 Illinois criminal case law audio round-up (the fast case law summary). Episode 576 (Duration 23:33)

The December 2018 Top Illinois Criminal Law Cases (The Monthly Round-Up)

Here's a quick snapshot of the top cases:

1. People v. Manzo

This one will be controversial: Illinois Supreme Court holds their was no nexus to the house justifying the search warrant.

2. People v. Clark

2019 will see a new fines and fees law take effect, Supreme Court stuck it to this guy right before the law change.

3. People v. Garza 

In a close one the reviewing court agrees to suppress these statements made on the roadside after a traffic stop.

4. People v. Mueller

Jeep touches he traffic lines 3 times and gets stopped, reasonable?

5. People v. Pratt

Warrantless blood draw after an accident deemed unconstitutional blood results excluded.

6. People v. Racila

Trial judge's ruling that there was no probable cause for this DUI arrest is reversed.

7. People v. McLaurin

State does not admit the gun, acquittal follows thereafter (weird facts though).

8. People v. Fillyaw

Improper to not allow the defense to impeach an unavailable witness with an affidavit obtained by the defense.

9. In re N.A.

It it still appropriate to allow a conviction based on the word of one eyewitness?

10. People v. Boston

Long complicated murder case, here is some information on commenting on pre-arrest silence.

11. People v. Hayden

Predatory reversed due to non severance of the charges.

12. People v. Bona

Dude leaves a less than prudent phone call on a state representatives voicemail.

13. People v. Mitok

Defendant was double enhanced when they used the same DUI to elevate it to an aggravated DUI then on top of that hit him with mandatory X sentencing.

14. People v. Lundy

10 years for armed robbery is not an abuse of discretion.

15. People v. Kelly 

Defendant challenged the constitutionality of banning guns when you got weed on you.

16. People v. Woods

Defendant was ordered to cooperate with the PSI and the judge turned around and used what he said against him.

17. People v. Price

Kid gets a chance to argue that his murder sentence should be in juvenile court.

18. People v. Mitchell

Felony murder conviction upheld even though the victim was shot and killed in Indiana.

When Prior Testimony Of An Unavailable Witness Is Admitted The Testimony May Be Impeached

Jan 2, 2019 05:53

Description:

People v. Fillyaw, 2018 IL App (2d) 150709 (December). Episode 575 (Duration 5:52)

Improper to not allow the defense to impeach an unavailable witness with an affidavit obtained by the defense.

Gist

This was a home invasion committed by 2 gunman. One victim was shot and killed while 2 others were shot but survived. Two witnesses were found unavailable by the time the second trial came around. The court allowed the State to read to the juries testimony from the first trial. One witness could not be found and the other one said she had no memory of the events.

The Affidavit

Also prior to the second trial, defendants filed a motion in limine to admit a notarized affidavit. They asserted that they could use the affidavit to impeach an unavailable witness if he were present to testify.

They also stated that the notary would be available to testify to the affidavit’s authenticity.

The affidavit states:

“1-23-14 I Lebraun Graham write this affidavit to say that I never saw who shot me On 7­ 17-07 truth be told the North Chicago police lead me to believe that William Fillyaw was the one who shot me[.] I don’t want a innocent man in jail for this incident when he’s not the person who shot me.”

The word “Sincerely” and Graham’s signature appear below the statement. The document has the notary seal of the notary and her signature on the notary line.

The court denied the request to admit the affidavit, because the affidavit mistakenly stated that the shooting took place on July 17, 2007, when the shooting in fact took place on June 29, 2007.

The Witness Trial Testimony

This witness testified in the first trial that he had seen the two shooters’ faces because they were not wearing masks. He identified defendant as the man who kicked in the door and another man as the person who entered the apartment.

Defendant carried a shotgun, while the other man had a handgun. The witness said the lighting was “okay” and that he did not have difficulty seeing the men. Fillyaw shot him in the left shoulder and the other man shot another victim.

This witness did not immediately identify defendants as the shooters. He was taken to the hospital, where he spent 3½ weeks and had four or five surgeries on his left shoulder. He had just come out of the first surgery and his family was in the hospital room when he spoke to detectives. 

He did not identify defendants as the shooters until almost 16 hours after the shooting, when he picked their photographs from separate arrays from his hospital bed while on morphine and in a great deal of pain, having recently had shoulder surgery. Both of the men he identified he knew.

The witness mistakenly identified a different man from a photo array as a third offender, who he later acknowledged was not involved in the shooting.

The Second Witness

The testimony from the first trial showed that she did not get a good look at the two shooters’ faces, because they wore masks that revealed only their eyes. She testified that one shooter wore a tannish jacket and fired at someone on the floor with a big black gun. She later identified the jacket that one of the men was wearing at the time of his arrest as the jacket worn by one of the shooters.

The juries found defendants guilty of first-degree murder and guilty of 2 counts of attempt murder. The trial court sentenced Fillyaw to 60 years’ imprisonment for the murder and sentenced the codefendant to 55 years’ imprisonment for the murder.

Both defendants were sentenced to 10 years for each of the two attempt first-degree murder convictions both to be served concurrently with their sentences for first-degree murder.

Illinois Rule of Evidence 806

Both defendants contend that the trial court erred in refusing their request, pursuant to Illinois Rule of Evidence 806 (eff. Jan. 1, 2011) (Rule 806), to impeach the witness's prior testimony with an affidavit which recants his identification of defendants as the shooters.

Defendants also argue that the trial court’s refusal to admit the affidavit violated their constitutional rights to present a defense and to confront the witnesses against them.

Evidence Rule 806 provides:

“When a hearsay statement *** has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant’s hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.”

Ill. R. Evid. 806 (eff. Jan. 1, 2011).

Prior to the adoption of the Illinois Rules of Evidence, it was recognized that, where a statement of an absent declarant is properly admitted into evidence under a hearsay exception, “the opposing party may impeach such statement with a prior inconsistent statement by the declarant.” People v. Smith, 127 Ill. App. 3d 622, 630 (1984) (citing Federal Rule of Evidence 806 (28 U.S.C.A.), which closely tracks the language of Rule 806).

State Admitted The Prior Testimony

The trial court found the witnesses to be unavailable and the court allowed the State to present his testimony from the first trial. See Ill. R. Evid. 804(a)(5) and (b)(1) (eff. Jan. 1, 2011).

Illinois Rule of Evidence 804(a)(5)

A witness is unavailable if the witness - 

"...is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant’s attendance or testimony) by process or other reasonable means."

Ill. R. Evid. 804(a)(5) (eff. Jan. 1, 2011).

Illinois Rule of Evidence 804(b)(1)

The following is not excluded by the hearsay rule if the declarant is unavailable as a witness:

"Former Testimony. 

Testimony given as a witness (A) at another hearing of the same or a different proceeding, or in an evidence deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination, or (B) in a discovery deposition as provided for in Supreme Court Rule 212(a)(5)."

Ill. R. Evid. 804(b)(1) (eff. Jan. 1, 2011).

Analysis

The State had the right to introduce the witness's testimony from defendants’ first trial due to his unavailability at the second trial, but defendants had the corresponding right, under Rule 806, to attack his credibility by any evidence which would be admissible if he had testified as a witness.

Had the witness testified at the second trial, he certainly could have been impeached with a written statement recanting his earlier identification of defendants by stating that he did not see who shot him. Before the affidavit would be admitted into evidence, it would be defendants’ burden to authenticate it as having been signed by the witness. 

Here, defendant supplied a rational basis upon which the jury could conclude that the affidavit was authored by the witness. The notary testified that she was a notary public and that, while she did not recognize the affidavit or have memory of this particular transaction because she had witnessed “so many papers,” she did, in fact, state that she notarized the affidavit. She stated that it was her practice for the affiant to show her a State photo identification card or driver’s license and to watch the affiant as he or she signed the document; otherwise, she would not have notarized it.

We find it incomprehensible that the affidavit discusses an incident other than that in question in this case.

It seems obvious the date in the affidavit is not a reference to the date of the shooting but the day of the earlier identification. Regardless, the incorrect date would only concern the weight to be afforded the exhibit, not its admissibility. 

Defendants correctly note that they never sought admission of the affidavit as substantive evidence under the statutory provisions. Rather, defendants sought admission only to impeach the witness identification testimony under Rule 806.

The trial court’s skepticism of the witness's recantation was not a proper basis to exclude the affidavit.

This Was Not A Close Case

The State present any physical evidence tying defendants to the offenses; no latent fingerprints or guns were recovered.

Parker’s cell phone was found in the alley by the victim’s apartment, but Parker lived about two blocks away. A tan jacket was taken from Parker, but no gunshot residue was detected on either cuff of the jacket.

In Fillyaw I, we also called into question Rodger’s credibility. Clearly, Rodgers’ testimony was problematic at best. At times, she stated she could see defendants’ faces and at other times she could “not really” identify them. Rodgers also intimated that she was persuaded to circle defendants’ photographs because of police pressure. In short, Rodgers, as the trial court noted, had a “proclivity to change her mind and let’s just say testify whimsically.”

Graham’s identification testimony was of great importance during the trials. In order to accurately assess the credibility of Graham’s prior testimony, the jury was entitled to know that subsequent to that testimony, Graham allegedly had signed an affidavit disavowing his identification and attributing the misidentification to improper inducement by the police. The jury had a right to consider the affidavit in judging the value and believability of Graham’s testimony.

Holding

We agree that given the weak circumstantial evidence and the problematic eyewitness accounts, the affidavit’s exclusion was “anything but harmless.” If the witness testimony is used in either case on remand, the affidavit may be admitted as a prior inconsistent statement.

Reversed and remanded.

Criminal Causation Is Defined In Terms Of A Contributing Cause Standard

Jan 1, 2019 06:42

Description:

People v. Nere, 2018 IL 122566 (September). Episode 541 (Duration 26:58)

Prepare for a PhD on criminal causation in this drug overdose case.

Gist

Defendant was charged with drug-induced homicide after her friend overdosed.

Facts

The victim died in the bathroom of her mother’s apartment in Wheaton.

Friends and family had gathered to celebrate her release from prison. Taylor and other family members had gathered there to celebrate Taylor’s release from prison the previous day. The victim called defendant to arrange a ride home for the victim's girlfriend.

Defendant gave heroin, crack cocaine, a syringe, and a crack pipe to the victim when she arrived at the residence. The pipe and syringe were wrapped in a dirty sock that had blood on it. Taylor then went back into the apartment, told her children that she was going to take a shower, and told her nephew that he needed to get out of the bathroom. Taylor went into the bathroom and, approximately 15 minutes later, turned on the shower.

The Bathroom

After talking to the victim's girlfriend over the phone the nephew alerted his grandmother and other family members, and several of them began trying to enter the locked bathroom.

They eventually removed the doorknob but still could not open the door. Joshua called 911. Officers arrived and forced the door open. Victim was unresponsive. The officers carried her to the living room and performed CPR. Paramedics arrived a few minutes later and transported her to the hospital, where she was pronounced dead.

Physical Evidence

The officers collected from the bathroom a bloodstained sock, a glass pipe, a small plastic bag, cigarettes, a lighter, a drug-cooking spoon, a syringe, and two foil bindles containing heroin residue. A DNA analysis of the blood on the sock came back as a match for defendant.

The Cause of Death

The forensic pathologist who performed the autopsy testified that the victim died of heroin and cocaine intoxication due to intravenous drug use. The victim had fresh needle puncture wounds on her arm.

The pathologist testified that it was clear that she had recently ingested heroin. When 6-MAM and morphine are found in the blood, the conclusion is usually that they both came from ingesting heroin. If enough time has passed, only morphine will appear in the blood. The significance of 6-MAM is that it shows recent use of heroin.

There is no “safe” amount of heroin to ingest, and a person can die from taking their usual amount. The amount of heroin ingested by the victim could have been fatal by itself. It was also possible that the victim had consumed drugs earlier in the day.

Sentence

A DuPage County jury convicted defendant of drug-induced homicide (720 ILCS 5/9-3.3(a) (West 2012)). She was sentenced to 9 years.

Issue

The main issue in this case revolves around how we define causation in a drug-induced homicide and exactly what the jury instructions should say about this.

Specifically, the reviewing court had to consider whether the trial court erred in using IPI Criminal 4th No. 7.15 (Supp. 2011) to define causation rather than instructing the jury according to the principles set forth by the Supreme Court in Burrage. See Burrage v. United States, 571 U.S. ___, 134 S. Ct. 881 (2014).

The trial court was required to use this instruction rather than defendant’s proposed causation instructions if it contained a correct statement of the law. The principal question we must address, therefore, is whether IPI Criminal 4th No. 7.15 (Supp. 2011) properly sets forth the law of causation applicable to defendant’s case.

"Cause In Fact" v. "Proximate Cause"

Generally, when a crime requires both an act by defendant and a specified result of that act, the defendant’s act must be both the “cause in fact” of the result and the “proximate” or “legal” cause of the result.

The first requirement means that the defendant’s act must be an actual cause of the result.

The second requirement means that the result that actually occurs “must be enough similar to, and occur in a manner enough similar to, the result or manner which the defendant intended (in the case of crimes of intention), or the result or manner which his reckless or negligent conduct created a risk of happening (in the case of crimes of recklessness and negligence) that the defendant may fairly be held responsible for the actual result.” Usually, this is also called a "foreseeability" requirement.

 Barring unusual circumstances, it would seem that only cause-in-fact will be at issue in drug-induced homicide cases.

Illinois Drug-Induced Homicide Statue

The relevant portion of the drug-induced homicide statute provided:

“A person who violates Section 401 of the Illinois Controlled Substances Act or Section 55 of the Methamphetamine Control and Community Protection Act by unlawfully delivering a controlled substance to another, and any person’s death is caused by the injection, inhalation, absorption, or ingestion of any amount of that controlled substance, commits the offense of drug-induced homicide.”

720 ILCS 5/9-3.3(a).

The statute already spells out what act a defendant must commit, what harm must occur, and how the harm must occur, and the only mental state requirement is the defendant’s knowing delivery of a controlled substance. See People v. Faircloth, 234 Ill. App. 3d 386, 391 (1992) (“[t]he defendant just needs to make a knowing delivery of a controlled substance, and if any person then dies as a result of taking that substance, the defendant is responsible for that person’s death”).

Moreover, the federal courts in construing the analogous portion of the federal Controlled Substances Act (21 U.S.C. § 841(a)(1), (b)(1)(A)-(C) (2012)) have concluded both before and after Burrage that there is no foreseeability requirement.

IPI Criminal No. 7.15

The trial court further gave Illinois Pattern Jury Instructions, Criminal, No. 7.15 (4th ed. Supp. 2011) (hereinafter IPI Criminal 4th No. 7.15 (Supp. 2011)), which is titled “Causation in Homicide Cases Excluding Felony Murder.”

Thus, the jury was instructed that:

“In order for you to find that the acts of the defendant caused the death of [the victim] the State must prove beyond a reasonable doubt that defendant’s acts were a contributing cause of the death and that the death did not result from a cause unconnected with the defendant. However, it is not necessary that you find the acts of the defendant were the sole and immediate cause of death.”

Defendant objected to the use of this instruction.

The Contributing Cause Rule in Illinois

IPI Criminal 4th No 7.15 is described as the “Causation in Homicide Cases Excluding Felony Murder” instruction.

There is no question that IPI Criminal 4th No. 7.15 (Supp. 2011) is a correct statement of Illinois causation principles. The question is if Illinois has gotten it right. Each of these propositions is taken directly from this court’s case law.

The "But-For" Test

The easiest way to establish cause-in-fact or “actual” cause is through the “but-for” test.

This is established by showing that “but for the conduct the result would not have occurred.” 

"Contributing Cause" Test

IPI Criminal 4th No. 7.15 (Supp. 2011) spells out causation principles the way they have been consistently defined by the Illinois courts.

As the Supreme Court noted in Burrage, however, some jurisdictions apply either a “substantial factor” or “contributing cause” test to determine cause-in-fact. Illinois has consistently stated causation requirements in terms of contributing causation. See, e.g., People v. Brown, 169 Ill. 2d 132, 152 (1996); People v. Gacho, 122 Ill. 2d 221, 244 (1988); People v.Brackett, 117 Ill. 2d 170, 176 (1987); People v. Love, 71 Ill. 2d 74, 81 (1978); Cunningham v. People, 195 Ill. 550, 572-73 (1902).

In Brown, 169 Ill. 2d at 152, this court stated: “In order to prove a defendant guilty of murder (other than by accountability), the prosecution must prove, inter alia, that an act of the defendant contributed to the victim’s death. (People v. Brackett (1987), 117 Ill. 2d 170, 177.) The defendant’s act, however, need not be the sole or immediate cause of death; rather, it is sufficient if the defendant’s act contributed to cause the death.” In Brackett, 117 Ill. 2d at 176, this court stated: “The courts in Illinois have repeatedly held that an intervening cause completely unrelated to the acts of the defendant does relieve a defendant of criminal liability.

The converse of this is also true: when criminal acts of the defendant have contributed to a person’s death, the defendant may be found guilty of murder. It is not the law in this State that the defendant’s acts must be the sole and immediate cause of death.

One is Broader Than The Other

In most cases, even though cause-in-fact requirements are stated in terms of “contributing cause,” the defendant’s act will be a “but-for” cause of the victim’s death. It is clear, nevertheless, that in Illinois the concept of “contributing causation” is broader than “but-for” causation.

3 Bullet Example

In Brown the state only proved defendant fired one of the 3 bullets that lead to his death.

The pathologist could not say which bullet lead to the victim’s death but each bullet contributed to the death. There is no question that, under this court’s long-standing “contributing cause” theory of causation, strict “but-for” causation is not always required.

Clearly, we believe defendant should be criminally culpable.

Accelerated Death Example

The acceleration rule holds that a person is still liable for another’s death even if he merely hastens the death of
somebody who was already dying. 

Say for example, a person shoots a man dying of cancer. Did he not just commit murder?

Should Illinois Follow Burrage?

The question therefore becomes whether there is any reason why the Supreme Court’s decision in Burrage requires this court to abandon its long-standing definition of causation in homicide cases. That case was merely intrpreting a federal statued and was not making any constitutional proclaimations obligating the states.

Strictly speaking Illinois doesn't have to follow the rule laid out in Burrage.

What Happened In Burrage?

In that case, the defendant sold heroin to a longtime drug user who died of an overdose. The victim had injected oxycodone earlier in the day, and was found dead in his bathroom the morning after defendant sold him the heroin.

The medical evidence showed that the victim had in his system heroin metabolites, codeine, alprazolam, clonazepam metabolites, and oxycodone. Morphine, a heroin metabolite, was the only drug present at a level above the therapeutic range.

The victim died of mixed drug intoxication.

The forensic toxicologist testified that the heroin was a contributing factor in the victim's death because it interacted with the other drugs to depress his respiratory and/or central nervous system. The pathologist could not say whether he would have lived had he not taken the heroin.

A jury convicted the defendant of distribution of heroin with death resulting from the use of that substance. The federal Controlled Substances Act imposes a 20-year mandatory minimum sentence when a defendant unlawfully distributes a schedule I or II drug and “death or serious bodily injury results from the use of such substance.” 21 U.S.C. § 841(a)(1), (b)(1)(A)-(C) (2012).

Burrage Ruling

In Burrage, the Supreme Court considered the meaning of the phrase “results from” in section 841(a)(1), (b)(1)(A)-(C) of the federal Controlled Substances Act (21 U.S.C. § 841(a)(1), (b)(1)(A)-(C) (2012)), which imposes a 20-year mandatory minimum sentence on a defendant who unlawfully distributes a Schedule I or II drug, when “death or serious bodily injury results from the use of such substance.” The jury instruction in that case required the government to prove that the defendant’s distribution of the controlled substance was a contributing cause of the victim’s death. Burrage, 571 U.S. at ___, 134 S. Ct. at 886.

The Court held that the common understanding of “results from” is “but-for” causation, i.e., that the harm would not have occurred but for the defendant’s conduct.

 The Supreme Court acknowledged that some jurisdictions consider a cause-in-fact to be something that was a “substantial” or “contributing” factor in producing a given result. Id. at ___, 134 S. Ct. at 890. However, the Court noted that Congress had not written the statute in contributing cause language but had instead used the phrase “results from,” which language is commonly understood to import “but-for” causality.

The Court explained that it was against these traditional background principles that Congress had legislated when it enacted the statute at issue.

 The Court then held that, “at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless such use is a but-for cause of the death or injury.” 

Because the government had conceded that there was no evidence that Banka would have lived but for his use of the heroin he received from the defendant, the Court reversed his conviction.

Finding

Nothing in Burrage requires this court to abandon its long-standing definition of causation in homicide cases. Burrage was decided as a matter of federal statutory interpretation, and it is therefore not binding on state courts. We are free to follow it if we find it persuasive and to ignore it if we do not.

We find that the Burrage analysis counsels against us abandoning the contributing cause standard.

The trial court thus did not err in using IPI Criminal 4th No. 7.15 (Supp. 2011), which correctly sets forth the causation test used in Illinois.

Illinois Goes Another Way

The question facing this court is what the Illinois legislature meant when it used the word “caused” in the phrase “any person’s death is caused by the injection, inhalation, absorption, or ingestion of any amount of that controlled substance.” See 720 ILCS 5/9-3.3(a) (West 2012).

After careful consideration, we have chosen not to abandon our contributing cause standard based on the Burrage dictum.

Just as Congress was legislating against a backdrop of cases defining “results from” as meaning “but-for” causation, the Illinois legislature was legislating against a backdrop of causation in homicide cases meaning the “contributing cause” standard set forth by this court in cases such as Brown and Brackett.

Thus, we presume that when the legislature used the phrase “caused” in section 9-3.3(a) it intended the meaning that Illinois courts have consistently given to this word in homicide cases.

Plus, There Is Clear Legislative Intent

Moreover, as the appellate court noted in Kidd, we have clear evidence that this was the legislature’s intent. The statute previously used the phrase “results from,” but the legislature amended the statute in 2006 to change that phrase to “caused by.”

When the amendment was up for discussion in the House, Representative Pihos explained: “The reason for the change is to provide clarity in the law relating to drug-induced homicide. The causation language is the same as the other homicide language in the law.” 94th Ill. Gen. Assem., House Proceedings, Apr. 5, 2005, at 85 (statements of Representative Pihos).

The Kidd court explained that the legislative history showed that “the legislature intended to change the language so that it mirrored the language of other homicide statutes, which refer to ‘acts which cause the death’ of an individual, whether such act is intentional (720 ILCS 5/9-1 (West 2010) (first degree murder)), negligent (720 ILCS 5/9-2 (West 2010) (second degree murder)), or reckless (720 ILCS 5/9-3 (West 2010) (involuntary manslaughter and reckless homicide)).” Kidd, 2013 IL App (2d) 120088, ¶ 31.

Thus, it is clear that “caused by” in the drug-induced homicide statute was intended to have the same meaning that “cause” has always had in Illinois homicide cases, and the Illinois courts have consistently used a “contributing cause” standard.

And They Just Ain't Worried Like SCOTUS Was

The Supreme Court was also concerned that the contributing cause standard would treat as a cause-in-fact “every act or omission that makes a positive incremental contribution, however small, to a particular result.” Burrage, 571 U.S. at ___, 134 S. Ct. at 891.

But as the Supreme Court itself acknowledged, courts deal with this problem by excluding insubstantial causes. Moreover, the same criticism could be made of the “but-for” test, as the Supreme Court itself acknowledged earlier in the opinion.

The Court explained that, even if other forces are combining to produce a particular result, something that contributes incrementally to the outcome is a cause-in-fact if it was the “straw that broke the camel’s back.” Id. at ___, 134 S. Ct. at 888. Thus, under the “but-for” test, a cause may be minor, but if the outcome would not have happened without it, it qualifies as a cause-in-fact.

Some contributing cause jurisdictions deal with this problem by invoking a “substantial factor” requirement, and the government argued that its proposed test would exclude causes that are “too insubstantial” or “not important enough. ” 

But the Court was concerned with the government’s inability to quantify what is too insubstantial and the fact that “[p]resumably the lower courts would be left to guess.” Id. at ___, 134 S. Ct. at 892. For all of the above reasons, we disagree with the Supreme Court that a contributing cause standard raises due process or other concerns, and we choose not to follow the Burrage dictum.

No Danger Of Innocent Conduct Being Criminalized

It is difficult to see how this instruction creates a danger of a defendant being convicted of an offense that he or she had nothing to do with.

Consider the situations we have discussed earlier in this opinion, i.e., several persons putting poison in a person’s drink, two different people wounding the defendant with gunshots, multiple people beating a person to death, or someone providing a controlled substance that combines with other substances to cause a person’s death. All of these situations, in which “but-for” causation often cannot be established but contributing causation can, are not attempts to connect the defendant with an injury that he or she “had nothing to do with.”

Moreover, these are not, in the words of the appellate court, situations in which the defendant “might have caused the victim’s death.” (Emphasis omitted.) 2017 IL App (2d) 141143, ¶ 78.10 Rather, they are situations in which the defendant’s act contributed to the victim’s death as it actually happened.

Holding

For all of these reasons, we believe that a “contributing cause” standard better captures the ordinary meaning of “cause” than a strict “but-for” standard. Although establishing “but-for” cause is sufficient to establish cause-in-fact and will be established in the majority of cases, we do not believe that “but-for” cause is always necessary to establish cause-in-fact. A contributing cause standard better comports with the ordinary understanding of the word “cause” in cases of multiple causation.

This court has defined criminal causation in terms of a contributing cause standard for over a century. Nothing in Burrage requires us to abandon that standard, and nothing in Burrage convinces us that we should abandon that standard.

We disagree with its conclusion that we should replace the contributing cause standard with a “but-for” requirement. We agree with the appellate court, however, that the trial court did not err in using IPI Criminal 4th No. 7.15 (Supp. 2011). That instruction properly sets forth causation principles as determined by this court, and therefore, Illinois Supreme Court Rule 451(a) (eff. Apr. 8, 2013) required the trial court to use it.

For the above reasons, we affirm the judgment of the appellate court, although we do not agree entirely with the appellate court’s reasoning. We hold that, as a matter of state law, IPI Criminal 4th 7.15 (Supp. 2011) properly sets forth the principles of causation established by this court and therefore the trial court did not err in using it. We reject the appellate court’s conclusion that use of this instruction raises “grave due process concerns,” and we are not convinced by the Supreme Court’s dictum in Burrage that we should abandon the “contributing cause” standard.

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The Top 10 Criminal Law Cases In 2018

Dec 10, 2018 22:58

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Here are the top 10 criminal opinions released in 2018 by the Illinois court system. Episode 567 (Duration 22:57)

Top 10 Illinois Criminal Law Opinions in 2018

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Top 10 Most Important & Significant Criminal Opinions Released In 2018 ➊ The SCOTUS Cases

Carpenter v. United States, 585 U. S. ____ (2018) (June). Episode 508 - The first two opinions here are not even Illinois cases. These are 2 SCOTUS cases that likely will change police procedures all up and down this state. Carpenter made it clear police need a warrant to capture your CSLI (cell site location information).

Collins v. Virginia, 584 U.S. __ (2018) (May). Episode 495 -Another SCOTUS opinion. Again, the high court limited police warrantless searches rather than expand them. Police need a warrant to search a vehicle on private property.

❷ High Court Reverse

In Re N.G., 2018 IL 121939 (August). Episode 524 - This never happens. The Illinois Supreme Court admits they got something wrong and fixed before years of litigation were wasted. The expressly overruled McFadden (see below) invalidated gun convictions are dead in the water and can't be used for anything. 

People v. McFadden, 2016 IL 117424 (June). Episode 187 - Originally, the Illinois Supreme Court said prosecutors could use invalidated gun convictions for charging and enhancement purposes. This is what they said was wrong.

❸ Apartments v. Houses

People v. Bonilla, 2018 IL 122484 (October). Episode 557 - Here the Illinois Supreme Court was pushed into deciding if apartments have less constitutional protection than houses. It said they have the same level of constitutional protection.

❹ Minors In Adult Court

People v. Harris, 2018 IL 121932 (October). Episode 551 - After changing the way minors are sentenced in adult court, the question popped up about what to do with young adults between 18 and 21 years of age. Many of the reasons for treating minors differently could also apply to this group of defendants. The Illinois Supreme Court said maybe, but 17 and under is where the line is drawn, and it's a hard line. Any young adults over the age of 18 looking for a break need to make "as applied" constitutional challenges. Those are not impossible, but difficult to win.

People v. Rodriguez, 2018 IL App (1st) 160030 (September). Episode 457 - This could be interesting. But expect the Illinois high court to slap this down the first chance it gets. This panel of appellate judges was feeling a little adventurous when they expanded protection for youthful offenders into uncharted areas of the law.

❺ SORA Issues

People v. Bingham, 2018 IL 122008 (September). Episode 551 - 2018 was the year to challenge SORA (sex offender registration act). Some defendants were seeing some success challenging the requirement to register as punitive. The Illinois Supreme Court finally said that the Appellate Court had no jurisdiction to waive a sex offender registration requirement.

In re B.C., 2018 IL App (3d) 170025 (February). Episode 465 - It wasn't all bad news. Minors in juvenile court found it difficult to use the section in the code that allowed some of them to get off the registration rolls if they could establish that it is “more probable than not” that he poses no risk to the community. The problem was that no evaluator would ever say that. This case helped fix this.

People v. Kindelspire, 2018 IL App (3d) 150803 (October). Episode 559 - This case was just one example of many overturned "failure to register" convictions. There is talk of revamping the SORA. This was just one example of why that change couldn't come too soon.

❻ Juvenile Interrogations

In re Jose A., 2018 IL App (2d) 180170 (October). Episode 557 - We finally got a good case that lays out and explains how the new juvenile interrogation statute works.

❼ Missing Video

People v. Montgomery, 2018 IL App (2d) 160541 (October). Episode 555 - What to do, what to do about lost, destroyed, or missing video? This question never gets old. There's no clear cut answer either. Things will really get interesting when police start wearing all those body cams.

❽ Higher Scrutiny

People v. Sanchez, 2018 IL App (1st) 143899 (April). Episode  488 - Not long ago an appellate court would have let this kind of conviction slide through. Not anymore. Wave after waver of wrongful convictions will get your attention. This reviewing court saw a case where the facts didn't add up. They flat out reverse a conviction. It's pretty clear they appellate judges thought they had the wrong guy.

People v. King, 2018 IL App (2d) 151112 (August). Episode 530 - These weren't the only 2 cases like this. But they do a good job of illustrating the scrutiny reviewing courts are now beginning to engage in. This time it was the state’s expert witness who was not allowed to get carried away with his opinion. Not that long ago this would not have been a problem.

❾ The Basics: Causation & Impartiality

People v. Nere, 2018 IL 122566 (September). Episode 541 - Every once and a while we'll catch a case that does a good job of bringing us back to the basics. Love those cases. Prepare for a PhD on "criminal causation" in this drug overdose case.

People v. Little, 2018 IL App (1st) 151954 (September). Episode 546 - This case too...This time the court was asking what it means to have an unbiased trier of fact. The case was set off when the judge appeared to have his mind made up before the defense attorney gave his closing argument. Very interesting stuff.

➓ Fines & Costs

People v. Barajas, 2018 IL App (3d) 160433 (November) & People v. Garza, 2018 IL App (3d) 160684 (November). Episode 562 - Not the sexiest issue, but these little cases go a long away reminding us how we can do something for defendants with fines and costs. Fines and costs are a mess.

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What Constitutes Probable Cause For A DUI Arrest In Illinois?

Nov 20, 2018 11:25

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 People v. Williams, 2018 IL App (2d) 160683 (October). Episode 558b (Duration 11:25)

Challenging this DUI traffic stop gave us a reason to review exactly what it takes for police to find probable cause for a DUI arrest in Illinois.

Probable Cause For DUI Arrest in Illinois

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  The Stop

Around 1 in the morning officer sees a car with the left-turn arrow activated. It then proceeded straight through the intersection. The car then lunged into the intersection, paused, and then continued through into the parking lot for the Elgin Mall.

The officer stopped the car.

DUI Indicia

Defendant’s speech was “kind of mumbled, slow and slurred,” and he smelled an alcoholic beverage “coming from [defendant’s] person.” Defendant advised the officer that he had come from a bar—JB’s.

Defendant said he had consumed four beers.

DUI Investigator Arrives

Suspecting that defendant might be impaired, the first officer called a second officer to the scene. The second officer was more experienced in DUI investigations. The second officer arrived a few minutes later.

The DUI investigator testified that he spoke with defendant and asked him to step out of the vehicle. Defendant emerged from the vehicle without stumbling or falling, but he swayed as he stood outside the vehicle.

The second officer also smelled the odor of alcohol on defendant. He also noticed the defendant’s eyes were “red, bloodshot, glassy, watery.”

Defendant refused to perform field sobriety tests. Defendant said a football injury prevented him from performing the tests. He also claimed that he could not walk a straight line sober.

Defendant was then arrested for DUI.

The Car Search

The car was searched and police discovered what appeared to be cannabis pipes. They still had a little cannabis inside them.

No Fields, No Blow But Guilty

At the station defendant refused to take the breath test. 

The jury found defendant guilty of the three charged offenses. Defendant was sentenced defendant to an 18-month term of conditional discharge and 240 hours of community service.

Issue

Defendant contends that there was no probable cause to arrest him for DUI.

DUI Probable Cause

“Probable cause to arrest exists when the totality of the facts known to the officer at the time of the arrest are sufficient to lead a reasonably cautious person to believe that the arrestee has committed a crime.”

A person is under the influence of alcohol when he or she is less able, either mentally or physically, or both, to exercise clear judgment, and with steady hands and nerves operate an automobile with safety to himself and to the public.

In People v. Wingren, 167 Ill. App. 3d 313, 320 (1988), this court observed that “[p]robable cause to arrest a motorist for DUI has been commonly established by the testimony of the arresting officer, in spite of the defendant’s contradictory testimony, that the motorist had about him or her the odor or strong odor of alcohol, had slurred speech or had red and glassy eyes.”

Generally, these observations are supplemented by other observations apparent to the officer or inferred from his observations such as speeding, weaving, erratic driving, driving on the wrong side of the road, being stuck in a ditch or, as in the case at bar, being in a vehicle which is stuck in the mud.

People v. Motzko

Defendant’s reliance on Motzko is misplaced.

See Episode 347 – People v. Motzko, 2017 IL App (3d) 160154 (April). Episode 347 (defendant wins his motioin to supporess no probable casue for DUI). 

Here, the trial court’s determination that there was probable cause to arrest defendant for DUI was not based solely on the odor of alcohol, defendant’s slurred speech, and his bloodshot eyes. In addition, defendant improperly proceeded straight through the intersection when the green left-turn arrow came on.

Not Completely Incapacitated By Alcohol

Defendant notes that he had no apparent difficulty maneuvering his vehicle.

However, even a conviction of DUI does not require proof that the defendant “was completely incapacitated by alcohol.” People v. Tatera, 2018 IL App (2d) 160207, ¶ 29. The prosecution need prove only that the defendant “was impaired by alcohol *** to the extent that it rendered him incapable of driving safely.”

See Episode 498 – People v. Tatera, 2018 IL App (2d) 160207 (May) (bad HGN test inadmissible but jury could still consider defendant’s inability to follow instructions)

See Also

Episode 468 – People v. Meo, 2018 IL App (2d) 170135 (March) (Citizen’s Tip That Driver Almost Hit The Building Justifies Investigatory Stop For DUI & Defendant Couldn’t Follow Directions During The HGN)

He Ran A Red Light

Driving through a red light was evidence that defendant lacked the mental clarity to operate his vehicle safely.

Yet, contends that his “one instance of ‘poor driving’ was fully explained by the condition of his vehicle.” However, other than defendant’s self-serving statements, police had no reason to believe that defendant’s vehicle was not in good working order.

While defendant may offer innocent explanations for his behavior, that does not prevent the police from acting on their well-founded conclusions.

After all, the assessment of probable cause is based on the totality of the facts, and a reasonably prudent person would be aware of a defendant’s incentive to fabricate an innocent explanation in order to avoid arrest and prosecution.

While We Are At It…

Although defendant offered an excuse—a football injury—for his refusal to perform tests, but this excuse did not negate probable cause.

Defendant contends, however, that the evidence of his guilt was insufficient because he was able to drive his car through the intersection without weaving or jerking, he activated his turn signal, he properly pulled into a parking space, he exited his vehicle without hesitation and without stumbling or falling, and he was able to communicate with the officers.

Defendant’s argument is without merit. A motorist’s ability to perform a number of tasks without any indication of impairment does not necessarily create a reasonable doubt in a DUI prosecution. 

Plus He Was Swaying

Michael and Bajak also observed defendant swaying.

That observation is a factor supporting the trial court’s conclusion that there was probable cause to arrest defendant for DUI. See People v. Anderson, 2013 IL App (2d) 121346, ¶ 25.

Refusal Counts For Something

Furthermore, defendant’s refusal to perform field sobriety tests was probative of impairment. See Tatera, 2018 IL App (2d) 160207, ¶ 28 (listing defendant’s refusal to perform any field sobriety tests among factors contributing to conclusion that evidence was sufficient to sustain defendant’s DUI conviction).

Holding

We therefore conclude that there was probable cause to arrest defendant for DUI.

That conclusion disposes of defendant’s argument that the evidence seized during the search of his vehicle should have been suppressed. We note the defendant challenge the search of his vehicle after his arrest. There was no Arizona v. Gant challenge. 

Accordingly, we conclude that the evidence was sufficient to prove beyond a reasonable doubt that defendant was guilty of DUI.

See These Older Cases

In People v. Weathersby, 383 Ill. App. 3d 226 (2008), we affirmed a DUI conviction on the basis of evidence similar to the evidence in this case. In that case, the defendant’s speech was “thick-tongued,” his eyes were glassy, a three-quarters-empty bottle of malt liquor was found in his vehicle, and his breath smelled of alcohol. The defendant also refused to take a breath test.

Here, defendant’s “eyes were glassy and bloodshot” and that his speech was “thick-tongued and slurred.” See Wingren, 167 Ill. App. 3d at 320 where probable cause to arrest a motorist for DUI has been commonly established by the testimony of the arresting officer that the motorist had about him or her the odor or strong odor of alcohol, had slurred speech or had red and glassy eyes. 

The odor of alcohol on a defendant’s breath and his inadequate performance of a field sobriety test do not constitute reasonable grounds to believe that the defendant was driving under the influence. See People v. Boomer, 325 Ill. App. 3d 206, 209 (2001) (officer lacked probable cause to arrest defendant for DUI where defendant was involved in accident, admitted drinking, and had the odor of alcoholic beverage on his breath).

This Is Probably Now The Law

Episode 294 – People v. Day, 2016 IL App (3d) 150852 (January) (no probable cause for this DUI arrest, defendant passed the FST’s and he was driving nearly perfect). Where a defendant admitted to drinking, had the strong odor of alcohol on his breath, had bloodshot eyes, and slurred his speech, the trial court properly ruled that the officer lacked probable cause to arrest the defendant for DUI because any suspicions of impairment were not corroborated by other factors, such as poor driving, stumbling, falling, or an inability to communicate.

Speeding and being involved in an accident are insufficient bases upon which to support a DUI probable cause determination. See People v. O’Brien, 227 Ill. App. 3d 302, 307 (1992) (no probable cause to arrest defendant for DUI where defendant was speeding, admitted to drinking, and unsuccessfully performed sobriety test).

Episode 549 – People v. Lopez, 2018 IL App (1st) 153331 (October) (Anonymous Tip On A DUI Has Got To Be Specific Plus Identity Information Is Suppressible)

Before You Go...

If you are an Illinios attorney and keeping up with the case law is important to you then read below to see how to get a free copy of my book.

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The Best Reason To Change The "Smell Of Cannabis" Rule

Nov 7, 2018 24:34

Description:

Episode 556 (Duration 24:34). Charles Schierer of East Peoria, Illinois, explains why it's a good time to change the "smell of cannabis" rule.

Attorney Charles Schierer East Peoria Illinois
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In This Episode...

"Would it be wrong to say well maybe an officer needs to observe something: ashes, a burning joint, rolling papers, a lighter, something?" -- Charles Schierer

Attorney Charles Schierer

Charles Schierer's first love is practicing criminal law in federal court. He started in the Peoria County Public Defender's Office. It didn't take him long before he was practicing before the United States Central District District Court.

Chuck's firm handles civil personal injury claims, auto accidents, federal criminal defense, state criminal defense and appeals. Chuck is currently the CJA Central District Panel Representative. 

Contact Information

Schierer & Ritchie, LLC
1009 Illini Drive
East Peoria, IL 61611

(309) 839-2024

chuck@srtriallawyers.com

"Can't Miss" Moments:

✓ Why you have to divide the world into how things were before the Cannabis Control Act and how things are after the act. Before the act, the law clearly, unmistakably allowed police certain liberties. Anybody who did criminal defense work came across these cases. How do you defend against this kind of stop? Now the rules are up for grab. (Go to 4:30)

✓ Under 10 grams possession of cannabis is not a crime. Should the liberties we give to the police change accordingly? Jump to this section to listen to Chuck's personal opinion on what the best version of the "smell of cannabis" rule should be. The rippling-domino effect gets ignored at your own peril. (Go to 5:40)

✓ The truth about what decriminalization really means. What does it mean for us? What does it mean for the police? Do we really "get it?" How is this the same as the smell of alcohol? How is this different from the smell of alcohol? (Go to 6:18)

✓ Decriminalization means possessing minor amounts of cannabis is not a crime anymore. It means all our problems are gone and we don't have to worry about the government having their nose in our business anymore...WRONG. Decriminalization is not exactly the same as legalization.  (Go to 8:18)

✓ The burning leaves example...the difference between burning yard leaves and burning cannabis leaves...a real life practical example...The absurdity of police action...What police are really looking for in these cases. Nothing wrong with being a little  intellectually honest and consistent. (Go to 9:12)

✓ "Would it be wrong to say well maybe an officer needs to observe something: ashes, a burning joint, rolling papers, a lighter, something?" (Go to 13:10)

✓ We may have to rethink what we are doing in light of what other states are doing. See Massachusetts for a great example. Believe it or not, New York looks like it got it right. The further west you go, the more people begin to lose their minds. California, Arizona and Colorado got whacky with this, quite the opposite of what you would have expected from those weed loving states.  Here's the best way to interpret what those states have said on this issue. (Go to 14:40)

✓ Does smell equal probable cause? Is it a done deal when the whiff is in or is it just one factor in the probable cause determination? That's what courts have to figure out. What the cases do and don't say matter. For example, there's a difference between raw cannabis and burnt cannabis. (Go to 15:45)

✓ The reason why Chuck says In re O.S. was well reasoned but still wrong...It does a good job of describing a situation that will happen over and over again. The case also did this one other thing very well. (17:50)

✓ This is what will happen if the court tries to distinguish between a strong odor, a moderate odor and a faint odor of cannabis. You'll invite certain conduct by the police. Is that what we want? Lead the police down this path and don't you worry they will go down it. (Go to 19:40)

✓ More absurdity: They arrest you for being addicted to opioids, encourage you to smoke weed via the Alternative To Opioids Act, then at the first scent of cannabis they toss your life and pull you out of your car as they proceed to go through everything in it. (Go to 21:13)

Links & Resources In re O.S., 2018 IL App (1st) 171765 (June) Central District of Illinois | United States District Court CJA Central District Panel Peoria County Public Defender's Office Illinois Cannabis Control Act - Pub. Act 99-697, § 40, (eff. July 29, 2016) (amending section 4 of the Illinois Cannabis Control Act (720 ILCS 550/4) People v. Rice - Third District Appellate Court - Case No. 3-17-0134 Commonwealth v. Cruz, 945 N.E.2d 899, 908-10 (Mass. 2011) (mere odor of marijuana no longer provided reasonable suspicion of criminal activity following decriminalizing of small amounts) People v. Brukner, 25 N.Y.S. 3d 559, 572 (2015) (mere odor of marijuana emanating from a pedestrian, without more, does not create reasonable suspicion that a crime has occurred)  People v. Strasburg, 56 Cal. Rptr. 3d 306, 311 (Ct. App. 2007) (odor of marijuana in a parked car provided police officer with probable cause to search the vehicle and the occupants therein) State v. Sisco, 373 P.3d 549, 553 (Ariz. 2016) (rejecting the argument the odor of marijuana no longer provided law enforcement officers with probable cause to believe that criminal activity) People v. Zuniga, 372 P.3d 1052, 2016 CO 52 (Colo., 2016) (concluding that the odor of marijuana remains relevant to probable cause determinations and can support an inference that a crime is ongoing) Robinson v. State, 152 A.3d 661, 681 (Md. 2017) (amendment to Maryland’s marijuana statute decriminalizing, but not legalizing, the possession of less than 10 grams of marijuana did not “alter existing case law concerning the search, seizure, and forfeiture of marijuana) State v. Senna, 2013 VT 67, 194 Vt. 283, 79 A.3d 45 (concluding that the passage of Vermont’s medical marijuana law does not undermine the significance of the smell of marijuana as an indicator of criminal activity) The Illinois Alternative To Opioids Act Illinois Policy.org on the Alternative To Opioids Act See Also

You may also want to check out...

Episode 509 - Analysis of In re O.S. The Stench Of Weed Still Supports Probable Cause For A Full Vehicle Search Episode 340 - Kim Bilbrey on The Magic Words That Instantly Allow An Officer To Search A Car Without A Warrant Episode 015 - Police Car Search Legal in Illinois if They Smell Marijuana...Police Officer Describes A Faint Odor Of Marijuana Episode 276 - You Just Can't Ignore The Stench Of Weed In An Auto Accident Episode 196 - Dog Sniff Alert To Drugs Will Lead To Car Search Episode 207 – With Ken Wang – Give Us 24 Minutes And You’ll Get a Comprehensive Debriefing on The New Illinois Marijuana Law Episode 251 – With Jeffrey Hall –  On The Latest Developments And Problems With The Illinois Cannabis Decriminalization Law Before You Go...

If you are an Illinios attorney and keeping up with the case law is important to you then read below to see how to get a free copy of my book.

You can't argue with the idea that steady, persistent attention to the cases increases your litigation game. Are you ready to join the other attorneys who have discovered how to make their ears their secret weapon?

While Supplies Last
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Not your typical legal book.
Easily identify winning scenarios. 
Busy lawyer's guide to explosive litigation growth.

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Attorney Anthony Sassan | What You Need To Know About The Practical Differences Between Federal And State Criminal Court

Oct 22, 2018 47:51

Description:

It's more than just the types of crimes that are prosecuted. There are fundamental differences between practicing in federal and state criminal court. Episode 548 (Duration 47:50)

Federal v. State With Anthony Sassan

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In This Episode...

"Federal judges get their authority from the constitution; they're article III judges. And then they have the federal rules of criminal procedure. They stick to those rules." -- Anthony Sassan

Thinking about dipping your toe into federal criminal practice. Here's everything you need to know that's different from state court...

Attorney Anthony Sassan

Attorney Anthony Sassan has an extensive federal and state law practice in Chicago and the surrounding suburban area. 

Anthony and his firm handle the following types of cases:

Estate Planning Probate Litigation Federal Criminal Defense State Criminal Defense Federal Civil Litigation State Civil Litigation  Closely Held Business Representation  Real Estate Closings Family Law Contact Information

Sassan & Sassan
161 North Clark Street Suite 1600
Chicago, IL 60601-3338

(312) 972-9050
info@sassanlaw.com
ajs@sassan.law.com

"Can't Miss" Moments:

✓ How to start a federal criminal law practice even if you have no federal experience what-so-ever. (Go to 2:30)

✓ The Criminal Justice Act (CJA) describes how "panel attorneys" are appointed to represent federal defendant's who can't afford their own attorneys. This is a way to get paid for representing indigent clients in federal court. (Go to 3:42)

✓ One big difference in federal court is that you see big conspiracy cases with multiple defendants...someone has to represent them. (Go to 4:12)

✓ In a nutshell, these two words explain most of the differences between state and federal court. Master this lesson and you'll become a federal court wizard in no time. (Go to 6:23)

✓ Illinois is just coming around to reforming it's bail system. Here's how the feds have handled pretrial detention. (They don't call it bail in federal court. It's never been about the money for them). The words may be different but some things work the same way as in state court. (Go to 7:41)

✓ There's one big thing that is 100 times easier in federal. For the most part, expect everything else to take longer, require more research, more detailed briefs, and to follow strict protocols. (Go to 11:48)

✓ You don't have to worry about a "Santiago" proffer in state court. Expect to deal with them in the federal system as part of your discovery. Plus, jump to minute (18:30) to hear more about federal discovery practice. You got to know about the "2 week" rule.

✓ There's no single bigger contrast than the difference between a trial date in federal court versus a trial date in state court. Why you'll never see more than 3 cases set for trial on the same date in federal court. What you should never do if you think you need a trial continuance. And what happens when you give federal prosecutors the right to a jury trial in criminal cases. (Go to 21:58)

✓ The one question that's the most difficult to answer when you represent individuals in federal criminal court...The 3 basic stages of every federal sentencing hearing...Why it all feels like cold pleas in federal court... (Go to 29:20)

✓ What you can expect when federal law enforcement witnesses take the stand, and the real reason why federal investigators can be perceived as more professional than local law enforcement. (Go to 43:05)

Links & Resources U.S. District Court Northern District of Illinois - Attorney Information  U.S. District Court Northern District of Illinois - Admission to the General Bar Attorney Admission Frequently Asked Questions  Frequently Asked Questions about Trial Bar Membership Instruction For Admission To The General Bar Petition for Admission to the General Bar Criminal Justice Act Information Becoming A CJA Panel Member U.S. District Court of Northern District of Illinois CJA Rules CJA Training Videos Illinois Federal Defender Program Chicago Federal Defenders Training Division Federal Defenders CJA Practitioner Resources See Also

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549.mp3

Oct 19, 2018 12:56

Description:

An Extension Of De Facto Life Sentences But Is It Proper?

Oct 10, 2018 06:25

Description:

People v. Rodriguez, 2018 IL App (1st) 160030 (September). Episode 457 (Duration 6:24)

Can defendant combine a sentence from an earlier crime with the sentence of a new crime to claim a de facto life sentence?

Gist

Defendant, who was 15 years old at the time of the offense, was tried as an adult and convicted by a jury of first degree murder in connection with the drive-by shooting of 18­ year-old victim.

Additionally, the jury found that defendant personally discharged the firearm that proximately caused Vasquez’s death. Defendant was sentenced to 45 years with the Illinois Department of Corrections (IDOC), which was the mandatory minimum sentence he could have received and which included a 25-year enhancement for personally discharging the firearm.

Consecutive Sentences

The trial court observed that defendant’s 45-year sentence in the case at bar was required to run consecutively to a prior sentence. The 45-year sentence was the mandatory minimum sentence he could have received, and it included a 25-year mandatory enhancement for personally discharging a firearm. See 730 ILCS 5/5-8-1(a)(1)(a).

Prior to the disposition of the first degree murder charge Defendant was sentenced in an unrelated case to 20 years for attempted first degree murder. Defendant claims that, as a result, he will not be released until he is 83 years old.

The Time Line

He is 15 when he commits murder. Then he commits attempted murder in an unrelated offense. He is sentenced to 20 years for the attempt first. Then they finally get around to sentencing him to the 45 for the murder he committed as a juvenile. 

Issue

On appeal defendant says his case should be remanded for resentencing because de facto life imprisonment, imposed against a juvenile offender as the result of mandatory sentencing laws, violates the eighth amendment and the proportionate penalties clause.

They Are Looking At His Age When Released

The court was aware of cases saying 45 years is a de facto life sentence.

However, we do not base our holding on these cases. The sentence in this case became a de facto life imprisonment because defendant will be 80 years old when he is released because he must serve 100% of the 45-year sentence (see 730 ILCS 5/3-6-3(a)(2)(i)) and 85% of the 20-year sentence (see 730 ILCS 5/3-6-3(a)(2)(ii)).

The 20-year sentence served at 85% is 17 years.

Seventeen years, plus forty-five years for the murder sentence is sixty-two years. However, at sentencing, defendant received a credit for time served of just over four years. Sixty-two years minus four years meant that he had fifty-eight years more to serve at the time of sentencing. At the time of sentencing, defendant was 22 years old.

Fifty-eight years more to serve for a twenty-two-year old means that he will not be released before age eighty.

Are You Including The 20 Years?

In making this determination, we are including the 20-year sentence in our analysis even though we can find no other case that used two unrelated sentences in computing what the courts consider a de facto life sentence.

We do this to keep with the intentions of the United States and Illinois Supreme Court decisions where the motivation is to somehow save the lives of our youth who commit violent crimes before reaching maturity with the hope that after they reach maturity they will mend the errors in their ways and become useful citizens in the future.

At the 2006 sentencing in this case, the trial court observed that defendant’s 45-year mandatory sentence in the case at bar had to run consecutively to his prior 20-year sentence. 730 ILCS 5/5-8-4(a)(i). The result was de facto life imprisonment, with a release date when defendant will be over 75 years old.  See People v. Coty, 2018 IL App (1st) 162383, ¶ 79 (given that the juvenile defendant will not be released until he is at least 84 years old, “this sentence is equivalent to condemning the defendant to natural life imprisonment”).

Crimes Were Unrelated But The Results The Same

Defendant’s de facto life sentence was the result of mandatory sentencing laws.

At the moment of sentencing in this case, the trial court had no discretion but to enter a sentence that resulted in de facto life imprisonment of defendant. Since defendant was never going to see the light of day, entering a higher sentence would be pointless and does not demonstrate the exercise of any real discretion.

Although defendant’s offenses were not part of a single course of conduct, as they were in Reyes, the effect was still the same in that mandatory laws robbed the sentencing court of any actual discretion. See Reyes, 2016 IL 119271, ¶ 10; see also Nieto, 2016 IL App (1st) 121604, ¶ 42. At the moment of sentencing, the court had no choice but to impose de facto life-without-parole incarceration.

Doesn't Matter One Crime Was Committed When He Was An Adult

A sentencing court must be free to consider the age and maturity of the offender when he committed the crime, the total amount of time he will serve, and his age at release.

Thus, we find unpersuasive the State’s argument that, in order for this court to find that Miller applies, the offenses must have been committed in a single course of conduct. We acknowledge that this is an issue that the United States Supreme Court has yet to resolve.

Calling Out The Court

We wrote in Jackson that if we were “going to hold that” every “de facto life sentence,” whether mandatory or discretionary, “qualifies for consideration under Miller, then we would need a consistent and uniform policy on what constitutes a de facto life sentence.” Jackson, 2016 IL App (1st) 143025, ¶ 57.

We hoped that “a different forum,” i.e., our supreme court, would hopefully provide that guidance shortly.

However, until that happens, the question is properly before us, and our supreme court may be waiting to hear what its appellate courts have to say first, in order to consider our collective wisdom before making its decision. 

Holding

In conclusion, we vacate defendant’s sentence and remand for resentencing under the sentencing scheme found in section 5-4.5-105 of the Unified Code of Corrections (730 ILCS 5/5-4.5-105), as our supreme court did in Reyes. As our supreme court observed, under “this new sentencing scheme, the circuit court will have the discretion not to apply the firearm sentencing enhancements.”

Thus, the trial court will have the discretion to impose, or to not impose, the enhancement.

There Is A Strong Dissent

The majority finds that defendant’s sentence for the murder he committed when he was a juvenile, combined with the sentence he received for a crime committed as an adult triggers the protections of the new juvenile sentencing guidelines prohibiting a de facto sentence of natural life. A consecutive sentence under both the Juvenile Court Act and the adult criminal sentencing statutes, as in this case, does not create a de facto life sentence subject to reversal under the protections given to juveniles pursuant to 735 ILCS 5/5-4.5-105.

There is no case that holds this, and there is no statute that supports the majority’s holding. Therefore, I respectfully dissent.

Plus on top of that there are plenty of cases holding that a 45 year sentence is not a de facto life sentence.

The unique question posed by this appeal is: does this combination of a sentence for an offense committed as a juvenile and a sentence for an offense committed as an adult warrant remand for the trial court to consider all of the mitigation required under the new juvenile sentencing provisions, and to allow the trial court discretion in determining whether to assess to additional firearm enhancement. I maintain that it does not.

If the court had sentenced defendant to a term of imprisonment of 65 years solely for his juvenile offense, I would concur with the majority’s holding. However, that is not what happened in this case, and the majority’s attempt to conflate defendants’ two sentences in order to find them unconstitutional is contrary to our well-established precedent.

The majority’s decision to grant defendant juvenile protections for a crime committed as an adult where he was sentenced as an adult affords defendant protections that are not contemplated by the statute or by Illinois precedent. For the reasons stated, it is my opinion that defendant cannot avail himself of the sentencing protection of the new juvenile sentencing provisions because he was not a juvenile when he committed the attempted murder offense, and I would affirm the trial court’s judgment.

547.mp3

Oct 10, 2018

Description:

What Does It Mean To Have An Unbiased Trier Of Fact?

Oct 9, 2018 10:52

Description:

People v. Little, 2018 IL App (1st) 151954 (September). Episode 546 (Duration 10:51)

Trier of fact bias and what it means for criminal justice, trial judge gives his verdict before defense counsel had a chance to give its closing argument.

Gist

Defendant was convicted after a bench trial of aggravated battery of a peace officer (720 ILCS 5/12-3.05(d)(4)) and criminal damage to government supported property.

But this case has an uncommon (albeit not unique) twist:

The trial court acknowledged its inadvertent error, reopened the case after judgment, and promised to “keep an open mind” while hearing counsel’s (admittedly belated) argument. In the end, the trial court stood by its initial conclusion—that the three police officers who testified for the State were more credible than defendant and two relatives who testified on his behalf—and reaffirmed its findings of guilt.

Issue

The question thus presented is whether—and if so, under what circumstances—reopening a bench trial after a premature judgment preserves a defendant’s constitutional right to make a closing argument. Specifically, did the judge in this case adequately protects a defendant’s sixth amendment right to make a closing argument, and, as a corollary, his due-process right to a fair and open-minded trier of fact.

Facts

The trial court heard testimony from three police officers, who testified that a drunk and unruly defendant resisted their efforts to subdue him, making the prohibited physical contact with two officers in the process.

The trial court also heard “diametrically opposed” testimony from defendant and two of his relatives, who testified that a swarm of police officers descended upon the bar’s parking lot and “just went berserk on people,” including defendant, for no particularly obvious reason.

Police Said

The bench trial consisted of the police trying to talk to defendant about an argument with a women in the parking lot of a bar. They said defendant was belligerent, hostile and aggressive with them. A struggle ensued when they tried to arrest him.

Defendant Said

Defendant and his witnesses testified that the police were harassing people in the parking lot and approached defendant and hit him in the face with a baton for no reason. A struggle then ensued.

Bench Trial

After the defense rested, the trial court continued the case, so the judge could review his notes and the trial transcripts. The court did not hear closing arguments at that time. When the case was eventually recalled nearly three months after the close of evidence, the trial court immediately announced its findings.

The court found that the case boiled down to a credibility contest; that the officers testified credibly; and that defendant’s relatives “had a motive not to be truthful” on the stand.

The trial court found defendant guilty of several counts of aggravated battery of a peace officer. The counts were all based on making physical contact of an insulting or provoking nature. Defendant was acquitted of the counts charging him with causing bodily harm to the officers. The trial court also found defendant guilty of one count of criminal damage to government-supported property.

What About My Closing Argument?

When it became apparent he judge had ruled, defense counsel immediately, if sheepishly, asked, “[d]id we ever argue this case?” The trial court initially said yes, but soon conceded its error.

When counsel then asked, “Do you think argument is gonna change your mind?,” the court answered, “I have no idea,” but assured counsel “that I will keep an open mind.”

Counsel made his closing argument without interruption, focusing on the role of the bar’s security guards and their failure to testify.

When counsel finished summing up, the trial court reiterated its findings of guilt. As the judge explained to counsel, he had spent several hours reviewing his notes and the transcripts, and “my opinion does not change after your closing argument.” The judge apologized for announcing his findings prematurely, but added, again, that “nothing that you said, [counsel], would have changed my mind.”

The State waived both its closing argument and rebuttal.

Still Guilty

The trial court reiterated its findings of guilt after hearing counsel’s belated argument.

As the judge explained, “I spent probably—probably six or seven hours going over this case in my mind, again reviewing everything that I have, and my opinion does not change after your closing argument.” The judge apologized to counsel for not letting him argue the case first, but added, again, that “nothing that you said, [counsel], would have changed my mind.”

Probation

The trial court merged the various counts of aggravated battery to a peace officer into two (one for each victim), and sentenced defendant—who had no prior felony convictions and was gainfully employed—to two years’ probation.

Right To Closing Argument

The sixth amendment guarantees every defendant the right to make a closing argument, whether he elects a jury or a bench trial, and no matter how “simple, clear, unimpeached, and conclusive the evidence may seem.” (Internal quotation marks omitted.) Herring v. New York, 422 U.S. 853, 856-57, 860 (1975). When this right is completely denied, “[t]here is no way to know” what arguments in summation might have affected the outcome of the case. Id. at 864.

Thus, although Herring did not say so explicitly, courts have universally read that decision to require automatic reversal when defense counsel is not permitted to argue the case. See, e.g., People v. Millsap, 189 Ill. 2d 155, 166 (2000); People v. Stevens, 338 Ill. App. 3d 806, 810 (2003).

But that is not—or not exactly—what happened here.

Analysis - Unbiased Trier of Fact

A trier of fact should strive to suspend judgment, as best it can, until the end of the trial.

But that is possible only to a point. Judges and jurors inevitably form beliefs about the evidence presented to them as the case unfolds. For instance, a belief that a witness is telling the truth—or not—will sometimes impress itself upon the trier of fact in real time, as it observes the witness on the stand. 

And when the evidence as a whole strikes the trier of fact as simple and decisive enough—if, for example, the case turns on the testimony of a witness whose credibility seems immediately apparent—the verdict, unavoidably, will also seem clear to the trier of fact long before closing argument. But even in these circumstances closing argument may still change the trier of fact’s mind. See Herring v. New York, 422 U.S. 853, 856-57, 860 (1975). 

No matter how “simple” or “open and shut” the case may seem, it is always possible that the trier of fact has missed something—a doubt about a witness, a gap in the State’s proof, some connection between various evidentiary facts—and so has misjudged the case prematurely. And it is always possible that counsel, marshalling the evidence “from the point of view most favorable to” the defendant, will bring that error to light, and thus “correct” the trier of fact’s “misjudgment,” in closing argument.

The Court’s faith in the power of an advocate’s argument to sway the verdict even in these seemingly futile circumstances is an essential part of why the right to closing argument fundamental.

Bias Is Always There

This bias is always with us. It influences every trier of fact’s view of the evidence as the trial unfolds. We cannot pretend otherwise without embracing the very fiction that Herring rejected. We hope that every trier of fact will fight against this bias, and strive—against its own human tendencies—to consider new evidence and arguments fairly, no matter how clear the verdict may seem in light of the evidence already presented.

Defense Is Wrong

But we could not make sense of this holding if we accepted a key premise of defendant’s argument—that we cannot reasonably expect closing argument to change the trier of fact’s mind, once it has come to a conclusion about the defendant’s guilt.

Herring tells us that the trier of fact could change its mind.

It is not wrong, but it is overly simplistic, to insist that a fair and open-minded trier of fact is one that “hears before it decides.” Spence, 463 A.2d at 811(quoting People v. Diaz, 1 Ill. App. 3d 988, 992 (1971)). We need not—because Herring does not—indulge the fantasy that a trier of fact will suspend all judgment until the last word is uttered in rebuttal argument.

The Kind Of Jury We Want

Instead, the fair and open-minded trier of fact to which every defendant is entitled is one that—while striving to suspend judgment, as best it can—is open to revising the views it does reach along the way. It is a trier of fact that remains open, at all times, to the possibility that its impressions and beliefs thus far may ultimately be wrong, upon further evidence, argument, or reflection.

It is a trier of fact that listens attentively and patiently, until the very end, for any evidence or argument that might sway its verdict.

Yeah, But When You Announce Your Bias Is It Too Late?

But what about a case like this one—where the trial court took the next step and actually announced its judgment before hearing closing argument? Can a judge, in these circumstances, still hear a belated argument with an open mind? Or is it too late, at that point, for argument to be anything but futile? 

That next step is not a trivial one.

Reversing the order of argument and verdict is not a merely formalistic error. The verdict is obviously meant to have a finality that any previous impressions or beliefs about the evidence lacked. But we think it goes too far to say that a judge who has committed this error at a bench trial is necessarily incapable of giving full and fair consideration to a belated defense argument; or of being persuaded, when the argument is compelling, that his or her view of the evidence was wrong. 

The Rule

We are not convinced that a premature bench-trial verdict is, as it were, a “bell” that can never be “unrung.” We glean the following rule from these cases:

Reopening a case for closing argument is an adequate remedy for a premature judgment when the record shows that the judge was willing to hear the defense’s argument with an open mind—that is, where the judge acknowledges (or at least does not overtly reject) the possibility that counsel’s argument could still change the judge’s mind about the outcome of the case.

But if the record shows that the judge was unwilling to keep an open mind, or expressed the view that he simply could not, then the only remedy that would protect the defendant’s constitutional rights would be a new trial, before a different judge.

We do not deny that human beings may be subject to confirmation bias. And we are mindful that a defendant’s right to an unbiased and open-minded trier of fact is of paramount importance. But we reject the conclusion that once the trier of fact has reached a conclusion about the case, closing argument is necessarily futile, because the trier of fact can no longer hear and consider the argument fairly.

This Isn't Exactly Propensity Evidence

That metaphor may be apt enough when, for example, a trier of fact is asked to disregard prejudicial evidence. Perhaps the clearest case is propensity evidence—evidence that is inadmissible despite being relevant. See, e.g., People v. Donoho, 204 Ill. 2d 159, 170 (2003) (propensity evidence “not considered irrelevant”; rather, it has “too much probative value” (internal quotation marks omitted)).

Because such evidence is relevant, a rational person ordinarily would want to consider it when trying to get at the truth; and for that reason, such evidence, once heard, may simply be too difficult to ignore (even if the law has its reasons for asking the trier of fact to do so). But a judge who is asked to consider a belated argument is not being asked to disregard relevant evidence. The judge is simply being asked to hear an argument with an open mind and give it whatever consideration it deserves.

Defendant’s burden is to explain why a trial judge’s ability to keep an open mind—in the sense we have explained—ends, irrevocably, when a judgment is announced prematurely. The metaphor of “unringing the bell,” in this context, explains nothing.

Analysis

What do we mean by being open-minded, and no doubt some triers of fact will succeed more than others? 

Does a trial court’s confirmation bias strengthen when the court formally announces its verdict? Perhaps. But we cannot honestly claim to know. Neither can defendant. Even less can he claim to know that the bias becomes decisive at that point, leaving the judge unable to consider a belated argument with a fair and open mind.

We have not been given any clear reason to adopt that blanket presumption. And without it, there is no basis for applying a bright-line rule of reversal when a trial court reopens a bench trial, after a premature judgment, to hear closing argument.

We adhere to our holding in Daniels, 51 Ill. App. 3d 545, as we have elaborated it here. See also Herring v. New York, 422 U.S. 853, 856-57, 860 (1975). To recap:

Reopening a case for closing argument is an adequate remedy for a premature judgment at a bench trial when the record shows that the judge was willing to hear the defense’s argument with an open mind. But if the record shows that the judge was not willing to keep an open mind, or expressed the view that he or she could not, then the defendant is entitled to a new trial before a different judge.

All that remains is to apply this rule to the record before us.

The court clearly made an honest mistake in thinking, nearly three months after the close of evidence, that it had previously heard closing arguments. The trial court never intended to deprive defendant of his closing argument, and it never expressed the attitude that closing argument was in any way dispensable. Nor did the trial court’s comments in any way “manifest an unwillingness to hear [the defendant’s] closing argument” fairly.

The trial court here promised to “keep an open mind.”

The court could hardly have been clearer that it was willing to listen to counsel’s argument and give it whatever consideration it deserved on the merits. Nothing in the record suggests that the court’s promise was insincere, or that the trial court failed in its “obligation to be attentive, patient, and impartial” while hearing counsel’s argument.

Holding

In sum, defendant was not denied his sixth-amendment right to make a closing argument. Nor was he denied a fair trial before an open-minded trier of fact. For the foregoing reasons, defendant’s convictions and sentence for aggravated battery of a peace officer and criminal damage to government-supported property are affirmed.

September 2018 Speed Round (The Illinois Criminal Case Law Round Up)

Oct 8, 2018 22:30

Description:

This is the September 2018 Illinois criminal case law audio round-up (the fast case law summary). Episode 545 (Duration 22:29)

The September 2018 Top Illinois Criminal Law Cases (The Monthly Round-Up)

Here's a quick snapshot of the top cases:

1. People v. Walker

Turns out we've been misreading the "proper turn" statute all along.

2. People v. Dailey

One hand to hand creates reasonable suspicion for a traffic stop.

3. People v. Bingham

Appellate court has no jurisdiction to waive a sex offender registration requirement.

4. People v. Nere

Prepare for a PhD on criminal causation in this drug overdose case.

5. People v. Gocmen

In obvious cases an officer need not be a drug detection expert to conclude a driver is under the influence of drugs.

6. People v. Guerrero

Former prosecutor jumps to pd and then represents defendant in a post trial motion.

7. People v. Goodwin

Defendant mouth's off to a prosecutor but this was not threatening a public official.

8. People v. Pearson

55 year sentence is not a de facto life sentence.

9. People v. Rodriguez

Can defendant combine a sentence from an earlier crime with the sentence of a new crime to claim a de facto life sentence?

10. People v. McPherson

Defendant was given 6 consecutive years for refusing to testify against his brother.

11. People v. Brewer

Defendant takes an officer's gun and shoots and kills him as he is ending his shift, was the officer still on duty acting as an officer?

12. People v. Jackson

This was a case where all the witnesses recanted their statements but defendant's postconviction petition is denied.

13. People v. Miramontes

Counsel was ineffective for stipulating to the weight of the drugs; watch out for not sufficiently homogenous amounts.

14. People v. Little

Trier of fact bias and what it means for criminal justice, trial judge gives his verdict before defense counsel had a chance to give its closing argument.

15. People v. Gonzalez

Defendant not allowed to admit his tattoo, in a really close case reversal is required.

ASA Jumps To The PD Conflict Of Interest Problem Ensues

Oct 3, 2018 06:00

Description:

People v. Guerrero, 2018 IL App (3d) 170786 (September). Episode 544 (Duration 6:00)

Former prosecutor jumps to public defender's office and then represents defendant in a post trial motion.

Gist

Defendant cold plead to a cannabis distribution charge. He got probation then was litigating the plea and trying to vacate it based on improper immigration admonishments.

ASA Goes To PD

Then the prosecutor who handled the sentencing hearing jumped to the public defenders office and represented defendant on his post trial motion.

Issue

Defendant first contends that his post plea counsel labored under a per se conflict of interest, as he appeared for the State at defendant’s sentencing hearing.

Per Se Conflict of Interest

When a per se conflict exists, the defendant need not show that the conflict prejudiced him, and the court on appeal must reverse unless the defendant affirmatively waived the conflict. People v. Spreitzer, 123 Ill. 2d 1, 14-17 (1988).

“Unless a defendant waives his right to conflict-free representation, a per se conflict is automatic grounds for reversal. A per se conflict of interest occurs:

(1) where defense counsel has a prior or contemporaneous association with the victim, the prosecution, or an entity assisting the prosecution; 
(2) where defense counsel contemporaneously represents a prosecution witness; and 
(3) where defense counsel was a former prosecutor who had been personally involved with the prosecution of defendant.

Error

The State confesses error.

We accept the State’s confession. 

Where counsel represented the prosecution in the same case, “inquiry into the precise nature and extent of [counsel’s] personal involvement is [n]either necessary [n]or desirable.” People v. Kester, 66 Ill. 2d 162, 168 (1977).

He Did The Sentencing For The State

Here, Hansen appeared on behalf of the State during defendant’s sentencing hearing. He then went to work for the public defender’s office and represented defendant during his motion to withdraw guilty plea. Because Hansen represented the interests of the State during defendant’s case before representing defendant, Hansen labored under a per se conflict of interest.

No Waiver

There is nothing in the record to show that defendant affirmatively waived this conflict.

Holding

Therefore, we vacate the circuit court’s order denying defendant’s motion to withdraw guilty plea and remand for new post plea proceedings, including (1) the appointment of conflict free counsel, (2) the opportunity to file a new motion to withdraw guilty plea, if counsel deems a new motion is necessary, (3) certification under Illinois Supreme Court Rule 604(d), and (4) a new hearing on the motion to withdraw guilty plea.

See Also Episode 516 - People v. Jackson, 2018 IL App (3d) 170125 (May) (former ASA goes to work for defense firm) Episode 375 – Nrupa Patel Helps Dissect Conflict Of Interest Confronting Former Prosecutors People v. Schutz, 2017 IL App (4th) 140956 (June). Episode 379 (Jailhouse Client Turned Informant On Another Client – Ethical Dilemma Ensues) Episode 056 – See People v. Shepherd, 2015 IL App (3d) 140192 (February) (Ethical Violation After a Meeting With Prosecutor) People v. Nelson, 2017 IL 120198 (June). Episode 252 (Did The Defense Team Pick The Wrong Defense Because Of A Conflict Of Interest?)

Threatening A Public Official Requires Intentionality From Defendant

Oct 2, 2018 21:34

Description:

People v. Goodwin, 2018 IL App (1st) 152045 (September). Episode 543 (Duration 21:33)

Defendant mouth's off to a prosecutor but this was not threatening a public official.

Gist

Defendant was charged with threatening a public official, intimidation, and unlawful restraint after he yelled obscenities at an assistant state’s attorney and followed her down the hall of the courthouse to her office.

After a jury trial, defendant was convicted of threatening a public official and unlawful restraint. He was ultimately sentenced to 2 1/2 years imprisonment.

What Happened?

Traffic court at the Daily Center had one ASA and her clerk. She was pregnant. The call was heavy and the judge was late taking the bench. The judge took the bench and called the first case. But the guy's attorney had to be in federal court at 10 a.m., and asked the ASA to put his name in the record and ask for a short date.

In response, the judge “yelled” at the ASA sayin, something like:  “How dare you let attorneys leave, I wanted this case called.”

The ASA stated that the judge gave the case a very short date and “threw some papers and stormed off the bench and yelled at me to get my shit together.” She thought they guy might think the judge was yelling at him, so she told him to come to her office down the hall to call his attorney and let him know what happened.

The Defendant

The two turned towards the back of the courtroom and walked down the aisle towards the double doors, only one of which opened. A man, whom she identified as defendant, was standing by the door that did not open and “approached me and he was like laughing and kind of pointing his finger, oh, you made the judge mad; ha, ha, you made the judge mad.”

The ASA testified that she responded, “between the two of us you are here on bond, so why don’t you find a seat.”

As a result, defendant “got really loud and really angry, and he started putting his finger in my face and said, come back here and say that to my face, get back here and say that to my face.”

She then went to walk out the door with the other guy without the attorney still to her right. Defendant squeezed through the door with her at the exact same time, so he was right in her face. They walked 40 feet to small satellite office. On the way to the office, defendant followed her. The whole time he was just screaming louder and louder things like; "fuck you bitch, come back here and say that to my face, you can’t talk to me, fuck you bitch." Screaming right in her face.

When she got to the office she reached for the door handle and defendant “turned like right in front of the door, like right in front of me so I [could not] get into the door.” She could not get into her office at this point because defendant’s body was blocking the door.

Other Dude Helps Out

The guy without his attorney was walking down the hallway with the ASA and defendant. He got between them when she was trying to get into the office and helped her out a bit.

Defendant was outside the door in the hallway while defendant was in the office. He was yelling the whole time and she couldn't leave.

Sheriff Shows Up

Eventually, her collegaues so what is going on and they go and fetch the sheriff.

 Shortly thereafter, the sheriff came to the office, and defendant left. Defendant never verbally threatened her with bodily harm. While defendant was standing outside her office, he was on the phone. 

Threatening A Public Official

Section 12-9 of the Criminal Code of 2012 (Code) (720 ILCS 5/12-9 (West 2014)) provides, in relevant part:

“(a) A person commits threatening a public official or human service provider when:

(1) that person knowingly delivers or conveys, directly or indirectly, to a public official or human service provider by any means a communication: (i) containing a threat that would place the public official or human service provider or a member of his or her immediate family in reasonable apprehension of immediate or future bodily harm, sexual assault, confinement, or restraint; or *** and

(2) the threat was conveyed because of the performance or nonperformance of some public duty or duty as a human service provider, because of hostility of the person making the threat toward the status or position of the public official or the human service provider, or because of any other factor related to the official’s public existence.”

What Does "Threat" Mean?

Further, the jury was given an instruction regarding the definition of a threat based on IPI Criminal 4th No. 13.33F (1)-(2), (5). Specifically, the court stated,

“The word threat means a menace, however communicated, to inflict physical harm on the person threatened or any other person or on property or subject any person to physical confinement or restraint or expose any person to hatred, contempt, or ridicule.”

Issue

We first address defendant’s contention that the State failed to prove him guilty beyond a reasonable doubt of the offense of threatening a public official.

 Defendant argues that he did not convey a threat, let alone a “true threat” as was necessary in order to convict. He says his conviction violates the first amendment of the United States Constitution.

The First Amendment

The first amendment, applicable to the states through the fourteenth amendment, prohibits the enactment of laws “abridging the freedom of speech.” U.S. Const., amends. I, XIV.

The first amendment signifies that the government does not have the power to prohibit expression based on its subject matter, message, ideas, or content. However, the Supreme Court has recognized that there are categories of expressions that are not protected by the first amendment, such as “true threats.” United States v. Alvarez, 567 U.S. 709, 717 (2012) (plurality opinion).

What's A "True Threat"?

We have consistently held that if the State charges a defendant with making a threat of violence, the threat must be a “true threat,” or else the prosecution would violate the first amendment. People v. Wood, 2017 IL App (1st) 143135. Further, when interpreting section 12-9 of the Code, “we have held that intentionality on the defendant’s part is required.” Wood, 2017 IL App (1st) 143135, ¶ 13 (citing Dye, 2015 IL App (4th) 130799, ¶ 10). In Dye, this court observed that

“a ‘true threat’ requires intentionality, in contrast to section 12-9(a)(1), which, by its terms, requires merely knowledge (‘knowingly’).”

Dye, 2015 IL App (4th) 130799, ¶ 10. This means that in order for a defendant’s conviction for threatening a public official to stand, the threat must have been a “true threat.”

See id. In Virginia v. Black, the Supreme Court explained a “true threat” as follows:

“‘True threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur.”

538 U.S. 343, 359-60 (2003).

The Dictionary On Threat

Black’s dictionary says that “ ‘[t]rue threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Black, 538 U.S. at 359-60.

The "True" Issue

Pursuant to Black, the question we must address is whether the State proved beyond a reasonable doubt that defendant communicated a serious expression of intent to commit an act of unlawful violence against the ASA that placed her in reasonable apprehension of immediate or future bodily harm, sexual assault, confinement, or restraint.

The Objective Test

It appears that the Seventh Circuit’s approach has been, and remains, an objective one, which allows evaluation of the speaker’s communication under either the reasonable-speaker or the reasonable-recipient test. (As opposed to a test that consider's the speaker's subjective intent.) See People v. Diomedes, 2014 IL App (2d) 121080, ¶ 35 (feds apply a more objective test).

Further, although courts in this state have not explicitly decided the issue, the approach also appears to be objective. In addressing that claim, the court noted that, while there has been a federal split of authority interpreting Black, Illinois courts have found that the term ‘threat’ implies generally that the expression has a ‘reasonable tendency to create apprehension that its originator will act according to its tenor.’

This definition suggests that an objective, not a subjective, approach continues to apply. Therefore, it appears that neither the objective reasonable-speaker nor the objective reasonable-recipient approach is foreclosed from our consideration. Indeed, in our view, the reasonable-speaker test, by requiring consideration of how others might interpret the communication, essentially subsumes or encompasses the reasonable recipient test.

Defendant Might Lose Under A Purely Objective Test

In any event, even applying, per defendant’s request, the reasonable speaker approach, we conclude that the evidence here is such that a speaker would reasonably foresee that a listener would reasonably interpret the communication as a serious expression of intent to harm.” 

People v. Dye

Conversely, defendant relies on Dye and Wood as support for a test with a subjective component.

In Dye, the Fourth District applied a subjective test in reaching its conclusion that the evidence did not prove that when the defendant told an assistant public defender, “I’m gonna get you,” the defendant intended to convey the idea of violent retribution, as opposed to nonviolent retribution.

See Episode 089 - People v. Dye, 2015 IL App (4th) 130799, ¶ 12 (August).

People v. Wood

Similarly, in Wood, this court determined that the Supreme Court’s decision in Elonis v. United States, 575 U.S. ___, ___, 135 S. Ct. 2001, 2011 (2015), required that “statutes criminalizing speech for being threatening require proof that the speaker intends the communication to be a threat and that a reasonable listener would understand the communication to be threatening.”

See Episode 426 - People v. Wood, 2017 IL App (1st) 143135, ¶ 13 (November)

Defendant's Intent Matters

The State has failed to present, and we have not found, a compelling reason why we should depart from the test applied by this court in Wood. We apply the same test as in Wood, and thus decide whether the State proved beyond a reasonable doubt that defendant intended his communication to the ASA to be a threat that a reasonable listener would understand to be threatening.

Had we opted to apply the State’s version of the test, then our question would be whether the State proved beyond a reasonable doubt that a reasonable person in defendant’s position would have foreseen that a listener would reasonably interpret his communication as a serious expression of intent to harm.

There Is Also A Knowledge Requirement

We also fail to see how the State could prove the requisite elements of threatening a public official without a subjective component because section 12-9 of the Code requires that a person “knowingly” convey a communication containing a threat. 720 ILCS 5/12-9.

A person acts knowingly if he is consciously aware that his conduct is practically certain to cause the prohibited result. People v. Lengyel, 2015 IL App (1st) 131022, ¶ 45. Thus, the language of the statute makes clear that defendant’s subjective intent is relevant to determine whether the State satisfied the requisite elements.

Analysis - Wood

We find that, viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found the essential elements of threatening a public official beyond a reasonable doubt where the State presented no evidence that defendant meant to communicate a serious expression of an intent to commit an unlawful act of violence.

In Wood, this court was recently faced with a question similar to the one before us now. There, the defendant was charged with threatening a public official after he left a voicemail for his public defender wherein the defendant stated, inter alia, that he hated the judge who presided over his case and “pray[ed] for the death and destruction upon the judge and upon every single person who sentenced [him].” Wood, 2017 IL App (1st) 143135, ¶ 4.

The court further explained, “Under recent Supreme Court precedent, statutes criminalizing speech for being threatening require proof that the speaker intends the communication to be a threat and that a reasonable listener would understand the communication to be threatening.” The Wood court stated that the defendant’s statements were not “ ‘serious expression[s] of an intent to commit an act of unlawful violence to a particular individual.’ ” Id. ¶ 15 .

In fact, the court opined that the defendant never said he was going to do anything, but instead merely hoped and prayed that bad things would happen to those he felt had wronged him. The court explained that the statements at issue did not warn of any future harm, were vague and ambiguous, and did not indicate any actual intent to carry out a threat or any intent to affirmatively do anything.

Analysis - Dye

We also find Dye applicable to the case at bar.

In Dye, the defendant and his public defender had a meeting where the public defender informed the defendant that she had subpoenaed some documents and inadvertently uncovered evidence that would be harmful to the defendant’s case, and that the State would receive a copy of this harmful evidence. Dye, 2015 IL App (4th) 130799, ¶ 3.

The defendant became irate and pointed at the public defender and told her, “I’m gonna get you,” two or three times. Id. ¶¶ 4-5. The public defender responded, “Are you fucking threatening me?” and the defendant stated, “No, no. I ain’t threatening you” Id. ¶ 5.

On appeal, the court reversed defendant’s conviction for threatening a public official because it found that it would have been impossible for any rational trier of fact to find, beyond a reasonable doubt, that the defendant made a “true threat” within the meaning of Black. Id. ¶ 1. Specifically, the court held that the defendant’s threat was ambiguous as to whether the intended meaning was violent retribution or nonviolent retribution, and the context of the threat could not reasonably resolve the ambiguity.

The Dye court stated, “we interpret section 12-9 as requiring intentionality.” Id. ¶ 10. The court then acknowledged that “no witness had direct sensory access to defendant’s mind and intent,” and thus “the trier of fact could determine what he intended only by drawing inferences from his conduct, including what he said.” Id. ¶ 11. There was no evidence that would justify a reasonable inference that the defendant intended to convey the idea of violence. 

Analysis

In this case, like in Wood and Dye, the evidence presented by the State was not sufficient to prove that defendant meant for his communications and expressions to the ASA to convey a serious intent to carry out an unlawful act of violence.

Simply put, the State did not meet its burden to prove that defendant meant to threaten Gill with unlawful violence. It is undisputed that defendant did not make any verbal threats to her. According to the ASA the worst thing defendant said was,

“Fuck you, bitch, come back here and say that to my face, you can’t talk to me, fuck you bitch.”

But witnesses testified they never heard defendant say “fuck you, bitch” or threaten her with physical harm.

There was no evidence that defendant verbally threatened The ASA. This is significant because, as a result, whether the State met its burden depends on whether any rational trier of fact could reasonably infer from defendant’s expressions and demeanor that he intended to commit an unlawful act of violence against the ASA.

Merely because defendant used offensive language in a loud voice does not create a reasonable inference that he intended to use violence. When people are angry, however, they tend to become loud and tense and to make vigorous gestures—even when threatening to do something nonviolent.

Additionally, the evidence did not show beyond a reasonable doubt that defendant made any overtly threatening gestures. Defendant put his finger in her face. However, this is not an overtly threatening gesture, such as shaking a fist at someone, dragging a finger across one’s throat, or pounding a fist into an open hand. In the context of the factual scenario here, defendant’s pointing at her while yelling his desire to learn her name in an expletive-laden tirade does not rationally indicate his desire to inflict violent harm on the ASA. 

Rather, the evidence creates a reasonable inference that defendant was attempting to obtain Gill’s name so that he could file a complaint against her. This was corrooborated by other witnesses. Further, defendant generally complied with the sheriff when ordered back into the courtroom. This indicates that defendant was not seriously expressing an intent to commit an act of unlawful violence.

Holding

We find that no rational trier of fact could have found that the State proved beyond a reasonable doubt that defendant intended to convey an unlawful threat of violence to the ASA.

We disagree that the totality of defendant’s conduct evidenced his intent, or allowed reasonable inferences to be drawn therefrom that would evidence his intent, to convey a serious threat of unlawful violence against the ASA. The totality of the evidence here did not satisfy the State’s burden. It would be purely speculative to infer that defendant intended to convey a threat of unlawful violence.

Rather, we agree with defendant that a reasonable inference could be drawn from defendant’s statements and conduct that he was angry about what the ASA had said to him in the courtroom, wanted to find out her name so that he could file a complaint, and wanted her to come out of the office to provide him with her information. While we would characterize defendant’s conduct as “distasteful, inept, and crude,” as in Dye, we also view such conduct as “not criminal.” See Wood, 2017 IL App (1st) 143135.

Simply put, the State’s evidence and closing argument improperly focused on defendant’s conduct solely from the perspective of the victim.

Because “we interpret section 12-9 as requiring intentionality” (Dye, 2015 IL App (4th) 130799, ¶ 10), the State was required to prove defendant’s intent to convey a threat of unlawful violence beyond a reasonable doubt, but failed to do so. As such, we reverse defendant’s conviction for threatening a public official.

We also remand this matter to the circuit court to impose a sentence on defendant’s unlawful restraint conviction.

Supreme Court Puts To Bed As Applied Constitutional Challenges To Having To Register Under SORA

Oct 1, 2018 09:18

Description:

People v. Bingham, 2018 IL 122008 (September). Episode 542 (Duration 9:17)

Appellate court has no jurisdiction to waive a sex offender registration requirement.

Gist

Defendant took some pallet from the back of a Kmart and was charged with a class 4 felony theft. He had some nasty criminal history which triggered the collateral consequence of his having to register as a sex offender.

New Registration Requirement

Turns out defendant was convicted of attempted criminal sexual assault in 1983 and sentenced to serve four years in prison.

At the time of his conviction in 1983, he was not required to register as a sex offender because the Act had not yet been enacted. It was enacted in 1986 and then amended in 2011 to provide that

“[a] sex offender or sexual predator, who has never previously been required to register under this Act, has a duty to register if the person has been convicted of any felony offense after July 1, 2011.”

730 ILCS 150/3(c)(2.1) (West 2012). Thus, defendant’s 2014 felony theft conviction now requires him to register as a sex offender under SORA.

Issue

Defendant argues that the registration requirement of the Act is unconstitutional as applied to him on substantive due process grounds and violates ex post facto principles.

Jurisdiction

In criminal cases, “[a] notice of appeal confers jurisdiction on an appellate court to consider only the judgments or parts of judgments specified in the notice.” (Emphasis added.) People v. Lewis, 234 Ill. 2d 32, 37 (2009).

Under Illinois Supreme Court Rule 615(b) (eff. Jan. 1, 1967), the scope of appellate review is defined by the trial court’s judgment and the proceedings and orders related to it:

“On appeal the reviewing court may:

(1) reverse, affirm, or modify the judgment or order from which the appeal is taken;
(2) set aside, affirm, or modify any or all of the proceedings subsequent to or dependent upon the judgment or order from which the appeal is taken;
(3) reduce the degree of offense of which the appellant was convicted;
(4) reduce the punishment imposed by the trial court; or
(5) order a new trial.”

Analysis

In the proceedings before the appellate court in this case, that court was not called upon to exercise any of the above delineated powers with respect to defendant’s argument that sex offender registration is unconstitutional as applied to him.

The requirement that defendant register as a sex offender is not encompassed within the judgment or any order of the trial court. Thus, defendant’s argument did not ask a reviewing court to reverse, affirm, or modify the judgment or order from which the appeal is taken. Nor did it ask to set aside or modify any “proceedings subsequent to or dependent upon the judgment or order from which the appeal is taken.” Ill. S. Ct. R. 615(b)(2) (eff. Jan. 1, 1967).

The requirement that defendant register as a sex offender cannot be fairly characterized as a “proceeding.”

It's Punishment

Defendant argues that the requirement to register is “punishment,” but even if that were true, it would not be “punishment imposed by the trial court.”

Holding

We find that none of the criteria of Rule 615(b) for invoking the powers of a reviewing court have been satisfied in this case. Accordingly, we conclude that a reviewing court has no power on direct appeal of a criminal conviction to order that defendant be relieved of the obligation to register as a sex offender when there is neither an obligation to register imposed by the trial court nor an order or conviction that the defendant is appealing that is directly related to the obligation or the failure to register.

A contrary rule would permit appeal of collateral issues on direct appeal from a criminal conviction not only to sex offender obligations but to a host of other collateral consequences of convictions that are not imposed by trial courts and are not embodied in their judgments.

Because this is not the proper forum for defendant to raise his claims and because an as-applied constitutional challenge may not be raised where it is litigated for the first time on review, we vacate the portion of the appellate court’s judgment that addressed defendant’s constitutional claims on the merits, and we now dismiss defendant’s appeal.

Examples

Such consequences would likely include “the loss of the right to vote, disqualification from public benefits, ineligibility to possess firearms, dishonorable discharge from the Armed Forces, and loss of business or professional licenses.”

Allowing defendants to challenge the collateral consequences of a conviction on direct appeal would place a reviewing court in the position of ruling on the validity (or resolving the details) of regulatory programs administered by state agencies and officials that are not parties to the action.

Another Cause Of Action Is More Appropriate

Defendant has the heavy burden of overcoming the strong judicial presumption in favor of the constitutionality of the statute he seeks to challenge.

Neither the trial nor the sentencing hearings in this case allowed for the development of the record with a view to litigating a challenge to defendant’s sex offender registration obligation. Indeed, that obligation was not even mentioned in the trial court proceedings. 

See Also   Episode 408 – People v. McClenton – Judge Can’t Order State Police To Remove Person From Sex Offender Registry People v. Kochevar, 2018 IL App (3d) 140660 (August). Episode 527 (Duration 8:40) (Another As Applied Challenge Results In An 18-Year Old Who Does Not Have To Register) People v. Tetter, 2018 IL App (3d) 150243 (January). Episode 463 (Duration 8:43) (Successful Constitutional Challenge To SORA And Its Progeny Finds It To Be Punishment) Episode 449 – In re T.J.D. – The “No Risk” v. “Low Risk” Conundrum  Episode 321 – People v. Pearse – SORA is One Big Bloody Mess Says Illinois Supreme Court Episode 322 – People v. Gomez – State Failed To Prove Defendant Was Living In The City – Failure To Register Reversed Episode 386 – Packingham v. North Carolina – North Carolina Law Forbidden Sex Offenders From Going Online Stricken Down Episode 406 – People v. Jones – In A SORA Prosecution The Duty To Register Must Be Proven By The State Episode 407 – In re B.G. – Right To Petition To Terminate Obligation To Register As A Sex Offender Survives After A Subsequent Conviction   Episode 411 – People v. Jackson – SORA SORA No Time Is A Good Time For Goodbyes

541.mp3

Sep 26, 2018 26:58

Description:

One Hand-To-Hand Justifies The Stop But It Was A Close One

Sep 24, 2018 07:15

Description:

People v. Dailey, 2018 IL App (1st) 152882 (September). Episode 539 (Duration 7:14)

One hand to hand creates reasonable suspicion for a traffic stop.

Charges

Defendant was charged by information with the offense of being an armed habitual criminal, possession of a controlled substance with intent to deliver, unlawful use or possession of a weapon by a felon, and possession of a controlled substance.

Issue

Prior to trial, defendant moved to quash his arrest and suppress evidence, alleging, in pertinent part, that police officers lacked probable cause to believe that defendant or anyone else in the vehicle had committed a crime “from within the vehicle.”

Sentence

The trial court denied the motion and sentenced defendant to 30 months in prison.

One Hand-To Hand

A Chicago police officer and two other officers were driving southbound when he saw a van that was stopped in the middle of the street.

The officer watched a “male black citizen” run from the sidewalk to the driver’s side window, hand the van’s driver currency, and receive “small items” in return. The person who received the items looked in the officer's direction and then fled in one direction, while the van went in the other direction “at kind of a high rate of speed.”

The Officer testified that he observed a “very quick exchange” of “small items” and could not determine what the items were or their consistency. Although he saw currency being given to the driver of the van, he could not determine the amount. The officer acknowledged that he did not see any movement inside the van; rather, he observed defendant stick an arm out of the van and hand over small items.

The officer, who had been a police officer for 20 years, believed that he had observed a narcotics transaction.

Stop The Van

The police followed the van and curbed it.

Defendant, then exited the van. He had not been ordered to exit the vehicle. As defendant walked toward the officer, he stated “ ‘I ain’t got shit.’ ” The officers exited their vehicle at the same time. As defendant continued to approach the officers, the officer observed a “marble-size object” drop from defendant’s right hand and fall to the ground. This was 1.3 grams and contained heroin.

The officer walked past defendant and picked up the object while another officer detained defendant. He described the object as a plastic bag that had seven smaller Ziploc Baggies containing suspect heroin. This item was subsequently inventoried.

Defendant's Statement

After defendant was placed in custody, Carey informed him of the Miranda warnings. Defendant indicated that he understood his rights and then made a statement.

Defendant stated that his mother had just passed away and that he was trying to make some money to keep his buildings. Defendant further stated that he had “a drug case in the morning” and that his attorney told him to “do anything he could to stay out of trouble.”

Defendant also stated that he had “a gun by a garage” and asked whether the officers would let him go if he showed them the gun’s location. The police and his partners then followed defendant’s directions to a certain backyard. There, defendant indicated that a gun was inside a grill. The officer exited his vehicle, walked over, reached through the fence, and opened a grill. Inside the grill was a loaded .45-caliber gun.

During a subsequent conversation, defendant was asked why he had the handgun. He indicated that “the Nashes were mad that he was making money and he was afraid they were going to pop him off.”

Terry Stop

We analyze the reasonableness of traffic stops pursuant to the principles set forth in Terry v. Ohio, 392 U.S. 1 (1968). Here, the parties agree that defendant was subjected to a Terry stop. “Pursuant to Terry, a police officer may conduct a brief, investigatory stop of a person where the officer reasonably believes that the person has committed, or is about to commit, a crime.” Timmsen, 2016 IL 118181, ¶ 9.

In order to justify a stop, “the officer must point to specific, articulable facts which, when considered with natural inferences, make the intrusion reasonable.” People v. Simpson, 2015 IL App (1st) 130303, ¶ 23. Under this reasonable suspicion standard, the facts necessary to justify a Terry stop do not need to rise to the level of probable cause and can be satisfied even if no violation of the law is observed, but the facts must go beyond a mere hunch. People v. Maxey, 2011 IL App (1st) 100011, ¶ 46. A police officer’s decision to conduct a Terry stop is a practical one based on the totality of the circumstances. In re Elijah W., 2017 IL App (1st) 162648, ¶ 36.

A reviewing court applies an objective standard when deciding “whether the facts available to the officer at the time of the incident would lead an individual of reasonable caution to believe that the action was appropriate.” People v. Colyar, 2013 IL 111835, ¶ 40.

##People 

Analysis

Here, given the totality of the circumstances, the decision to stop the van that defendant was driving was proper under Terry. We therefore conclude that the trial court properly denied defendant’s motion to quash arrest and suppress statements. 

There is no requirement that the officer know that the items were definitely contraband or that he assign an innocent explanation to the exchange. Rather, the question is whether the facts “available” to the police at the time would “lead an individual of reasonable caution to believe” that the stop was appropriate.

In the case at bar, there were “specific, articulable facts” upon which Carey relied to justify stopping defendant, that is, a van was stopped in the middle of the road, an exchange of money for small items took place, and the parties involved immediately went their separate ways. See Simpson, 2015 IL App (1st) 130303, ¶ 23 (although “the facts forming the basis of reasonable suspicion” do not require an officer to actually observe a crime, the determination of reasonable suspicion must be based on commonsense judgments about human behavior).

People v. Ocampo

In the case at bar, defendant’s van was not parked; rather, it was stopped in the middle of the street.

Moreover, unlike People v. Ocampo, 377 Ill. App. 3d 150 (2007), where the defendant got into a car and then proceeded to have a conversation with another person. The defendant walked up to the car, tapped on the trunk, and got in the front passenger seat. The driver and the passenger exchanged a look and had a short conversation, and the defendant moved as if he were taking something out of his pants pocket. The officer could not hear the conversation and did not see the defendant’s hands.

Here, a man ran up to the van, exchanged money for small objects, and then immediately ran away.

Additionally, unlike Ocampo, the officer actually observed the exchange.

People v. Petty

We are similarly unpersuaded by defendant’s reliance on People v. Petty, 2012 IL App (2d) 110974.

In that case, police officers observed as two cars parked at a gas station, and the drivers of both cars then exited their vehicles, engaged in a hand-to-hand transaction of “some unknown object or objects,” and got back into their vehicles. Officers then stopped the defendant’s vehicle, and cannabis was recovered.

The trial court denied the defendant’s motion to suppress, finding that officers believed that they had witnessed a drug transaction.

On appeal, the court relied on Ocampo to reverse, determining that the defendant’s conduct was consistent with “any number of innocent scenarios,” that the officers happened upon the defendant by coincidence, and that, other than the observed actions, the officers had no reason to suspect that criminal activity had occurred.

Petty is distinguishable on the basis that in the instant case the officer testified that he observed the hand-to-hand transaction and the fact that defendant’s van was parked in the middle of the street rather than in a parking spot. Moreover, after the exchange, both parties rapidly left the area, that is, the man fled on foot, and defendant drove away “at kind of a high rate of speed.”

Holding

Here, given the totality of the circumstances, the police relied upon “specific, articulable facts", as justification for the stop of the van. Considering the facts available at the time, we conclude that “an individual of reasonable caution” would believe that the officer’s action was appropriate and, accordingly, the trial court properly denied defendant’s motion to quash arrest and suppress evidence.

The judgment of the circuit court of Cook County is affirmed.

3 “I Want My Mommy” Confession Cases – A Memory Formula Application

Sep 19, 2018 16:33

Description:

We apply the Case Law Memory Formula to 3 confession cases. Episode 538 (Duration 16:32)

1.  People v. Sanchez, 2018 IL App (1st) 143899 (April). Episode 488 (Duration 18:22). Involuntary confession and improper closing arguments lead to a murder conviction that is now reversed outright. Kid kept asking for his mother. Court clearly thinks he didn’t do it.

Sanchez = Sand-Cheese
April = April Fool (Joker Hat)
2018 = "f" sound = Phone

Picture defendant being interrogated while wearing a court gesture or joker hat. The take sand paper and hold it with a block of cheese. They scrub defendant's face with it. When they are done they let him use the cheese (which is also a phone) to call his mom.

2. People v. Phillips, 2018 IL App (3d) 130270 (February). Episode 479 (Duration 13:35). 18-year-old’s confession ruled involuntary, in part, because defendant is told baby killers get killed in prison.

Phillips = Fill-Up
February = Valentine's Day = Big Hart
2018 = "f sound = fish

Imagine defendant being stripped down to his underwear, but they give a t-shirt to put on. The shirt has a big red hart on it and it says, "I love my mommy." They then put a tube in his mouth and fill him up with sardines. The sardines are basically baby fishes. They are yelling at him and calling him a baby killer. When he's had enough he confesses.

3. People v. Edwards, 2017 IL App (3d) 130190-B (January). Episode 300 (Duration 5:42). This 17 year old’s confession was voluntary even though he had a fifth grade reading level, suffered from various mental disorders, and that the investigating officers did not allow him to speak to his mother. Really bad violent crime. He executed a witness by putting a pillow over his face and shooting. A second victim survived.

Edward = Da-Word
January = New Years Party = Party
2017 = 017 = "s" sound, "t" sound, and "k" sound = steak

Picture Chris Partlow in the interrogation room. He is the stone cold killer from the wire. He speaks in one word intervals. When he says something he's saying Da-Word. When he says "steak" the police instantly run out to get him a rare steak to eat. When he says "party" the police bust out there New Year's celebration material and throw an instant party. When defendant says "mom" the party comes to an abrupt halt and they tell him they can't help him with that. They then get a non coerced confession out of him. 

There’s A Higher Burden On Counsel To Root-Out And Identify Unfit Defendant’s

Sep 18, 2018 08:40

Description:

People v. Hiatt, 2018 IL App (3d) 160751 (August). Episode 537 (Duration 8:40)

Defendant wins his postconviction petition because there were enough signs he was unfit.

Gist

We affirm the trial court’s grant of Defendant's postconviction petition.

Defendant was charged with three counts of unlawful delivery of cannabis. He entered into a plea agreement with the State in which he pled guilty to the charges and was released on his own recognizance to assist the authorities until his sentencing hearing.

A month later, the State requested a revocation of his recognizance bond, which the trial court granted, and a warrant was issued for his arrest. Subsequently, the court sentenced him in absentia to nine years’ imprisonment.

15 Days Later Found In Florida

Fifteen days later, defendant was arrested in Florida and extradited to Illinois, where he was taken into custody.

Defendant appeared in court in July and was shocked to learn that he had been sentenced to nine years’ imprisonment. He stated that he did not agree to nine years.

He believed he would be “employed as a [D]rug Enforcement Agent, assigned to apprehend any Drug Lord or his conspirators/co-conspirators” and would become a police officer like he saw on television if he accepted the plea agreement. Subsequently, defendant went to Florida to “follow[ ] a flow of drugs from Rock Island to Florida” and set up individuals conducting drug activity. He did not know anyone in Florida and continued to “stay[ ] on the streets” until he was arrested.

The plea agreement did not involve defendant going down to Florida and getting “drug lords” but rather involved him working locally with authorities.

Trial Judge Says

The postconviction judge said, “Looking at his testimony in its entirety and these other factors that seem to be right on point and accurate, I don’t have any reason to disbelieve him as he sits here about why he went to Florida, what he was trying to do, and I also believe him when he talks about maybe he’s feeling better now. Based on all that, I do agree with Mr. Nieman with respect to the second prong. I think there is a reasonable probability here that a fitness evaluation would have resulted in the finding of unfitness based upon what was going on in the defendant’s mind at the time.”

Was He Unfit?

Defendant filed a pro se postconviction petition, arguing, inter alia, that his trial counsel rendered ineffective assistance of counsel when he failed to investigate his mental state and that he was prejudiced because he was unfit to plead guilty.

The petition advanced to the third stage of postconviction proceedings, and ultimately, the trial court vacated his guilty plea. The State filed a motion to reconsider, which the trial court denied, and the State appealed.

He Had Issues

He also argues that if his trial attorney had inquired into his mental state, he would have discovered defendant was diagnosed with

depression anxiety disorder psychosis posttraumatic stress disorder (PTSD) obsessive-compulsive disorder (OCD) and attention deficit hyperactivity disorder (ADHD) and was taking medication. The Iowa Case

Moreover, counsel would have discovered defendant's Iowa case, in which he was ordered to complete a fitness evaluation. Ultimately he was found fit to stand trial in the Iowa case. In the trial court’s order of disposition, it stated that Defendant must complete mental health treatment and provide proof to the court.

In 2011, Defendant was charged with second degree robbery in Iowa. During the pendency of the case, the court ordered him to perform a fitness evaluation. Counsel never asked him about the fitness evaluation.

Defendant never talked to his attorney about his mental health problems or his medication.

When asked if counsel knew about defendant's prior fitness evaluation in his Iowa case, counsel responded, “You know, now that you say that it may be that I recall something about that, but nothing—I mean, I would have to looked [sic] at the file and notes and so on to have a particular recollection about that. But I guess you saying that makes me think that perhaps I did know about that.”

Defendant Says

He was initially offered a plea deal of two years but “I thought it would be better if I could get out right away because it’s hard for me to be in prison” so he agreed to be released on his own recognizance.

 When he was initially arrested, he was consistently taking his medication in jail. When asked if his attorney asked him about taking psychotropic medication, he stated, “No, I don’t believe he did. He could have, but I don’t recall. He only came to see me I believe two times for 15 minutes and it wasn’t—I can’t remember exactly if he asked me, but if he would have asked me I would have told him the truth.”

He also stated that he did not recall talking to counsel about his psychiatric treatment history.

During The Plea On His Medication

When Defendant entered into the plea agreement he had mental health problems but was taking medication.

He believed his mental conditions and his medication affected his ability to enter into the agreement, and he would not have entered into the agreement under a different mental state. He stated that, “I feel when I have my relapses with mental illness I just feel like I don’t know what’s going on, I don’t know where I’m at really and stuff like that. But right now I’ve been working on my—myself and trying to get better because I have a lot going on. When I get out I want to be better for my family.”

Defendant remembered pleading guilty to all three counts because “that’s what I had to do to go home so I did it” and “at the time I thought it was a good idea. So I thought it was just the best deal or go to prison.” He realized that he had made a bad decision accepting the plea deal when he learned that he was sentenced to nine years’ imprisonment. He knew he was supposed to return for sentencing on March 31 but did not know he would suffer consequences if he did not appear.

While In IDOC

After he began his nine-year sentence, Hiatt received different mental health treatment in the Illinois Department of Corrections (DOC) than he had in the Rock Island County jail. Defendant averred that if he had received the same treatment in the county jail,

“I feel like my head would be more clear and to think about it than just to—just to answer and just say the wrong thing because when I’m—when I’m mentally going on it’s like I don’t understand what’s going on and I don’t know where I’m at. I’ll live right down the street my whole life and I’ll be standing there, like where am I, I don’t know where I’m at. And then I’ll go in the gas station and I’ll ask the clerk to say, will you call my sister for me? And he’ll be like, who is your sister? And that happens from time to time. And that’s how I felt, and it’s a very scary feeling and that’s how I kind of felt around the time that I was going through.”

Currently, Haitt was not taking the medication directed by the DOC because they made him feel suicidal. He had been dealing with his mental illnesses on his own. He was no longer taking Xanax or Adderall because “they told me that they—that was the medicine that I felt worked pretty good, but when I got to DOC they said we are not having this, you are not taking this. They started to put me on this other stuff, but I’m not taking it.” 

Trial Attorney Says

Counsel testified that he was an assistant public defender for Rock Island County Public Defender’s Office.

They met at least twice in the jail and other times in the courtroom. Initially, the State had offered defendant a four-year prison sentence. Counsel clarified that he would have explained to him that he could receive day-for-day credit and his sentence could be lessened to two years.

The parties came to an alternative agreement in which Defendant would plead guilty and be released on recognizance bond if he did work for the authorities. “The objective was to keep [Defendant] out of DOC. Mr. [Defendant] has expressed to me several times that he was very, very reluctant to return. Apparently on his last trip to DOC he had gotten a pretty severe injury. He had a facial scar that was pretty prominent and he did not want to go back because he feared further injury or harm to his person.”

They never talked about his medication.

Counsel believed that defendant understood what was happening during his plea and that the plea agreement was the closest deal to meeting defendant's objectives of not returning to DOC. He never had trouble understanding him.

Then He Was Gone

Defendant was told that he had to come back to court for sentencing.

After his was released, counsel did not have contact with him. He tried every number in his file but was unable to reach him. He received a call from the state’s attorney’s office expressing concern that defendant had not been in touch with the authorities.

All Normal Behavior 

Defendant never exhibited any behaviors that would make counsel inquire into his mental condition.

He would have inquired about hiss mental condition if he had known that defendant was taking medication.

Defendant never told counsel about his concerns of being unable to help the authorities because no one would associate with him or about his plan to go to Florida. 

Bona Fide Doubt of Fitness

A defendant is entitled to a pretrial fitness hearing only when a bona fide doubt of his fitness to stand trial or be sentenced exists. People v. Johnson, 183 Ill. 2d 176, 193 (1998). “[T]he question of whether a bona fide doubt of fitness exists is a fact-specific inquiry.” People v. Rosado, 2016 IL App (1st) 140826, ¶ 31.

See 725 ILCS 5/104-11(a) Raising Issue; Burden; Fitness Motions:

The issue of the defendant's fitness for trial, to plead, or to be sentenced may be raised by the defense, the State or the Court at any appropriate time before a plea is entered or before, during, or after trial. When a bonafide doubt of the defendant's fitness is raised, the court shall order a determination of the issue before proceeding further.

Analysis

Here, we find that counsel rendered deficient performance.

Counsel failed to inquire about defendant’s prior fitness evaluation in his Iowa case although he acknowledged some awareness about that fitness evaluation. If he had inquired about the Iowa case, he would have learned that, although defendant had been found fit, Defendant's mental illness could affect his ability to plead guilty in a subsequent case because the trial court in the Iowa case ordered defendant to complete mental health treatment in its order of disposition.

Defendant was prejudiced by counsel’s performance because the evidence shows there was a bona fide doubt of his fitness at the time he pled guilty.

When he was initially taken into custody, he consistently took the medications prescribed to him by the county jail. Defendant testified that, during his guilty plea proceedings, his mental conditions and medications affected his ability to enter into the plea agreement because he was experiencing a “relapse with mental illness” and did not understand what was happening.

Holding

This lack of defendant's understanding is evident in his petition in which he stated that the trial court found defendant to be credible. Therefore, we find that trial counsel rendered ineffective assistance of counsel.

Accordingly, we affirm the trial court’s grant of defendant's postconviction petition.

How To Make A Proper Left Hand Turn

Sep 17, 2018 10:59

Description:

People v. Walker, 2018 IL App (4th) 170877 (September). Episode 536 (Duration 10:58)

Turns out we've been misreading the "proper turn" statute all along.

Gist

Defendant was stopped for an improper left turn and received a ticket for driving while his license was revoked (625 ILCS 5/6-303 (West 2016)).

He filed a motion to suppress evidence from the stop, asserting the police officer who stopped him lacked reasonable, articulable suspicion defendant had violated the law.

State Argued

The State argued defendant was required to turn into the nearest westbound lane pursuant to section 11-801 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11­ 801). Because defendant did not do so, the traffic stop was valid.

According to the State, section 11-801(a)(2) unambiguously required defendant to enter the leftmost lane legally available when he executed the left turn in this case. In the alternative, the State argues section 11-801(a)(2) is ambiguous.

The Turn

Around 12:30 a.m. on defendant drove his car out of a gas station by making a right turn onto Hershey Road in Bloomington, Illinois. Defendant then proceeded north on Hershey Road, eventually moving into the left turn lane as he approached the intersection of Hershey Road and Empire Street.

The traffic light was red, and defendant stopped at the intersection.

When the light turned green, defendant made a left turn onto Empire Street, exiting the intersection into the farthest available westbound lane, which was the northernmost lane. After making his left turn, defendant was proceeding in a westerly direction on Empire Street, which had two lanes for westbound traffic.

Immediately after defendant exited the intersection, an officer stopped defendant for making an improper left turn because defendant did not exit the intersection into the nearest westbound lane of traffic on Empire Street.

Required Position And Method Of Turning

Section 11-801(a)(2) provides the following:

"(2) The driver of a vehicle intending to turn left at any intersection shall approach the intersection in the extreme left-hand lane lawfully available to traffic moving in the direction of travel of such vehicle, and after entering the intersection, the left turn shall be made so as to leave the intersection in a lane lawfully available to traffic moving in such direction upon the roadway being entered. Whenever practicable the left turn shall be made in that portion of the intersection to the left of the center of the intersection.”

625 ILCS 5/11-801(a)(2) (West 2016).

The first sentence of section 11-801(a)(2) is a compound sentence and states (1) the law as to what lane—“the extreme left-hand lane”—a driver must be in when approaching an intersection to make a left turn and (2) the law as to what lane—“a lane lawfully available to traffic moving in such direction upon the roadway being entered”—the driver should use when exiting the intersection.

The second sentence of subsection (a)(2), which is the focus of the State’s argument, states the law as to what the driver should do within the intersection: “Whenever practicable the left turn shall be made in that portion of the intersection to the left of the center of the intersection.”

Analysis

Pursuant to a plain reading of section 11-801(a)(2), which we do not find to be ambiguous, defendant did not violate the law by exiting the intersection into the farthest westbound lane of traffic on Empire Street. For this court to agree with the State’s interpretation of this subsection, we would have to depart from the plain language of the statute by reading into the statute exceptions, limitations, or conditions the legislature did not express, and we would have to deem other parts of the statute superfluous.

This court would have to determine the legislature intended (1) for the last sentence of subsection (a)(2) to be read to restrict what lane a driver could exit an intersection—without any language in the sentence to that effect—and (2) for language in the first sentence—“the left turn should be made so as to leave the intersection in a lane lawfully available to traffic moving in such direction” (emphasis added)— to be ignored.

We will not interpret this statute in the manner suggested by the State.

Mistake Of Law

The United States Supreme Court in Heien v. North Carolina, 574 U.S. ___, ___, 135 S. Ct. 530, 536, 539 (2014), did hold reasonable suspicion justifying a traffic stop “can rest on a mistaken understanding of the scope of a legal prohibition” as long as the mistaken understanding of the law was objectively reasonable. With regard to the objective standard, the Court stated, “We do not examine the subjective understanding of the particular officer involved.” Heien, 574 U.S. at ___, 135 S. Ct. at 539.

In addition, the Court declared, “[A]n officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is dutybound to enforce.” Heien, 574 U.S. at ___, 135 S. Ct. at 539. According to Justice Kagan: “A court tasked with deciding whether an officer’s mistake of law can support a seizure thus faces a straightforward question of statutory construction. If the statute is genuinely ambiguous, such that overturning the officer’s judgment requires hard interpretive work, then the officer has made a reasonable mistake. But if not, not. As the Solicitor General made the point at oral argument, the statute must pose a ‘really difficult’ or ‘very hard question of statutory interpretation.’ [Citation.] And indeed, both North Carolina and the Solicitor General agreed that such cases will be ‘exceedingly rare.’ ” Heien, 574 U.S. at ___, 135 S. Ct. at 541. 

Holding

Based on the evidence and a plain reading of the unambiguous language of section 11-801(a)(2), defendant did not violate any statute justifying the traffic stop by exiting the intersection in the farthest westbound lane of Empire Street. As we have concluded section 11-801(a)(2) is not ambiguous, the State’s alternative argument “the traffic stop was still lawful due to the ambiguity of the statutory language” also fails.

In this case, the plain language of section 11-801(a)(2) does not present a difficult or hard question of statutory interpretation. The statute clearly allows a driver making a left turn to exit the intersection into any available lane of traffic moving in the proper direction. The officer’s misunderstanding of section 11-801(a)(2) was not objectively reasonable. As a result, the officer’s stop of defendant’s vehicle was not justified. As we have found the stop of defendant’s vehicle was not constitutionally justified, we next turn to the State’s argument the exclusionary rule should not be applied under the circumstances in this case.

For the reasons stated, we affirm the circuit court’s judgment.

See Also

Episode 506 - In re Maurice J., 2018 IL App (1st) 172123 (June) (driver goes around a speed bump) 

Episode 073 – People v. Gaytan (ball hidge on a license plate blocking the numbers)

Episode 238 – People v. Theus (defendant fails to signal when rodeway jumped from one to two lanes)

Heien v. North Carolina, 135 S. Ct. 530 (2014), (truck stopped because of broken tail light)

In A Drug Conspiracy State Has To Prove The Amount of Drugs Attributable To The Conspiracy

Sep 12, 2018 07:35

Description:

People v. Long, 2012018 IL App (4th) 150919 (August). Episode 535 (Duration 7:35)

Defendant is guilty of a conspiracy but the state had to prove how much they meth they made with his camping fuel.

Gist

The State charged defendant with unlawful methamphetamine conspiracy. Het delivered Coleman fuel, a methamphetamine manufacturing material, for that purpose, resulting in the manufacture of 486 grams of methamphetamine.

The court then sentenced him to 30 years in prison.

Facts

Defendant and an individual named MB agreed to manufacture methamphetamine. It was defendant's bad luck because law enforcement officers executed a search warrant on the trailer where they were cooking.

The trailer was owned by DB.

Inside The Trailer

The officers discovered a “shake-and-bake meth lab” and methamphetamine manufacturing materials, including Coleman fuel.

The State’s evidence showed two containers of Coleman fuel were found in the trailer—one half-empty, one gallon container that was found on the bathroom sink area and one empty, 32 ounce container that was found in a bathroom cabinet.

3 Batches Discovered

Additionally, methamphetamine was discovered in three separate containers.

Specifically, 285.5 grams of methamphetamine were found in a Gatorade bottle in the trailer’s bathroom sink and two bottles containing 133 grams and 268.2 grams of methamphetamine were found in a bedroom.

Both MB and DB were present when the search warrant was executed and were arrested. Defendant was not there.

Actively Cooking When Police Showed Up

On the morning that defendant delivered Coleman fuel to MB, later that day, the police executed a search warrant on DB’s trailer. According to MB, “there was a meth cook going on at that time.”

Evidence further showed that three methamphetamine “cooks” were discovered in DB's trailer. While two of the cooks were located in the trailer’s bedroom, one was located in the bathroom sink and was found to contain 285.5 grams of methamphetamine.

In fact, all three meth­amphetamine “cooks” each contained over 100 grams of methamphetamine.

Defendant Confesses

During an interview, defendant acknowledged providing a can of Coleman fuel to DB on the day that the search warrant was executed. It could be inferred that he knew they were going to use it to cook meth.

The Other Sentences

The actual cook in the case plead to 6 years.

The Sentencing Range

The State alleged he conspired to manufacture 400 to 900 grams of methamphetamine, a Class X felony with an applicable sentencing range of 12 to 50 years in prison. 720 IILCS 646/15(a)(2)(D).

There is also conspiracy to manufacture 100 to 400 grams of methamphetamine, a Class X felony with an applicable sentencing range of 9 to 40 years in prison (id. § 15(a)(2)(C)).

Finally, there is a Class 1 felony based on the manufacture of less than 15 grams of methamphetamine (id. § 15(a)(2)(A))

Issue

Defendant argues, however, that the State’s evidence failed to establish the quantity of methamphetamine that “was actually attributable to [the charged] conspiracy.”

Although he acknowledges that a total amount of over 400 grams of methamphetamine was found in the trailer in three separate containers, he contends the evidence failed to show that all, or any, of that methamphetamine was attributable to the alleged conspiracy and the Coleman fuel he gave to MB.

Defendant is looking for a reduction of his conviction.

Conspiracy

The Act provides that a person who engages in a methamphetamine conspiracy “shall face the penalty for the offense that is the object of the conspiracy” and that the person “may be held accountable for the cumulative weight of any methamphetamine, substance containing methamphetamine, methamphetamine precursor, or substance containing methamphetamine precursor attributable to the conspiracy for the duration of the conspiracy.” 720 ILCS 646/65(b).

Further, the State is required to prove that defendant intended and agreed with MB to participate in methamphetamine manufacturing and that one of the conspirators committed an act in furtherance of the agreement, it also had to prove the amount of methamphetamine attributable to the conspiracy.

As indicated, the object of the conspiracy in this case was a violation of section 15(a)(1) of the Act, i.e., participation in methamphetamine manufacturing.

Element Of The Crime

Any fact that increases the range of penalties for a crime is considered an element of the charged offense and must be submitted to a jury and proven beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

Analysis

Here, we agree with the parties that the evidence failed to establish that all of the methamphetamine discovered in DB's trailer was attributable to the conspiracy involving defendant.

Any methamphetamine already in DB's possession had to have been manufactured prior to defendant’s delivery of the Coleman fuel and could not be attributable to defendant’s agreement with MB.

Nevertheless, we also agree with the State’s position that it presented sufficient evidence to show that at least one of the methamphetamine “cooks” discovered in the trailer was attributable to the conspiracy at issue.

Cook Of The Day

A reasonable inference from the evidence presented is that at least one of the methamphetamine “cooks” found in DB’s trailer occurred on the day the police showed up, after MB received the Coleman fuel from defendant.

Further, because MB and DB had no other Coleman fuel on or immediately prior to the search, the “cook” that occurred that day had to have been accomplished through the use of the Coleman fuel provided by defendant.

A reasonable inference may also be made that the methamphetamine “cook” found in the bathroom sink and in close proximity to the Coleman fuel provided by defendant was the “cook” that occurred on the day of arrest.

Thus, the 285.5 grams of methamphetamine associated with that “cook” were attributable to the conspiracy.

Holding

Here, the evidence sufficiently established that 100 to 400 grams of methamphetamine was attributable to the conspiracy involving defendant rather than the 400 to 900 grams charged by the State.

As a result, we accept the relief suggested by the parties and reduce defendant’s conviction to the offense of methamphetamine conspiracy based on his participation in the manufacture of 100 or more grams but less than 400 grams of a substance containing methamphetamine (720 ILCS 646/15(a)(2)(C) (West 2012)) and remand for resentencing. See Ill. S. Ct. R. 615(b)(3) (eff. Apr. 26, 2012) (providing that a reviewing court may “reduce the degree of the offense of which the appellant was convicted”).

Top 10 Most Recent Illinois Confession Cases (September 2018)

Sep 11, 2018 31:11

Description:

Here are the top 10 most recent Illinois criminal law confession cases in September of 2018. Episode 534 (Duration 31:11).

Illinois top 10 confession cases

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Top 10 Recent Confession Cases From The Illinois Court System (September 2018)

Here's a quick snapshot of the most important cases cases:

A Block - Coerced Confessions With "Normal" Defendants

1.  People v. Sanchez, 2018 IL App (1st) 143899 (April). Episode 488 (Duration 18:22). Involuntary confession and improper closing arguments lead to a murder conviction that is now reversed outright. Kid kept asking for his mother. Court clearly thinks he didn’t do it.

2. People v. Phillips, 2018 IL App (3d) 130270 (February). Episode 479 (Duration 13:35). 18-year-old’s confession ruled involuntary, in part, because defendant is told baby killers get killed in prison.

B Block - Clear Wrongdoing By Police But Confession Saved

3. People v. McArthur, 2018 IL App (1st) 150626 (June). Episode 515 (Duration 8:15). 17 year old held for 73 hours before a probable cause hearing nonetheless gave a voluntary confession. It's a sex case. Time limit thing is not an absolute rule.

4. People v. Soto, 2017 IL App (1st) 140893 (January). Episode 291 (Duration 11:45). Third confession 24 hours after first Mirandaless confession was cured of the taint of the constitutional violation. This was the homeless guy who was “staying” at the station when they finally “realized” he was the main suspect.

5. People v. Mandoline, 2017 IL App (2d) 150511 (February). Episode 316 (Duration 12:31). The police misconduct here did not overbear defendant’s will so as to deprive him of the opportunity to knowingly and intelligently relinquish his rights and give statements to the police. Arson case. Wind blew the smoke into the house killing the victim sleeping inside.

C Block - Police Don't Overreact But Defendant Not "Normal"

6. In re S.W.N., 2016 IL App (3d) 160080 (July). Episode 210 (Duration 11:57). Minor had an IQ of 70, otherwise voluntary confession suppressed because minor likely didn’t understand the Miranda warnings. Forceful sexual assault case.

7. People v. Edwards, 2017 IL App (3d) 130190-B (January). Episode 300 (Duration 5:42). This 17 year old’s confession was voluntary even though he had a fifth grade reading level, suffered from various mental disorders, and that the investigating officers did not allow him to speak to his mother. Really bad violent crime. He executed a witness by putting a pillow over his face and shooting. A second victim survived.

D Block  - Overwhelming Police Presence

8. People v. Hernandez, 2017 IL App (1st) 150575 (March). Episode 332 (Duration 11:51). Confession is out; giving the defendant a fake gun residue test did not sufficiently attenuate the bad arrest. Defendant was arrested by 20 officers immediately after his ex girlfriend was found dead in her car with a shotgun wound to her head.

9. People v. Gutierrez, 2016 IL App (3d) 130619 (December). Episode 273 (Duration 9:35) Appellate court disagrees with trial court; defendant was arrested before he was transported to Kendall County thus the case is remanded for an attenuation hearing to see if the confession is out.

People v. Gutierrez, 2016 IL App (3d) 130619 (December). Episode 274 (Duration 12:33) Part 2. I also break down a bunch of older cases.

E Block - Wild Card 

10. People v. Hardimon, 2017 IL App (3d) 120772 (May). Episode 378 (Duration 9:56). Jury should not have seen that portion of the recorded interrogation where the police go at the defendant more aggressively. He didn’t confess per se but the jury got to see what the police really thought happened.

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Unreasonable Delay For A Drug Dog Sniff – Accumulation of Road Trash Is Not Reasonable Suspicion

Sep 10, 2018 18:58

Description:

People v. Thomas, 2018 IL App (4th) 170440 (August). Episode 533 (Duration 18:57)

The court takes the time to go through the signs of drug trafficking interdiction officers are trained to look for.

Charges

Count I charged defendant with trafficking in cannabis (more than 2500 grams) (720 ILCS 550/5.1(a) (West 2016)), count II charged him with unlawful possession of cannabis with the intent to deliver it (more than 5000 grams) (id. § 5(g)), and count III charged him with unlawful possession of cannabis (more than 5000 grams) (id. § 4(g)).

Issue

Defendant moved to suppress the introduction of the cannabis as evidence against him. His motion argued that the police officer who pulled him over for an obstructed windshield “unreasonably prolonged the duration of the stop,” thereby subjecting him to an “unlawful seizure.”

The Video

The video shows that when the Deputy walks up to the driver’s side of the SUV, he first requests defendant’s driver’s license and proof of insurance.

He asks defendant, “You from Washington?”

Then tells him to take the bandana off the rearview mirror because it obstructs his vision. Defendant removes the bandana. 

The deputy asks defendant, “Where you headin’?” and “Travellin’ straight through?” A semi goes by on the highway, drowning out defendant’s answer. Then he asks defendant, “How long you plan on bein’ there?”

It is still difficult to hear defendant, but he seems to answer either “a few days” or “two days.”

He asks defendant, “[unintelligible] know you’re coming?” and then, “Anybody know you’re comin’?” Defendant answers, “Yeah.” The deputy returns to his squad car.

The dispatcher can be heard stating on the radio: “Kentucky for Joshua Thomas, male white, 6 foot, 225, born in ’79, multiple for traffic, also multiple for drug trafficking and [unintelligible].” 

Still On The Video

Deputy again approaches the SUV.

At his request, defendant pulls forward, past the guardrail and the overpass. The deputy goes to the passenger side of the SUV with what appears to be documents in his hand. He leans into the front passenger window, so that his forearms go into the open window, and tells defendant, “Ah, the traffic stop’s over, ah, you’re free to go, all right.”

Questions Keep Coming

The deputy then withdraws from the window, without the documents, and asks him, “Ahm, you said you’re going to see ***Alabama?” Defendant answers, “Yes, sir.”

The deputy asks him, “How old’s your daughter?” “She 14,” defendant replies. Deputy says, “Fourteen. OK. She does know you’re comin’?” “Yes,” defendant answers. He replies, “OK. All right. Um, did you get arrested in Kentucky a while back?”

Defendant says, “Yeah. It’s been a long time ago.” The deputy asks him, “What was that for?” Defendant explains he used to have a “bad habit” and that he “went down a bad path” but that he had “changed [his] life” and “now [taught] martial arts” to “law enforcement and military.”

Deputy makes appreciative noises.

Here We Go The Big Question

Then deputy tells defendant, “Um, we’re out working a drug interdiction detail today. I’m not accusing you of anything. Do you have any contraband in the car, any large amounts of money, firearms, anything like that?” Defendants denies having any of those things.

Deputy then asks him, “No? Would it be OK if I searched your car?”

Defendant responds, “What’d you pull me over for?”

Deputy answers, “I pulled you over for having an obstructed windshield.” Defendant asks, “You said I’m free to go?” Deputy says, “Yeah.” Defendant says, “All right, well, thank you, sir.”

Deputy says, “All right. Have a safe trip.”

Defendant says, “All right, you have a good one.”

Deputy then tells defendant, “Tell you what, um.” The taillights of the SUV light up, but the SUV does not move. Deputy says, “Um.” The taillights go off. Deputy continues, “You don’t want me, you don’t want me searching your car, right?”

Defendant again asks, “You said I was free to go?” Deputy answers, “Yeah.” Defendant says something unintelligible.

Deputy explains to him that, in Illinois, “if you have any personal use cannabis, or anything like that, or drug paraphernalia, that’s not, it’s not even arrestable anymore, it’s a simple ticket.” Deputy asks him, “Do you have anything like that in your car?” Defendant answers, “No,” and says he does not smoke.

Deputy tells him, “OK. All right. All right. Ahm, I’m gonna have, ah, the state police walk their K-9 around your car, and if it doesn’t alert, obviously then I won’t search your car, all right? All right. Cool.”

Deputy walks back to his squad car.

About two minutes later, he returns to the SUV and tells defendant, “Trooper’s here, just put up your windows, all right?” and then walks back to his squad car.

The DVD shows the dog and its handler, the state trooper, doing the walk-around. The dog alerts on the SUV. Deputy asks defendant to get out. Deputy and the trooper then search the SUV and find the cannabis.

He places defendant under arrest. 

Deputies Testimony

He saw a black GMC Yukon sports utility vehicle (SUV) with Washington state license plates going east at 68 miles per hour. The SUV was within the 70­ mile-per-hour speed limit. Nevertheless, the deputy, noticed that a bandana was hanging from the rearview mirror of the SUV, and the bandana looked wide enough to be a material obstruction of the driver’s view (see 625 ILCS 5/12-503(c) (West 2016)).

The Deputy followed the SUV and pulled up next to it, on the left.

That is what he typically did before pulling someone over: pull up alongside the vehicle to see how many people were in the vehicle and to observe their reaction when they saw his marked squad car. Defendant appeared to be the only person in the SUV, and he would not look over at him as they went side by side down the highway.

Instead, defendant kept his gaze riveted straight ahead as he held onto the steering wheel tightly at 10 o’clock and 2 o’clock. This tunnel vision seemed “very strange and odd behavior”. He then pulls him over. 

Defendant continued to look straight ahead and would not look at the deputy. He appeared to be very nervous, and, in response to his questions, he mumbled instead of speaking clearly.

Deputy Had Problems With His Itinerary

Deputy asked him about his travel plans.

Defendant answered “he was going to Alabama” and that “he was driving straight through.” This answer caught the deputy's attention for two reasons. First, it was about a 35­ hour drive from Washington to Alabama, and although it would have been possible, it would have been very unusual to drive 35 hours “straight through.” Second, it appeared to the deputy from a map of the interstate highway system, which he accessed on his cell phone in his squad car, that “Illinois was way too far north” and there would have been no reason for defendant to drive through Illinois to get from Lakewood, Washington, where, according to his driver’s license, he resided, to even the northernmost city of Alabama.

Additionally, the deputy thought to himself it made little sense to “travel 70 hours in a car to spend two days somewhere,” especially since it would have been cheaper to fly than to drive an SUV such a long way.

This Didn't Happen This Way

The Deputy asked defendant if his daughter knew he was coming.

Initially, defendant “could not answer [him].” Deputy testified: “He mumbled something out that wasn’t even a word, so I had to ask him a second time, and he finally told me that, yes, she did know.” Defendant was, Deputy admitted, soft-spoken.

The difficulty in understanding him lay not so much in the softness of his voice as in his mumbling. Further into the traffic stop, however, his articulation grew clearer.

What Was In The SUV

He testified that inside the SUV he saw a large amount of “road trash”: at least five energy drinks and “lots of empty wrappers of several bags of beef jerky, chips, [and] snacks”—the kind of stuff that “would be used to keep people up to drive long distances.” He also saw “a backpack, no large amounts of luggage, [and] a large speaker box.” From his vantage in the traffic stop, he could not see anything else inside the SUV.

Consensual Encounter? 

The State’s position on appeal is that, after Deputy ended the first detention of defendant by returning his documents to him and telling him he was free to go, he and defendant had a consensual encounter, in which he asked questions of defendant, and that, after this consensual encounter, he then detained defendant a second time by telling him he was going to have a dog smell his vehicle.

In other words, it is the State’s position that there was a consensual encounter sandwiched between two detentions.

Unreasonable Delay

Although a police officer may stop and briefly detain a motorist when the officer has seen the motorist commit a traffic offense, the traffic stop can become an unreasonable seizure “if it is prolonged beyond the time reasonably required to satisfy its initial purpose.” People v. Heritsch, 2017 IL App (2d) 151157, ¶ 9.

“[T]he tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’—to address the traffic violation that warranted the stop.” Rodriguez, 575 U.S. at ___, 135 S. Ct. at 1614. “Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.” Id. at ___, 135 S. Ct. at 1614.

Analysis

In this case, the mission of the traffic stop was done when the deputy gave defendant a verbal warning for an obstructed windshield and told­ him he was free to leave.

When deputy gave defendant a verbal warning, returned his documents to him, and told him he was free to leave, the traffic stop ended. “Generally, a traffic stop ends when the paperwork of the driver *** has been returned *** and the purpose of the stop has been resolved.” People v. Leach, 2011 IL App (4th) 100542, ¶ 12.

After the traffic stop ended, Deputy continued to ask defendant questions, such as how old his daughter was, whether she knew he was coming, whether defendant had any contraband in the vehicle, and whether he would consent to a search of the vehicle.

Holding

In the totality of those circumstances, we conclude that the deputy lacked reasonable suspicion to detain defendant for the dog sniff.

After telling defendant he was free to leave, the depyty did not glean any additional information that would have aroused reasonable suspicion, and yet he told defendant, “I’m gonna have *** the state police walk their K-9 around your car,” thereby signifying to defendant that he was not free to leave.

This was an unreasonable seizure, unsupported by reasonable suspicion of criminal wrongdoing, and, consequently, the fruit of the unreasonable seizure, the cannabis, must be suppressed as evidence.

Yeah But Did The Deputy Have Independent Probable Cause For The Sniff?

The State disputes the court’s finding that the deputy lacked a reasonable, articulable suspicion of drug trafficking.

The State argues that, considered in their totality, the facts known to him at the time and the inferences his law-enforcement training and experience had taught him to draw from such facts made him reasonably suspicious and “justif[ed] the detention of defendant and his vehicle for the canine sniff and all that followed.”

The Reasons He Suspected Drug Trafficking...

He testified he suspected defendant of drug trafficking for the following reasons—

1. Excessive Nervousness. Although nervousness can contribute to reasonable suspicion (People v. Moore, 341 Ill. App. 3d 804, 811 (2003)), nervousness is not enough to arouse reasonable suspicion (see People v. Sinegal, 409 Ill. App. 3d 1130, 1135-36 (2011)).

2. Driving Under the Speed Limit. Because it is illegal to drive faster than the speed limit, driving a mere two miles per hour below the speed limit does not contribute to reasonable suspicion.

3. Out of State Plates and His Purported Destination. Defendant’s presence on Interstate 74, near Carlock, Illinois, contributed little to reasonable suspicion. On Google Maps, one of the suggested routes from Lakewood, Washington, to Alabama is through Idaho, Montana, North Dakota, Minnesota, Wisconsin, Illinois, Kentucky, and Tennessee. In Illinois the suggested route goes through Bloomington, via Interstate 39. Carlock is only 13.4 miles from Bloomington and, therefore, is not far out of the way.

4. Evidence of Hard Travel. This was a 35 hour drive. “Road trash” was evidence of “hard travel.” Couriers of drugs wanted to minimize their risk by getting rid of the drugs as soon as they could. So, instead of stopping at restaurants, they typically drove straight through, keeping themselves awake and boosting their stamina by loading up on energy drinks and junk food from gas stations. Problem is, innocent drivers likewise consume energy drinks and junk food to stay awake on the road, and they drive straight through to avoid spending money on hotels. Because fast-food wrappers and containers litter the floors of many cars traveling long distances on interstate highways, such supposed signs of “hard travel” contribute little to reasonable suspicion. “The facts used to support an investigatory detention are insufficient when they describe a very large category of presumably innocent travelers, who would be subject to virtually random seizures.” People v. Ortiz, 317 Ill. App. 3d 212, 225 (2000).

5. Driving Instead of Flying, Only to Stay a Few Days.  First, we note that, contrary to the deputy's testimony, “a few days” does not necessarily mean only two days. Instead, “few” means “a small number of”—which could be more than two and all the way up to whatever number one regards as the upper limit of “small.” New Oxford American Dictionary 626 (2001). ¶ 90 Second, it is not unusual for people to drive even if flying would be cheaper. They want to see the scenery or stop at places along the way, or they need transportation once they reach their destination. Defendant’s choice to drive rather than to fly contributes little to reasonable suspicion.

6. No Luggage in Sight. Deputy testified he saw no luggage. He saw, however, a backpack. Not everyone owns luggage, and if defendant intended to stay only a few days with his daughter, he could have stuffed his backpack full of clothing. So, the lack of luggage other than a backpack makes no contribution to reasonable suspicion.

7. A Criminal History of Drug Trafficking. The dispatcher told the deputy that defendant had “multiple for drug trafficking” in Kentucky. A criminal history and nervousness, without more, do not arouse reasonable suspicion. People v. Davenport, 392 Ill. App. 3d 19, 28 (2009). 

August 2018 Speed Round (The Illinois Criminal Case Law Round Up)

Sep 4, 2018 14:55

Description:

This is the August 2018 Illinois criminal case law audio round-up (the fast case law summary). Episode 532 (Duration 14:54)

The August 2018 Top Illinois Criminal Law Cases (The Monthly Round-Up)

Here's a quick snapshot of the top cases:

1. In re N.G.

McFadden is overruled.

2. People v. Lee

The officer said the baggie looked like it had oatmeal in it, later testing revealed it to be cocaine.

3. People v. Kochevar 

Another Romeo and Juliet Defender escapes from having to register as a sex offender.

4. People v. Coty

Defendant had an IQ between 55 and 65, his 50 year sentence was a life sentence, and he needs a new sentencing hearing.

5. People v. Peel

Defendant shot his gun off in his yard into the ground in the middle of the night.

6. People v. King

State's expert witness who came in to plug the holes in their case got a little carried away.

7. People v. Johnson

Forgery reversed; state proved he made the funny money but that he he was going to pass it.

8. People v. Hiatt

Defendant wins his postconviction petition because there were enough signs he was unfit.

9. People v. Slabon 

Court did not error in refusing this guy to argue he was too intoxicated to know she was a nurse.

10. People v. Long

Defendant is guilty of a conspiracy but the state had to prove how much they meth they made with his camping fuel.

11. People v. Thomas

The court takes the time to go through the signs of drug trafficking interdiction officers are trained to look for.

Another Idiot With A Gun – Reckless Discharge?

Sep 4, 2018 10:11

Description:

People v. Peel, 2018 IL App (4th) 160100 (August). Episode 531 (Duration 10:11) 

Defendant shot his gun off in his yard into the ground in the middle of the night.

Gist

Defendant fired a handgun from somewhere in the vicinity of the front door of his home located in a residential subdivision of Heyworth, Illinois.

Defendant Said

According to defendant, he decided to test-fire a Smith & Wesson 9-millimeter semiautomatic handgun in his front yard sometime after 8 p.m. because his girlfriend was going to be using it while qualifying for her concealed carry permit.

Defendant said test-firing was necessary because the gun had jammed previously and he was trying new ammunition at the suggestion of his father. Defendant testified he exited his front door after consuming one or two beers, went down the front steps, and fired a number of rounds into the ground in his front yard, in a location he previously cleared of snow for his dogs.

He could not recall the exact number of rounds fired, but he estimated it to be “five to nine.” He saw the holes where the rounds landed and did not see any ricochet. Defendant described his angle of fire as, “I would guess 30 degrees, less than 45 degrees right out in front of me.”

The empty shell casings were ejected back and to the right of defendant as he fired.

He said he fired the rounds as quickly as possible because that was when the gun jammed previously, and he estimated it took no more than three to four seconds. 

Witnesses Said

Neighbors reported hearing different groupings of shots, up to 3.

7 casings were found near or in Defendant’s house.

A witness said he saw a series of four flashes followed by loud booms coming from the front door, straight across from the doorbell at a height just below the deadbolt lock on the front door.

Also, although Defendant said he was test-firing the handgun because it had jammed previously, so he had loaded it with new Federal brand ammunition, yet the police recovered casings of two different types, brass and nickel.

Reckless Discharge of a Firearm

the State charged defendant with reckless discharge of a firearm (720 ILCS 5/24-1.5(a), alleging defendant discharged a firearm in a reckless manner, which endangered the bodily safety of an individual.

After a jury trial he was convicted. The court sentenced defendant to 30 months of probation and 4 days of imprisonment.

“A person commits the offense of reckless discharge of a firearm when he (1) recklessly discharges a firearm, and (2) endangers the bodily safety of an individual.” People v. Collins, 214 Ill. 2d 206, 212, 824 N.E.2d 262, 265 (2005).

Recklessness

“A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” (Internal quotation marks omitted.) People v. Watkins, 361 Ill. App. 3d 498, 500, 837 N.E.2d 943, 945 (2005).

Issue

Defendant argues his conviction should be overturned where the evidence showed he fired a handgun into the ground, there was no evidence of ricochet, and no one was near him when he discharged his weapon.

Endangerment Required

“[I]n order to satisfy the element of ‘endangerment’ contained in the statute, the State must establish that a defendant’s reckless conduct created a dangerous situation—such that an individual was in peril of probable harm or loss.” Collins, 214 Ill. 2d at 215.

Defendant argues he shot into the ground, a practice he believed to be safe because it lessened the possibility of any ricochet. Moreover, he said he saw no evidence of ricochet when he fired.

Why He Lying?

Defendant admitted on cross-examination he initially told police he had not fired a gun that night. 

The Point Of The Law

As our supreme court has stated in Collins, part of the danger inherently caused by a reckless discharge of a firearm is the ricochet effect when bullets hit the ground. Collins, 214 Ill. 2d at 218. Further, the supreme court noted a defendant’s conduct need not actually endanger anyone but instead could be conduct that might result in harm, citing the legislative history for section 24-1.5 of the Criminal Code of 2012 (Criminal Code) (720 ILCS 5/24-1.5 (West 2012)).

They pointed out how prior to enactment of the reckless discharge of a firearm statute, there were only two choices for someone firing a firearm recklessly—a Class A misdemeanor for reckless conduct or a Class 1 felony for aggravated discharge of a firearm.

People v. Moreno

Defendant appears to erroneously argue the State must show there was an identifiable “someone” in his vicinity when he fired his handgun in order to establish reckless endangerment under the statute. This is a misreading of People v. Moreno, 2015 IL App (3d) 130119, 29 N.E.3d 660, and contrary to the supreme court’s express finding in Collins.

In Collins, the court noted how the specific identity of the victim is not an essential element and the danger or peril need only be potential or a possibility. Collins, 214 Ill. 2d at 215-19.

The Moreno court merely noted how, under the facts of the case, the only potential victims were behind the defendant when he fired, and the danger due to a potential ricochet was “virtually zero.” Moreno, 2015 IL App (3d) 130119, ¶ 44.

The court’s reasoning in Moreno cannot be used to say firing into the ground is inherently safe either, as the possibility of a round ricocheting off the ground when fired at an angle is always possible.

In this case, it was midwinter, which, as we can note just as well as the jury, means the ground is possibly frozen or nearly so. The facts before this court do not fall under the narrow exception for which Moreno applies.

 See People v. Moreno, 2015 IL App (3d) 130119 (March). (dude shoots into the ground with people standing right behind him)

Analysis

Defendant faced toward the house of his neighbor by his own description as he fired and would have been standing closer than the 138 feet measured by the deputy. This significantly undermines the supposed safety of defendant’s own version of events.

Here, even if defendant’s version of events was accepted, he fired “five to nine” rounds, not straight or nearly straight down into wintertime, recently snow-covered ground, but at an angle of he “would guess 30 degrees, less than 45 degrees right out in front of” him, in the immediate vicinity of a number of neighbors’ houses.

More importantly, if the jury did not believe defendant’s version, he fired a number of rounds off his front porch, almost straight out from the doorway, and these were not the only rounds fired that night. Witnesses described a series of three shootings. The first two, not as loud as the third, were fired somewhere and consisted of “five or so” each time.

It is reasonable for the jury to conclude defendant was firing from at least two different locations since the first two series of shots were not seen by neighbors and were not as loud as those off the front porch.

Contrary to defendant’s argument, this sounds exactly like the sort of conduct for which this statute was intended: For someone who just recklessly discharges a firearm. Doesn’t necessarily aim it at someone or aim it into a occupied building, but goes around town or out in the country or wherever it is shooting off a gun recklessly, with reckless abandon? See Collins, 214 Ill. 2d at 216 (quoting 88th Ill. Gen. Assem., House Proceedings, April 22, 1993, at 210 (statements of Representative Homer)). 

Holding

Looking at the evidence in the light most favorable to the State, we find there was enough evidence in the record upon which a jury could find defendant guilty of reckless discharge of a firearm.

Seriously, What If Nobody Is Around?

See People v. Grant, 2017 IL App (1st) 142956 (February). (dude shoots his hand in his own apartment)

Note:

Jury asked if the law required risk to others other than defendant. They punted and said they had enough information in the instructions.

Legally, the answer is definitely "yes."

See “[O]ur legislature intended the term ‘an individual’ to mean someone other than the ‘person’ who is charged with the offense of reckless discharge of a firearm.” People v. Grant, 2017 IL App (1st) 142956, ¶ 24, 73 N.E.3d 585.

Prior to the First District’s holding in Grant, 2017 IL App (1st) 142956, no Illinois decision had interpreted the meaning of “an individual” in the reckless discharge statute. The dispute in Grant centered on whether that phrase could be interpreted to include the defendant. Grant, 2017 IL App (1st) 142956, ¶ 8.

See Also

People v. Olivieri, 2016 IL App (1st) 152137 (August). Episode 215 (Duration 8:18) (Sympathetic Nervous System Reaction Wins The Day In This Gun Case)

How To Keep Out Expert Witness Testimony That On Paper Seems Admissible

Sep 2, 2018 16:27

Description:

People v. King, 2018 IL App (2d) 151112 (August). Episode 530 (Duration 16:26)

State's expert witness who came in to plug the holes in their case got a little carried away.

Gist

The jury found defendant guilty of first-degree murder of his wife, and, the court sentenced defendant to 30 years’ incarceration.

Because defendant was prejudiced by the improper introduction of a former FBI profiler’s “crime-scene-analysis” testimony, we reverse and remand for a new trial.

Facts

A body of a women is discovered on the railroad tracks.

The head and neck were positioned over the northern rail.

A pink iPhone was placed against a couple of railroad spikes on the opposite side of the rail from the body. The body was clad in a gray top, black running shorts with no spandex liner, and black and pink running shoes. The shorts were loose, and there were no underpants beneath them.

A dried leaf was on the lower abdomen, just above the pubic area.

Her underwire bra was pulled up, half exposing the breasts. The woman’s running shoes were clean.

She Was Strangled

She died of asphyxiation. 

Kathleen’s blood alcohol concentration was 0.15

She had markings on her neck and chin consistent with being strangled. They found petechial hemorrhages in the eyes and epiglottis mucosa and found focal hemorrhages at the base of the tongue. Those findings, she testified, indicate strangulation.

Who Was She?

The woman was later identified as 32-year-old Army reservist Kathleen King, defendant’s wife.

Their home was located 1200 to 1300 feet from where she was found. People who were in the general area of the railroad tracks between 6 and 6:30 a.m. on July 6 did not see anyone running or see any cars in nearby.

She Was Having An Affair?

Turns out she was having an affair with someone she met in the reserves and defendant knew about it.

The State's Expert Witness

The State filed its motion in limine seeking leave to call Mark Safarik as an expert witness in crime-scene analysis.

The motion stated that Safarik was a “crime scene and behavioral analyst” for a private company known as Forensic Behavioral Services. The motion further stated that Safarik had 23 years’ experience with the FBI, including as a supervisor with the Behavioral Analysis Unit (BAU).

Safarik had been, in the vernacular, an FBI profiler.

The court granted the motion in limine over defendant’s objection.

The State's Expert Witness's Testimony

Safarik, a former police officer and FBI profiler with no medical training, testified, over objection, that the lividity on Kathleen’s body was inconsistent with her having died on the train tracks. Over objection, Safarik testified to his opinion that the cause of death was manual strangulation. He enumerated possible causes of asphyxiation, reiterated the cause of death as listed by the doctor and then eliminated all but manual strangulation as fitting the facts.

Safarik opined, over objection, that the death scene on the tracks was staged, that Kathleen was killed in her residence, and that someone close to her, not a stranger, staged the scene.

Safarik testified that, as director of Behavioral Services International, he conducts “analyses and interpretations” of complex violent crime scenes and violent crimes to “understand essentially what happened in the crime, how it happened[,] and why the events unfolded the way that they did.” Expert testimony such as Safarik’s falls under the general rubric of “crime scene analysis,” which involves the “gathering and analysis of physical evidence.” See Simmons v. State, 797 So. 2d 1134, 1151 (Ala. Crim. App. 1999). Here, the State also proffered Safarik as an expert in the cause and manner of death as well as the habits or characteristics of people who stage crime scenes.

Safarik testified that he also conducts “equivocal death evaluations” in cases where the “manner of death is not well established.” 

According to Safarik, the Kane County State’s Attorney’s Office asked him to examine the evidence from the scene where Kathleen’s body was found, to determine

(1) whether the scene was staged,
(2) the offender’s risk level,
(3) a general offender motive, and
(4) the “behavioral manifestations at the scene,” meaning the offender’s modus operandi, ritual behavior, and staging behavior.

From his review of the case, Safarik concluded the following:

(1) Kathleen did not usually run on the railroad tracks;
(2) defendant’s statement to police that Kathleen left the house to go running at 6:30 a.m. was inconsistent with the lividity present on her body less than half an hour later, when the death-scene photographs were taken, which indicated that she died prior to 6:30 a.m.;
(3) the lividity on Kathleen’s right leg was inconsistent with her position on the railroad tracks;
(4) if she had been running, her shorts would have been tied and not loose;
(5) the absence of an undergarment or a liner in Kathleen’s running shorts was inconsistent with her being out for a run;
(6) because Kathleen had “fairly large” breasts, running in an underwire bra would have been painful;
(7) Kathleen had a large selection of sports bras, so she would not have been running in an underwire bra;
(8) the presence of the underwire bra was inconsistent with defendant’s statement that Kathleen possessed running gear;
(9) Kathleen’s twisted bra strap would have been “very uncomfortable” and was inconsistent with the way she would have put on the bra;
(10) there was no sexual motive to the crime, because Kathleen’s bra was covering half her breasts;
(11) it was unlikely that Kathleen would have put on her left sock with the heel twisted toward the top of her foot;
(12) a clump of hair in her right sock was inconsistent with the way a person would dress herself;
(13) Kathleen was not wearing an armband, which was inconsistent with witnesses’ statements that she wore one when running;
(14) the absence of earbuds was inconsistent with witnesses’ statements that Kathleen listened to music while running;
(15) the leaf material on Kathleen’s body was inconsistent with that in the area where the body was found;
(16) Kathleen’s iPhone was placed on the tracks by someone;
(17) a trail of dried saliva mixed with blood running down Kathleen’s cheek was inconsistent with the way her head was positioned on the tracks, indicating that she was on the tracks after the saliva had dried;
(18) Kathleen was moved onto the tracks after she died in a different location;
(19) Kathleen died as a result of manual strangulation;
(20) a red mark on Kathleen’s neck was consistent with hands having been around her neck; (21) a bruise under Kathleen’s chin was consistent with someone having strangled her;
(22) every form of asphyxiation except manual strangulation was ruled out;
(23) Kathleen’s injuries were inconsistent with a fall on the tracks;
(24) scrapes on Kathleen’s shins were postmortem because there was no blood;
(25) Kathleen was incapacitated by alcohol and did not see the attack coming;
(26) the attack came on very quickly;
(27) strangers do not stage crime scenes;
(28) a staged crime scene indicates that the killer was someone close to the victim;
(29) the offender attempted to make Kathleen’s death look like an accident;
(30) the leaf material found on Kathleen’s body was from her residence; and
(31) based on the timeline defendant gave to the police, Kathleen was killed in her residence.

Judge Let's It In

The court found that Safarik’s “specialized knowledge” was “reliable” and “relevant” and that the general subject matter of his testimony would assist the jury to understand the evidence and to determine the facts.

Specifically, the court found that the positioning of Kathleen’s body on the railroad tracks was “a matter beyond the common experience of most jurors and is [a] subject of difficult comprehension.”

The Defendant's Medical Expert

The defense called a forensic pathologist, who testified that Kathleen died of a cardiac event brought on by stress, alcohol intoxication, lack of sleep, and caffeine consumption. Dr. Blum opined that Kathleen was running on the railroad tracks, became unwell, sat down on the rail, and expired.

According to Dr. Blum, her bruises and lividity were consistent with that scenario.

Dr. Blum acknowledged Dr. Kalelkar’s findings of petechial hemorrhages in the eyes and focal hemorrhages at the base of the tongue, but he opined that those findings, standing alone, did not support a conclusion that Kathleen was manually strangled.

Issue

Defendant argues that the state expert was improperly allowed to give an opinion as to the cause of death in a close case where the cause and manner of death were contested by two well-qualified, board-certified, forensic pathologists.

Defendant additionally contends that Safarik improperly opined on matters that were within the ken of the jurors when he testified that the death scene was staged. Defendant asserts that Safarik essentially gave the State’s closing argument.

Profiling Evidence Was Admitted

Profiling evidence usually involves a witness describing common practices, habits, or characteristics of a group of people. People v. Vasser, 331 Ill. App. 3d 675, 687 (2002). Thus, Safarik also proffered profiling evidence.

At oral argument, we asked the State what was Safarik’s area of expertise. That question was perspicacious, because the State could not readily answer it. Indeed, Safarik’s opinions ranged from forensic pathology, to botany, to the sartorial.

Safarik ventured beyond “crime scene analysis” into profiling when he testified to the characteristics of persons who stage crime scenes. In Mertz, our supreme court declined to opine on the admissibility of such evidence, holding that any error in admitting a profiler’s testimony comparing three distinct crime scenes, with a view as to whether they could be connected, was harmless because police officers had testified to the similarities that they had observed. People v. Mertz, 218 Ill. 2d 1, 72-74 (2005). The court emphasized that the profiler did not explicitly opine that the defendant committed the uncharged offenses that the profiler had studied. Here, in testifying that a staged scene indicates that the killer is someone close to the victim, Safarik indirectly, but pointedly, identified defendant as Kathleen’s killer, because, under the circumstances, no one else fit that profile.

The Expert's Opinion

Under the guise of expert “crime scene analysis,” Safarik basically offered his subjective opinion that the State’s evidence was sufficient to convict defendant.

As the State admitted at oral argument, the purpose of Safarik’s testimony was to “plug the holes” in the State’s case.

Illinois Rule of Evidence 702

Illinois Rule of Evidence 702 (eff. Jan. 1, 2011) provides that,

“[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” “

No Frye Hearing Required

Crime-scene analysis” testimony does not rest on scientific principles. Simmons, 797 So. 2d at 1151; State v. Stevens, 78 S.W.3d 817, 832 (Tenn. 2002). Rather, it is based on “specialized knowledge” and offers “subjective observations and comparisons based on the expert’s training, skill, or experience.” Simmons, 797 So. 2d at 1151.

Therefore, such testimony is not subject to the test outlined in Frye v. United States, 239 F. 1013 (D.C. Cir 1923). Simmons, 797 So. 2d at 1151.

(Only) Medical Expertise Was Required

Here, medical evidence of the cause of Kathleen’s death was necessary, because a lay person of average intelligence would not know what killed her. She was found lying on the railroad tracks, not breathing or moving. There were no gunshot wounds or stab wounds. The body was warm, and there was no immediate evidence of foul play.

Consequently, Safarik—no matter how many crime scenes he had attended as a police officer, how much study he had done on violent crime scenes as an FBI profiler, or how many courses he had attended—was not qualified by knowledge, skill, experience, training, or education to opine on the cause and manner of Kathleen’s death. See Snelson, 204 Ill. 2d at 24 (expert testimony is admissible if the proffered expert is qualified by knowledge, skill, experience, training, or education to render an opinion).

For the court to allow Safarik to opine that Kathleen died of manual strangulation was especially egregious where defendant disputed Dr. Kalelkar’s conclusion as to Kathleen’s cause of death and presented his own equally well-qualified forensic pathologist to testify that she died of natural causes.

Holding

We hold that Safarik’s opinion as to the cause of death was so highly prejudicial that we must reverse defendant’s conviction. We also note that it was beyond Safarik’s expertise to opine on the effects of lividity.

Trial courts are obliged to balance the probative value of expert testimony against its prejudicial effect. Lerma, 2016 IL 118496, ¶ 23.

The evidence of guilt in the present case was not overwhelming. Dr. Blum questioned Dr. Kalelkar’s methodology and conclusions. There was no eyewitness, no confession, and no forensic evidence connecting defendant to the crime. Consequently, we hold that it was prejudicial error to grant the State’s motion in limine No. 1 and to permit the testimony at defendant’s trial

Analysis

Through Safarik’s inadmissible testimony, the State essentially “broke the tie” by presenting a second opinion to corroborate Dr. Kalelkar’s.

As a veteran of violent-crime-scene investigations, Safarik could doubtless identify the presence of lividity. However, whether it was consistent or inconsistent with the position of Kathleen’s body on the railroad tracks was appropriate testimony for a forensic pathologist, as lividity correlates to the cause and manner of death. See People v. Legore, 2013 IL App (2d) 111038, ¶ 6 (forensic pathologist pinpointed time of death in part by analyzing lividity on victim’s body). In the same vein, Safarik should not have been permitted to testify that the vegetation on Kathleen’s body came from her home, because such an opinion was beyond his expertise and the State presented no evidence of such a correlation.

To be admissible, an expert’s opinion must have an evidentiary basis, or else it is nothing more than conjecture and guess. City of Chicago v. Concordia Evangelical Lutheran Church, 2016 IL App (1st) 151864, ¶ 72.

The Jury Didn't Need This Kind Of Expert

Next, we consider defendant’s contention that the remainder of Safarik’s testimony was prejudicial because it consisted of conclusions that the jurors could draw for themselves. A requirement of expert testimony is that it will assist the trier of fact in understanding the evidence. Snelson, 204 Ill. 2d at 24.

Expert testimony addressing matters of common knowledge is not admissible unless the subject matter is difficult to understand and explain. People v. Lerma, 2016 IL 118496, ¶ 23. Evidence is beyond the ken of the average juror when it involves knowledge or experience that the juror lacks. People v. Mertz, 218 Ill. 2d 1, 72 (2005).

Here, Safarik testified to conclusions that the ordinary juror could draw: an experienced runner would not have dressed in the garments in which the body was found; Kathleen would not have left her contacts, earbuds, and armband at home when she went running; she would not have been running on the railroad tracks when her habit was to run in the park; and she would not have put on a sock with the heel twisted to the top of her foot.

None of this type of testimony should have been admitted. Crime-scene-analysis testimony is not scientific.

The Profiling Evidence Was Also Prejudicial

Our case is more like People v. Brown, 232 Ill. App. 3d 885 (1992), than Mertz.

In Brown, the First District held that the defendant, who was charged with possession of a controlled substance with intent to deliver, was prejudiced by profiling testimony regarding the violent habits of drug sellers. Brown, 232 Ill. App. 3d at 898. The court noted that the testimony “consisted of a complete profile of a drug dealer which corresponded to the circumstances surrounding [the] defendant’s arrest.” Brown, 232 Ill. App. 3d at 899-900.

Trial Court Tried To Limit The Evidence But In Practice The Expert Still Got Carried Away

Here, the court performed this analysis in ruling on the State’s motion in limine No. 1, as it precluded Safarik from directly identifying defendant as the killer or giving profiling testimony. Yet, at trial, Safarik was permitted to say indirectly what he could not say directly.

We follow Brown and hold that such profiling evidence is inadmissible.

Reveresed

For the foregoing reasons, the judgment of the circuit court of Kane County is reversed and the cause is remanded for a new trial.

See Also The Report The Other Report Episode 082 - People v. Jones, 2015 IL App (1st) 121016 (April) (How To Admit An Expert Witness And Exclude An Unreliable One) Episode 245 - People v. Simmons, 2016 IL App (1st) 131300 (September) (Attacking Expert Witness “Foundation” Not The Way To Exclude Unreliable Opinion Testimony) Episode 213 - People v. Burhans, 2016 IL App (3d) 140462 (July) (Expert Witnesses Under Higher Scrutiny)

Plain View Doctrine Is A Probable Cause Determination | An Unhappy Choice Of Words

Aug 23, 2018 04:49

Description:

People v. Lee, 2018 IL App (3d) 160100 (August). Episode 529 (Duration 4:49)

The officer said the baggie looked like it had oatmeal in it, later testing revealed it to be cocaine.

Gist

Police seized cocaine from defendant’s home while executing a search warrant in an unrelated criminal investigation. He got six years in prison.

Issue

Defendant’s pretrial motion to suppress argued that the substance was the fruit of an improper search because it was outside the warrant’s scope and not in plain view.

The Warrant

 Sterling police investigated defendant’s involvement in a shooting. A witness identified defendant as the shooter.

Police obtained a warrant to search defendant’s home for evidence related to the shooting.

The Drugs

A Detective found the drugs underneath defendant’s bed sheets after he pulled back defendant’s bed sheets. They found a knotted, plastic bags that contained a brown, powdery substance.

The bags were concealed in a larger plastic bag.

In officer’s experience, this packaging method suggested that the bags contained illicit drugs. He believed that the substance was either heroin or a “bad batch” of cocaine.

Hearing Testimony

According to defendant, counsel should have renewed the motion after Chavira testified that he could not initially identify the substance with certainty; this testimony rendered the seizure improper.

In fact, he testified at the compulsory joinder hearing that the substance looked like oatmeal.

Plain View Doctrine

In Horton v. California, 496 U.S. 128, 136-37 (1990), the Supreme Court officially adopted a long-recognized standard that, for police to properly seize evidence in plain view, its “incriminating character” must be immediately apparent.

Defendant claims that the substance’s incriminating character was not immediately apparent because Detective Chavira admittedly did not know that the substance contained cocaine.

Forget Humphrey

Defendant relies heavily on People v. Humphrey, 361 Ill. App. 3d 947 (2005), where a police officer stopped a motorist for speeding. During the stop, the officer noticed a container holding hundreds of pills near the passenger’s feet.

The court held that the officer improperly seized the pills because he did not know that they contained pseudoephedrine or whether possessing the pills constituted a crime.

This court disagrees with People v. Humphrey, 361 Ill. App. 3d 947 (2005).

Immediately Apparent

The Supreme Court has described “immediately apparent” as “an unhappy choice of words, since it can be taken to imply that an unduly high degree of certainty as to the incriminatory character of evidence is necessary.” Texas v. Brown, 460 U.S. 730, 741 (1983).

Essentially, the “immediately apparent” element hinges on a probable cause determination; it does not require a law enforcement officer to know that an item is contraband or evidence of a crime. People v. Jones, 215 Ill. 2d 261, 277 (2005).

It's A Probable Cause 

Probable cause is not a high bar.

It exists if, from the standpoint of an objectively reasonable officer, the items or events at issue create a reasonable probability that defendant committed or is committing a crime.

It is an objective, not subjective, test.

Defendant Is Exaggerating What This Means

Defendant conjures a far-fetched story. He claims the police seriously entertained the possibility that these bags contained his breakfast. Apparently, forgotten in the bed-sheets, packed for his day.

Defendant leaps to the illogical and incorrect conclusion that the cocaine substance’s criminal character was not immediately apparent.

These Ain't No Innocent Item

Some items that law enforcement officers might associate with “criminal character” do not always demonstrate a reasonable probability that the defendant committed or is committing a crime.

For example, it would be unreasonable in some cases to immediately assign criminal character to a firearm, knife, or baseball bat; people commonly use these items as legitimate tools rather than instruments of crime.

Defendant Has To Make A Clear Complaint About His Attorney

Aug 23, 2018 06:10

Description:

People v. Jindra, 2018 IL App (2d) 160225 (July). Episode 528 (Duration 6:10)

Defendant filed his own motion but didn't really complain about his attorney.

Gist

Defendant very unhappy with the results of his trial for disorderly conduct involving the dog cathcer. 

Issue

The sole issue on appeal is whether the trial court should have conducted a preliminary inquiry pursuant to Krankel into defendant’s alleged claim that he was denied the effective assistance of counsel because of counsel’s failure to secure the presence of a key witness and to notify the judge of the witness’s statement.

Facts

On the same day as sentencing, defendant filed a pro se motion, titled “Motion (To Reconsider),” based on Cuthbertson’s nonappearance.

In his motion, defendant wrote the following:

“I would like the judge to reconsider this case. the [sic] key witness, Brissa Cuphbertson [sic], did not appear in court, nor was her written statement submitted to the judge. The public defender was Mr. Travis Lutz. This eye witness [sic] is crucial to this defense.”

Law

When a defendant presents a pro se posttrial claim of ineffective assistance of counsel, the trial court should conduct an inquiry to examine the factual basis of the claim. People v. Jolly, 2014 IL 117142, ¶ 29; People v. Moore, 207 Ill. 2d 68, 77-78 (2003).

However, if a defendant does not sufficiently raise an ineffective-assistance claim, he does not trigger the need for the trial court to inquire. People v. Taylor, 237 Ill. 2d 68, 75-77 (2010).

See Also

People v. Ayres, 2017 IL 120162 (February). Episode 307 (Duration 5:41)

Here the Illinois Supreme Court considered whether the defendant’s bare allegation of “ineffective assistance of counsel” contained in a motion to withdraw his guilty plea and vacate his sentence was sufficient to trigger the trial court’s duty to conduct a preliminary Krankel inquiry, even though the allegation lacked any explanation or supporting facts.

The court concluded that a defendant’s “clear claim asserting ineffective assistance of counsel, either orally or in writing, *** is sufficient to trigger the trial court’s duty to conduct a Krankel inquiry.”

Thus, to be sufficient, the complaint must be clear.

This Case

While defendant did mention counsel in his motion, he did not complain about counsel’s performance. Nor did he complain about counsel in his oral statements to the court.

“In instances where the defendant’s claim is implicit and could be subject to different interpretations, a Krankel inquiry is not required.” Thomas, 2017 IL App (4th) 150815, ¶ 26.

As in Thomas and Taylor, defendant’s statements could be subject to differing interpretations.

He easily could have been hoping for the trial court to reopen the proofs in order to hear the witness. Absent a clear claim of ineffective assistance of counsel, the trial court’s duty to conduct a Krankel inquiry was not triggered.

Holding

We find that defendant’s statements fell short of a clear claim of ineffective assistance of counsel that would trigger the trial court’s duty to conduct a preliminary Krankel inquiry.

Defendant never stated, orally or in writing, that counsel was ineffective. Although defendant’s motion mentioned his counsel, it is unclear that defendant, in fact, was complaining about counsel. In short, defendant failed to make a clear claim asserting ineffective assistance of counsel sufficient to prompt the court’s duty to conduct a Krankel inquiry.

There simply is no clear accusation of ineffective assistance, in defendant’s pro se motion or anywhere else in the record. As defendant’s statements fell short of a “clear claim asserting ineffective assistance of counsel” (Ayres, 2017 IL 120071, ¶ 18), he was not entitled to a Krankel inquiry. Accordingly, we conclude that defendant did not sufficiently raise a pro se claim of ineffective assistance of counsel and that the trial court did not err in failing to conduct a preliminary Krankel inquiry. 

Another As Applied Challenge Results In An 18-Year Old Who Does Not Have To Register

Aug 23, 2018 08:40

Description:

People v. Kochevar, 2018 IL App (3d) 140660 (August). Episode 527 (Duration 8:40)

Another Romeo and Juliet Defender escapes from having to register as a sex offender.

First See

People v. Tetter, 2018 IL App (3d) 150243 (January). Episode 463 (Duration 8:43) 

Facts

Kochevar and C.R. had been acquainted for several years through their participation in track. In 2012, when he was 16 (nearly 17) and C.R. was 14, the relationship grew closer.

After Kochevar turned 18, their relationship became sexual.

Both were attending Prophetstown High School. C.R.’s parents called the police when they learned of the sexual nature of the relationship.

Defendant signed a written confession outlining the details of the relationship.

Charges

Defendant was charged by information with one count of misdemeanor criminal sexual abuse.

The count alleged that on March 15, 2013, he committed an act of sexual penetration with C.R., who was at least 13 but under 17 years of age and he was less than 5 years older than C.R.

Sentence

The jury found Kochevar guilty of one count of criminal sexual abuse.

After the verdict was entered, one of the jurors sent a letter to the trial judge saying the verdict was correct but urging him to be lenient in sentencing. He was sentenced to 24 months’ probation and required to register as a sex offender and undergo sex offender treatment and aftercare.

Issue

We next consider Kochevar’s constitutional challenge alleging the “Illinois statutory scheme of penalties that apply to a convicted sex offender, including community notification, and, inter alia, restrictions on movement and employment are unconstitutional as applied to him.” He cites the following offending statutes: the Sex Offender Registration Act (SORA) (730 ILCS 150/1 et seq. (West 2016)), Sex Offender Community Notification Law (Notification Law) (730 ILCS 152/101 et seq. (West 2016)), section 11-9.3 of the Criminal Code of 2012 (720 ILCS 5/11-9.3 (West 2016)), section 5-5-3(o) of the Unified Code of Corrections (730 ILCS 5/5-5-3(o) (West 2016)), and section 21-101 of the Code of Civil Procedure (735 ILCS 5/21-101 (West 2016)).

As Applied Constitutional Challenge

Kochevar’s as-applied challenge rests on two arguments:

first, that, relying on Tetter, 2018 IL App (3d) 150243, the restrictions constitute punishment and their application to him renders that punishment grossly disproportionate to the severity of the crime in violation of the eighth amendment to the United States Constitution (U.S. Const., amend. VIII); and,

second, again relying on Tetter, the restrictions constitute a “penalty” and their application to him violates the clause of the Illinois Constitution requiring “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11.

Case Law Says SORA Is Constitutional

Of course, the major obstacle to Kochevar’s requested relief is the unwavering position of our supreme court that the statutes in question do not constitute punishment. See People v. Adams, 144 Ill. 2d 381, 387-89 (1991), in which the court held that the restrictions of SORA are not punishment but rather are merely collateral consequences of conviction for covered sexual offenses, through People v. Malchow, 193 Ill. 2d 413 (2000), in which the court reaffirmed the sex offender laws are not punishment, and including its recent decision in People v. Pepitone, 2018 IL 122034, ¶ 18, in which it found the statute that “completely bars sex offenders who have targeted children[6] from public parks” is facially constitutional. See also 720 ILCS 5/11-9.4-1(b) (West 2016).

The supreme court could not have made its position clearer.

The SORA statutes do not constitute punishment or penalty.

But The Laws Have Gotten More Oppressive

We acknowledge, as a different panel of this court recently did in Tetter, 2018 IL App (3d) 150243, the heavy weight of supreme court precedent and still urge reconsideration and a different result in light of more recent statutory changes.

Tetter noted that in the years since those decisions were issued, the Illinois legislature has significantly increased the number, severity, and technicality of requirements and restrictions on sex offenders. Tetter, 2018 IL App (3d) 150243, ¶ 45.

We are mindful of the deference due the legislature’s enactment of laws, and we recognize that the sex offender statutory scheme has been developed to address legitimate and important state concerns. It is also true, however, that the checks and balances built into our state and federal constitutions require the courts to evaluate or reevaluate challenged legislation to ascertain when or if it runs afoul of federal and state constitutional rights and protections.

That duty is triggered in a situation such as this in which a claim has been raised that statutes deemed civil and regulatory appear to have evolved and become penal.

They Went With Tetter

This court in Tetter applied those factors to the sex offender statutory scheme and concluded that the scheme has become penal. Having and intending to convey no disrespect to the supreme court or to the legislature, we endorse, adopt, and incorporate the arguments set out in Tetter that make such a case, and we apply its findings in this case.

The Tetter majority undertook a careful, thorough, and thoughtful retrospective of sex offender registration and notification cases in the Illinois and federal courts and constructed a compelling argument that changes in the implementation and reach of the registration itself and the increasingly burdensome and debilitating restrictions of the legislative program have gradually, but inexorably, transformed rationally based, protective consequences into a statutory scheme that is indeed punitive.

Using the five-factor test set out inKennedy v. Mendoza-Martinez, 372 U.S. 144, 165, 168-69 (1963), Tetter meticulously tracks the evolution of sex offender registry cases and the legislatively enacted registration, notification, and restriction regulations to assess whether legislation intended to create a civil regulatory scheme is “so punitive either in purpose or effect as to negate [the State’s] intention to deem it civil.” Tetter, 2018 IL App (3d) 150243, ¶ 41 (quoting Kansas v. Hendricks, 521 U.S. 346, 361 (1997), quoting United States v. Ward, 448 U.S. 242, 248-49 (1980)).

In sum, we are persuaded that Tetter’s legal analysis is sound, and we agree with its conclusion that the sex offender statutory scheme has morphed from civil regulation into something that is indeed punitive.

Analysis

Our conviction of the rightness of this conclusion is strengthened when we apply the statutory restrictions to Kochevar and assess their necessity in light of his offense and his individual characteristics.

The record in this case does not reveal a “sex offender who targets children” or a “sexual predator.”

We do note, however, that he has acknowledged and rationalized continuing to see C.R. after he was charged and in violation of no contact orders. What the record does show is a typical teenager—brash, occasionally rash, with soft spots and spurts of poor, but largely harmless, judgment—generally living life much like other teens.

He was graduating, going off to college, full of potential and plans when he was removed from this relative homogeneity, charged, convicted, and sentenced for criminal sexual abuse. As a mandatory part of his sentence, he was and is required to register as a sex offender. Because he was 18 years old at the time of his offense, certain benefits, which would have been applicable to him had he acted six to seven months earlier, are unavailable. A few keystrokes on any internet browser will bring up Kochevar’s name, his picture, the name and citation of his offense, and the fact of his conviction on the Illinois sex offender website. Id. § 120(c), (d).

His status as a sex offender is thus broadcast to the world, and he faces a lifetime of employment rejection, public disdain, impairment of his enjoyment of parental involvement and his discharge of parental responsibilities, curtailment of his liberty to live where he chooses and to move freely about his community, suspicion, and permanent stigma.

Excessive & Disproportionate

Pursuant to our conclusion that Kochevar’s subjection to the sex offender restrictions is punishment, we next assess his claims that this punishment is both excessive and disproportionate.

The reality of the sex offender registration and notification strictures is that, under most of the regulations, the same penalties are imposed upon conviction of a sex offense involving a minor without consideration of whether it is a single act of teen sex or persistent predatory sexual conduct; the second alternative does not apply.

Accordingly, we analyze Kochevar’s claim to determine whether, as to him, the penalties in the statute are so wholly disproportionate as to shock the moral conscience of the community. By contrast with that sentence and under any reasonable standard of comparison, the pervasive negative impact of the SORA regulations is genuinely shocking in this case.

Of paramount importance, there is nothing in the record that suggests that this young man targeted children, targeted underage girls, or even targeted C.R. According to the record, based on Kochevar’s statements, he and C.R. were engaged in a friendship that evolved over time into a relationship that was sexual. He was not a predator. We find nothing in his personal record or in the record on appeal that suggests that the rigid technical strictures of the sex offender statutes are necessary to restrain instincts or predilections to prey on children that Kochevar gives no evidence of having now or ever having had.

The imposition of the restrictions is punitive, and because it is unnecessary in order to secure Kochevar’s compliance with the statutes’ expressed purpose of preventing abuse of children, it is grossly disproportionate to his crime and violates the eighth amendment to the United States Constitution.

Holding

Further, that the severe punitive impact on Kochevar constitutes a penalty subject to evaluation under the proportionate penalties clause seems clear to us. This was a young man who the record shows had worked hard to excel academically, athletically and, most importantly, as a decent human being and was planning for a promising future.

He was charged with and convicted of a sexual crime and removed from the typical teen pool. Now, after having served his sentence, he is tethered to that youthful mistake by a plethora of restrictions, some of which are effective for 10 years and others for the rest of his life.

This system that the legislature has devised affirmatively obstructs the State’s constitutional objective of restoring this particular offender to useful citizenship in violation of the proportionate penalties clause of the Illinois Constitution.

For all of the foregoing reasons, we find Illinois’s statutory sex offender scheme, as applied to Kochevar, violates both the eighth amendment to the United States Constitution and the proportionate penalties clause of the Illinois Constitution.

We affirm Kochevar’s conviction, jail sentence, and term of probation. We vacate his requirement to register as a sex offender and to comply with SORA (730 ILCS 150/1 et seq. (West 2016)), the Notification Law (730 ILCS 152/101 et seq. (West 2016)), section 11-9.3 of the Criminal Code of 2012 (720 ILCS 5/11-9.3 (West 2016)), section 5-5-3(o) of the Unified Code of Corrections (730 ILCS 5/5-5-3(o) (West 2016)), and section 21-101 of the Code of Civil Procedure (735 ILCS 5/21-101 (West 2016)). The matter is remanded to the Whiteside County circuit court for the entry of an order consistent with this opinion.

Case Law Memory Formula Applied To The Top 13 Illinois Supreme Court Cases In 2017

Aug 22, 2018 28:07

Description:

Let's apply the Case Law Memory Formula to the the top 13 most important criminal law cases released by Illinois Supreme Court in 2017. Episode 526 (Duration 28:07)

Go here to listen to the Case Law Memory Formula.

2017 Top 13 Illinois Criminal Law Cases Released By The Illinois Supreme Court

Here's a quick snapshot of the top cases:

1. People v. Holmes - July

Police can stop you if they see a gun. "Hey, Homes why you taking my firecracker gun?"

2. People v. Brooks - November

After a motorbike accident, Defendant is taken to the hospital kicking and screaming literally against his will and his blood is drawn. PictureM Mel Brooks dressed as an Indian like in Blazing Saddles kicking and screaming in the ambulance and the hospital.

3. People v. Way -  April

Lady veers into oncoming traffic and injures another driver. She goes the Wrong WAY while all taoked up on weed; Court says she should have been allowed to call her doctor then say, "April's Fool."

4. People v. Hardman - November 

Knowledgeable cop can testify that a building is a school. Picture the opening scene of a movie: arial view of a building with a Concrete Statute (a hard man) of Squanto holding an ear of corn like a pen.

5. People v. Fort - February

State must charge second degree murder if they want to continue with adult sentencing after they lose a first degree murder count. The Rambo of groundhogs digs under a military fort to get in. The gophers inside capture him and charge him with murder but he's acquitted.

6. People v. Ayres - February

Mails a motion with the title "Ineffective Assistance" and says nothing else. Imagine a prisonor flying a kite through the bar widows, the kite has the words "ineffective assistance" written on it, and has paper hearts on the tail. The kite goes through the air (Ayres) and hits the judge right in the kisser.

7. People v. Shinaul - February

State is not allowed to reinstate charges after Defendant vacates an invalidated Aguilar AUUW conviction. Walk up to a prosecutor and kick him in the shins, they'll scream "awe" - shin-awe. Then to calm him back down feed him a groundhog steak.

8. People v. Howard - March

Sex offender anti loitering statutes are constitutional, this dude was dropping someone off at a school. Howard Walowitz dresses in a gown to sneak across a school while carrying an easter egg in a basket. He gets caught and charged with being a sex offender.

9. People v. Pearse - March

Defendant is in the hospital and doesn't register with the PD of the city the hospital is in. Picture defendant tussling with a crocodile over his purse where he keeps his shamrock shake.

10. People v. Sebby - June

Plain error first prong requires a closely balanced case. A chubby dad gets into a fight with his doctor who is putting his thumb on the scales and tipping the scales. The dad wants to fit into his new summer father's day suit.

11. People v. Brown - November

Defendant plead guilty because he was told his sentence was a 50% case when in fact it was an 85% case. For thanksgiving dinner defendant takes a brown duky from his pants mixes it with the mash patatoes and throws it against the wall.

12. People v. Relerford - November

Just a small part of the Illinois stalking statute was declared unconstitutional. Worse marketing idea ever: for black friday release a flock of canariees carring coupons announcing you have a Sale-on-Fords. You won't sell anything but you'll beat the stalking charge. 

13. People v. Ringland - June

Prosecutors cannot designated officials with general policing power. The ringleader slapped lights on an SUV put sunglasses and short shorts on a retired detective and had him stopping cars looking for them kgs (kilos).

Intellectually Disabled Defendant’s Should Be Treated Like Minors When It Comes To Sentencing

Aug 21, 2018 07:56

Description:

People v. Coty, 2018 IL App (1st) 162383 (August). Episode 525 (Duration 7:56)

Defendant had an IQ between 55 and 65, his 50 year sentence was a life sentence, and he needs a new sentencing hearing.

Gist

Defendant has an IQ of between 55 and 65. He was mildly intellectually disabled and convicted of predatory criminal sexual assault. But also considered to be at the “extremely low” range of intelligence. He had a prior criminal sexual assault in his past.

He originally was sentenced to life in prison. After appeal it was remanded for resentencing and he then got 50 years.

Issue

On this appeal, the defendant asserts that the trial court abused its discretion in sentencing him to a 50-year extended term sentence, without properly considering that it was, in fact, imposing a de facto life sentence on a defendant with intellectual disabilities.

Second, the defendant contends that the imposition of this de facto life sentence is unconstitutional as applied to him both under the eighth amendment and the proportionate penalties clause.

Holding

For the reasons that follow, we agree with the latter contention. As shall be fully discussed below, we find that the trial court on remand imposed a discretionary de facto life sentence without a record sufficient to assess the unique factors that can impact the culpability of the intellectually disabled. We hold that this procedure resulted in constitutional error. 

Illinois Constitution

The Illinois Constitution states that “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art I., § 11.

“[T]he framers [of the Illinois Constitution] intended *** to provide a limitation on penalties beyond those afforded by the eighth amendment.” People v. Gipson, 2015 IL App (1st) 122451, ¶ 69; People v. Harris, 2016 IL App (1st) 141744, ¶ 40. And our supreme court has held that it is inaccurate to state that these two constitutional provisions are synonymous, although the relationship between them is certainly unclear.

Nevertheless, our supreme court has never shied from applying eighth amendment precedent to decide proportionate penalties cases, and we see no reason why we should not do the same here.

Proportionate Penalties Claim

To succeed on a proportionate penalties claim, the defendant here must show either

(1) that the punishment for the offense is cruel, degrading, or so wholly disproportionate to the offense as to shock the moral sense of the community or
(2) that similar offenses are compared and the conduct that creates a less serious threat to the public health and safety is punished more harshly.

People v. Klepper, 234 Ill. 2d 337, 348-49 (2009); see also Leon Miller, 202 Ill. 2d at 338.

Our supreme court has repeatedly refused to define what kind of punishment qualifies as cruel, degrading, or so wholly disproportionate to the offense as to shock the moral sense of the community, because “as our society evolves, so too do our concepts of elemental decency and fairness which shape the ‘moral sense’ of the community.” Leon Miller, 202 Ill. 2d at 339 (citing Trop v. Dulles, 356 U.S. 86, 101 (1958) (whether a punishment shocks the moral sense of the community is based upon an “evolving standard[ ] of decency that mark[s] the progress of a maturing society”)).

It All Began With The Intellectually Disabled

At the time we decided Coty II, that standard had evolved to prohibit the imposition of the death penalty on juveniles and intellectually disabled offenders, as well as to condemn the imposition of mandatory natural life imprisonment on juveniles. See id. ¶ 63 (citing Graham v. Florida, 560 U.S. 48, 68 (2010), Roper v. Simmons, 543 U.S. 551, 569-70 (2005), Miller v. Alabama, 567 U.S. 460, 488-89 (2012), and Atkins v. Virginia, 536 U.S. 304, 321 (2002)).

Accordingly, in Coty II, we held that the statutory provision under which the defendant had been sentenced to mandatory natural life imprisonment, without the trial court having any discretion, was disproportionate as applied to him, so as to shock the moral sense of our community. Id. ¶ ¶ 64-69 (citing Leon Miller, 202 Ill. 2d at 339-42). ¶ 63

Community Standard's Of Decency Have Evolved

Since our decision in Coty II, our community’s standards of decency have considerably evolved, albeit in the context of juvenile defendants and the eighth amendment (U.S. Const., amend. VIII). First, in Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016), the United States Supreme Court held that state courts must give Miller effect in collateral proceedings and that, under Miller, life imprisonment without parole is unconstitutional for juvenile offenders “whose crimes reflect the transient immaturity of youth” “for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” Id. at ___, 136 S. Ct. at 734.

Roper held that the eighth amendment prohibited death penalty sentences for juveniles who commit murder. Roper, 543 U.S. at 578-79. Graham held that the eighth amendment prohibited mandatory life sentences for juveniles who commit nonhomicide offenses. Graham, 560 U.S. at 82.

Miller held that the eighth amendment prohibited mandatory life sentences for juveniles who commit murder. Miller, 567 U.S. at 489-90.

Juveniles Are Different

All three decisions recognized the following general difference between juveniles and adults, which render juveniles less morally reprehensible:

(1) lack of maturity and underdeveloped sense of responsibility;
(2) vulnerability and susceptibility to negative influences and outside pressures; and
(3) a yet unfully formed character, which makes them more malleable and their malfeasance less indicative of irretrievable depravity.

Graham, 560 U.S. at 68; Roper, 543 U.S. at 569-70.

In Miller, the Supreme Court further held that “children are constitutionally different from adults for purposes of sentencing” and that a trial court must therefore be able to consider mitigating factors in determining whether to impose a natural life sentence. Miller, 567 U.S. at 471.

Then Came DeFacto Life Sentences

Next, in People v. Reyes, 2016 IL 119271, ¶ 9, our supreme court interpreted the holding of Miller to apply to de facto as much as de jure life sentences.

Noting that Miller’s “holding required that life-without-parole sentences be based on judicial discretion rather than statutory mandates” (id. ¶ 4), our supreme court held:

“A mandatory term-of-years sentence that cannot be served in one lifetime has the same practical effect on a juvenile defendant’s life as would an actual mandatory sentence of life without parole—in either situation, the juvenile will die in prison. Miller makes clear that a juvenile may not be sentenced to a mandatory, unsurvivable prison term without first considering in mitigation his youth, immaturity, and potential for rehabilitation.” Id. ¶ 9.

In addition our supreme court held: “ ‘[T]he teachings of the Roper/Graham/Miller trilogy require sentencing courts to provide an individualized sentencing hearing to weigh the factors for determining a juvenile’s “diminished culpability ***[”] when, as here, the aggregate sentences result in the functional equivalent of life without parole. To do otherwise would be to ignore the reality that lengthy aggregate sentences have the effect of mandating that a juvenile “die in prison even if a judge or jury would have thought that his youth and its attendant characteristics, along with the nature of his crime, made a lesser sentence *** more appropriate.”

All This Applies To Discretionary Life Sentences As Well

Subsequently, in People v. Holman, 2017 IL 120655, our supreme court interpreted Miller to apply to discretionary, as much as mandatory, natural life sentences.

Accordingly, as of today, our community’s standards of decency appear to have evolved to prohibit the imposition of de jure and de facto mandatory and discretionary life sentences for juveniles, where procedurally the court fails to consider the attendant characteristics of youth. See Reyes, 2016 IL 119271, ¶ 9; Holman, 2017 IL 120655, ¶ 46; Buffer, 2017 IL App (1st) 142931, ¶¶ 62-63.

We've Come Full Circle

In the midst of significant juvenile jurisprudence, however, one must not forget that such jurisprudence began with Atkins and the Court’s concern with the intellectually disabled. See Miller, 567 U.S. at 483-84, 509 (citing Atkins, 536 U.S. at 316, 342).

In Coty II, we already held that under Atkins adults with intellectual disabilities deserve special treatment in a proportionality analysis (see Coty II, 2014 IL App (1st) 121799-U, ¶¶ 61-75). In doing so, we only implied that adults with intellectual disabilities should be treated similarly to minors.

The Intellectually Disabled Are Different Less Culpable

Intellectually disabled individuals, just like juveniles, are less culpable, where the deficiencies associated with intellectual disability “diminish their personal culpability.” Atkins, 536 U.S. at 318. Indeed, “clinical definitions of [intellectual disability] require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18.” Id.; see also 730 ILCS 5/5-1-13 (West 2014) (defining intellectual disability as “sub-average general intellectual functioning generally originating during the developmental period and associated with impairment in adaptive behavior reflected in delayed maturation or reduced learning ability or inadequate social adjustment”).

Those attendant characteristics include, but are not limited to: 

Process Information

An intellectually disabled person has a diminished capacity to understand and process information.

Communication

Intellectually disabled person has a lesser ability to communicate.

Mistakes & Experience

Some individuals won't be able to abstract from mistakes and learn from experience.

Logical Reasoning

Intellectually disabled persons “frequently know the difference between right and wrong and are competent to stand trial,” but “by definition[,] they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand others’ reactions.” Atkins, 536 U.S. at 318.

Manipulatioin & Pressure

Additionally, they are unable to understand others’ actions and reactions, so as to be more susceptible to manipulation and pressure.

Quick To Confess

Additional risks accompanying the unique characteristics of the intellectually disabled are the possibility that they will unwittingly confess to crimes they did not commit, their lesser ability to give their counsel meaningful assistance, and the fact that they are “typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes.” 

Act On Impulse

In addition, “there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and *** are followers rather than leaders.” Similarly, with respect to deterrence, the same cognitive and behavioral impairments that make intellectually disabled individuals less morally culpable make it less likely that they can process the fact that their behavior exposes them to severe punishment.

Deterance Has No Effect

Simply put, an intellectually disabled defendant is far less likely than an average adult to understand the permanence of life in prison, let alone weigh the consequences of such a life against the perceived benefit of criminal conduct. As such, just as with minors, it is less likely that the possibility of facing such an extreme sanction will deter an intellectually disabled person from committing a crime.

Holding

Accordingly, since we hold today that minors and adults with intellectual disabilities should be treated similarly in a proportionality analysis, we see no reason why, under our community’s evolving standards of decency, the prohibition against the imposition of discretionary de facto life sentences without the procedural safeguards of Miller and its progeny should not be extended to intellectually disabled persons where the record shows that the trial court did not take into account those characteristics accompanying an intellectual disability as articulated in Atkins, so as to show “irretrievable depravity, permanent incorrigibility, or irreparable corruption beyond the possibility of rehabilitation.” Holman, 2017 IL 120655, ¶ 46.

We find that the procedural safeguards originating with Atkins, and created by Miller and its progeny are applicable to intellectually disabled defendants under our constitution.

It's A De Facto Life Sentence

With time served, the defendant’s earliest release (parole) date will be when he will be 84 years old. The defendant’s actual discharge date is set for 2052, at which point he will be 88.

As shall be explained further below, under our prior holdings, and contrary to the State’s assertion, there can be no doubt that this sentence is equivalent to condemning the defendant to natural life imprisonment. This exact panel has previously held that a 50-year sentence imposed on a 16-year old juvenile was a de facto life sentence. Buffer, 2017 IL App (1st) 142931, ¶ 62.

Applying the rationale of Buffer and Sanders to the facts of this case, we are compelled to conclude that the intellectually disabled defendant, whose average life expectancy is at best 64 but who will not be released until he is at least 84, has similarly been condemned to spend the rest of his days in prison.  This “unsurvivable” sentence is equivalent to natural life imprisonment, a sentence which the original sentencing judge, who presided over the trial, heard all the evidence, and viewed all the witnesses, believed was inappropriate.

Remand Necessary

We are compelled to conclude that the imposition of a 50-year de facto life sentence on this particular defendant, without the procedural safeguards of Atkins, Miller, and its progeny, was a penalty so wholly disproportionate that it violated the moral sense of our community.

Accordingly, we find the sentence unconstitutional under the proportionate penalties clause (Ill. Const. 1970, art. I, § 11). ¶ 87 We therefore vacate the defendant’s sentence and remand for a new sentencing hearing before a different judge. On remand, we urge the public defender to have the defendant’s mental health evaluated and to provide the court with as much information as possible as to the defendant’s behavior and progress, or lack thereof, while in prison.

We also instruct the trial court on remand to give serious consideration to the attendant characteristics of the defendant’s intellectual disability and the fact that this disability “diminish[es] both [his] culpability and the need for retribution” particularly in the context of this, a nonhomicide offense. 

On The Double

Furthermore, because the defendant has already spent nearly 15 years in prison and this is the second time we are vacating his sentence, we instruct the trial court to act with the utmost expediency.

For all of the aforementioned reasons, we vacate the defendant’s sentence and reverse and remand for a new sentencing hearing, with instructions.

Illinois Supreme Court Admits They Got McFadden Wrong Proceed To Vacate Those AUUW’s

Aug 20, 2018 22:25

Description:

In re N.G., 2018 IL 121939 (August). Episode 524 (Duration 22:24)

McFadden is overruled.

First See

People v. McFadden, 2016 IL 117424 (June). Episode 187 (Duration 5:17) (Old UUW convictions don't vacate themselves; you have to file a motion to get rid of them)

There we reaffirmed long-standing principles that a facially unconstitutional statute is void from the moment of its enactment and unenforceable, that a declaration that a statute is facially invalid must be given full retroactive effect, and that a conviction based on such a statute cannot stand, we held, based on the language of the UUWF statute, that where a defendant has not taken affirmative action to have a court set aside the initial conviction and therefore still has an extant, undisturbed felony conviction on his record at the time he engaged in the conduct on which the subsequent UUWF prosecution was predicated, the elements of the UUWF statute are satisfied and the UUWF conviction may stand, regardless of whether the initial conviction might be subject to vacatur later on the grounds that it was unconstitutional.

Gist

One of the three felony convictions on which DCFS’s claim of depravity depended on a conviction from a 2008 aggravated unlawful use of a weapon struck down as unconstitutional in Aguilar.

Issue

The dispositive question in this appeal, and the one we must therefore now address, is whether the trial court could rely on such a constitutionally invalid conviction in determining whether DCFS had met its burden of establishing that the father was unfit and, on that basis, terminate his constitutionally protected parental rights.

Holding

The answer to that question, as the appellate court correctly concluded, is that it could not.

Because section 24-1.6(a)(1), (a)(3)(A), (d) is facially unconstitutional under the second Anamendment to the United States Constitution (Aguilar, 2013 IL 112116, ¶ 22; People v. Burns, 2015 IL 117387, ¶ 21; Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012)) and the existence of Floyd F.’s conviction under that facially unconstitutional statute was necessary to the trial court’s determination that he was depraved within the meaning of the Adoption Act, Floyd F.’s conviction under the statute must be vacated, and the circuit court’s finding of depravity must be reversed.

Parental Rights Fundamental

We begin our review of this case by recognizing the gravity of the interests at stake.

When the State secured Floyd F.’s conviction under the portion of the AUUW statute held unconstitutional in Aguilar, 2013 IL 112116, it violated his second amendment rights. Through this proceeding, the State seeks to use that unconstitutional conviction to secure an additional sanction: termination of Floyd F.’s parental rights.

Those parental rights are fundamental.

Montgomery v. Louisiana

The conviction must be treated by the courts as if it did not exist, and it cannot be used for any purpose under any circumstances. Undeniably, the state is barred from giving any legal recognition to a conviction based on a facially unconstitutional statute. See Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718, 730 (2016).

We thus have an affirmative duty to invalidate Floyd F.’s AUUW conviction and to treat the statute on which it was based as having never existed.

Court Could Vacate The Conviction

There is no merit to the argument that this proceeding is not an appropriate forum for Floyd F. to invoke Aguilar.

Our court has held that a judgment based on a statute that is facially unconstitutional is void. People v. Price, 2016 IL 118613, ¶ 31. Illinois law permits void judgments to be impeached at any time in any proceeding whenever a right is asserted by reason of that judgment, and it is immaterial whether or not the time for review by appeal has expired.

While Floyd F. has pursued a postconviction petition in his 2011 criminal case claiming that his 2008 conviction was a nullity that petition is not before us, nor was it before the appellate court. That, however, is of no consequence. In such circumstances, where there was a substantial denial of constitutional rights, we held that allowing nonstatutory remedies would be justified.

This, of course, is just such a case.

Accordingly, where a person has been convicted under an unconstitutional statute, he or she may obtain relief from any court that otherwise has jurisdiction. The person is not restricted to specific statutory methods for collaterally attacking a judgment. And it does not matter that the time for direct appeal may have passed. Simply put, under Illinois law, there is no fixed procedural mechanism or forum, nor is there any temporal limitation governing when a void ab initio challenge may be asserted.

Indeed, if the constitutional infirmity is put in issue during a proceeding that is pending before a court, the court has an independent duty to vacate the void judgment and may do so sua sponte.

McFadden Was Different

They did try to say that defendant in McFadden didn’t prove he was convicted under the unconstitutional provision and he never asked for the revocation.

First Sign Of Trouble

McFadden is also problematic because of the line of United States Supreme Court authority on which it is based.

McFadden neither considered nor addressed Montgomery or the numerous earlier United States Supreme Court cases which have consistently held that convictions based on facially unconstitutional statutes are void, can be given no effect, and must be treated by the courts as if they do not exist. No mention of Montgomery is made in the dissent either.

Oops.

McFadden Was A Mistake

What our decision in McFadden did not take into account is that the same possibility of a valid result does not exist where a substantive rule has eliminated a State’s power to proscribe the defendant’s conduct or impose a given punishment, for even the use of impeccable factfinding procedures could not legitimate a verdict’ where ‘the conduct being penalized is constitutionally immune from punishment.

Our appellate court has struggled to reconcile McFadden with the line of United States Supreme Court authority culminating in Montgomery, often calling for a legislative solution in the absence of direction from our court. The appellate court’s unease is unsurprising and justified, especially given that the appellate court’s findings took the proper analytical approach.

In a footnote the court noted that this is clearly becoming a pressurized issue.

Simply put, the analysis in McFadden not only took the wrong analytical path, it failed to recognize that the other path existed.

Had our analysis in McFadden taken into account the distinction between a prior conviction resulting from a constitutionally deficient procedure and one based on a facially unconstitutional statute, the approach we took in that case would have been different. It is important that we acknowledge that now.

Fix This Now

“Our most important duty as justices of the Illinois Supreme Court, to which all other considerations are subordinate, is to reach the correct decision under the law.” People v. Mitchell, 189 Ill. 2d 312, 339 (2000). Courts are and should be reluctant to abandon their precedent in most circumstances, but considerations of “[s]tare decisis should not preclude us from admitting our mistake” when we have made one and interpreting the law correctly, for as Justice Frankfurter once observed, “ ‘Wisdom too often never comes, and so one ought not to reject it merely because it comes late.’ ”“[S]tare decisis is not so static a concept that it binds our hands to do justice when we have made a mistake.” Vitro v. Mihelcic, 209 Ill. 2d 76, 93 (2004).

Justice Calvo, a former member of this court, put the matter more bluntly: “When a thing is wrong, it is wrong. The longer we wait to right this wrong, the more difficult it will be to rectify the error, embedded in the case law through usage.” Hayes v. Mercy Hospital & Medical Center, 136 Ill. 2d 450, 495-96 (1990) (Calvo, J., dissenting, joined by Ward and Clark, JJ.).

McFadden Is Overruled

While we find this case distinguishable from McFadden, to the extent that this result and controlling United State’s Supreme Court precedent conflict with McFadden, McFadden is hereby overruled.

To Be Clear The Defendant In McFadden Was Wronged

McFadden is also problematic because of the line of United States Supreme Court authority on which it is based.

In upholding the use of defendant’s prior firearms conviction to establish an element of the subsequent firearms offense for which he had been convicted, our opinion in McFadden neither considered nor addressed Montgomery or the numerous earlier United States Supreme Court cases which have consistently held that convictions based on facially unconstitutional statutes are void, can be given no effect, and must be treated by the courts as if they do not exist.

No mention of Montgomery is made in the dissent either.

McFadden cannot be read as expressing any view by this court as to the implications of Montgomery for the circumstances present in that case.

In McFadden, we found that Illinois’s UUWF statute was similar in purpose, structure, and operation to the federal firearms statute at issue in Lewis, 445 U.S. 55 (1980) and that it was therefore appropriate to follow the same reasoning in construing and applying the Illinois law. In focusing on the similarity of the statutory schemes, however, we failed to take into account a fundamental distinction between the constitutional flaws afflicting the two predicate offenses.

What our decision in McFadden did not take into account is that “[t]he same possibility of a valid result does not exist where a substantive rule has eliminated a State’s power to proscribe the defendant’s conduct or impose a given punishment,” for “ ‘[e]ven the use of impeccable fact finding procedures could not legitimate a verdict’ where ‘the conduct being penalized is constitutionally immune from punishment.’ ” Montgomery, 577 U.S. at ___, 136 S. Ct. at 718 (quoting United States Coin & Currency, 401 U.S. at 724). Convictions resulting from a facially unconstitutional statute fall directly within this category.

Holding

In sum, Floyd F.’s unconstitutional AUUW conviction is null and void, thus it cannot serve as a basis for finding him depraved under section 1(D)(i) of the Adoption Act (750 ILCS 50/1(D)(i) (West 2010)).

What’s The Best Way To Handle A Plea To A Non-Automatic Transfer Charge?

Aug 15, 2018 06:15

Description:

People v. Ingram, 2018 IL App (4th) 160099 (July). Episode 523 (Duration 6:15)

Defendant plead on a non-automatic transfer charge and now wants a do-over.

Gist

Defendant was 16 years old and in adult court on an armed robbery charge.

Facts

Defendant and another man, both of whom were armed with dangerous weapons, entered a gas station. The victim would testify that defendant used the­ weapon to injure his leg and that the men took money from the cash register. It was a gun.

Defendant personally discharged a firearm, proximately causing great bodily harm.

Adult Court

This was an automatic transfer offense. See 705 ILCS 405/5-130(1)(a).

Plea

In exchange for his guilty plea and a sentence of 18 years in prison, the State agreed to amend the charge to armed robbery with a dangerous weapon. 720 ILCS 5/18-2(a)(1) (West 2006).

Standing alone, armed robbery with a dangerous weapon could have been adjudicated in juvenile court. See 705 ILCS 405/5-130(1)(a) (West 2006).

The trial court accepted the plea agreement.

Issue

Defendant appeals, arguing his adult conviction and sentence are void because the amendment of the charging instrument from *** armed robbery with a firearm to armed robbery with a dangerous weapon extinguished criminal court jurisdiction and effectively transferred the case to juvenile court.

Likewise, defendant argues his sentence is void because the State did not request a hearing to sentence him as an adult.

Facts

The State, by oral motion, asked to amend the information. Defense counsel stated on the record that he had no objection. The State did not add an additional count or file a new information.

Instead, the prosecutor modified the original information by crossing out and adding new terms. The changes were made with the State’s handwritten modifications.

Automatic Transfers

As it existed at the time of defendant’s offense, the Juvenile Court Act of 1987 (Act) stated as follows:

Ҥ 5-130. Excluded jurisdiction.

(1)(a) The definition of delinquent minor under Section 5-120 of this Article shall not apply to any minor who at the time of an offense was at least 15 years of age and who is charged with:

(i) first degree murder,
(ii) aggravated criminal sexual assault,
(iii) aggravated battery with a firearm where the minor personally discharged a firearm as defined in Section 2-15.5 of the Criminal Code of 1961,
(iv) armed robbery when the armed robbery was committed with a firearm, or
(v) aggravated vehicular hijacking when the hijacking was committed with a firearm.
These charges and all other charges arising out of the same incident shall be prosecuted under the criminal laws of this State.”

705 ILCS 405­/5-130(1)(a).

The Act explicitly divests the juvenile court of jurisdiction over such criminal matters.

The Act, proceeds to read, in pertinent part, as follows:

“(ii) If after trial or plea the court finds that the minor committed an offense not covered by paragraph (a) of this subsection (1), that finding shall not invalidate the verdict or the prosecution of the minor under the criminal laws of the State; however, unless the State requests a hearing for the purpose of sentencing the minor [as an adult], the Court must proceed under Sections 5-705 and 5-710 of this Article. To request a hearing, the State must file a written motion within 10 days following the entry of a finding or the return of a verdict.”

705 ILCS 405/5-130(c)(ii).

Analysis

The record clearly demonstrates, and defendant concedes, that the State originally charged defendant with armed robbery with a firearm. 720 ILCS 5/18-2(a)(4) (West 2006). This charge, under the plain language of the statute, divested the juvenile court of jurisdiction and gave exclusive jurisdiction to the trial court. 705 ILCS 405/5-130(1)(a) (West 2006).

Likewise, the subsequent modification of the information did not “divest” the trial court of jurisdiction.

The amended charge of armed robbery with a dangerous weapon arose out of the same incident from which defendant was originally charged with armed robbery with a firearm. See People v. King, 241 Ill. 2d 374, 386, 378, 948 N.E.2d 1035, 1037 (2011).

The State’s subsequent modification of the information had no legal effect on the trial court’s jurisdiction.  Accordingly, we reject defendant’s argument that the trial court lacked jurisdiction merely because the State amended the information pursuant to their plea agreement.

Assuming that his adult conviction was proper, defendant argues his sentence is void because the State was required to request a hearing to sentence him as an adult. See 705 ILCS 405/5-130(1)(c)(ii) (West 2006).

We disagree.

People v. King

See People v. King, 241 Ill. 2d 374, 378, 948 N.E.2d 1035, 1037 (2011).

The Illinois Supreme Court rejected this argument, reasoning that the “defendant was properly sentenced without a hearing” because he accepted a plea agreement with a predetermined sentence. 

In this case, defendant pleaded guilty to armed robbery with a dangerous weapon in exchange for dismissing the charge of armed robbery with a firearm. Likewise, pursuant to the plea agreement, defendant agreed to be sentenced to 18 years in prison.

Similar to King, we conclude that the State was not required to request a hearing for adult sentencing when both parties already agreed upon the exact sentence to be imposed.

Holding

We affirm the trial court’s judgment.

See Also

People v. Fort, 2017 IL 118966 (February). Episode 308 (Duration 9:57) (Second Degree Murder Is Not An Automatic Transfer Offense So What Happens When Minor is “Acquitted” of First Degree Murder After A Trial?)

...Quote From Fort

"The facts in the case at bar do not resemble those in King. The defendant in King pled guilty to and was convicted of the charged offense of attempted first degree murder, and his first degree murder charges were not dismissed until after defendant’s sentencing. Id. Unlike King, who was actually charged with attempted first degree murder, defendant was never charged with second degree murder. Thus, in this case, second degree murder is not a “charge[ ] arising out of the same incident” as the first degree murder charges. See 705 ILCS 405/5-130(1)(a) (West 2008). Moreover, in King, the parties specifically negotiated the guilty plea procedure with the intent that the minor receive an adult sentence. A negotiated guilty plea involves different concerns than those in defendant’s case. See People v. Whitfield, 217 Ill. 2d 177, 190 (2005) (when a defendant enters a negotiated guilty plea in exchange for specific benefits, both the State and the defendant must be bound by the terms of the agreement). Accordingly, King is factually distinguishable and does not support the result reached by the appellate court in the instant case." See paragraph 38.

Top 13 Illinois Supreme Court Criminal Law Cases In 2017

Aug 14, 2018 37:42

Description:

These are the top 13 most important criminal law cases released by Illinois Supreme Court in 2017. Episode 522 (Duration 37:42)

2017 Top 13 Illinois Criminal Law Cases Released By The Illinois Supreme Court

Here's a quick snapshot of the top cases:

1. People v. Holmes

Illinois Supreme Court adopts the federal rule in holding that gun arrests before Aguilar are supported by probable cause.

2. People v. Brooks

Defendant is taken to the hospital kicking and screaming literally against his will and his blood is drawn.

3. People v. Way 

This was the appellate court decision that reversed the aggravated DUI conviction.

4. People v. Hardman

Is is sufficient for a couple officers to testify they are familiar with the neighborhood and that the building is a school?

5. People v. Fort

Illinois Supreme Court says State must charge second degree murder if they want to continue with adult sentencing after they lose a first degree murder count.

6. People v. Ayres

What does defendant have to say to trigger a Krankel inquiry?

7. People v. Shinaul

State is not allowed to reinstate charges after Defendant vacates an invalidated Aguilar AUUW conviction.

8. People v. Howard

Illinois Supreme Court upholds the constitutionality of anti loitering statute for sex offenders.

9. People v. Pearse

Illinois Supreme Court acknowledges that SORA is a big bloody mess and calls for legislative clarification and police practice changes.

10. People v. Sebby

Supreme Court explains how plain error analysis works.

11. People v. Brown

Defendant plead guilty because he was told his sentence was a 50% case when in fact it was an 85% case.

12. People v. Relerford

Just a small part of the Illinois stalking statute was declared unconstitutional.

13. People v. Ringland

Prosecutors cannot designated officials with general policing power.

Third District Can’t Agree With Itself On Probable Cause Dissipation

Aug 13, 2018 24:46

Description:

People v. Varnauskas, 2018 IL App (3d) 150654 (July). Episode 521 (Duration 24:46)

What does the new licensplate obstruction statute say?

Gist

2 kilos of heroin and 1 kilo of cocaine were found under defendant's hood. He was sentenced to 40 years on prison.

Facts

Defendant was stopped because his rear license plate was obscured by an empty bicycle rack attached to the car. It's quite clear that the straps were hanging down so low that the license plate was obstructed and that only two digits of the license plate could be read.

During the traffic stop a drug detection dog gave a positive alert for the presence of drugs in defendant’s vehicle. The officer obtained a rental agreement for the vehicle. Defendant’s name was not on the rental agreement. The rental agreement indicated that the vehicle was due to be returned to Los Angeles two days later.

Before The Search

The trooper asked defendant to sit in the front passenger seat of his squad car so that he could speak with defendant and determine if defendant was authorized to drive the vehicle.

The officer obtained a rental agreement for the vehicle. Defendant’s name was not on the rental agreement. The rental agreement indicated that the vehicle was due to be returned to Los Angeles two days later.

At the same time, the trooper checked for defendant’s driver’s license information via his telecommunications system. The trooper received information that defendant had a valid driver’s license. Defendant indicated he was coming from Colorado and the vehicle had been rented by his friend, in Los Angeles, California.

Defendant also indicated that he had flown into Los Angeles and was traveling via the car to see his mother in Connecticut. Defendant was unable to specify which day he had flown into Los Angeles and was not sure if he was going to return the rental vehicle to California.

Defendant told police that there was no bicycle on the bicycle rack because he had sold it in Colorado.

Trooper Jarrod Johnson arrived on scene and continued to fill out a warning ticket for defendant while Veryzer walked his canine partner around defendant’s vehicle.

The Drug Dog Sniff

The trooper testified regarding the procedure for walking the canine around a vehicle.

He indicated that he attaches a six-foot lead to one of the canine’s two collars and brings the canine to the front of the vehicle (within three feet of the vehicle) and places the canine in the sit position. He would then give the canine the command to “seek, find dope,” which is the canine’s trained command to look for odors of narcotics that he was trained to alert on—cocaine, heroin, methamphetamines, crack cocaine, and cannabis.

The trooper would then walk the canine around the vehicle twice counterclockwise, returning to the front the vehicle. On the second rotation of walking his canine partner around defendant’s vehicle, his canine partner came to a sudden stop at the trunk area of defendant’s vehicle.

The trooper described the canine alerting to having found narcotics as when the canine has “slowed his process, snapped his head and body back to the left, and began taking short, quick breaths.” After alerting, the canine would then sit as a final response because he is trained to sit when he positively recognizes one of the five odors that he is trained in.

Roadway Search

Another police trooper searched defendant’s vehicle on the side of the road. They searched for 20 minutes.

They conducted a cursory search of defendant’s vehicle by checking all the bags and general locations of the vehicle where drugs have been found during other vehicle searches in the past, including searching inside the bags and luggage that were in the trunk of defendant’s vehicle, the interior, under the seats, under the dashboard, and inside the doors by sticking a wedge into the doors to be able to see into the doors.

Due to the weather being below freezing at 20 degrees Fahrenheit and due to safety issues regarding oncoming traffic and low visibility because it was dark outside, the troopers decided to relocate defendant’s vehicle to a nearby police station in order to continue the search.

Drugs were found under the hood.

At The Station

The troopers then decided to relocate the search to a location where there would be more light to better see into various areas of the vehicle and where it would be safer and warmer because they could not see due to the darkness.

It was dangerous on the side of the road and the temperature was about 20 degrees outside.

They relocated defendant’s vehicle to the Geneseo Police Department and, after searching the vehicle for 10 or 15 minutes, they found the drugs under the hood in the engine compartment in an area covered by a black piece of metal or plastic.

It was 2 kilograms of suspected heroin and a 1 kilogram of suspected cocaine wrapped in black material, in a void area of defendant’s vehicle located by the engine and below the car’s windshield.

He was not able to see the black packages of narcotics in the void compartment area under the windshield on the roadside by just shining a flashlight because a flat piece of plastic or metal covered it. That piece of metal or plastic could easily be removed by removing some clips that covered the compartment, which was part of the vehicle from the factory, was not modified, and could be easily accessed.

The Non Issue Issue

Prior to trial, defendant filed a motion to suppress the evidence found during the search of his vehicle, arguing the traffic stop was initiated without probable cause or reasonable suspicion because the bicycle rack was not a violation of section 3-413(b) of the Vehicle Code because it was not attached to the license plate.

See People v. Gaytan

People v. Gaytan, 2015 IL 116223 (May).

The Illinois Supreme Court in Gaytan found that a prior version of section 3-413(b) was ambiguous, where the statute required that every registration plate shall be securely fastened to the vehicle “in a place and position to be clearly visible and shall be maintained in a condition to be clearly legible, free from any materials that would obstruct the visibility of the plate, including, but not limited to, glass covers and plastic covers” (625 ILCS 5/3-413(b) (West 2010)).

The Illinois Supreme Court noted the word “materials” in section 3-413(b) could have been interpreted either as:

(1) prohibiting only items attached to the license plate itself because the only examples of the prohibited materials provided in the statute were license plate covers (an item attached to the plate itself); or
(2) prohibiting any obstructing object whatsoever. Id. ¶¶ 30-31.

Because the statute was deemed ambiguous in Gaytan, the Illinois Supreme Court invoked the rule of lenity and applied the more lenient interpretation of section 3-413(b) as prohibiting only those objects that obstructed the visibility and the legibility of the license plate that were physically connected or attached to the plate itself. Id. ¶ 39.

The Illinois Supreme Court further concluded that it was objectively reasonable for the officers to believe that the trailer hitch violated section 3-413(b) so that the vehicle stop was constitutionally valid under the fourth amendment.

The statute had since been changed to remove the language referencing license plate covers.

Illinois Registration Plate Statute Old Law

The Illinois Vehicle Code (625 ILCS 5/3-413(b) (West 2014)), section 3-413(b) provided:

“Every registration plate shall at all times be securely fastened in a horizontal position to the vehicle for which it is issued so as to prevent the plate from swinging and at a height of not less than 5 inches from the ground, measuring from the bottom of such plate, in a place and position to be clearly visible and shall be maintained in a condition to be clearly legible, free from any materials that would obstruct the visibility of the plate. *** Registration stickers issued as evidence of renewed annual registration shall be attached to registration plates as required by the Secretary of State, and be clearly visible at all times.”

New Law

In 2014, at the time of the traffic stop in this case, section 3-413(b) of the Vehicle Code had been revised, so that the prohibition against “registration plate covers” was moved from subsection (b) to subsection (g). See 625 ILCS 5/3-413(b), (g) (West 2014).

Subsection (b) did not reference license plate covers, mandating that every registration plate shall be securely fastened to the vehicle “in a place and position to be clearly visible and shall be maintained in a condition to be clearly legible, free from any materials that would obstruct the visibility of the plate.” Id. § 3-413(b).

Subsection (g) indicated, “[a] person may not operate any motor vehicle that is equipped with registration plate covers.” Id. § 3-413(g).

The revised language of section 3-413(b) removed any ambiguity as to whether prohibited obstructions were only those attached to the license plate, making the statute clearly prohibitive of any materials that would obstruct the visibility of a license plate.

It Was A Good Stop

In this case, the empty bicycle rack was affixed to the vehicle in such a way that at least two bars or straps of the bicycle rack were secured in a vertical position over the license plate, covering at least two digits of the license plate.

The ends of the straps of the bicycle rack obstructed the license plate at times when the car was traveling and when the car was at a stop. Because the video and photographs showed that black bars or straps of the bicycle rack lay securely over the license plate, obstructing the visibility of the license plate, and at least two digits of the license plate were not legible.

Therefore, we conclude that the manner in which the bicycle rack was attached to the vehicle in this case constituted a violation of section 3-413(b) of the Vehicle Code. Thus, the trial court did not err in denying defendant’s motion to suppress.

But Did They Have The Right To Move The Car? 

See Episode 403 - People v. Pulido, 2017 IL App (3d) 150215 (August).

In Pulido, defendant’s vehicle was stopped for speeding by an Illinois state trooper. Two minutes later, another trooper arrived on scene with his canine partner, and the canine performed a free-air sniff of defendant’s vehicle, which resulted in the canine alerting to the driver’s side door.

Both troopers searched the inside of the vehicle and the engine compartment, and they found no narcotics. Police relocated the defendant’s vehicle to a nearby police station to further search the vehicle because it had begun raining and for safety concerns.

Eventually, tubes containing methamphetamines wrapped with black tape were removed from the air filter of the defendant’s vehicle. 

On appeal in Pulido, a panel of this court held the officers had improperly transported defendant’s vehicle to the police station because the probable cause that had been developed during the traffic stop had dissipated when no drugs or hidden compartments were found during the roadside search of the vehicle.

Third District Splits With Itself

We decline to follow Pulido.

We do not believe that probable cause had dissipated just because the drugs were so well hidden and certain surrounding conditions made completing a thorough roadside search of the vehicle impractical.

Based on probable cause, the officers conducted a roadside search of readily accessible areas in the vehicle and areas of the vehicle where drugs are typically hidden by drug traffickers. Inclement weather, the time of day with respect to the available lighting, and safety concerns due to being alongside the highway in the dark led to the decision to continue the search of defendant’s vehicle by relocating the vehicle to a better-suited location.

Analysis

In this case, the evidence of the canine alerting to an odor of drugs provided probable cause for the troopers to believe that defendant’s vehicle contained drugs and to support a search of defendant’s vehicle. After searching all readily accessible areas of the vehicle, the troopers decided that continuing to search the vehicle in the dark, alongside the highway, in freezing temperatures, was unsafe and impractical.

Under the circumstances of this case, the probable cause that supported the search did not dissipate when the troopers decided to relocate the vehicle so that a complete and thorough search of the vehicle could be executed in safer location with better lighting.

The troopers had probable cause to search the vehicle without a warrant based on the canine’s alert and Veryzer’s knowledge that illegal drugs are typically transported from the west coast to east coast on interstate highways, including on I-80 where defendant was stopped, often times in vehicles  rented by third parties, such as was the case with defendant.

The probable cause that supported the warrantless roadside search of defendant’s vehicle continued to exist after the vehicle was relocated to a nearby police station to allow the troopers to conduct a thorough search of the vehicle.

Holding

Therefore, the trial court did not err by denying defendant’s motion to suppress evidence. Absent any error, there could be no plain error requiring a review of defendant’s forfeited claim. Accordingly, we affirm the judgment of the trial court.

Generally A Court Cannot Impose A Harsher Sentence If It’s A Do-Over

Aug 8, 2018 08:15

Description:

People v. Mischke, 2018 IL App (2d) 160472 (July). Episode 520 (Duration 8:14) 

Defendant was resentenced to an aggregate sentence larger than his original sentence.

Gist

Defendant, Donald J. Mischke Jr., appeals from the judgment of the circuit court of Lake County resentencing him upon remand to consecutive terms of 26 years and 7 years in prison.

Conviction

Following a bench trial, defendant was found guilty of, among other things, one count of first-degree murder (720 ILCS 5/9-1(a)(3)) and one count of aggravated driving while under the influence (DUI) with cocaine in his urine (625 ILCS 5/11-501(a)(6), (d)(1)(A).

Facts

The charges arose out of defendant’s killing another driver while fleeing from a retail store into which he had intentionally driven his vehicle and from which he had stolen a television.

Original Sentence

Defendant was sentenced to concurrent terms of imprisonment of 26 years on the murder conviction and 7 years on the DUI conviction.

Prior Appeal

In a prior appeal this court vacated his sentences, as they were required to be consecutive (see 730 ILCS 5/5-8-4(d)(1)), and remanded for resentencing. See People v. Mischke, 2014 IL App (2d) 130318, ¶¶ 23, 25.

The Resentence

Upon resentencing the trial judge did not budge.

Thus, the court resentenced defendant to consecutive terms of 26 years’ imprisonment on the murder conviction and 7 years’ imprisonment on the DUI conviction.

The New Appeal

On appeal, defendant contends that the trial court abused its discretion in imposing the same sentence for each offense when the aggregate sentence of 33 years exceeded the original aggregate of 26 years.

The General Rule

Generally, under section 5-5-4(a) of the Unified Code of Corrections (730 ILCS 5/5-5­ 4(a)), a trial court at resentencing may not impose a more severe sentence.

Specifically, the code says:

Where a conviction or sentence has been set aside on direct review or on collateral attack, the court shall not impose a new sentence for the same offense or for a different offense based on the same conduct which is more severe than the prior sentence less the portion of the prior sentence previously satisfied unless the more severe sentence is based upon conduct on the part of the defendant occurring after the original sentencing.

See also 730 ILCS 5/5-4.5-50(d), which imposes the same restriction on a trial judge after a motion to reduce sentence is filed. It says:

"...The court may not increase a sentence once it is imposed..."

Our supreme court has long held that “a harsher sentence imposed after a successful appeal or motion to reconsider is only proper if it is based on additional bad conduct performed by the defendant after the original sentencing.” People v. Moore, 177 Ill. 2d 421, 433 (1997). A defendant should not have to run the risk that challenging a sentence might result in a longer sentence and should not be penalized for his efforts to seek relief from the sentence he received. People v. McBride, 395 Ill. App. 3d 204, 209 (2009).

What About Consecutive Sentences?

However, when a trial court is required to resentence a defendant to consecutive sentences, section 5-5-4(a) applies only to the individual sentences, not the aggregate sentence. People v. Harris, 366 Ill. App. 3d 1161, 1165-66 (2006).

Indeed, our supreme court has stated that each conviction results in a discrete sentence that must be assessed individually. People v. Carney, 196 Ill. 2d 518, 530 (2001). As such, consecutive sentences do not constitute a single sentence and cannot be combined as though they were one sentence for one offense. 

Holding

Thus, regardless of any increase in the aggregate sentence, an individual sentence on remand does not violate section 5-5-4(a), provided that it does not, in the absence of any new aggravating evidence, exceed the original individual sentence. Harris, 366 Ill. App. 3d at 1165-66; People v. Sanders, 356 Ill. App. 3d 998, 1005 (2005).

Thus, defendant’s reliance on the increase in the aggregate of the sentences is misplaced.

Here the trial judge explained that the appropriate sentence for each offense remained the same as originally imposed and that to shorten either sentence would deprecate the seriousness of the offense. 

Affirmed.

See Also People v. Amans, 2018 IL App (2d) 170405 (June).

UUW Felon Does Not Merge With Armed Violence

Aug 7, 2018 05:48

Description:

People v. Brown, 2018 IL App (3d) 150070-B (July). Episode 519 (Duration 5:48)

UUW Felon does not merge with armed violence predicated on drug possession.

Gist

The issue on appeal is whether the trial court’s sentencing determination violated one-act, one-crime principles.

Issue

Brown argues that his conviction for unlawful possession of a weapon by a felon must be vacated under one-act, one-crime principles because it was based on the same physical act of gun possession as used in his armed violence conviction.

Sentence

The trial court imposed an 18-year term of imprisonment for the armed violence conviction and an 8-year term for unlawful possession of a weapon by a felony with the sentences to be served consecutively to each other and at 85%.

The drug offense merged into the armed violence.

Arrested With Drugs

The cause proceeded to a bench trial.

Two Peoria County detectives testified that Brown had a gun on his person when they arrested him for an unrelated first degree murder. An officer patted down Brown prior to bringing him to the police station and conducted another pat down search before uncuffing Brown at the station.

Brown was interviewed, used the bathroom, and was again searched prior to transport to the county jail. During this search, a small baggie of cocaine was found in the watch pocket in Brown’s jeans.

Same Physical Act

Brown argues that his conviction for unlawful possession of a weapon by a felon must be vacated under one-act, one-crime principles because it was based on the same physical act of gun possession as used in his armed violence conviction.

One-Act, One-Crime Principles

Courts employ a two-step analysis in applying one-act, one-crime principles. See People v. King, 66 Ill. 2d 551, 566 (1977).

First, the court decides whether the defendant’s conduct was a single physical act or multiple acts. People v. Rodriguez, 169 Ill. 2d 183, 186 (1996). If a single act, multiple convictions based on the act are prohibited. 

Second, where the conduct consisted of multiple acts, the court must determine whether any of the offenses are lesser-included offenses. 

People v. Coats

See People v. Coats, 2018 IL 121926 (January). Episode 466 (Duration 7:24).

The Coats court resolved the conflict between the Second District case of People v. Williams, 302 Ill. App. 3d 975 (1999), and the Fourth District decision in People v. White, 311 Ill. App. 3d 374 (2000). Coats, 2018 IL 121926, ¶ 26.

The King court defined “act” as “any overt or outward manifestation which will support a different offense.” King, 66 Ill. 2d at 566.

Brown’s felon status is not an “overt or outward manifestation” but “a state of being.” Coats, 2018 IL 121926, ¶¶ 15, 27. But the drugs is a different thing.

Analysis

We first decide whether Brown’s conduct constituted a single act or multiple acts.

We find that Brown’s acts of armed violence based on drug possession and possession of a weapon by a felon are separate acts.  Although possession of a handgun was a common act shared by both offenses, the armed violence conviction included the separate act of drug possession.

Despite that both offenses involve possession of a gun, the armed violence count also includes the separate act of simultaneously possessing drugs. See Rodriguez, 169 Ill. 2d at 188 (citing People v. Lobdell, 121 Ill. App. 3d 248, 252 (1983) (where there is an additional act that can support an additional offense defendant may be convicted on both offenses even if they share a common act)).

Not A Lesser Included

Having determined that Brown’s convictions were not based on a single act, we must address the second step in the King analysis, whether any of the offenses are lesser included.

A lesser-included offense is an offense “established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged.” 720 ILCS 5/2-9(a).

To determine that question, we apply the abstract elements approach. See People v. Miller, 238 Ill. 2d 161, 173 (2010). The abstract elements approach compares the statutory elements of the two offenses, and if all of the elements of the first offense are included in the second offense and do not contain any elements not included in the second offense, the first offense is a lesser-included offense.

Unlawful possession of a gun by a felon is not a lesser-included offense of armed violence. Both counts include the possession of a weapon. The possession of a weapon count contains the additional element of felon status. The armed violence count includes the additional element of drug possession.

Holding

We find entry of judgment on both convictions did not violate one act, one-crime principles and was not error. Because there was no error, we conclude plain error review is not applicable and affirm Brown’s convictions.

July 2018 Speed Round (The Illinois Criminal Case Law Round Up)

Aug 6, 2018 14:57

Description:

This is the July 2018 Illinois criminal case law audio round-up (the fast case law summary). Episode 518 (Duration 14:57)

The July 2018 Top Illinois Criminal Law Cases (The Monthly Round-Up)

Here's a quick snapshot of the top cases:

1. Carpenter v. Varnauskas

What does the new license plate obstruction statute say?

2. People v. Mischke

Defendant was resentenced to an aggregate sentence larger than his original sentence.

3. People v. Brown 

UUW Felon does not merge with armed violence predicated on drug possession.

4. People v. Ingram

Defendant plead on a non-automatic transfer charge and now wants a do-over.

5. People v. Jindra

Defendant filed his own motion but didn't really complain about his attorney.

6. People v. Echols

Constitutional speedy trial rights were not violated when the state missed that he was in IDOC.

Significance Of The Evidence And Bad Faith Drive Discovery Violation And Destruction Of Evidence Issues

Jul 25, 2018 12:37

Description:

People v. Cunningham, 2018 IL App (1st) 153367 (June). Episode 517 (Duration 12:37)

Dismissal of the charges was not warranted when police destroyed some of the evidence.

Gist

Police see a man take a shotgun out of the back door of an abandoned house.

Facts

Two men with him run away as the man runs further into the house.

The man gets away before dropping the gun inside the house. Later that day other police detain defendant. The witness officer went to the location approximately one block away from where he initially observed defendant with the shotgun. Upon arriving at that location, he saw another officer and his partner detaining defendant, whom the witness officer recognized as “the individual with the mohawk haircut, the Chicago Bulls clothes that had the shotgun at the abandoned house.”

The Identification

The witness officer later clarified that when he first saw defendant, he recognized the following distinguishing features, other than the Bulls jacket: “blue jeans, medium skin, and roughly about five-five in height.” Defendant’s hair as “a fresh clean mohawk haircut.

The officer’s partner also testified and ID’d defendant saying he saw his face right before the chase.

Defendant's Statement

Defendant later said that “the DOD was in the area shooting, so he went to go get the shotgun to protect him and his friends.”

The Bulls Jacket

Defendant was not wearing the Chicago Bulls jacket at that time but was wearing blue jeans, a shirt, and “obviously his mohawk.”A different officer found the Bulls jacket abandoned underneath a car in an alley in the direction the defendant ran. The jacket was destroyed and not preserved for trial.

Issue

Defense counsel filed a motion to dismiss based on the discovery violation.

Defendant asserts that his due process rights were violated when the police acted in bad faith by not following proper procedure and destroying the Bulls jacket, an essential piece of evidence that was not otherwise available.

Discovery Violation

A discovery violation may be analyzed as either a due process violation under Arizona v. Youngblood, 488 U.S. 51, 58 (1988), or under Illinois Supreme Court Rule 415(g)(i). People v. Borys, 2013 IL App (1st) 111629, ¶ 17.

State Says

The State responds that the trial court properly denied defendant’s motion to dismiss because the Bulls jacket and ID were not materially exculpatory evidence and were only inadvertently destroyed.

They said the jacket and the ID of defendant was only “borderline irrelevant” and thus were only potentially useful evidence.

The Law On Destruction Of Evidence

The Supreme Court noted that the police do not have “an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution” and held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Youngblood, 488 U.S. at 58.

Fourteenth Amendment, as interpreted in Brady v. Maryland, 373 U.S. 83 (1963), makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence.” 

How Important Was The Jacket?

Defendant argues that the Bulls jacket and ID were “key pieces of evidence” and were exculpatory because they could have established misidentification. 

Defendant was not wearing the jacket when he was detained, and shortly thereafter, he was identified. There is no evidence that the officers were shown the jacket that was recovered from under the car before identifying defendant as the individual they were looking for. Thus, there is no evidence that the Bulls jacket played any role in defendant’s identification.

Further, one officer unambiguously testified that he recognized defendant’s face and had gotten a clear view of his face because defendant had looked “directly in [his] direction.”

The destroyed evidence here was merely potentially useful, rather than exculpatory.

Bad Faith By Police A Huge Factor

The court further reasoned that the federal and state case law was such that unless defendant can show bad faith on the part of the police, the failure of the police to preserve potentially useful evidence will not constitute a denial of due process of law.

Defendant argues that the police here acted in bad faith where they failed to follow proper procedure that resulted in the destruction of otherwise unavailable evidence. It looks like the jacket was destroyed when the defendant did not respond to a notice that the property was released.

Sure it was an error but no bad faith was demonstrated. The destruction of evidence was inadvertent. 

Not Evan A Discovery Violation

Further, the evidence does not clearly indicate whether a discovery violation did or did not occur.

Defendant filed his motion for discovery approximately three months after defendant’s arrest. Additionally, defendant never requested a "hold" on the jacket.

A trial court may properly fashion a sanction for a discovery violation when it is proportionate to the magnitude of the violation. The trial court is in the best position to determine an appropriate sanction based upon the effect the discovery violation will have upon the defendant.

Holding

We agree with the State and find that the trial court properly denied defendant’s motion to dismiss. Dismissal of the charges against defendant would have been a disproportionate sanction.

We find that the trial court did not abuse its discretion when it denied defendant’s motion to dismiss based on destruction of evidence.

Here, the only sanction sought by defendant was dismissal of the charges. Thus, the trial court was faced with determining whether the dismissal of the charges here would be proportional to the conduct that led to the destruction of evidence, and ultimately determined it would not be.

We agree. 

Affirmed.

See Also People v. Acevedo, 2017 App (3d) 150750 (March) - Episode 309 (Here’s A DUI Discovery Sanction With No Teeth (It’s Not The Civil Inference Thing) People v. Moore, 2016 IL App (1st) 133814 (February). Episode 149 (Discovery Sanction is No Sanction At All) People v.  Tsiamas, 2015 IL App (2d) 140859 (December). Episode 122 (DUI Discovery Violation | You Can’t Ignore the Notice) People v. Moravec, 2015 IL App (1st) 133869 (November) - Episode 105 (DUI Discovery Sanctions Upheld) People v. Olson, 2015 IL App (2d) 140267 (June) - Episode 077 (DUI Discovery Violation Suppression of Evidence)

How To Remember The 3 Per Se Conflicts Of Interest

Jul 24, 2018 14:55

Description:

People v. Jackson, 2018 IL App (3d) 170125 (May). Episode 516 (Duration 14:55)

A per se conflict of interest is waveable.

Gist

Defendant was on trial for murder.

Defendant argues that the trial court erred in denying his motion to withdraw his guilty plea because his appointed attorney who had a private practice labored under a per se conflict of interest, and defendant never validly waived the conflict.

Former ASA Involved

The parties agree that the attorney labored under a per se conflict of interest in that, a former assistant state’s attorney who represented the State during the pretrial proceedings prior to defendant’s stipulated bench trial, worked for his private law office at the time of the plea.

Per Se Conflict Of Interest

A per se conflict of interest exists where certain facts about a defense attorney’s status, by themselves, engender a disabling conflict.

An attorney labors under a per se conflict of interest where defense counsel’s past or present commitments raise the possibility that the attorney is unwilling or unable to effectively represent the defendant.

“Unless a defendant waives his right to conflict-free representation, a per se conflict is automatic grounds for reversal. A per se conflict of interest occurs:

(1) where defense counsel has a prior or contemporaneous association with the victim, the prosecution, or an entity assisting the prosecution;
(2) where defense counsel contemporaneously represents a prosecution witness; and
(3) where defense counsel was a former prosecutor who had been personally involved with the prosecution of defendant.

Issue

The parties dispute whether defendant validly waived this conflict.

A Knowing Waiver

The right to conflict-free counsel may be waived, but such a waiver must be knowing.

A defendant will not be deemed to have waived a conflict unless he is admonished as to the existence of the conflict and its significance. It is well settled that trial courts must adequately inform defendants of a conflict’s significance before any waiver of such a conflict can be accepted.

A defendant must actually understand how the conflict could affect his attorney’s representation, before his right to a conflict-free attorney can be knowingly waived.

This Case

The court advised defendant that an attorney in his attorney's firm had previously worked as a coprosecutor on his case. The court told defendant that the former ASA currently worked at his attorney's private law office as an associate. While defendant initially had concerns about the conflict, defendant told the court that he was fine with it after speaking with his attorney regarding the matter.

THE COURT: And that she is part of his private law office, which is separate and apart, but we still would like to put on the record that you don’t have any problem with that if you don’t; is that all right with you?

THE DEFENDANT: I mean not really...He never talked to me about none of this.

[They took a break so counsel and defendant could talk.]

THE COURT: And that she is part of his private law office, which is separate and apart, but we still would like to put on the record that you don’t have any problem with that if you don’t; is that all right with you?

THE DEFENDANT: I mean not really...No, I’m fine. He explained to me the situation.

THE COURT: I’m going to phrase it this way, the fact that [the former ASA] at some point I guess, like I said I wasn’t involved in this case at that point, was one of the co-prosecutors in this case...And she is now part of his private law office; that gives you no concern, sir, you are comfortable?

THE DEFENDANT: Yeah, I’m all right.”

Holding

Here, the trial court adequately admonished defendant as to the conflict and its significance.

The duty to admonish the defendant as to the general nature of the conflict does not mean that the trial court must painstakingly detail every potential ramification of a potential conflict.

See Also Episode 375 - Nrupa Patel Helps Dissect Conflict Of Interest Confronting Former Prosecutors People v. Schutz, 2017 IL App (4th) 140956 (June). Episode 379 (Jailhouse Client Turned Informant On Another Client – Ethical Dilemma Ensues) Episode 056 - See People v. Shepherd, 2015 IL App (3d) 140192 (February) (Ethical Violation After a Meeting With Prosecutor) People v. Nelson, 2017 IL 120198 (June). Episode 252 (Did The Defense Team Pick The Wrong Defense Because Of A Conflict Of Interest?)

17 Year Old Held For 73 Hours Before Taken To See A Judge

Jul 23, 2018 08:16

Description:

People v. McArthur, 2018 IL App (1st) 150626 (June). Episode 515 (Duration 8:15)

17 year old held for 73 hours before a probable cause hearing nonetheless gave a voluntary confession.

Gist

Seventeen-year-old defendant Jamari McArthur was arrested for allegedly engaging in sexual conduct with M.W., an 11-year-old boy. 

A jury found defendant guilty of the aggravated criminal sexual abuse of M.W. and the trial court sentenced him to four-years’ imprisonment.

Confession

Defendant confessed to the police in writing after having spent 73 hours in custody without a probable cause determination. Well above the Gersteing limit.

Issue

Defendant filed a motion to suppress his confession, arguing that his time spent in custody without a judicial determination of probable cause was unreasonable and rendered his confession involuntary.

The Arrest

When defendant was arrested at 2:57 pm and taken to the Calumet City Police Department.

Later that day at 7:53 p.m., he was placed in an interview room, read Miranda rights and presented him with a preprinted waiver form. Defendant said he understood his Miranda rights, initialed and signed the waiver form, and confessed to placing his mouth around the penis of M.W., an 11-year-old boy.

More Interrogation

Defendant was questioned again at 9:20 p.m. that night and defendant offered additional details about the incident.

The next day at 1:02 p.m., defendant consented to a mouth swab, placed a call to his grandmother and was not questioned for the rest of the day.

On The Third Day

The next day a Cook County assistant state’s attorney attended four victim sensitive interviews (VSIs) of M.W. and other potential child witnesses. The last VSI concluded at 2:14 p.m.. The ASA then met with defendant in an interview room at the police station at 3:45 p.m.

The ASA read defendant his Miranda rights and questioned him in the presence of the detective. Defendant indicated that he understood his Miranda rights and over the course of a half hour, provided a detailed confession and chronological account of the events leading up to, and following, the incident.

At around 5:02 p.m., defendant was asked to make a written confession and defendant agreed. The ASA proceeded to summarize defendant’s statements in writing on a preprinted form. When completed, defendant read the statement aloud without any difficulty.

Defendant asked the ASA to add three sentences to his statement and then signed the statement on each of its four pages. Defendant also signed a picture of himself showing him signing the statement.

On The Fourth Day

The next morning defendant was brought before a judge for a probable cause determination. More than 73 hours had passed since the time of his arrest. The judge found probable cause for defendant’s arrest and he was subsequently charged.

Some Findings

Defendant was brought before a judge the morning after the interviews were conducted.

Police could offer “no reason” as to why they did not release defendant before the VSIs were conducted and re-arrest defendant if the victim and child witnesses confirmed the content of defendant’s confession.

Defendant denied being verbally or physically threatened, or abused, by the police.

The Law

Police are required to provide a defendant with a “fair and reliable determination of probable cause” before or promptly after arrest. Gerstein v. Pugh, 420 U.S. 103, 125 (1975). A prompt determination of probable cause is one made within 48 hours of arrest. City of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991). Here, police clearly exceeded the law’s 48-hour limit by providing defendant with a probable cause determination 73 hours after his arrest.

Involuntariness Is The Standard

However, even if police do not provide a defendant with a prompt determination of probable cause, a confession will not be suppressed unless it was given involuntarily. See People v. Willis, 215 Ill 2d 517. 535 (2005) (holding that a trial court facing a Gerstein/McLaughlin violation asks the question whether the confession was voluntary). We therefore turn to consider whether, in light of the delay of defendant’s probable cause determination, his confession was voluntary.

General Factors

To determine whether defendant’s confession was voluntary, we consider the totality of the circumstances and the following factors:

(1) age
(2) intelligence
(3) education
(4) experience
(5) physical condition at the time of the detention and interrogation
(6) the duration of the interrogation
(6) the presence of Miranda warnings
(7) the presence of any physical or mental abuse and
(8) the legality and duration of the detention.

Defendant’s statement was voluntary unless his will was overcome by the police at the time he confessed. People v. Gilliam, 172 Ill. 2d 484, 500 (1996).

Factors Supporting Voluntariness

The trial court supported its decision with the following factual findings adduced from the evidentiary hearing on defendant’s motion to suppress his confession: Under a totality of the circumstances analysis...

defendant was 17 years of age  a high school student living with family members he was currently looking for a job was of average intelligence had no special needs clearly waived his Miranda rights was open and cooperative understood his Miranda Warnings Investigation Was Ongoing

Within five hours of his first interview he gives an incriminating statement. Now at this point the Detective needs to continue to speak with the other children who were involved. 

Understandably it took some time to locate and set up the children interviews. Nonetheless, at that time the victim sensitive interviews were being conducted you’re still within the forty-eight hour timeframe.

This was an investigation. This was not an attempt to get the defendant to confession and keep him in custody past forty-eight hours.

Analysis

It's quite clear the detective's explanation for the delay was not “specious,” as defendant contends, but rather demonstrative of his intent to corroborate defendant’s account of the incident with statements obtained from M.W. and other child witnesses through VSIs.

When the VSIs were all completed and defendant reinterviewed on the latest findings and a judge found probable cause for his arrest the next morning. Any delay by police was attributed to the need to speak with the child witnesses before charging defendant with a felony offense. We find that the police did not engage in “delay for delay’s sake.” 

Defendant was never interviewed longer than 30 minutes. The trial court’s factual findings as to defendant’s personal characteristics and the lack of police mistreatment support its ruling. When defendant was arrested, he was over the age of 17 and in the tenth grade taking geometry, chemistry, physical education, journalism and speech classes. The trial court noted the absence of any facts demonstrating that defendant was “below intelligence” or “a special needs student.” There was no indication of police mistreatment or mental abuse during defendant’s questioning.

True, defendant points out, he had no prior involvement with the police and no criminal background, but his inexperience alone does not support the suppression of his confession.

No Overt Abuse Here

This case was nothing like Westomorlond.

Westmoreland examined the confession of an “immature” and “terrified” 17-year-old defendant after police refused to contact his mother and detained him beyond the 48 hour limit imposed by McLaughlin. 372 Ill. App. at 869. The Westmoreland court held that the defendant’s physical characteristics, the interrogating police officer’s statement that “I don’t give a shit if you go to jail or not” and the fact that police refused defendant’s requests to contact his mother during questioning warranted the suppression of his confession. Westmoreland, 372 Ill. App. 3d at 890.

The police made no such statement here and defendant did not share the physical characteristics of the defendant in Westmoreland. 

Not A Juvenile Case

Further, Defendant was not subject to the exclusive jurisdiction of the JCA when he was questioned by police. See 705 ILCS 405/5-120 (West 2014) (prior to its amendment under Public Act 98–61, section 5 (eff. Jan. 1, 2014), the exclusive jurisdiction statute of the JCA applied to minors under the age of 17). Defendant therefore cannot avail himself of the protections afforded by this provision.

Alternatively, defendant argues that we should consider the “concerned adult” factor to find that his confession was involuntary. The concerned adult factor requires a determination of whether: (1) defendant had an opportunity to consult with an interested adult before or after interrogation; and (2) whether a police prevented defendant from contacting an interested adult or vice versa.

But unlike Westmoreland, there are no facts indicating that the police prevented defendant from contacting his parent or vice versa. To the contrary, defendant placed a phone call to his grandmother 15 hours after his arrest. We recognize that defendant was permitted to contact his grandmother after he made an oral confession, but do not find that this factor renders his written confession, which was given after he spoke with his grandmother, involuntary.

Holding

The totality of the circumstances do not warrant the suppression of defendant’s confession.

We hold that the trial court’s factual findings were not against the manifest weight of the evidence and its ultimate ruling was not in error. The delay of defendant’s probable cause determination beyond 48 hours was not the result of a willful disregard by police, indifference to defendant’s presence in custody or the product of police misconduct.

The police did not overbear defendant’s will and the State was at liberty to publish the written confession to the jury at trial.

See Also

People v. Sanchez, 2018 IL App (1st) 143899 (April). Episode 488 (involuntary confession in part because 17 year old defendant not allowed to call his mom)

People v. Suggs, 2016 IL App (2d) 140040 (June). Episode 199 (Defendant held for 98 hours before his probable cause hearing) 

How Should The Judge Handle A Request To See The Video?

Jul 14, 2018 06:28

Description:

People v. Lewis, 2018 IL App (4th) 150637 (April). Episode 514 (Duration 6:27)

It's within the court's full discretion to bring the jury back into the courtroom to view recorded evidence after deliberation has already begun.

Charges

Defendant was charged with home invasion and domestic battery. He was acquitted of home invasion but convicted of home invasion.

Jury Request

During the deliberation the jury requested to hear the 911 call again.

Issue

Defendant argues it was a structural error to influence the jury’s deliberations by bringing the jury back into the courtroom for the replaying of the 911 recording.

Structural Error

Because structural errors require “automatic reversal,” whether a structural error was invited is irrelevant because reversal nevertheless would be “automatic” in order to preserve the integrity of the judicial process. People v. Belknap, 2014 IL 117094, ¶ 85.

Conflicting Opinions

With all due respect to our distinguished Third District colleagues, we disagree with all of the views they expressed in McKinley. See People v. McKinley, 2017 IL App (3d) 140752, ¶ 44 (March)

Suggested Procedures When Replaying a Recording to a Deliberating Jury

To be clear, we now reject outright the argument that this procedure is even erroneous, let alone structurally erroneous.

If a deliberating jury requests to hear an audio recording or to see a video recording again, the trial court does not have to send the recording and equipment to the jury room but may instead exercise its discretion to bring the jury into the courtroom for a replaying of the recording.

When a deliberating jury returns to the courtroom and, in the presence of the judge, the parties, the lawyers, and court personnel listens again, in silence, to an audio recording, the jury does nothing different from what it did before, when the recording originally was played. Assuming the trial court has properly instructed the jury regarding this procedure, we adhere to the majority view and reject the notion that replaying an audio or visual recording is improper.

The Court Should Instruct If the court chooses to have the recording replayed in the courtroom, the court, parties, and counsel must be present to view or hear the evidence, and the court should instruct the jury not to discuss the evidence while in the courtroom.

2. The court should also in the jury’s presence admonish everyone else in the courtroom not to comment on the evidence, communicate with the jury, or try in any manner to influence the jury. 

3. Further, to avoid the concerns expressed by Justice Holdridge in his dissent, the court should instruct the jury that after the replay, the jury will return to the jury room and should then continue its deliberations, which may include, if it wishes, the replay.

Holding

Accordingly, we conclude that if a jury, during its deliberations, requests to see or hear a recording again, the trial court need not send the recording and equipment into the jury room but instead may, in its discretion, have the jury brought back into the courtroom for a replaying of the recording.

Justice Carter is correct that “the mode and manner in which a circuit court allows a jury to review a piece of evidence” (in this case, the 911 recording) “falls directly within the scope of the court’s inherent authority to manage its courtroom.” McKinley, 2017 IL App (3d) 140752, ¶ 22 (majority opinion).

 In the present case, the trial court did not give any instructions and admonitions, but in the record before us, we find no indicia of prejudice or anything improper having occurred during the replay of the recording.

Conviction affirmed.

See Also Episode 452 - People v. Henderson, 2017 IL App (3d) 150550 (November) (judge brings the jury out to see a video and leaves them alone in the courtroom with court personnel) Episode 502 - People v. Gore, 2018 IL App (3d) 150627 (April). (judge locks the doors during a jury question) Episode 270  - People v. Evans, 2016 IL App (1st) 142190 (December). (grandma kept out during voir dire) People v. McKinley, 2017 IL App (3d) 140752 (March) (not plain error to allow jury back into the courtroom to see the video with admonishments) People Johnson, 2015 IL App (3d) 130610, ¶ 49 (December) (no prejudice to defendant in allowing jury back into courtroom to see the video) People v. Rouse, 2014 Il App (1st) 121462, ¶¶ 78-79 (finding no error where the trial court allowed the jury to view surveillance footage in the presence of both parties and the trial judge during deliberations)

Gun Laws Banning Firearms In Protected Places Are 100% Constitutional

Jul 14, 2018 07:41

Description:

People v. Bell, 2018 IL App (1st) 153373 (June). Episode 513 (Duration 7:40)

This UUW provision in a park is found constitutional.

Gist

Following a bench trial, defendant Armani Bell was found guilty of unlawful use of a weapon in a public park and sentenced to two years in the Illinois Department of Corrections.

Issue

On appeal, defendant claims that the unlawful use of a weapon in a public park provision of the unlawful use of a weapon (UUW) statute is facially unconstitutional. Defense counsel argued that the UUW statute at issue in this case was identical to the aggravated UUW statute analyzed in Aguilar.

UUW Gun Charge

He was charged under section 720 ILCS 5/24-1(a)(10), (c)(1.5).

The version of the law was changed with the new conceal and carry legislation.

The version of the UUW statute that was in effect at the time defendant was charged stated in pertinent part:

“(a) A person commits the offense of unlawful use of weapons when he knowingly: * * * (10) Carries or possesses on or about his person, upon any public street, alley, or other public lands within the corporate limits of a city, village or incorporated town, except when an invitee thereon or therein, for the purpose of the display of such weapon or the lawful commerce in weapons, or except when on his land or in his own abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person’s permission, any pistol, revolver, stun gun or taser or other firearm, except that this subsection (a)(10) does not apply to or affect transportation of weapons that meet one of the following conditions: (i) are broken down in a non-functioning state; or (ii) are not immediately accessible; or (iii) are unloaded and enclosed in a case, firearm carrying box, shipping box, or other container by a person who has been issued a currently valid Firearm Owner’s Identification Card.

(c) Violations in specific places. (1.5) A person who violates subsection 24-1(a)(4), 24-1(a)(9), or 24-1(a)(10) in any school, regardless of the time of day or the time of year, in residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development, in a public park, in a courthouse, on the real property comprising any school, regardless of the time of day or the time of year, on residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development, on the real property comprising any public park, on the real property comprising any courthouse, in any conveyance owned, leased, or contracted by a school to transport students to or from school or a school related activity, in any conveyance owned, leased, or contracted by a public transportation agency, or any public way within 1,000 feet of the real property comprising any school, public park, courthouse, public transportation facility, or residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development commits a Class 3 felony.”

720 ILCS 5/24-1(a)(10), (c)(1.5) (West 2014). 

Facts

Police responded to a call of a person with a gun. The man was on the corner of Washington Park.

Defendant didn’t match the description, but he started running when police got there. He then slips and falls and the gun is dropped. Police take custody of the gun and 15 seconds later catch and arrest defendant.

First There Was Aguilar

Our supreme court in Aguilar recognized that “the second amendment protects the right to possess and use a firearm for self-defense outside the home,” and therefore, the offense set forth in section 24-1.6(a)1, (a)(3)(A) of the AUUW statute, which prohibited carrying on one’s person or in any vehicle, outside the home, an uncased, loaded, and immediately accessible firearm, to be unconstitutional on its face. Aguilar, 2013 IL 112116, ¶¶ 21-22.

Then There Was Mosley

Two years later, in Mosley, 2015 IL 115872, ¶ 25, our supreme court extended Aguilar’s finding of facial unconstitutionality to another portion of the AUUW statute, section 24-1.6(a)(2), (a)(3)(A), which prohibited carrying an uncased, loaded, and immediately accessible firearm on a public way.

Don't Forget Chariez

Most recently in Chairez, the question was whether the offense of possessing a firearm within 1000 feet of a public park, as set forth under section 24-1(a)(4), (c)(1.5) of the UUW statute, impermissibly encroached on the conduct at the core of the second amendment. Chairez, 2018 IL 121417, ¶ 26.

See Episode 457 - People v. Chairez, 2018 IL 121417 (February) (Gun ban prohibiting guns within 1,000 feet of a park found unconstitutional).

What About Burns?

Defendant contends that section 24-1(a)(10) of the UUW statute is facially unconstitutional because it amounts to a flat ban on carrying ready-to-use guns outside the home, which violates the second amendment of the United States Constitution.

He cites to Mosley, 2015 IL 115872, People v. Burns, 2015 IL 117387, and Aguilar, 2013 IL 112116. In Burns, the defendant was convicted of violating section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008)). Burns, 2015 IL 117387, ¶ 1. At sentencing, pursuant to the sentencing provision of the AUUW statute, section 24-1.6(d), the State presented proof of defendant’s prior felony conviction to enhance the classification of the offense from a Class 4 felony to a Class 2 felony. Id. ¶ 13.

The defendant argued before the Illinois Supreme Court that his conviction of the Class 2 form of the offense must be reversed in light of Aguilar, which found the Class 4 form of the same AUUW offense to be unconstitutional. Id. ¶ 20. The court agreed with the defendant’s contention and reversed his conviction.

See Episode 119 - People v. Burns, 2015 IL 117387 (December).

The Burns Analysis

Here, defendant argues that the penalty enhancement found under section 24-1(c)(1.5) of the UUW statute acts similarly to the sentencing enhancement of section 24-1.6(d) of the AUUW statute, and thus is a sentencing factor and not an element of the offense.

This exact issue was recently addressed by our supreme court in People v. Chairez, 2018 IL 121417. In Chairez, this court noted that “[u]nlike in Burns where the felony enhancement came after the defendant was found guilty of the charged offense, the felony enhancement under section 24-1(c)(1.5) is a specific fact that must be proved to the trier of fact prior to a guilty finding.” 

Our supreme court elaborated, stating “[t]his difference is significant to our finding because any fact, other than a prior conviction, which, by law, increases the penalty for a crime, is an element of a distinct and aggravated crime that must be submitted to the jury.” 

That is the precise situation here, where, in order to enhance the offense from a Class A misdemeanor to a Class 3 form of UUW, the State must prove the aggravating fact that defendant was within a public park. 720 ILCS 5/24-1(a)(10), (c)(1.5) (West 2014). Our supreme court found that this conclusion was supported by the plain language of the UUW statute, where, unlike in Burns, section 24-1(c)(1.5) is separate and apart from the sentencing provision of the UUW statute, section 24-1(b).

Don't Forget The Second Amendment

The second amendment to the United States Constitution provides that “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const., amend. II.

Through the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV), this right is “fully applicable to the States.” McDonald v. City of Chicago, 561 U.S. 742, 750 (2010). Our supreme court in Chairez noted that in District of Columbia v. Heller, 554 U.S. 570, 592 (2008), the United States Supreme Court determined that there is a guaranteed “individual right to possess and carry weapons in case of confrontation,” based on the second amendment.

There Are Limits

While Heller instructs that even though the second amendment guarantees an individual right to bear arms, that right is “not unlimited.” Chairez, 2018 IL 121417, ¶ 24 (quoting Heller, 554 U.S. at 626).

The Supreme Court explained, in dicta, that its holding should not “cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” Heller, 554 U.S. at 626.

The Constitutionality of Section24-1(a)(10), (c)(1.5)

We now turn to the constitutionality of section 24-1(a)(10), (c)(1.5) of the UUW statute.

The Chairez court addressed section 24-1(a)(4), (c)(1.5), of the UUW statute, but only made a finding as to the portion of that section that criminalized possessing a firearm within 1000 feet of a public park. While the only portion of the section before us is that criminalizing possession of a firearm within a public park.

It appears that public parks may be considered sensitive places.

Analysis

We find this argument compelling, especially in light of the fact that public parks are notoriously “where large numbers of people, including children, congregate for recreation,” and that “[s]uch circumstances justify reasonable measures to secure public safety.”

Our supreme court found that some level of scrutiny must apply at the second step, and noted that courts generally recognized that Heller’s reference to any standard of scrutiny means any heightened level of scrutiny, not rational-basis scrutiny. Chairez, 2018 IL 121417, ¶ 32. Under this approach, the Chairez court noted that “the second step of the inquiry requires the court to examine the strength of the government’s justifications for restricting certain firearm activity by evaluating the restriction the government has chosen to enact and the public-benefits ends it seeks to achieve.” Id. ¶ 35.

The idea here is that that a blanket prohibition on carrying a gun in public prevents a person from defending himself anywhere except inside his home; and so substantial a curtailment of the right of armed selfdefense requires a greater showing of justification than merely that the public might benefit on balance from such a curtailment. While conversely, when a state bans guns merely in particular places, such as public schools, a person can preserve an undiminished right of self-defense by not entering those places; since that’s a lesser burden, the state does not need to prove so strong a need.

Our supreme court noted in Chairez that the closer in proximity the restricted activity was to the core of the second amendment right and the more people affected by the restriction, the more rigorous the means-end review. Chairez, 2018 IL 121417, ¶ 45.

The court noted that if the State could not proffer evidence establishing both the law’s strong public-interest justification and its close fit to this end, the law must be held to be unconstitutional.

Parks Are Protected Places

We now turn to whether the possession of a firearm in a public park provision of the UUW statute is facially unconstitutional by examining the strength of the government’s justifications for restricting certain firearm activity by evaluating the restriction the government has chosen to enact and the public-benefits ends it seeks to achieve. Id. ¶ 35.

We find that public parks are areas “where large numbers of people, including children, congregate for recreation,” and that such circumstances justify reasonable measures to secure public safety. While the Chairez court ultimately found that the “most troubling aspect” of the 1000­ feet from a public park provision was “the lack of any notification where the 1000-foot restriction zone starts and where it would end,” no such issues exist in the portion of the statute at issue here.

The Chairez court noted that “[i]nnocent behavior could swiftly be transformed into culpable conduct if an individual unknowingly crosses into a firearm restriction zone. The result could create a chilling effect on the second amendment when an otherwise law-abiding individual may inadvertently violate the 1000-foot firearm-restricted zones by just turning a street corner.” Chairez, 2018 IL 121417, ¶ 55.

These “troubling aspects” are not present here, and a person can certainly preserve an undiminished right of self-defense by simply not entering a public park.

Holding

Accordingly, we find that the firearm restriction’s “within a public park” provision continues to accomplish this aim without “effectively prohibit[ing] the possession of a firearm for self-defense within a vast majority of the acreage in the city of Chicago.”

We reiterate that all statutes carry a strong presumption of constitutionality, and that we will find a statute constitutional if it can be reasonably done. Aguilar, 2013 IL 112116, ¶ 15. We find that it can reasonably be done in this case, and decline to find section 24-1(a)(10), (c)(1.5) of the UUW statute facially unconstitutional.

Gun Laws Banning Firearms 1,000 Feet From Protected Places Are Unconstitutional

Jul 14, 2018 06:09

Description:

People v. Green, 2018 IL App (1st) 143874 (June). Episode 512 (Duration 6:09)

Another gun provision is declared unconstitutuional (this version was in effect before conceal and carry changes).

Gist

Defendant was a security guard who possessed a valid Firearm Owner’s Identification Card, was observed with a holstered weapon across the street from Senn High School in November of 2012.

Charges

He was convicted of two counts of unlawful use of a weapon (UUW) for carrying a loaded, accessible firearm while on a public street and while in a vehicle. 720 ILCS 5/24-1(a)(4), (a)(10) (West 2010).

Because he committed those offenses within 1000 feet of a school, he was sentenced on a Class 3 felony. See 720 ILCS 5/24-1(c)(1.5).

Facts

School officials saw defendant standing outside the school in a black uniform and a gun in his holster.

Police were called.

Was This Gun Law Constitutional?

The dispositive issue on appeal is the constitutionality of the 2012 version of section 24-1 of the Code, which provides, in relevant part:

“(a) A person commits the offense of unlawful use of weapons when he knowingly: * * * (4) Carries or possesses in any vehicle or concealed on or about his person except when on his land or in his own abode *** any pistol, revolver, stun gun or taser or other firearm, except that this subsection (a) (4) does not apply to or affect transportation of weapons that meet one of the following conditions: * * * (iii) are unloaded and enclosed in a case, firearm carrying box, shipping box, or other container by a person who has been issued a currently valid Firearm Owner’s Identification Card; or * * * (10) Carries or possesses on or about his person, upon any public street, *** any pistol, revolver, stun gun or taser or other firearm, except that this subsection (a)(10) does not apply to or affect transportation of weapons that meet one of the following conditions: (iii) are unloaded and enclosed in a case, firearm carrying box, shipping box, or other container by a person who has been issued a currently valid Firearm Owner’s Identification Card. * * *

(b) Sentence. A person convicted of a violation of subsection 24-1(a)(1) through (5), [or] subsection 24-1(a)(10) *** commits a Class A misdemeanor. *** (c) Violations in specific places. *** (1.5) A person who violates subsection 24-1(a)(4), 24-1(a)(9), or 24­ 1(a)(10) *** on any public way within 1,000 feet of the real property comprising any school, public park, courthouse, public transportation facility, or residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development commits a Class 3 felony.”

720 ILCS 5/24-1 (West 2012).

Before The Law Change

Defendant was convicted of subsections (a)(4) and (a)(10) before they were amended in 2015 to exclude weapons carried in accordance with the Firearm Concealed Carry Act by someone with a valid license under that act. See Pub. Act 99-29 (eff. July 10, 2015) (amending 720 ILCS 5/24-1).

Felony Conviction

These offenses would ordinarily be Class A misdemeanors, but because they were committed within 1000 feet of a school, they were enhanced to Class 3 felonies, per subsection (c)(1.5).

People v. Chariez

Here, just as in Chairez, the State’s public-interest justification for the firearm restriction within 1000 feet of a school is to prevent crime and protect children, both of which the supreme court acknowledged are “important public concerns.” Id. ¶ 52.

See Episode 457 - People v. Chairez, 2018 IL 121417 (February) (Gun ban prohibiting guns within 1,000 feet of a park found unconstitutional).

Same Poor Rationale

The State argues that the 1000 foot ban is closely tailored to meet this goal, citing various statistics in support of its proposition.

Significantly, the supreme court rejected the relevance of this identical data in Chairez, stating “we see no direct correlation between the information the State provides and its assertion that a 1000-foot firearm ban around a public park protects children, as well as other vulnerable persons, from firearm violence. The State merely speculates that the proximity of firearms within 1000 feet threatens the health and safety of those in the public park.” Chairez, 2018 IL 121417.

The State’s arguments here are based on the same rationale rejected in Chairez.

The data does not reflect that the gun violence plaguing our schools was perpetrated within 1000 feet of the schools (as opposed to inside the schools themselves) or that the perpetrators of that violence were the law abiding adults whose conduct the statute regulates.

Finding

Accordingly, the State has not shown a close fit between the restriction on gun possession within 1000 feet of a school and the protection of children.

Protected Places

In arguing to the contrary, the State cites Heller, in which the Supreme Court stated that nothing in its opinion “should be taken to cast doubt on *** laws forbidding the carrying of firearms in sensitive places such as schools and government buildings,” which it described as “presumptively lawful.” District of Columbia v. Heller, 554 U.S. 570, 626-27, n.26 (2008).

But the State conflates regulations banning the carriage of weapons in certain sensitive places (e.g., schools and government buildings) with subsection (c)(1.5), which bans carriage near those places. This distinction is significant.

Areas Near Protected Places

A ban on firearms in specific places imposes less of a burden on the right to bear arms than one that extends to an area of approximately three city blocks around those same places. While a gun owner can simply choose not to enter locations deemed sensitive, it is manifestly more difficult to avoid areas within 1000 feet of those locations, particularly given that there is no notification where the restriction zone begins or ends.

Indeed, the ban at issue here, just as the ban 1000 feet around public parks at issue in Chairez, effectively operates as a total ban on the carriage of weapons for self-defense outside the home in Chicago. See Chairez, 2018 IL 121417, ¶ 55.3 As such, it runs afoul of Aguilar, in which the supreme court held that the right to carry firearms is particularly important when traveling outside the home. See Aguilar, 2013 IL 112116, ¶¶ 19-20.

Holding

For these reasons, we conclude that sections 24-1(a)(4), (c)(1.5) and 24-1(a)(10), (c)(1.5), prohibiting possession of a firearm within 1000 feet of a school are facially unconstitutional.

We further hold that this portion of the challenged statute is severable from the remaining provisions of the statute. Our holding today is narrow in that it addresses only the pre-2015 version of the UUW statute.

We reverse his convictions for unlawful use of a weapon.

The Current Law

The current version of the statute excepts from its reach those who have a valid license under the Firearm Concealed Carry Act. 720 ILCS 5/24-1(a)(4)(iv) (West 2016).

Significantly, the Firearm Concealed Carry Act continues to prohibit the possession of firearms in “[a]ny building, real property, and parking area under the control of a public or private elementary or secondary school” (430 ILCS 66/65(a)(1) (West 2016)), even for those with valid licenses.

At oral argument, counsel for Green did not take issue with the reasonableness of these prohibitions. And so the limited issue presented here is what burdens the legislature may impose on the rights of law-abiding citizens to bear arms on public ways adjacent to school property.

Reluctantly Reverse

Illinois law, as it presently stands, contains no provisions that define a perimeter around sensitive places, like parks and schools, where even those authorized to carry weapons in public may not enter. If not addressed, the price of the right of law-abiding citizens to carry weapons in public will render it necessary to make fortresses out of places like schools, hospitals, churches, and public housing, with little positive effect on public safety. A bullet fired by an armed security guard can as easily kill a child, patient, or worshiper as one fired by a criminal. And although Green was lawfully authorized to carry a weapon, we can conceive of no reason why his right to do so should outweigh the State’s interest in the safety of school children on public ways adjacent to school property, particularly at dismissal time. It is imperative for the legislature to undertake a nuanced, evidence-based study of measures designed to protect our citizens from gun violence in the vicinity of sensitive public places without unnecessarily burdening the exercise of the second amendment rights of those lawfully authorized to carry weapons in public.

What’s The Best Way To Undo Some Improper Clerk Fines? (Helpful Fines & Costs Chart)

Jul 11, 2018 08:46

Description:

People v. Vara, 2018 IL 121823 (June). Episode 511 (Duration 8:45)

Supreme Court says appellate courts don't have jurisdiction to fix improper fines imposed by the circuit clerk.

Gist

18 months after his conviction the circuit clerk imposed certain fines on defendant. He challenged them on appeal because they were not court ordered.

Clerk Exceeded Authority

As set forth above, the clerk of the circuit court of Stephenson County exceeded his statutorily prescribed authority by recording mandatory fines against defendant that were not imposed by the trial judge at the time of sentencing.

That action was not the entry of a judgment but was, instead, the erroneous recording of the circuit court’s judgment.

Analysis

Because the circuit clerk had no authority to levy any fines against defendant, the recording of the additional fines was invalid and unenforceable.

However, the fact that the clerk’s action was improper does not mean that defendant can challenge the unauthorized fines through the appeal process. The appellate court is constitutionally vested with jurisdiction to review final judgments entered by circuit courts.

The recording of a fine is a clerical, ministerial function and is not a judgment—void or otherwise. Therefore, the improper recording of a fine is not subject to direct review by the appellate court.

Jurisdiction

Accordingly, we agree with the State that the appellate court lacked jurisdiction to review the clerk’s recording of mandatory fines that were not included as part of the circuit court’s final judgment.

Holding

Where the appellate court has addressed the merits of a case over which it had no jurisdiction, we must vacate that court’s judgment and dismiss the appeal. Any questions as to the accuracy of the data entries included in the payment status information must be resolved through the cooperation of the parties and the circuit clerk or by the circuit court in a mandamus proceeding. See People ex rel. Senko v. Meersman, 2012 IL 114163, ¶ 9 (recognizing that a writ of mandamus is a judicial order used to compel a public official to perform a nondiscretionary, ministerial duty); see also Dennis E. v. O’Malley, 256 Ill. App. 3d 334, 346 (1993) (holding that an action for mandamus can be used to compel a circuit clerk to comply with statutory duties).

Another Admonishment To Clerks

However, we take this opportunity to firmly reiterate our admonishment to circuit clerks that they may not, on their own initiative, assess any criminal fines or fees that must be imposed by a court. See Gutierrez, 2012 IL 111590, ¶ 26. Such overstepping by circuit clerks of their statutory authority cannot be condoned.

The Dissent

Holy crap read the strong dissent saying the majority has set defendant’s back unnecessarily.

Narrow Ruling

Court said,

In applying these principles to the question of appellate jurisdiction here, it is essential to bear in mind what defendant challenged in his appeal and what he did not. Defendant sought relief as to certain fines that were recorded by the circuit clerk on the payment status information sheet but were not referenced by the circuit court. Defendant did not attack the validity of his conviction, his prison sentence, or the fines imposed by the circuit court at the time of sentencing. Thus, this case presents the anomalous circumstance in which a defendant has filed an appeal seeking to uphold the judgment entered by the circuit court.

See Also These Cases With Fines & Costs Chart People v. Williams, 2013 IL App (4th) 120313 (June) People v. Johnson, 2015 IL App (3d) 140364 (December)

Is The State Charging These SORA Cases All Wrong?

Jul 10, 2018 09:59

Description:

People v. Burchell, 2018 IL App (5th) 170079 (April). Episode 510 (Duration 9:59)

State's SORA complaint was insufficient.

Gist

Defendant is successful with this motion to dismiss.

The Illinois Sex Offender Registration Act (SORA)

Found within section 3(a) of SORA is a paragraph that states, in its entirety:

“A sex offender or sexual predator who is temporarily absent from his or her current address of registration for 3 or more days shall notify the law enforcement agency having jurisdiction of his or her current registration, including the itinerary for travel, in the manner provided in Section 6 of this Act for notification to the law enforcement agency having jurisdiction of change of address.”

730 ILCS 150/3(a).

As the State aptly notes, section 6 explains how to notify a law enforcement agency having jurisdiction of a change of address but does not specify a time frame for so doing, instead stating that the change of address notification must be made

“within the time period specified in Section 3”.

730 ILCS 150/6.

Charge

The state tried to charge defendant with a version of failure to register.

The defendant was charged, in a one-count information, with “Unlawful Failure of Sex Offender to Report Absence From Address of Registration.” The State further alleged that the defendant committed the offense of “Unlawful Failure of Sex Offender to Report Absence From Address of Registration” during the time frame of “on, about or between the 12th day of November, 2016, through the 12th day of February, 2017” in Clinton County when the defendant “knowingly failed to report within 3 days, in person, to the *** agency of jurisdiction of his last known address, that he was temporarily absent from his current address of registration *** for 3 or more days.”

Right To Be Informed

As the Illinois Supreme Court has recognized, an individual accused of a crime “has a fundamental right, under both the Federal Constitution (U.S. Const., amend. VI) and the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 8), to be informed of the ‘nature and cause’ of criminal accusations made against” that individual. People v. DiLorenzo, 169 Ill. 2d 318, 321 (1996).

The failure to charge an offense “implicates due process concerns.” 

Charges Must State An Offense

Section 114-1(a)(8) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/114-1(a)(8)) provides that,

“[u]pon the written motion of the defendant made prior to trial before or after a plea has been entered,” the trial court may dismiss an information if “[t]he charge does not state an offense.”

This court has noted that, pursuant to the Code, to sufficiently allege the commission of an offense, the charging instrument must

state the name of the offense cite the statutory provision alleged to have been violated set forth the nature and elements of the offense charged state the date and county of the offense and state the name of the accused.

See, e.g., People v. Terry, 342 Ill. App. 3d 863, 867 (2003); see also 725 ILCS 5/111-3(a).

The purpose of the Code’s requirements “is to inform the accused of the nature of the offense with which he is charged so that he may prepare a defense and to assure that the charged offense may serve as a bar to subsequent prosecution arising out of the same conduct." The Illinois Supreme Court has held that the pivotal question when evaluating the sufficiency of a charging instrument is “whether there was sufficient particularity to allow the accused to prepare a defense.” People v. Klepper, 234 Ill. 2d 337, 351 (2009).

Strict Compliance

When the sufficiency of the charging instrument is attacked in a pretrial motion, our de novo standard of review requires us to determine whether the instrument strictly complies with the Code.

General &  Specific Offenses

If the statute defining an offense specifies the type of conduct prohibited, the particular act at issue need not be alleged, and the charging instrument may simply set out the offense in the language of the statute.

However, if the statute defines the offense only in general terms, a charge couched in the language of the statute is insufficient, and instead the facts which constitute the crime must be specifically set forth.

Must Register Before The Absence

We agree with the State that the only logical construction of the temporary absence notification requirement of section 3(a), as written, is one that requires the notification to be made on, or prior to, the third day of temporary absence.

Elsewhere in SORA, where a “grace period” for compliance with a provision of the statute exists, the legislature makes this clear.

But Must The Days Be Consecutive Or In Aggregate?

This, however, does not end our inquiry.

As the defendant points out, section 3(a) does not explicitly state whether to qualify thereunder the temporary absence in question may consist of three aggregate days of temporary absence in a calendar year (which the State, on appeal, seems to suggest is the case) or must consist of three consecutive days of temporary absence.

If a registrant is not required to make a notification unless there is a three-consecutive-day temporary absence, that registrant clearly has much more latitude than if a temporary absence of three aggregate days in a calendar year triggers the notification requirement.

For Example

For example, under a three-consecutive-day scenario, a registrant could be temporarily absent from the registered address for a two-consecutive-day period each week without ever triggering the notification requirement. Obviously, that would not be the case under a three-aggregate-day scenario.

Thus, a three-aggregate-day construction of section 3(a) would impose a greater burden, and/or restriction, on registrants.

The code is silent on this point.

Holding

The reviewing court looked at the rest of the SORA law and concluded that unless the legislature explicitly uses aggregate-day language in a particular provision of SORA, it intends to refer to consecutive days in that provision.

Analysis

Recalling that if a statute defines the offense only in general terms, a charge couched in the language of the statute is insufficient and instead the facts which constitute the crime must be specifically set forth. In this case, as explained above, section 3(a) does not explicitly specify the type of conduct that is prohibited by the statute—a temporary absence of three or more consecutive days—but instead defines the offense only in the more general terms of a temporary absence of three or more days.

The code generally requires absence for 3 or more days. It does not get into the specifics of wheather or not the days must be consecutive or in the aggregate.

The amended information in this case does not allege that the defendant was temporarily absent from his registered address for three or more consecutive days. Thus, it omits one of the elements of the offense the defendant was alleged to have committed.

Accordingly, we conclude that a charge under section 3(a) that is couched in the language of section 3(a) is insufficient and does not set forth the nature and elements of the offense charged.

Therefore, the charge does not adequately apprise the defendant of the nature of the offense with which he is charged so that he may prepare a defense and does not assure that the charged offense may serve as a bar to subsequent prosecution arising out of the same conduct.

Insufficient Complaint

In light of the fact that the offense in question here required the State to prove, as one of the elements of the offense, a temporary absence of three or more consecutive days over the course of the broad three-month time period, we do not believe that the instrument’s less-specific allegation that the defendant was temporarily absent for “3 or more days” during that time period contained sufficient particularity to allow the defendant to prepare a defense.

Therefore, the charging instrument in this case fails to strictly comply with the requirements of the Code and does not sufficiently charge an offense in this case.

For the foregoing reasons, we affirm the order of the circuit court of Clinton County that granted the defendant’s motion to dismiss the one-count information that charged him with Unlawful Failure of Sex Offender to Report Absence From Address of Registration.

The Stench Of Weed Still Supports Probable Cause For A Full Vehicle Search

Jul 9, 2018 07:04

Description:

In re O.S., 2018 IL App (1st) 171765 (June). Episode 509 (Duration 7:03)

Can the odor of weed still justify a traffic stop even after the cannabis legislation?

Charges

Minor respondent O.S. was adjudicated delinquent of the offenses of aggravated unlawful use of a weapon and unlawful possession of a weapon and committed to the Department of Juvenile Justice for an indeterminate period of time.

Facts

During the course of an encounter with Chicago police officers, minor respondent was found to be in possession of a firearm.

The minor was a passenger in the car in the front seat. They parked in front of the building. The car was running. The windows were up. The rear seat passenger had a blunt behind his ear and another burned blunt was recovered from the vehicle.

The officer's car pulled up diagonally in front of them. The driver was asked for his license and registration. The police asked the driver to roll down his window first, and that’s when the smell was even stronger.

Another officer then opened the door on the passenger side. The respondent got out, was patted down, and arrested for the concealed weapon that was recovered in his jacket—jacket pocket.

There is a no parking sign.

The Odor Of Cannabis

The officer said he smelled cannabis coming from the car parked in a no parking zone.

When the got to the car windows and started interacting with the passengers they again smelled an even stronger smell of marijuana. They also saw that the person sitting behind the respondent had a hand-rolled cigar in his ear.

See Also Episode 015 - People v. Abdur-Rhamim - Police Car Search Legal in Illinois if They Smell Marijuana, So Why is There an Illegal Traffic Stop Here? Episode 340 - Interview With Kim Bilbrey - The Magic Words That Instantly Allow An Officer To Search A Car Without A Warrant  Episode 276 - People v. Kavanaugh - You Just Can’t Ignore The Stench Of Weed…And An Accident Discovery Of The Gun

As the respondent got out of the car, he reached for his right jacket pocket. The officer said, "Don’t do that."

The officer touched the pocket, immediately realized it was a gun, and arrested the respondent. In the rear seat, a partially smoked hand-rolled blunt was recovered.

Issue

Respondent acknowledges this legal precedent; however, he submits that the odor of marijuana can no longer furnish police officers with probable cause or reasonable suspicion of criminal activity in light of the recent amendment decriminalizing the possession of small amounts of marijuana in Illinois.

The minor submits that his constitutional right to be free from unreasonable searches and seizures was violated when police officers “seized the stopped vehicle in which he was a passenger even though the driver was merely standing temporarily in a no parking zone and the smell of burnt cannabis near the vehicle did not indicate *** criminal activity.”

The Roll Up Was A Stop

Upon review, we agree with the parties.

The manner in which the police vehicle was positioned effectively blocked the idling car from driving away from the scene. In addition, we find the positioning of the officers around the idling vehicle further supports the conclusion that respondent and the other occupants were subject to an immediate seizure.

The seizure was initiated after he observed the vehicle stopped in a no parking zone and smelled cannabis coming from the direction of the idling vehicle. Upon making those two aforementioned observations— the location of the stopped vehicle and the smell emanating from that vehicle—that's when one officer instructed his partners to “put a stop” to the vehicle.

The Law On The Odor

It is well established that distinctive odors can be “persuasive evidence” of criminal activity. People v. Stout, 106 Ill. 2d 77, 87 (1985).

More specifically, Illinois courts have repeatedly recognized that the distinctive smell of burning cannabis emanating from a vehicle will provide police officers familiar with and trained in the detection of controlled substances with probable cause to search a vehicle and all persons seated therein. See, e.g., id.; People v. Zayed, 2016 IL App (3d) 140780, ¶ 22; People v. Williams, 2013 IL App (4th) 110857, ¶ 34; People v. Hansen, 326 Ill. App. 3d 610, 615 (2001); People v. Boyd, 298 Ill. App. 3d 1118, 1122 (1998).

Such searches are justified pursuant to the “automobile exception” to the warrant requirement, which is derived from the recognition that there is a diminished expectation of privacy with respect to automobiles. Stout, 106 Ill. 2d at 86.

Defendant's Argument

Respondent acknowledges this legal precedent; however, he submits that the odor of marijuana can no longer furnish police officers with probable cause or reasonable suspicion of criminal activity in light of the recent amendment decriminalizing the possession of small amounts of marijuana in Illinois.

See Pub. Act 99-697, § 40, (eff. July 29, 2016) (amending section 4 of the Illinois Cannabis Control Act (720 ILCS 550/4).

See Also

Episode 207 - Interview With Ken Wang - Give Us 24 Minutes And You’ll Get a Comprehensive Debriefing on The New Illinois Marijuana Law

Episode 251 - Interview With Jeffrey Hall -  On The Latest Developments And Problems With The Illinois Cannabis Decriminalization Law

Analysis

The recent amendment to the Cannabis Control Act simply treats the possession of “not more than 10 grams of any substance containing cannabis” as a “civil law violation” punishable by a fine. Id. § 4(a).

It is still very much "unlawful for any person knowingly to possess cannabis."

Decriminalization Not Legalization

Because decriminalization is not synonymous with legalization, even though possession of less than 10 grams of cannabis is no longer a crime in Illinois, it remains illegal.

In This Case...

The record establishes that at the time of the seizure, the police had smelled the distinctive odor of marijuana coming from the direction of a car that was idling in a no parking zone.

Given that Illinois prohibits the knowing possession of marijuana and prohibits operating a vehicle while impaired and under the influence of marijuana, the distinctive odor of marijuana was indicative of criminal activity and provided the officers with reasonable suspicion to believe that criminal activity was afoot.

When the officers approached the idling vehicle and spoke to the occupants through lowered windows, the odor of marijuana became more apparent. In addition, an officer was able to see a marijuana cigarette tucked behind the ear of the rear seat passenger. Such observations provided the officers with probable cause to search the vehicle and the vehicle’s occupants.

Holding

We therefore conclude that case law holding that the odor of marijuana is indicative of criminal activity remains viable notwithstanding the recent decriminalization of the possession of not more than 10 grams of marijuana.

Applying the aforementioned viable legal precedent, we further find that the search and seizure of respondent did not run afoul of the fourth amendment.

Accordingly, we find that the circuit court properly denied respondent’s motion to suppress.

You Have An Expectation Of Privacy In Your Cell Site Location Information

Jul 5, 2018 17:52

Description:

Carpenter v. United  States, SCOTUS June 2018. Episode 508 (Duration 17:52)

Police need a warrant to capture your CSLI.

SCOTUS on cell site location information

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  The Charges

Defendant was charged with six counts of robbery and an additional six counts of carrying a firearm during a federal crime of violence.

He was convicted and sentenced to more than 100 years in prison.

Issue

This case presents the question whether the Government conducts a search under the Fourth Amendment when it accesses historical cell phone records that provide a comprehensive chronicle of the user’s past movements.

Defendant argued the Government’s seizure of the records violated the Fourth Amendment because they had been obtained without a warrant supported by probable cause.

Cell Site Location Information
(The Technology)

Cell phones continuously scan their environment looking for the best signal, which generally comes from the closest cell site.

Most modern devices, such as smartphones, tap into the wireless network several times a minute whenever their signal is on, even if the owner is not using one of the phone’s features. Each time the phone connects to a cell site, it generates a time-stamped record known as cell-site location information (CSLI).

The precision of this information depends on the size of the geographic area covered by the cell site. The greater the concentration of cell sites, the smaller the coverage area. As data usage from cell phones has increased, wireless carriers have installed more cell sites to handle the traffic. That has led to increasingly compact coverage areas, especially in urban areas.

Wireless carriers collect and store CSLI for their own business purposes.

The Investigation

The FBI was investigating a series of robberies of Radio Shack and TMobile stores in Detroit.

They obtained the suspects CSLI under the Stored Communications Act. That statute, as amended in 1994, permits the Government to compel the disclosure of certain telecommunications records when it “offers specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation.” 18 U. S. C. §2703(d).

That showing falls well short of the probable cause required for a warrant.

Altogether the Government obtained 12,898 location points cataloging Carpenter’s movements—an average of 101 data points per day.

His Location Convicted Him

The prosecution produced maps that placed the defendant’s phone near four of the charged robberies. In the Government’s view, the location records clinched the case: They confirmed that he was “right where the . . . robbery was at the exact time of the robbery.” 

The Fourth Amendment

 The Fourth Amendment protects

“[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

The “basic purpose of this Amendment,” our cases have recognized, “is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” For much of our history, Fourth Amendment search doctrine was “tied to common-law trespass” and focused on whether the Government “obtains information by physically intruding on a constitutionally protected area.” United States v. Jones, 565 U. S. 400, 405, 406, n. 3 (2012).

More recently, the Court has recognized that “property rights are not the sole measure of Fourth Amendment violations.” Soldal v. Cook County, 506 U. S. 56, 64 (1992). In Katz v. United States, 389 U. S. 347, 351 (1967), we established that “the Fourth Amendment protects people, not places,” and expanded our conception of the Amendment to protect certain expectations of privacy as well.

Expectation of Privacy

When an individual “seeks to preserve something as private,” and his expectation of privacy is “one that society is prepared to recognize as reasonable,” we have held that official intrusion into that private sphere generally qualifies as a search and requires a warrant supported by probable cause.

Point Is To Restrict Government

Our cases have recognized some basic guideposts.

First, that the Amendment seeks to secure “the privacies of life” against “arbitrary power.” Boyd v. United States, 116 U. S. 616, 630 (1886).

Second, and relatedly, that a central aim of the Framers was “to place obstacles in the way of a too permeating police surveillance.” United States v. Di Re, 332 U. S. 581, 595 (1948).

Two Lines Of Cases

This sort of digital data—personal location information maintained by a third party—does not fit neatly under existing precedents. Instead, requests for cell-site records lie at the intersection of two lines of cases, both of which inform our understanding of the privacy interests at stake.

Expectation of Privacy In
Physical Location & Movement

The first set of cases addresses a person’s expectation of privacy in his physical location and movements.

In United States v. Jones, FBI agents installed a GPS tracking device on Jones’s vehicle and remotely monitored the vehicle’s movements for 28 days. The Court decided the case based on the Government’s physical trespass of the vehicle. 565 U. S., at 404–405.

Since GPS monitoring of a vehicle tracks “every movement” a person makes in that vehicle, the concurring Justices concluded that “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy”—regardless whether those movements were disclosed to the public at large.

Third Party Doctrine
(Shared Information Is Not Private)

In a second set of decisions, the Court has drawn a line between what a person keeps to himself and what he shares with others.

We have previously held that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith, 442 U. S., at 743–744. This third-party doctrine largely traces its roots to Miller.

Bank Records

While investigating Miller for tax evasion, the Government subpoenaed his banks, seeking several months of canceled checks, deposit slips, and monthly statements. See United States v. Miller, 425 U. S. 435, 443 (1976).

Pen Register

Three years later, Smith applied the same principles in the context of information conveyed to a telephone company. The Court ruled that the Government’s use of a pen register—a device that recorded the outgoing phone numbers dialed on a landline telephone—was not a search. See Smith v. Maryland, 442 U. S. 735.

The Court explained, such an expectation “is not one that society is prepared to recognize as reasonable.”

Intersection Of The Cases

The question we confront today is how to apply the Fourth Amendment to a new phenomenon:

the ability to chronicle a person’s past movements through the record of his cell phone signals.

Such tracking partakes of many of the qualities of the GPS monitoring we considered in Jones. Much like GPS tracking of a vehicle, cell phone location information is detailed, encyclopedic, and effortlessly compiled.

2. At the same time, the fact that the individual continuously reveals his location to his wireless carrier implicates the third-party principle of Smith and Miller. But while the third-party doctrine applies to telephone numbers and bank records, it is not clear whether its logic extends to the qualitatively different category of cell-site records.

After all, when Smith was decided in 1979, few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements.

Analysis-Even Greater
Privacy Concerns

The location information obtained from Carpenter’s wireless carriers was the product of a search.

A person does not surrender all Fourth Amendment protection by venturing into the public sphere. To the contrary, “what [one] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz, 389 U. S., at 351–352.

Although such records are generated for commercial purposes, that distinction does not negate Carpenter’s anticipation of privacy in his physical location. Mapping a cell phone’s location over the course of 127 days provides an all-encompassing record of the holder’s whereabouts. As with GPS information, the timestamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his “familial, political, professional, religious, and sexual associations.” These location records “hold for many Americans the ‘privacies of life.’” Riley, 573 U. S., at ___ (slip op., at 28) (quoting Boyd, 116 U. S., at 630).

In fact, historical cell-site records present even greater privacy concerns than the GPS monitoring of a vehicle we considered in Jones.

Feature of Human Anatomy

Unlike the bugged container in Knotts or the car in Jones, a cell phone—almost a “feature of human anatomy,” Riley, 573 U. S., at ___ (slip op., at 9)—tracks nearly exactly the movements of its owner. While individuals regularly leave their vehicles, they compulsively carry cell phones with them all the time.

A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales.

Like An Ankle Monitor
That Travels Backwards In Time

Accordingly, when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user.

Moreover, the retrospective quality of the data here gives police access to a category of information otherwise unknowable. With access to CSLI, the Government can now travel back in time to retrace a person’s whereabouts, subject only to the retention polices of the wireless carriers, which currently maintain records for up to five years.

Everyone Is Tracked

Critically, because location information is continually logged for all of the 400 million devices in the United States—not just those belonging to persons who might happen to come under investigation— this newfound tracking capacity runs against everyone.

Unlike with the GPS device in Jones, police need not even know in advance whether they want to follow a particular individual, or when. Whoever the suspect turns out to be, he has effectively been tailed every moment of every day for five years, and the police may—in the Government’s view—call upon the results of that surveillance without regard to the constraints of the Fourth Amendment.

Only the few without cell phones could escape this tireless and absolute surveillance.

Seismic Shift In Technology

Accordingly, when the Government accessed CSLI from the wireless carriers, it invaded Carpenter’s reasonable expectation of privacy in the whole of his physical movements.

The Government’s position fails to contend with the seismic shifts in digital technology that made possible the tracking of not only this defendant's location but also everyone else’s, not for a short period but for years and years.

Sprint Corporation and its competitors are not your typical witnesses. Unlike the nosy neighbor who keeps an eye on comings and goings, they are ever alert, and their memory is nearly infallible. There is a world of difference between the limited types of personal information addressed in Smith and Miller and the exhaustive chronicle of location information casually collected by wireless carriers today.

Holding

Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.

The Government thus is not asking for a straightforward application of the third-party doctrine, but instead a significant extension of it to a distinct category of information.

Yet this case is not about “using a phone” or a person’s movement at a particular time. It is about a detailed chronicle of a person’s physical presence compiled every day, every moment, over several years. Such a chronicle implicates privacy concerns far beyond those considered in Smith and Miller.

We therefore decline to extend Smith and Miller to the collection of CSLI. Given the unique nature of cell phone location information, the fact that the Government obtained the information from a third party does not overcome Carpenter’s claim to Fourth Amendment protection.

The Government’s acquisition of the cell-site records was a search within the meaning of the Fourth Amendment.

Get A Warrant

Having found that the acquisition of Carpenter’s CSLI was a search, we also conclude that the Government must generally obtain a warrant supported by probable cause before acquiring such records.

The standard in the Stored Communications Act is not a permissible mechanism for accessing historical cell-site records. Before compelling a wireless carrier to turn over a subscriber’s CSLI, the Government’s obligation is a familiar one—get a warrant.

Subpoena Not Going To Do It

If the choice to proceed by subpoena provided a categorical limitation on Fourth Amendment protection, no type of record would ever be protected by the warrant requirement.

Under JUSTICE ALITO’s view, private letters, digital contents of a cell phone—any personal information reduced to document form, in fact—may be collected by subpoena for no reason other than “official curiosity.” This is certainly not to say that all orders compelling the production of documents will require a showing of probable cause.

The Government will be able to use subpoenas to acquire records in the overwhelming majority of investigations.

Exigent Circumstances Still Apply

We hold only that a warrant is required in the rare case where the suspect has a legitimate privacy interest in records held by a third party.

Further, even though the Government will generally need a warrant to access CSLI, case-specific exceptions may support a warrantless search of an individual’s cell-site records under certain circumstances. 

One well recognized exception applies when ‘“the exigencies of the situation” make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment."

Fleeing Suspect, Imminent Harm, Destruction of Evidence

Such exigencies include the need to pursue a fleeing suspect, protect individuals who are threatened with imminent harm, or prevent the imminent destruction of evidence.

As a result, if law enforcement is confronted with an urgent situation, such fact-specific threats will likely justify the warrantless collection of CSLI. Lower courts, for instance, have approved warrantless searches related to

bomb threats active shootings and child abductions.

Our decision today does not call into doubt warrantless access to CSLI in such circumstances.

This Is A Narrow Decision

Further, the decision today is a narrow one.

-We do not express a view on matters not before us: real-time CSLI or “tower dumps” (a download of information on all the devices that connected to a particular cell site during a particular interval).

-We do not disturb the application of Smith and Miller or call into question conventional surveillance techniques and tools, such as security cameras.

-Nor do we address other business records that might incidentally reveal location information.

-Further, our opinion does not consider other collection techniques involving foreign affairs or national security.

Conclusion

We decline to grant the state unrestricted access to a wireless carrier’s database of physical location information. In light of the deeply revealing nature of CSLI, its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection. The Government’s acquisition of the cell-site records here was a search under that Amendment. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

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June 2018 Speed Round (The Illinois Criminal Case Law Round Up)

Jul 3, 2018 21:03

Description:

This is the June 2018 Illinois criminal case law audio round-up (the fast case law summary). Episode 507 (Duration 21:03)

Click here to download the written summary of these cases:  June 2018 Round-Up 

The June 2018 Top Illinois Criminal Law Cases (The Monthly Round-Up)

Here's a quick snapshot of the top cases:

1. Carpenter v. United States

Police need a warrant to phone cell site data.

2. People v. Varga

Supreme Court says appellate courts don't have jurisdiction to fix improper fines imposed by the circuit clerk.

3. People v. Wilkinson 

Defendant beats back a racist aggressor; he's still doing 3 years.

4. People v. Middleton

Reversible error for the state to spring a doctored image before the jury on rebuttal argument.

5. People v. Krisik

Forfeiture by wrongdoing meant all her statements were coming in.

6. People v. Pablo 

The state was allowed to withdraw a stipulation and this really upset the defense.

7. People v. McArthur

17 year old held for 73 hours before a probably casue hearing nonetheless gave a voluntary confession.

8. People v. Haiman

Defendant has to be better than just say she had a prescrption to the pills.

9. In re Maurice J.

Officer not knowing the traffic law he says he was enforceing is not the same as being reasonably confused about the law.

10. In re O.S. 

Can the odor of weed still justify a traffic stop even after the cannabis legislation?

11. People v. Moore 

Second District goes with the Fourth District on burglary or retail store cases.

12. People v. Cunningham 

Dismissal of the charges was not warranted when police destroyed some of the evidence.

13. People v. Green

Another gun provision is declared unconstitutuional (this version was ineffect before conceal and carry changes).

14. People v. Bell 

This UUW provision in a park is found constitutional.

15. In re J'Lavon T. 

No contact order is unreasonable becasue the judge didn't look at the minor's specific life, associations, and contacts with gangs.

16. In re K.M. 

More "no gang contact" orders are found unconstitutional.

17. In re Jawan 

This "no gang activity" order was found constitutional.

18. People v. Amans

Defendant gets prison, then probation, then prison for having a grow room in his basement.

19. People v. Gauger 

Conviction for Stalking stands even though one small provision of the statute is unconstitutional.

Mistake Of Law Doctrine Requires A Genuinely Ambiguous Law

Jul 2, 2018 08:19

Description:

In re Maurice J., 2018 IL App (1st) 172123 (June). Episode 506 (Duration 8:18)

Officer not knowing the traffic law he says he was enforcing is not the same as being reasonably confused about the law.

Gun Case

The minor respondent was charged in juvenile court and adjudicated for UUW under 21. The minor was sent to JIDOC

Facts

Police see a car “go around a speed bump.” 

Specifically, the driver went toward the curb so that one set of tires was on the speed bump and the other set was level. Although the driver steered around the bump, he did not swerve.

The Stop & The Gun

After the traffic violation, the officer  activated the emergency equipment in order to curb the vehicle.

From 12 to 15 feet away, he “observed the front passenger pass a handgun to the rear passenger.”

The officer could see the gun because the police car was an elevated SUV and illuminated the inside of the car.

Everyone Removed

The driver and respondent, who was in the front passenger seat, were immediately removed form the car and handcuffed. The officer testified that he knew to look for the firearm “[i]n the direction [that] the offender gave it to the co-offender.”

Moreover, the officers searched the occupants and found a firearm in a purse. 

Wells was released with a traffic citation for driving around the speed bump.

Issue

On appeal, respondent first asserts that the trial court erred in denying his motion to suppress evidence because it was not reasonable for an officer to believe that the driver committed a traffic violation.

Specifically, the testimony failed to show that the car drove upon or through private property to avoid a traffic control device.

Fourth Amendment

Under the fourth amendment and the Illinois Constitution of 1970, individuals have the right to be free from unreasonable searches and seizures. U.S. Const., amend. IV, and Ill. Const. 1970, art. I, § 6.

In addition, the stop of a vehicle for a suspected violation of law constitutes a seizure, regardless of whether the seizure is brief and is made for a limited purpose. People v. Gaytan, 2015 IL 116223, ¶ 20. Pursuant to Terry v. Ohio, 392 U.S. 1 (1968), police officers may conduct a brief, investigatory stop if the officer reasonably believes that the individual in question committed or is about to commit a crime.

Mistakes Of Law

In Heien v. North Carolina, 574 U.S. ___, ___, 135 S. Ct. 530, 536 (2014), the United States Supreme Court held that a reasonable suspicion can be supported by an officer’s misunderstanding of the scope of a law.

Consequently, a police officer does not violate the fourth amendment when he stops a vehicle based on an objectively reasonable, albeit mistaken, belief that the driver’s conduct leading to the stop violated traffic laws. 

This reflects that the fourth amendment permits government officials to make some mistakes.

...but

The Court stated in Heien, “an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce.” Heien, 574 U.S. at ___, 135 S. Ct. at 539.

It's An Objective Standard

That being said, courts apply an objective standard in determining whether a police officer made a reasonable mistake of law, without examining the particular officer’s subjective understanding.

Respondent essentially contends that, even taking the officer’s account as true, the traffic stop lacked a reasonable articulable basis.

The Traffic Code On Avoiding Traffic Control Devices

Section 11-305 of the Illinois Vehicle Code states, in pertinent part, that

“[i]t is unlawful for any person to leave the roadway and travel across private property to avoid an official traffic control device.”

625 ILCS 5/11-305(b).

Thus, section 11-305 clearly applies only where a driver enters private property.

Accordingly, the ordinance unambiguously applies only where the driver enters private property or an alley, or drives on a traffic island.

This Is Pretty Clear

We find the distinction between the street itself and private property, alleys, or traffic islands to be obvious.

The State nonetheless argues that the officer could have reasonably, albeit mistakenly, believed that this was a violation of the ordinance because maneuvering around a speed bump while remaining in the roadway is similar to driving onto a traffic island. While vehicles are permitted to be driven on a public street in most instances, they should almost never be driven on a raised traffic island.

We categorically disagree.

No Mistake Of Law Here

 The case before us does not present an officer’s misunderstanding of the law. Instead, it presents an officer’s failure to know the law.

Here the officer’s mistaken belief that the driver committed a traffic violation was unreasonable where Wells never left the street to avoid a speed bump.

Holding

It follows that the seizure of respondent as an occupant in Wells’s car, which occurred when the police activated their lights and siren, was also unreasonable. Consequently, respondent was entitled to the suppression of such evidence. 

Accordingly, we reverse the adjudication of delinquency outright. 

See Also

Episode 073 - People v. Gaytan (ball hidge on a license plate blocking the numbers)

Episode 238 - People v. Theus (defendant fails to signal when rodeway jumped from one to two lanes)

Heien v. North Carolina, 135 S. Ct. 530 (2014), (truck stopped because of broken tail light)

114 Failure To Register As A Sex Offender Reporting is Different Than Registering

Jul 2, 2018 04:25

Description:

People v. Brock, 2015 IL App (1st) 133404 (November 2015). Episode 114 (Duration: 4:24)

Reporting is different than registering, and Defendant is required to have documentation with his new address in order to register that address.

The sex offender registration act (730 ILCS 150/1 et seq.) imposes two separate requirements. The first imposes a general duty to register on all sex offenders. 730 ILCS 150/3. The second, is the duty to report. 730 ILCS 150/6. The statute also imposes a separate and additional duty on those sex offenders specifically adjudicated "dangerous" or "violent," and it is clear from the language of the statute that the legislature intended to distinguish a duty to report that does not simply duplicate the registration requirement.

Thus, the language of the statute clearly distinguishes "report" and "register" and when it requires one, or both, it does so by expressly stating such requirement. Logically, one can "report" without registering, but may not "register" without reporting, because registration requires the creation of a signed writing.

This defendant did report on time but was turned away because he could not pay the registration fee. However, defendant did violate the failure to register a new address provision because he did not have an ID or some type of documentation with the new address as is required. See 730 ILCS 150/3(c)(5).

Additionally, the defendant had only two prior felony convictions—one for aggravated criminal sexual assault and a second for indecent liberties with a child. The indictment listed defendant's prior conviction for aggravated criminal sexual assault as the basis for establishing his duty to comply with the Act. Establishing a defendant's duty to register under the Act is an element of the offense.

This conviction was also necessarily used as one of his two prior felony convictions to mandate Class X sentencing. The sentence was improper. See People v. Hall, 2014 IL App (1st) 122868.

 

Second & Fourth Districts Come Out Against The Third District On The Burglary Of Retail Store Question

Jun 27, 2018 04:41

Description:

People v. Moore, 2018 IL App (2d) 160277 (June). Episode 505 (Duration 4:40)

Second District goes with the Fourth District on burglary or retail store cases.

Gist

Defendant was convicted of burglary after he and another man entered a Wal-Mart intentions to commit a theft therein.

Facts

The other man grabbed 4 bottles of liquor and put them in a diapar bag and left without paying. Defendant ran out the store shortly thereafter. He had no money on him and did not buy anything.

He was sentenced to 6 years and challenged the conviction for burglary.

Burglary

Section 19-1(a) of the Criminal Code of 2012 provides, in part, that

“[a] person commits burglary when without authority he or she knowingly enters or without authority remains within a building, *** or any part thereof, with intent to commit therein a felony or theft.”

720 ILCS 5/19-1(a).

Thus, under the statute, one can commit a burglary in one of two ways:

(1) by entering without authority and with the intent to commit a felony or theft or
(2) by remaining without authority and with the intent to commit a felony or theft.

Defendant was charged with, and convicted of, the first type of burglary—burglary by unauthorized entry.

The Case Law

For more than 100 years, the supreme court has recognized that entering a retail establishment with the intention of committing a theft constitutes burglary. Authority to enter a business building, or other building open to the public, extends only to those who enter with a purpose consistent with the reason the building is open.

Thus, patrons of a business lack the authority to enter if they intend to commit a theft inside the establishment.

People v. Bradford

Defendant relies on People v. Bradford, 2016 IL 118674, ¶¶ 25, 31, where the supreme court declined to extend People v. Weaver, 41 Ill. 2d 434, 435 (1968) to a case of burglary by unlawfully remaining.

There, the defendant was convicted of burglary by unlawfully remaining in a Walmart store with the intent to commit a theft.

Bradford addressed only the second type of burglary: burglary by remaining.

Analysis

The supreme court’s concerns about establishing when authority is revoked and when a defendant has remained in the store longer than necessary to complete the theft are simply not present in a case like this one.

Further, as noted, the historical development of the crime of burglary by remaining, the court emphasized, includes only scenarios where the defendant is discovered in a place where he or she is not authorized to be.

Finally, nothing in Bradford purports to overrule Weaver, where the court held that the burglary statute applied to the entry of an establishment otherwise open to the public (Weaver, 41 Ill. 2d at 438-39).

Holding

We agree with the Fourth District that the history and nature of the burglary-by-remaining provision distinguish it from burglary by unauthorized entry such that Bradford’s rationale cannot be mechanically applied to the latter provision. The distinction is further justified by the fact that one who enters a store with a preconceived plan to steal merchandise is at least arguably more culpable than one who, once inside a store, impulsively takes merchandise.

We follow Burlington. Affirmed.

Decline To Follow Johnson

In People v. Johnson, 2018 IL App (3d) 150352, ¶ 35, a case upon which defendant relies, the Third District came to a different conclusion than the Fourth District in Burlington. In Johnson, the Third District held that Bradford changed longstanding law and applies to cases of burglary by unauthorized entry. The court concluded that “Bradford’s physical authority test applies to all retail theft cases, regardless of when the defendant forms the intent to shoplift.”

We disagree with and do not follow Johnson.

Not The Court's Job To Limit Prosecutorial Discreation

The court’s primary concern there appears to have been that allowing the same act to be charged as either burglary or retail theft (or both) gives prosecutors “unbridled discretion.”

We, however, do not find that limiting a prosecutor’s discretion to charge a defendant when his or her conduct falls under one or more provisions is a basis to depart from more than 100 years of precedent. The state’s attorney has the responsibility of evaluating evidence and other pertinent factors and determining what, if any, offense should be charged. Further, as the Burlington court noted, “[c]oncerns over the exercise of prosecutorial discretion cannot alter the plain language of a statute.” Burlington, 2018 IL App (4th) 150642, ¶ 32.

See Also

Episode 155 – People v. Bradford – Pimpy Burglary Is Now Off The Books 

Episode 456 – People v. Johnson – Retail Theft Statute Countermands This Class Of Burglaries

Episode 472 - People v. Burlington - Fourth District Declines To Follow Third District

A Racist, A Black Guy, And A Hammer...A Test For Criminal Justice

Jun 27, 2018 15:06

Description:

People v. Wilkinson, 2018 IL App (3d) 160173 (June). Episode 504 (Duration 15:06)

Defendant beats back a racist aggressor; now he's doing 3 years.

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Gist

A big white dude walks up to defendant’s front door with another guy. When Defendant gets to the door the white dude punches defendant who is African American. A struggle ensues. Defendant grabs a hammer and hits defendant in the head. Either he doesn’t stop and repeatedly hits him or the struggle ensues.

Issue

On appeal, defendant argues that the evidence presented at trial was insufficient to prove beyond a reasonable doubt that defendant did not reasonably believe that the force he used was necessary to prevent great bodily harm.

The parties on appeal limit their arguments to the reasonableness of defendant’s belief that striking the victim with a hammer was necessary to prevent great bodily harm to himself.

Facts

Big white dude was jacked up.

The victim testified that he suffered fractures to his eye socket, sinus cavity, and “nose socket” as a result of the altercation. Looks like it came from one blow with the hammer.

He required 12 staples and a number of stitches. A tendon was also severed. He continued to suffer from eye spasms and headaches.

The Verdict

The State concedes “that the record in this case supports defendant’s and trial court’s beliefs that Cook was the initial aggressor. More pointedly, the State concedes that Cook punched defendant in the face. The State, however, argues that defendant used “excessive force,” or “an amount of force far greater than needed to neutralize the threat posed by Cook.”

Here, the jury was free to conclude that defendant struck the victim repeatedly in the head with a hammer while he was on top of him and the victim was trying to get away.

It follows that the jury could rationally conclude that any belief defendant held at that point that those hammer strikes were necessary to protect himself was unreasonable.

Racist Victim

The trial court noted that “the elephant in the room” was that “this case [was] about being black.” The court found it clear that the victim did not like defendant because of his race, based on his comments that defendant was not welcome in the neighborhood. The court noted that defendant had been made well aware of that racial animosity before the physical altercation.

The victim’s untruthfulness about his initial intentions did not fatally undermine his credibility as to his later actions. Indeed, it is plausible that a hammer strike to his face, leaving a large gash between his eyes, was enough to convince the initially aggressive victim that it was time to leave.

In sum, testimony from the victim in this case tended to show that defendant continued to strike him with a hammer after any threat had subsided. The jury could reasonably have concluded that this testimony was credible and, in turn, that defendant did not reasonably believe those continued hammer strikes were necessary to prevent great bodily harm to himself.

Self Defense?

Defendant claimed self defense.

The court concluded that victim was the aggressor.

The court noted that while defendant had been initially justified in using force, the State had proven beyond a reasonable doubt that he used “excessive force in the lawful act of self-defense.” The court commented that defendant would not have been guilty if he had only struck the aggressor with the hammer “once or twice.” The court made clear that it was sentencing defendant not for initially striking the victim with the hammer, but “for not stopping.”

Police Investigation

The court also condemned the actions of the investigating officers in the case, opining:

“[T]he police already made up their mind what the charge was before they ever spoke to you. They didn’t even come and ask you what happened. They didn’t come and ask your girlfriend what happened, even though she was the one that called the police. They just went directly to the victim and got his side of the story and the case was opened, and closed, and shut.”

Sentence

The court sentenced defendant to a term of three years’ imprisonment.

Statue on Self Defense

 Section 7-1(a) of the Criminal Code of 2012 holds as follows:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.”

720 ILCS 5/7-1(a).

The section further provides that a person who is an “aggressor” may not invoke self-defense. Id. § 7-1(b).

Self Defense Elements

A claim that self-defense justified a use of force that was likely to cause great bodily harm contemplates six distinct elements:

(1) unlawful force was threatened against a person,
(2) the person threatened was not the aggressor,
(3) the danger of great bodily harm was imminent,
(4) the use of force was necessary,
(5) the person threatened actually and subjectively believed a danger existed that required the use of the force applied, and
(6) the beliefs of the person threatened were objectively reasonable.

Once a defendant raises the affirmative defense of self-defense, the burden shifts to the State to prove beyond a reasonable doubt that defendant did not act in self-defense.

The State satisfies this burden if it negates any of the six elements beyond a reasonable doubt.

Holding

We find the State produced evidence sufficient to prove beyond a reasonable doubt that defendant was not acting in self-defense. The judgment of the circuit court of Whiteside County is affirmed.

But See The Dissent

The dissent says he was only hit once with the hammer.

Defendant's Injuries

The photographs showed a swollen nose and a knot on defendant’s head, apparently confirming the punch to his face, and “welt-like marks on his right arm, redness and a small wound on his left arm, and scrapes on his elbow, knee, and knuckles.”

The photographic evidence in the case, including the welts and redness on the Defendant’s arms, thus casts doubt upon the victim’s testimony in two ways:

(1) How did the victim have only one significant injury to his face if he was struck in the head multiple times with a hammer while defendant was on top of him? and
(2) How did the defendant acquire such a variety of injuries if the victim was merely trying to flee?

Indeed, nothing in the victim’s version explains defendant’s injuries.

In affirming, the majority not only does not address these questions; it makes no reference to the photographs at all in its analysis.

Victim's Testimony

The victim’s testimony, the most significant basis for Wilkinson’s conviction, is precisely the type of “unreasonable, improbable, or unsatisfactory” evidence that creates a reasonable doubt as to Wilkinson’s guilt.

Just One Solid Hammer Blow

Further, the majority’s holding is that the defendant was no longer acting in self-defense when, at least according to the victim, he continued to beat the victim with the hammer outside.

Yet the evidence unequivocally shows that the major wound to the victim’s face—the wound that clearly was the source of the frontal sinus fracture referenced in the charging instrument—was the result of the first, justified hammer strike.

No Serious Injuries After First Blow

To sustain a conviction on the theory that it was defendant’s continued hammer strikes that negated the reasonableness of his belief in the necessity of his actions, the State would need to prove that defendant caused great bodily harm after the point at which he was no longer reasonably defending himself.

Even accepting as true victim’s later testimony that he was merely trying to get away when defendant repeatedly struck him with the hammer outside, the photographs show that those alleged additional hammer strikes caused—at most—some cuts, scrapes, and slight bruising.

Here’s One Situation Where It’s Perfectly Fine To Lock The Courtroom Doors During A Trial

Jun 20, 2018 06:36

Description:

People v. Gore, 2018 IL App (3d) 150627 (April). Episode 502 (Duration 6:36)

Judge doesn't have to open the courtroom to the public to handle how to answer a jury question.

Charges

The State charged defendant with attempted murder (720 ILCS 5/8-4(a), 9-1(a), home invasion (id. § 19-6(a)(2)), and aggravated domestic battery.

Domestic Incident

Defendant entered his girlfriends home and, knowing that she was home, stabbed her in the neck and chest.

Defendant filed a notice of the affirmative defense of self-defense.

They had been in a relationship for 14 years and had a 12-year-old daughter together. They ended their relationship in early 2014.

Following the separation, defendant briefly lived in the home while the mom and child moved out. Eventually, defendant moved into an apartment, and she moved back into the home.

Night Of

Defendant owed her money for various expenses, including unpaid bills and some of her personal property, which he had not returned.

The victim testified that the night before the incident in question, she spent time with a man. The man slept over at her house that night. The next morning, after the man had left, she was in the bathroom when she heard the front door to the house unlock.

Defendant entered the bathroom and confronted her about the man.

The Attack

Defendant hit her in the head, knocked her down, and began choking her.

He dragged her by the hair to the kitchen, where he grabbed a knife from a drawer. They struggled over the knife, and she cut her finger. She distracted defendant by telling him that her father had just arrived at the house. When defendant went to check, she stood up and realized she had been stabbed.

She ran to a neighbor who called 911.

In The Hospital

The victim was in the hospital for six days after the incident, recovering from a stab wound to her throat, two stab wounds to her chest, and a cut on her hand.

Verdict

The jury found defendant guilty of home invasion and aggravated domestic battery, but not guilty of attempted murder.

The court sentenced defendant to 11 years’ and 7 years’ imprisonment for home invasion and aggravated domestic battery, respectively.

Jury Questions

Following closing arguments, the jury retired to deliberate. The court went back on the record when the jury asked a question. The court stated: “They have a question, and I’m reviewing that question in the presence of the defendant and his counsel and the state’s attorney.”

The question asked, with regard to the attempted murder charge, when the requisite intent had to be formed. The parties agreed that the court would answer the question by telling the jury that “it doesn’t matter when [the intent] occurred” and then reading a pattern jury instruction regarding intent.

The jury was brought into the courtroom, at which point the court stated: “Let the record show the jury is in court, but we are, I guess, kind of in open session, because I’ve closed the courtroom to outsiders. Because the jury has a question, I consider that to be a private matter.” The court then answered the question in the manner agreed to by the parties.

Later, the court went back on the record when the jury asked a second question. The court again explained that all parties were present, as was the jury, but “everyone else” had been excluded from the courtroom. The question asked for a transcript of the victim’s testimony. The court informed the jury that there was no transcript, but that the audio recording of her testimony could be replayed if the jury so wished. With the judge and parties still in the courtroom with the jury, the audio recording from portions of the victim’s testimony was replayed.

Issue

On appeal, defendant contends that the circuit court violated his sixth amendment right to a public trial when it excluded the public from the portion of proceedings in which it addressed the jury’s questions.

Public Trial

The United States and Illinois Constitutions both provide criminal defendants with the right to a “public trial.” It says, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,..." U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8.

Where applicable, the right precludes the closure of a courtroom except where it must give way to an overriding interest, “such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information.” Waller v. Georgia, 467 U.S. 39, 45 (1984) (the right did apply at a suppression hearing, and it would find 26 years later that it applied to the jury selection phase as well). See also Presley v. Georgia, 558 U.S. 209, 212-13 (2010).

What About During Jury Questions?

However, we are aware of no cases that have addressed that question and concluded that the public trial right applies when a court answers a jury’s intradeliberational questions.

Accordingly, we begin with that threshold question.

Closing A Courtroom

Before closing the courtroom, a court must consider alternatives to closure and make factual findings sufficient to support the closure. Few of the concerns identified by the case law are present in this case.

In the context of a judge answering an intradeliberational jury question, there is absolutely no concern for perjury or for encouraging witnesses to come forward. No one is sworn in, and no one testifies. There are no facts adduced, and in turn, nothing turns on resolution of any factual questions.

The proceeding, unlike a suppression hearing, does not resemble a bench trial in any way.

Further, there is no specific, self-evident public interest, such as the public’s interest in police conduct at issue in a suppression hearing or the public’s interest in knowing that a particular jury is fairly and openly selected.

Here, after a brief discussion, the court read a pattern jury instruction back to the jury. Later, the court and parties sat silently while audio of testimony from the trial was played.

But Things Can Get Contentious

While defendant asserts that the question of how to present evidence to a jury in the middle of deliberations is “often contentious,” that is simply not borne out by the record before us.

Thus, the public’s interest in ensuring the court and prosecutor execute their duties properly is less where those duties are minimal compared to the more significant portions of a trial.

Error Could Be Introduced

Further, there are affirmative reasons that the public trial right should not apply in the present context.

It is axiomatic that the deliberations of a jury are to remain private and secret in order to insulate the jury from improper influence. Based on this principle, this court has found error where a courtroom is open even to the parties when a jury must return to the courtroom during its deliberations to review evidence, with those courts proceeding straight to a prejudice analysis.

In the present case, defendant does not argue that it was error for the court and parties to be present while the jury reviewed the victim's testimony. Indeed, he argues that more people should have been welcomed into the courtroom while the court answered the jury’s questions.

While we agree with defendant that the jury’s act of asking a question naturally invites a third party into the fold at the deliberative stage, it is reasonable that the variables that might subconsciously influence the jury at that stage be minimized as much as possible.

The presence of friends and family—of either a defendant or victim—or the media when a jury must return to the courtroom in the middle of its deliberations present no obvious benefits; rather, it is more likely to influence the jury in a way that undermines a defendant’s right to a fair trial.

Holding

In sum, we find that a criminal defendant’s right to a public trial is inapplicable to a portion of proceedings in which the circuit court must answer the jury’s intradeliberational questions.

Accordingly, we find that the court in the present case did not violate defendant’s rights or otherwise commit error when it closed the courtroom in that context.

See Also

Episode 270 - People v. Evans 2016 IL App (1st) 142190 (December) (grandma kept out during jury deliberation)

3 SCOTUS Criminal Law Cases (Q2 2018)

Jun 19, 2018 40:37

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Episode 501 (Duration 40:36) 3 criminal law cases from the Supreme Court of the United States were released in the second quarter of 2018. Here they are...

3 SCOTUS criminal law cases second quarter 2018

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In This Episode...

We discuss the following cases:

Byrd v. United States (May 2018) McCoy v. Louisiana (May 2018) Collins v. Virginia (May 2018) Byrd v. United States

Driver of a rental car not on the renting papers nonetheless has an expectation of privacy.

Gist

Defendant was driving a rental car in Pennsylvania.

When the police discovered he was not on the rental agreement they told him they didn’t need his permission to search the car. They found 49 bricks of heroin and charged him in federal court.

Issue

SCOTUS granted certiorari to address the question whether a driver has a reasonable expectation of privacy in a rental car when he is not listed as an authorized driver on the rental agreement.

Facts

Defendant was given control of the car right at the rental lot after another person rented the car. Defendant was not listed as an additional driver and was prohibited from driving the car by contract. Defendant was stopped because he was driving with his hands at the 10 and 2 position, he was seated way back and it was a rental car. Further, he was very nervous and shaking with the police and admitted he had a blunt in the car.

Police sought his consent to search the car, but then just searched it.

When they found body armor defendant started to run away from the scene. He was caught and admitted there was heroin in the car.

The search resumed and police discovered the 49 bricks.

Lower Court

The lower courts denied his motion because they said he had no standing to raise the issue. 

Property Rights

Expectations of privacy protected by the Fourth Amendment, of course, need not be based on a common-law interest in real or personal property, or on the invasion of such an interest. Still, “property concepts” are instructive in determining the presence or absence of the privacy interests protected by that Amendment.

Indeed, more recent Fourth Amendment cases have clarified that the test most often associated with legitimate expectations of privacy, supplements, rather than displaces, “the traditional property-based understanding of the Fourth Amendment.” See Florida v. Jardines, 569 U. S. 1, 11 (2013).

Reference to property concepts aids the Court in assessing the precise question here: Does a driver of a rental car have a reasonable expectation of privacy in the car when he or she is not listed as an authorized driver on the rental agreement?

One who owns and possesses a car, like one who owns and possesses a house, almost always has a reasonable expectation of privacy in it. More difficult to define and delineate are the legitimate expectations of privacy of others.

Privacy of Others

On the one hand, as noted above, it is by now well established that a person need not always have a recognized common-law property interest in the place searched to be able to claim a reasonable expectation of privacy in it.

On the other hand, it is also clear that legitimate presence on the premises of the place searched, standing alone, is not enough to accord a reasonable expectation of privacy, because it creates too broad a gauge for measurement of Fourth Amendment rights.

Although the Court has not set forth a single metric or exhaustive list of considerations to resolve the circumstances in which a person can be said to have a reasonable expectation of privacy, it has explained that legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.

Right To Exclude Others

One of the main rights attaching to property is the right to exclude others, and, in the main, one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of the right to exclude.

This general property-based concept guides resolution of this case.

Analysis

Here, the Government contends that drivers who are not listed on rental agreements always lack an expectation of privacy in the automobile based on the rental company’s lack of authorization alone. This per se rule rests on too restrictive a view of the Fourth Amendment’s protections.

On the other hand, merely being the sole occupant of a car doesn’t always create a privacy interest. A thief wouldn’t necessarily have a reasonable expectation of privacy in a car he was caught driving away in.

The Court sees no reason why the expectation of privacy that comes from lawful possession and control and the attendant right to exclude would differ depending on whether the car in question is rented or privately owned by someone other than the person in current possession of it. It does not seem to matter whether a friend owns or leases an apartment he is permitted to use.

Both an owner and invited guest would have the expectation of privacy that comes with the right to exclude.

Lawful Possession

The central inquiry at this point turns on the concept of lawful possession, and this is where an important qualification of Byrd’s proposed rule comes into play. No matter the degree of possession and control, the car thief would not have a reasonable expectation of privacy in a stolen car.

Though new, the fact pattern here continues a well traveled path in this Court’s Fourth Amendment jurisprudence.

Holding

Those cases support the proposition, and the Court now holds, that the mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy.

The Court leaves for remand two of the Government’s arguments: that one who intentionally uses a third party to procure a rental car by a fraudulent scheme for the purpose of committing a crime is no better situated than a car thief; and that probable cause justified the search in any event.

The judgment of the Court of Appeals is vacated, and the case is remand.

McCoy v. Louisiana

Defendant has the right to maintain his innocence even if his attorney thinks otherwise. Defendant got the death penalty for a triple murder.

Facts

Defendant’s wife’s mother, step father and son were all shot and killed in their home. Defendant says he was out of state in Idaho at the time of the killing and that the police shot and killed the family. The defense attorney believed the evidence was overwhelming against defendant. Defendant didn’t care and wanted to proceed with his alibi defense.

Attorney Concedes Guilt

At the beginning of his opening statement at the guilt phase of the trial, the lawyer told the jury there was “no way reasonably possible” that they could hear the prosecution’s evidence and reach “any other conclusion than Robert McCoy was the cause of these individuals’ death.” McCoy protested; out of earshot of the jury, McCoy told the court that his lawyer was “selling [him] out”.

Continuing his opening statement, counsel told the jury the evidence is “unambiguous,” “my client committed three murders.”

Defendant Testified

McCoy testified in his own defense, maintaining his innocence and pressing an alibi difficult to fathom.

In his closing argument, the attorney reiterated that McCoy was the killer. At the penalty phase, he again conceded “Robert McCoy committed these crimes,” but urged mercy in view of McCoy’s “serious mental and emotional issues.”

Issue

We granted certiorari in view of a division of opinion among state courts of last resort on the question whether it is unconstitutional to allow defense counsel to concede guilt over the defendant’s intransigent and unambiguous objection.

Right To Counsel

The Sixth Amendment guarantees to each criminal defendant “the Assistance of Counsel for his defence.”

As this court has explained, the right to defend is personal, and a defendant’s choice in exercising that right must be honored out of that respect for the individual which is the lifeblood of the law.

Similarly, the right to appear pro se exists to affirm the dignity and autonomy of the accused. The choice is not all or nothing: To gain assistance, a defendant need not surrender control entirely to counsel. For the Sixth Amendment, in granting to the accused personally the right to make his defense, speaks of the assistance of counsel, and an assistant, however expert, is still an assistant.

The Sixth Amendment contemplates a norm in which the accused, and not a lawyer, is master of his own defense. Trial management is the lawyer’s province: Counsel provides his or her assistance by making decisions such as “what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence.” Gonzalez v. United States, 553 U. S. 242, 248 (2008).

Decisions For Defendant Alone

Some decisions, however, are reserved for the client—notably, whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf, and forgo an appeal. See Jones v. Barnes, 463 U. S. 745, 751 (1983).

Autonomy to decide that the objective of the defense is to assert innocence belongs in this latter category.

Just as a defendant may steadfastly refuse to plead guilty in the face of overwhelming evidence against her, or reject the assistance of legal counsel despite the defendant’s own inexperience and lack of professional qualifications, so may she insist on maintaining her innocence at the guilt phase of a capital trial.

These are not strategic choices about how best to achieve a client’s objectives; they are choices about what the client’s objectives in fact are. Counsel may reasonably assess a concession of guilt as best suited to avoiding the death penalty, as counsel did in this case.

Defendant Has Different Motivations

But the client may not share that objective. He may wish to avoid, above all else, the opprobrium that comes with admitting he killed family members. Or he may hold life in prison not worth living and prefer to risk death for any hope, however small, of exoneration.

When a client expressly asserts that the objective of “his defence” is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt.

What About Rules of Precessional Responsibility?

ABA Model Rule of Professional Conduct 1.2(a) (2016) says a “lawyer shall abide by a client’s decisions concerning the objectives of the representation”. Preserving for the defendant the ability to decide whether to maintain his innocence should not displace counsel’s, or the court’s, respective trial management roles.

Counsel, in any case, must still develop a trial strategy and discuss it with her client.

Simply stated, the rules of professional responsibility would have allowed counsel to put on defendant's defense.

The prohibition against offering false evidence only applies if the lawyer knows that the evidence is false. This attorney harbored no doubt that McCoy believed what he was sayin, the lawyer simply disbelieved McCoy’s account in view of the prosecution’s evidence.

Counsel’s express motivation for conceding guilt was not to avoid suborning perjury, but to try to build credibility with the jury, and thus obtain a sentence lesser than death.

Louisiana’s ethical rules might have stopped counsel from presenting McCoy’s alibi evidence if he knew perjury was involved. But Louisiana has identified no ethical rule requiring him to admit McCoy’s guilt over McCoy’s objection.

Defendant's Have A Right To Steer The Ship Into The Reef

If, after consultations with his attorney concerning the management of the defense, McCoy disagreed with his proposal to concede McCoy committed three murders, it was not open to the attorney to override McCoy’s objection.

Counsel could not interfere with McCoy’s telling the jury “I was not the murderer,” although counsel could, if consistent with providing effective assistance, focus his own collaboration on urging that McCoy’s mental state weighed against conviction.

Here, McCoy opposed his attorney's assertion of his guilt at every opportunity, before and during trial, both in conference with his lawyer and in open court.

If a client declines to participate in his defense, then an attorney may permissibly guide the defense pursuant to the strategy she believes to be in the defendant’s best interest. Presented with express statements of the client’s will to maintain innocence, however, counsel may not steer the ship the other way.

These were not strategic disputes about whether to concede an element of a charged offense; they were intractable disagreements about the fundamental objective of the defendant’s representation. 

It's Structural Error

Violation of a defendant’s Sixth Amendment-secured autonomy ranks as error of the kind our decisions have called “structural”; when present, such an error is not subject to harmless-error review.

Structural error “affect[s] the framework within which the trial proceeds,” as distinguished from a lapse or flaw that is “simply an error in the trial process itself.” An error may be ranked structural, we have explained, “if the right at issue is not designed to protect the defendant from erroneous conviction but instead protects some other interest,” such as “the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty.”

An error might also count as structural when its effects are too hard to measure, as is true of the right to counsel of choice, or where the error will inevitably signal fundamental unfairness, as we have said of a judge’s failure to tell the jury that it may not convict unless it finds the defendant’s guilt beyond a reasonable doubt.

Holding

In this stark scenario, we agree with the majority of state courts of last resort that counsel may not admit her client’s guilt of a charged crime over the client’s intransigent objection to that admission.

McCoy must therefore be accorded a new trial without any need first to show prejudice.

McCoy insistently maintained: “I did not murder my family.”

Once he communicated that to court and counsel, strenuously objecting to English’s proposed strategy, a concession of guilt should have been off the table. The trial court’s allowance of Counsel’s admission of McCoy’s guilt despite McCoy’s insistent objections was incompatible with the Sixth Amendment.

Because the error was structural, a new trial is the required corrective. For the reasons stated, the judgment of the Louisiana Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

See Also

Episode 033 - People v. Holt,  2014 IL 116989 (November) (counsel admits his client is unfit against the client's admit protest to the contrary)

Collins v. Virginia

Police need a warrant to search a vehicle on private property.

Issue

This case presents the question whether the automobile exception to the Fourth Amendment permits a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein.

Facts

Police were aware of a man speeding on an orange and black motorcycle but were unable to catch him. Officers learned that the motorcycle likely was stolen and in the possession of petitioner Ryan Collins. After discovering photographs on Collins’ Facebook profile that featured an orange and black motorcycle parked at the top of the driveway of a house, Officer Rhodes tracked down the address of the house, drove there, and parked on the street.

It was later established that Collins’ girlfriend lived in the house and that Collins stayed there a few nights per week.

From his parked position on the street, Officer Rhodes saw what appeared to be a motorcycle with an extended frame covered with a white tarp, parked at the same angle and in the same location on the driveway as in the Facebook photograph.

No Warrant

Officer Rhodes, who did not have a warrant, exited his car and walked toward the house.

He stopped to take a photograph of the covered motorcycle from the sidewalk, and then walked onto the residential property and up to the top of the driveway to where the motorcycle was parked. When Officer Rhodes searched the motorcycle, it was parked inside this partially enclosed top portion of the driveway that abuts the house.

In order “to investigate further,” Officer Rhodes pulled off the tarp, revealing a motorcycle that looked like the one from the speeding incident. He then ran a search of the license plate and vehicle identification numbers, which confirmed that the motorcycle was stolen.

After gathering this information, Officer Rhodes took a photograph of the uncovered motorcycle, put the tarp back on, left the property, and returned to his car to wait for Collins.

Defendant Gets Home

Shortly thereafter, Collins returned home.

Officer Rhodes walked up to the front door of the house and knocked. Collins answered, agreed to speak with Officer Rhodes, and admitted that the motorcycle was his and that he had bought it without title.

Officer Rhodes then arrested Collins.

Charges

Collins was indicted by a Virginia grand jury for receiving stolen property.

Automobile Exception v. Warrant Requirement

This case arises at the intersection of two components of the Court’s Fourth Amendment jurisprudence: the automobile exception to the warrant requirement and the protection extended to the curtilage of a home.

Automobile Exception

The Court has held that the search of an automobile can be reasonable without a warrant.

The Court first articulated the so-called automobile exception in Carroll v. United States, 267 U. S. 132 (1925). The “ready mobility” of vehicles served as the core justification for the automobile exception for many years. California v. Carney, 471 U. S. 386, 390 (1985) (citing, e.g., Cooper v. California, 386 U. S. 58, 59 (1967); Chambers v. Maroney, 399 U. S. 42, 51–52 (1970)).

Later cases then introduced an additional rationale based on “the pervasive regulation of vehicles capable of traveling on the public highways.” Carney, 471 U. S., at 392. As the Court explained in South Dakota v. Opperman, 428 U. S. 364 (1976):

“Automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order.”

Id., at 368.

Homes Are Different

These rationales don’t exist for houses.

Like the automobile exception, the Fourth Amendment’s protection of curtilage has long been black letter law. “[W]hen it comes to the Fourth Amendment, the home is first among equals.” Florida v. Jardines, 569 U. S. 1, 6 (2013). “At the Amendment’s ‘very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’” Ibid. (quoting Silverman v. United States, 365 U. S. 505, 511 (1961)).

Curtilage Part Of The Home

To give full practical effect to that right, the Court considers curtilage—“the area ‘immediately surrounding and associated with the home’”—to be “‘part of the home itself for Fourth Amendment purposes.’” Jardines, 569 U. S., at 6 (quoting Oliver v. United States, 466 U. S. 170, 180 (1984)). “The protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened.” California v. Ciraolo, 476 U. S. 207, 212–213 (1986).

When a law enforcement officer physically intrudes on the curtilage to gather evidence, a search within the meaning of the Fourth Amendment has occurred. Such conduct thus is presumptively unreasonable absent a warrant.

Just like the front porch, side garden, or area outside the front window the driveway enclosure where Officer Rhodes searched the motorcycle constitutes an area adjacent to the home and to which the activity of home life extends, and so is properly considered curtilage.

State Says Expand Automobile Exception

Virginia asks the Court to expand the scope of the automobile exception to permit police to invade any space outside an automobile even if the Fourth Amendment protects that space. Nothing in our case law, however, suggests that the automobile exception gives an officer the right to enter a home or its curtilage to access a vehicle without a warrant.

Expanding the scope of the automobile exception in this way would both undervalue the core Fourth Amendment protection afforded to the home and its curtilage and untether the automobile exception from the justifications underlying it. Riley v. California, 573 U. S. ___, ___ (2014) (slip op., at 10) (quoting Arizona v. Gant, 556 U. S. 332, 343 (2009)).

Surely, He Couldn't Go In The House

Had Officer Rhodes seen illegal drugs through the window of Collins’ house, for example, assuming no other warrant exception applied, he could not have entered the house to seize them without first obtaining a warrant. Similarly, it is a “settled rule that warrantless arrests in public places are valid,” but, absent another exception such as exigent circumstances, officers may not enter a home to make an arrest without a warrant, even when they have probable cause. Payton v. New York, 445 U. S. 573, 587–590 (1980).

That is because being arrested in the home involves not only the invasion attendant to all arrests but also an invasion of the sanctity of the home.

Likewise, searching a vehicle parked in the curtilage involves not only the invasion of the Fourth Amendment interest in the vehicle but also an invasion of the sanctity of the curtilage.

Must Have A Lawful Right To Be There

Just as an officer must have a lawful right of access to any contraband he discovers in plain view in order to seize it without a warrant, and just as an officer must have a lawful right of access in order to arrest a person in his home, so, too, an officer must have a lawful right of access to a vehicle in order to search it pursuant to the automobile exception.

The automobile exception does not afford the necessary lawful right of access to search a vehicle parked within a home or its curtilage because it does not justify an intrusion on a person’s separate and substantial Fourth Amendment interest in his home and curtilage.

Garages Would Have More Protection

Virginia’s proposed bright-line rule automatically would grant constitutional rights to those persons with the financial means to afford residences with garages in which to store their vehicles but deprive those persons without such resources of any individualized consideration as to whether the areas in which they store their vehicles qualify as curtilage. See United States v. Ross, 456 U. S. 798, 822 (1982) (“[T]he most frail cottage in the kingdom is absolutely entitled to the same guarantees of privacy as the most majestic mansion”).

Holding

To allow an officer to rely on the automobile exception to gain entry into a house or its curtilage for the purpose of conducting a vehicle search would unmoor the exception from its justifications, render hollow the core Fourth Amendment protection the Constitution extends to the house and its curtilage, and transform what was meant to be an exception into a tool with far broader application.

Given the centrality of the Fourth Amendment interest in the home and its curtilage and the disconnect between that interest and the justifications behind the automobile exception, we decline Virginia’s invitation to extend the automobile exception to permit a warrantless intrusion on a home or its curtilage.

For the foregoing reasons, we conclude that the automobile exception does not permit an officer without a warrant to enter a home or its curtilage in order to search a vehicle therein.

The judgment of the Supreme Court of Virginia is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

See Also

People v. Smock, 2018 IL App (5th) 140449 (April). Episode 489 - This Hot Pursuit Of A Disorderly Conduct Suspect Didn’t Justify The Warrantless Entry Into The Trailer

Episode 464 - Constitutionality Based On Structure: Do Houses Have More Protection Than Apartments?

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Dude You Gotta Drop The Gun Before You Start Running

Jun 18, 2018 10:01

Description:

People v. Anderson, 2018 IL App (4th) 160037 (May). Episode 500 (Duration 10:00)

There is a difference between constructive possession and having immediate access to a gun.

Gist

The charges against defendant stem from an encounter between detectives from the Decatur Police Department’s street-crimes unit and three males, one of whom was defendant.

Defendant was convicted of of armed violence predicated on unlawful possession of a controlled substance while armed with a handgun, a Category I weapon (720 ILCS 5/33A-1(c)(2), 33A-2(a)), unlawful possession of a weapon by a felon, and unlawful possession of a controlled substance with intent to deliver.

Facts

The three males were walking in the middle of a street at approximately 11:30 p.m.

One officer asked defendant to come toward him. Rather than comply with the officer’s request, defendant fled on foot in the opposite direction. Both officers gave chase and were able to take defendant into custody after he fell over a brush pile in a nearby residential backyard.

Officers found a black Glock 27 handgun lying approximately two to three feet in front of defendant. In defendant’s right pocket, officers found seven bags of cannabis and a separate bag containing nine individually packaged bags of suspected crack cocaine.

Issue

The question here is whether the weapon found a few feet from defendant qualifies as the available access to the gun that the legislature sought to avoid.

Armed Violence

Our supreme court has emphasized the purpose of the armed-violence statute is to deter felons from using dangerous weapons, thereby minimizing the deadly consequences that may result when a felony victim resists. People v. Condon, 148 Ill. 2d 96, 109 (1992).

That is, a defendant violates this statute by simply having possession of a firearm during the commission of another predicate felony. Thus, for the purpose of the statute to be served, it would be necessary that the defendant have some type of immediate access to or timely control over the weapon. A felon with a weapon at his or her disposal is forced to make a spontaneous and often instantaneous decision to kill without time to reflect on the use of such deadly force. Without a weapon at hand, the felon is not faced with such a deadly decision. See Condon, 148 Ill. 2d at 109­ 10.

The supreme court has further refined the definition of “otherwise armed” to mean having immediate access to or timely control over the weapon.

Unlawful Possession of A Weapon By A Felon

The State also charged defendant with unlawful possession of a weapon by a felon. 720 ILCS 5/24-1.1(a). A defendant violates this statute if he

“knowingly posses[es] on or about his person *** any firearm *** if the person has been convicted of a felony under the laws of this State or any other jurisdiction.” 720 ILCS 5/24-1.1(a).

“A person is considered armed with a dangerous weapon for purposes of this Article, when he or she carries on or about his or her person or is otherwise armed with a Category I, Category II, or Category III weapon.” 720 ILCS 5/33A-1(c)(1).

Like the proof required for a conviction for armed violence, the State must prove beyond a reasonable doubt the defendant possessed the gun. This element may be satisfied with proof the defendant had constructive possession, i.e., he knew of the gun and it was in his immediate and exclusive control. People v. Hester, 271 Ill. App. 3d 954, 961 (1995).

Constructive Possession

Possession of contraband may be actual or constructive.

Actual possession is proved by testimony which shows that defendant has exercised some dominion over the  contraband. The act of dominion may be that defendant had the contraband on his body, that he tried to conceal it, or that he was seen throwing it away.

However, mere proximity is not sufficient evidence to prove actual possession.

Actual possession need not be demonstrated if constructive possession can be inferred.

To establish constructive possession, the State must prove beyond a reasonable doubt that defendant

(1) knew the handgun was present and
(2) exercised immediate and exclusive control over the area where the handgun was found.

Knowledge may be shown by evidence of defendant’s acts, declarations, or conduct from which it can be inferred that he knew the handgun existed in the place where it was found. Control may be shown by evidence that defendant had the intent and capability to maintain control and dominion over the handgun, even if he lacked personal present dominion over it.

Constructive Possession Cases

1)  People v. Wright, 2013 IL App (1st) 111803, ¶ 26, the appellate court reversed the defendant’s conviction of aggravated unlawful use of a weapon because the State failed to sufficiently prove the defendant knowingly possessed the gun. This was so because the State was unable to prove beyond a reasonable doubt that the defendant “exercised exclusive or immediate control over the area where the weapon was found.”

There, the gun was found underneath the defendant’s torso after he had fallen down stairs at the same time as another man. The defendant was one of five people in the immediate area of the basement of a residence that was not the defendant’s.

2) In People v. Sams, 2013 IL App (1st) 121431, ¶ 13, the reviewing court found the State had failed to prove the defendant constructively possessed the weapon found underneath a couch in a residence that was not the defendant’s, but one that the defendant was seen exiting. The court noted the police officers’ “testimony shows only that [the] defendant walked out of a house in which a gun was later found. Mere presence in the vicinity or access to the area in which contraband is found is insufficient to establish constructive possession.” Sams, 2013 IL App (1st) 121431, ¶ 13. 

Analysis

Defendant’s hands were “tucked inside towards the front of his waistband” as he fled from the police, and while he was still on the ground being secured, the gun was found two to three feet away. From this evidence, we find it was reasonable for the jury to believe defendant was armed with the handgun while he was being pursued by the police.

A rational trier of fact could have reasonably concluded, at the time defendant was a convicted felon, he had knowledge of the firearm and exercised immediate and exclusive control over the area where it was found. The jury was entitled to infer defendant was indeed carrying the weapon on his person before he fell.

Thus, we find the evidence was sufficient to support the conclusion defendant had possession of the handgun recovered at the time of his arrest.

What About The Armed Violence Charge?

Defendant also argues he was not in possession of the handgun at the time of his arrest, thus he could not be considered “armed with a dangerous weapon” for the purposes of his armed-violence conviction.

 In Smith, the supreme court concluded the defendant did not have the required access to or control over the weapon in question at the time the police entered the residence because the defendant had dropped the gun out of a window. Smith, 191 Ill. 2d at 412. The court found that allowing a conviction for armed violence to stand against this defendant “would not serve, but rather would frustrate, the statute’s purpose of deterring criminals from involving themselves and others in potentially deadly situations.” Smith, 191 Ill. 2d at 413.

Here, a reasonable jury could have found from the evidence defendant possessed the gun in question in that he was likely carrying the gun on his person during the police pursuit and then either dropped it or discarded it when he fell.

Regardless, defendant had “immediate access to or timely control over the weapon” while he committed the felony offense of unlawful possession of a controlled substance.

Holding

Viewing the evidence in the light most favorable to the State, we conclude a rational trier of fact could have found beyond a reasonable doubt defendant, a convicted felon, had knowledge of, and had immediate access to, the loaded handgun.

We find the facts of this case further the deterrence purpose of the armed-violence statute in that defendant had immediate access to this weapon and, as the legislature recognized, a felon with immediate access to a weapon was predisposed to use it when confronted with resistance, either from victims, law enforcement representatives, or other criminals.

It was reasonable for the jury to conclude this loaded weapon was immediately accessible to defendant before and during defendant’s arrest so that he was “otherwise armed,” as that term is defined, during the commission of the predicate felony of unlawful possession of a controlled substance.

Armed Violence? Naked With Hands In The Air & The Shot-Gun In The Corner

Jun 13, 2018 10:30

Description:

People v. Norwood, 2018 IL App (4th) 150883 (May). Episode 499 (Duration 10:30)

What does it mean for a firearm to be immediately accessible?

Gist

The trial court found defendant guilty of two counts of armed violence. The court sentenced defendant to concurrent 16­ year prison sentences.

Defendant admitted he unlawfully possessed 1 gram or more but less than 15 grams of a substance containing cocaine with the intent to deliver and unlawfully possessed more than 30 grams but not more than 500 grams of a substance containing cannabis.

As a result, with regard to the armed violence convictions, the only real issue was whether the State established beyond a reasonable doubt defendant was armed or had immediate access to the rifle found in his bedroom.

Facts

Police entered a home to execute a search warrant.

An officer went straight to defendant’s room. When he opened the bedroom door, defendant was standing naked with his hands up in the air at the foot of the bed near the door. Walter ordered defendant to get on the ground. Defendant laid on the bed.

Defendant was allowed to put on some pants. Police then found a loaded assault rifle in the far left corner of defendant’s bedroom behind a storage container at the furthest point from the bedroom door.

Defendant was 10 feet from the rifle and he advised officers it was for home security.

Armed Violence Statute

Section 33A-2(a)(1) of the Criminal Code of 2012 (720 ILCS 5/33A-2(a)) states:

“A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law, except [certain excluded offenses].”

According to the statute, a person is considered

“armed with a dangerous weapon” when “he or she carries on or about his or her person or is otherwise armed with a Category I, Category II, or Category III weapon.”

720 ILCS 5/33A-1(c)(1).

"Otherwise Armed"

Our supreme court has interpreted the meaning of “otherwise armed” as follows:

“A felon with a weapon at his or her disposal is forced to make a spontaneous and often instantaneous decision to kill without time to reflect on the use of such deadly force. Without a weapon at hand, the felon is not faced with such a deadly decision. Hence, we have the deterrent purpose of the armed violence statute. Thus, for this purpose to be served, it would be necessary that the defendant have some type of immediate access to or timely control over the weapon.”

People v. Condon, 148 Ill. 2d 96, 109-10, 592 N.E.2d 951, 958 (1992).

Issue

Defendant argues the trial court erred in finding he was guilty of armed violence because the rifle was not immediately accessible to him at the moment the police entered his bedroom because he was 10 feet from the rifle, and it was blocked by the bed.

Defendant argues the trial court erred by considering whether the rifle was immediately accessible to defendant when the police entered the residence prior to seeing defendant.

The Case Law - People v. Smith

In People v. Smith, 191 Ill. 2d 408, 732 N.E.2d 513 (2000), the defendant dropped a handgun out of his apartment window while police officers were approaching his apartment building to execute a search warrant on his apartment.

The Illinois Supreme Court reversed that armed violence conviction.

According to the majority opinion, the court found the deterrent purpose of the statute was not met by convicting Smith. 

The court said that permitting an armed violence conviction to stand against a felon such as defendant, who exhibited no propensity to violence and dropped the unloaded gun out of the window as the police approached his apartment to search for drugs, would not serve, but rather would frustrate, the statute’s purpose of deterring criminals from involving themselves and others in potentially deadly situations.

The court in Smith cited a previous decision, People v. Condon, 148 Ill. 2d 96 (1992). 

The Case Law - People v. Condon

In Condon the court found defendant did not have have immediate access to the guns when he was in the kitchen when police entered and found guns in other parts of the house.

The Case Law - People v. Neylon

In People v. Neylon, 327 Ill. App. 3d 300, 762 N.E.2d 1127 (2002), the defendant was arrested outside his house after the police received a “shots fired” report. 

After defendant’s arrest, the police found a .38-caliber pistol inside the house in a bedroom closet.

The court said,

“In this case it is true the gun was not immediately accessible to defendant. When he was arrested outside the house, the gun was in the house, in a closet and unloaded. The ammunition was not kept with the gun. Even if there were evidence defendant had been in the house minutes before his arrest, the gun was still not immediately accessible to him unless he were standing next to the open closet door and the gun were loaded. Under the facts of this case, the precedent of Smith suggests the danger the armed violence statute seeks to curb was not present and the evidence was not sufficient to support a conviction for armed violence (possession of a firearm).” Neylon, 327 Ill. App. 3d at 309.

Case Going The Other Way - People v. Harre

In People v. Harre, 155 Ill. 2d 392, 394, 614 N.E.2d 1235, 1236-37 (1993), defendant had immiediate access to a gun when he was seen gettigh out of a car and riding on the hood for a brief period.

This clearly supported the inference that defendant had moments before his apprehension been riding in the car on his way to a drug delivery with a weapon inches from his grasp.

The guns were on the front seat. Such circumstantial evidence was not so clearly unreasonable, improbable, or unsatisfactory that no rational trier of fact could have found beyond a reasonable doubt that defendant had immediate access to or timely control over such weapons while riding in the car enroute to the delivery of the cannabis.

The evidence supported the jury’s finding that defendant had immediate access to and control over the weapons during the course of the underlying felony. Plus, defendant was walking towards the car door and was getting closer to the gun. 

Analysis

None of these cases hold that a court should only look at the moment of arrest to determine whether a defendant is armed. Instead, the case law says a court can look back to the moment the police entered the residence while executing the search warrant, not just the moment the police physically encountered or arrested the defendant.

In this case, like Condon and Smith, the police were executing a search warrant on defendant’s home. Contrary to defendant’s suggestion, the question before this court is not whether the rifle was immediately accessible to defendant when the police officer opened the bedroom door.

Instead, the question is whether the State established beyond a reasonable doubt that the rifle was immediately accessible to defendant after the police entered his home. Based on the evidence in this case, the trial court did not err in finding defendant guilty of armed violence.

Holding

The evidence supports a reasonable inference the rifle in the bedroom was immediately accessible to defendant during the period between the police officers entering the home and opening the bedroom door.

Defendant slept on the same side of the bed as the rifle. When the police opened the door to the bedroom, defendant was standing naked with his hands up in the air. Based on this evidence, the trial court could have reasonably inferred defendant heard the police entering the house and got up from the bed in a manner making the rifle immediately accessible.

Further, after Walter opened the bedroom door and ordered defendant to get on the ground, defendant instead laid down on the bed, decreasing the distance between the rifle and defendant. 

Conviction affirmed.

When HGN Results Are Inadmissible Can The State Get Into How The Defendant Was Acting A Fool?

Jun 12, 2018 07:22

Description:

People v. Tatera, 2018 IL App (2d) 160207 (May). Episode 498 (Duration 7:21)

9th DUI for this guy; 8 years seems about right.

Gist

This is defendant’s 9th DUI. He got 8 years.

HGN Issue

There were no fields and no blow but the video showed him all dazed and confused and not follwing instructions. Defendant argues that the trial court abused its discretion by allowing the jury to see a portion of the administration of the HGN test in the arrest video.

Defendant argues that, because the State agreed that the HGN test was improperly conducted, the jury should have been precluded from seeing any footage of the administration of the test.

What The Jury Saw

The trial court, over defendant’s objections, admitted a portion of the recording because it showed defendant disobeying the officer's instructions to keep his hands at his sides and out of his pockets.

Defendant contends that, under People v. McKown, 236 Ill. 2d 278, 306 (2010), the recording was completely inadmissible.

People v. McKown

In McKown, the supreme court held that, for the results of an HGN test to be admitted at trial, a proper foundation must be laid, including the officer’s proper training and administration of the test. The supreme court held that the administration of the HGN test in that case did not meet the standards that the court had enunciated, so the admission of any testimony concerning the test and its results was reversible error. 

Analysis

Here, defendant argues that the officer did not correctly perform the HGN test, so the admission of the recording was likewise erroneous, and that, given the closeness of the evidence, the error cannot be deemed harmless beyond a reasonable doubt.

In McKown, by contrast, the officer testified about the test and the conclusions he drew from the defendant’s performance. Here, Kresen did not testify at all about the test—either his administration of the test or defendant’s performance of the test; likewise, the State made absolutely no argument about the test.

Thus, in this respect, McKown is significantly distinguishable.

The question remains, however, whether the jury should have observed the portion of the recording admitted to illustrate defendant’s inability or refusal to comply with Kresen’s instructions. See People v. King, 2014 IL App (2d) 130461. We then held that “a motorist’s failure to follow directions on a particular field sobriety test does not lose all relevance simply because the test might not have been designed for the precise purpose of gauging the ability to follow directions.” Id. ¶ 12.

Thus, we determined that our holding did not imply that, where the State is aware that the HGN test was not conducted properly and, thus, that the results were inadmissible, the officer’s otherwise relevant and material observations could or should have been characterized as part of the administration of an HGN or other field sobriety test.

That the defendant did not follow the officer’s instructions was separate and apart from any scientific evidence that would have been associated with the HGN test (and which neither the officer nor the State commented upon).

In This Case...

Here, the State conceded that the HGN test was improperly conducted.

Unlike in King, the officer did not even mention the HGN test; rather, he testified that defendant did not follow his instructions, and the portion of the recording of the HGN test admitted and published to the jury illustrated defendant’s failure to follow those instructions.

Moreover, the State did not mention or make any argument regarding the HGN test; rather, the State focused solely on defendant’s inability to follow the officer's instructions during the portion of the recording that was published to the jury. This was proper under King, and it did not violate the requirements of McKown, because the admitted portion of the recording and all of the testimony and argument dealt only with defendant’s failure to follow instructions and there was no mention whatsoever of the HGN test.

HGN Holding

Accordingly, we hold that the portion of the recording containing a part of the administration of the HGN test was properly admitted and published to the jury.

Sentencing Issue

Defendant also argues that the trial court erred in passing sentence by double-counting his previous convictions, both as a qualifying factor for a Class X offense and as an aggravating factor to increase the length of his sentence.

Defendant next contends that the trial court improperly used his previous convictions of DUI both for his eligibility for a Class X sentence and as aggravating factors to justify the eight-year sentence.

Sentencing Analysis

It has long been established that the fact of a defendant’s prior convictions may determine his or her eligibility for a Class X sentence, but in determining the length of the defendant’s sentence the trial court remains free to consider the nature and circumstances of those prior convictions along with all of the other factors in mitigation and aggravation. People v. Thomas, 171 Ill. 2d 207, 227-28 (1996). See also People v. Morrow, 2014 IL App (2d) 130718, ¶¶ 19-20.

Here, the trial court considered that defendant had not only the five DUI convictions necessary to qualify for Class X sentencing but also four additional DUI convictions (nine in total) in imposing a sentence of eight years—two years above the minimum sentence.

Although the trial court was terse in its explanation, the nine convictions illustrated defendant’s recidivism, his failure to rehabilitate, and the significant possibility of harm each and every time defendant got behind the wheel while under the influence of alcohol. We note that the trial court’s discussion with defendant following his statement in allocution touched on these factors, and we consider the sentencing hearing as a whole.

Sentencing Holding

Defendant’s double enhancement arguement is without merit. For the foregoing reasons, the judgment of the circuit court of McHenry County is affirmed.

See Also

Episode 347 -