Office of the State Appellate Defender Illinois Criminal ... · PDF fileAPPEAL §2-6(a) People v. Brown, 2017 IL App (1st) 150203 (No. 1-15-0203, 9/19/17) The Appellate Court may address

Office of the State Appellate Defender

Illinois Criminal Law Digest

September 2017

MICHAEL J. PELLETIER P.O. Box 5240

State Appellate Defender Springfield, IL 62705-5240

Phone: 217/782-7203

DAVID P. BERGSCHNEIDER http://www.state.il.us/defender/

JAMES CHADD

Deputy State Appellate Defenders, Editors

©Copyright 2017 by the Office of the State Appellate Defender. All rights reserved.

TABLE OF CONTENTS

APPEAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

BATTERY, ASSAULT & STALKING OFFENSES. . . . . . . . . . . . . . . . . . . . . . . . 1

COLLATERAL REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

CONTEMPT OF COURT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

DISORDERLY, ESCAPE, RESISTING AND OBSTRUCTING OFFENSES. . 6

DOUBLE JEOPARDY - COLLATERAL ESTOPPEL. . . . . . . . . . . . . . . . . . . . . . 6

EVIDENCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

GUILTY PLEAS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

INDICTMENTS, INFORMATIONS, COMPLAINTS. . . . . . . . . . . . . . . . . . . . . 15

JURY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

JUVENILE PROCEEDINGS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

REASONABLE DOUBT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

ROBBERY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

SEARCH AND SEIZURE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

SENTENCING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

SEX OFFENDERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

SPEEDY TRIAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

STATUTES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

UNLAWFUL USE OF WEAPONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

VERDICTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

WITNESSES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

TABLE OF AUTHORITIES

Illinois Supreme Court

People v. Boykins.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

People v. Gray. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 18, 26

People v. Holman. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 21

People v. Peterson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8, 27

People v. Wright.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 9, 15, 16, 18

Illinois Appellate Court

In re Tyreke H.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

People v. Barnes.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

People v. Bianca.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

People v. Brown. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 23

People v. Connors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

People v. Djurdjulov. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

People v. Gamez. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 28

People v. Gillespie. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

People v. Hoy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 22

People v. Jackson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 27

People v. Kimble. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

People v. McPherson.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 14

People v. Melecio. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

People v. Rosado. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

People v. Smith (3-15-0265).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

People v. Smith (1-15-1643).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

People v. Thompson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

APPEAL

§2-6(a)People v. Brown, 2017 IL App (1st) 150203 (No. 1-15-0203, 9/19/17)

The Appellate Court may address a defendant’s request for pre-sentence custodycredit under 725 ILCS 5/110-14 even though defendant raised this issue for the firsttime on appeal from the denial of a post-conviction petition. Such issues only involvea simple ministerial act that promotes judicial economy.

The Appellate Court however does not have subject matter jurisdiction to addresssubstantive issues regarding whether particular assessments were properly imposedwhere these issues were raised for the first time on appeal from the denial of a post-conviction petition. These assessments are not void and are not independently reviewableunder Supreme Court Rule 615(b).

The court granted defendant’s request for pre-sentence custody credit but affirmedhis sentence in all other respects.

(Defendant was represented by Assistant Defender Ann McLennan, Chicago.)

Go To Top

BATTERY, ASSAULT & STALKING OFFENSES

§§7-1(a)(3), 7-1(a)(6)People v. Gray, 2017 IL 120958 (No. 120958, 9/21/17)

1. An as-applied challenge to the constitutionality of a statute is directed againsthow the statute applies to the facts and circumstances of a defendant’s case. A successfulas-applied challenge enjoins enforcement of the statute only against the defendant ina specific case.

Pursuant to the State’s police power, the legislature has broad discretion to defineoffenses and prescribe penalties. This discretion is limited by due process. When a statutedoes not affect a fundamental right, it is subject to the rational basis test. Under thistest, a statute will be upheld if it bears a rational relationship to a legitimate legislativepurpose.

Defendant was convicted of aggravated domestic battery, which is defined ascommitting a battery against “any family or household member.” 720 ILCS 5/12-3.3(a)(a-5). Family or household member includes any person who has had a datingrelationship, with no time limits on former relationships. 720 ILCS 5/12-0.1. Defendantargued that the statute violated due process as applied to him because he had not datedthe victim for 15 years.

1

The Supreme Court rejected defendant’s argument. The court found that thelegislature’s purpose in enacting the statute was to curb the “serious problem of domesticviolence.” The legislature could rationally believe that people are more likely to battera former partner no matter how long ago that relationship ended. Thus, the court heldthat the absence of a time limit on former dating relationships was reasonable andrationally related to the goal of curbing domestic violence.

2. Self-defense is an affirmative defense, but once it is raised, the State has theburden of proving that defendant did not act in self-defense. Self-defense includes thefollowing elements: (1) threat of unlawful force against defendant; (2) defendant wasnot the aggressor; (3) imminent danger of harm; (4) use of force was necessary; (5)defendant actually and subjectively believed use of force was necessary; (6) defendant’sbeliefs were reasonable. If the State negates any of these elements, the defendant’s self-defense claim fails.

Defendant argued that he acted in self-defense because he stabbed the victimonly after she bit him. The Supreme Court disagreed. Defendant was much larger thanthe victim and the victim was unarmed. And he admitted that the bite never broke hisskin. Under these circumstances, the jury could have reasonably believed that defendant’suse of force was unnecessary.

Defendant’s conviction was affirmed.

(Defendant was represented by Assistant Defender Chris Bendik, Chicago.)

Go To Top

COLLATERAL REMEDIES

§9-2(a)People v. Smith, 2017 IL App (3d) 150265 (No. 3-15-0265, 9/14/17)

Defendant filed a pro se §2-1401 petition challenging his convictions for aggravatedbattery with a firearm and being an armed habitual criminal. In response, the Statefiled a special limited appearance and objected to the trial court’s jurisdiction on theground that defendant had not served his pro se petition by certified mail. On the sameday, the State filed a combined motion to dismiss the petition, arguing that: (1) the trialcourt lacked jurisdiction because the State was not properly served, (2) the petition failedto state a cause of action, (3) the issue was barred by res judicata, and (4) the petitionwas untimely.

The trial court held a hearing at which only the prosecutor was present. The trialcourt dismissed the petition for lack of jurisdiction due to defendant’s failure to properlyserve the State. In addition, the court made a ruling on the merits and found that theissue was res judicata because it had been decided during post-conviction proceedings.

2

Defendant filed a pro se response to the State’s motion to dismiss, stating thathe was incarcerated and lacked money to send the petition by certified mail. The trialcourt held a hearing and accepted the response but noted that the petition had alreadybeen dismissed.

Defendant then filed a motion to reconsider the dismissal, arguing that he lackedsufficient funds to send the petition by certified mail and requesting that the trial courtexcuse his failure to comply with the service requirements. Defendant also argued thatthe trial court erred by going beyond the issue of improper service and finding that theclaim was barred by res judicata.

The court held a hearing on the motion to reconsider. The State was the only partypresent. The motion to reconsider was denied.

1. The Appellate Court held that defendant could not use his own failure toproperly serve the State as a ground to challenge the trial court’s dismissal order.However, the court also found that the trial judge erred by going beyond the issue ofjurisdiction and reaching the merits of the petition.

Once the trial court determines it has no personal jurisdiction, it lacks power todismiss the petition on the merits. In considering a combined motion objecting thepersonal jurisdiction and also moving to dismiss on other grounds, the trial must addressthe jurisdictional issue first. If it finds that there is no personal jurisdiction, it mustgo no further.

2. The court acknowledged the difficulty facing an incarcerated individual whois attempting to file a pleading by certified mail, but stressed that the Supreme Courthas not elected to provide an impoverishment exception to the requirements of Rule 105,which governs the service of §2-1401 petitions.

The trial court’s order dismissing the §2-1401 petition was modified to vacatethe finding concerning the merits. The court noted that the defendant may refile hispetition, comply with the service requirements, and obtain a hearing on the merits.

(Defendant was represented by Assistant Defender Ryan Wilson, Springfield.)

Go To Top

CONTEMPT OF COURT

§12-1People v. McPherson, 2017 IL App (2d) 150538 (No. 2-15-0538, 9/1/17)

While defendant was facing prosecution for a drug offense, the State filed a petitionfor adjudication for direct criminal contempt because after being granted use immunity,

3

defendant refused to testify at his brother’s murder trial. The state asked the trial courtto consider imposing a sentence of more than six months incarceration.

Defendant subsequently entered guilty pleas to both the drug and contemptcharges. Consecutive terms of three-and-one-half years for the drug conviction and sixyears for contempt were imposed. Defendant moved to reconsider the contempt sentence,but the trial court denied the motion after reiterating the reasons for imposing a six-year-sentence.

1. Because defense counsel failed to file a Rule 604(d) certificate, the trial courtremanded the cause for defendant to file a new motion and for the trial court to holda new hearing. Supreme Court Rule 604(d) provides that where a guilty plea defendantmoves to withdraw the plea or reconsider the sentence, defense counsel must file acertificate stating that he or she has consulted with defendant, examined the trial courtfile and report of proceedings, and made any amendments to the motion necessary foradequate presentation of any defects in those proceedings. Rule 604(d) applies to allcriminal cases in which a guilty plea is entered.

2. The court rejected the State’s argument that direct criminal contemptproceedings are “sui generis” and not subject to Supreme Court Rule 604(d). Althoughprocedural protections applicable to criminal prosecutions do not generally apply to directcriminal contempt convictions, the court noted that in this case the State employed aformal process in which defendant was charged by a petition for adjudication of directcriminal contempt, was arraigned, and entered a guilty plea at a formal proceeding atwhich he was admonished under Rule 402(a) and at which the State presented a factualbasis. In addition, a sentencing hearing was held at which the trial court consideredthe pre-sentence report and various sentencing factors. Under these circumstances, therules normally applicable to criminal prosecutions, including the certificate requirementsof Rule 604(d), should apply.

(Defendant was represented by Assistant Defender Jack Hildebrand, Elgin.)

Go To Top

COUNSEL

§13-2People v. Wright, 2017 IL 119561 (No. 119561, 9/21/17)

Under Illinois Supreme Court Rule 401(a), the trial court shall not permit adefendant to waive counsel without first informing him of, among other things, theminimum and maximum sentence prescribed by law. Strict technical compliance withRule 401(a) is not always required. Instead, substantial compliance is sufficient if therecord indicates that defendant’s waiver was knowing and voluntary.

4

Here, the trial court incorrectly admonished defendant that the maximum sentencehe faced was 60 years’ imprisonment rather than the correct 75-year sentence. TheSupreme Court nonetheless held that under the facts of this case, the trial courtsubstantially complied with Rule 401(a). The trial court properly admonished defendantin all respects except about the maximum sentence. Defendant was 37 years old, hadattended college for two years, and had previously represented himself on appeal in afelony case. He repeatedly expressed his desire to represent himself from the beginningof the case, and the reason he wanted to go pro se - for speedy trial reasons - had nothingto do with the maximum sentence.

The court also found that defendant was not prejudiced by the incorrectadmonishment. Defendant never alleged that he would not have waived counsel if hehad known the correct maximum sentence, and the sentence he received was only 50years imprisonment.


(Defendant was represented by Assistant Defender Pete Sgro, Chicago.)

Go To Top

§§13-5(a), 13-5(d)(1)People v. Peterson, 2017 IL 120331 (No. 120331, 9/21/17)

Defendant was convicted in a jury trial of the first degree murder of his third ex-wife, and was sentenced to 38 years imprisonment. At the time of his third ex-wife’sdeath, defendant was married to his fourth wife. At the time of the trial, defendant’sfourth wife was deceased.

A per se conflict of interest exists where facts about a defendant’s attorney’s statusengender, by themselves, a disabling conflict. Per se conflicts of interest have beenrecognized in three situations, including where (1) defense counsel has a priorcontemporaneous association with the victim, the prosecution, or an entity assistingthe prosecution; (2) defense counsel contemporaneously represents a prosecution witness;or (3) defense counsel is a former prosecutor who was personally involved in prosecutingthe defendant. Unless the defendant waives the right to conflict-free representation,the existence of a per se conflict is grounds for automatic reversal without any showingthat counsel’s performance was affected.

Under People v. Gacy, 125 Ill. 2d 117, 530 N.E.2d 1340 (1988), a per se conflictmay arise if defense counsel enters into a book deal about the case during the courseof the representation. The court found that there was no per se conflict of interest here,however, where defense counsel and defendant entered into a contract with a mediacompany which was to provide publicity and appearances for defendant and defensecounsel. A total of $15,900 was paid into defense counsel’s trust fund as a result of the

5

contract. The money was used to pay counsel’s fees and the costs of the defense. Thecontract ended some five months before trial.

The court distinguished Gacy on the ground that counsel’s participation in thecontract did not afford him a financial stake in the case that was directly adverse todefendant’s interests. The court also noted that the record was unclear as to the preciseterms of the contract, and that the proper forum to determine whether defense counselviolated any ethical rules was the Attorney Registration and Disciplinary Commission.

DISORDERLY, ESCAPE, RESISTING AND OBSTRUCTING OFFENSES

§16-1(d)People v. Barnes, 2017 IL App (1st) 142886 (No. 1-14-2886, 9/29/17)

Mob action is defined as the use of force or violence by two or more people actingtogether. 720 ILCS 5/25-1(a)(1). Here defendant and an unidentified man shot at eachother on the street. An innocent bystander was caught in the crossfire and killed. A juryacquitted defendant of felony murder but convicted him of armed violence predicatedon mob action.

The Appellate Court held that the meaning and usage of the phrase “actingtogether” indicate that it only applies to joint or concerted action that is pursuant toan agreement or common criminal purpose. Given this definition, no reasonable jurycould find that defendant and the unidentified man were acting together. When twopeople shoot at each other, they are acting at cross purposes, not with the commonpurpose or intent required for concerted action.

The court reversed defendant’s conviction for armed violence based on mob action.

(Defendant was represented by Assistant Defender Ben Wimmer, Chicago.)

Go To Top

DOUBLE JEOPARDY - COLLATERAL ESTOPPEL

§17-3People v. Kimble, 2017 IL App (2d) 160087 (No. 2-16-0087, 9/25/17)

When a mistrial is declared without a defendant’s consent, double jeopardyprevents a retrial unless there was a manifest necessity for declaring a mistrial. A trialjudge may properly discharge a genuinely deadlocked jury and require a defendant to

6

submit to a second trial, and that decision is accorded great deference by the reviewingcourt.

Here the jury trial consumed three days. After less than three hours ofdeliberation, the jury informed the court that it was at an “impasse.” Without notifyingeither party, the court directed the bailiff to instruct the jury to continue deliberating.After another two hours of deliberation, the jury foreman reported in open court, withboth parties present, that the jury was still at an impasse. The State and defendant bothrequested that the court give the jury a Prim instruction, which provides the jury withguidance on how to proceed when it is at an impasse. The court denied the request,stating that it would be “futile” to do so, and instead declared a mistrial. The court alsodenied defendant’s motion to dismiss the charges on the ground that reprosecution wouldbe barred by double jeopardy.

The Appellate Court held that defendant could not be retired since there was nomanifest necessity for declaring a mistrial. Instead, the trial court’s improper ex partecommunication with the jury “led to the precipitous declaration of a mistrial withoutconsidering available alternatives.” Communications between the judge and jury, exceptwhen held in open court and in defendant’s presence, deprive a defendant of hisfundamental rights. Here, defendant suffered a deprivation of his fundamental rightswhen the trial court ex parte told the jury to keep deliberating.

This improper action then “tipped the scales” in the trial court’s decision to declarea mistrial. The trial court believed it would be futile to give the jury a Prim instructionsince the jury twice said it was at an impasse. But without the earlier ex partecommunication, the trial court could not have reasonably believed that giving a Priminstruction would be futile. Accordingly, it was the judge’s error, not manifest necessity,that prompted the mistrial.

Even without the judge’s error, there was no manifest necessity to declare amistrial. The jury was only truly deadlocked for three hours. The trial lasted three daysand involved issues of credibility that were “anything but straightforward.” Neither partymoved for a mistrial and there was no indication that the jury was exhausted after lessthan a day of deliberations. Under these circumstances there was no manifest necessityfor a mistrial.

The Appellate Court granted defendant’s motion to bar retrial.

(Defendant was represented by Assistant Deputy Josette Skelnik, Elgin.)

Go To Top

7

EVIDENCE

§19-10(b) People v. Peterson, 2017 IL 120331 (No. 120331, 9/21/17)

Defendant was convicted in a jury trial of the first degree murder of his third ex-wife, and was sentenced to 38 years imprisonment. At the time of his third ex-wife’sdeath, defendant was married to his fourth wife. At the time of the trial, defendant’sfourth wife was deceased.

After finding that the forfeiture by wrongdoing doctrine was satisfied, the trialcourt permitted the State to admit several hearsay statements that had been made bydefendant’s third and fourth wives. The forfeiture by wrongdoing doctrine permits theadmission of hearsay statements where the declarant is unavailable for trial due toactions performed by the defendant with the intent of making the witness unavailableto testify.

1. At the time of trial, Illinois had two versions of the forfeiture by wrongdoingdoctrine. First, the common-law doctrine has been recognized by Illinois case law andcodified in Illinois Rule of Evidence 804(b)(5). The common law doctrine and Rule804(b)(5) permit the introduction of an absent witness’s statement where the defendantengaged in conduct designed to prevent the witness from testifying.

In addition, the legislature had enacted 725 ILCS 5/115-10.6, which allowed theadmission of hearsay where the defendant killed the declarant with intent to procurehis or her unavailability to testify, provided that there are sufficient safeguards ofreliability and the interests of justice would be served by admitting the evidence. Thetrial court admitted the statements of defendant’s former wives under §115-10.6.

2. The separation of powers doctrine of the Illinois Constitution provides that thelegislative, executive and judicial branches are separate and that no branch shall exercisepowers properly belonging to another. Thus, each branch of government has its ownunique sphere of authority. The judicial article of the Illinois Constitution vests theSupreme Court with general administrative and supervisory authority over all courts,empowering it to promulgate procedural rules to facilitate the judiciary in the dischargeof its constitutional duties, including authority to regulate the trial of cases and governthe admission of evidence.

The separation of powers doctrine does not require a complete divorce betweenthe branches of government, however. Thus, although the Supreme Court is empoweredto promulgate rules governing admission of evidence at trial, the General Assembly maylegislate in this area without offending the separation of powers doctrine so long aslegislative enactments do not create an irreconcilable conflict with a court rule. Wherean irreconcilable conflict exists, the court rule prevails.

8

3. The court concluded that §115-10.6 and Rule of Evidence 804(b)(5) contain anirreconcilable conflict, and that the statute must therefore give way to Rule 804(b)(5).Rule 804(b)(5) identifies only two criteria to be satisfied for the admission of relevanthearsay statements: (1) that the party against whom the statement is offered has engagedor acquiesced in wrongdoing, and (2) that such wrongdoing was intended to, and did,procure the unavailability of the declarant as a witness.

By contrast, §115-10.6 applies only to cases involving the declarant’s murder andrequires the satisfaction of additional criteria concerning the reliability of the statementsand the interests of justice. The court found that an irreconcilable conflict with Rule804(b)(5) existed because the common law doctrine and Illinois case law hold that thedefendant forfeits his ability to challenge the reliability of the declarant’s statementsby the very act which prevents the declarant from testifying and because requiringadditional indicia of reliability “would undermine the equitable considerations at thevery center of the forfeiture by wrongdoing doctrine.”

4. However, the court concluded that the hearsay statements were admissibleunder the common law forfeiture by wrongdoing doctrine. The State’s burden of proofat a forfeiture by wrongdoing hearing is by a preponderance of the evidence. Thedefendant did not challenge the trial court’s finding that the State establishedwrongdoing where it showed by a preponderance of the evidence that defendant murderedboth his third and fourth wives. However, defendant challenged the trial court’s findingthat the State established by a preponderance that he murdered the two women in orderto make them unavailable as witnesses.

In rejecting defendant’s argument, the court reiterated that the common lawdoctrine of forfeiture by wrongdoing applies where the defendant intended to preventthe witness from testifying. However, it rejected defendant’s argument that to provesuch intent, the State must identify specific testimony from the absent witness whichthe defendant wished to prevent. In addition, the forfeiture by wrongdoing doctrine doesnot depend on the existence of a legal proceeding at the time defendant acts to preventthe witness from being available to testify or that a desire to make the declarantunavailable to testify is the defendant’s sole motivation in committing the crime.

The Supreme Court concluded that the trial court did not abuse its discretionby finding that defendant murdered his third and fourth wives with the intent of keepingthem from testifying at divorce proceedings or at defendant’s trial for murder.

Go To Top


Declarations against penal interest are an exception to the hearsay rule. An out-of-court statement is admissible if: (1) the declarant is unavailable; (2) the statement tends

9

to subject him to civil or criminal liability; and (3) the statement is corroborated bycircumstances that clearly indicate its trustworthiness. Ill. R. Evid. 804(b)(3). A declarantwho properly asserts his Fifth Amendment right not to testify is unavailable for purposesof this rule.

Defendant, who represented himself during trial, made an offer of proof duringthe State’s case in chief that a detective would testify that codefendant said he committedthe robbery with a BB gun. When defendant attempted to elicit codefendant’s statementduring cross-examination of the detective, the trial court sustained the State’s objection.Later, at a hearing outside the jury’s presence, codefendant invoked his right not totestify. But following this invocation, defendant never attempted to call the detectiveto elicit the statement.

The Supreme Court held that since defendant never made an attempt to elicitthe statement at trial following codefendant’s invocation of his right to silence, the trialcourt did not err in excluding the evidence. Although the court recognized that this failuremay have occurred because defendant was pro se, once he made the decision to representhimself he was held to the same standards as an attorney and could not complain abouthis lack of competency on appeal.



Go To Top

§§19-23(b), 19-27(a)People v. Thompson, 2017 IL App (3d) 160503 (No. 3-16-0503, 9/6/17)

1. When expert testimony is based on an electronic or mechanical device, the expertmust offer a foundation to show that the testimony is both reliable and relevant. Thus,the expert must show the method of recording the information and that the device wasfunctioning properly at the time it was used. To satisfy the latter requirement, the expertmust show that the device was in good working order and was maintained and calibrated,and explain why the expert knows that the results are accurate.

If the expert fails to show that the machine was working properly, does not indicatewhether any testing was done to assess the operating condition of the machine, or failsto explain how the machine was calibrated, a proper foundation is not established. Wherethe required foundation is not established, the expert testimony is inadmissible.

2. Where an element of the offense was that a certain pneumatic rifle had a muzzlevelocity of at least 700 feet per second, an expert failed to lay an adequate foundationfor admission of his testimony that the muzzle velocity of 10 shots tested with achronograph ranged from 714 to 741 feet per second. The expert testified that he had

10

been using a chronograph for 20 years, that the chronograph was the industry standardfor testing the velocity of ballistics, and that he had no formal training in measuringballistic speed. To check the accuracy of his chronograph, the expert tested it againsthis friends’ chronographs and against factory ammunition. He performed such verificationwithin six months of the time he tested the rifle in this case.

The expert also testified that although chronographs can be calibrated, “[y]oudon’t calibrate personal chronographs.” He stated that he did not know when or if hisfriends’ chronographs had been calibrated, he was unfamiliar with the standards forcalibrating chronographs, he did not call the Illinois State Police for guidance becauseit does not offer velocity testing, he did not send the gun to the Illinois Crime Lab fortesting because it could not calibrate a chronograph, and he did not consult any sourceto determine whether his chronograph was properly calibrated.

Under these circumstances, the expert failed to establish that the chronographwas working properly and that the results of his testing were accurate. In addition, thefoundation was insufficient because the expert’s reliance on the chronograph was basedsolely on his personal experience and not on any generally-accepted methodology.

In addition, the circumstances of the testing in this case were insufficient to justifya finding that the results were reliable. The expert testified that he did not place thegun in a fixed position or take into consideration the wind speed and direction or thelevel of humidity during the test. Furthermore, the expert was unfamiliar with thestandards for recording wind resistence during testing with a chronograph.

Because the State failed to present a sufficient foundation for the muzzle speedtesting, the trial court erred by admitting the expert’s testimony. Defendant’s convictionswere reversed and the cause remanded for a new trial.

Go To Top

§§19-24(a), 19-24(b)(4)People v. Rosado, 2017 IL App (1st) 143741 (No. 1-14-3741, modified upon denial ofrehearing, 9/12/17)

1. Other-crimes evidence is inadmissible to show propensity, but it may beadmitted to prove certain other facts such as identity. Even when such evidence ispotentially admissible, the trial court must still exclude the evidence if its prejudicialeffect substantially outweighs its probative value. The State’s proof of the other crimeneed not be beyond a reasonable doubt, but must be more than mere suspicion. The merefact of acquittal does not necessarily mean the defendant did not commit the other crime.

2. The State charged defendant with a series of drug transactions that occurredon March 18, 23, and 29, 2011. The State elected to try the March 29 transaction first.At trial defendant argued that his brother had sold the drugs and the jury acquitted

11

him. The State next tried the March 23 transaction which is the subject of the presentappeal. In that trial, the court allowed the State to admit evidence of the March 29transaction as other-crimes evidence to prove defendant’s identity. The court would notlet defendant inform the jury that defendant had been acquitted.

At trial, an uncover officer testified that he purchased drugs from defendant onMarch 23. The officer also testified that he purchased drugs from defendant on March29. The officer knew defendant’s brother and testified that he did not mistakenly identifydefendant in place of his brother. Defendant argued that the officer mistook defendantfor his brother. The jury convicted defendant of the March 23 offense.

3. The Appellate Court held that the trial court improperly admitted the other-crimes evidence to prove identity. The officer could not explain how his ability to identifydefendant on March 23 was increased based on a transaction with defendant thatoccurred six days later. Since this evidence could not bolster identification, and sinceit had no other relevance, it was improperly admitted.

The trial court also erred in excluding evidence that defendant had been acquitted.In Ward, 2011 IL 108690, the Supreme Court held that it was error to exclude evidenceof defendant’s acquittal in a case where the other-crimes evidence had been admittedas evidence of propensity in a sexual assault case under 725 ILCS 5/115-7.3. Althoughthe evidence here was admitted to show identity, not propensity, nothing in Ward limitedthe holding to cases involving propensity.

4. The court reversed defendant’s conviction and remanded for a new trial beforea different judge. On denial of rehearing, the court explained that a new judge wasrequired because the previous judge made comments and took actions indicating hisbelief in defendant’s guilt for the March 29 transaction. Under these circumstances,reassignment was needed to avoid the appearance of bias.

The court also rejected the State’s argument that it did not have authority toreassign criminal cases on remand. The court specifically held that a reviewing courtin a criminal case has the authority under Supreme Court Rule 615 to reassign a caseto a different judge on remand.

(Defendant was represented by Assistant Defender Robert Markfield, Chicago.)

Go To Top

12

GUILTY PLEAS

§24-6(d)People v. Boykins, 2017 IL 121365 (No. 121365, 9/21/17)

1. Mandatory supervised release terms are statutorily mandated and are notsubject to plea bargaining. The State cannot offer to exclude the MSR term as part ofa plea negotiation, and the trial court has no authority to decline to impose an MSR termwhen imposing sentence.

Supreme Court Rule 402(a)(2) and due process require that a defendant who pleadsguilty must be informed by the trial court of the minimum and maximum sentenceswhich apply to the offense for which a guilty plea is entered. Where the parties entera negotiated plea for a specific sentence, therefore, the trial court must admonishdefendant, before accepting the plea, that an MSR term will be added to the sentence.Where defendant bargains for a specific sentence and the trial court fails to state thatan MSR term will be added to the sentence, fundamental due process is violated becausedefendant receives a more onerous sentence than that which was bargained. Peoplev. Whitfield, 217 Ill. 2d 177, 840 N.E.2d 658 (2005).

2. To ensure that defendants understand the consequences of their pleaagreements, trial judges are encouraged to explicitly link admonishments about MSRand negotiated sentences. In addition, admonishments concerning MSR should be givenwhen the judge reviews the terms of the plea agreement with defendant and the MSRterm should be reiterated both at the sentencing and in the written judgement.

However, there is no precise formula for admonishing a defendant of his MSRobligation. An admonition is sufficient if an ordinary person in the defendant’s situationwould understand the judge’s statements as conveying the required information.

3. Before it accepted defendant’s guilty plea, the trial court informed defendantof the range of possibilities for first degree murder, including that the required prisonterm was between 20 and 60 years, that based on his prior record defendant could beimprisoned for life, and that upon his release from the penitentiary defendant wouldbe required to serve a three-year-term of mandatory supervised release. The courtconcluded that although the MSR term was not explicitly linked to the negotiated 22-year-sentence, an ordinary person in defendant’s circumstances would have understoodthat the penalty included three years of MSR following whatever term of imprisonmentthe trial court imposed. Thus, both due process and Rule 402(a)(2) were satisfied.

(Defendant was represented by Assistant Defender Aliza Kaliski, Chicago.)

Go To Top

13

§§24-8(a), 24-8(b)(2)People v. McPherson, 2017 IL App (2d) 150538 (No. 2-15-0538, 9/1/17)

While defendant was facing prosecution for a drug offense, the State filed a petitionfor adjudication for direct criminal contempt because after being granted use immunity,defendant refused to testify at his brother’s murder trial. The state asked the trial courtto consider imposing a sentence of more than six months incarceration.

Defendant subsequently entered guilty pleas to both the drug and contemptcharges. Consecutive terms of three-and-one-half years for the drug conviction and sixyears for contempt were imposed. Defendant moved to reconsider the contempt sentence,but the trial court denied the motion after reiterating the reasons for imposing a six-year-sentence.

1. Because defense counsel failed to file a Rule 604(d) certificate, the trial courtremanded the cause for defendant to file a new motion and for the trial court to holda new hearing. Supreme Court Rule 604(d) provides that where a guilty plea defendantmoves to withdraw the plea or reconsider the sentence, defense counsel must file acertificate stating that he or she has consulted with defendant, examined the trial courtfile and report of proceedings, and made any amendments to the motion necessary foradequate presentation of any defects in those proceedings. Rule 604(d) applies to allcriminal cases in which a guilty plea is entered.

2. The court rejected the State’s argument that direct criminal contemptproceedings are “sui generis” and not subject to Supreme Court Rule 604(d). Althoughprocedural protections applicable to criminal prosecutions do not generally apply to directcriminal contempt convictions, the court noted that in this case the State employed aformal process in which defendant was charged by a petition for adjudication of directcriminal contempt, was arraigned, and entered a guilty plea at a formal proceeding atwhich he was admonished under Rule 402(a) and at which the State presented a factualbasis. In addition, a sentencing hearing was held at which the trial court consideredthe presentence report and various sentencing factors. Under these circumstances, therules normally applicable to criminal prosecutions, including the certificate requirementsof Rule 604(d), should apply.

(Defendant was represented by Assistant Defender Jack Hildebrand, Elgin.)

Go To Top

§24-8(b)(2)People v. Gillespie, 2017 IL App (1st) 152351 (No. 1-15-2351, 9/29/17)

Under the version of Supreme Court Rule 604(d) in effect at the time defendantmoved to withdraw his guilty plea, counsel was required to certify that he had consultedwith defendant to ascertain his “contentions of error in the sentence or the entry of the

14

guilty plea.” In Tousignant, 2014 IL 115329, the Illinois Supreme Court held that theword “or” should be read as “and,” and the rule thus required attorneys to certify thatthey consulted with their clients about both the guilty plea and the sentence. (The rulehas since been amended to replace “or” with “and.”)

Here, after defendant moved to withdraw his guilty plea, counsel filed a 604(d)certificate stating that he had consulted with defendant about his guilty plea, but saidnothing about his sentence. The Appellate Court held that counsel’s certificate wasinadequate under Tousignant.

The court rejected the State’s argument that Tousignant was distinguishablebecause that case involved an open plea without any promise regarding the potentialsentence, whereas the present case involved a fully negotiated plea. The court notedthat Tousignant was not limited to open pleas. Moreover, consultation about thesentence would have value even if it did not “ultimately affect the content of the motion.”And it was always possible that a fully negotiated plea might include an impropersentence, and thus there would be a basis to challenge a negotiated sentence.

The court vacated the denial of defendant’s motion to withdraw and remandedfor further proceedings.

(Defendant was represented by Assistant Defender Elizabeth Cook, Chicago.)

Go To Top

INDICTMENTS, INFORMATIONS, COMPLAINTS


A defendant may challenge an indictment if the State deliberately or intentionallymisleads the grand jury, uses perjured or false testimony, or presents other deceptiveor inaccurate evidence. To warrant dismissal of the indictment, a defendant must showthat the State’s improper actions prevented the grand jury from returning a meaningfulindictment.

A detective testified before the grand jury that defendant and codefendantcommitted a robbery with a handgun. He also testified that codefendant was able todispose of the weapon, which was never recovered. The trial evidence showed that aweek after the robbery, the police recovered a BB gun in the street where one of thedefendants had been fleeing after the robbery. The BB gun had no fingerprints.

Defendant argued that the detective presented deceptive evidence to the grandjury by failing to disclose the recovery of the BB gun, and that without this deceptionthe grand jury may not have indicted defendant. The court held that the State did not

15

prevent the grand jury from returning a meaningful indictment. There was no evidencethat the BB gun was used in the commission of the offense and thus the detective’stestimony was not false.



JURY

§32-8(a)People v. Wright, 2017 IL 119561 (No. 119561, 9/21/17)

It is the burden of the party seeking a specific instruction to present it to the courtand request that it be given to the jury. Generally, the court must sua sponte offer aninstruction only where the jury is being instructed on the elements of the offense, thepresumption of innocence, or the burden of proof.

Defendant argued on appeal that the trial court should have sua sponte instructedthe jury on the definition of a firearm and that a BB gun is not a firearm. The SupremeCourt disagreed. Contrary to the position defendant took on appeal, at trial he objectedto any instructions about the lesser offense of robbery and maintained that he was notinvolved in the offense at all. Under these circumstances, the trial court had no dutyto sua sponte instruct the jury about the definition of a firearm.



Go To Top

JUVENILE PROCEEDINGS

§§33-6(a), 33-6(b)People v. Holman, 2017 IL 120655 (No. 120655, 9/21/17)

1. Under the Eighth Amendment prohibition of cruel and unusual punishment,criminal punishment must be proportioned to both the offender and the offense. Thus,the Eighth Amendment prohibits mandatory life sentences for juveniles who commitmurder. Miller v. Alabama, 567 U.S. 460 (2012) Miller is based on the concept thatjuveniles are less mature and responsible than adults and more vulnerable to negativeinfluence and peer pressure.

16

In addition, because juveniles are more malleable than adults, criminal activityby juveniles is less indicative of irretrievable depravity than is generally the case withadults. The Miller court concluded that the constitution requires a sentencing processwhich considers an offender’s youth and characteristics before a sentence of lifeimprisonment without the possibility of parole can be imposed.

2. Although other jurisdictions have reached differing conclusions, the SupremeCourt found that in Illinois any life sentence imposed on a juvenile, whether mandatoryor discretionary, violates the Eighth Amendment unless the trial court considered youthand its attendant characteristics. Thus, an Illinois court may sentence a juveniledefendant to life without parole only if the minor’s conduct shows irretrievable depravity,permanent incorrigibility, or irreparable corruption beyond the possibility ofrehabilitation.

In making this determination, the trial court must consider: (1) defendant’s youthand attendant circumstances including chronological age, any evidence of particularimmaturity, impetuosity, and failure to appreciate risks and consequences, (2)defendant’s family and home environment, (3) the degree of defendant’s participationin the offense and any evidence of familial or peer pressures that may have affected him,(4) defendant’s incompetence, including his inability to deal with police officers orprosecutors or his own attorneys, and (5) defendant’s prospects for rehabilitation.

3. Where before Miller was decided defendant received a discretionary lifesentence without the possibility of parole, whether a Miller violation occurred dependson whether the trial court considered evidence of defendant’s youth at the originalsentencing hearing. Where the trial court stated that it had considered the evidenceat trial and the pre-sentence report, it was aware of defendant’s age, and it heard someevidence concerning defendant’s mental problems and family background, the trial courtsufficiently considered defendant’s youth-related characteristics to comply with Miller.

4. The court rejected amicus curiae’s argument that life sentences for juvenilesshould be prohibited in all cases, holding that the question is for the legislature ratherthan the courts.

(Defendant was represented by Assistant Defender Amanda Horner, Mt. Vernon.)

Go To Top

§33-6(a)People v. Hoy, 2017 IL App (1st) 142596 (No. 1-14-2596, 9/11/17)

The sentence of 52 years imprisonment, including a 25-year mandatory firearmenhancement, imposed on defendant for a first degree murder he committed when hewas 16 years old did not violate the Eighth Amendment. Even if defendant served 100%of his sentence, he would be released when he was 68. Although that age would be

17

towards the end of his lifespan, the sentence is survivable and cannot be considered thefunctional equivalent of life imprisonment.

REASONABLE DOUBT

§§42-2, 42-5People v. Gray, 2017 IL 120958 (No. 120958, 9/21/17)

Evidence that a witness was consuming alcohol near the time of the event shetestifies about is probative of her sensory capacity and affects the weight given to hertestimony. But the fact that a witness was drinking does not necessarily preclude thetrier of fact from finding her credible.

Defendant argued that the State failed to prove his guilt beyond a reasonabledoubt since the victim, who had consumed a pint of whiskey and 40 ounces of beer, wasso intoxicated at the time of the offense that she could not even remember being stabbedin the chest by defendant.

The court rejected this argument, holding that the jury was well-aware of howmuch alcohol the victim consumed. Her credibility was properly a question for the jurywhich had the opportunity to view her testimony at trial.



Go To Top

ROBBERY


To prove armed robbery with a firearm, the State must prove that defendant wasarmed with a device designed to expel a projectile by action of an explosion, expansionof gas, or escape of gas. 720 ILCS 5/18-2(a)(2); 430 ILCS 65/1.1. The definition of firearmspecifically excludes any pneumatic, spring, paint ball, or BB gun.

Here, a witness with experience firing guns testified that codefendant told him“this is a robbery” and showed him what “looked like” a black semi-automatic gun. Thewitness was 100% certain it was an actual firearm. He also testified that he later felt

18

“something sharp,” like the barrel of a gun, against his back. Another witness testifiedthat codefendant told her she was being robbed and she saw the handle of a gun. A thirdwitness testified he had seen guns before and believed codefendant’s gun was a ninemillimeter pistol.

The Supreme Court held that this evidence, when viewed in the light mostfavorable to the State, was enough to prove defendant guilty of armed robbery with afirearm. The court held that this evidence “was not so unreasonable, improbable, orunsatisfactory that no rational trier of fact could have found” defendant guilty.



Go To Top

SEARCH AND SEIZURE

§44-1(a) People v. Bianca, 2017 IL App (2d) 160608 (No. 2-16-0608, 9/28/17)

1. There are three tiers of police-citizen encounters: (1) arrests supported byprobable cause; (2) temporary investigatory seizures based on reasonable, articulablesuspicions of criminal activity; and (3) consensual police-citizen encounters which involveno coercion or detention and do not implicate the Fourth Amendment. A seizure occurswhere, by means of physical force or show of authority, a citizen’s freedom of movementis restrained. Four factors are to be considered, including the threatening presence ofseveral officers, the display of weapons by an officer, any physical touching of the citizen,and use of language or tone of voice compelling the individual to comply with the officer’srequests. However, these factors are not exhaustive, and a seizure may occur even inthe absence of the above factors.

2. An officer who was conducting a traffic stop received a citizen’s tip that aparticular car had been driven erratically before parking at a nearby liquor store. Theofficer relocated his traffic stop to the liquor store, where he observed defendant leavethe store and enter a car matching the description given by the citizen. The officer parkedhis car next to defendant’s car and asked her to “stay in that spot” so he could speakwith her after he “cleared” his other traffic stop. Defendant remained while the officerfinished the other stop.

When the officer returned to defendant’s car he asked for her driver’s license andproof of insurance. He then had defendant step out of the car to perform field sobrietytests. Following those tests, the officer arrested defendant. She was subsequently chargedwith DUI.

19

The trial court granted defendant’s motion to suppress, finding that defendantwas seized when the officer asked her to remain while he completed the other stop. TheAppellate Court reversed that finding, but held that a seizure occurred when the officerasked defendant for her driver’s license and insurance information and told her to exitthe car to perform the field sobriety tests. The court noted that there “is ample authorityto support a holding that submission to field sobriety testing is a seizure under theFourth Amendment” and found no evidence to support an argument that defendantconsented to being detained for the testing.

3. The court also held that the State waived its claim that any argument a seizureduring the field sobriety testing was beyond the scope of defendant’s motion to suppress.The State failed to raise any objection when the defense presented evidence andargument on this issue during the hearing on the motion to suppress.

The trial court’s order granting defendant’s motion to suppress was affirmed.

(Defendant was represented by Assistant Defender Yasemin Eken, Elgin.)

Go To Top

§§44-4(a), 44-4(b), 44-4(c)In re Tyreke H., 2017 IL App (1st) 170406 (No. 1-17-0406, 9/28/17)

Police officers spotted the minor, who was sought as a potential witness to ahomicide, riding his bicycle. They turned their car in front of the bicycle at an angle whichforced the minor to ride to the car, and exited the car to face the minor. The respondentidentified himself in response to questioning and did not make any furtive movements.However, one of the officers testified that he saw a bulge in the shape of a handgun inthe respondent’s pants pocket.

After tapping the object to ensure that it was a firearm and asking the minor whatthe object was, the officer performed a protective pat down and recovered a .22 caliberhandgun with six live rounds. The trial court initially granted a motion to suppress,but then reconsidered its decision and denied the motion.

1. A person is “seized” for purposes of the Fourth Amendment when, consideringthe totality of the circumstances, a reasonable person would believe he was not free toleave. When a minor is subjected to a purported seizure, the proper test is whether areasonable minor would believe he was not free to leave.

Because a reasonable, innocent person riding a bike on a public roadway wouldbelieve he was not free to leave when a vehicle stopped in his or her path of travel andtwo officers wearing badges quickly emerged from the vehicle, the minor was “seized”under the Fourth Amendment. The court rejected the argument that no seizure occurred

20

because the minor was sought only as a witness. An officer’s subjective purpose forconducting a stop is irrelevant to whether a reasonable person would feel free to leave.

2. Generally, Terry permits a seizure where there is a reasonable suspicion ofcriminal activity. However, where the minor was stopped not because he was suspectedof criminal activity, but because police thought he had witnessed a homicide, police actedreasonably by conducting a seizure. The court noted that the investigation concerneda homicide, the respondent was believed to be a witness to the offense, and the officersnarrowly tailored their action to stopping the minor.

3. Generally, a frisk for weapons is valid only if it follows a stop based onreasonable suspicion that the individual is armed and dangerous. Such reasonablesuspicion must be more than a mere hunch, and the officer must be able to point to aspecific and articulable facts that demonstrate the reasonableness of the suspicion.

The court concluded that where a suspicionless seizure was valid because therespondent was a witness to a crime, the officers acted properly by conducting a pat downand frisk for weapons once they noticed the outline of a gun in the respondent’s pocket.In Arizona v. Johnson, 555 U.S. 323 (2009), the passenger in a car that was stoppedbased on a suspicion that the driver had committed an offense could be frisked forweapons once officers developed a reasonable suspicion that the passenger was armed,despite the fact that there was no reason to suspect that the passenger had committeda crime. Similarly, the risk posed to officers when making a suspicionless but valid stopof a potential witness justifies a frisk for weapons once there is reasonable suspicionto believe that the witness is armed.

(The respondent was represented by Assistant Defender Michael Gentithes,Chicago.)

Go To Top

SENTENCING

§§45-1(a), 45-1(b)(2), People v. Holman, 2017 IL 120655 (No. 120655, 9/21/17)

1. Under the Eighth Amendment prohibition of cruel and unusual punishment,criminal punishment must be proportioned to both the offender and the offense. Thus,the Eighth Amendment prohibits mandatory life sentences for juveniles who commitmurder. Miller v. Alabama, 567 U.S. 460 (2012) Miller is based on the concept thatjuveniles are less mature and responsible than adults and more vulnerable to negativeinfluence and peer pressure.

21

In addition, because juveniles are more malleable than adults, criminal activityby juveniles is less indicative of irretrievable depravity than is generally the case withadults. The Miller court concluded that the constitution requires a sentencing processwhich considers an offender’s youth and characteristics before a sentence of lifeimprisonment without the possibility of parole can be imposed.

2. Although other jurisdictions have reached differing conclusions, the SupremeCourt found that in Illinois any life sentence imposed on a juvenile, whether mandatoryor discretionary, violates the Eighth Amendment unless the trial court considered youthand its attendant characteristics. Thus, an Illinois court may sentence a juveniledefendant to life without parole only if the minor’s conduct shows irretrievable depravity,permanent incorrigibility, or irreparable corruption beyond the possibility ofrehabilitation.

In making this determination, the trial court must consider: (1) defendant’s youthand attendant circumstances including chronological age, any evidence of particularimmaturity, impetuosity, and failure to appreciate risks and consequences, (2)defendant’s family and home environment, (3) the degree of defendant’s participationin the offense and any evidence of familial or peer pressures that may have affected him,(4) defendant’s incompetence, including his inability to deal with police officers orprosecutors or his own attorneys, and (5) defendant’s prospects for rehabilitation.

3. Where before Miller was decided defendant received a discretionary lifesentence without the possibility of parole, whether a Miller violation occurred dependson whether the trial court considered evidence of defendant’s youth at the originalsentencing hearing. Where the trial court stated that it had considered the evidenceat trial and the presentence report, it was aware of defendant’s age, and it heard someevidence concerning defendant’s mental problems and family background, the trial courtsufficiently considered defendant’s youth-related characteristics to comply with Miller.

4. The court rejected amicus curiae’s argument that life sentences for juvenilesshould be prohibited in all cases, holding that the question is for the legislature ratherthan the courts.

(Defendant was represented by Assistant Defender Amanda Horner, Mt. Vernon.)

Go To Top

§45-1(b)(2)People v. Hoy, 2017 IL App (1st) 142596 (No. 1-14-2596, 9/11/17)

The sentence of 52 years imprisonment, including a 25-year mandatory firearmenhancement, imposed on defendant for a first degree murder he committed when hewas 16 years old did not violate the Eighth Amendment. Even if defendant served 100%

22

of his sentence, he would be released when he was 68. Although that age would betowards the end of his lifespan, the sentence is survivable and cannot be considered thefunctional equivalent of life imprisonment.

§§45-7(b), 45-7(c)People v. Brown, 2017 IL App (1st) 150203 (No. 1-15-0203, 9/19/17)

The Appellate Court may address a defendant’s request for pre-sentence custodycredit under 725 ILCS 5/110-14 even though defendant raised this issue for the firsttime on appeal from the denial of a post-conviction petition. Such issues only involvea simple ministerial act that promotes judicial economy.

The Appellate Court however does not have subject matter jurisdiction to addresssubstantive issues regarding whether particular assessments were properly imposedwhere these issues were raised for the first time on appeal from the denial of a post-conviction petition. These assessments are not void and are not independently reviewableunder Supreme Court Rule 615(b).

The court granted defendant’s request for pre-sentence custody credit but affirmedhis sentence in all other respects.

(Defendant was represented by Assistant Defender Ann McLennan, Chicago.)

Go To Top

SEX OFFENDERS

§46-7People v. Jackson, 2017 IL App (3d) 150154 (No. 3-15-0154, 9/12/17)

Adopting the rationale of People v. Pepitone, 2017 IL App (3d) 140627 (l/agranted, No. 122034 (5/24/17)), the Appellate Court concluded that 720 ILCS 5/11-9.4-1,which makes it unlawful for a child sex offender or sexual predator to knowingly bepresent within 500 feet of any public park at any time, violates due process because itis overly broad and not reasonably related to any legitimate governmental goal. In aconcurring opinion, Justice McDade criticized amendments to the Sex OffenderRegistration Act for failing to distinguish between offenders who are likely to reoffendand those who are not, for setting up such strict requirements as to make it difficultfor offenders to comply, and for restricting offenders in their ability to find employmentand be reintegrated into society after serving their sentences. Justice McDade criticized

23

the legislature for failing to “equitably balance the various human interests impacted”by the Sex Offender Registration Act, especially for persons who are unlikely to reoffend.

(Defendant was represented by Assistant Defender Emily Koza, Ottawa.)

Go To Top

SPEEDY TRIAL

§47-5People v. Connors, 2017 IL App (1st) 162440 (No. 1-16-2440, 9/26/17)

1. Upon application of the State, the trial court may extend the speedy trial termfor up to 60 days if the “State has exercised without success due diligence to obtainevidence material to the case and . . . there are reasonable grounds to believe that suchevidence may be obtained at a later day. . . .” 725 ILCS 5/103-5(c). The State has theburden of proof to demonstrate due diligence, and the trial court’s order granting acontinuance is reviewed for abuse of discretion. Due diligence occurs where theprosecution began efforts to locate its witness in sufficient time to secure the witness’spresence before the speedy trial term expired.

2. The trial court erred by granting the State’s motion for a 60-day continuanceto obtain the presence of its only witness - the State Trooper who stopped defendantand administered field sobriety tests. The court noted that defendant had announcedat several hearings that he was ready for trial, but the prosecution asked for continuancesbecause the trooper had not appeared. Each time, the trial court granted a continuanceuntil the date requested by the State. However, the trooper failed to appear on the newdates as well.

After defendant asked for several continuances to obtain a drug and alcoholevaluation and so a plea bargain might be worked out, plea negotiations failed. Defensecounsel then informed the prosecutor and the court that the case should be set for trial.Defense counsel and the trial court again accepted the date requested by the prosecutor.However, on the continued date the trooper again failed to come to court.

On this occasion, the prosecutor stated that he could communicate with the trooperonly through a third party and that he had been unable to find a date on which thetrooper could appear. The prosecutor requested an extension of the speedy trial termfor 60 days. After finding that the State had exercised due diligence, the trial courtordered a 60-day extension of the speedy trial period.

In finding that the trial court abused its discretion, the Appellate Court notedthat the first two times defendant was ready for trial, the prosecution offered noexplanation for its witness’s absence. On the third date, the prosecutor stated only that

24

it was forced to communicate with its witness through a third party and had troublefinding a date the trooper could attend. “Thus, the prosecutor admitted that more thana year after the court first set the case for trial and [defendant] answered ready for trial,after three trial dates set specifically at the prosecutor’s request . . . , and knowing thatthe full 160 days had run on [the] speedy trial term - the prosecutor still had not foundout how to contact his one witness. . . .”

The court also noted that trooper was employed as a State Trooper throughoutthe proceedings, and should not have been difficult for the prosecutor to contact. Underthese circumstances, the prosecutor failed to demonstrate that he exercised due diligenceto obtain the presence of the witness before the speedy trial term expired.

3. Because the only remedy for a violation of the right to a speedy trial is discharge,the cause was remanded for the trial court to issue a discharge order. The court added:

We implore prosecutors to take drunk driving chargesseriously. Once a defendant accused of drunk drivingdemands trial, the prosecutor must take steps to bring tocourt all witnesses the prosecution needs to prove its case.. . . We further note that the prosecutor here could havesought . . . a 21-day extension of the speedy trial term, undersubsection (f) of the speedy trial statute, and for thatextension, the prosecution did not need to show due diligence.

Go To Top

STATUTES

§48-3(a)People v. Gamez, 2017 IL App (1st) 151630 (No. 1-15-1630, 9/19/17)

In Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012), the federal court of appealsheld that the version of the unlawful use of a weapon statute that was in effect in 2010(720 ILCS 5/24-1(a)(4)) was facially unconstitutional under the Second Amendment.In Aguilar, 2013 IL 112116, the Illinois Supreme Court held that the version of theaggravated unlawful use of a weapon statute that was in effect in 2008 (720 ILCS 5/24-1.6(a)(1), (a)(3)(A)) was facially unconstitutional.

The Appellate Court held that under Moore and Aguilar, the version of theunlawful use of a weapon statute that was in effect in 1996 was also faciallyunconstitutional. The 1996 UUW statute provides that a defendant commits UUW whenhe knowingly carries or possesses a firearm in a vehicle or on his person, except on hisown land, abode, or fixed place of business. 720 ILCS 5/24-1(a)(4). The only differencesbetween the 2006 statute and the other two statutes was that the 2010 statute contains

25

additional exceptions for the transportation of firearms under certain circumstances,and the 2008 statute requires the State to prove that the firearm was uncased, loaded,and immediately accessible. The 1996 statute thus represents an even wider ban onthe possession of firearms. If the 2008 and 2010 statutes violated the Second Amendment,it necessarily followed that the 2006 statute also violated the Second Amendment.

Defendant’s conviction was vacated.

(Defendant was represented by Assistant Defender Rachel Kindstrand, Chicago.)

Go To Top

§48-3(a)People v. Gray, 2017 IL 120958 (No. 120958, 9/21/17)

An as-applied challenge to the constitutionality of a statute is directed againsthow the statute applies to the facts and circumstances of a defendant’s case. A successfulas-applied challenge enjoins enforcement of the statute only against the defendant ina specific case.

Pursuant to the State’s police power, the legislature has broad discretion to defineoffenses and prescribe penalties. This discretion is limited by due process. When a statutedoes not affect a fundamental right, it is subject to the rational basis test. Under thistest, a statute will be upheld if it bears a rational relationship to a legitimate legislativepurpose.

Defendant was convicted of aggravated domestic battery, which is defined ascommitting a battery against “any family or household member.” 720 ILCS 5/12-3.3(a)(a-5). Family or household member includes any person who has had a datingrelationship, with no time limits on former relationships. 720 ILCS 5/12-0.1. Defendantargued that the statute violated due process as applied to him because he had not datedthe victim for 15 years.

The Supreme Court rejected defendant’s argument. The court found that thelegislature’s purpose in enacting the statute was to curb the “serious problem of domesticviolence.” The legislature could rationally believe that people are more likely to battera former partner no matter how long ago that relationship ended. Thus, the court heldthat the absence of a time limit on former dating relationships was reasonable andrationally related to the goal of curbing domestic violence.



26

§48-3(b)People v. Jackson, 2017 IL App (3d) 150154 (No. 3-15-0154, 9/12/17)

Adopting the rationale of People v. Pepitone, 2017 IL App (3d) 140627 (l/agranted, No. 122034 (5/24/17)), the Appellate Court concluded that 720 ILCS 5/11-9.4-1,which makes it unlawful for a child sex offender or sexual predator to knowingly bepresent within 500 feet of any public park at any time, violates due process because itis overly broad and not reasonably related to any legitimate governmental goal. In aconcurring opinion, Justice McDade criticized amendments to the Sex OffenderRegistration Act for failing to distinguish between offenders who are likely to reoffendand those who are not, for setting up such strict requirements as to make it difficultfor offenders to comply, and for restricting offenders in their ability to find employmentand be reintegrated into society after serving their sentences. Justice McDade criticizedthe legislature for failing to “equitably balance the various human interests impacted”by the Sex Offender Registration Act, especially for persons who are unlikely to reoffend.

(Defendant was represented by Assistant Defender Emily Koza, Ottawa.)

Go To Top

§48-3(i)People v. Peterson, 2017 IL 120331 (No. 120331, 9/21/17)

1. The separation of powers doctrine of the Illinois Constitution provides that thelegislative, executive and judicial branches are separate and that no branch shall exercisepowers properly belonging to another. Thus, each branch of government has its ownunique sphere of authority. The judicial article of the Illinois Constitution vests theSupreme Court with general administrative and supervisory authority over all courts,empowering it to promulgate procedural rules to facilitate the judiciary in the dischargeof its constitutional duties, including authority to regulate the trial of cases and governthe admission of evidence.

The separation of powers doctrine does not require a complete divorce betweenthe branches of government, however. Thus, although the Supreme Court is empoweredto promulgate rules governing admission of evidence at trial, the General Assembly maylegislate in this area without offending the separation of powers doctrine so long aslegislative enactments do not create an irreconcilable conflict with a court rule. Wherean irreconcilable conflict exists, the court rule prevails.

2. The court concluded that 725 ILCS 5/115-10.6 and Rule of Evidence 804(b)(5)contain an irreconcilable conflict, and that the statute must therefore give way to Rule804(b)(5). The court noted that §115-10.6 contains additional criteria for admission ofhearsay which diminish the equitable considerations at the center of the forfeiture bywrongdoing doctrine codified by Illinois Rule of Evidence Rule 804(b)(5).

27

UNLAWFUL USE OF WEAPONS

§53-1People v. Gamez, 2017 IL App (1st) 151630 (No. 1-15-1630, 9/19/17)

In Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012), the federal court of appealsheld that the version of the unlawful use of a weapon statute that was in effect in 2010(720 ILCS 5/24-1(a)(4)) was facially unconstitutional under the Second Amendment.In Aguilar, 2013 IL 112116, the Illinois Supreme Court held that the version of theaggravated unlawful use of a weapon statute that was in effect in 2008 (720 ILCS 5/24-1.6(a)(1), (a)(3)(A)) was facially unconstitutional.

The Appellate Court held that under Moore and Aguilar, the version of theunlawful use of a weapon statute that was in effect in 1996 was also faciallyunconstitutional. The 1996 UUW statute provides that a defendant commits UUW whenhe knowingly carries or possesses a firearm in a vehicle or on his person, except on hisown land, abode, or fixed place of business. 720 ILCS 5/24-1(a)(4). The only differencesbetween the 2006 statute and the other two statutes was that the 2010 statute containsadditional exceptions for the transportation of firearms under certain circumstances,and the 2008 statute requires the State to prove that the firearm was uncased, loaded,and immediately accessible. The 1996 statute thus represents an even wider ban onthe possession of firearms. If the 2008 and 2010 statutes violated the Second Amendment,it necessarily followed that the 2006 statute also violated the Second Amendment.

Defendant’s conviction was vacated.

(Defendant was represented by Assistant Defender Rachel Kindstrand, Chicago.)

Go To Top

§§53-1, 53-2People v. Smith, 2017 IL App (1st) 151643 (No. 1-15-1643, 9/29/17)

Defendant was convicted of being an armed habitual criminal and sentenced toa prison term of six years. On appeal, he argued that the AHC conviction must be vacatedbecause of one of the predicate convictions was aggravated unlawful use of a weaponunder a statutory provision which the Illinois Supreme Court later held to be faciallyunconstitutional. In People v. McFadden, 2016 IL 117424, the Illinois Supreme Courtfound that under United States Supreme Court precedent, a criminal defendant whohas been convicted under a facially unconstitutional statute has the burden to clear hisstatus as a felon if he or she wishes to avoid future use of the conviction as a predicatefor enhanced offenses.

28

Here, the Appellate Court concluded that the McFadden, which involved aconviction for unlawful use of a weapon by a felon predicated on an aggravated unlawfuluse of a weapon conviction that had been based on a statute which had subsequentlybeen held facially unconstitutional, applies to armed habitual criminal offenses. Thus,an armed habitual criminal conviction may be predicated on an aggravated unlawfuluse of a weapon conviction that was obtained under a statute that was subsequentlyheld to be facially unconstitutional, at least where the defendant failed to take stepsto have the prior conviction vacated.

Although the court felt that it was bound by precedent to affirm the armed habitualcriminal conviction, it joined with other justices who have recognized the “inequitableresult” of requiring a criminal defendant to clear his record of a conviction based on anunconstitutional statute. Therefore, the court “called for a legislative solution to thistroubling situation.”

(Defendant was represented by Assistant Defender Darren Miller, Elgin.)

VERDICTS

§55-3(c)People v. Melecio, 2017 IL App (1st) 141434 (No. 1-14-1434, 9/21/17)

A defendant may not be convicted of multiple offenses based on the same physicalact. Here, the evidence showed that defendant and another man entered the victim’scar, pulled him out of the car, and shot him. Defendant was convicted of first degreemurder and vehicular invasion.

The Appellate Court vacated the vehicular invasion conviction since it was basedon the same physical act as the murder. The indictment alleged that defendant enteredthe car with the intent to commit first degree murder. Accordingly, the act of enteringthe car and pulling the victim out was inherent in the murder itself.

(Defendant was represented by Assistant Defender Robert Hirschhorn, Chicago.)

Go To Top

29

WITNESSES

§57-1(c)People v. Djurdjulov, 2017 IL App (1st) 142258 (No. 1-14-2258, 9/12/17)

A defendant establishes a right to funds for an expert witness where hedemonstrates that the expert’s services are necessary to prove a crucial issue in his caseand the defendant is unable to pay for his own expert.

Defendant’s aunt hired private counsel to represent defendant. Defendantanticipated that the State would use cell phone records as evidence and filed a motionasking the court for funds to hire an expert to analyze the records and assist with cross-examination of the State’s cell-phone expert. At the hearing on the motion, the evidenceshowed that defendant had no assets to pay for an expert.

The trial court noted that it had no basis to reject defendant’s assertion that heneeded an expert to contest the cell-phone evidence. But it still denied the motion, statingthat although defendant may have been indigent himself, he was represented by privatecounsel and thus “someone’s been paying the bills for his representation.” If someonewas able to pay for defendant’s counsel, that person would be able to pay for the expert.

The Appellate Court, with one justice dissenting, held that the trial court abusedits discretion by denying the funds. A defendant need only establish his own indigence.Relatives, friends, or others who help pay for some costs of defendant’s case have notthereby committed themselves to paying for all costs necessary for the defense. Herethe record clearly showed that defendant was indigent and unable to pay for an expert.

Since the cell phone records played a critical part of the State’s case, the failureto provide defendant with adequate funds to hire an expert was reversible error.

(Defendant was represented by Assistant Defender Darren Miller, Chicago.)

Go To Top

30

Documents

Office of the State Appellate Defender Illinois Criminal ... · PDF fileAPPEAL §2-6(a) People v. Brown, 2017 IL App (1st) 150203 (No. 1-15-0203, 9/19/17) The Appellate Court may address