Office of the State Appellate Defender Illinois Criminal ... · PDF fileIllinois Criminal Law Digest June 2017 MICHAEL J. PELLETIER P.O. Box 5240 State Appellate Defender Springfield,

Office of the State Appellate Defender

Illinois Criminal Law Digest

June 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

ACCOUNTABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

APPEAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

BATTERY, ASSAULT & STALKING OFFENSES. . . . . . . . . . . . . . . . . . . . . . . . 4

COLLATERAL REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

CONFESSIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

DISCOVERY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

DISORDERLY, ESCAPE, RESISTING AND OBSTRUCTING OFFENSES. 17

DOUBLE JEOPARDY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

EVIDENCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

GUILTY PLEAS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

HOMICIDE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

INSANITY - MENTALLY ILL - INTOXICATION. . . . . . . . . . . . . . . . . . . . . . . . 24

JUDGE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

JURY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

KIDNAPPING, UNLAWFUL RESTRAINT AND RELATED OFFENSES. . . 29

NARCOTICS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

PROSECUTOR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

REASONABLE DOUBT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

SEARCH & SEIZURE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

SENTENCING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

SEX OFFENSES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

SPEEDY TRIAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

STATUTES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

TRIAL PROCEDURES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

VERDICTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

WAIVER - PLAIN ERROR - HARMLESS ERROR. . . . . . . . . . . . . . . . . . . . . . . 49

WITNESSES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

TABLE OF AUTHORITIES

United States Supreme Court

Davila v. Davis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Jae Lee v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 21

McWilliams v. Dunn. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 52

Packingham v. North Carolina.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 46

Turner v. U. S... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Weaver v. Massachusetts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 47, 50

Illinois Supreme Court

City of Chicago v. Alexander.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

People v. Nelson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 15

People v. Ringland, Saxen, et al. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 37

People v. Sebby. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 49

Illinois Appellate Court

People v. Bardsley. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 29

People v. Bonilla. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

People v. Brown (3-14-0921). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

People v. Brown (3-15-0070). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

People v. Cole. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

People v. Crosby.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

People v. Dalton. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12, 44

People v. Dismuke. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

People v. Evans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 25

People v. Gatlin. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

People v. Griffin. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 22, 40

People v. Grigorov. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 41

People v. Hernandez. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

People v. Horton. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

People v. Jackson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 17, 32

People v. Kent.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

People v. Maggio. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

People v. Martin.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

People v. Merriweather. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6, 38

People v. Miller. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

People v. Nere.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 30

People v. Scalise.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 44

People v. Schlosser. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

People v. Williams. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

ACCOUNTABILITY

§1-1People v. Nelson, 2017 IL 120198 (No. 120198, 6/15/17)

1. A defendant is legally accountable for another if she intends to promote orfacilitate an offense and aids or abets another in the planning or commission of theoffenses. 720 ILCS 5/5-2(c). Under the common-design rule, if two or more people engagein a common criminal design, any acts in furtherance of the design are considered tobe acts of all the parties. Thus a defendant may be accountable for first degree murderwhere she enters a common design to commit battery yet a murder is committed byanother during the course of the battery.

2. Four women including defendant and co-defendant Hall had a confrontationwith a man, Wilson, at an apartment. Wilson left the apartment but when Hall thoughtthat he had stolen her cell phone, the four women went after Wilson. As they were leavingthe apartment, defendant grabbed a knife. Hall then took the knife from defendant.

When the women caught up with Wilson, he tackled one of them and all fourstarted hitting and kicking him. While they were hitting and kicking Wilson, Defendantsaw Hall stab him with the knife. Defendant told Hall to stop and tried to grab the knifeaway. The women then returned to the apartment. Wilson died from multiple stab andincision wounds.

Defendant and Hall were represented by attorneys from the same clinic in jointbut severed bench trials. Defendant’s counsel argued that she acted in self-defensebecause the women only attacked Wilson after he tackled one of them. The court founddefendant guilty of first degree murder.

3. On appeal, defendant argued that her attorneys labored under an actual conflictof interest where there was a plausible alternative defense based on lack of accountabil-ity, but since this defense was hostile to Hall’s defense, her attorneys could not pursueit and still maintain their loyalty to Hall.

The Court affirmed defendant’s conviction finding that there was no plausiblealternative strategy based on lack of accountability available in this case. Here the fourwomen had a common design to commit a criminal assault on Wilson. Under Illinoislaw, when Hall suddenly stabbed Wilson during the attack, defendant was accountablefor Hall’s acts under the common-design rule regardless of whether defendant told Hallto stop or grabbed the knife.

(Defendant was represented by Assistant Defender Emily Hartman, Chicago.)

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APPEAL

§2-6(a)People v. Griffin, 2017 IL App (1st) 143800 (No. 1-14-3800, 6/27/17)

1. Defendant entered negotiated guilty pleas to two offenses and was assessedfines and fees. He did not file a motion to withdraw his plea or reconsider his sentence.More than 30 days after sentencing, defendant filed a motion to correct the mittimusto reflect a different custody date for purposes of calculating pre-sentence credit. Thetrial court denied his motion. On appeal from that denial, defendant abandoned his claimregarding the custody date and instead argued that he was entitled to pre-sentence creditagainst his assessments and that certain fines and fees were erroneously imposed.

The Appellate Court held that it could not reach the merits of defendant’s claimsand dismissed his appeal. Although the trial court had jurisdiction to address defendant’smotion to correct the mittimus, his appeal from the denial of that motion was not properlybefore the Appellate Court.

2. The trial court retains jurisdiction to correct clerical error or matters of format any time after judgment, so as to make the record conform to the actual judgmententered by the court. Defendant’s motion to correct the mittimus asserted a clerical errorby the trial court (entering the wrong custody date) and thus the trial court hadjurisdiction to consider defendant’s motion even in the absence of a properly filed motionto withdraw his guilty plea or reconsider sentence.

The denial of defendant’s motion to correct the mittimus, however, was not a finalappealable order. An order is final and appealable if it determines the litigation on themerits. Here, the orders that determined the litigation on the merits were the judgmentsentered against defendant pursuant to his guilty plea. When the trial court denied themotion to correct the mittimus, it found that it had committed no error in entering theearlier judgments and therefore left them in place. The trial court did not enter any newjudgments. Hence there was no final appealable order when the trial court denieddefendant’s motion.

3. The Appellate Court also held that it could not reach the merits of defendant’sissues on appeal because he did not timely file a motion to withdraw his guilty plea orreconsider sentence. Ordinarily, a defendant who pleads guilty has 30 days from thedate he is sentenced to file a motion to withdraw his guilty plea and vacate the judgmentor a motion to reconsider sentence. Ill. S. Ct. R. 604(d).

The timely filing of a 604(d) motion is a condition precedent to an appeal froma guilty plea. The failure to file a timely 604(d) motion does not deprive the AppellateCourt of jurisdiction, but as a general rule, the failure to do so precludes the court fromconsidering the appeal on its merits. When a defendant fails to file a 604(d) motion, theAppellate Court must dismiss the appeal.

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4. The court also held that the doctrine of revestment did not apply in this case.The doctrine permits the parties to revest a court with jurisdiction by activelyparticipating without objection in proceedings that are inconsistent with the merits ofthe prior judgment. But revestment does not permit review of a defendant’s claim onappeal where he pled guilty and failed to file a 604(d) motion.

Additionally, the parties have no ability to revest a reviewing court withjurisdiction over issues that were never raised in the trial court. When the trial court’sjurisdiction is limited, those limitations carry over to the Appellate Court.

The court dismissed defendant’s appeal.

(Defendant was represented by Assistant Defender Mike Orenstein, Chicago.)

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§2-6(a)People v. Grigorov, 2017 IL App (1st) 143274 (No. 1-14-3274, 6/27/17)

On April 10, 2014, defendant pled guilty and the trial court imposed “allmandatory fines, fees, and court costs” on defendant. Defendant did not file a motionto withdraw his plea or a notice of appeal within 30 days. In August 2014, defendantfiled a motion asking the trial court to vacate $6000 in assessments due to his inabilityto pay. Defendant did not argue that any of the fines or fees were erroneously assessed;he merely argued his inability to pay.

The trial court denied defendant’s motion. On appeal, defendant abandoned hisargument about lacking the ability to pay, and instead argued that he was entitled topre-sentence credit to offset his fines and that certain fines and fees had been erroneouslyimposed. The Appellate Court held that it had jurisdiction to address the pre-sentencecredit issue but not the issue about improper imposition.

Generally, the circuit court loses jurisdiction to alter a sentence after 30 days.An exception to this rule applies when a defendant files a petition seeking financial reliefunder section 5-9-2. 730 ILCS 5/5-9-2. Under this freestanding collateral action, the trialcourt may revoke any unpaid portion of a fine or may modify the method of payment.A defendant may file a 5-9-2 petition at any time.

But in this case, defendant was not arguing that the trial court improperly deniedhis 5-9-2 petition. Instead, he raised “entirely new and unrelated claims” that challengedhis original sentence. The only claim the Appellate Court could address was the issueof pre-sentence credit since such credit may be awarded merely “upon application of thedefendant.” 725 ILCS 5/110-14. A defendant may apply for that credit “at any time andat any stage of court proceedings, even on appeal in a postconviction proceeding.” TheAppellate Court, however, did not have jurisdiction to address claims about fines andfees other than pre-sentence credit.

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The court applied defendant’s pre-sentence credit to offset his assessments.

(Defendant was represented by Assistant Defender Katie Anderson, Chicago.)

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§2-6(a)People v. Merriweather, 2017 IL App (4th) 150407 (No. 4-15-0407, 6/27/17)

Defendant, who was 17 at the time of the offense, was convicted of first degreemurder and sentenced to 70 years in prison. Defendant filed a pro se motion for leaveto file a successive post-conviction petition alleging actual innocence based on newlydiscovered evidence. On appeal from the denial of the motion, defendant argued for thefirst time that his sentence was a de facto life sentence that was unconstitutional asapplied to him.

The Appellate Court, relying on Thompson, 2015 IL 118151, held that defendantcould not raise an as-applied challenge to his sentence for the first time on appeal. Unlikefacial challenges to statutes, as-applied challenges are dependent on the facts andcircumstances of each case and thus the appropriate place to raise the issue is in thetrial court where the record can be adequately developed. Defendant thus forfeited thisissue by failing to raise it in the trial court.

The court specifically declined to follow Nieto, 2016 IL App (1st) 121604, whichheld that courts must overlook the general rule of Thompson in cases where a defendantis raising an as-applied challenge to the sentence of a juvenile. The court found thatit would be inconsistent to require a fully developed record in adult cases but not injuvenile cases.

The court refused to address defendant’s argument but noted that he might beable to raise this issue in a successive post-conviction petition.

(Defendant was represented by Assistant Defender Amanda Kimmel, Springfield.)

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BATTERY, ASSAULT & STALKING OFFENSES

§7-1(a)(1)People v. Jackson, 2017 IL App (1st) 142879 (No. 1-14-2879, 6/27/17)

1. A defendant commits battery when he knowingly makes physical contact ofan insulting or provoking nature with another person. 720 ILCS 5/12-3(a)(2). A defendantresists a police officer when he knowingly resists the performance of a person knownto be a peace officer. 720 ILCS 5/31-1(a). A defendant acts knowingly when he is

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consciously aware that a result is practically certain to be caused be his conduct. 720ILCS 5/4-5(b). A defendant’s knowing state of mind may be proved through circumstantialevidence and may be inferred from a defendant’s actions and the conduct surroundingit.

2. Defendant called 911 from his apartment building asking for an ambulance.Two paramedics soon arrived and entered the building where they encountereddefendant, who appeared nervous and upset. He told them he needed an ambulancebut refused to believe they were really paramedics. Defendant again called 911 askingfor an ambulance even though the dispatcher told him an ambulance was already there.Both paramedics could smell marijuana on defendant.

Since defendant was agitated and not acting rationally, the paramedics calledthe police for assistance. When the first officer arrived, defendant was inside theapartment building’s vestibule screaming profanities and saying “I’m not going.” Theparamedics told the officer that defendant was mentally unstable and possibly underthe influence of drugs. The officer tried to calm defendant, but when he reached fordefendant’s shoulder, defendant pulled away, fell to the floor, and began punching andkicking in defense. The officer tried but failed to handcuff defendant. He then used histaser on defendant about 10 times but it had “no affect whatsoever.”

A second officer arrived and tried to help handcuff defendant. The second officerthought defendant was irrational and could smell cannabis in the vestibule. As the twoofficers were trying to handcuff defendant, he kicked the second officer several timesin the leg. After struggling for several minutes, the officers finally handcuffed defendant.They put defendant in the ambulance, which took him to the hospital where he was still“unhinged and screaming.”

Defendant’s girlfriend testified that she had seen him have 10-20 seizures overthe previous seven years. She saw defendant as he was being placed in the ambulanceand believed he was having a seizure. The two paramedics testified that they did notbelieve defendant was having a seizure.

The jury convicted defendant of battery and resisting a police officer.

3. The Appellate Court, with one justice dissenting, held that the evidence wasinsufficient to prove that defendant acted knowingly when he kicked the officer. Bothparamedics observed that defendant was nervous and agitated and believed thatdefendant had an altered mental state. The second officer thought that defendant’sbehavior was irrational. Since all the witnesses thought that defendant was not behavingnormally, the court stated it could not infer from defendant’s actions that he wasconsciously aware of what he was doing. Instead, the evidence showed that defendantwas not consciously aware of the results of his actions.

The court reversed defendant’s conviction outright.

(Defendant was represented by former Assistant Defender Whitney Price, Chicago.)

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COLLATERAL REMEDIES

§§9-1(c), 9-1(i)(1), 9-1(o)(3)People v. Merriweather, 2017 IL App (4th) 150407 (No. 4-15-0407, 6/27/17)

1. Defendant, who was 17 at the time of the offense, was convicted of first degreemurder and sentenced to 70 years in prison. Defendant filed a pro se motion for leaveto file a successive post-conviction petition alleging actual innocence based on newlydiscovered evidence based on the affidavits of four witnesses. A year later, but beforethe trial court had ruled on defendant’s motion, defendant filed a motion to supplementthe record with the affidavit of an additional witness. Over a year after that, the trialcourt denied the motion to file a successive petition. In making its ruling, the trial courtmade no mention of the motion to supplement the record.

On appeal, defendant argued for the first time that his sentence was a de factolife sentence that was unconstitutional as applied to him. Defendant also argued thatthe trial court erred in denying his motion to file a successive petition.

2. The Appellate Court, relying on Thompson, 2015 IL 118151, first held thatdefendant could not raise an as-applied challenge to his sentence for the first time onappeal. Unlike facial challenges to statutes, as-applied challenges are dependent on thefacts and circumstances of each case and thus the appropriate place to raise the issueis in the trial court where the record can be adequately developed. Defendant thusforfeited this issue by failing to raise it in the trial court.


The court refused to address defendant’s sentencing argument but noted that hemight be able to raise this issue in a successive post-conviction petition.

3. Concerning the denial of the motion to file a successive petition, the AppellateCourt found that the trial court denied the motion without any mention of, let aloneany ruling on, defendant’s motion to supplement the record or the affidavit referencedin that motion. The trial court has discretion to allow amendments to post-convictionpetitions at any stage of the proceedings prior to the final judgment. 725 ILCS 5/122-5.

Since it was not clear whether the trial court was aware of the motion tosupplement, and since the trial court was in the best position to evaluate the meritsof defendant’s motion, the Appellate Court remanded the cause to the trial court for aruling on defendant’s request to supplement the record and any further proceedings thatmay be warranted.


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§9-1(f)People v. Miller, 2017 IL App (3d) 140977 (Nos. 3-14-0977 & 3-15-0364 cons., 6/5/17)

The trial court was not deprived of its authority to dismiss defendant’s second-stage post-conviction petition where the State captioned its responsive pleading as ananswer rather than a motion to dismiss. It is the substance of a pleading, not its caption,that identifies its nature. Here, the State conceded one issue in defendant’s post-conviction petition but challenged the validity of the remaining claims. And the Stateargued for dismissal of all but one claim at the dismissal hearing. The State’s responsivepleading thus did not merely admit or deny material facts. The trial court was thusempowered to dismiss defendant’s claims.

(Defendant was represented by Assistant Defender Mark Fisher, Ottawa.)

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§§9-1(f), 9-1(j)(2)People v. Schlosser, 2017 IL App (1st) 150355 (No. 1-15-0355, 6/23/17)

There is no constitutional right to the effective assistance of counsel in a post-conviction proceeding, but the Post-Conviction Hearing Act affords petitioners the rightto the reasonable assistance of counsel. The court concluded that where it had previouslyremanded the cause for additional second stage proceedings because appointed counselfailed to provide reasonable assistance, it was error for the trial to appoint the samedefense attorney on remand. The cause was remanded for appointment of a differentattorney and additional second stage proceedings.

The court also noted that counsel’s representation was deficient in several respects,including that there was no indication that counsel communicated with defendant afterthe original remand and that counsel failed to properly present defendant’s claims,properly complete the notice of appeal, and mail defendant a copy of the dismissal orderafter being ordered to do so by the trial court. The court also said that defendant didnot waive the issue by failing to request new counsel on remand where he was not presentat any court hearing and may not have known that the same attorney had beenreappointed to represent him.

(Defendant was represented by Assistant Defender Roxanna Mason, Chicago.)

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§9-1(g)People v. Williams, 2017 IL App (1st) 152021 (No. 1-15-2021, 6/30/17)

At a third-stage evidentiary hearing, the defendant must show by a preponderanceof the evidence a substantial violation of a constitutional right. The trial court acts as

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the trier of fact at the hearing, resolves conflicts in the evidence, and determines thecredibility of the witnesses and the weight to be given to the evidence. After a third-stagehearing involving fact-finding and credibility determinations, a trial court’s decisionwill be reversed only if it is manifestly erroneous.

Defendant alleged that his trial counsel was ineffective for failing to call threealibi witnesses. The three alibi witnesses testified at the evidentiary hearing andprovided defendant with an alibi. Defendant also testified about his alibi. At the closeof defendant’s evidence, the trial court granted the State’s motion for a directed finding.The court found none of defendant’s witnesses credible and concluded there was noreasonable probability that the outcome of trial would have been different if the witnesseshad testified about the alibi.

On appeal, defendant argued that it was procedurally improper for the trial courtto rule in the State’s favor without requiring it to present any evidence. Defendant arguedthat in the context of a motion for a directed finding, the trial court was required toconstrue all the evidence in the light most favorable to defendant and refrain frommaking any credibility determinations.

The Appellate Court rejected defendant’s attempt to apply the standard for adirected finding in a criminal trial to a third-stage evidentiary hearing. In a criminaltrial, a directed finding is only appropriate when the State’s evidence is insufficient tosupport a finding of guilt. Such a finding admits the truth of the State’s evidence andthe trial judge does not examine the weight of the evidence or witness credibility.

Actions under the Post-Conviction Hearing Act are, by contrast, “civil in character”and courts may enter orders as are “generally provided in civil cases.” 725 ILCS 5/122-5.Under the Code of Civil Procedure, when a defendant in a bench trial moves for a findingor judgment in his favor, the court must consider witness credibility and the weight andquality of the evidence in ruling on whether the plaintiff failed to make a prima faciecase. 735 ILCS 5/2-1110. The Appellate Court held that the trial court may utilize section2-1110 guidelines in ruling on a State’s motion for a directed finding in a third-stagepost-conviction case.

The Appellate Court held that the trial court in this case properly weighed thetotality of the evidence presented, including credibility determinations, and did not errin granting the State’s motion for a directed finding.

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

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§9-2(a)People v. Dalton, 2017 IL App (3d) 150213 (No. 3-15-0213, 6/9/17)

1. 735 ILCS 5/2-1401 provides a statutory procedure by which a final judgmentthat was entered more than 30 days but less than two years earlier can be vacated. Afternotice of a §2-1401 petition has been served, the responding party has 30 days to answeror otherwise plead in response to the petition. If the opposing party either responds orfails to answer within the 30-day period, the petition is ripe for adjudication.

A court can dismiss a petition despite the lack of a responsive pleading if thepetition is deficient as a matter of law. However, the court cannot sua sponte dismissa petition before the 30-day response period expires.

The trial court erred by sua sponte dismissing defendant’s §2-1401 petition beforethe expiration of the 30-day period for the State to respond. The court rejected the State’scontention that it waived the 30-day period because a prosecutor was present in courtwhen the petition was filed. The 30-day requirement applies unless there is a responsivepleading filed by the State or an express indication on the record of the State’s intentto waive the time allotted for a response and consent to an early decision on the merits.Mere silence by the prosecution does not constitute a waiver.

(Defendant was represented by Assistant Defender Fletcher Hamill, Elgin.)

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§9-5(b)Davila v. Davis, 582 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (2017) (No. 16-6219,6/26/17)

1. A defendant must exhaust state remedies before he presents his claim to afederal habeas court. A federal court may not review federal claims that wereprocedurally defaulted in state court. A defendant may overcome this bar if he can showcause to excuse his failure to comply with state procedural rules and actual prejudiceresulting from the constitutional error. To establish cause, a defendant must show thatsome objective factor external to his defense impeded his ability to comply with the state’sprocedural rules.

Attorney error is an objective external factor providing cause only if that erroramounts to a deprivation of the constitutional right to counsel since such error is imputedto the state. Attorney error that does not violate the constitution is attributed to thedefendant under principles of agency law. In proceedings where the constitution doesnot guarantee the assistance of counsel, attorney error cannot provide cause. Attorneyerror in a state post-conviction proceeding cannot supply cause since the constitutiondoes not guarantee the right to counsel in those proceedings.

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In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court created a narrowequitable qualification of the above rule that applies when state law requires defendantsto raise claims of ineffective assistance of trial counsel in state collateral proceedingsrather than on direct appeal. In those situations, procedural default will not bar a federalhabeas claim of ineffective assistance of trial counsel if the default resulted from theineffective assistance of counsel in the state collateral proceeding.

2. Defendant was convicted of murder for shooting and killing two people.Defendant confessed to the killings but stated that he wasn’t aiming at the people hekilled but at someone else. The trial court instructed the jury on transferred intent overtrial counsel’s objection. On direct appeal in state court, appellate counsel did notchallenge the transferred intent instruction. In state habeas proceedings, defendant’scounsel did not challenge appellate counsel’s failure to raise an issue about thetransferred intent instruction.

In federal habeas, defendant argued for the first time that appellate counsel wasineffective for failing to challenge the transferred intent instruction. Defendant concededthat he failed to raise his claim in state habeas but argued that Martinez should beextended to claims of ineffective assistance of appellate counsel that are procedurallydefaulted due to state habeas counsel’s ineffectiveness.

3. The Supreme Court disagreed and declined to extend Martinez to claimsagainst appellate counsel. Martinez was designed to be a narrow exception to the usualrules of procedural default. The criminal trial is the “main event” where defendants’rights are determined and the stakes are highest. The Martinez decision was premisedon the unique importance of trial rights, particularly the right to effective assistanceat trial, and thus the exception created by Martinez should be limited to errors by trialcounsel. Extending it to appellate counsel would turn a narrow exception into a generalrule.

Martinez was also premised on the equitable concern, unique to claims againsttrial counsel, that state courts could deliberately move the trial-ineffectiveness claimsoutside of the direct-appeal process, where counsel is constitutionally required, and thussignificantly diminish defendants’ ability to file such claims. No similar concern is presentwith respect to claims of ineffective appellate counsel which by their very nature cannotbe presented until after the direct appeal.

And finally, opening up claims against appellate counsel could flood the federalcourts with defaulted claims and constitute a serious intrusion on state sovereignty.Given the high systemic costs, the unique concerns of Martinez are not implicated incases involving appellate counsel.

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CONFESSIONS

§10-6(c)People v. Hernandez, 2017 IL App (1st) 150575 (No. 1-15-0575, modified upon denialof rehearing 6/9/17)

To determine whether a statement is attenuated from an illegal arrest, court’sconsider four factors: (1) proximity in time between the arrest and the statement; (2)presence of intervening circumstances; (3) Miranda warnings; and (4) flagrancy of policemisconduct. The presence of intervening circumstances and the flagrancy of policemisconduct are the most important of the these factors.

For purposes of its analysis, the Appellate Court accepted the trial court’s factualfindings from the attenuation hearing. The trial court found that (1) the duration ofdefendant’s interrogation was short, lasting less than six hours; (2) the phony gunshotresidue test, in which the officers staged a fake gunshot residue test to convincedefendant that he had residue on his hands, was the event which prompted defendantto confess; (3) the officer’s gave defendant Miranda warnings and defendant agreedto speak to them during the detention; and (4) the officers’ tone of voice was cordial anddefendant was not handcuffed. The trial court concluded that defendant’s statementwas sufficiently attenuated from the illegal arrest. The Appellate Court disagreed, findingthat defendant’s statement was not attenuated.

As to the first factor, temporal proximity, the court found that the six-hour lapseof time between defendant’s arrest and his confession was so short that it did not permitany attenuated reflection.

As to the second factor, intervening circumstances, the court found that the phonygunshot residue test could not be a proper intervening circumstance. First, it was a formof interrogation that was a consequence of the illegal arrest. And second the phony testwas itself a form of misconduct. It thus could not purge the taint of the illegal arrest.

As to the third factor, Miranda warnings, the court gave them little weight sincethe warnings occurred at the very beginning of the six-hour interrogation and were notrepeated.

As to the fourth factor, the court agreed that the trial court had properly consideredthe officers’ cordial tone during the detention and interrogation, but found that the trialcourt had not properly considered the flagrancy of the police misconduct during the arrestwhen over 20 officers arrived at defendant’s residence and handcuffed him. The courtalso found that the officers lacked probable cause at the time of the arrest and were onan expedition to find it.

The court suppressed defendant’s statement and remanded for a new trial.

(Defendant was represented by Assistant Defender Bryon Reina, Chicago.)Top

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COUNSEL

§13-4(b)(2)Jae Lee v. United States, 586 U. S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (2017) (No. 16-327, 6/23/17)

The Sixth Amendment guarantees a defendant the effective assistance of counselat critical stages of a criminal proceeding including when he enters a guilty plea. Todemonstrate the counsel was ineffective, a defendant must show that counsel’sperformance was deficient and that defendant was prejudiced as a result.

Defendant was charged with possessing ecstasy with intent to distribute.Defendant retained counsel and entered into plea negotiations with the prosecution.Defendant was not a United States citizen and he feared that a criminal conviction wouldaffect his status as a lawful permanent resident. His counsel assured him that thegovernment would not deport him if he pleaded guilty. So defendant, who had no defenseto the charge, accepted a guilty plea that carried a lesser sentence than he would havefaced at trial.

Unfortunately, counsel was wrong. The conviction meant that defendant wassubject to mandatory deportation. When defendant learned this he filed a motion tovacate his conviction arguing ineffective assistance of counsel.

The Supreme Court held that counsel provided ineffective assistance. Theprosecution conceded that counsel’s performance was deficient when he incorrectlyadvised defendant that he would not be deported. The only question was whetherdefendant could show prejudice. When counsel’s deficient performance led defendantto accept a guilty plea, a defendant shows prejudice by demonstrating that but forcounsel’s errors he would not have pled guilty.

Here the record shows that defendant would have rejected the plea had he knownthat it would lead to his deportation even though he had virtually no chance of prevailingat trial. Since deportation was the determinative factor for defendant, he demonstratedthat he would have rejected any plea leading to deportation in favor of taking a longshot at trial.

The case was remanded to allow defendant to withdraw his plea.

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§13-4(b)(4)People v. Dalton, 2017 IL App (3d) 150213 (No. 3-15-0213, 6/9/17)

Trial counsel provided ineffective assistance of counsel where he failed to raisea speedy trial issue on behalf of an in-custody defendant. More than 120 days after theoriginal charge, the State filed a more serious charge that was based on the same act.

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The court found that counsel had no strategic reason to fail to move to dismiss a chargewhich violated the right to a speedy trial, and that defendant would not have beenconvicted of the newly added offense had counsel made an appropriate motion.


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§13-4(b)(4)Weaver v. Massachusetts, ___ U. S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (2017) (No.16-240, 6/22/17)

Noting a conflict in authority, the U.S. Supreme Court held that when a violationof the right to a public trial is not preserved and raised on direct appeal, but is insteadraised for the first time on collateral review as a matter of ineffective assistance ofcounsel, the defendant is required to satisfy the prejudice requirement of Strickland.Here, defendant was unable to show prejudice from the trial court’s closure of thecourtroom to the public during jury selection.

1. Generally, if the government can show beyond a reasonable doubt that aconstitutional error did not contribute to the verdict, the error is deemed harmless andthe defendant is not entitled to reversal. However, “structural” errors are not subjectto the “harmless beyond a reasonable doubt” rule.

Structural errors are errors which define the framework of a criminal trial. UnderSupreme Court precedent, a violation of the right to a public trial is structural error.In addition, the right to a public trial includes a public hearing for jury selection. Becausethe courtroom may be closed where certain findings are made, however, the mere denialof a public hearing does not necessarily require a new trial. Furthermore, the right toa public trial may be violated due to the trial court’s failure to make the findings requiredfor closure rather than because the resulting hearing is unfair.

2. The fact that an error is structural means that the harmless error rule doesnot apply, but does not necessarily mean that reversal is required. Where an objectionis made and the issue is raised on direct appeal, the “automatic reversal” rule usuallyapplies whether or not the error had any effect on the outcome of the trial.

Where no objection is made at trial and the issue is raised on collateral reviewas ineffective assistance of counsel, the defendant must satisfy Strickland by showingboth deficient performance by counsel and prejudice. In most Strickland cases, prejudiceis defined as a reasonable probability that, but for counsel’s unprofessional errors, theresult of the proceeding would have been different. But the prejudice inquiry is not meantto be applied mechanically, and the concept of prejudice is defined differently dependingon the context. The court assumed without deciding that defendant could satisfy theprejudice requirement by showing that counsel’s failure to object to a violation of thepublic trial requirement rendered the trial fundamentally unfair.

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3. Where due to a lack of space the trial court closed the courtroom to everyonebut the prospective jurors, defendant could not establish that he was prejudiced bycounsel’s failure to object. Although it is possible that potential jurors might havebehaved differently had defendant’s family been present, there was no evidence or legalargument establishing prejudice in the sense of a reasonable probability of a differentoutcome had counsel objected to the closure. Similarly, there was no reason to believethat the failure to object to the closing of the courtroom resulted in a fundamentallyunfair proceeding. Under these circumstances, defendant failed to satisfy the prejudicerequirement of Strickland.

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§§13-5(a), 13-5(d)(3)(a)(2)People v. Brown, 2017 IL App (3d) 140921 (No. 3-14-0921, 6/29/17)

1. There are two types of conflicts of interest: per se and actual conflicts. A perse conflict exists in situations where defense counsel’s status alone creates a disablingconflict. Where a per se conflict exists, a defendant does not need to demonstrate anyprejudice. To show an actual conflict, defendant must show some specific defect incounsel’s strategy, tactics or decision making attributable to the conflict.

2. Prior to sentencing, defendant sent a letter to the court stating that he wantedto appeal his conviction. One reason was that a “witness of mine was not evoked to thecourt.” The court refused to consider defendant’s letter because he was represented bycounsel and it was premature.

At sentencing, in her oral motion to set aside the verdict, defense counsel adoptedthe claims in defendant’s letter. She further stated that “I wouldn’t know necessarilythere’s anything of substance in there,” but there was an allegation about a witness thatshe believed was the result of “communication issues.” Counsel explained that inpreparation for trial she asked defendant if he had any witnesses he wanted to call.Defendant mentioned two cousins who were occurrence witnesses, but did so in a mannerthat led counsel to believe that there was only one witness and that she could not belocated, so neither witness was called. Defendant believed both witnesses would be ableto testify to his innocence, but counsel did not offer any explanation about their possibletestimony.

The trial court found that miscommunication was not a proper basis to set asidea verdict and denied the motion. On appeal, defendant argued that his counsel had aper se and actual conflict of interest when she argued her own ineffectiveness. TheAppellate Court noted that decisions are split as to whether counsel’s allegation of herown ineffectiveness is a per se conflict of interest, but that it didn’t need to reach thatissue because under the facts of this case counsel had an actual conflict of interest.

3. Defense counsel’s motion to set aside the verdict was premised on a single issue:her own ineffectiveness in failing to call witnesses. To prevail on this claim, counsel

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needed to show that her performance was deficient and that but for that deficientperformance there was a reasonable likelihood that the result of trial would have beendifferent. To establish prejudice in such situations, a defendant must present affidavitsshowing what testimony the witnesses would provide. Without these affidavits, thereis no way to know whether the missing testimony would have impacted the outcomeof trial.

Counsel failed to make any reasonable effort with respect to either deficientperformance or prejudice. Instead of arguing that her performance had been deficient,counsel placed the blame on miscommunication. And counsel failed to provide anyaffidavits about or even describe the cousins’ expected testimony. Absent such evidence,the motion was fatally flawed. The court concluded that these clear and obvious defectsin counsel’s performance were attributable to the conflict of interest inherent in arguingher own ineffectiveness.

The court vacated the denial of defendant’s post-trial motion and the cause wasremanded for the appointment of conflict-free counsel.

(Defendant was represented by Assistant Defender Sean Conley, Ottawa.)

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§13-5(b)(2)People v. Nelson, 2017 IL 120198 (No. 120198, 6/15/17)

1. Where a defendant first raises a conflict of interest issue after trial a defendantmust demonstrate that an actual conflict of interest affected his counsel’s performance.In order to establish this, a defendant must first demonstrate that some plausiblealternative strategy might have been pursued. He need not show that it would havenecessarily been successful, but only that it was “a viable alternative.” Second, he mustshow that the alternative defense was inherently in conflict with or not undertaken dueto his counsel’s other loyalties.

2. Four women including defendant and co-defendant Hall had a confrontationwith a man, Wilson, at an apartment. Wilson left the apartment but when Hall thoughtthat he had stolen her cell phone, the four women went after Wilson. As they were leavingthe apartment, defendant grabbed a knife. Hall then took the knife from defendant.

When the women caught up with Wilson, he tackled one of them and all fourstarted hitting and kicking him. While they were hitting and kicking Wilson, Defendantsaw Hall stab him with the knife. Defendant told Hall to stop and tried to grab the knifeaway. The women then returned to the apartment. Wilson died from multiple stab andincision wounds.

3. Defendant and Hall were represented by attorneys from the same clinic in jointbut severed bench trials. Defendant’s counsel argued that she acted in self-defense

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because the women only attacked Wilson after he tackled one of them. The court founddefendant guilty of first degree murder.

On appeal, defendant argued that her attorneys labored under an actual conflictof interest where there was a plausible alternative defense based on lack of accountabil-ity, but since this defense was hostile to Hall’s defense, her attorneys could not pursueit and still maintain their loyalty to Hall. The Appellate Court rejected this argument,relying on the Illinois Supreme Court’s decision in Echols, which held that the mereavailability of an alternative strategy that would have helped defendant at the expenseof a co-defendant does not create a conflict of interest so long as there is a viable jointdefense.

4. The Supreme Court held that the categorical rule of Echols was no longer goodlaw. The rule does not consider whether the interests of co-defendants are at odds ina case where there is a plausible alternative strategy that would help one client but hurtanother. The Court thus overruled Echols.

5. But the Court affirmed defendant’s conviction finding that there was noplausible alternative strategy based on lack of accountability available in this case. Adefendant is legally accountable for another if she intends to promote or facilitate anoffense and aids or abets another in the planning or commission of the offenses. 720 ILCS5/5-2(c). Under the common-design rule, if two or more people engage in a commoncriminal design, any acts in furtherance of the design are considered to be acts of allthe parties. Thus a defendant may be accountable for first degree murder where sheenters a common design to commit battery yet a murder is committed by another duringthe course of the battery.

Here the four women had a common design to commit a criminal assault on Wilson.Under Illinois law, when Hall suddenly stabbed Wilson during the attack, defendantwas accountable for Hall’s acts under the common-design rule regardless of whetherdefendant told Hall to stop or grabbed the knife.

(Defendant was represented by Assistant Defender Emily Hartman, Chicago.)

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DISCOVERY

§15-1Turner v. U. S., ___ U. S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (2017) (No. 15-1503, 6/22/17)

Under Brady v. Maryland, 373 U. S. 83 (1963), due process is violated wherethe prosecution withholds evidence that is favorable to the defense and material to eitherguilt or punishment. Evidence is material within the meaning of Brady when thereis a reasonable probability that had the evidence been disclosed, the result of the

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proceeding would have been different. A reasonable probability of a different result isone in which the suppressed evidence undermines confidence in the outcome of the trial.

Considering the entire record, the court concluded that the withheld evidencewas too weak and too distant from the main evidentiary points to be material. For theevidence to have resulted in a different verdict, the trier of fact would have to find thatthe kidnapping, robbery and murder did not occur in a group attack. However, virtuallyevery witness agreed that there was a group attack, and to find otherwise would requirethe court to conclude that several defendants confessed falsely and several witnesseswere mistaken in their testimony. The court also concluded that undisclosedimpeachment evidence would not likely have changed the result where it was cumulativeof impeachment that was admitted.

Because there is no reasonable probability that the withheld evidence would havechanged the outcome of the trial, it was not material for Brady purposes. The convictionwas affirmed.

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DISORDERLY, ESCAPE, RESISTING AND OBSTRUCTING OFFENSES

§16-2People v. Jackson, 2017 IL App (1st) 142879 (No. 1-14-2879, 6/27/17)

1. A defendant commits battery when he knowingly makes physical contact ofan insulting or provoking nature with another person. 720 ILCS 5/12-3(a)(2). A defendantresists a police officer when he knowingly resists the performance of a person knownto be a peace officer. 720 ILCS 5/31-1(a). A defendant acts knowingly when he isconsciously aware that a result is practically certain to be caused be his conduct. 720ILCS 5/4-5(b). A defendant’s knowing state of mind may be proved through circumstantialevidence and may be inferred from a defendant’s actions and the conduct surroundingit.


Since defendant was agitated and not acting rationally, the paramedics calledthe police for assistance. When the first officer arrived, defendant was inside theapartment building’s vestibule screaming profanities and saying “I’m not going.” Theparamedics told the officer that defendant was mentally unstable and possibly underthe influence of drugs. The officer tried to calm defendant, but when he reached fordefendant’s shoulder, defendant pulled away, fell to the floor, and began punching and

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kicking in defense. The officer tried but failed to handcuff defendant. He then used histaser on defendant about 10 times but it had “no affect whatsoever.”







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DOUBLE JEOPARDY

§§17-1, 17-4People v. Crosby, 2017 IL App (1st) 121645 (No. 1-12-1645, 6/13/17)

The offense of armed habitual criminal is committed where a person possessesa firearm after being previously convicted of two or more of several offenses, includingforcible felonies. Defendant was charged with being an armed habitual criminal basedon a 2001 conviction for aggravated unlawful use of a weapon and a 2003 convictionfor aggravated battery of a police officer. Defendant was also charged with one countof unlawful use of a weapon by a felon based on the 2001 conviction and one count ofUUWF based on the 2003 conviction.

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Before trial, the State nolle prossed the UUWF count based on the 2001 conviction,and proceeded to trial on the armed habitual criminal count and the UUWF based onthe 2003 aggravated battery. The parties stipulated that the two prior felonies werequalifying offenses under the armed habitual criminal statute. Defendant was convictedof armed habitual criminal but acquitted of UUWF.

1. The Appellate Court concluded that despite defense counsel’s stipulation,aggravated battery of a peace officer is neither a forcible felony nor a specified offenseunder the armed habitual criminal statute. Therefore, the 2003 aggravated battery ofa peace officer cannot serve as a predicate felony for armed habitual criminal.

2. The court rejected the State’s argument that it should reduce the convictionfor armed habitual criminal to the lesser included offense of UUWF. Although defendantwas acquitted of UUWF based on the 2003 conviction, the State argued that a convictioncould be entered for UUWF based on the 2001 conviction that had been nolle prossedbefore trial.

The court found that when the State prosecuted defendant for UUWF premisedon the 2003 conviction, it had the burden to prove the same elements as UUWF basedon the 2001 conviction. Because the jury elected to acquit defendant of unlawful useof a weapon by a felon as it was prosecuted at trial, double jeopardy would be violatedif the armed habitual criminal conviction was reduced to UUWF even if based on adifferent predicate.

(Defendant was represented by Assistant Defender Patrick Cassidy, Chicago.)

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EVIDENCE

§§19-2(a), 19-2(b)(2), 19-11, 19-28(b)People v. Kent, 2017 IL App (2d) 140917 (No. 2-14-0917, 6/27/17)

1. As a matter of first impression in Illinois, the Appellate Court held that in orderto authenticate a Facebook post for admission in a criminal trial, the proponent mustproduce evidence that is sufficient to allow a reasonable juror to find that the evidenceis in fact what it is claimed to be. Evidence of authentication may be direct orcircumstantial, but the most common form is the testimony of a witness with knowledgeof the nature of the evidence. In addition, some evidence can be authenticated by thecombination of all the relevant circumstances and the distinctive characteristics of theitem such as appearance, contents, substance, or internal patterns.

2. Defendant was charged with a murder in which the decedent was killed in hisdriveway. A police officer testified that on the day after the offense, he used a fake profileto search Facebook. He testified that he found a profile under a name and nicknamethat were similar to defendant’s along with a photograph which resembled defendant

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and an undated posting which stated that “its my way or the highway . . . leave em deadn his driveway.” The officer did not know when the post had been created, but he testifiedthat it was deleted later the same day.

The court concluded that there was no evidence to justify a reasonable conclusionthat defendant created the post or was responsible for it. Thus, the foundation wasinsufficient to justify use of the Facebook post as an admission by defendant. Defendantdid not admit to creating the Facebook profile or making the post, and was not observedcomposing the communication. The State presented no Facebook records to indicate thatthe IP address used to create the profile or the post was in any way associated withdefendant, and failed to even connect defendant to the last name used in the profile.

The court acknowledged that there was some circumstantial evidence ofauthentication in defendant’s nickname, the fact that the decedent was killed in hisdriveway, and the photograph allegedly resembling defendant, but noted that the recordfailed to show that such matters were not public knowledge which could have been usedto create the profile without defendant’s awareness. The court stressed the ease ofcreating false Facebook pages and the fact that no verification of identify is requiredto create a Facebook profile. Even the detective’s testimony that the post had been“deleted” is questionable, as the person who created the post could have changed theprivacy settings in a way that merely denied public access to it.

The court stated, “At best, the photograph and the name on the Facebook profileare about defendant and not evidence that defendant himself had created the post orwas responsible for its contents. . . . The ease in fabricating a social media account tocorroborate a story means that more than a ‘simple name and photograph’ are requiredto sufficiently link the communication to the purported author.”

Because the trial court improperly admitted the Facebook post, and because theState argued the existence of the post as an admission by defendant that he hadcommitted the murder, reversible error occurred. The conviction was reversed and thecause remanded for a new trial.

(Defendant was represented by Assistant Defender Christopher McCoy, Elgin.)

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§19-6People v. Evans, 2017 IL App (1st) 150091 (No. 1-15-0091, 6/27/17)

Generally, a trial court may aid in bringing out the truth in a fair and impartialmanner. A court may ensure that certain facts have been developed or a certain lineof inquiry has been pursued as long as the court does not become an advocate for oneside or the other. A court may call its own witnesses and question witnesses called byeither party. But the court may not assume the role of an advocate.

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A court does not assume the role of a prosecutor by suggesting that the Statepresent evidence proving essential elements of an offense. Courts may permit the Stateto reopen its case to present additional evidence and may reopen a case on its own motionwhere there is a sound basis for doing so.

Here, after the State had rested its case in rebuttal during a bench trial, the trialcourt stated that it wanted to see the wallet that had been recovered from defendant.The court continued the case until the next day and the State introduced the wallet whichcontained evidence incriminating defendant.

The Appellate Court held that the trial court did not abandon its role as a neutralmagistrate and assume the role of a prosecutor by asking the State to presentcorroborating evidence after the State had rested its case. The court’s request to see thewallet was not an extraordinary course of action and it was done in a fair and impartialmanner. Since this was a bench trial, the court possessed a wide latitude in relationto its fact-finding role and it did not assume the role of a prosecutor by asking to seethe wallet.

Defendant’s conviction was affirmed.

(Defendant was represented by Assistant Defender Kieran Wiberg, Chicago.)

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GUILTY PLEAS

§24-3Jae Lee v. United States, 586 U. S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (2017) (No. 16-327, 6/23/17)

The Sixth Amendment guarantees a defendant the effective assistance of counselat critical stages of a criminal proceeding including when he enters a guilty plea. Todemonstrate the counsel was ineffective, a defendant must show that counsel’sperformance was deficient and that defendant was prejudiced as a result.

Defendant was charged with possessing ecstasy with intent to distribute.Defendant retained counsel and entered into plea negotiations with the prosecution.Defendant was not a United States citizen and he feared that a criminal conviction wouldaffect his status as a lawful permanent resident. His counsel assured him that thegovernment would not deport him if he pleaded guilty. So defendant, who had no defenseto the charge, accepted a guilty plea that carried a lesser sentence than he would havefaced at trial.

Unfortunately, counsel was wrong. The conviction meant that defendant wassubject to mandatory deportation. When defendant learned this he filed a motion tovacate his conviction arguing ineffective assistance of counsel.

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The Supreme Court held that counsel provided ineffective assistance. Theprosecution conceded that counsel’s performance was deficient when he incorrectlyadvised defendant that he would not be deported. The only question was whetherdefendant could show prejudice. When counsel’s deficient performance led defendantto accept a guilty plea, a defendant shows prejudice by demonstrating that but forcounsel’s errors he would not have pled guilty.

Here the record shows that defendant would have rejected the plea had he knownthat it would lead to his deportation even though he had virtually no chance of prevailingat trial. Since deportation was the determinative factor for defendant, he demonstratedthat he would have rejected any plea leading to deportation in favor of taking a longshot at trial.

The case was remanded to allow defendant to withdraw his plea.

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§24-8(a)People v. Griffin, 2017 IL App (1st) 143800 (No. 1-14-3800, 6/27/17)




The denial of defendant’s motion to correct the mittimus, however, was not a finalappealable order. An order is final and appealable if it determines the litigation on themerits. Here, the orders that determined the litigation on the merits were the judgmentsentered against defendant pursuant to his guilty plea. When the trial court denied themotion to correct the mittimus, it found that it had committed no error in entering theearlier judgments and therefore left them in place. The trial court did not enter any new

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judgments. Hence there was no final appealable order when the trial court denieddefendant’s motion.



4. The court also held that the doctrine of revestment did not apply in this case.The doctrine permits the parties to revest a court with jurisdiction by activelyparticipating without objection in proceedings that are inconsistent with the merits ofthe prior judgment. But revestment does not permit review of a defendant’s claim onappeal where he pled guilty and failed to file a 604(d) motion.




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HOMICIDE

§26-7(a)People v. Bardsley, 2017 IL App (2d) 150209 (No. 2-15-0209, 6/8/17)

Although even slight evidence of self defense is sufficient to allow considerationof the defense by the trier of fact, self defense is an affirmative defense that must beraised by the defendant. Once the defendant has adequately raised the affirmativedefense of self-defense, the State must rebut the claim beyond a reasonable doubt.

In other words, although a claim of self defense may be based on the State’sevidence, the mere existence of such evidence does not trigger the requirement that theprosecution disprove the defense. The defendant is required to raise an affirmativedefense in order to avoid forfeiting it, even if the evidence on which the defense is basedis contained solely in the proof presented by the State.

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Because the defendant did not raise self-defense in the trial court, he forfeitedthat defense despite the fact that the State’s evidence contained a basis to support it.The prosecution had no burden to disprove the defense at trial, and defendant couldnot raise it for the first time on appeal.

Defendant’s conviction of aggravated assault of a private security officer wasaffirmed.

(Defendant was represented by Assistant Defender Erin Johnson, Elgin.)

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INSANITY - MENTALLY ILL - INTOXICATION

§30-1(a)McWilliams v. Dunn, ___ U. S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (2017) (No. 16-5294,6/19/17)

Under Ake v. Oklahoma, 470 U. S. 68 (1985), an indigent defendant whodemonstrates that his sanity at the time of the offense is a significant factor at trial isentitled to access to a competent psychiatrist to conduct an appropriate examinationand to assist in evaluation, preparation, and presentation of the defense. The prosecutionfailed to meet the requirements of Ake at a death penalty hearing where, at the requestof defense counsel, the trial court appointed a psychiatrist to examine defendant butrefused to grant a continuance or appoint an expert to consult with defense counselconcerning defendant’s psychological records. Ake requires not merely an evaluation,but also expert assistance in reviewing mental health records.

The court rejected the prosecution’s argument that Ake was satisfied by thevoluntary assistance of a psychologist who helped the defense “in her spare time” andwho apparently suggested that the defense request additional testing. “Even if theepisodic assistance of an outside volunteer could relieve the State of its constitutionalduty to ensure an indigent defendant access to meaningful expert assistance,” there isnothing on the record to indicate that the volunteer was available during the sentencinghearing or provided help at that stage.

Because the State failed to satisfy the basic requirements of Ake at the deathhearing, the cause was remanded for further proceedings.

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JUDGE

§31-1(a)People v. Evans, 2017 IL App (1st) 150091 (No. 1-15-0091, 6/27/17)

Generally, a trial court may aid in bringing out the truth in a fair and impartialmanner. A court may ensure that certain facts have been developed or a certain lineof inquiry has been pursued as long as the court does not become an advocate for oneside or the other. A court may call its own witnesses and question witnesses called byeither party. But the court may not assume the role of an advocate.

A court does not assume the role of a prosecutor by suggesting that the Statepresent evidence proving essential elements of an offense. Courts may permit the Stateto reopen its case to present additional evidence and may reopen a case on its own motionwhere there is a sound basis for doing so.

Here, after the State had rested its case in rebuttal during a bench trial, the trialcourt stated that it wanted to see the wallet that had been recovered from defendant.The court continued the case until the next day and the State introduced the wallet whichcontained evidence incriminating defendant.

The Appellate Court held that the trial court did not abandon its role as a neutralmagistrate and assume the role of a prosecutor by asking the State to presentcorroborating evidence after the State had rested its case. The court’s request to see thewallet was not an extraordinary course of action and it was done in a fair and impartialmanner. Since this was a bench trial, the court possessed a wide latitude in relationto its fact-finding role and it did not assume the role of a prosecutor by asking to seethe wallet.


(Defendant was represented by Assistant Defender Kieran Wiberg, Chicago.)

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JURY

§32-3(a)People v. Gatlin, 2017 IL App (1st) 143644 (No. 1-14-3644, 6/8/17)

Defendant was charged with separate but related criminal cases. The State electedto proceed on one of the cases (14 CR 4616), while the second (14 CR 4615) was continuedfor several status dates. On the day 14 CR 4616 was set for trial, defendant entered ajury waiver. The written waiver form referred only to 14 CR 4616.

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After the jury waiver was entered, the State moved to join the cases on the groundthat both the cases arose from one incident. Over defense counsel’s objection, the caseswere joined. Defense counsel declined the trial judge’s offer of more time to prepare, anda bench trial was held immediately concerning both cases.

The Appellate Court held that the jury waiver was insufficient as to 14 CR 4615.The court noted that the written jury waiver and the trial court’s admonishments referredonly to 14 CR 4616, which was the only case set for trial when the waiver was entered.Once the cases were joined, the trial judge did not admonish defendant concerning hisright to a jury trial in 14 CR 4615. In fact, the only admonishment concerning a jurytrial in that case occurred several months earlier at the arraignment. Under thesecircumstances, it was clear that the waiver in 14 CR 4616 did not encompass 14 CR 4615.

The court rejected the argument that defendant knowingly and understandablywaived his right to a jury trial in 14 CR 4615 because he did not object when defensecounsel declined an offer of more time to prepare and a bench trial began. First, it cannotbe assumed that defendant knew that he had a right to a jury trial in 14 CR 4615 afterhe waived that right in 14 CR 4616. Second, defense counsel made no statements indefendant’s presence indicating that he was waiving his right to a jury trial in 14 CR4615. Finally, the trial court did not clarify that defendant had a right to a jury trialin 14 CR 4615.

Because the right to a jury trial is a fundamental right afforded to criminaldefendants by both the federal and state constitutions, the court concluded that thefailure to obtain a knowing and voluntary jury waiver in 14 CR 4615 qualifies as plainerror under the second prong of the plain error doctrine.

(Defendant was represented by Assistant Defender Brett Zeeb, Chicago.)

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§32-4(a)People v. Dismuke, 2017 IL App (2d) 141203 (No. 2-14-1203, 6/9/17)

Supreme Court Rule 431(b) requires trial courts to ascertain whether each juror“understands and accepts several principles, including the presumption of innocence,that the State has the burden of proof, that defendant is not required to offer evidenceon his own behalf, and the defendant’s failure to testify cannot be used against him.”The court concluded that the trial court did not comply with Rule 431(b) where it gaveconfusing and inconsistent instructions concerning whether prospective jurors were toraise their hands or keep them lowered to indicate their “difficulty or disagreement”and failed to take any steps to ascertain whether the jurors “understood” the principles.The Appellate Court found that the trial court could have complied with Rule 431(b)in a more simple manner by merely reciting the principles and asking the potential jurorswhether they understood and accepted them.

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The court concluded that the evidence was closely balanced, and that the errortherefore constituted plain error under the first prong of the plain error test.

(Defendant was represented by Assistant Defender Sherry Silvern, Elgin.)

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§32-4(a)People v. Sebby, 2017 IL 119445 (No. 119445, 6/2/17)

1. There are two kinds of plain error: (1) when a clear error occurs and the evidenceis so closely balanced that the error alone threatened to tip the scales of justice againstthe defendant, regardless of the seriousness of the error; and (2) when a clear error occursand the error is so serious that it affected the fairness of the defendant’s trial andchallenged the integrity of the judicial process, regardless of the closeness of the evidence.

Under the first prong of plain error, if the evidence is closely balanced, prejudiceis not presumed; the error is actually prejudicial. A defendant who has shown clear errorand closely balanced evidence has shown prejudice and is entitled to relief. Indetermining whether the evidence was closely balanced, a reviewing court must evaluatethe totality of the evidence and conduct a qualitative, commonsense assessment of theevidence within the context of the case.

Defendant was convicted of resisting a peace officer following a jury trial. In a4-3 decision, the Illinois Supreme Court held that the trial court’s failure to comply withRule 431(b) constituted plain error under the first prong of the plain error analysis.

2. The parties agreed that the trial court violated Illinois Supreme Court Rule431(b), which requires the court to ask potential jurors whether they “understand andaccept” the four Zehr principles: (1) defendant is presumed innocent; (2) the State mustprove defendant guilty beyond a reasonable doubt; (3) defendant does not have to offerany evidence on his behalf; and (4) if defendant does not testify it cannot be held againsthim. Here the trial court asked jurors whether they “had any problems with” or “believedin” the Zehr principles. The Illinois Supreme Court held that this was clear error.

3. The court also held that the evidence was closely balanced. Both sides presenteda plausible version of events concerning the issue of whether defendant knowinglyresisted the performance of a known police officer’s authorized acts and whether thatviolation was the proximate cause of injury to the officer. 720 ILCS 5/31-1(a), (a-7). Thetestimony of the State’s witnesses was largely consistent, but so was the testimony ofthe defense witnesses. Neither side presented accounts that were fanciful. The outcomeof the case thus turned on how the trier of fact resolved a contest of credibility. And sinceboth sides were credible, the evidence was closely balanced.

Since there was clear error and the evidence was closely balanced, defendantestablished plain error under the first prong. The court rejected the State’s argument

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that the closeness of the evidence is only one consideration in deciding whether therewas prejudice. The State’s argument would impermissibly add the seriousnessrequirement of the second prong onto the closeness requirement of the first prong to“yield a hybrid requirement.” The State’s argument ignores the fact that “prejudice restsnot upon the seriousness of the error but upon the closeness of the evidence.” An erroris prejudicial when it occurs in a close case because its impact on the result is potentiallydispositive.

The court reversed defendant’s conviction and remanded for a new trial.

(Defendant was represented by Assistant Defender Editha Rosario-Moore, Ottawa.)

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§32-8(a)People v. Nere, 2017 IL App (2d) 141143 (No. 2-14-1143, 6/29/17)

Under the drug-induced homicide statute, the State must prove that defendantdelivered a controlled substance to another person and that person’s death was causedby the ingestion of that substance. 720 ILCS 5/9-3.3(a). The State charged defendantwith drug-induced homicide by delivering heroin to the victim where the ingestion ofthat heroin caused her death.

The facts showed that defendant sold heroin and cocaine to the victim and thevictim died as a result of using both substances. An expert testified that either heroinor cocaine alone can cause death. Defendant argued in closing arguments that the Statefailed to prove that the heroin defendant sold to the victim caused her death.

The trial court instructed the jury that a defendant commits drug-induced homicidewhen she delivers heroin to another person and that person’s death is caused by ingestingany amount of that substance. IPI Nos. 7.27, 7.28. The court also instructed the jurythat defendant’s acts must be “a contributing cause” of death, but did not need to be“the sole and immediate cause of death.” IPI No. 7.15.

The court refused defendant’s proposed non-IPI instruction that would havereplaced the phrase “contributing cause” with “proximate cause.” The court also refuseddefendant’s instruction defining proximate cause as “a cause that directly produces anevent and without which the event would not have occurred.” The jury found defendantguilty and on appeal defendant argued that the trial court improperly refused herinstructions.

The Appellate Court criticized the IPI instructions given to the jury. The courtnoted that the use of the term “contributing cause” invited the jury to convict based ona spurious theory of causation that only required the jury to find that defendant acts“could have” caused death.

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But ultimately the Appellate Court found that the trial court did not abuse itsdiscretion in refusing defendant’s instructions. Although the term “contributing causemight well deserve to be retired,” it is “still in active service,” and the IPI instructions“for all of [their] serious deficiencies” are still in use as well. Noting that the trial courtfaced a difficult choice, the Appellate Court held that the court did not abuse itsdiscretion.


§32-8(e)People v. Bardsley, 2017 IL App (2d) 150209 (No. 2-15-0209, 6/8/17)

Although even slight evidence of self defense is sufficient to allow considerationof the defense by the trier of fact, self defense is an affirmative defense that must beraised by the defendant. Once the defendant has adequately raised the affirmativedefense of self-defense, the State must rebut the claim beyond a reasonable doubt.

In other words, although a claim of self defense may be based on the State’sevidence, the mere existence of such evidence does not trigger the requirement that theprosecution disprove the defense. The defendant is required to raise an affirmativedefense in order to avoid forfeiting it, even if the evidence on which the defense is basedis contained solely in the proof presented by the State.

Because the defendant did not raise self-defense in the trial court, he forfeitedthat defense despite the fact that the State’s evidence contained a basis to support it.The prosecution had no burden to disprove the defense at trial, and defendant couldnot raise it for the first time on appeal.

Defendant’s conviction of aggravated assault of a private security officer wasaffirmed.

(Defendant was represented by Assistant Defender Erin Johnson, Elgin.)

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KIDNAPPING, UNLAWFUL RESTRAINT AND RELATED OFFENSES

§34-3People v. Cole, 2017 IL App (2d) 160334 (No. 2-16-0334, 6/29/17)

A defendant who is the father of a child commits child abduction where heintentionally conceals, detains, or removes the child without the mother’s consent. 720

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ILCS 5/10-5(b)(3)(B). The State must prove that defendant knows the mother did notconsent.

Defendant, the father of DC, and DC’s mother were in an on-and-off datingrelationship. One evening defendant came over to visit DC. The mother would not letdefendant stay overnight but agreed to let him take DC to breakfast in the morning.Defendant left and then returned at 3:30 am. The mother let him in and defendant wentto DC’s bedroom. Defendant picked DC up asleep and took him out to his truck and droveoff. Defendant did not say where he was taking DC or when he would return. The mothersaid nothing to defendant because it happened so fast. After defendant left, the mothercalled the police. A few hours later, defendant called the mother. She told defendantto bring DC home, which he did.

The Appellate Court held that the State failed to prove defendant guilty of childabduction. It held that no rational trier of fact could have concluded that the motherdid not consent to defendant taking DC. The night before she had explicitly tolddefendant he could take DC to breakfast in the morning. Although the mother wasunhappy with defendant’s unreasonably early arrival, she never objected to defendantleaving with DC. No rational trier of fact would believe a mother who was objecting toher child’s removal would remain completely silent under these circumstances.

Defendant’s conviction was reversed outright.

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NARCOTICS

§35-1People v. Nere, 2017 IL App (2d) 141143 (No. 2-14-1143, 6/29/17)

Under the drug-induced homicide statute, the State must prove that defendantdelivered a controlled substance to another person and that person’s death was causedby the ingestion of that substance. 720 ILCS 5/9-3.3(a). The State charged defendantwith drug-induced homicide by delivering heroin to the victim where the ingestion ofthat heroin caused her death.

The facts showed that defendant sold heroin and cocaine to the victim and thevictim died as a result of using both substances. An expert testified that either heroinor cocaine alone can cause death. Defendant argued in closing arguments that the Statefailed to prove that the heroin defendant sold to the victim caused her death.

The trial court instructed the jury that a defendant commits drug-induced homicidewhen she delivers heroin to another person and that person’s death is caused by ingestingany amount of that substance. IPI Nos. 7.27, 7.28. The court also instructed the jurythat defendant’s acts must be “a contributing cause” of death, but did not need to be“the sole and immediate cause of death.” IPI No. 7.15.

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The court refused defendant’s proposed non-IPI instruction that would havereplaced the phrase “contributing cause” with “proximate cause.” The court also refuseddefendant’s instruction defining proximate cause as “a cause that directly produces anevent and without which the event would not have occurred.” The jury found defendantguilty and on appeal defendant argued that the trial court improperly refused herinstructions.

The Appellate Court criticized the IPI instructions given to the jury. The courtnoted that the use of the term “contributing cause” invited the jury to convict based ona spurious theory of causation that only required the jury to find that defendant acts“could have” caused death.

But ultimately the Appellate Court found that the trial court did not abuse itsdiscretion in refusing defendant’s instructions. Although the term “contributing causemight well deserve to be retired,” it is “still in active service,” and the IPI instructions“for all of [their] serious deficiencies” are still in use as well. Noting that the trial courtfaced a difficult choice, the Appellate Court held that the court did not abuse itsdiscretion.


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PROSECUTOR

§41-1People v. Ringland, Saxen, et al, 2017 IL 119484 (No. 119484, 6/29/17)

1. 55 ILCS 5/3-9005(b) provides that the State’s Attorney is authorized to appointspecial investigators to serve subpoenas, make return of process, and conductinvestigations which assist the State’s Attorney in the performance of his or her duties.In addition, State’s Attorneys have both the specified powers and duties listed by 55ILCS 5/3-9005(a)(11) and common-law powers and duties vested by the Illinoisconstitution.

Generally, Illinois common law recognizes that a State’s Attorney has anaffirmative duty to investigate and determine whether an offense has been committed.That duty is subject to a significant limitation, however, because the State’s Attorneyordinarily defers to law enforcement agencies to investigate criminal acts. Thus, theState’s Attorney has a common law duty to affirmatively investigate suspected illegalactivity only if the possible offense is not being adequately investigated by other agenciesor a law enforcement agency asks the State’s Attorney for assistance.

2. The court concluded that the LaSalle County State’s Attorney erred by creatinga State’s Attorney Felony Enforcement (SAFE) unit for the purpose of patrollinginterstates in LaSalle County, making traffic stops, and issuing tickets for suspected

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controlled substance offenses. Although the State’s Attorney testified at the suppressionhearing concerning the creation of the unit, he did not claim that any law enforcementagency was deficient in investigating suspected controlled substance offenses on LaSalleCounty interstates. Similarly, the State’s Attorney did not state that he had receivedrequests for assistance from any law enforcement agencies. The court also noted thetrial court’s finding that the SAFE unit was not following up on cases initiated by lawenforcement agencies, but “actually going out and seeking complaints by making pettytraffic stops and petty offenses.”

The court rejected the State’s argument that the SAFE unit was permitted because§5/3-9005(b) authorizes special investigators to conduct investigations which assist theState’s Attorney in the performance of his or her duties. Because a State’s Attorney couldclaim a common law duty to investigate all crimes and authorize special investigatorsto conduct investigations into all illegal activity, the State’s argument would allow theformation of 102 county police forces, each directed by a State’s Attorney, and rendersuperfluous the three statutory functions of State’s Attorney’s special investigators. Thecourt concluded that the legislature did not intend to authorize county police forcesoperating at the behest of each State’s Attorney.

The court concluded that it need not address several issues, including whether:(1) the common law would allow State’s Attorney’s investigators to patrol highways toseek out offenses if there had been a request for assistance or a finding that other lawenforcement agencies were inadequately dealing with suspected criminal activity, and(2) the impropriety of an investigator’s appointment would justify suppression of evidencethat had been seized by that investigator.

Because the LaSalle County State’s Attorney’s SAFE unit was unauthorized byIllinois law where there was no showing that law enforcement agencies wereinadequately investigating controlled substance offenses or that any law enforcementagency had asked the State’s Attorney for assistance, the trial court’s order grantingdefendant’s motion to suppress was affirmed.

(Defendant Saxen was represented by Assistant Defender Dimitri Golfis, Ottawa.)

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REASONABLE DOUBT

§42-1People v. Jackson, 2017 IL App (1st) 142879 (No. 1-14-2879, 6/27/17)

1. A defendant commits battery when he knowingly makes physical contact ofan insulting or provoking nature with another person. 720 ILCS 5/12-3(a)(2). A defendantresists a police officer when he knowingly resists the performance of a person knownto be a peace officer. 720 ILCS 5/31-1(a). A defendant acts knowingly when he isconsciously aware that a result is practically certain to be caused be his conduct. 720

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ILCS 5/4-5(b). A defendant’s knowing state of mind may be proved through circumstantialevidence and may be inferred from a defendant’s actions and the conduct surroundingit.


Since defendant was agitated and not acting rationally, the paramedics calledthe police for assistance. When the first officer arrived, defendant was inside theapartment building’s vestibule screaming profanities and saying “I’m not going.” Theparamedics told the officer that defendant was mentally unstable and possibly underthe influence of drugs. The officer tried to calm defendant, but when he reached fordefendant’s shoulder, defendant pulled away, fell to the floor, and began punching andkicking in defense. The officer tried but failed to handcuff defendant. He then used histaser on defendant about 10 times but it had “no affect whatsoever.”







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SEARCH & SEIZURE

§§44-1(c)(2), 44-9People v. Bonilla, 2017 IL App (3d) 160457 (No. 3-16-0457, 6/14/17)

In Burns, 2016 IL 118973, the Illinois Supreme Court held that a police dog sniffof the front door of the defendant’s apartment was an illegal search without a warrantwhere the police were inside the locked common-area landing of the apartment building.The court emphasized that the common area was locked and was not open to the generalpublic. The court commented that the result might be different if the common area wasreadily accessible to the public.

Here the police brought a drug-detection dog to defendant’s apartment building.The exterior doors leading to the common area were not locked and there was nothingthat would prevent any member of the public from entering the common area. The police,who had no warrant, entered the common area and brought the dog to the door ofdefendant’s apartment. The dog alerted to the presence of drugs, the police obtaineda warrant, searched defendant’s apartment and recovered illegal drugs.

The Appellate Court, with one justice dissenting, held that the warrantless dogsniff was an illegal search. Other than the unlocked status of the building, the policeconduct in this case was virtually identical to the conduct in Burns. Considering thelevel of protection that has been afforded to the home under the Fourth Amendment,the court could not conclude that a person who lives in an unlocked apartment buildingis entitled to less protection than a person who lives in a locked building. That defendantlacked an absolute right to exclude all others from the hallway did not mean that hehad no reasonable expectation of privacy against a dog sniff directly in front of his door.

The court also held that the good faith exception did not apply in this case. Indetermining whether this exception applies, courts must determine whether a reasonablywell-trained officer would have known that the search in question was illegal. At thetime of the search in this case, 2015, the United States Supreme Court had already ruledin Florida v. Jardines, 133 S.Ct. 1409 (2013) that a warrantless dog sniff at the frontdoor of a residence was illegal.

The trial court’s judgment suppressing the evidence was affirmed.

(Defendant was represented by Assistant Defender Katherine Strohl, Ottawa.)

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§§44-1(c)(2), 44-4(b), 44-6(a), 44-6(e)People v. Horton, 2017 IL App (1st) 142019 (No. 1-14-2019, modified upon denial ofrehearing 6/6/17)

As two officers were driving down the street one of the officers saw defendant infront of a house with a “metallic object” that may have been a gun in his waistband.The officers stopped the car and got out. Defendant ran inside the house and locked thedoor. The officers found keys on the front porch and unlocked the door. They enteredthe house and went upstairs where they found defendant in a bedroom crouched by theside of a bed. One officer entered the bedroom with his gun drawn. He told defendantto raise his hands and come out. When defendant complied, the officer took defendantdownstairs while the other officer searched the bedroom, saw a bulge in the mattress,and found a gun underneath the mattress.

The Appellate Court held that the officers did not have probable cause to arrestdefendant. Although Illinois prohibited the possession of an operable, uncased, loadedand immediately accessible handgun in public at the time of the arrest, that statutewas later declared facially unconstitutional in Aguilar, 2013 IL 112116. A faciallyunconstitutional statute is void ab initio, which means that it as if that law had neverbeen passed. Accordingly, post-Aguilar the observation of a handgun is not enough initself to provide probable cause to arrest.

The court also held that although the officers acted in “objectively reasonablereliance” on a subsequently invalidated law, there is no good-faith exception to theexclusionary rule under the Illinois constitution in situations where police rely on astatute that is later found to be facially unconstitutional. People v. Krueger, 175 Ill.2d60 (1996).

Finally, the court held, with one justice dissenting, that the officers actions heredid not constitute a proper Terry stop. The dissent argued that the officers could havebelieved that defendant possessed a gun without a valid FOID card and thus properlystopped defendant to see if he was carrying the gun legally. The court rejected thisreasoning, holding that the officers had no articulable basis for believing that defendantdid not have a FOID card. And even if a Terry stop had been proper, the officers lackedboth probable cause and exigent circumstances to enter the house. Exigent circumstancesdid not exist because a gun is not as disposable as money or drugs.

And the court did not assign much weight to defendant’s flight. The court notedthat considering the “reality of law enforcement in today’s racially charged environment”where young black men are the disproportionate targets of police stops and other negativeinteractions, “it is not difficult to imagine why a young black man...would quickly moveinside when seeing a police car” pull up.

Defendant’s conviction was reversed.

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§§44-1(c)(2), 44-9, 44-10(a)People v. Martin, 2017 IL App (1st) 143255 (No. 1-14-3255, 6/12/17)

1. Defendant’s mother owned a two-flat building. She lived in the first floorapartment and the second floor apartment was vacant. Defendant often stayed overnightin the first floor apartment. The two-flat had a locked outer door that led to a privatevestibule that had doors leading to each of the apartments.

The police saw defendant standing in a vacant lot next to the two-flat. A manapproached defendant and raised his index finger. Defendant went up on the two-flat’sporch, reached inside the doorway to the vestibule, which was slightly ajar, and retrieveda blue plastic bag. He took a smaller bag out of the blue bag, put the blue bag on topof the doorway, and walked back to the man in the vacant lot. The man gave defendantmoney and defendant gave him the smaller bag. Defendant then gave the money to anunknown man in the vacant lot.

The police broke surveillance and detained defendant and the buyer. The buyersaid he got “one blow” from defendant. The item he purchased was a small bag filledwith white powder, suspected to be heroin. One officer went up on the porch, reachedinside the doorway to the vestibule and recovered the blue bag. The blue bag containedsmaller bags similar to the one recovered from the buyer. The smaller bags containedheroin.

2. The Appellate Court held that the officer’s recovery of the blue bag constitutedan illegal physical search inside a home without a warrant. For purposes of the FourthAmendment, the type of building here, a two-flat occupied and owned by one family,should be considered the same as a single-family home. The area inside the home’sentrance is a protected area under the Fourth Amendment. An officer without a warrantmay do no more than a private citizen, which generally is limited to approaching thehouse and knocking.

Here the officer intruded into the inside of the home to retrieve evidence. It madeno difference that the door was open since a private citizen would not feel entitled tobreach the open door of a home and investigate its contents. Any invasion of a home’sstructure “by even a fraction of an inch” is impermissible.

3. The court rejected the State’s argument that the recovery of the bag did notconstitute a search under the plain view doctrine. The plain view doctrine only appliesif: (1) the officer is lawfully in a position to view the object; (2) the incriminating characterof the object is immediately apparent; and (3) the officer has a lawful right of access tothe object.

Here the incriminating nature of the object was not immediately apparent. Thepolice only observed defendant take a small item from the blue bag and then tender thatitem to the buyer. It was only after the police recovered the blue bag that they couldsee that the items inside matched the item containing suspected heroin that defendant

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had sold to the buyer. Since the nature of the object was not immediately apparent theplain view doctrine did not apply.

4. The court also rejected the State’s argument that the warrantless search wasjustified by exigent circumstances. The State argued that exigent circumstances existedbecause defendant gave money to an unknown man, but the police lost track of him whenthey detained defendant and the buyer. The officers thus could have reasonably believedthe unknown man could have gone inside the two-flat and destroyed evidence.

The court held that there were no exigent circumstances in this case since therewas no risk evidence would be destroyed while the officers obtained a warrant. Bothdefendant and the buyer were in custody and had no access to the evidence. The courtfound that the State’s concern about the unknown man was “entirely speculative,”especially since there were several officers at the scene who could have secured thepremises while they obtained a warrant.

5. And finally, the court held that the officers did not act in good-faith relianceon binding precedent at the time of the search holding that common areas in multi-unitapartment buildings open to other people were not constitutionally protected. Here, thebuilding was a single-family home not a multi-unit apartment.

The court suppressed the recovered evidence and reversed defendant’s convictionoutright since without that evidence the State could not prove defendant’s guilt.

(Defendant was represented by Assistant Defender Brian Josias, Chicago.)

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§44-3People v. Ringland, Saxen, et al, 2017 IL 119484 (No. 119484, 6/29/17)

1. 55 ILCS 5/3-9005(b) provides that the State’s Attorney is authorized to appointspecial investigators to serve subpoenas, make return of process, and conductinvestigations which assist the State’s Attorney in the performance of his or her duties.In addition, State’s Attorneys have both the specified powers and duties listed by 55ILCS 5/3-9005(a)(11) and common-law powers and duties vested by the Illinoisconstitution.

Generally, Illinois common law recognizes that a State’s Attorney has anaffirmative duty to investigate and determine whether an offense has been committed.That duty is subject to a significant limitation, however, because the State’s Attorneyordinarily defers to law enforcement agencies to investigate criminal acts. Thus, theState’s Attorney has a common law duty to affirmatively investigate suspected illegalactivity only if the possible offense is not being adequately investigated by other agenciesor a law enforcement agency asks the State’s Attorney for assistance.

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2. The court concluded that the LaSalle County State’s Attorney erred by creatinga State’s Attorney Felony Enforcement (SAFE) unit for the purpose of patrollinginterstates in LaSalle County, making traffic stops, and issuing tickets for suspectedcontrolled substance offenses. Although the State’s Attorney testified at the suppressionhearing concerning the creation of the unit, he did not claim that any law enforcementagency was deficient in investigating suspected controlled substance offenses on LaSalleCounty interstates. Similarly, the State’s Attorney did not state that he had receivedrequests for assistance from any law enforcement agencies. The court also noted thetrial court’s finding that the SAFE unit was not following up on cases initiated by lawenforcement agencies, but “actually going out and seeking complaints by making pettytraffic stops and petty offenses.”

The court rejected the State’s argument that the SAFE unit was permitted because§5/3-9005(b) authorizes special investigators to conduct investigations which assist theState’s Attorney in the performance of his or her duties. Because a State’s Attorney couldclaim a common law duty to investigate all crimes and authorize special investigatorsto conduct investigations into all illegal activity, the State’s argument would allow theformation of 102 county police forces, each directed by a State’s Attorney, and rendersuperfluous the three statutory functions of State’s Attorney’s special investigators. Thecourt concluded that the legislature did not intend to authorize county police forcesoperating at the behest of each State’s Attorney.

The court concluded that it need not address several issues, including whether:(1)the common law would allow State’s Attorney’s investigators to patrol highways to seekout offenses if there had been a request for assistance or a finding that other lawenforcement agencies were inadequately dealing with suspected criminal activity, and(2) the impropriety of an investigator’s appointment would justify suppression of evidencethat had been seized by that investigator.

Because the LaSalle County State’s Attorney’s SAFE unit was unauthorized byIllinois law where there was no showing that law enforcement agencies wereinadequately investigating controlled substance offenses or that any law enforcementagency had asked the State’s Attorney for assistance, the trial court’s order grantingdefendant’s motion to suppress was affirmed.

(Defendant Saxen was represented by Assistant Defender Dimitri Golfis, Ottawa.)

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SENTENCING

§45-1(b)(2)People v. Merriweather, 2017 IL App (4th) 150407 (No. 4-15-0407, 6/27/17)

Defendant, who was 17 at the time of the offense, was convicted of first degreemurder and sentenced to 70 years in prison. Defendant filed a pro se motion for leave

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to file a successive post-conviction petition alleging actual innocence based on newlydiscovered evidence. On appeal from the denial of the motion, defendant argued for thefirst time that his sentence was a de facto life sentence that was unconstitutional asapplied to him.

The Appellate Court, relying on Thompson, 2015 IL 118151, held that defendantcould not raise an as-applied challenge to his sentence for the first time on appeal. Unlikefacial challenges to statutes, as-applied challenges are dependent on the facts andcircumstances of each case and thus the appropriate place to raise the issue is in thetrial court where the record can be adequately developed. Defendant thus forfeited thisissue by failing to raise it in the trial court.


The court refused to address defendant’s argument but noted that he might beable to raise this issue in a successive post-conviction petition.


§45-4(g)People v. Maggio, 2017 IL App (4th) 150287 (No. 4-15-0287, 6/15/17)

A defendant has a Fifth Amendment right against self-incrimination at sentencing,and therefore has the right to refuse to provide information during the presentenceinvestigation. During sentencing, the trial court said that defendant’s failure to cooperatewith the pre-sentence investigation was “significant” and “troubling,” spoke “volumesabout his attitude,” and was a “telling indication of defendant’s attitude.”

The Appellate Court held that the trial court erred by extensively referring todefendant’s exercise of his Fifth Amendment right. In addition, the judge’s remarksestablished that defendant’s refusal to cooperate “weighed heavily” in the trial court’ssentencing decision. Because it cannot be stated with certainty that reliance on theimproper factor was an insignificant factor at sentencing, the cause was remanded fora new sentencing hearing.

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

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§§45-7(b), 45-7(c)People v. Griffin, 2017 IL App (1st) 143800 (No. 1-14-3800, 6/27/17)




The denial of defendant’s motion to correct the mittimus, however, was not a finalappealable order. An order is final and appealable if it determines the litigation on themerits. Here, the orders that determined the litigation on the merits were the judgmentsentered against defendant pursuant to his guilty plea. When the trial court denied themotion to correct the mittimus, it found that it had committed no error in entering theearlier judgments and therefore left them in place. The trial court did not enter any newjudgments. Hence there was no final appealable order when the trial court denieddefendant’s motion.



4. The court also held that the doctrine of revestment did not apply in this case.The doctrine permits the parties to revest a court with jurisdiction by activelyparticipating without objection in proceedings that are inconsistent with the merits of

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the prior judgment. But revestment does not permit review of a defendant’s claim onappeal where he pled guilty and failed to file a 604(d) motion.




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§§45-7(b), 45-7(c)People v. Grigorov, 2017 IL App (1st) 143274 (No. 1-14-3274, 6/27/17)

On April 10, 2014, defendant pled guilty and the trial court imposed “allmandatory fines, fees, and court costs” on defendant. Defendant did not file a motionto withdraw his plea or a notice of appeal within 30 days. In August 2014, defendantfiled a motion asking the trial court to vacate $6000 in assessments due to his inabilityto pay. Defendant did not argue that any of the fines or fees were erroneously assessed;he merely argued his inability to pay.

The trial court denied defendant’s motion. On appeal, defendant abandoned hisargument about lacking the ability to pay, and instead argued that he was entitled topre-sentence credit to offset his fines and that certain fines and fees had been erroneouslyimposed. The Appellate Court held that it had jurisdiction to address the pre-sentencecredit issue but not the issue about improper imposition.

Generally, the circuit court loses jurisdiction to alter a sentence after 30 days.An exception to this rule applies when a defendant files a petition seeking financial reliefunder section 5-9-2. 730 ILCS 5/5-9-2. Under this freestanding collateral action, the trialcourt may revoke any unpaid portion of a fine or may modify the method of payment.A defendant may file a 5-9-2 petition at any time.

But in this case, defendant was not arguing that the trial court improperly deniedhis 5-9-2 petition. Instead, he raised “entirely new and unrelated claims” that challengedhis original sentence. The only claim the Appellate Court could address was the issueof pre-sentence credit since such credit may be awarded merely “upon application of thedefendant.” 725 ILCS 5/110-14. A defendant may apply for that credit “at any time andat any stage of court proceedings, even on appeal in a postconviction proceeding.” TheAppellate Court, however, did not have jurisdiction to address claims about fines andfees other than pre-sentence credit.

The court applied defendant’s pre-sentence credit to offset his assessments.

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(Defendant was represented by Assistant Defender Katie Anderson, Chicago.)

§45-7(b)People v. Scalise, 2017 IL App (3d) 150299 (No. 3-15-0299, 6/14/17)

The United States and Illinois constitutions prohibit ex post facto laws thatretroactively increase the punishment for a criminal act. U.S. Const., art. I, §§ 9, 10;Ill. Const. 1970, art. I, § 16. The ex post fact prohibition only applies to punitive laws.

Defendant pled guilty in 2009 to two counts of predatory sexual assault of a childfor acts that occurred in 1998 and 2000. On appeal from the dismissal of his 2-1401petition, defendant argued that he was entitled to pre-sentence credit against his finesunder section 110-14. 725 ILCS 5/110-14(b). Defendant acknowledged the existence ofa 2005 amendment to section 110-14 that made pre-sentence credit against finesunavailable to defendants convicted of sexual assault, but argued that the amendmentviolated the prohibition against ex post facto laws.

The Appellate Court, with one justice dissenting, disagreed. It held that the statuewas not punitive and thus the ex post facto prohibition did not apply to it. The statuteas originally enacted held that all defendants were entitled to pre-sentence credit againsttheir fines. In 1977, the statute was amended to state that the credit was available “uponapplication of the defendant.” The amended statute thus made the pre-sentence creditno longer automatic; it only applied if the defendant requested it. Since the credit wasnot automatic, the 2005 amendment limiting a defendant’s ability to request the creditwas “not a punishment and has no punitive effect.”

(Defendant was represented by Assistant Defender Andrew Boyd, Ottawa.)

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SEX OFFENSES

§§46-1(c), 46-7Packingham v. North Carolina, ___ U. S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (2017)(No. 15-1194, 6/19/17)

The North Carolina legislature enacted legislation creating a felony where aregistered sex offender accesses a commercial social networking website which is knownby the offender to permit minor children to become members or to create or maintainpersonal web pages. The U.S. Supreme Court found a First Amendment violation becausethe statute was not drawn narrowly enough to avoid burdening substantially more speechthan necessary to further the government’s legitimate interests.

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1. A fundamental First Amendment principle is that all persons have access toplaces where they can speak and listen, and after reflection speak and listen again. Inthe modern world, cyberspace and social media constitute an important place forcommunication and the exchange of views. Because this is the first case to address therelationship between the First Amendment and the modern Internet, the court “mustexercise extreme caution before suggesting that the First Amendment provides scantprotection for access to vast networks in that medium.”

The court noted that inventions “heralded as advances in human progress” canbe exploited by the criminal mind. However, the mere fact that an invention might beexploited for criminal purposes does not insulate it from First Amendment protection.

2. A statute which is content-neutral is subject to intermediate scrutiny. To survivesuch scrutiny, the law must be narrowly tailored to serve a significant governmentalinterest. In other words, the law may not substantially burden more speech than isnecessary to further the government’s legitimate interest.

The court concluded that the North Carolina statute failed this test. First, thestatute enacts a “prohibition unprecedented in the scope of First Amendment speechit burdens.” By prohibiting sex offenders from using websites to which children mightalso have access, the statute bars the use of what may be principal sources for currentevents, checking ads for employment, speaking and listening on public issues, and“exploring the vast realms of human thought and knowledge.” To completely forecloseaccess to social media prevents engagement in the legitimate exercise of FirstAmendment rights. The court also noted that even convicted criminals might receivelegitimate benefits from social media, particularly if they seek to reform and pursuelawful and rewarding lives.

3. The court made two assumptions in resolving the case. First, the court presumedthat because of the broad wording of the North Carolina statute, it might bar accessnot only to commonplace social media such as Facebook and Twitter, but also to websitessuch as Amazon.com, Washingtonpost.com, and Webmd.com.

Second, the court stated that its opinion should not be interpreted as barring astate from enacting more specific laws protecting children from convicted sex offenders.Thus, it can be assumed that the First Amendment permits the enactment of specific,narrowly tailored laws prohibiting a sex offender from engaging in conduct such ascontacting a minor or using a website to gather information about a minor.

4. In a concurring opinion, Justices Alito, Roberts, and Thomas agreed that thelaw was too broad to satisfy the First Amendment. However, the concurring Justicesdeclined to join in the majority’s dicta equating the Internet with public street and parks.

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SPEEDY TRIAL

§47-1(a)People v. Dalton, 2017 IL App (3d) 150213 (No. 3-15-0213, 6/9/17)

1. Generally, a person held in custody on criminal charges must be tried within120 days. The 120-day limitation applies both to charges that have been filed and tocharges that have not been filed but would be subject to mandatory joinder with theoriginal charges. Offenses are subject to mandatory joinder when they are based on thesame act.

Thus, a defendant held in custody and charged with a single offense must be triedwithin 120 days not only on that offense but also for any other offenses that could becharged based on the same underlying act. The remedy for a speedy trial violation isdismissal of the charges.

Although the speedy trial period can be extended by delay attributable to thedefense, a defendant can only agree to continue the trial with respect to the offenseswith which he is actually charged. By agreeing to a continuance, the defendant extendsthe speedy trial period with respect to the charged offense, but not concerning anyuncharged offenses based on the same act.

Consequently, when a defendant is charged with an offense based on conduct thatcould support charges of multiple offenses, the State must file any additional chargeswithin 120 days. Additional charges filed beyond 120 days violate the speedy trial statute.

2. Where defendant was charged with two counts of aggravated criminal sexualabuse, and more than 120 days later was charged with a separate offense of criminalsexual assault based upon the same act but adding an allegation that defendant andthe complainant had lived together continuously for at least one year, defendant’s speedytrial rights were violated concerning the additional charge. Because the two chargeswere based on the same act, they were subject to mandatory joinder.


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STATUTES

§48-2People v. Scalise, 2017 IL App (3d) 150299 (No. 3-15-0299, 6/14/17)

The United States and Illinois constitutions prohibit ex post facto laws thatretroactively increase the punishment for a criminal act. U.S. Const., art. I, §§ 9, 10;Ill. Const. 1970, art. I, § 16. The ex post fact prohibition only applies to punitive laws.

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Defendant pled guilty in 2009 to two counts of predatory sexual assault of a childfor acts that occurred in 1998 and 2000. On appeal from the dismissal of his 2-1401petition, defendant argued that he was entitled to pre-sentence credit against his finesunder section 110-14. 725 ILCS 5/110-14(b). Defendant acknowledged the existence ofa 2005 amendment to section 110-14 that made pre-sentence credit against finesunavailable to defendants convicted of sexual assault, but argued that the amendmentviolated the prohibition against ex post facto laws.

The Appellate Court, with one justice dissenting, disagreed. It held that the statuewas not punitive and thus the ex post facto prohibition did not apply to it. The statuteas originally enacted held that all defendants were entitled to pre-sentence credit againsttheir fines. In 1977, the statute was amended to state that the credit was available “uponapplication of the defendant.” The amended statute thus made the pre-sentence creditno longer automatic; it only applied if the defendant requested it. Since the credit wasnot automatic, the 2005 amendment limiting a defendant’s ability to request the creditwas “not a punishment and has no punitive effect.”

(Defendant was represented by Assistant Defender Andrew Boyd, Ottawa.)

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§§48-3(a), 48-3(e)City of Chicago v. Alexander, 2017 IL 120350 (No. 120350, 6/15/17)

1. Illinois follows the “limited lockstep” doctrine, which states that Stateconstitutional provisions are deemed to have the same meaning as comparable federalconstitutional provisions unless the language of the Illinois constitution or records ofthe Illinois Constitutional Convention indicate that the Illinois constitution was intendedto be construed differently than the Federal constitution. Article 1, §5 of the IllinoisConstitution provides that citizens “have the right to assemble in a peaceable manner,to consult for the common good, to make known their opinions to their representativesand to apply for redress of grievances.” The First Amendment of the United StatesConstitution, as it applies to the right to assembly, provides that Congress shall makeno law abridging the right of the people “peaceably to assemble.” The First Amendmentapplies to the states through the due process clause of the Fourteenth Amendment.

The court concluded that the Illinois constitutional right to peaceably assembleis “virtually identical” to the First Amendment and therefore is to be interpreted inlockstep with federal precedents applying the assembly clause of the First Amendment.

2. Under the United States Supreme Court’s jurisprudence regarding the rightof assembly, intermediate scrutiny is applied to content-neutral regulations that affectthe time, place, or manner of expression. To satisfy that standard, a regulation whichaffects the time, place, or manner of expression must be content-neutral, narrowlytailored to serve a significant government interest, and preserve ample alternativechannels of communication.

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The court declined to resolve whether the First Amendment and the IllinoisConstitution’s right to peaceably assemble were violated by a Chicago Park Districtordinance closing parks for eight hours beginning at 11 p.m. each night. The court foundthat the issues had not been properly preserved.

3. The court also declined to decide whether the State constitutional provisionsguaranteeing the rights “to consult for the common good” and “make known their opinionsto their representatives” (Art. 1, §5) provide greater protection than the FirstAmendment. The court found that these questions had not been preserved and in anyevent were not presented by this case.

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§48-3(a)Packingham v. North Carolina, ___ U. S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (2017)(No. 15-1194, 6/19/17)

The North Carolina legislature enacted legislation creating a felony where aregistered sex offender accesses a commercial social networking website which is knownby the offender to permit minor children to become members or to create or maintainpersonal web pages. The U.S. Supreme Court found a First Amendment violation becausethe statute was not drawn narrowly enough to avoid burdening substantially more speechthan necessary to further the government’s legitimate interests.

1. A fundamental First Amendment principle is that all persons have access toplaces where they can speak and listen, and after reflection speak and listen again. Inthe modern world, cyberspace and social media constitute an important place forcommunication and the exchange of views. Because this is the first case to address therelationship between the First Amendment and the modern Internet, the court “mustexercise extreme caution before suggesting that the First Amendment provides scantprotection for access to vast networks in that medium.”

The court noted that inventions “heralded as advances in human progress” canbe exploited by the criminal mind. However, the mere fact that an invention might beexploited for criminal purposes does not insulate it from First Amendment protection.

2. A statute which is content-neutral is subject to intermediate scrutiny. To survivesuch scrutiny, the law must be narrowly tailored to serve a significant governmentalinterest. In other words, the law may not substantially burden more speech than isnecessary to further the government’s legitimate interest.

The court concluded that the North Carolina statute failed this test. First, thestatute enacts a “prohibition unprecedented in the scope of First Amendment speechit burdens.” By prohibiting sex offenders from using websites to which children mightalso have access, the statute bars the use of what may be principal sources for currentevents, checking ads for employment, speaking and listening on public issues, and

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“exploring the vast realms of human thought and knowledge.” To completely forecloseaccess to social media prevents engagement in the legitimate exercise of FirstAmendment rights. The court also noted that even convicted criminals might receivelegitimate benefits from social media, particularly if they seek to reform and pursuelawful and rewarding lives.

3. The court made two assumptions in resolving the case. First, the court presumedthat because of the broad wording of the North Carolina statute, it might bar accessnot only to commonplace social media such as Facebook and Twitter, but also to websitessuch as Amazon.com, Washingtonpost.com, and Webmd.com.

Second, the court stated that its opinion should not be interpreted as barring astate from enacting more specific laws protecting children from convicted sex offenders.Thus, it can be assumed that the First Amendment permits the enactment of specific,narrowly tailored laws prohibiting a sex offender from engaging in conduct such ascontacting a minor or using a website to gather information about a minor.

4. In a concurring opinion, Justices Alito, Roberts, and Thomas agreed that thelaw was too broad to satisfy the First Amendment. However, the concurring Justicesdeclined to join in the majority’s dicta equating the Internet with public street and parks.

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TRIAL PROCEDURES

§52-1Weaver v. Massachusetts, ___ U. S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (2017) (No.16-240, 6/22/17)

Noting a conflict in authority, the U.S. Supreme Court held that when a violationof the right to a public trial is not preserved and raised on direct appeal, but is insteadraised for the first time on collateral review as ineffective assistance of counsel, thedefendant is required to satisfy the prejudice requirement of Strickland. Here, defendantwas unable to show prejudice from the trial court’s closure of the courtroom to the publicduring jury selection.


Structural errors are errors which define the framework of a criminal trial. Thedetermination that an error is structural may be based on one of three rationales. First,an error may be deemed structural because the right at issue is not designed to protectthe defendant from erroneous conviction, but to protect some other interest such as theright to conduct one’s own defense. Second, an error may be deemed structural when

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the effects of the error are too difficult to measure, such as the denial of the right tochoose one’s attorney. Third, errors which always result in fundamental unfairness, suchas denial of counsel or the failure to give a reasonable doubt instruction, may be deemedstructural error.

2. Under Supreme Court precedent, a violation of the right to a public trial isstructural error. In addition, the right to a public trial includes a public hearing for juryselection. Because the courtroom may be closed where certain findings are made,however, the mere denial of a public hearing does not necessarily require a new trial.Furthermore, the right to a public trial may be violated due to the trial court’s failureto make the findings required for closure rather than because the resulting hearing isunfair.


Where no objection is made at trial and the issue is raised on collateral reviewas ineffective assistance of counsel, the defendant must satisfy Strickland by showingboth deficient performance by counsel and prejudice. In most Strickland cases, prejudiceis defined as a reasonable probability that, but for counsel’s unprofessional errors, theresult of the proceeding would have been different. But the prejudice inquiry is not meantto be applied mechanically, and the concept of prejudice is defined differently dependingon the context. The court assumed without deciding that defendant could satisfy theprejudice requirement by showing that counsel’s failure to object to a violation of thepublic trial requirement rendered the trial fundamentally unfair.

4. Where due to a lack of space the trial court closed the courtroom during juryselection to everyone but the prospective jurors, defendant could not establish that hewas prejudiced by counsel’s failure to object. Although it is possible that potential jurorsmight have behaved differently had defendant’s family been present, there was noevidence or legal argument establishing prejudice in the sense of a reasonable probabilityof a different outcome had counsel objected to the closure. Similarly, there was no reasonto believe that the failure to object to the closing of the courtroom resulted in afundamentally unfair proceeding. Under these circumstances, defendant failed to satisfythe prejudice requirement of Strickland.

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VERDICTS

§§55-3(a), 55-3(c) People v. Brown, 2017 IL App (3d) 150070 (No. 3-15-0070, 6/20/17)

In determining whether multiple convictions violate the one-act one-crime rule,courts apply a two-step analysis in which the first step is determining whether theconduct in question consisted of single or multiple acts. If a single act was involved,multiple convictions are prohibited. If the conduct consisted of multiple acts, the courtmust then determine whether any of the crimes in question are lesser-included offenses.

Noting a conflict in Appellate Court authority, the Third District held thatconvictions of armed violence for being armed with a handgun while possessing cocaineand unlawful possession of a weapon by a felon were based on the single act of possessinga gun. Because only a single act was involved, the one-act one-crime doctrine prohibitsmultiple convictions.

Although defendant did not raise the issue in the lower court, a violation of theone-act one-crime rule affects the integrity of the judicial process and thereforeconstitutes plain error under the substantial rights prong of the plain error rule.

(Defendant was represented by Assistant Defender Jay Wiegman, Ottawa.)

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WAIVER - PLAIN ERROR - HARMLESS ERROR

§56-2(b)(1)(a)People v. Sebby, 2017 IL 119445 (No. 119445, 6/2/17)

1. There are two kinds of plain error: (1) when a clear error occurs and the evidenceis so closely balanced that the error alone threatened to tip the scales of justice againstthe defendant, regardless of the seriousness of the error; and (2) when a clear error occursand the error is so serious that it affected the fairness of the defendant’s trial andchallenged the integrity of the judicial process, regardless of the closeness of the evidence.

Under the first prong of plain error, if the evidence is closely balanced, prejudiceis not presumed; the error is actually prejudicial. A defendant who has shown clear errorand closely balanced evidence has shown prejudice and is entitled to relief. Indetermining whether the evidence was closely balanced, a reviewing court must evaluatethe totality of the evidence and conduct a qualitative, commonsense assessment of theevidence within the context of the case.

Defendant was convicted of resisting a peace officer following a jury trial. In a4-3 decision, the Illinois Supreme Court held that the trial court’s failure to comply withRule 431(b) constituted plain error under the first prong of the plain error analysis.

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2. The parties agreed that the trial court violated Illinois Supreme Court Rule431(b), which requires the court to ask potential jurors whether they “understand andaccept” the four Zehr principles: (1) defendant is presumed innocent; (2) the State mustprove defendant guilty beyond a reasonable doubt; (3) defendant does not have to offerany evidence on his behalf; and (4) if defendant does not testify it cannot be held againsthim. Here the trial court asked jurors whether they “had any problems with” or “believedin” the Zehr principles. The Illinois Supreme Court held that this was clear error.

3. The court also held that the evidence was closely balanced. Both sides presenteda plausible version of events concerning the issue of whether defendant knowinglyresisted the performance of a known police officer’s authorized acts and whether thatviolation was the proximate cause of injury to the officer. 720 ILCS 5/31-1(a), (a-7). Thetestimony of the State’s witnesses was largely consistent, but so was the testimony ofthe defense witnesses. Neither side presented accounts that were fanciful. The outcomeof the case thus turned on how the trier of fact resolved a contest of credibility. And sinceboth sides were credible, the evidence was closely balanced.

Since there was clear error and the evidence was closely balanced, defendantestablished plain error under the first prong. The court rejected the State’s argumentthat the closeness of the evidence is only one consideration in deciding whether therewas prejudice. The State’s argument would impermissibly add the seriousnessrequirement of the second prong onto the closeness requirement of the first prong to“yield a hybrid requirement.” The State’s argument ignores the fact that “prejudice restsnot upon the seriousness of the error but upon the closeness of the evidence.” An erroris prejudicial when it occurs in a close case because its impact on the result is potentiallydispositive.

The court reversed defendant’s conviction and remanded for a new trial.

(Defendant was represented by Assistant Defender Editha Rosario-Moore, Ottawa.)

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§56-3(b)Weaver v. Massachusetts, ___ U. S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (2017) (No.16-240, 6/22/17)


Structural errors are errors which define the framework of a criminal trial. Thedetermination that an error is structural may be based on one of three rationales. First,an error may be deemed structural because the right at issue is not designed to protectthe defendant from erroneous conviction, but to protect some other interest such as the

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right to conduct one’s own defense. Second, an error may be deemed structural whenthe effects of the error are too difficult to measure, such as the denial of the right tochoose one’s attorney. Third, errors which always result in fundamental unfairness, suchas denial of counsel or the failure to give a reasonable doubt instruction, may be deemedstructural error.

2. Under Supreme Court precedent, a violation of the right to a public trial isstructural error. In addition, the right to a public trial includes an open hearing for juryselection. Because the courtroom may be closed where certain findings are made,however, the mere denial of a public hearing does not necessarily require a new trial.Furthermore, the right to a public trial may be violated due to the trial court’s failureto make the findings required for closure rather than because the resulting hearing isunfair.


Where no objection is made at trial and the issue is raised on collateral reviewby way of ineffective assistance of counsel, the defendant must satisfy Strickland byshowing both deficient performance by counsel and prejudice. In most Strickland cases,prejudice means a reasonable probability that, but for counsel’s unprofessional errors,the result of the proceeding would have been different. But the prejudice inquiry is notmeant to be applied mechanically, and the concept of prejudice is defined differentlydepending on the context. The court assumed without deciding that defendant couldsatisfy the prejudice requirement by showing that counsel’s failure to object to a violationof the public trial requirement rendered the trial fundamentally unfair.

4. Where due to a lack of space the trial court closed the courtroom to everyonebut the prospective jurors, defendant could not establish that he was prejudiced bycounsel’s failure to object. Although it is possible that potential jurors might havebehaved differently had defendants’ family been present, there was no evidence or legalargument establishing prejudice in the sense of a reasonable probability of a differentoutcome had counsel objected to the closure. Similarly, there was no reason to believethat the failure to object to the closing of the courtroom resulted in a fundamentallyunfair proceeding. Under these circumstances, defendant failed to satisfy the prejudicerequirement of Strickland.

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WITNESSES

§57-1(c)McWilliams v. Dunn, ___ U. S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (2017) (No. 16-5294,6/19/17)

Under Ake v. Oklahoma, 470 U. S. 68 (1985), an indigent defendant whodemonstrates that his sanity at the time of the offense is a significant factor at trial isentitled to access to a competent psychiatrist to conduct an appropriate examinationand to assist in evaluation, preparation, and presentation of the defense. The prosecutionfailed to meet the requirements of Ake at a death penalty hearing where, at the requestof defense counsel, the trial court appointed a psychiatrist to examine defendant butrefused to grant a continuance or appoint an expert to consult with defense counselconcerning defendant’s psychological records. Ake requires not merely an evaluation,but also expert assistance in reviewing mental health records.

The court rejected the prosecution’s argument that Ake was satisfied by thevoluntary assistance of a psychologist who helped the defense “in her spare time” andwho apparently suggested that the defense request additional testing. “Even if theepisodic assistance of an outside volunteer could relieve the State of its constitutionalduty to ensure an indigent defendant access to meaningful expert assistance,” there isnothing on the record to indicate that the volunteer was available during the sentencinghearing or provided help at that stage.

Because the State failed to satisfy the basic requirements of Ake at the deathhearing, the cause was remanded for further proceedings.

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Documents

Office of the State Appellate Defender Illinois Criminal ... · PDF fileIllinois Criminal Law Digest June 2017 MICHAEL J. PELLETIER P.O. Box 5240 State Appellate Defender Springfield,