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

State Blows Speedy Trial Even Though Defense Counsel Agreed To The Continuance

Apr 1, 2020 09:22

Description:

People v. Mooney, 2019 IL App (3d) 150607 (March). Episode 599 (Duration 9:21)

Agreeing to continuance was ineffective, outright reversal is the only remedy.

Charge

Defendant, Bryant K. Mooney Jr., appeals following his conviction for driving while license suspended.

Issue

He argues, inter alia, that defense counsel was ineffective for twice agreeing to the State’s motions for continuances on the day of trial, thus tolling the speedy trial clock.

On appeal, defendant argues that defense counsel rendered ineffective assistance by failing to move for dismissal based on a violation of his statutory speedy trial rights. Alternatively, he argues that counsel was ineffective for twice agreeing to continuances and agreeing that the speedy trial clock should be tolled when it was the State that needed the second continuance and the State’s actions that necessitated the third.

Gist

The State concedes that the first continuance in defendant’s case, issued on October 27, 2014, was wholly attributable to the prosecution. Between the filing of defendant’s speedy trial demand on August 19, 2014, and the second continuance on January 5, 2015, 139 days elapsed that are indisputably attributable to the State.

Each of the second and third continuances resulted in delays of more than 21 days, and thus either continuance would have caused the speedy trial period to elapse unless attributable to defendant.

Speedy Trial Demand

On August 19, 2014, defense counsel filed a speedy trial demand, requiring that defendant be tried no later than January 26, 2015. That same day, pursuant to defense counsel’s request, the court set the matter for a jury trial on October 27, 2014. 

First Delay

Six days before the scheduled jury trial, the State filed a motion for continuance.

In the motion, the State claimed that the arresting officer would be unavailable on the scheduled trial date because of a previously scheduled court appearance in a different county. On October 27, 2014, defense counsel announced ready for trial, but the court granted the State’s motion and set the matter for trial on January 5, 2015. 

Second Delay

On the morning of January 5, 2015, defense counsel again announced ready for trial, adding that defendant was requesting a bench trial.

The court immediately told counsel, without further explanation: “[Y]ou understand the predicament I am in so if it is going to go, it is not going to go until this afternoon probably.”

The prosecutor explained that its testifying officer in the case had not slept in two days and had to work that night at 6 p.m. The prosecutor opined that such a situation was not desirable but conceded “there is a speedy trial demand by the defendant so we have to fit it within a certain time frame.” The court agreed, stating, “[w]e have to get this done” and noting that only 20 days remained on the speedy trial clock.

The court instructed the parties to return at 12:15 that afternoon in an attempt to begin the trial.

The prosecutor commented: “And if we know it is going to go long, I will make my motion at that time.”

Then a written order bearing that date appears in the common law record. The order, a preprinted form with some items circled and blanks filled in, schedules a trial for March 24, 2015, a date significantly later than the January 26 deadline established by defendant’s speedy trial demand. The order indicates that the continuance is on the motion of defendant. It also indicates that “Defendant agrees that speedy is tolled.”

Third Delay

On March 24, 2015, defense counsel again requested a bench trial but told the court that she had been tendered a video instanter and would be requesting a new trial date.

The court inquired as to why, in a matter originally scheduled for trial the previous October, a video was only now being tendered. The prosecutor responded that he did not know. The following colloquy ensued:

“THE COURT: Is there any way you can watch the video and try the case?[DEFENSE COUNSEL]: Today?

THE COURT: Well, yeah, we do have a short day today. We have to find something to do in the afternoons.[DEFENSE COUNSEL]: If Your Honor prefers, I can try. I would prefer—

THE COURT: You can try? What does the video entail in driving?[THE STATE]: Him driving? I have an expert on that topic coming up.

THE COURT: Because if defense counsel is vehemently moving for the motion to continue this date because you gave her the discovery late, she has grounds to do it. Are you vehemently moving for the motion for continuance?[DEFENSE COUNSEL]: Judge, I am asking for a motion to continue.

THE COURT: All right, I am going to grant your continuance. Sorry, officer. She’s got grounds. New date. When can he be back?”

The parties did not set a date while on the record. However, the written order (again a preprinted form) issued that day shows that the trial was set for April 21, 2015. The written order again indicates that the continuance was on the motion of defendant and that “[d]efendant agrees that speedy is tolled.”

The Trial

The matter proceeded to a bench trial on April 21, 2015, at which the court found defendant guilty of driving while license suspended. The court sentenced defendant to a term of 24 months’ probation.

Speedy Trial By Statute

Section 103-5(b) of the Code holds that a defendant free on bail or recognizance must be brought to trial within 160 days of his speedy trial demand. 725 ILCS 5/103-5(b).

The Code further dictates that “[d]elay occasioned by the defendant shall temporarily suspend for the time of the delay the period within which a person shall be tried.” Id. § 103-5(f). Thus, to show a violation of his speedy trial right, a defendant must show that he did not “cause or contribute to the delays.” People v. Staten, 159 Ill. 2d 419, 426 (1994).

“A defense counsel’s express agreement to a continuance may be considered an affirmative act contributing to a delay which is attributable to the defendant.” People v. Kliner, 185 Ill. 2d 81, 114 (1998). 

What Were The Reasons For TheDelay?

Defendant’s argument requires this court to ask the questions:

(1) Why would counsel agree that the speedy trial clock would be tolled and

(2) What impact did these agreements have on defendant’s right to a speedy trial?

Notably, the reports of proceedings from the dates of the second and third continuances demonstrate unequivocally that neither continuance was factually attributable to defendant. State Witness Had A Problem

On January 5, 2015, the date of the second continuance, defense counsel announced ready for trial. Thereafter, the court and prosecutor discussed an apparent scheduling issue with the testifying officer, and the matter was ultimately continued. Delays occasioned by the unavailability of a State’s witness or by the court’s schedule cannot be attributed to a defendant. See Bonds, 401 Ill. App. 3d at 677; Kliner, 185 Ill. 2d at 119.

Late Discovery Causes The Last Continuance

While the third continuance, on March 24, 2015, was explicitly on defense counsel’s motion, that motion was made only after the State tendered a video of the arrest moments before trial. The delay caused by defense counsel’s motion should not be held attributable to a defendant if that motion was necessitated by the State’s late filing of discovery.

At oral argument, the State emphasized that the prosecutor was under no obligation to tender the video at all in this misdemeanor case. We find this to be irrelevant. Whether or not any obligation existed, the fact is that the prosecutor did tender the video, and it would have been inappropriate for defense counsel to proceed to a trial without thoroughly reviewing that piece of evidence.

Analysis

Despite these facts and the relevant law, counsel twice agreed that the speedy trial clock would be tolled.

On the occasion of the second of the three continuances, counsel even allowed an order to be entered indicating that the continuance was on her motion. Having announced she was ready for trial on January 5, 2015, there is no apparent trial strategy motive for agreeing to any delay.

Similarly, on March 24, 2015, there is no apparent strategic benefit to defendant from counsel agreeing to toll the speedy trial clock.

Defendant having asserted his statutory right to a speedy trial, defense counsel was duty bound to zealously protect that right.

Instead, counsel twice agreed, despite her expressed readiness for trial on both of the scheduled dates, to allow both continuances and concessions of tolling to be attributed to defendant. This, failure was objectively unreasonable under prevailing professional norms, and it rendered counsel’s performance deficient.

Clearly Prejudicial To Defendant

The more difficult question is that of prejudice.

Had counsel’s performance not been deficient—that is, had counsel not agreed to twice toll the speedy trial clock—is there a reasonable probability that the outcome would have been different? There is no perfect way to reconstruct what would have happened had counsel acted appropriately.

Hanging over this uncertainty is the actuality that defendant was—had the final two continuances been properly attributed—brought to trial outside of the 160-day window. In a similar situation, our supreme court found that a continuance was attributable to the circuit court, even though the record indicated it had been on defendant’s motion. People v. Beyah, 67 Ill. 2d 423, 426, 428-29 (1977).

The Beyah court did not engage in any reconstruction, or speculate as to what would have happened had the circuit court’s order been correct in the first place. Instead, the court found that the defendant had been tried outside of the applicable window and reversed defendant’s conviction outright. 

In so doing, the court commented: “To conclude, under these circumstances, that the delay was occasioned by defendant would be a mockery of justice.” Id. at 428.

The same is no less true here.

Must Prevent A Mockery Of Justice

Defendant’s speedy trial period should have ended on January 26, 2015, but because of counsel’s deficient performance, it did not. To pretend otherwise would be a mockery of justice. On a broader scale, a finding of no prejudice here would leave this defendant, and myriad other defendants who might find themselves in this situation, with absolutely no recourse.

The legislature has granted criminal defendants a statutory right to a speedy trial. Where counsel’s actions serve to undermine that right, those actions must be subject to an ineffectiveness challenge. “A right without a remedy is no right at all.” People ex. rel Endicott v. Huddleston, 34 Ill. App. 3d 799, 807 (1975).

To hold the inevitable speculation against a defendant would be to hold that counsel’s actions in agreeing to the continuances or agreeing to toll the speedy trial clock are, essentially, unreviewable.

Holding

Accordingly, we find that defense counsel’s performance was deficient and that this deficiency was prejudicial in that it resulted in defendant being brought to trial outside of the statutorily prescribed 160-day period.

We therefore reverse defendant’s conviction for driving while license suspended outright. 

When Easily Identifiable Informants Are Treated As Anonymous Tipsters

Mar 23, 2020 09:34

Description:

People v. Holmes, 2019 IL App (1st) 160987 (March). Episode 601 (Duration 9:33)

An essentially anonymous tip was treated as wholly unreliable resulting in an outright reversal of this gun conviction.

Gist

Police approach a man with a gun and pat him down.

Facts

A Chicago police officer received information from a sergeant, who received information from an unidentified Chicago Park District security guard, whose source of information was unknown, that a man in Brainerd Park had a gun in his pocket.

The man was described as black, about five-and-a-half feet tall, wearing a purple shirt and black jeans.

Two or three minutes after talking to the sergeant, the officer and his partner saw defendant, who matched the description. There was nothing inappropriate about defendant’ conduct. Nonetheless, the officers approached defendant, and one of the officers immediately touched the pocket of his jeans.

The officer felt what he recognized as the trigger and trigger guard of a gun. The officers ordered defendant to the ground, put him in handcuffs, and placed him under arrest.

Issue

Defendant now challenges the initial seizure, before his arrest, as an unconstitutional Terry stop. He argues that the officers did not have reasonable suspicion to stop him.

In particular, both the security guard’s identity and the source of information remain unknown, “effectively” an anonymous tip, which, without more, cannot provide a reasonable suspicion of criminal activity.

Defendant asserts that the officer’s frisk of his person constituted a Terry stop sufficient to trigger the protections of the fourth amendment and that the tip lacked the requisite legal corroboration to establish reasonable suspicion for a Terry stop and frisk.

Guard Not Anonymous

The State responds that the tip was reliable and not anonymous and contained sufficient information to support the Terry stop. The State argues the tip that led to defendant’s detention came from an identifiable security guard.

The State assures us that we can rely on the security guard’s tip because it was given in person and security guards are presumptively more trustworthy reporters of crime than ordinary eyewitnesses.

Terry Stops

Broadly speaking, Terry, 392 U.S. 1, governs.

Terry gives officers a “narrowly drawn authority” to detain people and search for weapons where they reasonably believe that “criminal activity may be afoot” and that the person seized “may be armed and presently dangerous.” Id. at 27, 30.

A seizure, short of an arrest, is justified only where an officer “reasonably suspects that the person apprehended is committing or has committed a criminal offense.” Arizona v. Johnson, 555 U.S. 323, 326 (2009).

Once seized, he or she may only be frisked if an officer “reasonably suspect[s] that the person stopped is armed and dangerous.” Id.

Informant Tips

In short, the validity of the initial stop constitutes a necessary precondition to the validity of any later search. Informant tips “may vary greatly in their value and reliability.” Adams v. Williams, 407 U.S. 143, 147 (1972).

Cases involving known informants are “stronger cases” than those involving anonymous tipsters. In all cases involving tips, anonymous or otherwise, paramount concerns involve the informant’s “veracity, reliability, and basis of knowledge.” Alabama v. White, 496 U.S. 325, 328 (1990).

Anonymous Tip

An anonymous tip, without more, generally provides “virtually nothing” by which one could conclude that the tipster is honest, that his or her information is reliable, or that he or she has a basis by which to predict a suspect’s criminal activity. 

See People v. Lopez

Episode 549 – People v. Lopez, 2018 IL App (1st) 153331 (October) (Anonymous Tip On A DUI Has Got To Be Specific)

In every legally relevant respect, the tip on which the officers relied is strikingly similar to the tip in Lopez. Just as the officer in Lopez, the officer received his tip from another officer. While the sergeant told the officer that he received information about a man with a gun from a park security guard, just as in Lopez, no testimony identified the ultimate source of the information that the first officer received.

Finally, just as the officer in Lopez, the officer confirmed that defendant matched the general description but did not notice defendant doing anything illegal when he saw him.

Analysis

The State’s argument depends on multiple assumptions that the record does not support.

The State assumes that the security guard provided the tip in person; the record reveals that the officer did not know how the security guard reported the sergeant. The State argues that security guards by nature are more reliable eyewitnesses, but we do not know whether the security guard was actually an eyewitness or learned his or her information elsewhere or, for that matter, whether he or she was an experienced or inexperienced security guard.

There is nothing in the record to indicate whether the guard personally observed the gun possession or if the guard received the information from somebody else. Just as the officer in Lopez, the officer was told a general description of defendant’s appearance and that he was somewhere in the park. Nothing in the record explains the source of the security guard’s information. As a result, we cannot say that the security guard was an “eyewitness.”

 For that reason, the institutional pressures that bear on security guards to avoid falsely implicating someone do not apply. For example, a guard who hears of some criminal activity from another source does not bear personal responsibility for the error if the source turns out to be wrong. He or she can simply pass on the blame for the incorrect information to the unknown source.

Given all of these unknowns, we agree with defendant that the tip was “effectively anonymous” and did not support a finding of reasonable suspicion. 

We see no reason for the State not to have called the park security guard, if he or she is as identifiable as the State purports, to give a firsthand account.

But They Description Of The Man Was Spot-On

As a final argument, the State asks us to find the tip reliable because the sergeant’s description—a black man, 5 feet, 6 inches to 5 feet, 8 inches tall, wearing a purple shirt and black jeans—was more specific than the description in J.L. See 529 U.S. at 268 (“a young black male standing at a particular bus stop and wearing a plaid shirt”).

So what.

We fail to see any indication in J.L. that the outcome would have differed had the tipster been able to describe J.L.’s height. J.L. expressly rejected location and physical appearance as sufficient indicators of the most important fact necessary for a Terry stop: suspicion of criminal activity.

The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.

So Much We Don’t Know

We do not know how the security guard came across the information in the first place, whether he or she personally observed the gun possession or whether it was reported by another source.

Similarly, while we know that it was only two to three minutes from the time the sergeant told the officer and Montes about the man with a gun to the time that defendant was stopped, we have no idea how long it took from the time of the original observation of the man with the gun to the time the sergeant was told.

We may know where the sergeant got his information, but the identity of the ultimate source of the tip—which was undisputedly the State’s burden to provide—remains a mystery.

Holding

We find the security guard’s tip insufficiently reliable. We reverse the trial court’s denial of defendant’s motion to suppress and reverse his conviction outright.

We cannot confirm the reliability of the tip the officers received because there is too much that we do not know about it. We do not reverse defendant’s conviction as a criticism of the officers. We reverse because the State failed to meet its burden to identify the source of the tip—despite its repeated claims that the security guard, who could confirm the source, would be easy to find—rendering the tip’s reliability irrecoverably suspect.

We find that defendant’s seizure was unlawful, having been based on a factually insufficient and unreliable tip. We reverse the trial court’s denial of defendant’s motion to suppress evidence. Because the State will be unable to proceed without evidence of the gun on remand, we reverse defendant’s conviction outright.

See Also

Episode 101 – Navarette v. California, 134 S.Ct 1683 (2014) (April) (police received reliable tip that a driver ran the caller off the rode)

 Episode 468 – People v. Meo, 2018 IL App (2d) 170135 (March) (Gas station attendant calls the police on defendant to report he almost hit the building, so DUI stop justified.)

Scott’s Law In Illinois 625 ILCS 5/11-907(c)

Mar 18, 2020 13:45

Description:

Scott’s Law in Illinois is the requirement that drivers slow down and move over when police cars or other emergency vehicles are stopped on the roadway.

Scott’s Law Basically Says…

Scott’s law requires that a driver proceed cautiously when an emergency vehicle is stopped and

Move over and change lanes and/or Slow down if changing lanes is impossible.

The law imposes enhanced penalties, a possible driver license suspension, and even jail time for severe violations.

625 ILCS 5/11-907(c)

The exact language of the section provides that:

“(c) Upon approaching a stationary authorized emergency vehicle, when the authorized emergency vehicle is giving a signal by displaying alternately flashing red, red and white, blue, or red and blue lights or amber or yellow warning lights, a person who drives an approaching vehicle shall: (1) proceeding with due caution, yield the right-of-way by making a lane change into a lane not adjacent to that of the authorized emergency vehicle, if possible with due regard to safety and traffic conditions, if on a highway having at least 4 lanes with not less than 2 lanes proceeding in the same direction as the approaching vehicle; or (2) if changing lanes would be impossible or unsafe, proceeding with due caution, reduce the speed of the vehicle, maintaining a safe speed for road conditions and leaving a safe distance until safely past the stationary vehicles.”

625 ILCS 5/11-907(c).

Scott’s Law Fines

Maximum fines for a violation of Scott’s Law can be up to $10,000. The chart below outlines the minimum fine that is applicable:

Minimum $250 up to $10,000 For 1st offense Minimum $750 up to $10,000 For 2nd or more offense

625 ILCS 5/11-907(d).

Suspension Of Drivers License Under Scott’s Law

A violation of Scott’s Law is considered a moving violation in Illinois. That means the secretary of state will assign points against your driving record and a discretionary suspension under 625 ILCS 5/6-206 may be incurred.

However, the chart below describes certain mandatory suspensions under Scott’s Law if there are aggravated circumstances:

90 days to 1 year If there is property damage 180 days to 2 year If there is personal injury 2 year suspension If there is a death to a person

625 ILCS 5/11-907(e), (f), (g).

Jail Time For A Scott’s Law Violation

An ordinary violation of Scott’s Law in Illinois is considered a business offense. That means it is punishable by fine only.

However, Scott’s Law may classified as a crime and a person may face jail time under the conditions listed below:

Class A Misdemeanor If there is damage to anther vehicle Class 4 Felony If there is injury or death to another person

625 ILCS 5/11-907(d)
Class A Misdemeanor
Class 4 Felony.

Links & Resources Illinois Vehicle Code on Right-Of Ways Scott’s Law In Illinois Illinois Vehicle Code On Approaching Disabled Vehicles Illinois Vehicle Code On Construction Zones Attorney Peter Wachowski Discusses Defending Against A Scott’s Law Ticket

Episode 751 (Duration 13:45) Illinois attorney Peter Wachowski explains some of the intricacies of defending against a charge under Scott’s Law.

In This Episode…

“That’s the speed limit! You’re suppose to slow down.” — Peter Wachowski

Going to trial against a charge of violating Scott’s Law can get kind of tricky. In this episode an experienced trial attorney describes the process.

Attorney Peter Wachowski

Attorney Peter Wachowski has an active civil law practice focussing on Personal Injury, Worker’s Compensation and Civil Litigation.

However, Peter also is highly experienced in DUI litigation and defense and represents clients in other criminal law matters.

Contact Information

15 N. Northwest Hwy
Park Ridge, IL 60068

peter@bellas-wachowski.com

www.bellas-wachowski.com

“Can’t Miss” Moments:

✓ The “move over” law says you must do one of two things or both when you see an emergency vehicle stopped on the roadway. Not doing these things can lead to pretty serious consequences. (Go to 2:15)

✓ Scott Gillen was a Chicago Fire Department Lieutenant who died in the line of duty two days before Christmas in 2000 when a drunk driver collided with vehicles assisting at a crash scene on the Dan Ryan Expressway. (Go to 3:29)

✓ “The official day of remembrance of him is December 23rd.” — Peter Wachowski (Go to 3:50)

✓ Peter learned some valuable lessons in defending against an allegation of violating Scott’s Law. You don’t want miss what Peter has learned from court trials on this charge. (Go to 6:07)

✓A great example of when going the speed limit can get you in big trouble. (Go to 7:53)

✓ Judge’s don’t like these things. You should expect the judge to do you no favors if you’re accused of violating Scott’s Law. (Go to 10:02)

Police Search This Property Without A Warrant State Concedes Some Illegality

Mar 13, 2020 13:05

Description:

In re K.M., 2019 IL App (1st) 172322 (February). Episode 595 (Duration 13:05)

Police entered onto private property without a warrant to retrieve stolen property, the fallout is widespread.

Anonymous Call

Sauk Village Police Department received an anonymous call on, around 12:18 p.m. from an individual who reported seeing people enter the residence at 22438 Yates Avenue, with items, particularly a television.

The caller called multiple times during the investigation directing the police to 22438 Yates Avenue.

The police department opened a burglary investigation.

The Search But No Seizure

Police arrive and conduct a search of the area surrounding the residence including the garbage cans located on the driveway and the detached garage.

The garbage can was not covered with a lid.

Home Owner Finally Called

That same afternoon, Sauk Village police received another call reporting a burglary.

The caller stated that he had returned home and discovered computer accessories, personal documents, and a large flat-screen television were missing. The items taken were documents including a passport, bank statements, a black television, a black laptop, and a black external hard drive. 

Back To The Garbage Cans

According to police, the garbage was full, but they could identify documents in the garbage that belonged to the victim. The officer did not have to manipulate the garbage in any way to see the victim’s name on the documents.

Police immediately could see a garbage can with a black box on top of the garbage can. They opened the black box and found the victim’s passport and documents with the victim’s address inside the black box. 

Into The Detached Garage

The officers then returned to the garage and found items matching the description of the stolen items. They entered through an open side door.

 Once inside, they spotted a black laptop with an external hard drive in the rafters of the garage. An officer retrieved the laptop and the hard drive before attempting to make contact with the people inside the residence.

Now To The House Itself

They removed these items from the garage and knocked on the door of the residence. No one answered the door; however, the detective noticed people peeking out of the window. A short time later another person arrived at the residence and then alerted the owner of the home, who arrived at the residence shortly after.

This lady was the mother.

Officers explained their presence at her house. Mom then entered the home. She returned to the outside carrying a large flat-screen television. She also brought outside K.M. and two other individuals from inside the house.

Immediately Arrested

The detective testified that they then arrested K.M. based on the totality of the circumstances, the residential burglary report that they had, the description provided by the anonymous caller, and the items recovered.

What description?

At no point did the officers obtain a search warrant or an arrest warrant.

The detective and the officers stayed outside and never went into the home.

Mom’s Testimony

She is K.M.’s mother, she lived at 22438 Yates.

She lived with her brother, six children, and her niece. Her yard was fully enclosed by a fence, including the garage and the area next to the driveway where her garbage cans are located.

When the police first arrived at her home, she was in South Holland that morning with her friend. A detective called her over the phone, and he stated that there were burglary suspects inside of her home and told her to come home in 10 to 15 minutes or else he would kick in her door.

When she arrived, she spoke with the officers outside of her home but she denied giving the officers consent to search her property.

Issue

On appeal, K.M. argues that the trial court erred when it denied his motion to suppress both physical evidence and his custodial statement because they were obtained as a direct result of an illegal search. K.M. contends that his arrest was due to law enforcement’s exploitation of illegally obtained evidence.

Specifically, he asserts that Mom’s delivery of the television, his arrest, and his confession were fruits of an illegal search.

State Concedes Some Illegality

The State does not dispute that the search of the property was an illegal search of the curtilage of the home.

The State argues, however, that the arrest was proper because the officers had independent probable cause to believe that a crime had been committed by someone in the house prior to any illegal search. Alternatively, the State argues that Mom was not induced to produce the television because of the illegally seized evidence obtained by the police.

The Fourth Amendment

The fourth amendment of the United States Constitution ensures the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const., amend. IV; see also Elkins v. United States, 364 U.S. 206, 213 (1960) (noting that the fourth amendment applies to state officials through the fourteenth amendment).

The amendment protects individuals and not specific locations.

Search & Seizure Resource Page To see more Illinois Search And Seizure Resources and case law go here. See Also These Property Based Cases

Episode 501 – Collins v. Virginia, SCOTUS (May 2018) (police need a warrant to search a vehicle on private property)

Episode 552 – People v. Bonilla, 2018 IL 122484 (October) (constitutional violation did not depend on whether the common door to the apartment was locked)

Episodes 464 – Florida v. Jardines, 133 S. Ct. at 1409 (2013) (police can’t bring a police dog to your front stoop for a sniff without a warrant)

Was There Independent Probable Cause?

The State posits there was enough information to satisfy the probable cause requirement because the victim’s phone call corroborated the anonymous call that a burglary had occurred and K.M. matched the anonymous caller’s description.

Probable cause exists when the facts known to the officer at the time of the arrest are sufficient for a reasonably cautious person to believe that the arrestee has committed a crime. People v. Wear, 229 Ill. 2d 545, 563-64 (2008). The existence of probable cause depends upon the totality of the circumstances at the time of the arrest.

The court deals with probability when assessing probable cause.

Probable Cause From An Anonymous Tip

In the context of tips forming the basis for probable cause, a reviewing court considers the informant’s “veracity, reliability, and basis of knowledge.” People v. Sparks, 315 Ill. App. 3d 786, 792 (2000). The anonymous tip must provide some indicia of reliability; otherwise the police officers are forced to conduct additional investigation to verify the information or may not respond to the tip.

Ordinarily, information from a “concerned citizen” is considered more credible than information from a paid informant or a person who provided information for personal gain. People v. Linley, 388 Ill. App. 3d 747, 750 (2009).

The State asks us to assume that the tipster called the 911 dispatch system and thus the caller had some indicia of reliability. However, there is no evidence in the record indicating that the tipster contacted the police through an emergency number. Furthermore, the tipster did not provide a name and therefore must be treated as anonymous.

Was There Sufficient Corroboration?

Thus, the tipster’s “reliability hinges on the existence of corroborative details observed by the police.”

Here, the anonymous caller only relayed to the police that they saw people entering the residence of 22438 Yates Avenue carrying items such as a television. Nothing in the record suggested that the caller observed these people participate in any unlawful conduct. In fact, it could appear that the people entering into the house were engaging in innocuous behavior.

There was no indication what-so-ever that the television was stolen.

Furthermore, there is no evidence that any effort was made to verify the anonymous tip before the officers attempted to contact the residents of 22438 Yates Avenue. The officers never observed anyone engaged in criminal activity to corroborate the phone call. In fact, the officers did not even see K.M. until they arrested him.

Therefore, we find that the tip was uncorroborated and unreliable.

See Also Recent Anonymous Tip Cases

Episode 549 – People v. Lopez, 2018 IL App (1st) 153331 (October) (caller only said the driver was “DUI” – what the heck is that?)

Episode 101 – Navarette v. California, 134 S.Ct 1683 (2014) (April) (almost driving the caller off the rode justified a traffic stop)

468 – People v. Meo, 2018 IL App (2d) 170135 (March) (Citizen’s Tip That Driver Almost Hit The Building Justifies Investigatory Stop For DUI)

But The Caller Said His TV Was Gone

Other than the unverified call that did not report a crime, the only information provided was the victim’s call, and this evidence is insufficient to establish probable cause to arrest K.M.

We find the detective’s testimony, that the officers arrested K.M. “based on the totality of the circumstances, the residential burglary report that they had, the description provided by the anonymous caller, and the items recovered,” telling as to whether the officers had independent probable cause.

His testimony is contrary to the State’s position and indicates that the items recovered from the garage and the garbage were indeed a factor in this case.

Accordingly, we find that the State did not have independent probable cause to arrest K.M. on his porch.

Was There Sufficient Attenuation?

Having found that no independent probable cause existed to arrest K.M., we now determine whether Mom’s delivery of the television, K.M.’s arrest, and K.M.’s subsequent confession were attenuated from the initial illegal search.

“The fruit-of-the-poisonous tree doctrine is an outgrowth of the exclusionary rule providing that ‘the fourth amendment violation is deemed the “poisonous tree,” and any evidence obtained by exploiting that violation is subject to suppression as the “fruit” of that poisonous tree.’ ” People v. Burns, 2016 IL 118973, ¶ 47 (quoting People v. Henderson, 2013 IL 114040, ¶ 33).

Courts have recognized several exceptions to the exclusionary rule. See In re Jarrell C., 2017 IL App (1st) 170932, ¶ 24.

The Exceptions To The Exclusionary Rule

Those exceptions are

the independent source doctrine the inevitable discovery doctrine and the attenuation doctrine.

The exception at issue here is the attenuation doctrine, under which evidence challenged for a fourth amendment violation is admissible if the connection between the unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstances. Utah v. Strieff, 579 U.S. ___, ___, 136 S. Ct. 2056, 2061 (2016).

“The attenuation doctrine evaluates the causal link between the government’s unlawful act and the discovery of evidence, which often has nothing to do with a defendant’s actions.” Id. at ___, 136 S. Ct. at 2061.

Brown v. Illinois

Our inquiry is guided by the three factors articulated in Brown v. Illinois, 422 U.S. 590 (1975).

First, we consider the “temporal proximity” between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional search. 
Second, we examine “the presence of intervening circumstances.”
Third, we consider “the purpose and flagrancy of the official misconduct.”
Fourth, if a confession is being challenged, whether Miranda warnings were given.

The State argues that Mom’s conduct in producing the television was a voluntary act, free from any taint of the illegal search, and constituted an intervening circumstance that provided independent probable cause to seize the television. However, the record belies the State’s contention.

The record demonstrates that after the illegal search and the recovery of the victim’s documents and computer accessories, the detective’s discussion with Mom on the phone prompted her return home. Upon her return, he then explained to her in person the “situation and case status.” The police never broke the causal connection between their illegal search and obtaining the television.

The officers never left K.M.’s property, which demonstrates that the taint of the unconstitutional conduct was ongoing at the time that the police made contact with Mom. Any contact with Campbell during that timeframe was sufficiently a part of the taint including her delivery of the television.

Holding

We conclude that there was no independent intervening event that broke the causal chain between the illegal search and the discovery of the television. Here, the police officers illegally searched the curtilage of K.M.’s home twice in a short time span. There was no warrant authorization to search nor was there any indication of circumstances justifying an exception to the search warrant requirement.

The police only attempted to contact Mom once they had recovered the items from the garage and garbage reported missing by the victim.

The police had no warrant or exigency to be on the property; thus any action the officers had on the property after the second call was akin to embarking “upon a course of illegal conduct in hope that some incriminating evidence *** might be found.” Jennings, 296 Ill. App. 3d at 765.

We determine that this factor weighs in favor of K.M.’s argument for suppression. Taken together, all the factors weigh in favor of suppressing the evidence.

We find that there was no attenuation between the illegal search of property, the officers obtaining the television, and K.M.’s arrest. As such, we hold that the trial court erred in denying the motion for suppression as to the television and to quash K.M.’s subsequent arrest.

The record is silent as to, inter alia, K.M.’s testimony and circumstances around his confession. We cannot make an independent determination of the admissibility of respondent’s confession. Therefore, we find it appropriate to remand the case for an attenuation hearing on this issue.

For the foregoing reasons, we reverse the judgment of the trial court and remand for further proceedings.

In 2020 Can Police Search Your Car If They Smell Marijuana?

Mar 4, 2020 44:50

Description:

After Illinois passed the Cannabis Regulation and Tax Act which became effective in 2020, can police still search a car when they smell cannabis?

The Old “Smell Of Weed Rule” In Illinois Before Decriminalization Of 2020 The warrantless search of a car is authorized “where a trained and experienced police officer detects the odor of cannabis emanating from a defendant’s vehicle.” People v. Stout, 106 Ill.2d 77, 88 (1985)

The question today, is if this rule survived the cannabis law change in 2020.

In This Episode…

“The officer would probably be better suited to try and find more information, more probable cause, to layer that probable cause.” — John “Jack” Duggan

Attorney John Duggan

Jack’s father is a retired Chicago Police Officer. Jack followed in his father’s footsteps and became a Police Officer for the Village of Oak Park. While working as a Police Officer, Jack decided to continue his studies and attended The John Marshall Law School.

 Jack focuses his practice in the areas of Real Estate, Family Law, Estate Planning, and selected criminal matters.

Jack Duggan’s Contact Information

782 Busse Highway
Park Ridge, IL 60068
john@johnmdugganlaw.com

http://www.johnmdugganlaw.com/

Attorney Jeff Hall

“I basically call it the ‘sniff and search’ statute.” — Jeff Hall

“I basically call it the ‘sniff and search’ statute.” – Jeff Hall

Jeffrey R. Hall has practiced law since 2004, concentrating in the area of Criminal Law, DUI, Traffic Law, Driver’s License & FOID Card Reinstatement’s. 

He began his legal career as an Assistant State’s Attorney in Tazewell County, IL.

Jeff Hall helped draft SB228 (passed on July 29, 2016), the popular Cannabis Decriminalization Bill and was an integral part of the legislative process, changing Illinois law from a “Zero Tolerance” state for cannabis related DUIs, to a more reasonable law that focused more on impaired driving.

Jeff Hall’s Contact Information

316 SW Washington Street, Suite 1A
Peoria, IL 61602

jhall@hallrustomfritz.com

http://www.centralillinoislawyers.com/

Links & Resources Cannabis Regulation and Tax Act Cannabis Control Act Illinois Vehicle Code The Sniff & Search Law – 625 ILCS 5/11-502.15 What The Illinois Cannabis Regulation And Tax Act Says About Lawful Limits?

410 ILCS 705/10-10. Possession Limit.

“(a) Except if otherwise authorized by this Act, for a person who is 21 years of age or older and a resident of this State, the possession limit is as follows:


(1) 30 grams of cannabis flower;
(2) no more than 500 milligrams of THC contained in cannabis-infused product;
(3) 5 grams of cannabis concentrate; and
(4) for registered qualifying patients…”

Strict Prohibition of Cannabis Possession For Those Under 21

410 ILCS 705/10-15. Persons under 21 years of age.

“(b) Notwithstanding any other provisions of law authorizing the possession of medical cannabis, nothing in this Act authorizes a person who is under 21 years of age to possess cannabis. A person under 21 years of age with cannabis in his or her possession is guilty of a civil law violation as outlined in paragraph (a) of Section 4 of the Cannabis Control Act.
(c) If the person under the age of 21 was in a motor vehicle at the time of the offense, the Secretary of State may suspend or revoke the driving privileges of any person for a violation of this Section under Section 6-206 of the Illinois Vehicle Code and the rules adopted under it.” Further Limitations And Prohibition Of Cannabis In Certain Places

410 ILCS 705/1-35. Limitations and penalties.

“a) This Act does not permit any person to engage in, and does not prevent the imposition of any civil, criminal, or other penalties for engaging in, any of the following conduct… (2) possessing cannabis: (D) in a vehicle not open to the public unless the cannabis is in a reasonably secured sealed, container and reasonably inaccessible while the vehicle is moving; or… (3) using cannabis:
(D) in any motor vehicle;
(F)…in any public place; or
(G) knowingly in close physical proximity to anyone under 21 years of age who is not a registered medical cannabis patient under the Compassionate Use of Medical Cannabis Program Act… 4) smoking cannabis in any place where smoking is prohibited under the Smoke Free Illinois Act;” The Cannabis Control Act Still Criminalizes Possession Of The Following Amounts Of Cannabis…

720 ILCS 550/4. Cannabis Control Act.

“Except as otherwise provided in the Cannabis Regulation and Tax Act and the Industrial Hemp Act, it is unlawful for any person knowingly to possess cannabis. Any person who violates this Section with respect to: (c) more than 30 grams but not more than 100 grams of any substance containing cannabis is guilty of a Class A misdemeanor; provided, that if any offense under this subsection (c) is a subsequent offense, the offender shall be guilty of a Class 4 felony; (d) more than 100 grams but not more than 500 grams of any substance containing cannabis is guilty of a Class 4 felony; provided that if any offense under this subsection (d) is a subsequent offense, the offender shall be guilty of a Class 3 felony; (e) more than 500 grams but not more than 2,000 grams of any substance containing cannabis is guilty of a Class 3 felony; (f) more than 2,000 grams but not more than 5,000 grams of any substance containing cannabis is guilty of a Class 2 felony; (g) more than 5,000 grams of any substance containing cannabis is guilty of a Class 1 felony.” Delivery And Possession With Intent To Deliver Cannabis Remains Illegal

720 ILCS 550/5. Cannabis Control Act.

“Except as otherwise provided in the Cannabis Regulation and Tax Act and the Industrial Hemp Act, it is unlawful for any person knowingly to manufacture, deliver, or possess with intent to deliver, or manufacture, cannabis. Any person who violates this Section with respect to: (a) not more than 2.5 grams of any substance containing cannabis is guilty of a Class B misdemeanor; (b) more than 2.5 grams but not more than 10 grams of any substance containing cannabis is guilty of a Class A misdemeanor; (c) more than 10 grams but not more than 30 grams of any substance containing cannabis is guilty of a Class 4 felony; (d) more than 30 grams but not more than 500 grams of any substance containing cannabis is guilty of a Class 3 felony for which a fine not to exceed $50,000 may be imposed; (e) more than 500 grams but not more than 2,000 grams of any substance containing cannabis is guilty of a Class 2 felony for which a fine not to exceed $100,000 may be imposed; (f) more than 2,000 grams but not more than 5,000 grams of any substance containing cannabis is guilty of a Class 1 felony for which a fine not to exceed $150,000 may be imposed; The Illinois Vehicle Code Still Criminalizes Cannabis Related DUI’s

625 ILCS 11-501. Driving while under the influence of alcohol, other drug or drugs, intoxicating compound or compounds or any combination thereof.

“(a) A person shall not drive or be in actual physical control of any vehicle within this State while: (4) under the influence of any other drug or combination of drugs to a degree that renders the person incapable of safely driving; (7) the person has, within 2 hours of driving or being in actual physical control of a vehicle, a tetrahydrocannabinol concentration in the person’s whole blood or other bodily substance as defined in paragraph 6 of subsection (a) of Section 11-501.2 of this Code. Subject to all other requirements and provisions under this Section, this paragraph (7) does not apply to the lawful consumption of cannabis by a qualifying patient licensed under the Compassionate Use of Medical Cannabis Program Act who is in possession of a valid registry card issued under that Act, unless that person is impaired by the use of cannabis.” The “Sniff & Search” Law – 625 ILCS 5/11-501.15

625 ILCS 5/11-502.15. Possession of adult use cannabis in a motor vehicle.

“(a) No driver may use cannabis within the passenger area of any motor vehicle upon a highway in this State. (b) No driver may possess cannabis within any area of any motor vehicle upon a highway in this State except in a sealed, odor-proof, child-resistant cannabis container. (c) No passenger may possess cannabis within any passenger area of any motor vehicle upon a highway in this State except in a sealed, odor-proof, child-resistant cannabis container. (d) Any person who knowingly violates subsection (a), (b), or (c) of this Section commits a Class A misdemeanor. “Can’t Miss” Moments From Episode 745

✓ An officer who encounters the odor of cannabis in a car might have to start running through a mental checklist. What are the things they should be checking-off? (Go to 4:46)

✓ Legitimate law enforcement objectives are implicated by the smell of weed. After Illinois has decriminalized marijuana what legitimate law enforcement concerns remain on the table? (Go to 5:42)

✓ There is at least one situation where a car reeking of cannabis is going to get searched by the police. Jump to this spot to find out what that situation is. (Go to 7:50)

✓ What does a positive drug dog sniff mean now that some cannabis can be possessed legally? (Go to 11:50)

✓ How does the plain view doctrine affect this question? What have other legalized states done with this question of allowing officers to search car based on the smell of cannabis? (Go to 22:01)

✓ How a “sealed, odor-proof, child-resistant cannabis container” can be the difference between wide spread car searches in Illinois and/or very limited ones. (Go to 24:50)

✓ Urban Dictionary defines “hotboxing” as, “n. The practice of smoking marijuana in an enclosed space (e.g. a car or a small room) in order to maximize the narcotic effect.” (Go to 34:20)

See Also

You may also want to check out…

People v. Rice, 2019 IL App (3d) 170134 (April). Episode 623 (Duration 7:36) (odor of cannabis indicative of criminal activity) Episode 556 – Interview With Charles Schierer | The Best Reason To Change The “Smell Of Cannabis” Rule Episode 509 – In re O.S., 2018 IL App (1st) 171765 (June) (1st District also says smell of weed rule is still valid)  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)  Episode 621 – People v. Brandt, 2019 IL App (4th) 180219 (April) (officer smelled cannabis and that justified the warrant)  Episode 340 – Kim Bilbrey on The Magic Words That Instantly Allow An Officer To Search A Car Without A Warrant Episode 558 – People v. Williams, 2018 IL App (2d) 160683 (October)(odor of alcohol alone means nothing) Episode 015 – People v. Abdur-Rhamim, 2014 IL App (3d) 130558 (August) (Police Can Search A Car In Illinois If The Smell Marijuana, So What Went Wrong Here For The Police?) Episode 276 – You Just Can’t Ignore The Stench Of Weed In An Auto Accident 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 Episode 196 – Dog Sniff Alert To Drugs Will Lead To Car Search

February 2019 Speed Round (The Illinois Criminal Case Law Round Up)

Mar 2, 2020 14:12

Description:

This is the February 2019 Illinois criminal case law audio round-up (the fast case law summary). Episode 598 (Duration 14:12)

The February 2019 Top Illinois Criminal Law Cases (The Monthly Round-Up)

Here’s a quick snapshot of the top cases:

1. People v. Gawlak

Motions for DNA testing in old cases are distinct and separate civil hearings where counsel can come onboard for a limited purpose.

2. Timbs v. Indiana

Eight Amendment ban on excessive fines and forfeitures extends to the states.

3. People v. Baker

Inadmissibility of prior consistent statement trumps hearsay exceptions.

4. People v. Davison

Another example of evidence that was admitted to demonstrate the course of the police investigation.

5. People v. Bradford

Looks like trial counsel did what they could with this ballistics expert.

6. In re K.M.

Police entered onto private property without a warrant to retrieve stolen property, the fallout is widespread.

7. People v. Bowden

Mistake of law case; Theus is under attack.

8. People v. Swenson

How not to ask about a school’s security.

9. People v. Wise

Drugs are found upstairs when defendant was downstairs, is this still armed violence?

10. People v. Lee

Exactly what does the state have to prove in regards to possessing a gun with defaced serial number?

11. People v. Johnson

Defendant is allowed to explain why he missed his sentencing hearing even though the trial court technically has no jurisdiction.

12. People v. Contursi

Court must take into account the future ability to pay when assessing an appropriate felony fine.

When Is A Criminal Informant Considered A Witness Who Has To Testify?

Feb 26, 2020 09:39

Description:

People v. Monroy-Jaimes, 2019 IL App (2d) 160426 (January). Episode 586 (Duration 9:38)

Interesting use of an informant, how much of it was legal?

Confidential Informant

Police had an individual who was in custody for having possessed drugs with the intent to deliver.

This confidential informant identified a person named “Chilango,” who was later identified as the defendant, as someone who could provide cocaine.

The First Phone Call

At an officer’s direction, the informant placed a phone call to Chilango.

The officer was able to hear both sides of the conversation. Although the conversation was in Spanish, This officer spoke fluent Spanish. The informant asked Chilango for five ounces of cocaine. Chilango stated that he could provide only two ounces right away or five ounces later.

A short time later, the informant called Chilango again and stated that he could wait to get five ounces. They also discussed meeting at a BP gas station at 149 East Ogden Avenue in Hinsdale to conduct the drug sale.

Chilango stated that he would call when he had the cocaine.

The Second Phone Call

Later, the officer directed the informant to call Chilango again.

The officer heard both sides of the conversation. Chilango told the informant that he was waiting to get the cocaine but that they could meet at the gas station in about an hour. About a half-hour later, Chilango called the informant and to say that he was on the way to the gas station.

The Gas Station

At about 7 p.m., the informant received another call from Chilango, who asked for directions to the gas station.

Chilango called again for more directions a few minutes later.

Shortly after 7 p.m., the informant and the officer were parked with a view of the gas station. The informant told the officer that he saw Chilango arriving at the gas station in a Toyota Rav 4. Police observed the defendant pull into the gas station and park at a gas pump.

The officer identified the defendant in court as the person he saw in the vehicle at the gas station. The defendant had not committed any traffic violations when he pulled into the gas station. After parking, the defendant exited his vehicle and went into the gas station.

The Third Phone Call

The informant received another call from Chilango at about 7:10 p.m.

Chilango stated that he was at the gas station. At that point, the officer with the informant alerted surveillance officers, who went into the station and placed the defendant in custody. The officer then had the informant call Chilango’s phone number, and one of the surveillance officers answered the defendant’s phone.

At the police station, the officer overheard the defendant talking and recognized the defendant’s voice as the voice of Chilango.

Issue

The defendant argues that the police did not have probable cause to arrest him.

Probable Cause

A warrantless arrest is valid only if supported by probable cause.

Probable cause to arrest exists when the facts known to the police when they make the arrest are sufficient to lead a reasonably cautious person to believe that the arrestee has committed a crime. The existence of probable cause depends upon the totality of the circumstances at the time of the arrest. In addressing probable cause, we deal with probabilities.

They are the factual and practical considerations of everyday life on which reasonable and prudent people, not legal technicians, act.

Accordingly, whether probable cause exists depends upon commonsense considerations, and such a determination concerns the probability of criminal activity, rather than proof beyond a reasonable doubt. Indeed, probable cause does not require even a showing that the belief that the suspect had committed a crime was more likely true than false.

An Informant’s Tip

If the facts supplied in an informant’s tip are essential to a finding of probable cause, the tip must be reliable. People v. Johnson, 368 Ill. App. 3d 1073, 1081 (2006). An indication of the reliability of the tip is when the facts learned through police investigation independently verify a substantial part of the tip. People v. James, 118 Ill. 2d 214, 225 (1987).

The reliability of the informant is another fact to be considered. The reliability of the informant is enhanced if he is known to the police. However, if an informant is offered leniency in exchange for information that incriminates others, such information is clearly suspect.

Whether an informant has provided reliable information depends on the totality of the circumstances. 

Not A Confidential Informant

In the present case, the informant’s reliability was established under the totality of the circumstances.

The informant provided the tip in person while in police custody. This enhanced the reliability of the tip. A confidential informant is deemed more reliable than an anonymous informant. People v. Bryant, 389 Ill. App. 3d 500, 518-19 (2009); see also People v. Sanders, 2013 IL App (1st) 102696, ¶ 19 (recognizing the “difference between an anonymous tip and one from a known informant whose reputation can be ascertained and who can be held accountable if a tip turns out to be fabricated”).

Further, there was no evidence that the informant was given any specific inducement or promise in exchange for providing the information about the defendant and cooperating with the police.

Information Corroborated By The Officer

In addition, the informant’s reliability was enhanced by the fact that much of the information relied upon to establish probable cause was based on the officer’s personal observations during the phone calls between the informant and the defendant. People v. Blake, 266 Ill. App. 3d 232, 242 (1994) (noting that an informant’s reliability was enhanced because “much of the information relied on to establish probable cause was based on the police officer’s personal observations rather than mere anecdotal information supplied by the informant”).

Here, the officer listened in on all of the phone calls between the informant and the defendant. Much of the information provided by the informant was verified before the defendant’s arrest.

No Proven Track Record

The defendant argues that the informant was unreliable because there was no evidence that he had provided reliable information in the past. However, the lack of any such evidence does not change our conclusion. Prior reliable tips are simply one consideration in the totality of the circumstances as to whether the informant was reliable.

Analysis

This case involved an arranged purchase of narcotics of which the police had first-hand knowledge. This nullified much of the need for an informant with a proven track record.

In this case, unlike in the cases cited by the defense, the officer listened as the informant and the defendant set up a specific drug transaction, and, the informant was not anonymous and much of the information was corroborated prior to the defendant’s arrest. As there were other factors supporting the informant’s reliability, a track record of supplying reliable information was not critical.

The informant and the defendant reached a very specific agreement for the delivery of five ounces of cocaine, and the defendant arrived at the prearranged location. Further, there was no evidence that the informant was receiving any lessened punishment.

Holding

Under the totality of the circumstances, the police were aware of facts sufficient to lead a reasonably cautious person to believe that the defendant had committed a crime. 

Based on all the circumstances, there was a fair probability that the defendant had brought cocaine to the gas station.

The judgment of the circuit court of Du Page County is affirmed.

Informant’s Identity Was Not An Issue

As far as I can tell this informant was never identified in court and he did not testify. He clearly started making phone calls to prevent charges on himself. So there was a clear benefit to him. The only thing different here is that the police were there for all the phone calls, the negotiating and the plans for the transaction.

Interesting question is if this informant was a “transactional” witness? At one point, the informant tells the officer that he saw Chilango arriving at the gas station in a Toyota Rav 4. Was that admissible? This guy eventually confesses in the interrogation but I think these are interesting questions.

Transactional Informant

 The circumstances whereby disclosure of an unidentified informant is required are noted in Supreme Court Rule 412(j)(ii), which provides:

“Informants. Disclosure of an informant’s identity shall not be required where his identity is a prosecution secret and a failure to disclose will not infringe the constitutional rights of the accused. Disclosure shall not be denied hereunder of the identity of witnesses to be produced at a hearing or trial.” 

The standard is that disclosure required when an informant acted in the dual role of an informant-participant. A transactional informant has to be disclosed. See People v. Herron, 578 N.E.2d 1310, 218 Ill.App.3d 561 (September 1991). Where an informant’s knowledge is potentially significant on the issue of the defendant’s guilt or innocence, the defendant is prejudiced by the State’s denial of production.

On the other hand, where the unnamed informant was neither a participant nor a material witness to the essential elements of the offense, the informant is not a crucial witness and his identity can be withheld. In Illinois, the factors considered by courts under this balancing test are whether the requests for disclosure related to the fundamental question of guilt or innocence rather than to the preliminary issue of probable cause; whether the informant played an active role in the criminal occurrence as opposed to being a mere tipster; and whether it has been shown that the informant’s life or safety would likely be jeopardized by disclosure of his identity.

See also People v. Rose, 342 Ill.App.3d 203, 276 Ill.Dec. 754 (July 2003). Defendant has the burden to show that disclosure of the informant’s identity is necessary to prepare his defense. Deciding whether to require disclosure of this information involves balancing the public interest in protecting informants against a defendant’s right to prepare a defense. When informant is alleged to have participated in, witnessed, or helped to arrange the crime and disclosure will not jeopardize the informant’s safety, the privilege will generally give way to a defendant’s right to prepare his defense.

On the other hand, where the informant neither participated in nor witnessed the offense, the informant is not a crucial witness and his identity may be withheld.

Daniel Epstein Is Running For The Illinois Supreme Court

Feb 18, 2020 35:06

Description:

In Episode 738 (Duration 35:06) Illinois attorney Daniel Epstein sat down with the Criminal Nuggets Podcast and told us about his vision for the Illinois Supreme Court.

In This Episode…

“These rules people don’t think about very much actually have a real impact on our substantive rights and whether we find truth in our courts.” — Daniel A. Epstein

How can the Illinois Supreme Court use its supervisory power to improve our criminal justice system?

Daniel has some big ideas that could make a big difference. For starters we can:

Rewrite some of the rules of evidence Create broader criminal discovery (Go to 24:54) Allow some form of a criminal deposition (Go to 13:51) Listen to the entire episode to hear all of Daniel Epstein’s ideas. Who Is Daniel Epstein?

Daniel Epstein is a candidate for justice of the Illinois Supreme Court. He’s running to be elected to the state’s highest court.

Before entering the race he was an attorney with Jenner & Block in Chicago and he worked on the following types of cases:

Appeals Civil Rights Post Conviction Litigation Immigration Domestic Violence Orders of Protection Criminal Defense Complex Commercial Civil Litigation Intellectual Property Government Contracts Internal Investigations Campaign Information

Evanston, IL
info@epsteinforsupremecourt.com

https://www.epsteinforsupremecourt.com/

“Can’t Miss” Moments:

✓ “The most important way that I’m different is that I’m talking about reform, and in particular, use of the court’s non adjudicative power.” – Daniel A. Epstein

✓ Did you know more than one third of the justices on the Supreme Court of the United States and the Illinois Supreme Court went from being attorneys straight to the supreme court without any prior judicial experience? (Go to 2:11)

✓ The Illinois Supreme Court is unique because it is not just a case decider it is also a policy maker. It writes the rules.  (Go to 2:58)

✓ “No one on the Supreme Court is a biometrician. They don’t do biometrics they review biometrics.” (Go to 4:15)

✓ The thing that got Daniel Epstein into the race was a case. It was an attempt murder case and it illuminated one glaring problem in our criminal justice system. (Go to 5:25)

✓ In this episode you’ll discover an answer to one of biggest puzzles affecting Illinois criminal justice reform: How does a guy like Jon Burge get away with doing what he did for 20 year? In other words, why didn’t the system uproot and reveal his malfeasance much sooner? (Go to 7:26)

✓ Are you comfortable with the fact that our forensic labs and our court system “earns” more money for every conviction it produces? See the Criminal And Traffic Assessment Act and the Statute on Fines, Fees,& Assessments. (Go to 8:34)

✓ “In order to keep the system alive there needs to be a flow of money. In some cases our courts have really contorted themselves in order to carry water for a legislature that has been unwilling to fund or system at a level that justice requires.” (Go to 12:15)

✓ Bond is about public safety and ensuring people come back to court. Bond is not about this one thing that Daniel finds outrageous. (Go to 12:30)

✓ It’s a well known secret that some Cook County prosecutors do this as a form of trial prep? It might be “legal” but also not what the rules intended. (Go to 18:14)

✓ We actually use to believe trial by ambush was the best system. We don’t believe that anymore. There is a better way. There’s nothing wrong from learning from our mistakes and reforming. (Go to 21:04)

✓ Why prosecutors may support and benefit from some of Daniel Epstein’s criminal justice reform ideas. (Go to 22:21)

✓ “An ounce of prevention is worth a pound of cure.” How true this is when applied to our criminal justice system. (Go to 23:49)

✓ What you need to know about the “Open File Rule.” Other states do it, it reduces the work load for prosecutors and it could make a big difference for us in Illinois. (Go to 24:54)

✓ Listen to what Daniel Epstein has to say about wrongful convictions. I asked if if it’s a large problem, a small problem or no problem at at? (Go to 28:26)

Links & Resources The Six Flags Biometrics Case Illinois Supreme Court Rule 402 Jon Burge Notorious Chicago Detective Who Tortured Suspects Public Act 100-0987 The Criminal And Traffic Assessment Act Understanding Illinois’ New Court Fines And Fees Law Illinois Rule Of Evidence 414 On Criminal Depositions Illinois Rule Of Evidence 702 On Expert Witnesses

Traffic Stop Based On Mistaken Identity Is Considered A Reasonable Mistake of Fact

Feb 12, 2020 16:08

Description:

People v. Hill, 2019 IL App (4th) 180041 (January). Episode 584 (Duration 16:08)

Officer sees passenger riding low in the seat and he thinks it may be a guy wanted on warrant, turns out it wasn’t him.

Gist

Defendant was the driver of the car. The State charged him with unlawful possession of a substance containing less than 15 grams of cocaine.

Riding Low

In May 2017, around 10 a.m., Officer Robert Baker was parked in his squad car on west Route 36 near the 2200 block in Decatur when defendant’s Chevrolet Monte Carlo quickly decelerated to well below the speed limit, causing traffic to back up.

As the car drove by the officer, he noticed the passenger was reclined in the car with his head mostly obstructed by the side panel, where the seatbelt is attached, referred to by the officer as the “B panel.”

The officer then drove from his parked location in order to get a better look at the passenger. It was his experience that people wanted on warrants or concerned about rival gang members frequently ride in the same manner he was observing in order to remain concealed.

“Ain’t He Wanted On A Warrant?”

When he pulled up next to the vehicle, he was able to see the hair, face, skin tone, and apparent build of the passenger and believed him to be Duane Lee, a person he knew to be wanted on a traffic warrant.

He was able to see the entire left side of the passenger’s head and neck when he pulled up alongside defendant’s car on the driver’s side. He believed the person to be Lee based on the hair, face, skin tone, and apparent build of the person he observed in defendant’s vehicle.

Officer Baker was familiar with Lee from previous observations of him on the street throughout his time as a police officer, as well as his practice of keeping current on persons wanted on warrants. He explained he did this by regularly reviewing the department’s records of wanted people in Decatur and then viewing the most recent photos the Decatur Police Department had on those individuals.

Gonna Stop This Car

While waiting for a backup vehicle to arrive on the scene, the officer followed the vehicle.

He traveled approximately 30 blocks from when he first saw the car until it was ultimately stopped. It took some time to catch up to the car from his parked position, and believing the passenger to be wanted on a warrant he wanted another police vehicle in the vicinity before confronting the man.

In addition, he noted that once he activated his lights to effectuate the stop, it took several blocks for the car to actually come to a stop. In his experience, when this occurs during a traffic stop, the occupants of the vehicle may be concealing or attempting to conceal or destroy contraband. In such instances, he said, one of the most serious concerns is whether an occupant is seeking to retrieve a weapon.

Car Is Stopped

Once a backup squad car was near, Officer Baker initiated a stop of defendant’s vehicle. Approaching from the passenger side, he asked the passenger to identify himself and step out of the vehicle.

Immediately upon making contact with the passenger, smelled the odor of “raw” cannabis.

“What I Do Wrong?”

Upon being asked by defendant, the driver, what defendant did wrong, on the in-car video stipulated into evidence, Officer Baker said, “I thought [the passenger] was wanted, is why I stopped you, that’s why I stopped you.”

Directing his attention­ to the passenger, Officer Baker stated, “[A]ctually, to tell you the truth, I thought you were somebody else.” Within a matter of approximately 15 seconds, Officer Baker told the occupants he could smell raw cannabis in the car and said he observed a “bud” in the back seat.

Defendant Out The Car

After another police car arrived, defendant was asked to exit the vehicle and, after being patted down, to sit on the curb next to the car.

A search of the vehicle produced an unspecified amount of cannabis, described as being “much less than a pound or an ounce.” In addition, the officers found “a small rock that tested positive for crack cocaine” under the driver’s seat. Again, the specific amount was not identified.

Defendant was arrested while the passenger, once identified as someone other than the individual wanted on a warrant, was permitted to walk away.

Issue

Defendant filed a motion to suppress evidence of the cocaine found in the car, arguing the officer did not have reasonable suspicion for the stop and, alternatively, probable cause to search defendant’s car.

Trial judge grants the motion, in part, because the officer had no other corroborating evidence of identification.

Fourth Amendment

“The Fourth Amendment provides that ‘the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ***.’ ” Terry v. Ohio, 392 U.S. 1, 8 (1968). The fourth amendment of the United States Constitution focuses on “the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.”

“The law is well settled that stopping a vehicle and detaining its occupants constitute a ‘seizure’ within the meaning of the fourth amendment.” People v. Timmsen, 2016 IL 118181, ¶ 9, 50 N.E.3d 1092.

Investigative Stop

“[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. The standard for a stop is “reasonable, articulable suspicion.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). “Although ‘reasonable, articulable suspicion’ is a less demanding standard than probable cause, an officer’s suspicion must amount to more than an ‘inchoate and unparticularized suspicion or “hunch” ’ of criminal activity.” Timmsen, 2016 IL 118181, ¶ 9 (quoting Terry, 392 U.S. at 27).

Although clearly “seizures,” traffic stops are more like Terry investigative detentions than formal arrests and therefore may be reasonable if initially justified and reasonably related in scope to the circumstances that justified the interference in the first place.

Reasonableness Is The Standard

“[R]easonable suspicion determinations must be made on commonsense judgments and inferences about human behavior.” Timmsen, 2016 IL 118181, ¶ 14. “A determination that reasonable suspicion exists, however, need not rule out the possibility of innocent conduct.” United States v. Arvizu, 534 U.S. 266, 277 (2002).

In determining if there was reasonable suspicion for the stop, there is no bright-line rule, but instead the court is to consider the “totality of the circumstances of each case.” Timmsen, 2016 IL 118181, ¶ 18.

No Unlawful Behavior Required

The most significant distinction in this case is, however, that there is no need for the officer under these circumstances to be required to analyze and justify the stop based on any suspicion of unlawful behavior.

We do not have to surmise whether the actions of the vehicle or occupants were objectively suspicious. In fact, the defendant was apparently doing nothing illegal, other than perhaps rapidly decelerating once the marked police car was observed. This is because the basis for the stop was the result of an objective fact completely removed from the activity; i.e., the outstanding arrest warrant for a person whose appearance was found by the trial court to be “actually quite similar” to the passenger.

The Case Law: Safunwa

In People v. Safunwa, 299 Ill. App. 3d 707, 710, 701 N.E.2d 1202, 1204 (1998), the Second District found the trial court made a specific finding, upon close inspection, that the defendant did not resemble the photograph of the fugitive police thought was in the vehicle they stopped. As a result, they held, absent a finding the conclusion was erroneous, they were bound by it.

We have the identical situation in reverse.

This Case

Here it must be noted the trial court had determined the appearance of the passenger and suspect wanted on a warrant were “quite similar.” We should likewise defer to the trial court.

The behavior observed by Officer Baker both before and after activating his lights serves only to buttress the reasonableness of his suspicion. Had the passenger been Duane Lee, that fact alone would have justified the stop.

Therefore, the officer reasonably believed the passenger to be Duane Lee.

How Certain Does He Have To Be?

How certain does he have to be to execute a brief traffic stop?

In Safunwa, in spite of the trial court’s finding that upon close inspection the defendant did not look like the person wanted on the warrant, the appellate court found the officers reasonably believed defendant was the person wanted on a warrant based upon the similarity in height, weight, age, and similarity of mustache and hair style. 

The court found the officers were justified in making the stop and requesting identification. “Sufficient probability, rather than certainty, is the touchstone of reasonableness under the fourth amendment.” Safunwa, 299 Ill. App. 3d at 711).

The Case Law: Cummings

In Cummings, 2016 IL 115769, a traffic stop based on an outstanding warrant for the female owner of the vehicle, although initially valid, was rendered in violation of the fourth amendment once the officer approached the van and observed the driver to be a man. See Episode 131.

In explaining the rationale for its ruling, the Supreme Court noted that although before the stop the officer had determined the registration he initially believed to be expired was, in fact, valid, since he learned of the outstanding arrest warrant for the female owner and could not determine whether the driver was a female, the officer had a “reasonable suspicion” that the driver was subject to seizure.

In that case, the only factor making the initial stop valid was the unknown sex of the driver. No other traffic violation had been committed. After remand, the court still­ permitted the ordinary inquiries of checking for license and registration in spite of the fact that his reasonable suspicions disappeared as soon as he saw the driver was a male.

This Case

Even if this officer eventually, determined the passenger was not the man wanted on a warrant. The officer was still justified in continuing to engage with the car passengerss to determing basic information.

The Case Law: Hill

Hill, 401 U.S. 797, was a clear case of mistaken identity.

Police had probable cause to arrest person A, they reasonably mistook person B for person A, and they arrested person B. The Supreme Court concluded that, so long as the police had a “reasonable, good-faith belief” the person arrested was the one wanted on the warrant, the arrest was justified. Hill, 401 U.S. at 802.

This Case

Here, we are not talking about a full-blown arrest but merely the “brief detention” inherent in an investigatory traffic stop to check the identification of someone in the vehicle. “To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials.” Heien v. North Carolina, 574 U.S. ___, 135 S. Ct. 530, 536 (2014).

“The limit,” they said, “is that ‘the mistakes must be those of reasonable men.’” Heien, 574 U.S. at ___, 135 S. Ct. at 536. (recall that Heien expanded the doctrine of mistake of fact into what it called reasonable mistakes of law).

The mistaken fact in this case was the actual identity of the passenger. Even the trial court agreed the passenger looked very similar to the person wanted on a warrant and concluded the officer was acting in good faith at the time of the stop.

Here the court is not called upon to assess the basis for the officer’s suspicions regarding a person’s behavior. It was simply a matter of “this looks like the guy I know to be wanted on a warrant.”

More Analysis

The trial court found the officer’s belief to be in good faith. When coupled with the court’s own recognition that the two­ individuals did in fact look very similar, we cannot conclude the stop was unreasonable. When viewing the photographs included in the record, the general physical description and the appearance of the two are similar. Looking closely at them, with sufficient time to analyze each photo, is it possible to say they look different? Of course.

But those were not the circumstances facing Officer Baker, and the trial court recognized that. Do we find the trial court’s conclusion the two looked very similar was unreasonable under the circumstances? No.

Where the trial court erred was in finding the officer either needed to be certain in his identification or be able to point to other corroborating evidence. This is not a situation involving the need for probable cause.

Activity Not In Question

Unlike those situations where the court is called upon to evaluate the reasonableness of an officer’s suspicion of behavior or actions upon which he relied to justify the stop, i.e., the reasonable, articulable suspicion of criminal activity, here the existence or nonexistence of suspicious criminal activity is irrelevant.

It is the status of the suspect at issue, not his or her actions.

The only question before the court in such a case is whether the officer was reasonable in his belief that the person he saw was the one wanted on the warrant. The Supreme Court has said “certainty” is not required, thereby addressing the first basis upon which the trial court granted the suppression motion.

As to the second basis, the need for some form of independent corroborative evidence, we also find no case requiring some sort of independent corroboration in order to effectuate a brief traffic stop in order to ascertain the identity of an occupant whom officers reasonably suspect to be wanted on a warrant.

This Was Not An Arrest

It is true that where courts are reviewing whether officers had probable cause to arrest someone suspected as wanted on a warrant, more may be required since we are moving from a brief investigative detention to a full-blown arrest. In People v. Gordon, 311 Ill. App. 3d 240, 246-48, 723 N.E.2d 1249, 1253-55 (2000), the Second District discussed Hill, 401 U.S. 797, within the context of mistaken arrests. It noted how the Supreme Court in Hill found that, as long as police had probable cause to arrest one party, a reasonable mistake as to the identity of a second party actually arrested would still constitute a valid arrest.

 “‘[T]he seizure of an individual other than the one against whom the warrant is outstanding is valid if the arresting officer (1) acts in good faith, and (2) has reasonable, articulable grounds to believe that the suspect is the intended arrestee. Should doubt as to the correct identity of the subject of [the] warrant arise, the arresting officer obviously should make immediate reasonable efforts to confirm or deny the applicability of the warrant to the detained individual.’”

Gordon, 311 Ill. App. 3d at 249 (quoting Sanders, 339 A.2d at 379).

Remember All Those ILU Cases

See Episode 572 – People v. Mueller, 2018 IL App (2d) 170863 (December) (Jeep touches he traffic lines 3 times and gets stopped, reasonable?)

In these cases may or may not have committed improper lane use (ILU).

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) See Also 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)

Although stops may frequently be supported by the classic “probable cause” necessary for arrest, the less exacting standard of “reasonable, articulable suspicion” is also sufficient. A police officer may conduct a brief, investigatory stop of a person where the officer can point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.

Must Be Reasonable Mistakes

“Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability.”

Almost 50 years later, the Court was still seeking to define the difference between “reasonable suspicion” and “probable cause.” In Ornelas, 517 U.S. 690, it noted the impossibility of articulating it precisely. “They are commonsense, nontechnical conceptions that deal with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Ornelas, 517 U.S. at 695 (quoting Illinois v. Gates, 462 U.S. 213, 231 (1983)).

The Court said it has described “reasonable suspicion simply as ‘a particularized and objective basis’ for suspecting the person stopped of criminal activity.” Ornelas, 517 U.S. at 696. It considered reasonable suspicion a fluid concept to be decided on its own facts and circumstances and found the primary components to be the events leading up to the stop and then the decision whether these historical facts viewed from the standpoint of an objectively reasonable police officer amounted to reasonable suspicion. Ornelas, 517 U.S. at 696.

Nonetheless Corroboration Not Needed

We do not believe there is a specific legal requirement articulated by any published Illinois case requiring an officer under these circumstances to be able to point to some “corroborative facts” other than his reasonable suspicion.

He Was Certain Enough

(1) In the case before us, the trial court had the additional facts of the unusual driving behavior upon seeing the marked squad car, along with the seating of the passenger to consider. These were relevant to the officer and buttressed his suspicion the passenger was, in fact, the wanted person he quite similarly resembled.

(2) In addition, the trial court had available to it the subsequent actions of the officer before effectuating the stop. Officer Baker was sufficiently certain the passenger was Lee that he wanted another police officer present for backup and followed the vehicle for a full 30 blocks until one arrived. Being familiar with Lee, Officer Baker knew the need for more than one officer necessitated that he call to have someone leave their normal patrol area to assist him. Had he been less certain, it is unlikely he would have bothered.

(3) Further, when viewing the photographs, the trial court concluded they were very similar.

Plus There Was That Odor…

Defendant argues that smelling cannabis cannot create probable cause because Illinois decriminalized marijuana possession under 10 grams.

We disagree.

Marijuana possession remains unlawful.

As the First District stated in In re O.S., 2018 IL App (1st) 171765, ¶ 29, 112 N.E.3d 621, “decriminalization is not synonymous with legalization.” In People v. Stout, 106 Ill. 2d 77, 477 N.E.2d 498 (1985), our supreme court said an officer has probable cause to conduct a search of a vehicle if he smells the odor of a controlled substance coming from the vehicle and it is shown he has the necessary training and experience to detect controlled substances.

This law remains unchanged.

Fresh v. Burnt

In People v. Smith, 2012 IL App (2d) 120307, 982 N.E.2d 234, the Second District addressed the issue of “fresh” versus “burnt” cannabis and found no basis for distinguishing the two when determining whether the smell may form the basis for probable cause for a police officer’s subsequent search. In Smith, the officer testified, as he approached the driver’s side of the vehicle, he smelled “a slight odor of cannabis” coming from inside the vehicle, which he said smelled “fresh.”

The court considered the language of Stout, quoted above, and found, as do we, there was no modifier preceding cannabis and there was no reasonable basis to limit its holding only to “burnt” cannabis. Smith, 2012 IL App (2d) 120307, ¶ 16. The Smith court pointed to a long list of cases outside Illinois involving raw versus burnt cannabis in which “the smell of marijuana [is] alone sufficient to furnish probable cause to search a vehicle without a warrant.” (Internal quotation marks omitted.) Smith, 2012 IL App (2d) 120307, ¶ 19. 

See Also Episode 556 – 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 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 Cannabis Consistent With Crime

The State noted the court in O.S. found that even in Colorado, where possession of an ounce of cannabis has been legalized, not merely decriminalized, the state supreme court still considers the odor of marijuana to be relevant to a probable cause determination and can support an inference that a crime is ongoing, even though possession of an ounce or less is legal.

We find their reasoning just as applicable here because a “substantial number of other marijuana-related activities remain unlawful.” People v. Zuniga, 2016 CO 52, ¶ 23, 372 P.3d 1052. It was for that reason they concluded “the odor of marijuana is still suggestive of criminal activity.” Zuniga, 2016 CO 52, ¶ 23.

True You Can’t Determine Quantity From The Smell

Defendant provides no rationale for requiring police officers to somehow ascertain the quantity of marijuana before the search in order to determine whether probable cause exists. In fact, such a requirement would be unworkable and contrary to the current body of law.

It would lead to an absurd result where police officers, after performing a traffic stop, smelled the odor of cannabis emanating from the vehicle but could not investigate it further unless they knew the amount involved. Here, as the trial court concluded, the search was clearly justified upon establishing probable cause for the search.

Little Bonus

Once Officer Baker smelled the odor of cannabis, probable cause for the search existed.

The fact that he almost immediately observed cannabis in plain view was merely an added bonus.

Holding

Having concluded the suspicions of the officer were reasonable under the circumstances, the trial court’s decision to grant the motion to suppress due to a lack of certainty as to the identity of the passenger or lack of other corroborative facts was erroneous in that it placed an additional burden on the officer seeking to effectuate such a stop for which we can find no support in the law.

We reverse and remand for further proceedings consistent with this opinion. 

Double Jeopardy Trap Snaps And Ensnares This Judge

Feb 3, 2020 11:04

Description:

People v. Shoevlin, 2019 IL App (3d) 170258 (January). Episode 583 (Duration 11:04)

Serious double jeopardy concerns are raised when the judge declares a mistrial in this domestic battery case.

Gist

In this trial for domestic battery the defendant is a women.

She is accused of choking, scratching, and hitting her husband in the face with her keys. They got into an argument on who was getting the kids over the weekend.

Closing Argument

During closing argument counsel for the defense stated that defendant

“had been scorned and he wanted to break [defendant’s] heart; he wanted to break her as a person and ruin her life. That’s why after January 21, 2016[,] he came to this courthouse and filed dissolution of marriage. He wants to take the house from her, he wants to take her kids from her, and he wants to ruin her life. He knows that if she gets a conviction in this case, her kids are going to be taken away.”

Counsel continued,

“That’s why he’s making all of this up and why the State can’t prove this case beyond a reasonable doubt. It didn’t happen.”

Judge Perturbed

For some reason this really annoyed the judge.

The Judge said he thought counsel’s statement prejudiced the jury. The court asked defense counsel:

“Why would you say that her kids are going to be taken away? Why would you say that? The jury now thinks that if she gets a conviction that as a function of law her kids will be taken away. I can’t think of anything more prejudicial.”

“Another thing that we tell [the jury] is that they cannot have sympathy for one side or the other in a jury trial. You can’t get up there and say look at this poor woman, look what’s going to happen to her if she gets convicted, which was the sum total of what it was that you said when you told the jurors remember, she gets convicted, she loses her children. You made an iron clad statement as if it was an ipso facto thing, conviction, loses the children. Now, I know what you meant, and that isn’t what you meant in a legal sense, but the jury couldn’t make that distinction. And another thing we tell them is don’t take the punishment into account, but you were telling them in advance take that into account. She gets convicted, she is losing her children.”

State Moves For A Mistrial

Immediately thereafter, the State moved for a mistrial.

Mistrial Granted

After recessing for five minutes, the court returned and announced:

“I’ve thought about this and there are only two other things I could do, potentially. First, I could give an instruction telling the jury to disregard that statement, but then they will think that [defense counsel] was correct when he made that statement. I could give an instruction telling the jury to completely disregard [defense counsel] because he doesn’t know what he’s talking about, but that would completely prejudice the jury against the defendant and if [she] were convicted in this case [defense counsel’s] ineffective assistance of counsel will be the first issue heard on appeal. I don’t think [defense counsel] intentionally said what he said or that he wanted to prejudice the jury. He was doing very well up until that statement. I’m granting the mistrial…the State’s entitled to a fair trial, okay? They couldn’t get up there and say whoa, whoa, whoa, wait a minute, she is not going to lose her kids, that’s not going to happen, don’t listen to that.”

Motion To Dismiss On Double Jeopardy

After the trial court set a date for a new trial, defendant filed a motion to dismiss alleging that a new trial would violate the double jeopardy clause of the fifth amendment. Defendant argues that the trial court erred in denying her motion to dismiss the subsequent criminal complaint on double jeopardy grounds because no manifest necessity existed to declare a mistrial.

Defendant Didn’t Object

While we agree that a defendant who consents to a mistrial, either explicitly or implicitly, generally may not assert that double jeopardy bars her subsequent retrial, that is not what happened here.

In this case, defendant never had an opportunity to object to the State’s request for a mistrial. Instead, as soon as the State requested the mistrial—immediately following the trial court’s “I can’t think of anything more prejudicial” remark—the court asked defense counsel, “what do you suggest I do to remedy this?” Defense counsel responded to the court’s question, essentially arguing against the request for a mistrial, by stating that the jury would understand he was referring to Edward’s state of mind rather than making a statement of law.

This argument shows defendant neither explicitly nor implicitly agreed to the mistrial.

The court then took a 5 minute recess, and when it came back without seeking further comment from either party declared the mistrial. Based on the speed in which the below proceedings occurred, we find that defendant did not have an opportunity to object to the State’s request for mistrial.

The Double Jeopardy Clause

The fifth amendment to the United States Constitution provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const., amend. V. The Illinois Constitution likewise provides that “[n]o person shall be compelled in a criminal case to give evidence against himself nor be twice put in jeopardy for the same offense.” Ill. Const. 1970, art. I, § 10; see also 720 ILCS 5/3-4(a)(3). 

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.

The constitutional protection against double jeopardy attaches once the jury is impaneled and sworn. This is so because a defendant is entitled to have his or her trial completed before a particular tribunal. A second trial increases the financial and emotional burden on the accused, prolongs the period in which he or she is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted.

As such, the State is generally entitled to only one opportunity to prosecute a defendant.

How A Mistrial Effects Double Jeopardy

Where a trial court declares a mistrial without the defendant’s consent, it deprives the defendant of his “valued right” to have a particular tribunal decide her fate. Thus, when a trial court declares a mistrial without the defendant’s consent, a second trial is prohibited unless the State demonstrates a manifest necessity for the mistrial.

In determining whether manifest necessity exists for a mistrial, the trial court must balance the defendant’s interest in having the trial completed in a single proceeding, reserving the possibility of obtaining an acquittal before that particular tribunal, against the strength of the justification for declaring a mistrial rather than attempting to continue the trial to a verdict.

The circumstances must be very extraordinary and striking. The necessity for a mistrial must be imperious.

Mistrial Double Jeopardy Factors

A number of factors may be considered in determining whether a “manifest necessity” warranted a mistrial, including:

(1) whether the difficulty was the product of the actions of the prosecutor, defense counsel, or trial judge, or was events over which the participants lacked control
(2) whether the difficulty could have been intentionally created or manipulated by the prosecution to strengthen its case
(3) whether the difficulty, prejudice, or other legal complication might have been ‘cured’ by another alternative that would have preserved the trial’s fairness
(4) whether the trial judge actually considered the alternatives to a mistrial
(5) whether a subsequent conviction would be subject to reversal on appeal
(6) whether the trial judge acted in the heat of the trial confrontation
(7) whether the trial judge’s decision rested on an evaluation of the demeanor of the participants, the ‘atmosphere’ of the trial, or any other factors that similarly are not amenable to strict appellate review
(8) whether the trial judge granted the mistrial solely for the purpose of protecting the defendant against possible prejudice
9) whether the evidence the State presented, prior to the mistrial, suggested a weakness in its case (e.g., a witness failed to testify as anticipated)
(10) whether the jurors had heard enough of the case to formulate some tentative opinions
(11) whether the case had proceeded so far as to give the prosecution a substantial preview of the defense’s tactics and evidence and
(12) whether the composition of the jury was unusual.

It is of the utmost importance that a trial court carefully considers all reasonable alternatives prior to declaring a mistrial. Whether the trial judge gave counsel an opportunity to be heard regarding a mistrial is of major importance, as is the amount of time devoted to the mistrial decision. A hasty decision, reflected by a rapid sequence of events culminating in a declaration of a mistrial, tends to indicate insufficient concern for the defendant’s constitutional rights.

Defendant Was Not Driving This Bus

In this case the trial court sua sponte removed the jury from the room and questioned defense counsel regarding his closing argument—an argument to which the State did not object. While the State ultimately requested a mistrial, it did so only after the court announced that it could not “think of anything more prejudicial” than counsel’s statement.

The court proceeded to reject each remedy it thought of during its five minute recess and immediately declared a mistrial without seeking further input from defense counsel or the State. The trial court’s decision to grant the mistrial in this case after the jury heard all the evidence was clearly a hasty decision.

Sure The Statement Was Improper

We agree with the trial judge that defendant’s argument was improper.

However, based on the totality of the evidence presented in this case, the jury was well aware that the parties were divorcing, that the husband was seeking custody of the children, and that DCFS was involved in some manner. In fact, defense counsel’s theory of the case was that the husband fabricated the incident to give him an advantage in the dissolution and custody proceedings.

Holding

Thus, we find that defense counsel’s closing statement in this case did not justify the trial court’s declaration of a mistrial.

Because the State failed to demonstrate a manifest necessity for the mistrial, we reverse the trial court’s denial of defendant’s motion to dismiss the subsequent criminal complaint on double jeopardy grounds.

We reverse the judgment of the circuit court of Will County.

See Also 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

DUI License Suspension On Private Property

Jan 29, 2020 10:18

Description:

People v. Relwani, 2019 IL 123385 (January). Episode 582 (Duration 10:18)

Defendant needed to say something about the private nature of the Walgreen’s parking lot.

Here’s the lower court opinion.

People v. Relwani, 2018 IL App (3d) 170201 (February). Episode 471 (Duration 7:01)

Charges

Defendant was charged with driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2)).

Found In His Car

He was found alone in an altered or partially unconscious state behind the steering wheel of a running car in a Joliet Walgreens parking lot at about 3:30 a.m. Under the Illinois implied consent statute (625 ILCS 5/11-501.1), his driver’s license was summarily suspended by the Secretary of State.

Issue

Defendant claims that rescission is warranted because he was arrested in a privately owned Walgreens parking lot that did not meet the definition of a “public highway,” as required by the implied consent law.

The dispositive question in this appeal is narrow:

Was a defendant seeking rescission of the statutory summary suspension of his driver’s license required to offer affirmative evidence to satisfy his initial burden of making a prima facie showing that he was not on a “public highway” while in control of his car?

Defendant Testified

At the hearing on his petition to rescind, defendant was the only witness.

He said he was parked in a Walgreens parking lot located at 1801 Ingalls Avenue in Joliet and was sleeping behind the wheel of his car when he was woken up by police officers, who arrested him for DUI.

During the State’s cross-examination, defendant was often unable to provide clear or responsive answers.

He admitted, however, that the police found him in his car with the keys in the ignition and the engine running. When the State asked whether the reason he did not remember performing some field sobriety tests was “because he was intoxicated and had taken heroin and clozapine (a psychotropic drug used as an antipsychotic medication) that night,” defendant answered,

“I, I don’t know. I guess.”

While defendant was able to confirm he told the police that he “had been driving from the restaurant in Chicago with his family” earlier that evening, he did not recall if he also told them that he had “used heroin and clozapine for his birthday that night” and was “not sure” whether “there was an open bottle of Budweiser beer in his car.”

Directed Finding Granted

At the close of defendant’s case, the State successfully moved for a directed finding, arguing that he had not met his burden of proof in seeking rescission of his statutory summary suspension.

The judge said “here, we have not truly established the fact, by the petitioner’s case, that this truly was—they said he was in the Walgreens, that it was a privately-owned parking lot. If I don’t know that, I can’t assume that simply because it is the parking lot of Walgreens.”

The trial court denied defendant’s motion to reconsider.

Public Highway

A parking lot would be considered a “public highway” for summary suspension purposes if it is publicly maintained and open to the public for vehicular travel. See 625 ILCS 5/1-126 (defining “highway” for purposes of the Illinois Vehicle Code).

A “highway” is defined as “the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel or located on public school property.” 625 ILCS 5/1-126.

While on its face the idea that a parking lot can be a “public highway” may seem to be easily dismissed, “a parking lot that is publicly maintained and open to use by the public for vehicular travel will constitute a ‘highway,’ even if the parking lot is on privately owned property.” People v. Helt, 384 Ill. App. 3d 285, 288 (2008).

Implied Consent Requires Public Highway

Under the Illinois Vehicle Code, the implied consent statute in DUI cases states:

“Any person who drives or is in actual physical control of a motor vehicle upon the public highways of this State shall be deemed to have given consent *** to a chemical test or tests of blood, breath, other bodily substance, or urine for the purpose of determining the content of alcohol, other drug or drugs, or intoxicating compound or compounds or any combination thereof in the person’s blood if arrested *** [for a DUI offense] ***.”

625 ILCS 5/11-501.1(a).

Critically, for purposes of the Illinois Vehicle Code,  Based on that definition, a property is a “public highway” within the meaning of the implied consent statute if it is both “publicly maintained” and either open to use by the vehicular public or it constitutes public school property. 625 ILCS 5/1-126.

The Orth Standard

In People v. Orth, 124 Ill. 2d 326, 337-38 (1988), this court concluded that “the motorist, who is requesting judicial rescission of [a summary] suspension, should bear the burden of proof” and must present a prima facie case supporting that request.

While defendant agrees that he was required to establish a prima facie case to support his rescission request, he maintains that he met that burden by relying on the purported inference that any parking lot by a Walgreens store is private property.

If, and only if, defendant makes a sufficient prima facie showing, thereby avoiding a directed finding, “the burden will shift to the State to come forward with evidence in rebuttal justifying suspension.” Orth, 124 Ill. 2d at 338.

In Orth, the motorist argued that the statutory summary suspension of his driver’s license should be rescinded because the result of his breath test was unreliable.

Prima Facia Case

This court explained that to make a prima facie case, the motorist had to present evidence “of any circumstance which tends to cast doubt on the test’s accuracy, including, but not limited to, credible testimony by the motorist that he was not in fact under the influence of alcohol.

If the trial judge finds such testimony credible then the burden shifts to the State. Orth, 124 Ill. 2d at 341. In making a prima facie case, a defendant “has the primary responsibility for establishing the factual and legal bases” for the requested action.

A prima facie case is “a party’s production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor.” Black’s Law Dictionary 1310 (9th ed. 2009).

He Said He Was In A Walgreen Parking Lot

Applying that standard to defendant’s contention in this case, he had to offer evidence that the trial court found to be credible. In addition, to ward off the State’s motion for directed verdict and shift the evidentiary burden to the State, defendant’s proffered evidence had to “tend to cast doubt on” whether the parking lot constituted a “public highway” as defined by the relevant statute.

Our examination of the record reveals that the only portion of his testimony that even tangentially related to whether the parking lot was a “public highway” was even more abbreviated. In its entirety, that testimony consisted of two short colloquies. Where defendant is asked if he was in a Walgreen’s parking lot and he answered “yes.”

Defendant asserts this purported inference: the parking lot by the Joliet Walgreens store where police found him is private property, not a “public highway” as defined in the Illinois Vehicle Code. The sole basis for defendant’s claimed inference is, necessarily, the above-quoted testimonial snippets.

Nonetheless, he contends that an inference based on those brief snippets is sufficient to overcome his burden of making a prima facie showing that the parking lot was outside the reach of the implied consent statute.

We disagree.

Analysis

As we have explained, to make his prima facie case, defendant had to offer evidence that “tend[ed] to cast doubt on” whether that parking lot was “publicly maintained” or open to use by the motoring public. See 625 ILCS 5/1-126.

The sum total of the substantive evidence defendant offered on the relevant question in this case consisted of (1) the lot’s association with a Walgreens store and (2) its street address. Defendant’s testimony did not even specify the proximity or physical connection of the parking lot to the storefront or the location of his car within the parking lot.

To make his prima facie case, defendant was obliged to produce “enough evidence to allow the fact-trier to infer the fact at issue and rule in his favor.” Black’s Law Dictionary 1310 (9th ed. 2009).

Here, defendant’s mere reference to “Walgreens,” without more, establishes nothing about either the identity of the entity that maintained the lot or the public’s use of the lot. Those are the essential substantive components for a prima facie showing that the parking lot was not a “public highway” within the meaning of the relevant statutes.

Defendant must provide some affirmative evidence and cannot rely on a passing reference and mere supposition to avoid a directed finding. Here, defendant’s prima facie showing fell well short of the required mark.

Holding

We conclude the trial court’s finding that defendant failed to present a prima facie case for rescission is not against the manifest weight of the evidence. It is certainly not clearly evident from the minimal evidence defendant presented that the trial court should have arrived at the opposite conclusion or that its conclusion was unreasonable, arbitrary, or not based on the evidence.

Affirmed.

Defendant was required to offer some affirmative evidence that the parking lot where he was arrested for DUI was not a public highway within the definition in the Illinois Vehicle Code to make his prima facie case and fend off the State’s motion for a directed finding. Because he failed to provide that quantum of evidence, we uphold the trial court’s directed finding for the State.

What He Could Have Done

After all, property constitutes a “public highway” only if it is both “publicly maintained” and either open to use by the vehicular public or is public school property. 625 ILCS 5/1-126 (West 2016) (defining “highway” for purposes of the Illinois Vehicle Code). To avoid a directed finding against him, defendant could have made a prima facie offering of evidence that tended to cast doubt on either one of those statutory requirements.

It was not truly burdensome for defendant to provide some affirmative evidence simply tending to cast doubt on the parking lot being publicly maintained. Subpoenas or extensive searches of property records would not have been required to support his initial claim.

By focusing on the alleged difficulty of determining whether a public entity maintains the parking lot, he ignores the equally viable option of making his prima facie case by offering affirmative evidence that tends to cast doubt on whether the parking lot is open to public use.

Something as simple as evidence of a posted “private property” sign may, in the proper circumstances, suffice to satisfy the prima facie burden of proof in a rescission action, shifting the burden to present evidence on the lot’s “public highway” status to the State.

Here, defendant did not attempt to make even that minimal showing. 

Chicago Police Body Cam Discovery With Peter Lewis: What To Do When You Don't Get It

Jan 8, 2020 33:57

Description:

Episode 724 (Duration 33:57). Chicago defense attorney Peter Lewis explains what a litigant can do when their criminal discovery is missing the police body cam video.

In This Case...

The State's Attorney's position is if they didn't get it from the police then it doesn't exist.

Attorney Peter Lewis

Am I Entitled To Have The Police Body Cam In My Case?

Yes. Generally, speaking a criminal defendant is going to be entitled to possess a copy of the police body cam or cams involved in his or her case. The interesting question is what to do when you don't get it.

Attorney Peter Lewis

Peter Lewis has been an Illinois attorney since 2004. He currently has an extensive criminal law practice. He handles cases throughout Cook County and the collar counties.

Contact Information

5508 West Lawrence Ave
Chicago, IL 60630
773-853-0223

http://pwlewislaw.com/

Main Areas Of Law

 In Chicago what are the three main areas of law that govern the police use of body cameras?

United States Department of Justice & Chicago Police Department Consent Decree Illinois Law Enforcement Officer-Worn Body Camera Act Chicago Police Department Special Order S03-14 on Body Worn Cameras

What Does The Consent Decree Say About Body Cam?

What does the Justice Department's Chicago Police Department Consent Decree say about the use of police body cams?

On page 6 of the report it says,

...that the Justice Department supports the City’s decision to accelerate its plan to ensure that all CPD officers have body cameras.

In the "Recommendations" section of the report, it says that CPD should "adopt use of force practices that minimize the use of fore." Subsection (i) states,

Equip all patrol officers and supervisors, and officers who regularly interact with the public, including tactical officers, with body cameras, and develop a body camera policy delineating officers’ responsibilities regarding the consistent and appropriate use of body cameras and the retention and review of body camera footage.

Consent Decree

Important Details From The Illinois Body Cam Act

✓ The Illinois Law Enforcement Officer-Worn Body Camera Act does not require that police departments employ body cams. The act merely provides guideline for departments that wish to use them. The act also includes minimal feature and procedures that must be followed if a department chooses to use body cams. (Go to 4:04)

✓ "No officer may hinder or prohibit any person, not a law enforcement officer, from recording a law enforcement officer in the performance of his or her duties in a pubic place or when the officer has no reasonable expectation of privacy." 50 ILCS 706/10-20(11)

✓ Generally, body cam videos ARE NOT subject to FOIA requests unless you have been arrested, are a victim, or a witness. See 50 ILCS 706/10-20(b)

Did You Know?

✓ As of right now every single Chicago Police Department patrol officer is suppose to be using a fully functioning and operable body cam device. (Go to 2:59)

What You Need To Know About The Chicago Police Department Body Cam Special Order

The policy says in clear unmistakable terms that,

All sworn members and their immediate supervisors assigned to a Bureau of Patrol district normally assigned to field duties and any other member at the discretion of the district commander will be assigned and utilize a BWC.

CPD Special Order S03-14

This is one of the most important things listed in Special Order S03-14, it's under the "Operational Procedures" section. (Go to 6:20)

An attorney trying to hunt down body cam footage may want to know the following to help facilitate the search (Go to 10:08):

Name of person arrested Date of arrest RD number Incident number Name of officers involved Badge number of officers involved Beat Number

✓ CPD currently has 8,200 video cams issued to officers. This should be enough to cover the entire patrol division. (Go to 14:50)

"Can't Miss" Moments:

✓ In video recordings you often see an officer stop and do this with his equipment right before he engages with a subject. (Go to 7:01)

✓ Body cam equipment involves more than a camera. The devices includes a camera and hard drive that can hold at least 10 hour of video. At the end of a shift all the recordings go into one master super data base. (Go to 8:04)

✓ Peter says CPD should not be allowed to do this one critical thing in regards to this body cam issue. A third independent body should involved and do this when there is an arrest. (Go to 9:16)

✓ You ever hear of a beat number and RD number? You may want to know what these are if you're hunting down body cam recordings. Peter Lewis explains this, just (Go to 9:16).

✓ This one fact provides the state with zero motivation to hunt and search for something that might exist but is buried somewhere. (Go to 12:25)

✓ The question then is what do we do when you know a video exists but for some reason it was not tendered to you during discovery? (Go to 14:16)

✓ These particular police units come into a lot of contact with the public. You could say they're in the thick of it. Oddly, these units don't wear body cams. What's that all about? (Go to 14:50)

What Do You Do When You Don't Get Police Body Cam In Your Discovery?

✓ The question then is what do we do when you know a video exists but for some reason it was not tendered to you during discovery? (Go to 14:16)

✓ A Kladis motion is often filed when there has been a violation of discovery. This remedy is rare, but it can lead to the suppression of evidence. (Go to 18:30)

✓ Peter's discovery violation motion is titled, "Motion To Exclude Testimony of State's Witnesses And For Other Relief Or Sanction The Court Deems Appropriate". It incorporates parts of the state statute and the CPD special order. (Go to 19:00)

If a court or other finder of fact finds by a preponderance of the evidence that a recording was intentionally not captured, destroyed, altered, or intermittently captured in violation of this Act, then the court or other finder of fact shall consider or be instructed to consider that violation in weighing the evidence, unless the State provides a reasonable justification.

50 ILCS 706/10-30

✓ The State statute is kind of soft. It doesn't exactly say that evidence can be barred or excluded. (Go to 22:36)

✓ This is a last ditch effort thing to do when you see that a judge is not going to give you sanctions for missing body cam video. Do this when you got no other cards to play. (Go to 25:50)

Links & Resources

United States Department of Justice & Chicago Police Department Consent Decree More About The CPD Consent Decree 50 ILCS 706/10-1 et seq. - Illinois Law Enforcement Officer-Worn Body Camera Act Chicago Police Department Special Order S03-14 on Body Worn Cameras People v. Kladis, 2011 IL 110920 How Often Do Chicago Police Officers Fail To Activate Their Body Cameras? It’s Hard To Know - CBS Chicago Key Body Camera Footage Missing After Chicago Police Officers Raid Wrong Homes, Point Guns At Children - CBS Chicago

See Also

You may also want to check out...

People v. Montgomery, 2018 IL App (2d) 160541 (October). Episode 555 (Duration 14:02) (What To Do, What To Do About Lost, Destroyed, or Missing Video?) People v. Cunningham, 2018 IL App (1st) 153367 (June). Episode 517 (Duration 12:37) (Significance Of The Evidence And Bad Faith Drive Discovery Violation And Destruction Of Evidence Issues) People v. Moravec, 2015 IL App (1st) 133869 (November 2015). Episode 105 (Duration 8:00) (Defendant wins sanctions to exclude all evidence after CPD ignores repeated requests for the POD video.) Episode 320 (Duration 52:38) (Behind The Scenes Of The Curtis Lovelace Trial | Attorney Evan Parke Discloses How The Defense Team Made Use Of FOIA)

Illinois Residential Burglary Statute Makes It A Class 1 Felony

Nov 15, 2019 02:41

Description:

Residential Burglary In Illinois

In Illinois residential burglary is class 1 felony. The crime is defined by statute this way:

A person commits residential burglary when he or she knowingly and without authority enters or knowingly and without authority remains within the dwelling place of another, or any part thereof, with the intent to commit therein a felony or theft. 720 ILCS 5/19-3(a).

See also the Illinois Crimes Index

Illinois Residential Burglary Sentence

Since the Illinois residential burglary statutes defines it as a class 1 felony that means the sentencing range is between 4 to 15 years. However see the below chart for more sentencing information.

Charge Statute Felony Range Extended Term Max  Fine Residential Burglary 720 ILCS 5/19-3(a)   Class 1  4-15 yrs 15-30 yrs $25,000

The most important sentencing aspect to know about Illinois residential burglary is that it is considered a non-probationable offense. That means an individual who is convicted of residential burglary is by law required to be sentenced to prison time even if the individual has absolutely no criminal history or prior convictions in their record.

See the Illinois Sentencing checklist for more sentencing details.

General Burglary Statute In Illinois 

However, the Illinois burglary statute is a little more broad than just residential burglary. The more general form of the burglary statute provides the following:

Section 19-1(a) of the Illinois Criminal Code provides, in part, that…

“A person commits burglary when without authority he or she knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle, railroad car, or any part thereof, with intent to commit therein a felony or theft.” 720 ILCS 5/19-1(a).

General Burglary Sentence In Illinois

“Burglary committed in, and without causing damage to, a watercraft, aircraft, motor vehicle, railroad car, or any part thereof is a Class 3 felony.

Burglary committed in a building, housetrailer, or any part thereof or while causing damage to a watercraft, aircraft, motor vehicle, railroad car, or any part thereof is a Class 2 felony.” 720 ILCS 5/19-1(b)

Charge Statute Felony Range Extended Term Max  Fine Burglary to watercraft, aircraft, motor vehicle, railraod (no damage) 720 ILCS 5/19-1(a)   Class 3 2-5 yrs 5-10 yrs $25,000 Burglary to building, housetrailer, or damage to watercraft, aircraft, motor vehicle, railraod 720 ILCS 5/19-1(a)   class 2 3-7 yrs 7-14 yrs $25,000 There Are 2 Ways To Commit Burglary

Thus, under the statute, there are two ways to commit the crime of burglary:

(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. 

Correct Way To Interpret The Burglary Statute

In regards to a retail store, like Walmart, a person can only be guilt of burglary “remaining without authority with intent…” if the person lawfully enters a public building and then commits theft AND exceeds the physical scope of his authority.

In other words, burglary by remaining requires evidence that a defendant, with the intent to commit a felony or theft, is found in a place where the public is not authorized to be.

This section is not intended to apply to ordinary shoplifting scenarios.

Rather, it refers to situations in which a person lawfully enters a place of business, but, in order to commit a theft or felony:

(1) hides and waits for the building to close
(2) enters an unauthorized area within the building; or
(3) continues to remain on the premises after being asked to leave.

However, if the state can prove that a person enters with the intent to steal then a burglary under the first section can still be sustained because it is presumed that that a shopkeeper did not grant permission for someone to enter just to steal.

See Also People v. Bradford, 2016 IL 118674 (March) Episode 155 (Duration 7:52) ( burglary by remaining requires evidence that a defendant, with the intent to commit a felony or theft, is found in a place where the public is not authorized to be) People v. Burlington, 2018 IL App (4th) 150642 (March) Episode 472 (Duration 7:42) (if the state can prove you entered a store with intent to steal they can charge you with a burglary) People v. Johnson, 2018 IL App (3d) 150352 (January) Episode 456 (Duration 11:30) (3rd District was not allowing the state to charge a burglary of a store) People v. Moore, 2018 IL App (2d) 160277 (June) Episode 505 (Duration 4:40) (2nd District joins the 4th District and comes out against the 3rd District interpretation of the Illinois burglary statute) People v. Allen, 2017 IL App (1st) 151540 (December) Episode 430 (Duration 9:24) (see how this defendant avoided mandatory class X sentencing on his burglary conviction) Related Charge of Criminal Trespass To Property

A Break Down Of The Illinois Custodial Sexual Misconduct Statute With Michael Wepsiec

Nov 12, 2019 29:55

Description:

Episode 698 (Duration 29:54). Attorney Michael Wepsiec of Murphosboro, Illinois deconstructs the custodial sexual misconduct criminal law statute.

 

In This Episode...

"'Hey I'm on parole, date me.' No body says that." -- Michael Wepsiec

Attorney Michael Wepsiec

Attorney Michael Wepsiec has over 34 years of legal experience.

He is the former elected States's Attorney of Jackson County Illinois. Before that he has the Carbondale city attorney, and before that he was an assistant state's attorney in Jackson County.

Contact Information

The Wepsiec Law Office
1502 Walnut St
Murphysboro, IL 62966
(618) 565-5206

The Illinois Custodial Sexual Misconduct Statute

In Illinois custodial sexual misconduct is found under 720 ILCS 5/11-9.2. The section provides that...

(a) A person commits custodial sexual misconduct when:
          (1) he or she is an employee of a penal system and engages in sexual conduct or sexual penetration with a person who is in the custody of that penal system;
         (2) he or she is an employee of a treatment and detention facility and engages in sexual conduct or sexual penetration with a person who is in the custody of that treatment and detention facility; or
         (3) he or she is an employee of a law enforcement agency and engages in sexual conduct or sexual penetration with a person who is in the custody of a law enforcement agency or employee.

(b) A probation or supervising officer, surveillance agent, or aftercare specialist commits custodial sexual misconduct when the probation or supervising officer, surveillance agent, or aftercare specialist engages in sexual conduct or sexual penetration with a probationer, parolee, or releasee or person serving a term of conditional release who is under the supervisory, disciplinary, or custodial authority of the officer or agent or employee so engaging in the sexual conduct or sexual penetration.

"Can't Miss" Moments:

✓ The Illinois statute on custodial sexual misconduct came into effect in 1997. Before that the regular sexual assault and official misconduct charges weren't doing the job. Here's why...(Go to 5:14)

✓ Prisons and correctional facilities are big business down in southern Illinois. Where there are prisons there will be custodial sexual misconduct. (Go to 6:35)

✓ Really hard to imagine how this law could be stretched into unintended conduct, I mean the law is really clear on what it is trying to prevent. Nonetheless, Wepsiec found a set up facts that leave you wondering if the law was meant to go there. (Go to 7:20)

✓ The one thing a guy is going to keep off his online dating profile. For some people it leads to disappointment and a dud date. For others it can lead to a criminal charge. (Go to 8:20) & (Go to 11:07)

✓ How a workman's comp claim can lead to criminal charges, and I don't mean fraud charges. In this case, a workman's comp claim lead to a charge of custodial sexual misconduct. (Go to 9:05)

✓ A parolee parked outside your residence on a Saturday morning just might get you charged with a crime. Push play to find out how. (Go to 9:55)

✓ The secret to getting a parolee to say anything you want to hear. (Hint: this only works if you're a parole agent.) (Go to 10:03)

✓ Did you know legally speaking that a person who is on parole also called mandatory supervised release is in the custody of the Illinois Department of Corrections? (Go to 11:43)

✓ "A person commits custodial sexual misconduct when he or she is an employee of a penal system and engages in sexual conduct or sexual penetration with a person who is in the custody of THAT penal system". Clearly, the law is written to prevent guards who are directly in authority over inmates in the guard's facility. (Go to 12:08)

✓ Heaven forbid you ever have to dig into the legislative history of a bill. When Wepsiec did it Barack Obama's name turned up. (Go to 13:26)

✓ The one key distinction between the Illinois Department of Juvenile Justice and the Illinois Department of Corrections made all the difference in the world to one downstate resident. Everything turned on the phrase "that penal system." (Go to 15:05)

✓ Here's a clear example of when we wouldn't want to charge a Jackson County Jail guard with custodial sexual misconduct, this ain't exactly "Orange is the New Black". (Go to 18:19)

✓ Does anyone object to charging politicians under this provision in the code? (Go to 19:35)

✓ "You know, I see some stuff now, and I'm going 'why in the heck did they file that?'." (Go to 20:47)

✓ The four rules to following a case. This was the standard Michael tried to live by when he was on the other side. When he was brining charges as a prosecutor he always tried to honor these principles. It's the last prong were prosecutors really distinguish themselves. (Go to 21:03)

✓ Here's a clear example of conduct the statute was intended to prevent. (CAUTION: these words are harsh, but they're not Michaels.) (Go to 23:35)

Links & Resources 720 ILCS 5/11-9.2. Custodial sexual misconduct Jackson County Illinois Murphysboro, Illinois Southern Illinois University Salukis Pinckneyville Correctional Center Menard Correctional Center Logan Correctional Center Chester Mental Health Center Alton Mental Health Center  Illinois Youth Center Harrisburg Illinois Department of Corrections Illinois Department of Juvenile Justice Bill of Particulars - 720 ILCS 5/111-6 See Also

You may also want to check out...

The Illinois Crimes Index  People v. Rowell, 229 Ill. 2nd 82 (May 2008) Episode 686 (Duration 31:58) (What To Do About Fatally Flawed Criminal Charges: Alan Downen Interview) Marisa Tomei From My Cousin Vinny Great Example Of How An Expert Witness Works & Origin Of The Term "Yoots" In Law

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.

The Knowledge Requirement For Possessing A Defaced Firearm

Mar 20, 2019 05:29

Description:

People v. Lee, 2019 IL App (1st) 162563 (February). Episode 605 (Duration 5:29)

Exactly what does the state have to prove in regards to possessing a gun with defaced serial number?

Gist

The State indicted defendant for the offense of defacing identification marks of a firearm and two counts of AUUW.

Facts

Police were undergoing drug surveillance when they spotted a suspicious car and van.

Upon further observation men were seen getting out of the vehicles and opened the trunk of the car. 2 men were seen putting guns in their waistband. When they saw the police they ran. They were arrested and defendant was seen tossing a black revolver.

The serial number was damaged as though a tool was taken to it to scratch it out.

Defacing Identification Marks

The Criminal Code of 2012 (Criminal Code) defines the offense of defacing identification marks of a firearm as follows:

“(a) Any person who shall knowingly or intentionally change, alter, remove or 1-16-2563 9 obliterate the name of the importer’s or manufacturer’s serial number of any firearm commits a Class 2 felony. (b) A person who possesses any firearm upon which any such importer’s or manufacturer’s serial number has been changed, altered, removed or obliterated commits a Class 3 felony.”

720 ILCS 5/24-5.

The Jury Instruction

Defendant objected to the use of Illinois Pattern Jury Instructions, Criminal, No. 18.24 (3d ed. 1992), modified, arguing that the “knowing possession” must attach not only to the possession of the firearm, but also to the defacement of the firearm’s serial number.

The State argued it only had to prove defendant knowingly possessed a firearm that was defaced, and Illinois law did not require the State to also prove that defendant knew that the firearm was defaced.

Trial Court Instruction

The court found that under People v. Falco, 2014 IL App (1st) 111797, ¶ 18, and People v. Stanley, 397 Ill. App. 3d 598, 609 (2009), the statute was clear that the State only had to prove that defendant knowingly possessed the firearm and that the firearm’s serial number was altered, obliterated, or removed.

The Jury Note

The jury sent another note asking,

“Does it matter that the defendant actually knows the identification marks are defaced on a firearm in his possession?”

The court stated to the parties that “Under the Falco case and the Stanley case, the State must prove the knowing possession of the firearm of the defendant but need not prove the defendant’s knowledge of the character of the firearm.”

Defendant renewed his objection, arguing that knowledge of the defacement was an element of the statute despite the case law and that any other reading meant that the offense de facto became a strict liability offense.

The State argued that the court should provide a direct answer to the question, and defendant argued that the jury has the law under their instructions and that no further instructions were necessary.

The trial court found that the note presented a question of law that the court was obligated to answer. The court overruled defendant’s objection and sent a note back to the jury, stating “no, the State must prove beyond a reasonable doubt the knowing possession of the firearm. Proof of knowledge of the defacement is not required.”

Found Guilty

The next morning the jury began its deliberations at 10:15 a.m. At 1:25 p.m., the jury returned its verdict, finding defendant guilty of AUUW, based on not having a currently valid license under the Firearm Concealed Carry Act (430 ILCS 66/1 et seq.); guilty of aggravated unlawful use of a weapon, based on not having a currently valid firearm owner’s identification card; and guilty of defacing identification marks of a firearm.

The court sentenced defendant to 30 days in jail, with credit for time defendant already served; 100 hours of community service; and 24 months’ probation.

Issue

Defendant argues the State failed to prove him guilty beyond a reasonable doubt because the State had to prove knowledge of the defacement and not simply knowledge of possession of a firearm with defaced identification marks, and the State did not present evidence proving beyond a reasonable doubt that defendant knew the identification markings were defaced on the firearm he possessed.

Defendant claims that his conviction should be reversed.

People v. Stanley

In that case we found that under section 24-5(b) of the Criminal Code, the State is only required to prove beyond a reasonable doubt that defendant knowingly possessed a firearm and that the firearm’s serial number was defaced.

“The State, however, need not prove knowledge of the character of the firearm. Though the defacement unmistakably bears upon the commission of the offense, it is not an element of the offense. We find support for this interpretation in the Committee Comments to section 4-9, explaining that: ‘[A] mental-state requirement should be implied as an application of the general rule that an offense consists of an act accompanied by a culpable mental state, as expressed in 4-3.’” People v. Stanley, 397 Ill. App. 3d 598, 609 (2009).

The Stanley court found that possession of the firearm was an element of the offense, but not knowledge of the defaced serial number, and that the mens rea applied to the possession not the character of the weapon. Analysis

The knowledge required applies only to the possessory component of the offense.

Our interpretation is in conformance with the legislature’s recognition of the dangerousness posed by defaced weapons. Thus, we perceive that the mere possession of such weapons is the evil sought to be remedied by this offense to, inter alia, deter the possession of altered weapons. This court has had a number of opportunities to revisit our holding in Stanley, and we have repeatedly reaffirmed Stanley and its reasoning.

Again, we note that had the legislature intended to impose such a knowledge requirement, it could easily have done so by amending section 18-4 to specify a mental state for the circumstances elevating the offense to its aggravated form. This court, and the legislature, has had ample opportunity to consider the issue of knowledge attaching to the defacement of the firearm as well as its possession.

This court has consistently held that under section 24-5(b) the State need only prove knowledge of possession of a gun that has defaced identification marks, and the legislature has not acted to change the law.

The State needed to prove beyond a reasonable doubt only that defendant knowingly possessed a firearm and that the firearm’s identification number was defaced. Holding

We find the State was not required to prove that defendant knew the firearm he possessed was defaced, and the jury instruction did not misstate the law.

See Also

Episode 009 – People v. Falco, 2014 IL App (1st) 111797 (August) (jury instructions said nothing at all about the mental state). 

The Trial Court’s Answer to a Question From the Jury

Recall that during deliberations the jury asked:

“Does it matter that the defendant actually knows the identification marks are defaced on a firearm in his possession?”

Defendant argues the circumstances were not appropriate for the trial court to answer the jury’s question because the giving of an answer would cause, and did cause, the court to express an opinion that impermissibly directed a verdict in favor of the State.

The General Jury Question Rule

“The general rule when a trial court is faced with a question from the jury is that the court has a duty to provide instruction to the jury when the jury has posed an explicit question or requested clarification on a point of law arising from facts about which there is doubt or confusion. Nevertheless, a trial court may exercise its discretion to refrain from answering a jury question under appropriate circumstances. Appropriate circumstances include when the instructions are readily understandable and sufficiently explain the relevant law, where further instructions would serve no useful purpose or would potentially mislead the jury, when the jury’s inquiry involves a question of fact, or where the giving of an answer would cause the court to express an opinion that would likely direct a verdict one way or another. Further, the court should not submit new charges or new theories to the jury after the jury commences its deliberations.”

People v. Millsap, 189 Ill. 2d 155, 160-61 (2000).

Did The Court Have A Duty To Answer?

In this case the issue of whether the trial court should have responded to the jury’s question turns on whether the court had a duty to answer. See People v. Gray, 346 Ill. App. 3d 989, 992 (2004) (“Generally, a trial court has a duty to answer when a jury raises (1) an explicit question (2) on a point of law (3) about which the jury indicates doubt or confusion.”).

The jury’s question here was explicit; it was a question of law because it dealt with the mens rea requirement and the construction of its jury instruction (Leach, 2011 IL App (1st) 090339, ¶ 17 (“the construction of a jury instruction is a question of law”)); and the jury expressed confusion over what the State was required to prove defendant had knowledge of.

We cannot say that the trial court’s decision to answer the jury’s question was arbitrary or unreasonable, or that no reasonable court would take the view adopted by the trial court here. Therefore, the trial court did not abuse its discretion deciding to answer the jury’s question. The court’s answer to the jury’s question did not express an opinion on an issue of fact. The court’s answer simply stated that the knowledge requirement applied to the possession of the weapon and not to the defacement of the weapon’s serial number.

The court did not abuse its discretion by choosing to answer the jury’s question, and the court’s answer did not misstate the law.

Therefore, the trial court did not err in providing its answer to the jury’s question.

OK. What About This Bullet Testimony?

“[O]therwise relevant evidence is inadmissible if its probative value is outweighed by such dangers as unfair prejudice, jury confusion, or delay.” People v. Walston, 386 Ill. App. 3d 598, 610 (2008). “Evidence is considered ‘relevant’ if it has any tendency to make the existence of any fact that is of consequence to the determination of an action more or less probable than it would be without the evidence.” People v. Illgen, 145 Ill. 2d 353, 365-66 (1991). Evidence is admissible if it is directly probative of an element of the offense. See People v. Hester, 271 Ill. App. 3d 954, 958 (1995) (“defendant’s prior conviction was properly admitted as evidence directly probative of that element of the offense, similar to the admission of evidence relevant to any other element of an offense”).

Evidence is inadmissible, and its admission may be reversible error, if it has little to no probative value and its only purpose is to stir the emotions of the jury. See People v. Orange, 168 Ill. 2d 138, 161 (1995); People v. Iniguez, 361 Ill. App. 3d 807, 817 (2005). Defendant was charged with, inter alia, aggravated unlawful use of a weapon based on not having a currently valid license under the Firearm Concealed Carry Act (430 ILCS 66/1 et seq. 720 ILCS 5/24-1.6(a)(3)(A-5).

Officer Serio testified that he examined both the gun and the bullets.

The Hollow Points

He said there were two types of bullets, full metal jacket and hollow point, and that they were live rounds. This testimony was proper because it relates to an element of one of the offenses charged. However, the State proceeded to elicit further testimony about the dangerous character of the hollow point bullets.

The character of the bullets is not an element of any of the offenses the State charged defendant with violating. There is no relationship between the charges against defendant and Officer Serio’s testimony that hollow point bullets are designed to do more damage to their target by opening up like a flower and are different from full metal jacket bullets because a full metal jacket bullet will maintain its shape when fired.

This testimony provided no probative value while being highly prejudicial.

The State introduced no facts to show defendant knew two of the bullets in the gun at issue were hollow point bullets or that defendant knew the dangerous nature of these bullets.

Thus, the State’s motive argument only serves to confirm the highly prejudicial and inflammatory nature of the evidence concerning the dangerousness of hollow point bullets. The evidence elicited by the State regarding the dangerous nature of two of the bullets recovered from the gun has no relevance to any of the charges against defendant, and with no probative value, this evidence only prejudices, confuses, and misleads the jury, thereby constituting clear error.

A commonsense assessment of the evidence reveals that it was closely balanced.

We also find the testimony describing the dangerous nature of the bullets found in the gun as designed to inflict greater damage to their target could have affected the weight the jury attributed to defendant’s testimony and caused it to render a verdict on an improper basis. Accordingly, we find the evidence is so closely balanced that the error alone threatened to tip the scales of justice against defendant.

We find defendant has shown clear error in a closely balanced case, and he is therefore entitled to relief under the first prong of the plain-error doctrine.

Holding

Therefore, defendant’s convictions for defacing identification markings of a firearm and for two counts of AUUW are reversed, and the cause remanded for a new trial.

Will You Be Ineffective If You Don’t Call An Eyewitness Expert Witness?

Mar 19, 2019 09:03

Description:

People v. Macklin, 2019 IL App (1st) 161165 (March). Episode 604 (Duration 9:02)

Was defense counsel ineffective for not calling an eyewitness expert witness?

Issue

Macklin argues that his trial counsel rendered ineffective assistance by not presenting an expert witness to support his defense that the eyewitness identifications were unreliable.

Charges

Macklin was charged with six counts of attempt first degree murder, five counts of armed robbery, one count of aggravated battery, one count of armed habitual criminal, two counts of aggravated discharge of a firearm, and four counts of aggravated unlawful restraint, all arising out of an incident involving two victims.

Facts

All three men wore dark sweatshirts and baseball caps with the hoods pulled up over the caps. Their faces were not covered. The man in the middle of the three men, later identified as Macklin, was taller than the others, and the victims were able to see his face.

When he was about 12 feet away, defendant pulled out a gun and said, “your money or you die” and fired a single shot toward them. The gunshot struck one of the victim’s in the right hand and he fell to the ground facedown. The other two men took over $150 in cash and identification cards from their pockets, as Macklin pointed the gun at them.

They also took the other victim’s wallet.

The three men fled on foot.

Injuries

The victim’s right hand was bleeding from a through and through gunshot wound.

He recovered but loss feeling in one of his fingers.

The Lineup

Defendant got arrested on another matter.

The victims separately viewed the lineup and both identified defendant as the person who had robbed them and shot him. Macklin sat in a different position in each lineup.

One victim was “70 percent sure” of his identification. The second victim then viewed the lineup, and identified Macklin. This witness was “100 percent sure” of his identification. The witnessess did not talk. The victim said he recognized Macklin from the incident. While only Macklin wore braids in the lineup, that did not affect the identification because it was based on “[h]is eyes and mouth,” which the victim recognized.

Convicted

Macklin elected not to testify and did not present any evidence.

Following closing arguments, the court found Macklin guilty of all charges but attempted first degree murder. Since it was undisputed that a man had been shot, the court found that the only issue was the reliability of the victims’ identification of Macklin. The court found the victim’s credible, consistent, and unimpeached.

The court stated that while there was evidence that one victim had been only 70% certain in his identification, the other victim was “100 percent sure. He never wavered.” In other words, they “were both sure of one thing, that [Macklin] was the guy that shot” Garcia.

The court sentenced Macklin to 40 years’ imprisonment for the armed robbery involving the personal discharge of a firearm proximately causing great bodily harm. The convictions on all other counts merged into the armed robbery conviction.

Unreliable Eyewitness Identification

Context is critical when referencing authorities referring to the identification of strangers as “ ‘proverbially untrustworthy.’ ” United States v. Wade, 388 U.S. 218, 228 (1967) (quoting Felix Frankfurter, The Case of Sacco and Vanzetti: A Critical Analysis for Lawyers and Laymen 30 (1927)). Many courts questioning the reliability of eyewitness identifications have done so in cases where the identifications were made under suggestive conditions.

For example, State v. Lawson, 291 P.3d 673 (Or. 2012), and State v. Henderson, 27 A.3d 872 (N.J. 2011) are not wholesale indictments of the reliability of eyewitness identifications. Rather, both Lawson and Henderson dealt with suggestive identification and lineup procedures and the effect such suggestiveness has on a witness’s identification of the defendant.

See Lawson, 291 P.3d at 679- 80 (victim was unable to pick defendant out of photo array at hospital shortly after she was shot and again one month later, but despite her lack of recollection of the hospital interview, five weeks after the incident she believed defendant was the assailant; victim later shown newspaper reports of the crime with photographs of the defendant as well as other photographs of the defendant and was taken to court before trial so she could observe him in person).

See also Henderson, 27 A.3d at 879-81 (when interviewed by police immediately after murder, eyewitness told police a false story and later changed his story when confronted by police; in viewing photo array, witness did not initially pick out defendant’s photograph, claiming to be unsure, but when shown the photo array again after police told him not to be afraid and that they would take care of him, selected defendant’s photo).

This Lineup

Here, Defendant’s lineup was not suggestive, and he does not pursue his contention on appeal that it was.

Leaving aside whether a Spanish-speaking officer translated the advisory form for one of the victims or whether that officer should have been present in the room when the victim viewed the lineup, the record does not reveal that suggestive procedures contributed to this identification.

And there is absolutely no basis to contend that there was anything suggestive about the other victim’s identification. As recognized in Lawson, “the scientific research is ‘probabilistic’—meaning that it cannot demonstrate that any specific witness is right or wrong, reliable or unreliable, in his or her identification.” 291 P.3d at 685.

Single Witness Rule Still Applies

While we respect our dissenting colleague’s views, we do not share his approach to evaluating the eyewitness testimony in this case. It is well-settled that a valid conviction may be based on a positive identification by a single eyewitness who had ample opportunity to observe. In re M.W., 232 Ill. 2d 408, 435 (2009).

The Biggers Factors

A trier of fact assesses the reliability of identification testimony in light of all the facts and circumstances including

(1) the witness’s opportunity to view the offender at the time of the offense
(2) the witness’s degree of attention at the time of the offense
(3) the accuracy of any previous description of the offender by the witness
(4) the degree of certainty shown by the witness in identifying the defendant and
(5) the length of time between the offense and the identification.

These are often referred to as the Biggers factors. Joiner, 2018 IL App (1st) 150343, ¶ 47 (citing Neil v. Biggers, 409 U.S. 188 (1972)). No single Biggers factor by itself conclusively establishes the reliability of identification testimony; instead, the trier of fact must consider all the factors.

The Witnesses Were Consistent

The testimony of both Gomez and Garcia was largely consistent.

Although Macklin points to certain discrepancies between their accounts of the robbery (one victime testified that the two other men took his money and identification, while the other victim said Macklin did; he estimated that he was able to see Macklin for “three to five minutes” while the man who was shot estimated he saw him for “three seconds” and while he was facedown on the ground), both consistently testified that the area was well lit, they were able to see Macklin, whose face was not covered, as he approached them, and that Macklin shot the victim in the hand from about 12 feet away.

A witness’ positive identification can be sufficient even though the witness gives only a general description based on the total impression the accused’s appearance made.” People v. Slim, 127 Ill. 2d 302, 308-09 (1989); see also Lawson, 291 P.3d at 687-88 (recognizing, based on eyewitness identification research, that “[c]ontrary to a common misconception, there is little correlation between a witness’s ability to describe a person and the witness’s ability to later identify that person”).

The man who got shot’s trial testimony that he identified Macklin in the lineup with “100 percent” certainty based on his eyes, mouth and facial hair, which he was able to observe during the robbery, is sufficient even if there was nothing particularly distinctive about those facial features that would have prompted him to separately describe them to police. Remarkable Coincidence

Indeed, if all they “really” saw was three men in dark hoodies and baseball caps, it is a remarkable coincidence that they both separately picked Macklin out of lineups in which he sat in different positions.

To paraphrase a theme prosecutors often invoke in closing arguments, Macklin must be the unluckiest man on the face of the earth to have not one, but two eyewitnesses mistakenly, separately, and independently identify him as the perpetrator.

The lineups were promptly conducted 10 days after the robbery.

100% Certainty Is Not Possible

The dissent dismisses the shot victim’s certainty in his identification of Macklin as this factor has been “roundly criticized,” citing another opinion this writer authored. Infra ¶ 77; see People v. Starks, 2014 IL App (1st) 121169, ¶ 72.

But, of course, context is everything.

Starks involved a jury trial and a defendant’s claim that the trial court erroneously refused to permit him to present expert testimony on the issue of the reliability of eyewitness identification. Given the developing body of law regarding the fallibility of eyewitness testimony and the recognition that, in appropriate cases, expert testimony may assist a jury in evaluating such testimony, we found that the trial court abused its discretion in dismissing out of hand defendant’s proffered eyewitness expert.

We neither directed the trial court to admit expert testimony nor did we reject a witness’s expression of certainty as an appropriate factor in the reliability analysis. The cited comments in Starks have no application here in a case involving a bench trial and where no expert witness testimony was proffered.

Moreover, the dissent conflates an eyewitness’s degree of certainty at the time of initial identification with certainty at the time of trial, disregarding any distinction. Here, Macklin’s trial took place four years after the robbery, so it stands to reason that the victims’ in-court identification of Macklin at trial is correspondingly less relevant.

But recent research has recognized a distinction between the reliability of lineup and in-court identifications and concluded that expressions of certainty at the time of initial identification are a relevant indicator of accuracy. See John T. Wixted & Gary L. Wells, The Relationship Between Eyewitness Confidence and Identification Accuracy: A New Synthesis, 18 Psychological Sci. in the Pub. Interest 10, 55 (2017) (concluding that “According to the available data, the relationship between confidence and accuracy for an initial ID from an appropriately administered lineup is sufficiently impressive that it calls into question the very notion that eyewitness memory is generally unreliable. *** [W]hen pristine testing procedures[2] are used, an initial ID made with high confidence is highly indicative of accuracy.”).

Accordingly, there is no basis to dismiss out of hand the witness’s 100% certainty in identifying Macklin.

See id. at 13 (noting that most wrongfully convicted defendants exonerated by DNA who were misidentified by an eyewitness were, at the outset of the investigation, identified with low confidence (citing Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong (2011))).

Lerma Shermerma

Sure there were minor discrepancies in the testimony but they were merely collateral and not fatal to the reliability of their identifications of Macklin. We acknowledge studies and decisions cited by Macklin that have called into question the reliability of eyewitness identifications. See, e.g., People v. Lerma, 2016 IL 118496, ¶ 24. That said, each case must be judged on its own facts, and nothing in this case compels us to reject the identifications that formed the basis of Macklin’s conviction.

We note first that Lerma had not been decided at the time of Macklin’s trial; it was decided shortly after the trial concluded.

No Expert Called In This Case

The Lerma court acknowledged that expert witnesses on the reliability of eyewitness testimony were being routinely excluded at the time, at least partly due to skepticism expressed by the supreme court and repudiated in Lerma itself. Id. ¶ 24 (citing People v. Enis, 139 Ill. 2d 264, 286-87, 289 (1990)).

Lerma recognized “the dramatic shift in the legal landscape concerning the use of identification expert testimony.” (Emphasis added.) People v. Ortiz, 2017 IL App (1st) 142559, ¶ 42. Representation based on the law prevailing at the time of trial is adequate, and counsel is not incompetent for failing to correctly predict that the law will change. People v. English, 2013 IL 112890, ¶ 34.

Further, the issue in Lerma—whether the trial court abused its discretion in rejecting proffered expert testimony—is manifestly different than the issue presented here, i.e., whether defense counsel’s performance fell below an objectively reasonable standard based on the failure to call an expert witness at trial.

The finding that “research concerning eyewitness identification*** is well settled, well supported, and in appropriate cases a perfectly proper subject for expert testimony” (Lerma, 2016 IL 118496, ¶ 24) does not, standing alone, support the conclusion that trial counsel here was per se ineffective for not presenting such expert testimony or that expert testimony is required in every case.

Trial Strategy Not To Call The Witness

For example, counsel is entitled to consider as a matter of trial strategy that the designation of an eyewitness expert by the defense will likely be met with a counterdesignation by the State, which would highlight and bolster the accuracy of the eyewitness identification.

In any event, the argument that trial counsel failed to conduct meaningful adversarial testing of the State’s case is refuted by counsel’s pretrial motion to suppress identification testimony and extensive cross-examination and argument at trial.

Finally, Lerma involved a jury trial while Macklin elected a bench trial.

As the Lerma court stated, “expert testimony is only necessary when the subject is both particularly within the witness’s experience and qualifications and beyond that of the average juror’s, and when it will aid the jury in reaching its conclusion.” (Emphases added.) Id. ¶ 23.

We do not find a reasonable probability that the presentation of an expert witness on the reliability of eyewitness testimony in this bench trial would have had any impact on the outcome of the proceedings.

Accordingly, the judgment of the circuit court is affirmed.

Strong Dissent

See the dissent which said the majority looks to the lineup and trial identifications and assures itself that any infirmities in those identifications have been ameliorated.

I look to the fleeting nature of the offense coupled with the inherent distraction caused by being shot and witnessing a relative being shot and find no assurances about the reliability of the identifications. I remain faithful, as I must, to the standard of review and reach a different conclusion—that Macklin’s conviction, based exclusively on problematic eyewitness testimony, is unreasonable.

The victims had a few seconds to view the men who robbed them.

In that instant, one of the men pulled a gun and shot one of them. At the end of it all, the only description they could give police was of three black men wearing black hoodies and baseball caps. Given this cursory and generic description, the fleeting nature of the offense, and the inherent distraction caused by the firing of a weapon, one might ask: How then can we rely solely on the victim’s assurance that they were certain, by the time of trial, of Macklin as the shooter?

I am unwilling to place substantial reliance on inherently malleable testimony. See People v. Fountain, 2016 IL App (1st) 131474, ¶ 159 (Hyman, J., dissenting).

Whenever I am called on to review the issue of reasonable doubt, I take heed of the cautionary words of U.S. Supreme Court Justice John Marshall Harlan, II:

“I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.”

In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring).

This case presents just the sort of situation that Harlan’s admonition evokes. We need a continued conversation, from the bench and elsewhere, to explore the utility of the Biggers factors as our understanding about eyewitness identifications continues to evolve. But, I must emphasize again that my disagreement with the majority is primarily connected to the facts here, not academic disagreements about Biggers.

A reviewing court may use common sense and engage in a searching evaluation of the record. Cunningham, 212 Ill. 2d at 280. The two witnesses viewed their attackers for mere seconds: traumatic and tense seconds. One of the offenders pulled a gun and shot one of the victims.

Immediately after the offense, the only description the two victims could offer was of three men in black hoodies and baseball caps. Ten days later, relying on fleeting glimpses of the offenders, the victims identified Macklin in a lineup muddled by cross language confusion.

The court must consider all of the Biggers factors together along with the surrounding circumstances. Simmons, 2016 IL App (1st) 131300, ¶ 89.

Not one Biggers factor weighs in favor of finding these identifications reliable. I conclude that a reasonable fact finder could not find Macklin guilty based on the identification before us and would reverse.

Armed Violence? Gun In The Waist Band Drugs Are Upstairs

Mar 11, 2019 05:58

Description:

People v. Wise, 2019 IL App (2d) 160611 (February). Episode 600 (Duration 5:57)

Drugs are found upstairs when defendant was downstairs, is this still armed violence?

 

Charges

Defendant was tried before a jury on two counts of armed violence (counts I and II), seven counts of UUW by a felon (counts VII to XIII), and one count of possession with intent to deliver heroin, a controlled substance (count V). The jury found defendant guilty of all counts.

Sentence

The court merged some of the convictions and sentenced defendant to 23 years’ imprisonment for one count of armed violence and to concurrent 14-year prison terms for the six counts of UUW by a felon.

A Search Warrant

A search warrant was executed and police encountered defendant in Frank’s Lounge, with a loaded, semiautomatic firearm in his waistband. The officers found a large rock of heroin, drug paraphernalia, small packages of a substance believed to be cocaine, and additional firearms in the apartment upstairs. 

Armed Violence

A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois law, with certain exceptions that are not relevant here. 720 ILCS 5/33A-2(a).

A person is considered “armed with a dangerous weapon” when he or she carries on or about his person or is otherwise armed with a Category I weapon, such as a handgun. 720 ILCS 5/33A-1(c)(1), (c)(2).

In count I, defendant was charged with armed violence, in that, while armed with a dangerous weapon, a semiautomatic firearm, defendant committed the offense of unlawful possession of a controlled substance, heroin, a felony. See 720 ILCS 5/33A-2(a); 720 ILCS 570/402(c). This is a Class X felony that is punishable by a minimum of 15 years’ imprisonment. 720 ILCS 5/33A-3(a).

Issue

Defendant says the state failed to prove beyond a reasonable doubt that he committed the Class X offense of armed violence by concomitantly committing possession of a controlled substance while armed with a dangerous weapon, as a single, continuous offense. Defendant’s theory is that

(1) the State was required to prove a nexus between the firearm in his waistband and the heroin in the apartment and
(2) the State failed to establish that nexus.

Defendant contends, in other words, that a person does not commit armed violence unless he is armed with a dangerous weapon in furtherance of the predicate felony. Defendant contends that the statute contemplates “some degree of continuance” between being armed and the predicate felony and therefore requires proof that the accused was armed in furtherance of the predicate felony.

Defendant’s Argument

He relies upon section 33A-1(a), which sets forth the legislative findings as follows:

“(1) The use of a dangerous weapon in the commission of a felony offense poses a much greater threat to the public health, safety, and general welfare, than when a weapon is not used in the commission of the offense. (2) Further, the use of a firearm greatly facilitates the commission of a criminal offense because of the more lethal nature of a firearm and the greater perceived threat produced in those confronted by a person wielding a firearm. Unlike other dangerous weapons such as knives and clubs, the use of a firearm in the commission of a criminal felony offense significantly escalates the threat and the potential for bodily harm, and the greater range of the firearm increases the potential for harm to more persons. Not only are the victims and bystanders at greater risk when a firearm is used, but also the law enforcement officers whose duty is to confront and apprehend the armed suspect. (3) Current law does contain offenses involving the use or discharge of a gun toward or against a person, such as aggravated battery with a firearm, aggravated discharge of a firearm, and reckless discharge of a firearm; however, the General Assembly has legislated greater penalties for the commission of a felony while in possession of a firearm because it deems such acts as more serious.”

720 ILCS 5/33A1(a).

Defendant argues that section 33A-1(a) manifests the legislature’s intent to “punish more severely those felonies in which a defendant concomitantly uses or possesses a deadly weapon proximate to an underlying felony’s commission.”

We disagree.

Analysis

A person commits armed violence if he commits a felony “while” armed with a dangerous weapon. 720 ILCS 5/33A-2(a).

 

The plain and ordinary meaning of “while” confirms that the only “nexus” needed to sustain a conviction under section 33A-2(a) is temporal: the commission of the predicate felony must occur at the same time that the accused is armed with a dangerous weapon. The armed violence statute does not require, in the context of a drug transaction, that the weapon and the drugs be in the same place at the same time. People v. Thomas, 242 Ill. App. 3d 266, 276 (1993).

 

 Defendant argues that section 33A-1(a) manifests the legislature’s intent to “punish more severely those felonies in which a defendant concomitantly uses or possesses a deadly weapon proximate to an underlying felony’s commission.” Not true.

The legislative findings in section 33A-1(a) set forth the goals and general reasons for the enactment of the armed violence statute but do not constitute elements of the offense. The legislature expressed in section 33A-1(a) its concern that a firearm, by its lethality and long range, facilitates the commission of the predicate felony and poses a much greater threat to victims, bystanders, and law enforcement than when a dangerous weapon is not used in the commission of the predicate felony. But the legislature did not articulate that concern as elements of armed violence as set forth in section 33A-2(a).

 

The plain and ordinary meaning of the statutory language does not require the State to prove beyond a reasonable doubt that the dangerous weapon facilitated or was used or possessed “in furtherance of” the predicate felony.

 

The Case Law

Where the armed violence statute has been applied to various fact patterns, courts have concluded that a person is guilty of the offense when his immediate access to a firearm increases the threat of violence related to the predicate felony. See, e.g., People v. Anderson, 364 Ill. App. 3d 528, 542 (2006); see also People v. Brown, 277 Ill. App. 3d 989, 992 (1996) (defendant hiding in crawl space where drugs and weapon were found); People v. Hernandez, 229 Ill. App. 3d 546, 551-52 (1992) (firearm and drugs found under and near mattress where defendant was sleeping); People v. King, 155 Ill. App. 3d 363, 365 (1987)); People v. Lenoir, 125 Ill. App. 3d 260, 261 (1984) (defendant alone in a bedroom lying on a bed next to controlled substances and a revolver).

But none of those cases stand for the proposition that the State must prove beyond a reasonable doubt that the firearm facilitated the predicate felony.

To the extent that the State must show the potential for immediate violence to victims, bystanders, or law enforcement, the threat is proved simply by the defendant’s “immediate access” to the dangerous weapon, not by the dangerous weapon facilitating the predicate felony. Even where the predicate felony is not the reason for being armed, the temporal link expressed in the armed violence statute serves the legislative purpose: “to deter felons from using dangerous weapons so as to avoid the deadly consequences which might result if the felony victim resists.” People v. Condon, 148 Ill. 2d 96, 109 (1992).

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.

Gun Close Drugs Far

To serve this deterrent purpose of the armed violence statute, the State must prove that the accused had some type of immediate access to or timely control over the weapon.

Defendant’s immediate access to the firearm in his waistband distinguishes this case from Condon. The police were executing a search warrant at defendant’s residence when they encountered him in the same building. While armed with the firearm, defendant could have resorted to gun violence to thwart the discovery of the firearms and the drugs upstairs in his apartment. From this evidence, the jury could reasonably infer that defendant posed a greater threat to the public and law enforcement than if he had not possessed the weapon at the time of his arrest.

Holding

 

We hold that the “while armed” element is satisfied when the accused is “armed with a dangerous weapon” in that he or she carries on or about his or her person or is otherwise armed with, i.e. has “immediate access to” or “timely control over,” a Category I weapon, such as a handgun. 720 ILCS 5/33A-1(c)(1), (c)(2); Condon, 148 Ill. 2d at 110.

 

The legislature could have articulated a closer connection between being armed and the predicate felony but did not. We decline to read into the statute conditions that the legislature did not express. Besides the concurrent timing and “immediate access to” or “timely control over” the dangerous weapon, the plain and ordinary meaning of the statutory language does not require a further nexus between being armed with a dangerous weapon and the predicate felony. A rational trier of fact could have found the essential elements of armed violence beyond a reasonable doubt.

See Also

Episode 499 – People v. Norwood, 2018 IL App (4th) 150883 (May) (What does it mean for a firearm to be immediately accessible?)

Disorderly Conduct Results After Defendant Talks To School Officials

Mar 4, 2019 09:00

Description:

People v. Swenson, 2019 IL App (2d) 160960 (February). Episode 597 (Duration 9:00)

Defendant called up a private school to ask about their live shooter safety, then got himself promptly arrested.

Gist

Defendant was convicted of disorderly-conduct. He called the Keith Country Day School and spoke with the admissions director about their “live shooter” protocols.

Facts

He said was interested in enrolling his second-grade son at the school, and he “immediately went into a battery of questions about the protocol at [the] school for handling things that were related to guns and shooting.”

Didn’t help that he said he had been kicked out of the school.

What He Said

“He basically wanted to know how prepared I would be if he or anyone who arrived on our campus with guns? And do we have bullet proof windows at our secretary’s desk? Are our doors bullet proof? Where do our faculty members stand when we do a lockdown when there is an intruder in our building? Where do they stand in position in a classroom? Do we arm our faculty? How would our faculty defend themselves against an armed intruder? There were multiple questions.”

Defendant also mentioned that “the United States was full of socialists and KGB members.”

He also asked if she

“knew the number of *** school shootings that had taken place in the United States and if she knew the success rate of shooters once they were on campus.”

Defendant brought up the San Bernardino shooting, which had happened one week earlier. He further asked:

“Is the school prepared if that would happen in your campus today?”

The administrator testified:

“He asked me if I was prepared to have the sacrificial blood of the lambs of our school on our, on my hands, if this were to happen and what would I do? What would I do if he were to show up at the campus with a gun what would be the protocol of the school?”

Defendant also asked if the students were given “PEZ dispensers to defend themselves.” He asked if the teachers carried guns, and he talked about “a number of guns and their success rate in kill.” He asked how long it would take police to get to the school in the event of a shooting.

Then He Really Got Crazy

At one point, defendant “was talking about when you shoot and kill children and you’re looking them in the eye and their innocence and the pillows of laying their heads down at night and then you have a shooter who shoots them in the face, you know, what does that do for her as a school?”

He asked her if she would “sniff the pillow.”

She stated that she thought he wanted to know “if she would sniff the pillow of their innocence after they’ve been dead.”

The school official testified that, based on her conversation with defendant, she believed that defendant was on the school campus. He had stated that he was familiar with the woods around the school campus because he had gone to school there.

The school official testified that the conversation left her “very shook up.”

Charged With Disorderly Conduct

Defendant was charged with violating section 26-1(a)(1) of the Criminal Code of 2012 (Criminal Code) (720 ILCS 5/26-1(a)(1)), which provides as follows:

“(a) A person commits disorderly conduct when he or she knowingly: (1) Does any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace[.]”

To prove defendant guilty beyond a reasonable doubt of disorderly conduct, the State had to prove that defendant “knowingly” committed an act in an unreasonable manner that he “knew or should have known” would tend to alarm or disturb another so as to cause a breach of the peace. People v. Raby, 40 Ill. 2d 392, 397 (1968).

Interestingly, he was also charged with attempted disorderly conduct, in that defendant attempted to convey a threat, the court found defendant not guilty of that charge.

Section 26-1(a) is a general provision intended to encompass all of the usual types of “disorderly conduct” and “disturbing the peace.” Activity of this sort is so varied and contingent upon surrounding circumstances as to almost defy definition. These considerations have led the Committee to abandon any attempt to enumerate “types” of disorderly conduct. Instead, another approach has been taken.

Requires Knowing Conduct

As defined by the Code, the gist of the offense is not so much that a certain overt type of behavior was accomplished, as it is that the offender knowingly engaged in some activity in an unreasonable manner which he knew or should have known would tend to disturb, alarm or provoke others.

The emphasis is on the unreasonableness of his conduct and its tendency to disturb. Raby, 40 Ill. 2d at 396-97 (quoting Ill. Ann. Stat., ch. 38, ¶ 26-1, Committee Comments (SmithHurd 1964)). Thus, although the scienter requirement for the doing of the act in an unreasonable manner is one of knowingness, the scienter requirement for “tend to disturb, alarm or provoke” is “knew or should have known.” Id. at 397; see People v. Albert, 243 Ill. App. 3d 23, 27 (1993) (because the defendant “performed her shouting knowingly and also knew or should have known that such noise likely would disturb people such as the complainant,” she could properly be found guilty of disorderly conduct).

Given the supreme court’s clear statement, the question is whether the evidence was sufficient to establish beyond a reasonable doubt that defendant knowingly committed an unreasonable act that he knew or should have known would tend to alarm or disturb another so as to provoke a breach of the peace.

Defendant Says

Defendant testified that his intent in making the call was to enroll his son in the school. When police arrested him there were no guns at his place. Defendant testified that he never threatened anyone at the school. He never said that he was bringing a weapon to the school. He did not have a firearm owner’s identification card, nor did he own any weapons.

Convicted By The Trial Court

In finding him guilty the court stated:

“Would you as a parent have the right to know some things about the school? Yes, but not in this fashion. The hallmark of this ruling here is reasonableness. We try to look at things reasonably and this was just an unreasonable act. Would a reasonable person be alarmed and disturbed? Yes. A reasonable person would be alarmed and disturbed. And I so find. I find that the act was done knowingly. Even if it wasn’t done knowingly in the sense of making a threat to the school but if the act was done knowingly and was the act an unreasonable act? Yes. The conversation is outlined by a credible witness and was unreasonable. It went too far for that. So it is disorderly conduct.”

Analysis – Alarm & Disturb

Here, viewed in the light most favorable to the State, the evidence allowed the trial court to infer that defendant had the requisite mental state.

Although inquiring generally about a school’s security protocol is not unreasonable in itself, the nature of defendant’s questions and comments, considered in their totality, clearly exceeded the bounds of reasonableness.

For instance, although defendant never stated that he was on the campus, he let her know that he was familiar with the campus. Defendant conveyed a detailed knowledge of guns and school shootings, and he asked what would happen “if he were to show up at the campus with a gun.” Defendant reminded the school official about the recent San Bernardino shooting and asked, “Is the school prepared if that would happen in your campus today?”

Although defendant claims that he “was only inquiring about the security at the school in relation to his concerns for his son’s safety,” his comments as a whole were broader, morbid, and clearly inappropriate to his purported objective.

Viewing the evidence in the light most favorable to the State, we find that a rational trier of fact could have found that defendant knowingly acted unreasonably and knew or should have known that his act would alarm or disturb the school official so as to breach the peace.

Analysis – Free Speech

Defendant next argues that, because his words were not lewd, profane, obscene, libelous, “fighting words,” or “true threats,” they were protected by the first amendment, such that the disorderly-conduct statute cannot be read as criminalizing them.

We disagree.

Words that are expressed “in such an unreasonable manner as to provoke, make or aid in making a breach of peace [do] not come within the protections of the first amendment.” City of Chicago v. Morris, 47 Ill. 2d 226, 230-31 (1970). Here, defendant, argues that his conduct was protected by the first amendment in that he merely “had a conversation with the school official about the security at Keith School.”

This is flagrantly disingenuous.

As noted, defendant did not merely engage in a civil conversation concerning a matter of public interest. Nor was he “peacefully expressing unpopular views.” Raby, 40 Ill. 2d at 397. Rather, he subjected the school official to a lengthy interrogation that was disturbing, morbid, and well beyond a reasonable concern for school security, causing a police response and a school lockdown.

Holding

Although defendant’s concern might have been reasonable, his manner of expressing it was not, and he provoked a breach of the peace. See Pence, 2018 IL App (2d) 151102, ¶ 17 (“a breach of the peace can occur without overt threats or profane and abusive language” (internal quotation marks omitted)). It thus was not constitutionally protected.

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) Episode 561 – People v. Khan, 2018 IL App (2d) 160724 (October) (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.) People v. Pence,2018 IL App (2d) 151102 (April) (freaking idiot sends a fb message to his previous victim)

Illinois FOIA Request Made By Newspapers And The Press Is Denied

Feb 27, 2019 08:26

Description:

In re Appointment of Special Prosecutor, 2019 IL 122949 (January). Episode 596 (Duration 8:25)

Press not allowed to get grand jury documents through FOIA.

Gist

Mayor Richard M. Daley’s nephew got in a fight the victim. Victim dies and nothing happens.

7 years later a special prosecutor is appointed and a special grand jury indicts the nephew on involuntary manslaughter. There were no obstruction-type charges on any police or prosecutorial officials.

Eventually the nephew plead guilty.

The Report

The special prosecutor released a report to the court outlining the investigation and the reasons for the charges and non charges in the case.

The court unsealed the report and released it to the public.

Press Wants More

The Sun Times and the Better Government Association (BGA) then sought FOIA’s for the grand jury information. These were denied and the denial was upheld by the appellate court.

In its FOIA request, the BGA sought disclosure of the following material from the OSP:

“Documents sufficient to show the names of everyone interviewed by Dan Webb’s special prosecutors in relation to the David Koschman/Richard Vanecko case,” “[c]opies of any and all statements by and communications with Daley family members and their attorneys” and “the same information for Mara Georges [(the City’s Corporation Counsel)],” and “[c]opies of any and all itemized invoices and billing records for the special prosecutor’s team.”

Illinois FOIA

FOIA expressly declares its underlying public policy and legislative intent.

Section 1 provides that “all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of this Act.” 5 ILCS 140/1 .

Section 1 explains that…

“[s]uch access is necessary to enable the people to fulfill their duties of discussing public issues fully and freely, making informed political judgments and monitoring government to ensure that it is being conducted in the public interest.”

Consequently, section 1 provides that “[i]t is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with this Act.”

FOIA is to be liberally construed to achieve the goal of providing the public with easy access to government information. Southern Illinoisan, 218 Ill. 2d at 416.

Exceptions To FOIA

Consequently, FOIA’s exceptions to disclosure are to be construed narrowly so as not to defeat the intended statutory purpose. Thus, when a public body receives a proper request for information, it must comply with that request unless one of FOIA’s narrow statutory exemptions applies. 5 ILCS 140/3(a).

Section 7(1) of FOIA provides that certain categories of records “shall be exempt from inspection and copying.” 5 ILCS 140/7(1). This includes: “Information specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law.” Id. § 7(1)(a).

Tradition of Grand Jury Secrecy

“The grand jury is an English institution, brought to this country by the early colonists and incorporated in the Constitution by the Founders.” People v. Jones, 19 Ill. 2d 37, 42 (1960). The function of a grand jury is not to determine the sufficiency of evidence to convict but rather to determine whether there is probable cause to believe a crime has been committed and, in the process, exonerate innocent individuals accused of crimes.

The rule of secrecy surrounding grand jury proceedings is a common-law concept recognized as a fundamental component of both federal and state criminal procedural law. See, e.g., Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211, 218 n.9 (1979) (“Since the 17th century, grand jury proceedings have been closed to the public, and records of such proceedings have been kept from the public eye.”); People v. Boston, 2016 IL 118661, ¶ 49 (Burke, J., dissenting) (“Grand jury proceedings are secret [citation], and this secrecy is fundamental to our criminal procedure.”

The policy reasons given for maintaining grand jury secrecy are preventing the flight of persons under indictment or investigation, protecting grand jurors from possible undue influence or intimidation, preventing subornation of perjury, encouraging prospective witnesses to testify freely and truthfully, and protecting the innocent from unwarranted exposure.

Statutory Reasons For Grand Jury Secrecy

Section 112-6 of the Code addresses the secrecy of grand jury proceedings in the Illinois state criminal justice system. Subsection (b) of section 112-6 provides that “[m]atters other than the deliberations and vote of any grand juror shall not be disclosed by the State’s Attorney, except as otherwise provided for in subsection (c).” 725 ILCS 5/112-6(b).

Subsection (c)(1), subject to certain exceptions not relevant here, prohibits the disclosure of “matters occurring before the Grand Jury.” Id. § 112-6(c)(1).

Issue

The BGA contends the appellate court erred in finding that the materials it sought constituted “matters occurring before the grand jury.” It argues the court applied an “unduly broad interpretation” of the phrase. According to the BGA, the phrase should be construed narrowly when it serves as a basis for an exemption under FOIA. The BGA further contends its application should be limited to exempting material actually presented to the grand jury and to documents showing what transpired in the grand jury room.

We disagree.

Analysis

 The appellate court determined that all of the requested material, except for the itemized invoices and billing records, constituted “matters occurring before the grand jury” protected from public disclosure by section 112-6 of the Code because their disclosure would reveal the identity of the witnesses and the strategy or direction of the grand jury investigation. 2017 IL App (1st) 161376, ¶¶ 64-67.

We agree with the appellate court’s analysis.

The BGA’s first FOIA request would reveal the identities of the witnesses, which are matters occurring before the grand jury. Matters occurring before the grand jury include the identities of witnesses, and the government is not free to “publish lists of prospective or former grand jury witnesses. And in regard to the BGA’s second FOIA request, it cannot seriously be contended that the disclosure of such statements and communications would not be reflective of statements made before the grand jury revealing the strategy or direction of the grand jury investigation.

Doesn’t FOIA Itself Authorize These Disclosures?

The BGA alternatively argues that, even if the requested materials constitute “matters occurring before the grand jury,” they should still be disclosed pursuant to subsection (c)(3) of section 112-6 of the Code. This subsection allows disclosure of grand jury materials “when a law so directs.” 725 ILCS 5/112-6(c)(3).

The BGA contends that section 3(a) of FOIA is such a law.

Section 3(a) of FOIA provides in relevant part that “[e]ach public body shall make available to any person for inspection or copying all public records.” 5 ILCS 140/3(a) (West 2014). The BGA argues that, under subsection (c)(3) of section 112-6 of the Code, section 3(a) of FOIA is a law that directs the disclosure of the grand jury materials at issue The BGA made the same argument in the appellate court, and it was rejected.

The appellate court reasoned: “We believe that the clause ‘when a law so directs’ in section 112-6(c)(3) addresses situations of particularized necessity, such as disclosure to a court clerk or to confront a witness in a criminal trial with his prior contrary testimony. Despite exhaustive briefing, no party has cited a case where section 112-6 of the Code was held not to trigger a section 7(1)(a) exemption.

We agree with the OSP that adopting the BGA’s expansive interpretation of ‘when a law so directs’ would render the secrecy provisions in section 112-6 of the Code ‘a dead letter,’ because FOIA would effectively nullify them.”

We agree with the appellate court’s reasoning.

If we adopted the BGA’s position, documents could be disclosed through a FOIA request, even if they pertained to matters occurring before the grand jury. As a result, there would be few if any grand jury matters that could not be obtained through a FOIA request. Such a rule would effectively nullify the grand jury secrecy protections provided by section 112-6.

Holding

In sum, section 112-6 of the Code prohibited disclosure of the requested material, triggering the exemption provided by section 7(1)(a) of FOIA. Therefore, we affirm that portion of the appellate court’s judgment that affirmed the chancery court’s order dismissing count I of the BGA’s complaint.

We likewise leave undisturbed that portion of the appellate court’s judgment reversing the chancery court’s order in part and remanding for in camera review of the OSP’s invoices and billing records.

Guided by GTE Sylvania and its progeny, and established Illinois law, we conclude that the City was required to obey the protective orders out of respect for the judicial process. Consequently, based on the facts of this case, the protective orders took precedence over the disclosure requirements of FOIA.

Therefore, we hold that the City did not “improperly withhold” the requested documents within the meaning of section 11(d) of FOIA. 

See Also

Episode 553 – People v. Zimmerman, 2018 IL 122261 (October) (You can hide lascivious pretrial motions from the press.)

Episode 320 – Interview With Evan Parke (Evan made extensive use of Illinois FOIA requests in the defense of Curtis Lovelace.)

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.

However, Anthony does not limit his practice to only criminal justice cases.

Any dilemma involving conflict with a government agency is in his wheelhouse.

"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.

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Does Defendant Have To Withdraw His Guilty Plea In Order To Challenge An Error By The Judge In The Sentencing Hearing?

Feb 20, 2019 10:11

Description:

People v. Johnson, 2019 IL 122956 (January). Episode 593 (Duration 10:10)

Defendant has to move to withdraw his plea if he wants to challenge a sentence that was within the agreed cap but where the judge relied on improper factors.

Gist

The sole issue before this court is whether the appellate court erroneously reached the merits of defendant’s sentencing challenge. That determination turns on the proper application of Rule 604(d), which is a question of law, reviewed de novo.

Facts

Defendant plead guilty to 2 charges.

The state dismissed more serous counts and agreed to a 13 year sentencing cap. Defendant was given 11 years. He then sought to vacate the plea because he said the trial court relied on improper sentencing factors. After examining the applicable rules and the relevant case law, the appellate court held that a defendant who enters into a partially negotiated plea agreement need not withdraw his plea in order to challenge his sentence on the basis that the trial court relied on improper sentencing factors.

The Old Illinois Supreme Court Rule 604(d)

Rule 604(d) provides that

“[n]o appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant *** files in the trial court a motion to reconsider the sentence, if only the sentence is being challenged, or, if the plea is being challenged, a motion to withdraw his plea of guilty and vacate the judgment.”

Rule 604(d) (eff. Aug. 1, 1992).

But What If There Is An Agreement?

In People v. Evans, 174 Ill. 2d 320, 332 (1996), we held that a defendant may not unilaterally seek to reduce his sentence by filing a motion for sentence reconsideration under Rule 604(d) where he pleads guilty to certain charges in exchange for an agreement to dismiss charges and recommend a specific sentence—a plea arrangement characterized as “negotiated.”

In that situation, a defendant must move to withdraw the plea and vacate the judgment and show that the granting of the motion is necessary to correct a manifest injustice. 

Our rationale for this conclusion was dictated by the nature of the plea agreement and the application of contract law principles. We explained that a defendant who seeks to reduce the agreed-upon sentence seeks “to hold the State to its part of the bargain while unilaterally modifying the sentence to which they had earlier agreed.” Id. at 327.

What If It’s Just A Sentencing Cap?

Thereafter, in People v. Linder, 186 Ill. 2d 67 (1999), we applied the same contract law principles with equal force where a defendant agreed to plead guilty in exchange for a recommended sentencing cap. Again, we highlighted the significance of the plea bargaining process.

Under this type of negotiated plea, we reasoned that, “by agreeing to plead guilty in exchange for a recommended sentencing cap, a defendant is, in effect, agreeing not to challenge any sentence imposed below that cap on the grounds that it is excessive.” Id. at 74.

We explained that under these circumstances, allowing a defendant to move to reconsider his sentence without withdrawing his plea “unfairly binds the State to the terms of the plea agreement while giving the defendant the opportunity to avoid or modify those terms.” Id. Thus, we held these types of negotiated agreements raised the same concerns that were present in Evans.

If There Is No Agreement What-So-Ever?

In People v. Lumzy, 191 Ill. 2d 182, 187 (2000), we held that, where absolutely no agreement existed between the parties as to the defendant’s sentence, a defendant is not required to withdraw his plea in order to challenge his sentence. Under this type of plea, no contract principles were violated, and the sentence did not go “hand in hand” with the plea because the State “did not make any facet of sentencing an element of its bargain with defendant.” Id. at 189.

Thereafter, in People v. Diaz, 192 Ill. 2d 211, 225 (2000), we summarized that under Rule 604(d) a defendant is not required to move to withdraw his guilty plea in order to challenge his sentence where the plea bargain is silent as to sentencing. However, we reiterated that, where the plea agreement between a defendant and the State concerns both the charging and sentencing aspects of the defendant’s case, the defendant must move to withdraw the plea.

The General Rule

Our rationale is again animated by the nature of the plea and contract principles because the sentence is premised upon the plea.

“The existence of a sentencing concession by the State activates the application of the Evans rule, as the sentence is thereby made a part of the bargain between the parties. Therefore, if a plea agreement limits or forecloses the State from arguing for a sentence from the full range of penalties available under law, in order to challenge his sentence, a defendant must first move to withdraw his plea in the trial court. If the court grants the motion, both parties are then returned to the status quo as it existed prior to the acceptance of the plea.”

The New Illinois Supreme Court Rule 604(d)

In 2000, consistent with the development of our case law, this court amended Rule 604(d). The rule now includes the following pertinent language:

“No appeal shall be taken upon a negotiated plea of guilty challenging the sentence as excessive unless the defendant, within 30 days of the imposition of sentence, files a motion to withdraw the plea of guilty and vacate the judgment. For purposes of this rule, a negotiated plea of guilty is one in which the prosecution has bound itself to recommend a specific sentence, or a specific range of sentence, or where the prosecution has made concessions relating to the sentence to be imposed and not merely to the charge or charges then pending.”

Ill. S. Ct. R. 604(d) (eff. Nov. 1, 2000).

Some Limited 604(d) Exceptions

The State notes that this court has exempted the application of Rule 604(d) to negotiated pleas in two narrow instances:

(1) where a defendant challenged his sentence as not authorized by statute (People v. Williams, 179 Ill. 2d 331 (1997); People v. Wilson, 181 Ill. 2d 409 (1998)) and
(2) where a defendant challenged the statute under which he was sentenced as facially unconstitutional and void ab initio (People v. Guevara, 216 Ill. 2d 533 (2005)).

The State asserts that defendant’s sentencing challenge does not fall within either instance.

A Conflict In The Districts

Defendant acknowledges that he does not wish to withdraw his “favorable” plea. Rather, in an attempt to preclude the application of the rule to his claim on appeal, defendant maintains there is a distinction between a challenge to a sentence as being “excessive” and the challenge he now makes—a challenge to a sentence because the court improperly relied on certain statutory aggravating factors.

He maintains that the distinction lies in the fact that his challenge is one of constitutional dimension that implicates due process and fundamental fairness.

The Second and Fourth Districts have drawn a distinction between an “excessive” sentencing challenge and an “improper” sentencing challenge, finding the latter challenge not barred by Rule 604(d). The Third District rejected this argument, finding it would reduce the withdrawal requirement of Rule 604(d) to “nothingness” and would deny the State the benefit of its bargain in negotiated pleas. People v. Rademacher, 2016 IL App (3d) 130881, ¶¶ 58-60.

Thus, to resolve this split in authority, we consider the nature of defendant’s challenge.

Issue

The State maintains that Rule 604(d) precludes a defendant who entered into a negotiated guilty plea from challenging a sentence that was statutorily authorized and within the terms of the plea agreement.

The State argues that pursuant to Rule 604(d) defendant’s recourse is to seek to withdraw the plea and vacate the judgment.

 Defendant contends that the circuit court considered improper aggravating factors in sentencing that were inherent in the offense. The prohibition against dual use of an aggravating factor, referred to as “double enhancement,” is “based on the assumption that, in designating the appropriate range of punishment for a criminal offense, the legislature necessarily considered the factors inherent in the offense.” People v. Phelps, 211 Ill. 2d 1, 12 (2004).

Analysis

Thus, when a defendant contends the court improperly considered a statutory aggravating factor that was implicit in the offense, the defendant is asserting that the court imposed a “harsher sentence than might otherwise have been imposed” had the court not considered the improper statutory factor. Thus, defendant’s argument is essentially that, had the trial court not erred in its application of the statute and had it not erroneously considered those statutory factors, he would have gotten a lower sentence than the 11-year sentence that was imposed.

Stated another way, defendant contends the court imposed an excessive sentence.

 

Ultimately, we find the nature of defendant’s challenge to be a distinction without a difference for purposes of Rule 604(d). To find otherwise would allow almost every sentencing challenge in a criminal case to be restated in a constitutional due process framework as a way to avoid the rule. This type of exception would result in making Rule 604(d)’s requirements superfluous.

 

Diaz Had It Right All Along

Rather, we find Diaz to be ample support for our conclusion that the nature of the plea agreement and contract principles bar defendant from moving to reconsider his sentence.

In Diaz, the defendant entered into a negotiated plea in which he agreed to plead guilty to certain charges in exchange for the State’s agreement to certain sentencing concessions, which resulted in a recommendation to cap his sentence at 30 years. The defendant received a sentence of 20 years, well within the bargain, but sought to challenge his sentence on appeal because the trial court improperly allowed certain evidence to be introduced during the sentencing proceedings. As a result of the evidentiary errors committed by the circuit court, defendant argued he was entitled to a new sentencing hearing. The State contended that the plea agreement was analogous to the agreement in Linder and, therefore, defendant’s recourse was to move to withdraw his plea.

We agreed.

Similarly, in this case, defendant entered into a negotiated plea in which he pleaded guilty in exchange for not only dismissal of certain charges, including a Class X offense, but also sentencing concessions by the State. Defendant’s plea was entered with the full knowledge that he could receive a sentence within the cap—that is, any sentence within the 4- to 13-year range.

Defendant received a sentence two years below the maximum sentence of 13 years to which he knew he could be sentenced. Under the agreement, defendant avoided a potential punishment beyond that which he deemed to be fair and received the certainty of a lower sentencing range. The sentence imposed was within the terms of the bargain and was well within the permissible sentencing range for that offense.

Like the defendant in Diaz, defendant now seeks to retain the State’s concession while freely challenging his sentence. The sentence cap and plea went together as material elements of the plea bargain. Defendant has received a sentencing benefit from the agreement not to seek a sentence above the cap and has received the certainty of a lower sentencing range. To “allow defendant to unilaterally modify his agreement under these circumstances while holding the State to its end of the bargain” would violate contract principles.

No Hobson’s Choice

Consistent with our precedent, defendant’s recourse under Rule 604(d) is to seek to withdraw the plea and return the parties to the status quo as it existed prior to the acceptance of the plea. Defendant followed that course of action but failed to show the plea was not voluntary or knowing or that the granting of his motion was necessary to correct a manifest injustice.

He has now chosen to abandon any argument on appeal with respect to the withdrawal of his plea. Despite the nature of the plea agreement and the contract principles at issue, defendant maintains that his challenge is distinct because it implicates the integrity of the judicial system. He also contends that he is otherwise left with a Hobson’s choice to accept the court’s erroneous sentence or withdraw a favorable plea.

Again, we find the nature of defendant’s challenge no different than the challenge in Diaz for purposes of applying Rule 604(d), where the defendant similarly argued he was denied a fair sentencing hearing because the trial court allowed improper evidence to be introduced at the hearing. Despite that fact, the defendant entered into a negotiated plea agreement to a sentence that was authorized by statute and was within the terms of the agreement.

Holding

We hold that under these circumstances a defendant’s recourse is to seek to withdraw the plea and return the parties to the status quo does not undermine judicial integrity. In sum, after considering the language of the rule and this court’s precedent, we hold that a defendant who enters into a negotiated plea agreement may not challenge his sentence on the basis that the court relied on improper statutory sentencing factors.

This type of sentencing challenge is an excessive sentence challenge. Under Rule 604(d), a defendant’s recourse is to seek to withdraw the guilty plea and return the parties to the status quo before the plea.

Accordingly, the appellate court erred in addressing the merits of defendant’s sentencing challenge. 

Ultimate Illinois Sentencing Guide Check out the Illinois Sentencing Resource Page to discover more on this topic.

 

Problems With The Prior Consistent Statement Illinois Rule 613(c)

Feb 19, 2019 15:26

Description:

Prior Consistent Statement

Generally, a prior consistent statement of a witness is inadmissible for the purpose of corroborating the witness’s trial testimony. People v. Donegan, 2012 IL App (1st) 102325, ¶ 52. That is so because it is likely to unfairly enhance the witness’s credibility solely because the statement has been repeated.

Illinois Rule Of Evidence 613(c)

Rule 613(c), as amended in 2015, states, in pertinent part, that a prior consistent statement is admissible “for rehabilitation purposes only and not substantively as a hearsay exception or exclusion.” Ill. R. Evid. 613(c) (eff. Oct. 15, 2015).

The plain language of Rule 613(c) precludes the admission of a prior consistent statement as a hearsay exception, including as an excited utterance.

Accordingly, as the State concedes, the protective services testimony about the victim’s prior consistent statement was improperly admitted as an excited utterance.

People v. Baker, 2019 IL App (2d) 160791 (February). Episode 592 (Duration 15:26)

 

Inadmissibility of prior consistent statement trumps hearsay exceptions.

Gist

The victim was defendant’s step sister, who lived with defendant. He chocked and beat her. She was developmentally disabled and worked at Malcolm Eaton Enterprises. ME provided developmental training for disabled adults.

Facts

Her work day was from 8:30 a.m. to 3 p.m.

As the victim packed her lunch and prepared for work, defendant began to tease her about her former boyfriend. Defendant’s persistent remarks angered the victim. When the victim told defendant to stop, defendant grabbed her by the throat with his left hand and pushed her against the refrigerator.

As he did so, he squeezed the victim’s throat. When the victim told him to leave her alone, he released his grasp. the victim then went into her bedroom. As she exited the bedroom, defendant grabbed her by the arm.

The victim then entered the bathroom. After she did, defendant slammed the bathroom door so hard he damaged it. Because the door was damaged, defendant obtained some tools, including a pry bar, to repair it. As the victim exited the bathroom, she saw defendant holding the bar and thought he might hit her with it.

Told Them What Happened

She testified that when she arrived at ME she told a nurse and other employees about “what happened.”

She later told a police officer about “what had happened.” The victim never specified what she said about the incident. 

On cross-examination, the victim admitted that she told a police officer that defendant had grabbed her throat twice as opposed to once. She further admitted that she told the officer that defendant pushed her in the chest, causing her to fall into the basement door.

More Details From The Protective Services Guy

When the state asked the adult protective services supervisor and case worker what the victim told him about the incident, defendant objected based on hearsay.

When the trial court overruled the objection, defendant asked for an explanation. The court explained that it was admitting the testimony about what the victim told him as an excited utterance or spontaneous declaration.

Defendant did not object on any other basis.

According to the protective services witness, the victim told him that defendant had lost his temper, screamed at her, and called her names. Defendant then grabbed her throat and shoved her into the refrigerator. She added that when she went into the bathroom and looked in the mirror she could see marks on her throat. When she told defendant about the marks, he responded that the next time he would throw her through a wall.

The victim told him that, when she told defendant that she was going to report the incident at ME, he told her that if she did he would put her belongings on the porch and lock her out.

The Text Message

While the protective services witness was speaking with the victim, she received a text message. She became upset, showed the message to him, and said that it was from defendant.

According to the witness, the message stated that if the victim told the police about defendant she should not return home, because she no longer lived there. 

Issue

On appeal, defendant contends that the trial court plainly erred in admitting the victim’s prior consistent statements through her testimony and that of the protective services witness.

The State responds that (1) the victim’s testimony that she related what happened to third parties did not constitute prior consistent statements, and (2) because the victim’s statement to protective services was an excited utterance, his testimony was admissible, irrespective of whether the victim’s statement was a prior consistent statement.

This Case

Here, defendant asserts that the victim testified that she told the “same story” to others and thus testified to prior consistent statements. However, the victim never testified that she told the “same story.” Rather, she testified that she told others about “what happened.”

She never specified what she said about the incident.

Accordingly, there was no prior statement that was consistent with her testimony. Because there was no prior consistent statement, the victim’s credibility was not unfairly enhanced. Thus, the admission of the victim’s testimony was not error.

Statement To Protective Services Was Admissible Hearsay

We first address whether that testimony may be challenged as a prior consistent statement when it was admissible under an exception to the hearsay rule.

Thus, the State asserted that, because the testimony was properly admitted as an excited utterance, it did not matter whether it was inadmissible as a prior consistent statement. However, at oral argument, the State withdrew its argument. In doing so, the State pointed to Illinois Rule of Evidence 613(c) (eff. Oct. 15, 2015), which it contended now prohibits the admission of a prior consistent statement as substantive evidence under any hearsay exception.

We agree.

Holding

To the extent that People v. Watt held that a prior consistent statement could be admitted as an excited utterance, it is no longer efficacious in light of the subsequent amendment to Rule 613(c). Because the evidence was not closely balanced, it was not plain error.

Illinois Rules Of Evidence Check out the Illinois Rules of Evidence Resource Page to learn more about Illinois Evidence. See Also

Original Version of Rule 613 in January 2011

Amended Version of Rule 613 in October 2015

Illinois Rules of Evidence A Color-Coded Guide

People v. Davison, 2019 IL App (1st) 161094 (February). Episode 589 (Duration 15:22) (police course of conduct evidence is kind of fishy)

People v. Felton, 2019 IL App (3d) 150595 (January). Episode 590 (Duration 11:02) (excited utterance evidence was properly admitted in this case with crazy facts)

People v. Hayden, 2018 IL App (4th) 160035 (December). Episode 577 (Duration 7:14) (all kinds of 115-10 statements were admitted against defendant in this case)

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.

Prior Bad Acts Or Other Crimes Evidence Has To Be Limited When Admitted

Feb 13, 2019 11:03

Description:

People v. Felton, 2019 IL App (3d) 150595 (January). Episode 590 (Duration 11:02)

Other crimes evidence was excessive here but it was a bench trial and the evidence was overwhelming against defendant.

Gist

The State charged defendant with attempted first degree murder (720 ILCS 5/8-4(a), 9­ 1(a)(1)) and aggravated battery (id. § 12-3.05(e)(1)), alleging defendant shot Jeremy Wade in the face, causing great bodily harm. The State also charged defendant with home invasion (id. § 19-6(a)(2)) and residential burglary (id. § 19-3(a)).

The Home Invasion

Defendant participated in the home invasion and burglary of a 93 year old victim.

They tied her up and for 45 minutes took things from her home. The home invasion trial went without a hitch and defendant was convicted.

Admitted In The Murder Trial

In the bench trial for the attempted murder the state was allowed to get into some aspects of the home invasion to prove the motive for the attempt murder. The first 30 pages of the victim's trial testimony consisted of his detailing the planning and execution of the home invasion. This testimony was largely identical to his testimony at defendant’s home invasion trial.

The State once again played the surveillance footage from the Joliet Walmart.

Victim Arrested

Two Ottawa police officers also testified solely regarding the details of the home invasion. The victim testified that he was taken into custody following a drug raid. He was questioned about the home invasion but did not cooperate and was eventually released.

Defendant Worried

Immediately after his release, defendant contacted him wanting to know what he disclosed to the police.

Defendant didn't show up but sent someone to give the victim a phone. They talked on a phone after the victim was searched for a wire. 

Later the victim is called again by the defendant. Again defendant asked him about his interaction with the police three days earlier. The victim told him for the first time that the police had shown him a photograph of a codefendant. Defendant “kind of freaked out and called an F’ing idiot.”

Finally, defendant wanted to meet to talk.

The Live "Meeting"

The victim and another man remained in a truck, waiting for defendant.

When a red car passed them, they followed it. The red car led them to the Streator area. There were two people in the car, defendant and another man. Both vehicles stopped on a bridge, and the victim and defendant each alighted from their respective vehicles.

Victim observed a rubber glove on defendant’s hand.

Defendant instructed him to stand against the railing and then told the victim's companion to leave. At defendant’s direction, the victim took his shirt off so defendant could check for a wire. Defendant had a plastic bag around his other hand and was holding a firearm in it.

He told the victim to open his mouth. Victim testified: “I refused to open my mouth, and he kind of like grinned and giggled at me a little bit and said something about don’t cry.”

The Shot

The victim recalled seeing a white flash.

His next memory was of waking up in the water underneath the bridge. He had pain in his face and pelvis. He heard tires squealing and believed defendant had left. He thought his pelvis was broken and described his teeth as “dangling by threads of my gum line.”

The victim walked to a house where he could see lights. He yelled for help. He entered the house and called 911.

The Injury

He testified that he eventually received surgery on his mouth and had his pelvis reset. The State played two 911 calls made by the victim in court.

911 Call

In the first call, he immediately tells the operator “I just got shot in the face.”

When the operator asks where the firearm was, he replied, “he’s got it.” When the operator asked who had the firearm, victim replied, “his name is Merch. *** He shot me in the face.”

In the second 911 call, the operator asked him who shot him. Victim replied: “His nickname is Merch. M-E-R-C-H. *** He shot me on the bridge and I fell off the bridge in the water. I made my way to these guys’ house and they’re standing here with me.”

The Home Owners

The home owners testified that testified that the victim could not talk very well because “his mouth or his teeth were shattered.”

He was on the telephone with a 911 operator but was becoming frustrated when the operator could not understand what he was saying. The home owner testified: “The only thing that he really said to me was Merch did it.”

Police Get There

When police got there they saw a bullet hole through his upper lip.

Victim was also shirtless and complaining of pain in his hip.

Victim told police that Merch had shot him and Merch was “trying to eliminate him.” He was able to explain that Merch had been driven to the bridge, pulled a firearm out of a bag, and shot him in the face.

Sentencing Hearing

In a letter written to the court, defendant maintained his innocence for home invasion and attempted first degree murder. In his statement of allocution, defendant referred to the proceedings as a “modern-day lynching, castration, beheading in relation to due process of law.”

He blamed the unfair proceedings on “shape-shifting humanoids,” Satan, “energy vampires among the political elite,” and “the Children of the Greys.”

The circuit court noted defendant had no remorse and found he was a danger to the public. The court sentenced defendant to a term of 45 years’ imprisonment for home invasion. For attempted first degree murder, the court sentenced defendant to a concurrent term of 30 years’ imprisonment. The court added a firearm enhancement of natural life in prison to the attempted murder sentence.

Issue

Defendant contends that an excessive amount of other-crimes evidence was introduced at his attempted first degree murder bench trial. Specifically, he maintains that the evidence regarding the home invasion created a home invasion trial within the attempted murder trial.

He argues the amount and detail of that evidence rendered his trial unfair.

Other Crimes Evidence

Evidence of other crimes, wrongs, or bad acts is not admissible for the purpose of demonstrating a defendant’s propensity to commit a crime. Ill. R. Evid. 404(b) (eff. Jan. 1, 2011); People v. Donoho, 204 Ill. 2d 159, 170 (2003).

Such evidence is generally inadmissible because it carries an extreme risk of prejudice in that it can lead to “the jury convicting a defendant because he or she is a bad person deserving punishment.” Donoho, 204 Ill. 2d at 170; see also People v. Lindgren, 79 Ill. 2d 129, 137 (1980) (noting that other-crimes evidence tends to “overpersuade[ ] the jury, which might convict the defendant only because it feels he or she is a bad person deserving punishment”).

As the United States Supreme Court has explained: “The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.” Michelson v. United States, 335 U.S. 469, 475-76 (1948).

Other Purpose Admissibility

Other-crimes evidence is admissible, however, for other purposes, “such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Ill. R. Evid. 404(b) (eff. Jan. 1, 2011).

When introduced for such purposes, othercrimes evidence is directly probative of a defendant’s guilt of the charged offense, rather than merely his character.

Still, while the evidence can be admissible, it remains subject to the overarching rule that its probative value must not be substantially outweighed by the risk of undue prejudice. Ill. R. Evid. 403 (eff. Jan. 1, 2011); People v. Robinson, 167 Ill. 2d 53, 63 (1995) (“Even where relevant for a permissible purpose, the trial judge must weigh the prejudicial effect of admitting the other-crimes evidence against its probative value.”).

In addressing the danger of undue prejudice in the context of otherwise admissible othercrimes evidence, courts have consistently found that the amount and accumulation of such evidence will increase that danger. As this court has explained: “as the probative value of each subsequent piece of cumulative evidence diminishes, the prejudicial effect, if there is any, remains the same, increasing the chances that the danger of undue prejudice will come to outweigh the probative value.” Maya, 2017 IL App (3d) 150079, ¶ 70.

Thus, reviewing courts have instructed that “[w]hen weighing the prejudicial effect of admission, a court should consider whether the other-crimes evidence will become the focus of the trial, or whether it might otherwise be misleading or confusing to the jury.” People v. Perez, 2012 IL App (2d) 100865, ¶ 47.  Further, “[c]ourts have warned against the dangers of putting on a ‘trial within a trial,’ with detail and repetition greatly exceeding what is necessary to establish the particular purpose for the evidence.” People v. Boyd, 366 Ill. App. 3d 84, 94 (2006) (quoting People v. Bartall, 98 Ill. 2d 294, 315 (1983)).

This Case

In the present case, the home invasion was unquestionably probative of defendant’s motive and intent to shoot and kill the victim. The evidence of defendant’s commission of the home invasion had significant probative value. It demonstrated a clear motive for defendant to attempt to murder the victim, out of fear that his accomplice would implicate him in the home invasion. 

We also note the evidence presented by the State regarding the home invasion was highly detailed, featuring the testimony of the victim and a codefendant, testimony from authorities who investigated that offense, and video evidence.

In short, the evidence was akin to what one would expect to see in an actual home invasion trial. The risk of undue prejudice normally accompanying the admission of large amounts of other-crimes evidence is significantly diminished where the trier of fact is not a jury but a judge. The prejudicial effect of other-crimes evidence is almost exclusively discussed in terms of impact on a jury.

This Was A Bench Trial

In this context then, it is presumed the trial judge considered the evidence of other crimes only for its proper, limited purpose. The law thus presumes that a judge, unlike a jury, is not likely to find a defendant guilty simply because he or she is a bad person deserving punishment.

Similarly, the admission of large or detailed amounts of other-crimes evidence that is properly admissible is not likely to mislead or confuse a trial judge. The law presumes that that evidence is not likely to lure the judge into declaring guilt on a ground different from proof specific to the offense charged.

Judge Knew The Law

The logic surrounding a rebuttable presumption that the trial judge knows and correctly applies the law is demonstrated by this case. When ruling on the State’s motion to introduce evidence of other crimes, the trial judge correctly noted the law holding that the consideration of other crimes evidence for improper purposes by a jury is a great concern.

It is relevant that the trial judge in defendant’s attempted murder bench trial also presided over his home invasion jury trial. This judge, of course, had already heard all of the State’s evidence relating to the home invasion. We would be remiss if we did not point out that, optimally, the State would have tried defendant for attempted murder before a different judge.

Practically speaking, this would not have been a burdensome course, as there was surely not shortage of available judges in La Salle County. Nevertheless, defendant chose to proceed with a bench trial, even knowing the bench trial would be before the same judge. There was no motion for substitution, and defendant does not raise any contentions of error on appeal relating to these circumstances. Defendant apparently accepted the judge’s ability to consider the home invasion evidence only for its proper purpose heading into the attempted murder trial.

Analysis

His argument on appeal, essentially, is that the judge’s hearing that evidence for a second time created an unacceptable risk of undue prejudice. This position strains credulity. If anything, the trial judge’s prior knowledge of the home invasion evidence would serve to soften the impact of that evidence the second time around. It is highly unlikely the result would have been different absent the introduction of other-crimes evidence.

The flip side of that coin, however, is there was absolutely no need for the State to introduce such detailed evidence regarding the home invasion. Defendant’s motive for shooting the victim could have simply been established by a brief summary of the earlier events from the victim himself. Indeed, defendant would have been found guilty even if the State had produced no evidence of motive.

While we do not find reversible error on the facts of this case, this should not be read as a general endorsement of the introduction of the massive amount of other-crimes evidence.

While the evidence of defendant’s home invasion was of clear probative value at his attempted murder trial, that probative value continued to diminish as further detailed evidence of the home invasion was introduced.

Holding

However, the risk of unfair or undue prejudice attendant to that evidence was low where the finder of fact was a judge rather than a jury and a judge who was already aware of the home invasion evidence. Accordingly, the probative value of the evidence was not substantially outweighed by the risk of unfair prejudice, and the circuit court did not err in admitting that evidence.

The judgment of the circuit court of La Salle County is affirmed with respect to defendant’s convictions and sentences.

See Also

Episode 587 - People v. Kelley, 2019 IL App (4th) 160598 (January) (Propensity To Commit Sex Crimes Liberally Admitted Into Evidence) 

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.

Hearsay Course Of Conduct Evidence Was Not An Error

Feb 12, 2019 15:22

Description:

People v. Davison, 2019 IL App (1st) 161094 (February). Episode 589 (Duration 15:22)

Another example of evidence that was admitted to demonstrate the course of the police investigation.

Issue

Defendant contends the detective should not have been allowed to testify to the names the witness provided because it went beyond what was necessary to explain the detective’s subsequent conduct.

Defendant further contends the admission of names violated his right under the sixth amendment because he did not have an opportunity to cross-examine the witness.

Facts

This was an execution of sorts.

Guy gets a flat. We’ll call him the witness. The victim walks up and offers to help fix the flat. Witness agrees. Eventually, defendant and some other men walk up to scene. They have a beef with the victim. They eventually shoot and kill him. At one point the men are standing around the victim in a semi circle unloading their gun into him.

The main shooter looks at the witness before the men flee.

Course of Conduct Evidence

After leaving the scene, investigations went to the police station, where he spoke with the witness again and obtained a description of the shooters. After speaking with the witness and his partners, the investigator had three names:

“Dee, Little Fred, and Terell Davis.”

Defendant Arrested

The witness remembered that the victim called the shooter Terell.

6 months later defendant was arrested. The victim identified the defendant from the line-up and some photo arrays. The victim did not identify anyone else.

Was It Hearsay?

The detective testified that as a result of a conversation he had with Magana and a conversation his partner had with non-testifying witness Howard Taylor, he began looking for three individuals: Dee, Little Fred, and Terell Davis.

Hearsay & Course of Conduct Evidence

“Hearsay evidence is an out-of-court statement offered to prove the truth of the matter asserted, and it is generally inadmissible due to its lack of reliability unless it falls within an exception to the hearsay rule.” People v. Olinger, 176 Ill. 2d 326, 357 (1997). While hearsay is prohibited, Illinois courts have repeatedly recognized that a police officer may testify to the steps he took during the course of a criminal investigation, and such testimony is not considered hearsay. People v. Johnson, 116 Ill. 2d 13, 24 (1987); People v. Gacho, 122 Ill. 2d 221, 248 (1988).

It is not considered hearsay because the testimony is within the personal knowledge of the officer and not used to prove the truth of the matter asserted. People v. Sample, 326 Ill. App. 3d 914, 920 (2001). However, an officer’s testimony becomes inadmissible hearsay if the testimony recounts “the substance of a conversation.” Gacho, 122 Ill. 2d at 248.

The Relevant Testimony

The relevant portion of Detective’s testimony states:

“[STATE’S ATTORNEY]: Did you learn that there was someone else on the scene by the name of Howard Taylor.

[WITNESS]: I did.[STATE’S ATTORNEY]:

Did you speak with that individual?

[WITNESS]: No, I did not.

[STATE’S ATTORNEY]: Who did?

[WITNESS]: Detectives Otto and Hall.

[STATE’S ATTORNEY]: Did you ultimately after being at the scene relocate back to Area South?

[WITNESS]: Yes.

[STATE’S ATTORNEY]: When you went back to Area South, did you have contact with your partners?

[WITNESS]: Yes.

[STATE’S ATTORNEY]: Did you also have contact once again with Magana?

[WITNESS]: Yes.

[STATE’S ATTORNEY]: At this point who are you looking for?

[DEFENSE ATTORNEY]: Objection. THE COURT: Overruled.

[WITNESS]: I had three names, a nickname of Dee, Little Fred, and Terell Davis.

[STATE’S ATTORNEY]: And did you then make efforts to identify someone by the nickname of Dee, Terell Davis, or Little Fred

[WITNESS]: I did.

[STATE’S ATTORNEY]: Did you—what efforts did you make?

[WITNESS]: I utilized the computer that was available to me. I attempted to locate through demographics and people fitting that description that had connections back to that area.

[STATE’S ATTORNEY]: Were you able to locate anyone?

[WITNESS]: I was.

[STATE’S ATTORNEY]: And when you located that person, were you able to get that photo of them?

[WITNESS]: I did.

[STATE’S ATTORNEY]: Do you see that person in court today?

[DEFENSE ATTORNEY]: Objection.

THE COURT: Basis?

[DEFENSE ATTORNEY]: That it’s hearsay.

THE COURT: Okay, overruled. The person he got the photograph of?

[DEFENSE ATTORNEY]: How he got the photograph.

THE COURT: That’s not what the question was.

[STATE’S ATTORNEY]: Do you see the person you got the photograph of during your procedure in court today?

[WITNESS]: I do.

[STATE’S ATTORNEY]: Can you point to him and describe an item of clothing that he’s wearing?

[WITNESS]: He’s the male black to my left wearing the white shirt.

[STATE’S ATTORNEY]: Your Honor, may the record reflect an in-court identification of the defendant. THE COURT: It may.”

Analysis

The relevant portion of the testimony above demonstrates that at no point did the detective testify to the substance of statements made by either Taylor or any other officer who may have talked with Taylor. While the implication of his testimony is that Taylor provided the names of defendant and two others as individuals connected to the murder, this implication does not render the testimony hearsay or inadmissible. Johnson, 116 Ill. 2d at 24.

Detective’s testimony was correctly limited to the conduct of his own investigation and did not contain the substance of any non-testifying witnesses’ statements.

In Johnson, the supreme court found the detective’s testimony crossed the line into hearsay because “the detective went on to explain that codefendant, after his arrest, implicated the defendant in the scheme and said that the defendant was the gunman.” Similarly, in People v. Singletary, 273 Ill. App. 3d 1076, 1084 (1995), this court found an officer’s testimony crossed into hearsay when he testified “regarding his conversation with the confidential informant that ‘he was going to go to 2971 South Dearborn and pick up a package of cocaine’ ” from the defendant.

Unlike the officers’ testimony in Johnson and Singletary, this detective did not testify as to any statements made by Taylor to his partner or from his partner to himself. While defendant is adamant that the testimony at issue is hearsay, the fault in his argument is exposed by the fact that he never identifies any substantive statements made by Taylor or another nontestifying individual contained within the detective’s testimony.

Detective’s testimony was correctly limited to the investigatory steps he took leading up to the identification of defendant and demonstrated defendant’s arrest was not purely coincidental.

Holding

After reviewing the testimony of the detective, we conclude the trial court did not err in admitting the testimony at issue, because he never disclosed the substance of what Taylor told his partner or what his partner told him.

Detective’s testimony regarding the three individuals he began looking for did not constitute hearsay, and the trial court did not err in admitting it. Given that the testimony at issue did not constitute hearsay, it follows that defendant’s right under the confrontation clause of the sixth amendment was not violated.

For the foregoing reasons, we affirm the defendant’s conviction for first degree murder.

See Also

Episode 057 – People v. Boling, 2014 IL App (4th) 120634 (March)(prosecutorial favorite “other purpose” is to explain steps in a police investigation.)

Episode 315 – People v. Ochoa, 2017 IL App (1st) 140204 (February) (murder conviction reversed twice because of the exact same “steps in the police investigation” error)

Episode 448 – People v. Horine, 2017 IL App (4th) 170128 (December)(hearsay evidence during this SSS hearing not admitted to demonstrate the police course of conduct in the investigation)

Episode 339 – People v. French, 2017 IL App (1st) 141815 (March) (Hearsay Involves Implied Information And Watch Out For “Course of Conduct” Exceptions)

Episode 588 – People v. Day, 2019 IL App (4th) 160217 (January) (police allowed to explain why they brought defendant to the scene)

People v. Gacho, 522 N.E.2d 1146, 122 Ill.2d 221, 119 Ill.Dec. 287 (Ill., 1988) (testimony is not hearsay when based on the officers’ own personal knowledge, and is admissible although the inference logically to be drawn therefrom is that the information received motivated the officers’ subsequent conduct)

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/

Other Crimes Sexual Propensity Evidence Establishes A Propensity To Commit Sex Crimes

Feb 6, 2019 09:58

Description:

People v. Kelley, 2019 IL App (4th) 160598 (January). Episode 587 (Duration9:58)

Here's a better way to look at how court's are interpreting sexual propensity evidence.

Gist

A 23 year old female victim was found murdered. Her body was in a river and her bones were cut like she was attempted to be dismembered. Defendant admitted to killing her and the state admitted 3 other victims who he was violent with.

Defendant was convicted and got 60 years.

Other Crimes Evidence Domestic Violence

Subsections (a) and (b) of section 115-7 of the Code (725 ILCS 5/115-7.4(a), (b)) provide as follows:

“(a) In a criminal prosecution in which the defendant is accused of an offense of domestic violence as defined in paragraphs (1) and (3) of section 103 of the Illinois Domestic Violence Act of 1986, or first degree murder or second degree murder when the commission of the offense involves domestic violence, evidence of the defendant’s commission of another offense or offenses of domestic violence is admissible, and may be considered for its bearing on any matter to which it is relevant.

(b) In weighing the probative value of the evidence against undue prejudice to the defendant, the court may consider:

(1) the proximity in time to the charged or predicate offense;
(2) the degree of factual similarity to the charged or predicate offense; or
(3) other relevant facts and circumstances.”

Other Crimes Evidence Sex Crimes

Subsection (c) of section 115-7.3 (725 ILCS 5/115-7.3(c)) was identical in its wording to subsection (b) of section 115-7.4 (725 ILCS 5/115-7.4(b)), the propensity statute in the present case.

Section 115-7.3(c) provided:

“(c) In weighing the probative value of the evidence against undue prejudice to the defendant, the court may consider:

(1) the proximity in time to the charged or predicate offense;
(2) the degree of factual similarity to the charged or predicate offense; or
(3) other relevant facts and circumstances.”

725 ILCS 5/115-7.3(c).

Thus, in an analysis under section 115-7.3(c), as in an analysis under the identically worded section 115-7.4(b) (725 ILCS 5/115-7.4(b)), the account of the propensity witness had to be compared to the account of the present alleged victim.

Undue Prejudice

“Undue prejudice” within the meaning of section 115-7.4(b) necessarily is prejudice other than that resulting from proof of the defendant’s propensity to commit domestic violence, because the very purpose of section 115-7.4 is to lift the common-law ban on that particular kind of propensity evidence. See People v. Dabbs, 239 Ill. 2d 277, 288 (2010); People v. Walston, 386 Ill. App. 3d 598, 619-20 (2008) (not only is other-crimes evidence offered to show propensity no longer per se unfairly prejudicial, it is actually proper).

Other-crimes evidence admitted pursuant to section 115-7.4 may be considered by the jury for any relevant matter, including the defendant’s propensity to commit the charged crime even though, at common law, such propensity evidence would have been inadmissible. Heller, 2017 IL App (4th) 140658, ¶ 65),  (Dabbs, 239 Ill. 2d at 288).

Issue

In defendant’s view, the degree of factual dissimilarities between the other crimes victim testimony and the charged offense rendered the evidence more prejudicial than probative.

According to defendant, two provisions of section 115-7.4 stood in the way of admitting her testimony: (1) the events to which she testified had little “factual similarity to the charged *** offense” (725 ILCS 5/115­ 7.4(b)(2)) since the nature of defendant’s relationship with this victim was “entirely different” from the nature of his relationship with the other crimes victim, and (2) there was no evidence that defendant committed an “offense *** of domestic violence” against White (id. § 115-7.4(a)).

Regardless of whether defendant was more romantically involved with one women more than the other, both women took money from him after spending time with him, and he responded with extreme violence. Thus, we are unable to say it was arbitrary, fanciful, or unreasonable to draw a parallel between defendant’s violence against this victim and his violence against the other crimes victim.

Legislative Intent

The legislature intended to make it permissible, in cases of alleged sexual offenses, for the State to adduce evidence that the defendant had a propensity to commit sexual offenses—but the admissibility of such propensity evidence depends on the fulfillment of the conditions set forth in section 115-7.3. Donoho, 204 Ill. 2d at 176.

One of those conditions is that the trial court “[weigh] the probative value of the evidence against undue prejudice to the defendant.” 725 ILCS 5/115-7.3(c). The qualifier “undue” is crucial because prosecuting the defendant necessarily entails adducing evidence prejudicial to the defendant.

All propensity evidence aims to be prejudicial to the defendant.

The prejudice, however, is undue if the propensity evidence is calculated to persuade the jury to return a guilty verdict only because the defendant supposedly is a bad person who, in any event, deserves to be punished. People v. Smith, 406 Ill. App. 3d 747, 751 (2010).

Propensity Evidence

If that were the use to which the so-called “propensity evidence” were put, it really would not even be propensity evidence; the strategy would be to obtain a guilty verdict not on the reasoning that the defendant’s badness predisposed him to commit the charged offense but, rather, on the quite different reasoning that because the defendant is bad, he deserves whatever punishment can be heaped upon him—regardless of whether he committed the charged offense.

To be admissible under section 115-7.3, the evidence has to be, genuinely, propensity evidence—and not only that, but a particular kind of propensity evidence. Section 115-7.3 only partly lifts the ban on propensity evidence. If all the propensity evidence does is prove the defendant’s propensity to do bad things in general, it remains inadmissible (see Ill. R. Evid. 404(b) (eff. Jan. 1, 2011)); the propensity evidence must more narrowly tend to prove the defendant’s propensity to commit sexual offenses (see 725 ILCS 5/115-7.3(b) (West 2014)).

There are, of course, different sexual offenses, and just because a defendant has, for example, a history of exposing himself, it would not necessarily follow that he has a propensity to commit sexual assault. Thus, the trial court must consider “the degree of factual similarity to the charged or predicate offense” (id. § 115-7.3(c)(2)) to determine the extent to which the testimony offered as propensity evidence really tends to prove a propensity to commit the charged sexual offense.

Propensity To Commit Sex Crimes

The foregoing exposition of section 115-7.3—which is applicable, by analogy, to section 115-7.4—leads us to our point of disagreement with People v. Johnson, 406 Ill. App. 3d 805 (2010) (existence of significant dissimilarities between the two assaults lead reviewing court to say the trial court erred in admitting the other-crimes evidence).   

We do not see how the factual dissimilarities that the Second District identified in Johnson have any logical relevance to the question of whether the defendant in that case did or did not have a propensity to commit­ sexual assault.

If on one occasion he committed sexual assault with the assistance of someone else and on the next occasion he committed sexual assault unassisted, the previous occasion still would be evidence that he had a propensity to commit sexual assault. The same would be true if on the previous occasion the defendant used a car and on the next occasion he did not do so or if on the previous occasion he blew cocaine into the victim’s face and on the next occasion he did not do so.

Such factual differences are incidental and meaningless unless the identity of the perpetrator is at issue and the State pursues a theory of modus operandi, the proof of which always requires “a high degree of identity between the facts of the crime charged and [those of] the other offense.” People v. Cruz, 162 Ill. 2d 314, 349 (1994). But “[w]here such evidence is not being offered under the modus operandi exception, more general areas of similarity will suffice to support admissibility.” Donoho, 204 Ill. 2d at 184.

Similarity Of The Crimes

Arguably, defendant had a propensity to become violent toward female sexual partners who took his property. Therefore, we find no abuse of discretion in the trial court’s evaluation of factual similarities between the victim’s testimony and the charged offense.

In short, the objective under section 115-7.4(b)(2) is not to identify factual differences just for the sake of identifying factual differences. The differences have to logically matter; they have to be relevant, in a commonsensical way, to the probative value of the previous offense as propensity evidence.

In the present case, we are unable to say the trial court abused its discretion—or, in other words, that the court made a decision that was unreasonable or clearly against logic—by deciding that defendant’s acts of violence against the other crimes victim tended to prove his propensity to commit the charged offense against this victim.

Both women were his girlfriends, he brutalized them both, and it especially raised his ire when they attempted to flee from him. He appeared to be on the verge of killing the other crimes victim when he dangled her by one leg over the side of a bridge. Arguably—and we say “arguably” because our standard of review is the most deferential standard of review known to the law—the factual differences do not greatly reduce the probative value of the other crime victim's testimony.

It was all extreme domestic violence.

Factual Finding

Therefore, we find no abuse of discretion in the admission of the other crimes testimony as propensity evidence under section 115-7.4 of the Code. It appears from her testimony that defendant was possessive and controlling toward his girlfriends and that he tended to become violent toward them when they did anything that challenged his assumed right of possession and control.

One might infer that he murdered this victim not only because she stole his wallet but also because she ran away from him and tried to free herself from his domination. Defendant’s violent rage at being defied and evaded by his girlfriends arguably is a significant point of similarity between the other crime victim's testimony and the charged offense.

Holding

We affirm the trial court’s judgment.

January 2019 Illinois Criminal Law Summary

Feb 4, 2019 14:22

Description:

This is the January 2019 Illinois criminal case law audio round-up (the fast case law summary). Episode 585 (Duration 14:21)

The January 2019 Top Illinois Criminal Law Cases (The Monthly Round-Up)

Here's a quick snapshot of the top cases:

1. People v. Shoevlin

Serious double jeopardy concerns are raised when the judge declares a mistrial in this domestic battery case.

2. People v. Releani

Defendant needed to say something about the private nature of the Walgreen's Parking Lot

3. People v. Day

He wasn't behind the wheel but state still proved he was driving.

4. People v. Hill

Officer sees passenger riding low in the seat and he thinks it may be a guy wanted on warrant, turns out it wasn't him.

5. People v. Witherspoon

Defendant said he had authority to be in the nome because the victim invited him in notwithstanding the bail condition which prohibited him from being there.

6. In re Appointment of Special Prosecutor

Press not allowed to get grand jury documents through FOIA.

7. People v. Johnson

Defendant has to move to withdraw his plea if he wants to challenge a sentence that was within the agreed cap but where the judge relied on improper factors.

8. People v. Cisco

Defendant was given an extended term even though he received second chance for one of his prior felonies.

9. People v. Campos

In a sex case you have to be careful with exactly what the allegations are and how it comes out at trial.

10. People v. Felton

Other crimes evidence was excessive here but it was a bench trial and the evidence was overwhelming against defendant.

11. People v. Kelley

Here's a better way to look at how court's are interpreting sexual propensity evidence.

12. People v. Monroy-Jaimes

Interesting use of an informant, how much of it was legal?

13. People v. Moore

Dude got hit in the head with a metal bearing and defendant said the 3 1/2 inch cut was not great bodily harm.

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)

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Aug 23, 2018 04:49