Kane County Nuggets

People v. Brewer, 2018 IL App (1st) 160155 (September). Episode 550 (Duration 19:17)

Defendant takes an officer's gun and shoots and kills him as he is ending his shift, was the officer still on duty acting as an officer?

Gist

Following a bench trial, defendant was found guilty of the first degree murder of Chicago police officer Thor Soderberg; the attempted first degree murder of 4 other officers; disarming of a peace officer; and armed robbery while personally discharging a firearm.

The trial court subsequently sentenced defendant a term of natural life for the first degree murder and a total term of 115 years for the remaining convictions.

Officer Ending His Shift

The deceased officer and his partner were assigned to Operation Project Youth, to help children get to and from school safely.

Their assignment was based out of the seventh district police station, located at South Racine Avenue and West 61st Street in Chicago. The victim was being dropped off in the parking lot at the station. He was preparing to leave and was seen putting his gun and equipment in his Suburu.

An independent witness then saw defendant walk by and singing what sounded like a rap song, saying “shoot a mother***, kill a mother***.” And words to the effect of  “f*** the police, shoot the police.”

What Happened?

Civilian and police witnesses said they heard heard gunfire right outside the police building. Defendant is seen holding something in his hand and walking toward a building across the street from the police station. He is seen fire a gun approximately six to eight times.

Defendant then walks back toward the police station with a blue bag that defendant had not possessed previously. While defendant was in the street, a female police officer came out of the station. Defendant walked toward her and fired two to three times. Defendant then trie to chase the officer as she was taking cover near a squad car.

Two additional officers came outside and ordered defendant to drop the gun, which defendant did not do. An officer then shot him.

A landscaper doing work at the station saw a man without a shirt fighting with an officer. Both men were punching each other near a car with an open trunk. He then heard the shots and saw defendant had a gun. Defendant was seen by another man and he shot at him as well. He hears the shots then sees defendant chasing other officers around a car.

He took his blue bag.

2 officers came out the station and ordered defendant to drop his weapon. He didn’t and one officer shot at him and missed. Eventually, he is shot one time and apprehended.

Victim Officer Found Shot & Killed

Police didn’t know that Soderberg had been shot and killed until they discovered his body in the parking lot after defendant was arrested and in the ambulance.

The victim officer’s car trunk was open and his gun was found in the grass.

Officer Soderberg sustained three gunshot wounds as well as bruises and abrasions to his arms, elbows, and right knee. The first gunshot wound was to the bridge of his nose, and the course of the wound was downward. The wound also indicated close-range firing of two feet or less. The second gunshot wound entered the top right of his head, coursing right to left and downward. The wound also indicated close-range firing. The third gunshot wound entered his right upper back, with a slightly upward movement.

The first two gunshots were consistent with a person standing over the victim’s head and firing at close range and either could have caused sudden death.

The third wound was consistent with being shot while in a running motion and slightly down, and it would have been possible to move after receiving the gunshot to the back. 

Earlier That Day

Defendant was arrested for drug possession and processed at that station.

Neighbors heard defendant on multiple occasions say, “f*** the police. I’m going to kill those mother***.”

Guilty

Following the trial, the trial court found defendant guilty of the first degree murder of Officer Soderberg; attempted first degree murder of Officer Casey, Officer Thor, Sergeant Kaczynski, and Richard Mints (a civilian victim and witness); armed robbery of Mints; disarming a peace officer; and aggravated discharge of a firearm. The court subsequently sentenced defendant to natural life for first degree murder, 100-year terms for each attempted murder of the police officers, 50-year terms for the attempted murder and armed robbery of Mints, and 15 years for disarming a peace officer.

The sentences for attempted murder and armed robbery were to run concurrently to each other, while the 15 years for disarming a peace officer was to run consecutively. All counts were to run consecutive to defendant’s sentence of natural life. The total sentence was natural life plus 115 years.

Issue

The sole issue raised on appeal was regarding whether Officer Soderberg was performing his official duties at the time of his murder.

Defendant argues that the State failed to prove beyond a reasonable doubt that Officer Soderberg was killed “during the course of performing his official duties,” and his sentence for natural life must be vacated and remanded for resentencing.

The Indictment 

The indictment further asserted that

“[t]he State shall seek an extended term sentence in that the murdered individual was a peace officer killed in the course of performing his official duties and the defendant knew or should have known that the murdered individual was a peace officer.”

Officer's Status Must Be Proven

Since the State was required to prove the aggravating factor, i.e., Officer Soderberg was killed in the course of performing his official duties, beyond a reasonable doubt, the standard of review is the same as a challenge to the sufficiency of the evidence.

Here, the statutory sources for the aggravating factor in the indictment were section 9­ 1(b)(1) of the Criminal Code of 1961 and section 5-8-1(a)(1)(c)(iii) of the Unified Code of Corrections. See 720 ILCS 5/9-1(b)(1); 730 ILCS 5/5-8-1(a)(1), (c)(iii) (West 2014). Both statutes include the same language regarding the murder of a peace officer “killed in the course of performing his official duties.” 720 ILCS 5/9-1(b)(1); 730 ILCS 5/5­ 8-1(a)(1), (c)(iii).

The Case Law

The Illinois Supreme Court has held that a peace officer “has the duty to maintain public order wherever he may be; his duties are not confined to a specific time and place.” Arrington v. City of Chicago, 45 Ill. 2d 316, 318 (1970); see also In re Joel L., 345 Ill. App. 3d 830, 834 (2004); People v. Weaver, 100 Ill. App. 3d 512, 514 (1981); People v. Barrett, 54 Ill. App. 3d 994, 996 (1977). As the Barrett court reasoned, “[i]t is the nature of the acts performed by the officer which determine whether the officer was in the execution of his official duties.” 

In Barrett, a police officer was off duty and working as a paid security guard in a retail store while in his police uniform. A store employee notified the officer that defendant and his brother were attempting to steal items from the store. The officer then approached the men and informed them that they were being placed under arrest. During a struggle, the officer was struck by defendant two or three times. Defendant was subsequently convicted of aggravated battery and challenged whether the State proved an element of aggravated battery, whether the officer was engaged in the execution of his official duties. 

The reviewing court concluded the element had been proven that the officer was engaged in the execution of his official duties when placing the men under arrest for shoplifting. The court reasoned that the “decisive factor” at the time was “the nature of the acts he performed and not his employment status at the time.”

The Barrett court found support in a federal case from the Sixth Circuit, Stengel v. Belcher, 522 F.2d 438 (6th Cir. 1975), “ ‘[t]he fact that a police officer is on or off duty, or in or out of uniform is not controlling. It is the nature of the act performed, not the clothing of the actor or even the status of being on duty, or off duty, which determines whether the officer has acted under color of law.’” Barrett, 54 Ill. App. 3d at 996.

Police Are Always On Duty

The reviewing court held that “a police officer has the duty to maintain public order wherever he may be, as long as he is within the State.” Id. at 514. The court concluded that when making an arrest, an officer is “always engaged in execution of his official duties.” See Weaver, 100 Ill. App. 3d at 513-14. “The nature of a policeman’s job is that he be fit and armed at all times, whether on or off duty, and subject to respond to any call to enforce the laws and preserve the peace.

It is true that his being considered ‘on duty’ at all hours of the day or night does not result in all of his acts being deemed to have been taken in the performance of his duties as a police officer. Karas v. Snell, 11 Ill. 2d 233 [(1957)]. However, since he is always obligated to attempt to prevent the commission of crime in his presence, any action taken by him toward that end, even in his official off-duty hours, falls within the performance of his duties as a police officer.” Banks v. City of Chicago, 11 Ill. App. 3d 543 (1973).

It's A Matter Of Policy

To hold otherwise would require the incongruous finding that a police officer is invested with the authority and duty to defend all lives but his own.

Analysis

We find the court’s reasoning to be applicable to the facts of the present case.

Here, defendant was observed walking toward the police station while ranting profanely about the police. Brown testified about defendant expressing violent thoughts toward the police with vulgar language on multiple occasions. Defendant was seen attempting to enter the police station, but was unable to enter.

Officer Soderberg had been dropped off near his car in the south parking lot. He was in uniform and beginning to change his clothes. He had placed his duty belt in his car. At some point, defendant confronted Officer Soderberg. The men engaged in a fist fight with both men throwing punches. As Sanchez was trying to inform someone about the fight and to help the officer, he heard gunshots.

Defendant was observed leaving the parking lot with Officer Soderberg’s firearm and proceeded to fire at Mints and multiple officers.

While we do not know the exact circumstances in which defendant first approached Officer Soderberg, the evidence is uncontested that defendant obtained the officer’s firearm and shot the officer three times. Defendant contends that Officer Soderberg’s actions were not in performance of his official duties, but as a victim of a crime.

We reject that position.

Holding

As in Banks, defendant’s actions toward the officer were the commission of a crime, which Officer Soderberg had a duty to prevent. We agree with the Banks court’s conclusion that a police officer has a duty to prevent commission of crime and to defend all lives, including his own. Thus, the trial court, as the factfinder, could find that any action taken by Officer Soderberg to prevent the commission of any crime, including a crime committed against himself, was in performance of his official duties.

In reviewing the evidence in the light most favorable to the State, we accept the trial court’s conclusion that the State sufficiently proved beyond a reasonable doubt that Officer Soderberg was killed while in the course of performing his official duties and affirm defendant’s sentence of natural life.

Affirmed.

It's more than just the types of crimes that are prosecuted. There are fundamental differences between practicing in federal and state criminal court. Episode 548 (Duration 47:50)

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In This Episode...

"Federal judges get their authority from the constitution; they're article III judges. And then they have the federal rules of criminal procedure. They stick to those rules." -- Anthony Sassan

Thinking about dipping your toe into federal criminal practice. Here's everything you need to know that's different from state court...

Attorney Anthony Sassan

Attorney Anthony Sassan has an extensive federal and state law practice in Chicago and the surrounding suburban area. 

Anthony and his firm handle the following types of cases:

• Estate Planning
• Probate Litigation
• Federal Criminal Defense
• State Criminal Defense
• Federal Civil Litigation
• State Civil Litigation 
• Closely Held Business Representation 
• Real Estate Closings
• Family Law

Contact Information

Sassan & Sassan
161 North Clark Street Suite 1600
Chicago, IL 60601-3338

(312) 972-9050
[email protected]
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"Can't Miss" Moments:

✓ How to start a federal criminal law practice even if you have no federal experience what-so-ever. (Go to 2:30)

✓ The Criminal Justice Act (CJA) describes how "panel attorneys" are appointed to represent federal defendant's who can't afford their own attorneys. This is a way to get paid for representing indigent clients in federal court. (Go to 3:42)

✓ One big difference in federal court is that you see big conspiracy cases with multiple defendants...someone has to represent them. (Go to 4:12)

✓ In a nutshell, these two words explain most of the differences between state and federal court. Master this lesson and you'll become a federal court wizard in no time. (Go to 6:23)

✓ Illinois is just coming around to reforming it's bail system. Here's how the feds have handled pretrial detention. (They don't call it bail in federal court. It's never been about the money for them). The words may be different but some things work the same way as in state court. (Go to 7:41)

✓ There's one big thing that is 100 times easier in federal. For the most part, expect everything else to take longer, require more research, more detailed briefs, and to follow strict protocols. (Go to 11:48)

✓ You don't have to worry about a "Santiago" proffer in state court. Expect to deal with them in the federal system as part of your discovery. Plus, jump to minute (18:30) to hear more about federal discovery practice. You got to know about the "2 week" rule.

✓ There's no single bigger contrast than the difference between a trial date in federal court versus a trial date in state court. Why you'll never see more than 3 cases set for trial on the same date in federal court. What you should never do if you think you need a trial continuance. And what happens when you give federal prosecutors the right to a jury trial in criminal cases. (Go to 21:58)

✓ The one question that's the most difficult to answer when you represent individuals in federal criminal court...The 3 basic stages of every federal sentencing hearing...Why it all feels like cold pleas in federal court... (Go to 29:20)

✓ What you can expect when federal law enforcement witnesses take the stand, and the real reason why federal investigators can be perceived as more professional than local law enforcement. (Go to 43:05)

Links & Resources

• U.S. District Court Northern District of Illinois - Attorney Information 
• U.S. District Court Northern District of Illinois - Admission to the General Bar
• Attorney Admission Frequently Asked Questions 
• Frequently Asked Questions about Trial Bar Membership
• Instruction For Admission To The General Bar
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See Also

You may also want to check out...

• Episode 359 What You Need To Know About The Illinois Bail Reform Law
• Illinois Bail Bond Law Ten Percent Rule May Cause Heart Attack to the Uninformed

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People v. Lopez, 2018 IL App (1st) 153331 (October). Episode 549 (Duration 12:56)

Is the identity of a driver subject to suppression after an illegal traffic stop?

Gist

On appeal, defendant contends that the court erred in denying his motion to quash arrest and suppress evidence. Specifically, he argues that the anonymous tip relied upon by the arresting officer was unreliable and inadequate to establish reasonable suspicion of drunk driving.

We reverse.

Charges

Defendant was charged with DWLS under section 6-303(a) of the Illinois Vehicle Code, stemming from a traffic stop. The court found defendant guilty and sentenced him to 24 months’ probation and 30 days’ imprisonment.

The Tip

The arresting officer testified that at around 8:00 p.m., he was on duty near the intersection of Pulaski Road and 50th Street in Chicago.

He received a message from another police vehicle that there “was a DUI driver heading outbound on Pulaski from 43rd Street.” The vehicle was described as a black Expedition with a partial license plate number NZ 1. The driver was described as “a male Hispanic.”

The officer did not know the identity of the person who reported the alleged drunk driver, nor did he know how much time elapsed between the initial report and the eventual traffic stop. He “guessed” that two minutes passed between the time the tip was reported and the time he identified the vehicle. This guess was based on the time it would take a car to travel from 43rd Street to 50th Street.

The Stop

The officer then spotted a black Expedition, with a license plate starting with N 211 driving southbound on Pulaski Road. He pulled up behind the Expedition at the intersection of Pulaski Road and 50th Street. He did not observe any traffic violations or improper lane usage.

After the light turned green, he activated his emergency lights, and the Expedition immediately pulled over. He did not have a warrant. Defendant was quickly identified and the officer determined that defendant’s license was not valid. He then arrested defendant for driving without a valid license.

Later defendant was charged with DWLS.

Issue

Defendant contends that the circuit court erred in denying his motion to quash arrest and suppress evidence because the officer lacked reasonable, articulable suspicion of criminal activity to perform the traffic stop.

Informant's Tip

When analyzing whether an informant’s tip is sufficient to justify an investigatory stop, the court first assesses the reliability of the tip. Navarette v. California, 572 U.S. ___, ___, 134 S. Ct. 1683, 1688 (2014). If the tip is found to be reliable, the court then analyzes whether the tip “created reasonable suspicion of an ongoing crime *** as opposed to an isolated episode of past [wrongdoing].”

Informant's DUI Tip

This court has had many opportunities to review the question of how reliable and detailed an informant’s tip about an allegedly drunk driver must be to justify an investigatory stop. See, e.g., Village of Gurnee v. Gross, 174 Ill. App. 3d 66, 69 (1988) (“reckless driving complaint, standing alone, did not provide articulable facts sufficient to justify an investigatory stop”); Village of Mundelein v. Minx, 352 Ill. App. 3d 216, 222 (2004) (finding “report[ ] that defendant was ‘driving recklessly,’ without indicating what observations led [the tipster] to this conclusion, e.g., whether defendant was speeding, running red lights, weaving between lanes, etc.” insufficient to justify stop); People v. Shafer, 372 Ill. App. 3d 1044, 1054 (2007) (finding tip from restaurant employee about a customer who was “creating a disturbance and was intoxicated” at drive-thru window reliable); People v. Meo, 2018 IL App (2d) 170135, ¶ 3 (finding tip by store clerk that customer “ ‘had driven up to the front of the building, hitting the curb, going over the curb, and *** almost going into the building’ ” sufficient).

However, most of our cases predate the United States Supreme Court’s decision in Navarette, and none of our cases after Navarette rely heavily upon it.

See Also Naverette

See Episode 101 - See Navarette v. California, 134 S.Ct 1683 (2014) (April).

In Navarette, the police received a 911 call reporting a pickup truck of a specific make, model, color, and license plate number that allegedly “[r]an the reporting party off the roadway.” Navarette, 572 U.S. at ___, 134 S. Ct. at 1687.

The report indicated that the truck was last seen heading southbound around a specific mile marker on Highway 1, approximately five minutes before the report was relayed to the eventual arresting officers. Approximately 13 minutes later, a police officer observed a truck matching the description from the report and followed it for 5 minutes before pulling it over. During the five minutes that the officer followed the truck, he did not observe any moving violations or “additional suspicious conduct.”

As the police approached the stopped truck, they smelled marijuana. Upon searching the truck, the police found 30 pounds of marijuana.

Although the tip was anonymous and the police officer did not observe any suspicious or illegal behavior, the Court found that there was adequate reasonable suspicion for the officer to conduct an investigatory stop.

Although it appears the tipster did give her name to the 911 dispatcher, neither she nor the dispatcher testified. Consequently, the 911 recording was not entered into evidence, and the Court treated the tip as anonymous.

Naverette Tip Was Reliable

The Court made three observations in analyzing the reliability of the tip.

First, “by reporting that she had been run off the road by a specific vehicle *** the caller necessarily claimed eyewitness knowledge of the alleged dangerous driving.” A firsthand basis for knowledge of the alleged wrongdoing lent considerable weight to the reliability of the tip.

Second, the contemporaneous nature of the tip made it more reliable. The timeline of events and distance between the alleged act of reckless driving and the location where the police first identified the vehicle created the inference that the tip was made based on contemporary knowledge. 

Third, the Court found that the very nature of the 911 emergency system lent some support to the reliability of the tip. Because 911 calls are recorded, allowing callers to be identified by voice, and 911 callers can be located geographically and by telephone number, the Court concluded that “anonymous” tips submitted by calling 911 are more reliable than other anonymous tips because “a false tipster would think twice before using such a system.” 

Ongoing Criminal Activity

Having found that the tip was reliable, the Court then analyzed whether the tip “created reasonable suspicion of an ongoing crime such as drunk driving as opposed to an isolated episode of past recklessness.

The Court explained that certain dangerous behaviors are recognized as indicia of drunk driving, such as swerving or “weaving all over the roadway.” A tip alleging that sort of behavior, the Court reasoned, “generally would justify a traffic stop on suspicion of drunk driving.” Critically, the tipster in Navarette “reported more than a minor traffic infraction and more than a conclusory allegation of drunk or reckless driving. Instead, she alleged a specific and dangerous result of the driver’s conduct: running another car off the highway.” 

Similar To Navarette

This case is very similar.

As in Navarette, this case involves an anonymous tip including details such as the car model, color, location, and direction. Both tips also included a license plate number, albeit a partial one in this case. When the police responded in both cases, they identified the subject vehicle travelling on the indicated road, in the indicated direction.

And in both cases, the police initiated an investigatory stop without observing any violations or suspicious activity.

Different Reliability & Sufficiency

These cases differ, however, in both the reliability and sufficiency of the tip.

The tip in this case lacks some of the indicia of reliability found in Navarette. The Navarette tipster specifically alleged that she was an eyewitness to the driver’s dangerous conduct. In this case, the tip was about “a DUI driver,” with no specific allegations as to what the tipster witnessed or had particular knowledge of to conclude that the driver of the black Expedition was intoxicated.

Instead of specific allegations of wrongdoing and a basis for the tipster’s knowledge of the wrongdoing, the tip contained nothing more than a conclusory allegation of drunk driving and no alleged basis for that knowledge.

Additionally, nothing in the record indicates the source of the tip at issue here.

Was This A 911 Call?

In this case there is no evidence here that the tipster contacted the police through an emergency number.

Where there is no evidence that the tipster gave a name or contacted the police through an emergency number, “the tip must be treated as an anonymous one, and its reliability hinges on the existence of corroborative details observed by the police.” People v. Smulik, 2012 IL App (2d) 110110, ¶ 8.

Analysis

In this case, the details corroborated by the officer included the

• general location
• direction
• make and
• color of the vehicle.

The partial license plate number NZ1 was also essentially corroborated. A mistake in identifying a “2” as a “Z” is understandable, particularly if the informant identified the plate while the vehicle was moving. 

The detail that the driver was “a male Hispanic” was not corroborated until after the stop. The officer did not testify that he saw defendant at all until after he initiated the stop. “Only the facts known to the officer at the time of the seizure can be considered in determining whether the seizure was proper— information gained after the seizure is made must be disregarded.” Village of Mundelein v. Thompson, 341 Ill. App. 3d 842, 848 (2003).

What Criminal Activity?

These details are adequate to establish that the police have identified the person whom the tipster meant to accuse.

“Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.” Florida v. J.L., 529 U.S. 266, 272 (2000); Shafer, 372 Ill. App. 3d at 1050 (holding that tip must provide adequate details to identify the proper vehicle and contain sufficient detail to permit reasonable inferences that the caller actually witnessed an ongoing offense).

“A reliable tip will justify an investigative stop only if it creates reasonable suspicion that ‘criminal activity may be afoot.” Terry v. Ohio, 392 U.S. 1, 30 (1968). The tip, therefore, must include specific allegations of observed violations or conduct that led the informant to the conclusion that the driver was involved in an ongoing crime.

Holding

Navarette was a “close case”, but the Court found that, under the totality of the circumstances, the tip had sufficient indicia of reliability. Navarette, 572 U.S. at ___, 134 S. Ct. at 1692. Because the indicia of reliability in this case fall well below those in that case, particularly with regard to the source of the tipster’s alleged knowledge of an ongoing offense, we find that the tip was not reliable and therefore could not justify the traffic stop.

The critical allegation that the driver was “intoxicated” was neither specific nor corroborated.

Here, the alleged illegal conduct is equally conclusory: “a DUI driver.” There is no allegation of specific behavior or interactions that could have led to the conclusion that the driver was intoxicated. The officer did not observe any violations or even suspicious behavior by defendant. Without any specific allegation or indication of wrongdoing, the officer could not have had a reasonable suspicion that defendant was engaged in an ongoing crime.

Because the tip was neither reliable nor sufficiently detailed to justify a traffic stop, we hold that the officer violated defendant’s constitutional right to be free from unreasonable seizure.

Exclusionary Rule

Our supreme court has held that the “fruit of the poisonous tree” doctrine “is an outgrowth of the fourth amendment exclusionary rule.” People v. Henderson, 2013 IL 114040, ¶ 33; see also Alderman v. United States, 394 U.S. 165, 171 (1969). “Under this doctrine, the fourth amendment violation is deemed the ‘poisonous tree,’ and any evidence obtained by exploiting that violation is subject to suppression as the ‘fruit’ of that poisonous tree.” Henderson, 2013 IL 114040, ¶ 33.

The exclusionary rule applies not only to physical evidence but “to any ‘fruits’ of a constitutional violation—whether such evidence be tangible, physical material actually seized in an illegal search, items observed or words overheard in the course of the unlawful activity, or confessions or statements of the accused obtained during an illegal arrest and detention.” United States v. Crews, 445 U.S. 463, 470 (1980).

This rule exists to protect fourth amendment rights by deterring prohibited government conduct. People v. Sutherland, 223 Ill. 2d 187, 227 (2006).

But Defendant's Identity Is Not Suppressible

Because the officer  lacked reasonable suspicion to perform the traffic stop, that stop is a “poisonous tree,” and the circuit court should have suppressed any evidence obtained from that stop.

The State argues, however, that no suppressible evidence was obtained as a result of the traffic stop.

The State argues that, even if the exclusionary rule would otherwise be applicable in this case, the stop did not result in any suppressible evidence because identity-related evidence is never suppressible. For this proposition, the State relies on Immigration & Naturalization Service v. Lopez-Mendoza, 468 U.S. 1032 (1984).

Specifically, the State relies on the following language in Lopez-Mendoza:

“The ‘body’ or identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search, or interrogation occurred.”

The Supreme Court made this statement in the context of addressing a challenge by the defendant “to the fact that he had been summoned to a deportation hearing following an unlawful arrest.”

"Body or Identity" Language

Rather than creating a new class of evidence exempt from suppression, the “body or identity” language merely establishes that exclusionary rule does not apply to civil deportation proceedings.

Florida Case

The Florida Supreme Court addressed the issue thoroughly and persuasively. In State v. Perkins, 760 So. 2d 85, 86-89 (Fla. 2000), the Florida Supreme Court held that Lopez-Mendoza did not bar the exclusion of a police officer’s post-stop observations of the defendant as driver of the vehicle.

In that case, the defendant was stopped illegally by the police, who then learned that his license was suspended. The State conceded the illegality of the stop but argued that Lopez-Mendoza required that the trial court allow evidence obtained from the stop. The Florida Supreme Court held that LopezMendoza did not stand for the proposition that identity-related evidence was per se admissible over a fourth amendment objection.

The court noted that the cases cited in LopezMendoza involved jurisdictional rather than evidentiary objections. Further, the court observed that Lopez-Mendoza’s objection to jurisdiction was treated differently by the Supreme Court than the evidentiary objection of Sandoval-Sanchez. 

After finding that Lopez-Mendoza does not create a new category of unsuppressible evidence, the Florida Supreme Court held that “the evidence required to prosecute the charge of driving with a suspended license came directly from the exploitation of the unlawful stop” and that, therefore, the “officer’s post-stop observation of the defendant behind the wheel must be suppressed.” 

Holding 2

We find this analysis persuasive and, like the Florida Supreme Court, we hold that LopezMendoza’s “body or identity” language applies only to personal jurisdiction, not to the suppression of identifying evidence.

For the same reasons as those presented in Perkins, Officer Martinez’s post-stop observation that defendant was driving the black Expedition must be suppressed.

Therefore, the circuit court erred in denying defendant’s motion to quash arrest and suppress evidence. Because defendant could not have been convicted without the evidence that should have been suppressed, we reverse his conviction. 

See Also

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

People v. Rodriguez, 2018 IL App (1st) 160030 (September). Episode 457 (Duration 6:24)

Can defendant combine a sentence from an earlier crime with the sentence of a new crime to claim a de facto life sentence?

Gist

Defendant, who was 15 years old at the time of the offense, was tried as an adult and convicted by a jury of first degree murder in connection with the drive-by shooting of 18­ year-old victim.

Additionally, the jury found that defendant personally discharged the firearm that proximately caused Vasquez’s death. Defendant was sentenced to 45 years with the Illinois Department of Corrections (IDOC), which was the mandatory minimum sentence he could have received and which included a 25-year enhancement for personally discharging the firearm.

Consecutive Sentences

The trial court observed that defendant’s 45-year sentence in the case at bar was required to run consecutively to a prior sentence. The 45-year sentence was the mandatory minimum sentence he could have received, and it included a 25-year mandatory enhancement for personally discharging a firearm. See 730 ILCS 5/5-8-1(a)(1)(a).

Prior to the disposition of the first degree murder charge Defendant was sentenced in an unrelated case to 20 years for attempted first degree murder. Defendant claims that, as a result, he will not be released until he is 83 years old.

The Time Line

He is 15 when he commits murder. Then he commits attempted murder in an unrelated offense. He is sentenced to 20 years for the attempt first. Then they finally get around to sentencing him to the 45 for the murder he committed as a juvenile. 

Issue

On appeal defendant says his case should be remanded for resentencing because de facto life imprisonment, imposed against a juvenile offender as the result of mandatory sentencing laws, violates the eighth amendment and the proportionate penalties clause.

They Are Looking At His Age When Released

The court was aware of cases saying 45 years is a de facto life sentence.

However, we do not base our holding on these cases. The sentence in this case became a de facto life imprisonment because defendant will be 80 years old when he is released because he must serve 100% of the 45-year sentence (see 730 ILCS 5/3-6-3(a)(2)(i)) and 85% of the 20-year sentence (see 730 ILCS 5/3-6-3(a)(2)(ii)).

The 20-year sentence served at 85% is 17 years.

Seventeen years, plus forty-five years for the murder sentence is sixty-two years. However, at sentencing, defendant received a credit for time served of just over four years. Sixty-two years minus four years meant that he had fifty-eight years more to serve at the time of sentencing. At the time of sentencing, defendant was 22 years old.

Fifty-eight years more to serve for a twenty-two-year old means that he will not be released before age eighty.

Are You Including The 20 Years?

In making this determination, we are including the 20-year sentence in our analysis even though we can find no other case that used two unrelated sentences in computing what the courts consider a de facto life sentence.

We do this to keep with the intentions of the United States and Illinois Supreme Court decisions where the motivation is to somehow save the lives of our youth who commit violent crimes before reaching maturity with the hope that after they reach maturity they will mend the errors in their ways and become useful citizens in the future.

At the 2006 sentencing in this case, the trial court observed that defendant’s 45-year mandatory sentence in the case at bar had to run consecutively to his prior 20-year sentence. 730 ILCS 5/5-8-4(a)(i). The result was de facto life imprisonment, with a release date when defendant will be over 75 years old.  See People v. Coty, 2018 IL App (1st) 162383, ¶ 79 (given that the juvenile defendant will not be released until he is at least 84 years old, “this sentence is equivalent to condemning the defendant to natural life imprisonment”).

Crimes Were Unrelated But The Results The Same

Defendant’s de facto life sentence was the result of mandatory sentencing laws.

At the moment of sentencing in this case, the trial court had no discretion but to enter a sentence that resulted in de facto life imprisonment of defendant. Since defendant was never going to see the light of day, entering a higher sentence would be pointless and does not demonstrate the exercise of any real discretion.

Although defendant’s offenses were not part of a single course of conduct, as they were in Reyes, the effect was still the same in that mandatory laws robbed the sentencing court of any actual discretion. See Reyes, 2016 IL 119271, ¶ 10; see also Nieto, 2016 IL App (1st) 121604, ¶ 42. At the moment of sentencing, the court had no choice but to impose de facto life-without-parole incarceration.

Doesn't Matter One Crime Was Committed When He Was An Adult

A sentencing court must be free to consider the age and maturity of the offender when he committed the crime, the total amount of time he will serve, and his age at release.

Thus, we find unpersuasive the State’s argument that, in order for this court to find that Miller applies, the offenses must have been committed in a single course of conduct. We acknowledge that this is an issue that the United States Supreme Court has yet to resolve.

Calling Out The Court

We wrote in Jackson that if we were “going to hold that” every “de facto life sentence,” whether mandatory or discretionary, “qualifies for consideration under Miller, then we would need a consistent and uniform policy on what constitutes a de facto life sentence.” Jackson, 2016 IL App (1st) 143025, ¶ 57.

We hoped that “a different forum,” i.e., our supreme court, would hopefully provide that guidance shortly.

However, until that happens, the question is properly before us, and our supreme court may be waiting to hear what its appellate courts have to say first, in order to consider our collective wisdom before making its decision. 

Holding

In conclusion, we vacate defendant’s sentence and remand for resentencing under the sentencing scheme found in section 5-4.5-105 of the Unified Code of Corrections (730 ILCS 5/5-4.5-105), as our supreme court did in Reyes. As our supreme court observed, under “this new sentencing scheme, the circuit court will have the discretion not to apply the firearm sentencing enhancements.”

Thus, the trial court will have the discretion to impose, or to not impose, the enhancement.

There Is A Strong Dissent

The majority finds that defendant’s sentence for the murder he committed when he was a juvenile, combined with the sentence he received for a crime committed as an adult triggers the protections of the new juvenile sentencing guidelines prohibiting a de facto sentence of natural life. A consecutive sentence under both the Juvenile Court Act and the adult criminal sentencing statutes, as in this case, does not create a de facto life sentence subject to reversal under the protections given to juveniles pursuant to 735 ILCS 5/5-4.5-105.

There is no case that holds this, and there is no statute that supports the majority’s holding. Therefore, I respectfully dissent.

Plus on top of that there are plenty of cases holding that a 45 year sentence is not a de facto life sentence.

The unique question posed by this appeal is: does this combination of a sentence for an offense committed as a juvenile and a sentence for an offense committed as an adult warrant remand for the trial court to consider all of the mitigation required under the new juvenile sentencing provisions, and to allow the trial court discretion in determining whether to assess to additional firearm enhancement. I maintain that it does not.

If the court had sentenced defendant to a term of imprisonment of 65 years solely for his juvenile offense, I would concur with the majority’s holding. However, that is not what happened in this case, and the majority’s attempt to conflate defendants’ two sentences in order to find them unconstitutional is contrary to our well-established precedent.

The majority’s decision to grant defendant juvenile protections for a crime committed as an adult where he was sentenced as an adult affords defendant protections that are not contemplated by the statute or by Illinois precedent. For the reasons stated, it is my opinion that defendant cannot avail himself of the sentencing protection of the new juvenile sentencing provisions because he was not a juvenile when he committed the attempted murder offense, and I would affirm the trial court’s judgment.

People v. Little, 2018 IL App (1st) 151954 (September). Episode 546 (Duration 10:51)

Trier of fact bias and what it means for criminal justice, trial judge gives his verdict before defense counsel had a chance to give its closing argument.

Gist

Defendant was convicted after a bench trial of aggravated battery of a peace officer (720 ILCS 5/12-3.05(d)(4)) and criminal damage to government supported property.

But this case has an uncommon (albeit not unique) twist:

The trial court acknowledged its inadvertent error, reopened the case after judgment, and promised to “keep an open mind” while hearing counsel’s (admittedly belated) argument. In the end, the trial court stood by its initial conclusion—that the three police officers who testified for the State were more credible than defendant and two relatives who testified on his behalf—and reaffirmed its findings of guilt.

Issue

The question thus presented is whether—and if so, under what circumstances—reopening a bench trial after a premature judgment preserves a defendant’s constitutional right to make a closing argument. Specifically, did the judge in this case adequately protects a defendant’s sixth amendment right to make a closing argument, and, as a corollary, his due-process right to a fair and open-minded trier of fact.

Facts

The trial court heard testimony from three police officers, who testified that a drunk and unruly defendant resisted their efforts to subdue him, making the prohibited physical contact with two officers in the process.

The trial court also heard “diametrically opposed” testimony from defendant and two of his relatives, who testified that a swarm of police officers descended upon the bar’s parking lot and “just went berserk on people,” including defendant, for no particularly obvious reason.

Police Said

The bench trial consisted of the police trying to talk to defendant about an argument with a women in the parking lot of a bar. They said defendant was belligerent, hostile and aggressive with them. A struggle ensued when they tried to arrest him.

Defendant Said

Defendant and his witnesses testified that the police were harassing people in the parking lot and approached defendant and hit him in the face with a baton for no reason. A struggle then ensued.

Bench Trial

After the defense rested, the trial court continued the case, so the judge could review his notes and the trial transcripts. The court did not hear closing arguments at that time. When the case was eventually recalled nearly three months after the close of evidence, the trial court immediately announced its findings.

The court found that the case boiled down to a credibility contest; that the officers testified credibly; and that defendant’s relatives “had a motive not to be truthful” on the stand.

The trial court found defendant guilty of several counts of aggravated battery of a peace officer. The counts were all based on making physical contact of an insulting or provoking nature. Defendant was acquitted of the counts charging him with causing bodily harm to the officers. The trial court also found defendant guilty of one count of criminal damage to government-supported property.

What About My Closing Argument?

When it became apparent he judge had ruled, defense counsel immediately, if sheepishly, asked, “[d]id we ever argue this case?” The trial court initially said yes, but soon conceded its error.

When counsel then asked, “Do you think argument is gonna change your mind?,” the court answered, “I have no idea,” but assured counsel “that I will keep an open mind.”

Counsel made his closing argument without interruption, focusing on the role of the bar’s security guards and their failure to testify.

When counsel finished summing up, the trial court reiterated its findings of guilt. As the judge explained to counsel, he had spent several hours reviewing his notes and the transcripts, and “my opinion does not change after your closing argument.” The judge apologized for announcing his findings prematurely, but added, again, that “nothing that you said, [counsel], would have changed my mind.”

The State waived both its closing argument and rebuttal.

Still Guilty

The trial court reiterated its findings of guilt after hearing counsel’s belated argument.

As the judge explained, “I spent probably—probably six or seven hours going over this case in my mind, again reviewing everything that I have, and my opinion does not change after your closing argument.” The judge apologized to counsel for not letting him argue the case first, but added, again, that “nothing that you said, [counsel], would have changed my mind.”

Probation

The trial court merged the various counts of aggravated battery to a peace officer into two (one for each victim), and sentenced defendant—who had no prior felony convictions and was gainfully employed—to two years’ probation.

Right To Closing Argument

The sixth amendment guarantees every defendant the right to make a closing argument, whether he elects a jury or a bench trial, and no matter how “simple, clear, unimpeached, and conclusive the evidence may seem.” (Internal quotation marks omitted.) Herring v. New York, 422 U.S. 853, 856-57, 860 (1975). When this right is completely denied, “[t]here is no way to know” what arguments in summation might have affected the outcome of the case. Id. at 864.

Thus, although Herring did not say so explicitly, courts have universally read that decision to require automatic reversal when defense counsel is not permitted to argue the case. See, e.g., People v. Millsap, 189 Ill. 2d 155, 166 (2000); People v. Stevens, 338 Ill. App. 3d 806, 810 (2003).

But that is not—or not exactly—what happened here.

Analysis - Unbiased Trier of Fact

A trier of fact should strive to suspend judgment, as best it can, until the end of the trial.

But that is possible only to a point. Judges and jurors inevitably form beliefs about the evidence presented to them as the case unfolds. For instance, a belief that a witness is telling the truth—or not—will sometimes impress itself upon the trier of fact in real time, as it observes the witness on the stand. 

And when the evidence as a whole strikes the trier of fact as simple and decisive enough—if, for example, the case turns on the testimony of a witness whose credibility seems immediately apparent—the verdict, unavoidably, will also seem clear to the trier of fact long before closing argument. But even in these circumstances closing argument may still change the trier of fact’s mind. See Herring v. New York, 422 U.S. 853, 856-57, 860 (1975). 

No matter how “simple” or “open and shut” the case may seem, it is always possible that the trier of fact has missed something—a doubt about a witness, a gap in the State’s proof, some connection between various evidentiary facts—and so has misjudged the case prematurely. And it is always possible that counsel, marshalling the evidence “from the point of view most favorable to” the defendant, will bring that error to light, and thus “correct” the trier of fact’s “misjudgment,” in closing argument.

The Court’s faith in the power of an advocate’s argument to sway the verdict even in these seemingly futile circumstances is an essential part of why the right to closing argument fundamental.

Bias Is Always There

This bias is always with us. It influences every trier of fact’s view of the evidence as the trial unfolds. We cannot pretend otherwise without embracing the very fiction that Herring rejected. We hope that every trier of fact will fight against this bias, and strive—against its own human tendencies—to consider new evidence and arguments fairly, no matter how clear the verdict may seem in light of the evidence already presented.

Defense Is Wrong

But we could not make sense of this holding if we accepted a key premise of defendant’s argument—that we cannot reasonably expect closing argument to change the trier of fact’s mind, once it has come to a conclusion about the defendant’s guilt.

Herring tells us that the trier of fact could change its mind.

It is not wrong, but it is overly simplistic, to insist that a fair and open-minded trier of fact is one that “hears before it decides.” Spence, 463 A.2d at 811(quoting People v. Diaz, 1 Ill. App. 3d 988, 992 (1971)). We need not—because Herring does not—indulge the fantasy that a trier of fact will suspend all judgment until the last word is uttered in rebuttal argument.

The Kind Of Jury We Want

Instead, the fair and open-minded trier of fact to which every defendant is entitled is one that—while striving to suspend judgment, as best it can—is open to revising the views it does reach along the way. It is a trier of fact that remains open, at all times, to the possibility that its impressions and beliefs thus far may ultimately be wrong, upon further evidence, argument, or reflection.

It is a trier of fact that listens attentively and patiently, until the very end, for any evidence or argument that might sway its verdict.

Yeah, But When You Announce Your Bias Is It Too Late?

But what about a case like this one—where the trial court took the next step and actually announced its judgment before hearing closing argument? Can a judge, in these circumstances, still hear a belated argument with an open mind? Or is it too late, at that point, for argument to be anything but futile? 

That next step is not a trivial one.

Reversing the order of argument and verdict is not a merely formalistic error. The verdict is obviously meant to have a finality that any previous impressions or beliefs about the evidence lacked. But we think it goes too far to say that a judge who has committed this error at a bench trial is necessarily incapable of giving full and fair consideration to a belated defense argument; or of being persuaded, when the argument is compelling, that his or her view of the evidence was wrong. 

The Rule

We are not convinced that a premature bench-trial verdict is, as it were, a “bell” that can never be “unrung.” We glean the following rule from these cases:

Reopening a case for closing argument is an adequate remedy for a premature judgment when the record shows that the judge was willing to hear the defense’s argument with an open mind—that is, where the judge acknowledges (or at least does not overtly reject) the possibility that counsel’s argument could still change the judge’s mind about the outcome of the case.

But if the record shows that the judge was unwilling to keep an open mind, or expressed the view that he simply could not, then the only remedy that would protect the defendant’s constitutional rights would be a new trial, before a different judge.

We do not deny that human beings may be subject to confirmation bias. And we are mindful that a defendant’s right to an unbiased and open-minded trier of fact is of paramount importance. But we reject the conclusion that once the trier of fact has reached a conclusion about the case, closing argument is necessarily futile, because the trier of fact can no longer hear and consider the argument fairly.

This Isn't Exactly Propensity Evidence

That metaphor may be apt enough when, for example, a trier of fact is asked to disregard prejudicial evidence. Perhaps the clearest case is propensity evidence—evidence that is inadmissible despite being relevant. See, e.g., People v. Donoho, 204 Ill. 2d 159, 170 (2003) (propensity evidence “not considered irrelevant”; rather, it has “too much probative value” (internal quotation marks omitted)).

Because such evidence is relevant, a rational person ordinarily would want to consider it when trying to get at the truth; and for that reason, such evidence, once heard, may simply be too difficult to ignore (even if the law has its reasons for asking the trier of fact to do so). But a judge who is asked to consider a belated argument is not being asked to disregard relevant evidence. The judge is simply being asked to hear an argument with an open mind and give it whatever consideration it deserves.

Defendant’s burden is to explain why a trial judge’s ability to keep an open mind—in the sense we have explained—ends, irrevocably, when a judgment is announced prematurely. The metaphor of “unringing the bell,” in this context, explains nothing.

Analysis

What do we mean by being open-minded, and no doubt some triers of fact will succeed more than others? 

Does a trial court’s confirmation bias strengthen when the court formally announces its verdict? Perhaps. But we cannot honestly claim to know. Neither can defendant. Even less can he claim to know that the bias becomes decisive at that point, leaving the judge unable to consider a belated argument with a fair and open mind.

We have not been given any clear reason to adopt that blanket presumption. And without it, there is no basis for applying a bright-line rule of reversal when a trial court reopens a bench trial, after a premature judgment, to hear closing argument.

We adhere to our holding in Daniels, 51 Ill. App. 3d 545, as we have elaborated it here. See also Herring v. New York, 422 U.S. 853, 856-57, 860 (1975). To recap:

Reopening a case for closing argument is an adequate remedy for a premature judgment at a bench trial when the record shows that the judge was willing to hear the defense’s argument with an open mind. But if the record shows that the judge was not willing to keep an open mind, or expressed the view that he or she could not, then the defendant is entitled to a new trial before a different judge.

All that remains is to apply this rule to the record before us.

The court clearly made an honest mistake in thinking, nearly three months after the close of evidence, that it had previously heard closing arguments. The trial court never intended to deprive defendant of his closing argument, and it never expressed the attitude that closing argument was in any way dispensable. Nor did the trial court’s comments in any way “manifest an unwillingness to hear [the defendant’s] closing argument” fairly.

The trial court here promised to “keep an open mind.”

The court could hardly have been clearer that it was willing to listen to counsel’s argument and give it whatever consideration it deserved on the merits. Nothing in the record suggests that the court’s promise was insincere, or that the trial court failed in its “obligation to be attentive, patient, and impartial” while hearing counsel’s argument.

Holding

In sum, defendant was not denied his sixth-amendment right to make a closing argument. Nor was he denied a fair trial before an open-minded trier of fact. For the foregoing reasons, defendant’s convictions and sentence for aggravated battery of a peace officer and criminal damage to government-supported property are affirmed.

This is the September 2018 Illinois criminal case law audio round-up (the fast case law summary). Episode 545 (Duration 22:29)

The September 2018 Top Illinois Criminal Law Cases (The Monthly Round-Up)

Here's a quick snapshot of the top cases:

1. People v. Walker

Turns out we've been misreading the "proper turn" statute all along.

2. People v. Dailey

One hand to hand creates reasonable suspicion for a traffic stop.

3. People v. Bingham

Appellate court has no jurisdiction to waive a sex offender registration requirement.

4. People v. Nere

Prepare for a PhD on criminal causation in this drug overdose case.

5. People v. Gocmen

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

6. People v. Guerrero

Former prosecutor jumps to pd and then represents defendant in a post trial motion.

7. People v. Goodwin

Defendant mouth's off to a prosecutor but this was not threatening a public official.

8. People v. Pearson

55 year sentence is not a de facto life sentence.

9. People v. Rodriguez

Can defendant combine a sentence from an earlier crime with the sentence of a new crime to claim a de facto life sentence?

10. People v. McPherson

Defendant was given 6 consecutive years for refusing to testify against his brother.

11. People v. Brewer

Defendant takes an officer's gun and shoots and kills him as he is ending his shift, was the officer still on duty acting as an officer?

12. People v. Jackson

This was a case where all the witnesses recanted their statements but defendant's postconviction petition is denied.

13. People v. Miramontes

Counsel was ineffective for stipulating to the weight of the drugs; watch out for not sufficiently homogenous amounts.

14. People v. Little

Trier of fact bias and what it means for criminal justice, trial judge gives his verdict before defense counsel had a chance to give its closing argument.

15. People v. Gonzalez

Defendant not allowed to admit his tattoo, in a really close case reversal is required.

People v. Guerrero, 2018 IL App (3d) 170786 (September). Episode 544 (Duration 6:00)

Former prosecutor jumps to public defender's office and then represents defendant in a post trial motion.

Gist

Defendant cold plead to a cannabis distribution charge. He got probation then was litigating the plea and trying to vacate it based on improper immigration admonishments.

ASA Goes To PD

Then the prosecutor who handled the sentencing hearing jumped to the public defenders office and represented defendant on his post trial motion.

Issue

Defendant first contends that his post plea counsel labored under a per se conflict of interest, as he appeared for the State at defendant’s sentencing hearing.

Per Se Conflict of Interest

When a per se conflict exists, the defendant need not show that the conflict prejudiced him, and the court on appeal must reverse unless the defendant affirmatively waived the conflict. People v. Spreitzer, 123 Ill. 2d 1, 14-17 (1988).

“Unless a defendant waives his right to conflict-free representation, a per se conflict is automatic grounds for reversal. A per se conflict of interest occurs:

(1) where defense counsel has a prior or contemporaneous association with the victim, the prosecution, or an entity assisting the prosecution; 
(2) where defense counsel contemporaneously represents a prosecution witness; and 
(3) where defense counsel was a former prosecutor who had been personally involved with the prosecution of defendant.

Error

The State confesses error.

We accept the State’s confession. 

Where counsel represented the prosecution in the same case, “inquiry into the precise nature and extent of [counsel’s] personal involvement is [n]either necessary [n]or desirable.” People v. Kester, 66 Ill. 2d 162, 168 (1977).

He Did The Sentencing For The State

Here, Hansen appeared on behalf of the State during defendant’s sentencing hearing. He then went to work for the public defender’s office and represented defendant during his motion to withdraw guilty plea. Because Hansen represented the interests of the State during defendant’s case before representing defendant, Hansen labored under a per se conflict of interest.

No Waiver

There is nothing in the record to show that defendant affirmatively waived this conflict.

Holding

Therefore, we vacate the circuit court’s order denying defendant’s motion to withdraw guilty plea and remand for new post plea proceedings, including (1) the appointment of conflict free counsel, (2) the opportunity to file a new motion to withdraw guilty plea, if counsel deems a new motion is necessary, (3) certification under Illinois Supreme Court Rule 604(d), and (4) a new hearing on the motion to withdraw guilty plea.

See Also

• Episode 516 - People v. Jackson, 2018 IL App (3d) 170125 (May) (former ASA goes to work for defense firm)
• Episode 375 – Nrupa Patel Helps Dissect Conflict Of Interest Confronting Former Prosecutors
• People v. Schutz, 2017 IL App (4th) 140956 (June). Episode 379 (Jailhouse Client Turned Informant On Another Client – Ethical Dilemma Ensues)
• Episode 056 – See People v. Shepherd, 2015 IL App (3d) 140192 (February) (Ethical Violation After a Meeting With Prosecutor)
• People v. Nelson, 2017 IL 120198 (June). Episode 252 (Did The Defense Team Pick The Wrong Defense Because Of A Conflict Of Interest?)

People v. Goodwin, 2018 IL App (1st) 152045 (September). Episode 543 (Duration 21:33)

Defendant mouth's off to a prosecutor but this was not threatening a public official.

Gist

Defendant was charged with threatening a public official, intimidation, and unlawful restraint after he yelled obscenities at an assistant state’s attorney and followed her down the hall of the courthouse to her office.

After a jury trial, defendant was convicted of threatening a public official and unlawful restraint. He was ultimately sentenced to 2 1/2 years imprisonment.

What Happened?

Traffic court at the Daily Center had one ASA and her clerk. She was pregnant. The call was heavy and the judge was late taking the bench. The judge took the bench and called the first case. But the guy's attorney had to be in federal court at 10 a.m., and asked the ASA to put his name in the record and ask for a short date.

In response, the judge “yelled” at the ASA sayin, something like:  “How dare you let attorneys leave, I wanted this case called.”

The ASA stated that the judge gave the case a very short date and “threw some papers and stormed off the bench and yelled at me to get my shit together.” She thought they guy might think the judge was yelling at him, so she told him to come to her office down the hall to call his attorney and let him know what happened.

The Defendant

The two turned towards the back of the courtroom and walked down the aisle towards the double doors, only one of which opened. A man, whom she identified as defendant, was standing by the door that did not open and “approached me and he was like laughing and kind of pointing his finger, oh, you made the judge mad; ha, ha, you made the judge mad.”

The ASA testified that she responded, “between the two of us you are here on bond, so why don’t you find a seat.”

As a result, defendant “got really loud and really angry, and he started putting his finger in my face and said, come back here and say that to my face, get back here and say that to my face.”

She then went to walk out the door with the other guy without the attorney still to her right. Defendant squeezed through the door with her at the exact same time, so he was right in her face. They walked 40 feet to small satellite office. On the way to the office, defendant followed her. The whole time he was just screaming louder and louder things like; "fuck you bitch, come back here and say that to my face, you can’t talk to me, fuck you bitch." Screaming right in her face.

When she got to the office she reached for the door handle and defendant “turned like right in front of the door, like right in front of me so I [could not] get into the door.” She could not get into her office at this point because defendant’s body was blocking the door.

Other Dude Helps Out

The guy without his attorney was walking down the hallway with the ASA and defendant. He got between them when she was trying to get into the office and helped her out a bit.

Defendant was outside the door in the hallway while defendant was in the office. He was yelling the whole time and she couldn't leave.

Sheriff Shows Up

Eventually, her collegaues so what is going on and they go and fetch the sheriff.

 Shortly thereafter, the sheriff came to the office, and defendant left. Defendant never verbally threatened her with bodily harm. While defendant was standing outside her office, he was on the phone. 

Threatening A Public Official

Section 12-9 of the Criminal Code of 2012 (Code) (720 ILCS 5/12-9 (West 2014)) provides, in relevant part:

“(a) A person commits threatening a public official or human service provider when:

(1) that person knowingly delivers or conveys, directly or indirectly, to a public official or human service provider by any means a communication: (i) containing a threat that would place the public official or human service provider or a member of his or her immediate family in reasonable apprehension of immediate or future bodily harm, sexual assault, confinement, or restraint; or *** and

(2) the threat was conveyed because of the performance or nonperformance of some public duty or duty as a human service provider, because of hostility of the person making the threat toward the status or position of the public official or the human service provider, or because of any other factor related to the official’s public existence.”

What Does "Threat" Mean?

Further, the jury was given an instruction regarding the definition of a threat based on IPI Criminal 4th No. 13.33F (1)-(2), (5). Specifically, the court stated,

“The word threat means a menace, however communicated, to inflict physical harm on the person threatened or any other person or on property or subject any person to physical confinement or restraint or expose any person to hatred, contempt, or ridicule.”

Issue

We first address defendant’s contention that the State failed to prove him guilty beyond a reasonable doubt of the offense of threatening a public official.

 Defendant argues that he did not convey a threat, let alone a “true threat” as was necessary in order to convict. He says his conviction violates the first amendment of the United States Constitution.

The First Amendment

The first amendment, applicable to the states through the fourteenth amendment, prohibits the enactment of laws “abridging the freedom of speech.” U.S. Const., amends. I, XIV.

The first amendment signifies that the government does not have the power to prohibit expression based on its subject matter, message, ideas, or content. However, the Supreme Court has recognized that there are categories of expressions that are not protected by the first amendment, such as “true threats.” United States v. Alvarez, 567 U.S. 709, 717 (2012) (plurality opinion).

What's A "True Threat"?

We have consistently held that if the State charges a defendant with making a threat of violence, the threat must be a “true threat,” or else the prosecution would violate the first amendment. People v. Wood, 2017 IL App (1st) 143135. Further, when interpreting section 12-9 of the Code, “we have held that intentionality on the defendant’s part is required.” Wood, 2017 IL App (1st) 143135, ¶ 13 (citing Dye, 2015 IL App (4th) 130799, ¶ 10). In Dye, this court observed that

“a ‘true threat’ requires intentionality, in contrast to section 12-9(a)(1), which, by its terms, requires merely knowledge (‘knowingly’).”

Dye, 2015 IL App (4th) 130799, ¶ 10. This means that in order for a defendant’s conviction for threatening a public official to stand, the threat must have been a “true threat.”

See id. In Virginia v. Black, the Supreme Court explained a “true threat” as follows:

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

538 U.S. 343, 359-60 (2003).

The Dictionary On Threat

Black’s dictionary says that “ ‘[t]rue threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Black, 538 U.S. at 359-60.

The "True" Issue

Pursuant to Black, the question we must address is whether the State proved beyond a reasonable doubt that defendant communicated a serious expression of intent to commit an act of unlawful violence against the ASA that placed her in reasonable apprehension of immediate or future bodily harm, sexual assault, confinement, or restraint.

The Objective Test

It appears that the Seventh Circuit’s approach has been, and remains, an objective one, which allows evaluation of the speaker’s communication under either the reasonable-speaker or the reasonable-recipient test. (As opposed to a test that consider's the speaker's subjective intent.) See People v. Diomedes, 2014 IL App (2d) 121080, ¶ 35 (feds apply a more objective test).

Further, although courts in this state have not explicitly decided the issue, the approach also appears to be objective. In addressing that claim, the court noted that, while there has been a federal split of authority interpreting Black, Illinois courts have found that the term ‘threat’ implies generally that the expression has a ‘reasonable tendency to create apprehension that its originator will act according to its tenor.’

This definition suggests that an objective, not a subjective, approach continues to apply. Therefore, it appears that neither the objective reasonable-speaker nor the objective reasonable-recipient approach is foreclosed from our consideration. Indeed, in our view, the reasonable-speaker test, by requiring consideration of how others might interpret the communication, essentially subsumes or encompasses the reasonable recipient test.

Defendant Might Lose Under A Purely Objective Test

In any event, even applying, per defendant’s request, the reasonable speaker approach, we conclude that the evidence here is such that a speaker would reasonably foresee that a listener would reasonably interpret the communication as a serious expression of intent to harm.” 

People v. Dye

Conversely, defendant relies on Dye and Wood as support for a test with a subjective component.

In Dye, the Fourth District applied a subjective test in reaching its conclusion that the evidence did not prove that when the defendant told an assistant public defender, “I’m gonna get you,” the defendant intended to convey the idea of violent retribution, as opposed to nonviolent retribution.

See Episode 089 - People v. Dye, 2015 IL App (4th) 130799, ¶ 12 (August).

People v. Wood

Similarly, in Wood, this court determined that the Supreme Court’s decision in Elonis v. United States, 575 U.S. ___, ___, 135 S. Ct. 2001, 2011 (2015), required that “statutes criminalizing speech for being threatening require proof that the speaker intends the communication to be a threat and that a reasonable listener would understand the communication to be threatening.”

See Episode 426 - People v. Wood, 2017 IL App (1st) 143135, ¶ 13 (November). 

Defendant's Intent Matters

The State has failed to present, and we have not found, a compelling reason why we should depart from the test applied by this court in Wood. We apply the same test as in Wood, and thus decide whether the State proved beyond a reasonable doubt that defendant intended his communication to the ASA to be a threat that a reasonable listener would understand to be threatening.

Had we opted to apply the State’s version of the test, then our question would be whether the State proved beyond a reasonable doubt that a reasonable person in defendant’s position would have foreseen that a listener would reasonably interpret his communication as a serious expression of intent to harm.

There Is Also A Knowledge Requirement

We also fail to see how the State could prove the requisite elements of threatening a public official without a subjective component because section 12-9 of the Code requires that a person “knowingly” convey a communication containing a threat. 720 ILCS 5/12-9.

A person acts knowingly if he is consciously aware that his conduct is practically certain to cause the prohibited result. People v. Lengyel, 2015 IL App (1st) 131022, ¶ 45. Thus, the language of the statute makes clear that defendant’s subjective intent is relevant to determine whether the State satisfied the requisite elements.

Analysis - Wood

We find that, viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found the essential elements of threatening a public official beyond a reasonable doubt where the State presented no evidence that defendant meant to communicate a serious expression of an intent to commit an unlawful act of violence.

In Wood, this court was recently faced with a question similar to the one before us now. There, the defendant was charged with threatening a public official after he left a voicemail for his public defender wherein the defendant stated, inter alia, that he hated the judge who presided over his case and “pray[ed] for the death and destruction upon the judge and upon every single person who sentenced [him].” Wood, 2017 IL App (1st) 143135, ¶ 4.

The court further explained, “Under recent Supreme Court precedent, statutes criminalizing speech for being threatening require proof that the speaker intends the communication to be a threat and that a reasonable listener would understand the communication to be threatening.” The Wood court stated that the defendant’s statements were not “ ‘serious expression[s] of an intent to commit an act of unlawful violence to a particular individual.’ ” Id. ¶ 15 .

In fact, the court opined that the defendant never said he was going to do anything, but instead merely hoped and prayed that bad things would happen to those he felt had wronged him. The court explained that the statements at issue did not warn of any future harm, were vague and ambiguous, and did not indicate any actual intent to carry out a threat or any intent to affirmatively do anything.

Analysis - Dye

We also find Dye applicable to the case at bar.

In Dye, the defendant and his public defender had a meeting where the public defender informed the defendant that she had subpoenaed some documents and inadvertently uncovered evidence that would be harmful to the defendant’s case, and that the State would receive a copy of this harmful evidence. Dye, 2015 IL App (4th) 130799, ¶ 3.

The defendant became irate and pointed at the public defender and told her, “I’m gonna get you,” two or three times. Id. ¶¶ 4-5. The public defender responded, “Are you fucking threatening me?” and the defendant stated, “No, no. I ain’t threatening you” Id. ¶ 5.

On appeal, the court reversed defendant’s conviction for threatening a public official because it found that it would have been impossible for any rational trier of fact to find, beyond a reasonable doubt, that the defendant made a “true threat” within the meaning of Black. Id. ¶ 1. Specifically, the court held that the defendant’s threat was ambiguous as to whether the intended meaning was violent retribution or nonviolent retribution, and the context of the threat could not reasonably resolve the ambiguity.

The Dye court stated, “we interpret section 12-9 as requiring intentionality.” Id. ¶ 10. The court then acknowledged that “no witness had direct sensory access to defendant’s mind and intent,” and thus “the trier of fact could determine what he intended only by drawing inferences from his conduct, including what he said.” Id. ¶ 11. There was no evidence that would justify a reasonable inference that the defendant intended to convey the idea of violence. 

Analysis

In this case, like in Wood and Dye, the evidence presented by the State was not sufficient to prove that defendant meant for his communications and expressions to the ASA to convey a serious intent to carry out an unlawful act of violence.

Simply put, the State did not meet its burden to prove that defendant meant to threaten Gill with unlawful violence. It is undisputed that defendant did not make any verbal threats to her. According to the ASA the worst thing defendant said was,

“Fuck you, bitch, come back here and say that to my face, you can’t talk to me, fuck you bitch.”

But witnesses testified they never heard defendant say “fuck you, bitch” or threaten her with physical harm.

There was no evidence that defendant verbally threatened The ASA. This is significant because, as a result, whether the State met its burden depends on whether any rational trier of fact could reasonably infer from defendant’s expressions and demeanor that he intended to commit an unlawful act of violence against the ASA.

Merely because defendant used offensive language in a loud voice does not create a reasonable inference that he intended to use violence. When people are angry, however, they tend to become loud and tense and to make vigorous gestures—even when threatening to do something nonviolent.

Additionally, the evidence did not show beyond a reasonable doubt that defendant made any overtly threatening gestures. Defendant put his finger in her face. However, this is not an overtly threatening gesture, such as shaking a fist at someone, dragging a finger across one’s throat, or pounding a fist into an open hand. In the context of the factual scenario here, defendant’s pointing at her while yelling his desire to learn her name in an expletive-laden tirade does not rationally indicate his desire to inflict violent harm on the ASA. 

Rather, the evidence creates a reasonable inference that defendant was attempting to obtain Gill’s name so that he could file a complaint against her. This was corrooborated by other witnesses. Further, defendant generally complied with the sheriff when ordered back into the courtroom. This indicates that defendant was not seriously expressing an intent to commit an act of unlawful violence.

Holding

We find that no rational trier of fact could have found that the State proved beyond a reasonable doubt that defendant intended to convey an unlawful threat of violence to the ASA.

We disagree that the totality of defendant’s conduct evidenced his intent, or allowed reasonable inferences to be drawn therefrom that would evidence his intent, to convey a serious threat of unlawful violence against the ASA. The totality of the evidence here did not satisfy the State’s burden. It would be purely speculative to infer that defendant intended to convey a threat of unlawful violence.

Rather, we agree with defendant that a reasonable inference could be drawn from defendant’s statements and conduct that he was angry about what the ASA had said to him in the courtroom, wanted to find out her name so that he could file a complaint, and wanted her to come out of the office to provide him with her information. While we would characterize defendant’s conduct as “distasteful, inept, and crude,” as in Dye, we also view such conduct as “not criminal.” See Wood, 2017 IL App (1st) 143135.

Simply put, the State’s evidence and closing argument improperly focused on defendant’s conduct solely from the perspective of the victim.

Because “we interpret section 12-9 as requiring intentionality” (Dye, 2015 IL App (4th) 130799, ¶ 10), the State was required to prove defendant’s intent to convey a threat of unlawful violence beyond a reasonable doubt, but failed to do so. As such, we reverse defendant’s conviction for threatening a public official.

We also remand this matter to the circuit court to impose a sentence on defendant’s unlawful restraint conviction.

People v. Bingham, 2018 IL 122008 (September). Episode 542 (Duration 9:17)

Appellate court has no jurisdiction to waive a sex offender registration requirement.

Gist

Defendant took some pallet from the back of a Kmart and was charged with a class 4 felony theft. He had some nasty criminal history which triggered the collateral consequence of his having to register as a sex offender.

New Registration Requirement

Turns out defendant was convicted of attempted criminal sexual assault in 1983 and sentenced to serve four years in prison.

At the time of his conviction in 1983, he was not required to register as a sex offender because the Act had not yet been enacted. It was enacted in 1986 and then amended in 2011 to provide that

“[a] sex offender or sexual predator, who has never previously been required to register under this Act, has a duty to register if the person has been convicted of any felony offense after July 1, 2011.”

730 ILCS 150/3(c)(2.1) (West 2012). Thus, defendant’s 2014 felony theft conviction now requires him to register as a sex offender under SORA.

Issue

Defendant argues that the registration requirement of the Act is unconstitutional as applied to him on substantive due process grounds and violates ex post facto principles.

Jurisdiction

In criminal cases, “[a] notice of appeal confers jurisdiction on an appellate court to consider only the judgments or parts of judgments specified in the notice.” (Emphasis added.) People v. Lewis, 234 Ill. 2d 32, 37 (2009).

Under Illinois Supreme Court Rule 615(b) (eff. Jan. 1, 1967), the scope of appellate review is defined by the trial court’s judgment and the proceedings and orders related to it:

“On appeal the reviewing court may:

(1) reverse, affirm, or modify the judgment or order from which the appeal is taken;
(2) set aside, affirm, or modify any or all of the proceedings subsequent to or dependent upon the judgment or order from which the appeal is taken;
(3) reduce the degree of offense of which the appellant was convicted;
(4) reduce the punishment imposed by the trial court; or
(5) order a new trial.”

Analysis

In the proceedings before the appellate court in this case, that court was not called upon to exercise any of the above delineated powers with respect to defendant’s argument that sex offender registration is unconstitutional as applied to him.

The requirement that defendant register as a sex offender is not encompassed within the judgment or any order of the trial court. Thus, defendant’s argument did not ask a reviewing court to reverse, affirm, or modify the judgment or order from which the appeal is taken. Nor did it ask to set aside or modify any “proceedings subsequent to or dependent upon the judgment or order from which the appeal is taken.” Ill. S. Ct. R. 615(b)(2) (eff. Jan. 1, 1967).

The requirement that defendant register as a sex offender cannot be fairly characterized as a “proceeding.”

It's Punishment

Defendant argues that the requirement to register is “punishment,” but even if that were true, it would not be “punishment imposed by the trial court.”

Holding

We find that none of the criteria of Rule 615(b) for invoking the powers of a reviewing court have been satisfied in this case. Accordingly, we conclude that a reviewing court has no power on direct appeal of a criminal conviction to order that defendant be relieved of the obligation to register as a sex offender when there is neither an obligation to register imposed by the trial court nor an order or conviction that the defendant is appealing that is directly related to the obligation or the failure to register.

A contrary rule would permit appeal of collateral issues on direct appeal from a criminal conviction not only to sex offender obligations but to a host of other collateral consequences of convictions that are not imposed by trial courts and are not embodied in their judgments.

Because this is not the proper forum for defendant to raise his claims and because an as-applied constitutional challenge may not be raised where it is litigated for the first time on review, we vacate the portion of the appellate court’s judgment that addressed defendant’s constitutional claims on the merits, and we now dismiss defendant’s appeal.

Examples

Such consequences would likely include “the loss of the right to vote, disqualification from public benefits, ineligibility to possess firearms, dishonorable discharge from the Armed Forces, and loss of business or professional licenses.”

Allowing defendants to challenge the collateral consequences of a conviction on direct appeal would place a reviewing court in the position of ruling on the validity (or resolving the details) of regulatory programs administered by state agencies and officials that are not parties to the action.

Another Cause Of Action Is More Appropriate

Defendant has the heavy burden of overcoming the strong judicial presumption in favor of the constitutionality of the statute he seeks to challenge.

Neither the trial nor the sentencing hearings in this case allowed for the development of the record with a view to litigating a challenge to defendant’s sex offender registration obligation. Indeed, that obligation was not even mentioned in the trial court proceedings. 

See Also

•  
• Episode 408 – People v. McClenton – Judge Can’t Order State Police To Remove Person From Sex Offender Registry
• People v. Kochevar, 2018 IL App (3d) 140660 (August). Episode 527 (Duration 8:40) (Another As Applied Challenge Results In An 18-Year Old Who Does Not Have To Register)
• People v. Tetter, 2018 IL App (3d) 150243 (January). Episode 463 (Duration 8:43) (Successful Constitutional Challenge To SORA And Its Progeny Finds It To Be Punishment)
• Episode 449 – In re T.J.D. – The “No Risk” v. “Low Risk” Conundrum 
• Episode 321 – People v. Pearse – SORA is One Big Bloody Mess Says Illinois Supreme Court
• Episode 322 – People v. Gomez – State Failed To Prove Defendant Was Living In The City – Failure To Register Reversed
• Episode 386 – Packingham v. North Carolina – North Carolina Law Forbidden Sex Offenders From Going Online Stricken Down
• Episode 406 – People v. Jones – In A SORA Prosecution The Duty To Register Must Be Proven By The State
• Episode 407 – In re B.G. – Right To Petition To Terminate Obligation To Register As A Sex Offender Survives After A Subsequent Conviction
•  
• Episode 411 – People v. Jackson – SORA SORA No Time Is A Good Time For Goodbyes

People v. Nere, 2018 IL 122566 (September). Episode 541 (Duration 26:58)

Prepare for a PhD on criminal causation in this drug overdose case.

Gist

Defendant was charged with drug-induced homicide after her friend overdosed.

Facts

The victim died in the bathroom of her mother’s apartment in Wheaton.

Friends and family had gathered to celebrate her release from prison. Taylor and other family members had gathered there to celebrate Taylor’s release from prison the previous day. The victim called defendant to arrange a ride home for the victim's girlfriend.

Defendant gave heroin, crack cocaine, a syringe, and a crack pipe to the victim when she arrived at the residence. The pipe and syringe were wrapped in a dirty sock that had blood on it. Taylor then went back into the apartment, told her children that she was going to take a shower, and told her nephew that he needed to get out of the bathroom. Taylor went into the bathroom and, approximately 15 minutes later, turned on the shower.

The Bathroom

After talking to the victim's girlfriend over the phone the nephew alerted his grandmother and other family members, and several of them began trying to enter the locked bathroom.

They eventually removed the doorknob but still could not open the door. Joshua called 911. Officers arrived and forced the door open. Victim was unresponsive. The officers carried her to the living room and performed CPR. Paramedics arrived a few minutes later and transported her to the hospital, where she was pronounced dead.

Physical Evidence

The officers collected from the bathroom a bloodstained sock, a glass pipe, a small plastic bag, cigarettes, a lighter, a drug-cooking spoon, a syringe, and two foil bindles containing heroin residue. A DNA analysis of the blood on the sock came back as a match for defendant.

The Cause of Death

The forensic pathologist who performed the autopsy testified that the victim died of heroin and cocaine intoxication due to intravenous drug use. The victim had fresh needle puncture wounds on her arm.

The pathologist testified that it was clear that she had recently ingested heroin. When 6-MAM and morphine are found in the blood, the conclusion is usually that they both came from ingesting heroin. If enough time has passed, only morphine will appear in the blood. The significance of 6-MAM is that it shows recent use of heroin.

There is no “safe” amount of heroin to ingest, and a person can die from taking their usual amount. The amount of heroin ingested by the victim could have been fatal by itself. It was also possible that the victim had consumed drugs earlier in the day.

Sentence

A DuPage County jury convicted defendant of drug-induced homicide (720 ILCS 5/9-3.3(a)). She was sentenced to 9 years.

Issue

The main issue in this case revolves around how we define causation in a drug-induced homicide and exactly what the jury instructions should say about this.

Specifically, the reviewing court had to consider whether the trial court erred in using IPI Criminal 4th No. 7.15 (Supp. 2011) to define causation rather than instructing the jury according to the principles set forth by the Supreme Court in Burrage. See Burrage v. United States, 571 U.S. ___, 134 S. Ct. 881 (2014).

The trial court was required to use this instruction rather than defendant’s proposed causation instructions if it contained a correct statement of the law. The principal question we must address, therefore, is whether IPI Criminal 4th No. 7.15 (Supp. 2011) properly sets forth the law of causation applicable to defendant’s case.

"Cause In Fact" v. "Proximate Cause"

Generally, when a crime requires both an act by defendant and a specified result of that act, the defendant’s act must be both the “cause in fact” of the result and the “proximate” or “legal” cause of the result.

The first requirement means that the defendant’s act must be an actual cause of the result.

The second requirement means that the result that actually occurs “must be enough similar to, and occur in a manner enough similar to, the result or manner which the defendant intended (in the case of crimes of intention), or the result or manner which his reckless or negligent conduct created a risk of happening (in the case of crimes of recklessness and negligence) that the defendant may fairly be held responsible for the actual result.” Usually, this is also called a "foreseeability" requirement.

 Barring unusual circumstances, it would seem that only cause-in-fact will be at issue in drug-induced homicide cases.

Illinois Drug-Induced Homicide Statue

The relevant portion of the drug-induced homicide statute provided:

“A person who violates Section 401 of the Illinois Controlled Substances Act or Section 55 of the Methamphetamine Control and Community Protection Act by unlawfully delivering a controlled substance to another, and any person’s death is caused by the injection, inhalation, absorption, or ingestion of any amount of that controlled substance, commits the offense of drug-induced homicide.”

720 ILCS 5/9-3.3(a).

The statute already spells out what act a defendant must commit, what harm must occur, and how the harm must occur, and the only mental state requirement is the defendant’s knowing delivery of a controlled substance. See People v. Faircloth, 234 Ill. App. 3d 386, 391 (1992) (“[t]he defendant just needs to make a knowing delivery of a controlled substance, and if any person then dies as a result of taking that substance, the defendant is responsible for that person’s death”).

Moreover, the federal courts in construing the analogous portion of the federal Controlled Substances Act (21 U.S.C. § 841(a)(1), (b)(1)(A)-(C) (2012)) have concluded both before and after Burrage that there is no foreseeability requirement.

IPI Criminal No. 7.15

The trial court further gave Illinois Pattern Jury Instructions, Criminal, No. 7.15 (4th ed. Supp. 2011) (hereinafter IPI Criminal 4th No. 7.15 (Supp. 2011)), which is titled “Causation in Homicide Cases Excluding Felony Murder.”

Thus, the jury was instructed that:

“In order for you to find that the acts of the defendant caused the death of [the victim] the State must prove beyond a reasonable doubt that defendant’s acts were a contributing cause of the death and that the death did not result from a cause unconnected with the defendant. However, it is not necessary that you find the acts of the defendant were the sole and immediate cause of death.”

Defendant objected to the use of this instruction.

The Contributing Cause Rule in Illinois

IPI Criminal 4th No 7.15 is described as the “Causation in Homicide Cases Excluding Felony Murder” instruction.

There is no question that IPI Criminal 4th No. 7.15 (Supp. 2011) is a correct statement of Illinois causation principles. The question is if Illinois has gotten it right. Each of these propositions is taken directly from this court’s case law.

The "But-For" Test

The easiest way to establish cause-in-fact or “actual” cause is through the “but-for” test.

This is established by showing that “but for the conduct the result would not have occurred.” 

"Contributing Cause" Test

IPI Criminal 4th No. 7.15 (Supp. 2011) spells out causation principles the way they have been consistently defined by the Illinois courts.

As the Supreme Court noted in Burrage, however, some jurisdictions apply either a “substantial factor” or “contributing cause” test to determine cause-in-fact. Illinois has consistently stated causation requirements in terms of contributing causation. See, e.g., People v. Brown, 169 Ill. 2d 132, 152 (1996); People v. Gacho, 122 Ill. 2d 221, 244 (1988); People v.Brackett, 117 Ill. 2d 170, 176 (1987); People v. Love, 71 Ill. 2d 74, 81 (1978); Cunningham v. People, 195 Ill. 550, 572-73 (1902).

In Brown, 169 Ill. 2d at 152, this court stated: “In order to prove a defendant guilty of murder (other than by accountability), the prosecution must prove, inter alia, that an act of the defendant contributed to the victim’s death. (People v. Brackett (1987), 117 Ill. 2d 170, 177.) The defendant’s act, however, need not be the sole or immediate cause of death; rather, it is sufficient if the defendant’s act contributed to cause the death.” In Brackett, 117 Ill. 2d at 176, this court stated: “The courts in Illinois have repeatedly held that an intervening cause completely unrelated to the acts of the defendant does relieve a defendant of criminal liability.

The converse of this is also true: when criminal acts of the defendant have contributed to a person’s death, the defendant may be found guilty of murder. It is not the law in this State that the defendant’s acts must be the sole and immediate cause of death.

One is Broader Than The Other

In most cases, even though cause-in-fact requirements are stated in terms of “contributing cause,” the defendant’s act will be a “but-for” cause of the victim’s death. It is clear, nevertheless, that in Illinois the concept of “contributing causation” is broader than “but-for” causation.

3 Bullet Example

In Brown the state only proved defendant fired one of the 3 bullets that lead to his death.

The pathologist could not say which bullet lead to the victim’s death but each bullet contributed to the death. There is no question that, under this court’s long-standing “contributing cause” theory of causation, strict “but-for” causation is not always required.

Clearly, we believe defendant should be criminally culpable.

Accelerated Death Example

The acceleration rule holds that a person is still liable for another’s death even if he merely hastens the death of
somebody who was already dying. 

Say for example, a person shoots a man dying of cancer. Did he not just commit murder?

Should Illinois Follow Burrage?

The question therefore becomes whether there is any reason why the Supreme Court’s decision in Burrage requires this court to abandon its long-standing definition of causation in homicide cases. That case was merely interpreting a federal statute and was not making any constitutional proclamations obligating the states.

Strictly speaking Illinois doesn't have to follow the rule laid out in Burrage.

What Happened In Burrage?

In that case, the defendant sold heroin to a longtime drug user who died of an overdose. The victim had injected oxycodone earlier in the day, and was found dead in his bathroom the morning after defendant sold him the heroin.

The medical evidence showed that the victim had in his system heroin metabolites, codeine, alprazolam, clonazepam metabolites, and oxycodone. Morphine, a heroin metabolite, was the only drug present at a level above the therapeutic range.

The victim died of mixed drug intoxication.

The forensic toxicologist testified that the heroin was a contributing factor in the victim's death because it interacted with the other drugs to depress his respiratory and/or central nervous system. The pathologist could not say whether he would have lived had he not taken the heroin.

A jury convicted the defendant of distribution of heroin with death resulting from the use of that substance. The federal Controlled Substances Act imposes a 20-year mandatory minimum sentence when a defendant unlawfully distributes a schedule I or II drug and “death or serious bodily injury results from the use of such substance.” 21 U.S.C. § 841(a)(1), (b)(1)(A)-(C) (2012).

Burrage Ruling

In Burrage, the Supreme Court considered the meaning of the phrase “results from” in section 841(a)(1), (b)(1)(A)-(C) of the federal Controlled Substances Act (21 U.S.C. § 841(a)(1), (b)(1)(A)-(C) (2012)), which imposes a 20-year mandatory minimum sentence on a defendant who unlawfully distributes a Schedule I or II drug, when “death or serious bodily injury results from the use of such substance.” The jury instruction in that case required the government to prove that the defendant’s distribution of the controlled substance was a contributing cause of the victim’s death. Burrage, 571 U.S. at ___, 134 S. Ct. at 886.

The Court held that the common understanding of “results from” is “but-for” causation, i.e., that the harm would not have occurred but for the defendant’s conduct.

 The Supreme Court acknowledged that some jurisdictions consider a cause-in-fact to be something that was a “substantial” or “contributing” factor in producing a given result. Id. at ___, 134 S. Ct. at 890. However, the Court noted that Congress had not written the statute in contributing cause language but had instead used the phrase “results from,” which language is commonly understood to import “but-for” causality.

The Court explained that it was against these traditional background principles that Congress had legislated when it enacted the statute at issue.

 The Court then held that, “at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless such use is a but-for cause of the death or injury.” 

Because the government had conceded that there was no evidence that Banka would have lived but for his use of the heroin he received from the defendant, the Court reversed his conviction.

Finding

Nothing in Burrage requires this court to abandon its long-standing definition of causation in homicide cases. Burrage was decided as a matter of federal statutory interpretation, and it is therefore not binding on state courts. We are free to follow it if we find it persuasive and to ignore it if we do not.

We find that the Burrage analysis counsels against us abandoning the contributing cause standard.

The trial court thus did not err in using IPI Criminal 4th No. 7.15 (Supp. 2011), which correctly sets forth the causation test used in Illinois.

Illinois Goes Another Way

The question facing this court is what the Illinois legislature meant when it used the word “caused” in the phrase “any person’s death is caused by the injection, inhalation, absorption, or ingestion of any amount of that controlled substance.” See 720 ILCS 5/9-3.3(a) (West 2012).

After careful consideration, we have chosen not to abandon our contributing cause standard based on the Burrage dictum.

Just as Congress was legislating against a backdrop of cases defining “results from” as meaning “but-for” causation, the Illinois legislature was legislating against a backdrop of causation in homicide cases meaning the “contributing cause” standard set forth by this court in cases such as Brown and Brackett.

Thus, we presume that when the legislature used the phrase “caused” in section 9-3.3(a) it intended the meaning that Illinois courts have consistently given to this word in homicide cases.

Plus, There Is Clear Legislative Intent

Moreover, as the appellate court noted in Kidd, we have clear evidence that this was the legislature’s intent. The statute previously used the phrase “results from,” but the legislature amended the statute in 2006 to change that phrase to “caused by.”

When the amendment was up for discussion in the House, Representative Pihos explained: “The reason for the change is to provide clarity in the law relating to drug-induced homicide. The causation language is the same as the other homicide language in the law.” 94th Ill. Gen. Assem., House Proceedings, Apr. 5, 2005, at 85 (statements of Representative Pihos).

The Kidd court explained that the legislative history showed that “the legislature intended to change the language so that it mirrored the language of other homicide statutes, which refer to ‘acts which cause the death’ of an individual, whether such act is intentional (720 ILCS 5/9-1 (West 2010) (first degree murder)), negligent (720 ILCS 5/9-2 (West 2010) (second degree murder)), or reckless (720 ILCS 5/9-3 (West 2010) (involuntary manslaughter and reckless homicide)).” Kidd, 2013 IL App (2d) 120088, ¶ 31.

Thus, it is clear that “caused by” in the drug-induced homicide statute was intended to have the same meaning that “cause” has always had in Illinois homicide cases, and the Illinois courts have consistently used a “contributing cause” standard.

And They Just Ain't Worried Like SCOTUS Was

The Supreme Court was also concerned that the contributing cause standard would treat as a cause-in-fact “every act or omission that makes a positive incremental contribution, however small, to a particular result.” Burrage, 571 U.S. at ___, 134 S. Ct. at 891.

But as the Supreme Court itself acknowledged, courts deal with this problem by excluding insubstantial causes. Moreover, the same criticism could be made of the “but-for” test, as the Supreme Court itself acknowledged earlier in the opinion.

The Court explained that, even if other forces are combining to produce a particular result, something that contributes incrementally to the outcome is a cause-in-fact if it was the “straw that broke the camel’s back.” Id. at ___, 134 S. Ct. at 888. Thus, under the “but-for” test, a cause may be minor, but if the outcome would not have happened without it, it qualifies as a cause-in-fact.

Some contributing cause jurisdictions deal with this problem by invoking a “substantial factor” requirement, and the government argued that its proposed test would exclude causes that are “too insubstantial” or “not important enough. ” 

But the Court was concerned with the government’s inability to quantify what is too insubstantial and the fact that “presumably the lower courts would be left to guess.” Id. at ___, 134 S. Ct. at 892. For all of the above reasons, we disagree with the Supreme Court that a contributing cause standard raises due process or other concerns, and we choose not to follow the Burrage dictum.

No Danger Of Innocent Conduct Being Criminalized

It is difficult to see how this instruction creates a danger of a defendant being convicted of an offense that he or she had nothing to do with.

Consider the situations we have discussed earlier in this opinion, i.e., several persons putting poison in a person’s drink, two different people wounding the defendant with gunshots, multiple people beating a person to death, or someone providing a controlled substance that combines with other substances to cause a person’s death. All of these situations, in which “but-for” causation often cannot be established but contributing causation can, are not attempts to connect the defendant with an injury that he or she “had nothing to do with.”

Moreover, these are not, in the words of the appellate court, situations in which the defendant “might have caused the victim’s death.” (Emphasis omitted.) 2017 IL App (2d) 141143, ¶ 78.10 Rather, they are situations in which the defendant’s act contributed to the victim’s death as it actually happened.

Holding

For all of these reasons, we believe that a “contributing cause” standard better captures the ordinary meaning of “cause” than a strict “but-for” standard. Although establishing “but-for” cause is sufficient to establish cause-in-fact and will be established in the majority of cases, we do not believe that “but-for” cause is always necessary to establish cause-in-fact. A contributing cause standard better comports with the ordinary understanding of the word “cause” in cases of multiple causation.

This court has defined criminal causation in terms of a contributing cause standard for over a century. Nothing in Burrage requires us to abandon that standard, and nothing in Burrage convinces us that we should abandon that standard.

We disagree with its conclusion that we should replace the contributing cause standard with a “but-for” requirement. We agree with the appellate court, however, that the trial court did not err in using IPI Criminal 4th No. 7.15 (Supp. 2011). That instruction properly sets forth causation principles as determined by this court, and therefore, Illinois Supreme Court Rule 451(a) (eff. Apr. 8, 2013) required the trial court to use it.

For the above reasons, we affirm the judgment of the appellate court, although we do not agree entirely with the appellate court’s reasoning. We hold that, as a matter of state law, IPI Criminal 4th 7.15 (Supp. 2011) properly sets forth the principles of causation established by this court and therefore the trial court did not err in using it. We reject the appellate court’s conclusion that use of this instruction raises “grave due process concerns,” and we are not convinced by the Supreme Court’s dictum in Burrage that we should abandon the “contributing cause” standard.

See Also

• How Criminal Cases Are Charged In Illinois
• What is Criminal Accountability?
• Difference Between Intentional And Knowing Conduct