Kane County Nuggets

In re M.R., 2018 IL App (2d) 170342 (March). Episode 484 (Duration 10:56)

Minors charged with possession of stolen vehicle must be charged in juvenile court.

Gist

Several minors where charged with possession of stolen vehicles in adult court.

The trial court dismissed the charges against the defendants, ruling that the defendants could not be prosecuted as adults.

Issue

State wonders why the heck not.

Juvenile Court Act 705 ILCS 5/5-125

The State argues on appeal that the defendants may be prosecuted as adults, pursuant to section 5-125 of the Juvenile Court Act.

It provides, in pertinent part, as follows:

“Any minor alleged to have violated a traffic, boating, or fish and game law, or a municipal or county ordinance, may be prosecuted for the violation and if found guilty punished under any statute or ordinance relating to the violation, without reference to the procedures set out in this Article ***[.] For the purpose of this Section, ‘traffic violation’ shall include a violation of Section 9-3 of the Criminal Code of 1961 or the Criminal Code of 2012 relating to the offense of reckless homicide, Section 11-501 of the Illinois Vehicle Code, or any similar county or municipal ordinance.”

705 ILCS 405/5-125.

State's Argument

State is saying that possession of a stolen vehicle is in the traffic code not the criminal code (720 ILCS 5/1-1 et seq.). So it is a traffic offense that may be charged without reference to the juvenile court procedures.

The State insists that section 4-103 is a traffic law, such that a minor accused of violating it may be prosecuted as an adult.

Possession of Stolen Vehicle

The offense of possession of a stolen vehicle is defined in section 4-103(a)(1) of the Illinois Vehicle Code (625 ILCS 5/4-103(a)(1)), which, as pertinent here, provides that it is a violation of the Vehicle Code for

“[a] person not entitled to the possession of a vehicle or essential part of a vehicle to receive, possess, conceal, sell, dispose, or transfer it, knowing it to have been stolen or converted.”

What About The Second Sentence?

The State notes that section 5-125 of the Juvenile Court Act states that,

“[f]or the purpose of this Section, ‘traffic violation’ shall include a violation of Section 9-3 of the Criminal Code of 1961 or the Criminal Code of 2012 relating to the offense of reckless homicide, Section 11-501 of the Illinois Vehicle Code, or any similar county or municipal ordinance.”

705 ILCS 405/5-125.

The State argues that the term “traffic violation” is not limited to those two offenses.

State Is Right About One Thing

According to the State, “[h]ad the legislature wanted to include it in the Criminal Code instead, it certainly could have done so and it did not.”

The State is correct that “traffic violation” is not limited to the two offenses specifically mentioned in section 5-125 of the Juvenile Court Act.

“The words ‘include’ or ‘including’ are ordinarily terms of enlargement rather than restriction and indicate that items enumerated in a statute are not meant to be exclusive.”

What About Possession of Stolen Vehicle?

The task still remains to determine what offenses other than those specifically mentioned in section 5-125 are violations of traffic laws.

By pointing out that possession of a stolen vehicle appears in the Vehicle Code rather than the Criminal Code, the State appears to assume that all laws found in the Vehicle Code are traffic laws. We do not share the assumption.

To determine whether possession of a stolen vehicle is a violation of a traffic law, we look to the definition of “traffic.”

Definition of Traffic

Section 1-207 of the Vehicle Code provides that “traffic” means

“[p]edestrians, ridden or herded animals, vehicles, streetcars and other conveyances either singly or together while using any highway for purposes of travel.”

625 ILCS 5/1-207.

We fail to see how, when measured by this definition, the law proscribing possession of a stolen vehicle could be considered a traffic law.

Moreover, the character of the offense does not change merely because, by happenstance, the defendants committed the offense while operating vehicles in traffic.

For the foregoing reasons, the judgments of the circuit court of Winnebago County are affirmed.

Affirmed.

People v. Lawson, 2018 IL App (4th) 170105 (March). Episode 483 (Duration 8:25)

Defendant had a rare blood condition, that was not considered an extraordinary circumstance.

Gist

Defendant drove on a suspended license a “silver Nissan” around 1:30 a.m., after consuming alcohol that evening.

The Accident

An accident reconstructionist would testify defendant approached the intersection of Washington and Main Streets, in Bloomington, Illinois, at a speed of 47 miles per hour.

Due to her intoxication, defendant struck a man and a women as they walked across the intersection. Defendant did not stop her vehicle at the scene of the accident and failed to report she was in an accident to law enforcement officials.

The women died.

Defendant's BAC

Testing revealed defendant’s blood alcohol concentration to be 0.265 and also indicated the presence of tetrahydrocannabinol (THC), or cannabis.

What The State Wanted

The State recommended a sentence of 12 years in prison for aggravated driving under the influence of alcohol (count I), a sentence of 9 years in prison for failure to report an accident involving death (count II), and a sentence of 364 days in jail for driving while license suspended (count XI).

Rare Disease

Defendant requested probation, characterizing her “extreme chronic and serious medical condition” as “extraordinary circumstances” requiring probation.

She had immune thrombocytopenic purpura (ITP) which required monthly blood transfusions.

The Sentence Mitigation

In mitigation, the trial court considered defendant’s lack of a prior felony conviction and hardship on her children.

It also considered defendant’s “medical condition” and remorse.

Aggavation

In aggravation, the court considered the many “shattered lives” left in the wake of defendant’s “reckless conduct” and defendant’s failure to stop after hitting the pedestrians. The court also considered defendant “continually lied” to law enforcement officers after she was arrested, causing “additional work” for officers.

Deprecate Seriousness of Offense

The court noted the need to deter others from committing similar crimes. The trial court stated that a sentence of probation would deprecate the seriousness of defendant’s conduct and no extraordinary circumstances warranted probation “even with [defendant’s] medical condition.”

12 Years

The court sentenced defendant to eight years in prison for aggravated driving under the influence of alcohol (count I), four years in prison for failure to report an accident involving death (count II), and a sentence of “court costs plus conviction” for driving while license suspended (count XI).

Defendant’s sentences were “mandatory consecutive" bringing her total time to 12 years.

Issue

Defendant argued her “severe and unusual medical condition” and “the presumption for probation where there is no significant criminal history” were “extenuating circumstances” warranting probation.

Defendant first argues the trial court abused its discretion in sentencing her for aggravated driving under the influence of alcohol where it failed to find extraordinary circumstances existed, requiring she receive a sentence of probation.

Appellate Court Can't Give Probation

Our supreme court has twice stated we categorically do not have the authority to reduce a prison sentence to a sentence of probation. See Bolyard, 61 Ill. 2d at 588 (“Rule 615 does not grant a reviewing court the authority to reduce a sentence of imprisonment to a sentence of probation.”); People ex rel. Ward v. Moran, 54 Ill. 2d 552, 556, 301 N.E.2d 300, 302 (1973) (“Supreme Court Rule 615 was not intended to grant a court of review the authority to reduce a penitentiary sentence to probation.”).

Similarly, we do not have authority to remand a cause with directions to grant probation. See People v. Rege, 64 Ill. 2d 473, 482, 356 N.E.2d 537, 541 (1976) (“[T]he appellate court erred in remanding the cause with directions to grant probation.”).

To the extent any prior decisions of this court hold to the contrary, they are not to be followed.

 

625 ILCS 5/11-501(d)(2)(G), (F)

Section 11-501(d)(2)(G) of the Vehicle Code (Id. § 11-501(d)(2)(G)) provides a violation of section 11-501(d)(1)(F)

“is a Class 2 felony, for which the defendant, unless the court determines that extraordinary circumstances exist and require probation, shall be sentenced to: (i) a term of imprisonment of not less than 3 years and not more than 14 years if the violation resulted in the death of one person.”

The plain language of the statute creates the presumption a convicted defendant shall serve a term of imprisonment.

See also People v. Vasquez, 2012 IL App (2d) 101132, ¶ 64, 971 N.E.2d 38.

However, a trial court may override this presumption when it determines, in its discretion, that “extraordinary circumstances” require probation.

Extraordinary Circumstance

The legislature intended for the “extraordinary circumstances” language to limit the discretion of a trial court to impose a sentence of probation. See People v. Winningham, 391 Ill. App. 3d 476, 483, 909 N.E.2d 363, 369 (2009).

Analysis

We agree with the trial court defendant’s medical condition did not rise to the level of “extraordinary circumstances” as envisioned by the legislature to justify a sentence of probation.

Although the legislature did not define the precise boundaries of “extraordinary circumstances,” it intended a trial court to exercise its discretion to override the presumption of incarceration only in limited circumstances. See Vasquez, 2012 IL App (2d) 101132, ¶ 64.

Fact is defendant's medical condition was under control in prison.

The trial court indicated it had considered the presentence report, the evidence in mitigation, defendant’s statement in allocution, and the statutory factors in mitigation and aggravation. The court found a sentence of probation would deprecate the serious nature of the offense and be inconsistent with the ends of justice.

Holding

Even if we did have such authority, we would be disinclined to use it in this case.

A reviewing court may not alter a defendant’s sentence absent an abuse of discretion by the trial court (People v. Alexander, 239 Ill. 2d 205, 212, 940 N.E.2d 1062, 1066 (2010)), which we do not find here.

We find the sentence imposed on defendant by the trial court was not “greatly at variance with the spirit and purpose of the law, or manifestly disproportionate to the nature of the offense.” Stacey, 193 Ill. 2d at 210.

We hold the court did not abuse its discretion in sentencing defendant to four years in prison for her failure to report an accident involving death.

See Also

• Episode 061 - Aggravated DUI Probation in Death Cases With Anthony Vaupel
• Episode 258 - Death, Tragedy & An Attorney Who Couldn’t Stand It Anymore
• Episode 038 - DUI Sentencing Laws | Rational or a Frenzy?

People v. Anderson, 2018 IL App (1st) 150931 (March). Episode 482 (Duration 8:41)

Statement errors means this murder is going back for a new trial.

Facts

Defendant is with a group of guys who want to fight another group.

They are out looking for them. They go to the home of one of them but he’s not there. Instead, defendant just has choice words with the guy’s mother.

They then see a silver Monte Carlo pull up.

The Killing

They mistake the occupants of that car for the guys they want to fight.

Defendant has a gun in his waistband.

A codefendant pulls the gun from his waistband and shoots at the car. The driver is shot in the head and killed. Defendant is convicted of murder and 2 attempt murders under an accountability theory.

He was sentenced to 45 years’ incarceration for first degree murder and 25 years for each of the attempted murders, imposed consecutively for a total of 95 years.

The Statement

According to one of defendant's buddies, when the five of them reached the intended target's house dude’s mother answered. Defendant's buddy claimed not to remember the conversation. The State attempted to impeach him with his prior sworn testimony before the grand jury and at an early co-defendant's trial.

Defendant's buddy admitted stating before the grand jury that one in the group said,

“Tell your son I am going to f*** him up.”

The State then tried to elicit testimony about what Defendant said:

“Q. Do you recall being asked this question on cross examination and giving this answer: Question: ‘When they were in front of the door, [Defendant] said to [one of the co-defendants], quote, Get out of the way. I am going to fan their ass.’ Answer: ‘Yes.’ Do you remember being asked that question at the prior testimony on June 20th of 2012?

A. Yes.”

In establishing Corey’s accomplice liability, one of the State’s key assertions was that when Corey and his companions went to Qualls’s house and confronted his mother, Corey threatened to “fan their ass.”

Issue

Corey argues that the State failed to present evidence to substantiate this assertion, thereby denying him a fair trial. In particular, if a party attempts to impeach a witness with a prior inconsistent statement and the witness denies making the statement, claims that he cannot remember making it, or otherwise equivocates, “then it is incumbent on the examining party to offer evidence of the statement.” People v. Evans, 2016 IL App (3d) 140120, ¶ 33.

Analysis

A plain reading of this testimony reflects that Darden admitted being asked a question about Corey’s statement but he did not admit what, if anything, he answered.

This is consistent with his testimony on cross-examination, when he claimed not to remember this testimony. Thus, it was incumbent on the State to present evidence of Darden’s answer which the State never did. The State argues that requiring it to provide evidence of Darden’s testimony at Burns’s trial is “unduly formalistic” and relies on a “hyper-technical reading of the record.”

We disagree.

Perfect Impeachment

It requires no undue formalism to give effect to the plain meaning of the witness testimony—i.e., that he did not admit making a prior statement as to what Defendant may have said at the intended victim's house. The trial court’s ruling that Darden admitted the testimony at issue was unsupported by the record and was therefore an abuse of discretion.

They didn't perfect the impeachment.

Important To The State's Case

The State’s error substantially prejudiced Corey by magnifying the State’s unproven allegations about Corey’s threat.

The potential for prejudice is particularly high because Darden testified on three different occasions—at Corey’s trial, at a codefendant's trial, and before the grand jury—and the details to which he testified were different on each occasion.

A reasonable juror might remember the substance of Darden’s testimony but be uncertain as to what exactly he said on which occasions. Such a juror might therefore be influenced by the State’s forceful and uncontradicted assertion that defendant's buddy admitted that defendant made threat on three separate occasions.

Accountability Case

In order to prove Corey guilty on a theory of accountability, the State was required to show that Corey had “the intent to promote or facilitate” the shooter's criminal actions. 720 ILCS 5/5-2(c) (West 2010) (definition of legal accountability). The State’s evidence was not strong.

All their witnesses had problems.

The Prior Consistent Statement 

A different  one of defendant's buddies also testified against defendant.

This one met with detectives and told them, falsely, that he did not know any of the people who came to reinforce the group. Carter told the detectives that he saw a person with short hair shooting at the Monte Carlo, but he did not tell them that defendant had a gun.

The next day, he returned to the police station and said that he knew the codefendants and that he saw a gun in defendant’s waistband. Eventually, this buddy appeared before the grand jury again and testified in exchange for immunity from prosecution for a probation violation.

Issue 2

Corey additionally contends that the State improperly bolstered Carter’s credibility by introducing his prior consistent statements made to police three days after the shooting.

Specifically, this witness identified the shooter in a photo array and wrote next to his picture,

“This is the person I saw get the gun from Lord and shot [sic] at the Monte Carlo.”

He also identified Defendant in a photo array and wrote,

“This is the person I know as Lord. He told me his name was Lord. I saw a gun in his waistband. The other guy took the gun from Lord and shot at the Monte Carlo.”

The handwritten statements on the photo arrays were displayed to the jury .

Prior Identification

The State contends that these statements were properly admitted as prior identifications under section 115-12 of the Code of Criminal Procedure (725 ILCS 5/115-12).

Although we have already concluded that Defendant is entitled to a new trial, we address this issue because it is likely to recur on remand. Generally, a party may not bolster the credibility of its own witness on direct examination by introducing his prior consistent statements.

Law On Prior Consistent Statement

“The danger in prior consistent statements is that a jury is likely to attach disproportionate significance to them. People tend to believe that which is repeated most often, regardless of its intrinsic merit, and repetition lends credibility to testimony that it might not otherwise deserve.” People v. Johnson, 2012 IL App (1st) 091730, ¶ 60.

But it is well established that “this rule does not apply to statements of identification.” People v. Temple, 2014 IL App (1st) 111653, ¶ 34.

Under section 115-12 of the Code of Criminal Procedure,

“[a] statement is not rendered inadmissible by the hearsay rule if (a) the declarant testifies at the trial or hearing, and (b) the declarant is subject to cross-examination concerning the statement, and (c) the statement is one of identification of a person made after perceiving him.”

725 ILCS 5/115-12.

Such statements are admissible as substantive evidence. People v. Williams, 193 Ill. 2d 306, 359 (2000).

Was It Identification Testimony?

The issue is whether Carter’s statements to police constitute statements of identification.

Our supreme court has defined “statements of identification” broadly to encompass “the entire identification process.” People v. Tisdel, 201 Ill. 2d 210, 219 (2002). When admitting a prior identification as substantive evidence under section 115-12, the testimony may include a description of the offense only to the extent necessary to make the identification understandable to the jury, but it may not go beyond that to provide detailed accounts of the actual crime.

Under this standard, the witness's verbal testimony regarding his prior identifications of defendant and the shooter was properly admitted.

Analysis of Prior Consistent Statement

In a police interview three days after the shooting, Carter identified Corey as the person who was carrying a gun and Burns as the person who took the gun from Corey and shot at the Monte Carlo—i.e., the minimum detail necessary to make the identifications intelligible to the jury.

Accordingly, we hold that the trial court properly allowed this second witness to testify that, three days after the shooting, he identified defendant to police as the one who was carrying a gun and the shooter as the one who took the gun from defendant and fired.

...But They Didn't Have To Show It To The Jury

Displaying the witness’s handwritten statements did not provide any further necessary context for the jury and, therefore, did not enhance the jury’s understanding of the identification. The only purpose it served was to reiterate the statements—once when the State put the photo arrays on a video screen for the jury to see, a second time when the State asked the witness to confirm that he wrote the statements displayed on the screen, and a third time during the State’s closing argument when the State displayed the photo arrays again.

In doing so, the State unnecessarily and improperly emphasized Carter’s written out-of-court statements in the eyes of the jury. As this court has previously observed, “[p]eople tend to believe that which is repeated most often, regardless of its intrinsic merit.” Johnson, 2012 IL App (1st) 091730, ¶ 60.

The State’s use of Carter’s out-of-court statements essentially as a demonstrative exhibit was particularly prejudicial due to the closeness of the evidence. This guy was the only witness who claimed that Corey had a gun.

Holding

Thus, on remand, although the State may present testimony as to the witnesse's identification of defendant and the shooter. The handwritten statements on the photo arrays may not be shown to the jury.

The State’s use of unsubstantiated assertions regarding defendant alleged threat to the intended victim's mother deprived defendant of a fair trial and constituted plain error in light of the closeness of the evidence.

We therefore reverse and remand for a new trial.

See Also

• Episode 256 - How Judge Steigmann Really Feels About Impeachment, Prior Inconsistent Statements, And 725 ILCS 5/115-10.1
• Episode 236 - Paul Meyers On Why Experienced Attorneys Still Confuse Impeachment, Substantive Evidence, and Prior Inconsistent Statements
• Episode 120 - People v. Brothers on Prior Inconsistent Statements
• Episode 052 - Prior Inconsistent Statement Impeachment Is Not Necessarily a Thing

 

Episode 481 (Duration 11:39) Police investigations and follow up prosecutions of other police officers involve slightly different constitutional concerns. What are they?

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In This Episode...

We discuss the following case:

Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616 (1967).

Gist of the Case

The Supreme Court of New Jersey caught wind of some ticket fixing going in their court system.

They formed an investigation with the Attorney General.  This investigation interrogated other officers.

Coerced Officers

The officers under investigation were warned by the Attorney General

(1) that anything he said might be used against him in any state criminal proceeding;
(2) that he had the privilege to refuse to answer if the disclosure would tend to incriminate him; but
(3) that if he refused to answer he would be subject to removal from office. Appellants answered the questions.

No immunity was granted.

When the officer's statements were used against them in the subsequent prosecution they claimed the statements were coerced out of them. Their statements were coerced by reason of the fact that, if they refused to answer, they could lose their positions with the police department.   

SCOTUS Said

The Supreme Court of the United States said that the officers were not really given a choice to talk to investigators.

The fear of being discharged under for refusal to answer on the one hand and the fear of self-incrimination on the other was "a choice between the rock and the whirlpool” which made the statements products of coercion in violation of the Fourteenth Amendment.

The choice between self-incrimination or job forfeiture is no choice at all.

The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent. That practice is likely to exert such pressure upon an individual as to disable him from making a free and rational choice.

Ain't Police Work Just Like Any Other Job?

The court noted that ordinary citizens don't have constitution rights to their jobs.

To a certain degree everyone accepts employment with restrictions. There are few employments for hire in which the servant does not agree to suspend his constitutional right of free speech, as well as of idleness, by the implied terms of his contract.

The servant cannot complain, as he takes the employment on the terms which are offered him. Similarly, police officers don't have a constitutional right to be police officers.

This may be true, but...

The Issue Here

The issue here is whether the State, contrary to the requirement of the Fourteenth Amendment, can use the threat of discharge to secure incriminatory evidence against an employee.

What's different here is that the employer is the police department.

The police can't force an incriminating statement from a fellow officer no more than they can coerce a statement from another citizen with a claim that they will see to it that they get fired if they don't cooperate with an investigation.

Policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights.

Holding

We now hold the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic.

Convictions of these officers were reversed.

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People v. Manning, 2018 IL 122081 (March). Episode 480 (Duration 21:31)

Jury wanted to know what happens if they can't agree on second degree murder.

Gist

Illinois supreme court puts a murder conviction back on the table.

Issue

The issue presented in this appeal, distilled to its essence, is whether jurors’ inability to unanimously agree upon whether a mitigating factor exists, for purposes of second degree murder, results in a finding of first degree murder, as charged, and as necessarily found by the jury in the required statutory progression.

This Was A Second Trial

The second trial, like the first, generally established that the victim was highly intoxicated and ultimately an unwelcome visitor at a residence occupied by defendant and at least five other individuals.

The victim was asked to leave and refused to do so.

A fight ensued between the inebriated victim and four of the residents, including the defendant. Defendant was armed with a knife.

Stabbed 3 Times

In the course of that fight, the victim, who was apparently unarmed, was stabbed three times.

A stab wound to the chest proved fatal.

Defendant admitted to stabbing the victim twice: once in the arm and once in the back. There was no evidence that anyone other than defendant was armed.

Self Defense And Second Degree Murder

Pursuant to defendant’s request—and the appellate court’s prior directive—the trial court instructed the jury on self-defense.

Relatedly, the court also granted defendant’s request to instruct the jury on second degree murder, based on both statutory mitigating factors: an unreasonable belief in the need for self-defense and provocation, with mutual combat being the requisite provocation. See 720 ILCS 5/9-2(a).

Hence, the jury received Illinois Pattern Jury Instructions, Criminal, Nos. 7.06B and 26.01A (4th ed. 2000) (hereinafter IPI Criminal 4th).

The Instructions

The instruction then informed the jury

(1) if it found that the State had failed to prove each element of first degree murder beyond a reasonable doubt, it should stop deliberating and return a verdict of not guilty;
(2) if it found that the State had proven each of those elements beyond a reasonable doubt, it should then decide whether defendant had proven that a mitigating factor existed; and
(3) if it found that defendant had met that burden, it should find him guilty of second degree murder; however,
(4) if it found that defendant had failed to meet that burden, it should find him guilty of first degree murder.

IPI Criminal 4th No. 26.01A instructed the jury that it would receive three verdict forms—

(1) not guilty,
(2) guilty of first degree murder, and
(3) guilty of second degree murder—and that its verdict must be unanimous.

The instruction directed the jury to sign only one verdict form.

Deliberations

During the course of deliberations in this case, the following colloquy occurred outside the presence of the jury:

THE COURT: *** We received a question from the jury: For approving mitigating factors to reduce charge to second degree murder, if vote on mitigating factor is not unanimous, does it revert to first degree murder? Okay. Proposed responses?

[THE STATE]: Yes.

[DEFENSE COUNSEL]: My response would be no, Judge.

There’s very interesting conversation between the court, the state and the defense attorney.

Defense Argument

The defense was mainly arguing that if some jurors believed a mitigating factor was proved then they they don’t believe a first degree murder happened.

The jury subsequently returned a verdict finding defendant guilty of first degree murder.

Polling The Jury

After the verdict was read, the trial court asked the parties if either would like the court to poll the jury.

Defense counsel responded:

“I would, Judge, and I also ask to poll the jury on [if] they found the mitigating factor did not exist.”

The clerk then asked each juror:

“Was this then and is this now your verdict?”

Each juror responded,

“Yes.”

Thereafter, defense counsel stated:

“I would like the specific question, if they found the mitigating factor did not exist, so—.”

The court stated its belief that the polling was sufficient:

“I think they answered the question.”

Defendant was subsequently sentenced to 25 years in prison.

Lower Appellate Court

On appeal, defendant argued that the trial court reversibly erred where it:

(a) failed to give a direct answer when the jury asked if non-unanimity regarding the mitigating factor meant that the charge would "revert" from second degree murder to first degree murder; and
(b) refused to poll the jury specifically to determine if any juror believed that a mitigating factor existed.

The appellate court held that defendant was entitled to relief on the basis of his second argument, concluding that the trial court had abused its discretion when it refused to ask each juror, in polling, whether he or she believed that a mitigating factor existed for purposes of second degree murder.

The appellate court reasoned:

“The jury’s question starkly revealed the jury’s uncertainty as to whether a split vote on the presence of a mitigating factor should (or should not) produce a verdict of guilty of first degree murder. After the jury delivered that verdict, the trial court’s use of the standard polling question—‘Was this then and is this now your verdict?’—did not resolve the uncertainty. To be sure, as shown by the jurors’ unequivocal responses, there was no uncertainty as to whether the jurors’ verdict was that defendant was guilty of first degree murder. The uncertainty at issue, however, concerned whether that verdict was wrongly the product of a split vote on defendant’s guilt of second degree murder.”

Now You See The Issue?

The core question in this case—the resolution of which determines whether the trial court’s response to the jury’s question was correct, and whether juror polling was sufficient—is whether the jurors’ inability to unanimously agree, with respect to the existence of a mitigating factor for purposes of second degree murder, results in a finding of first degree murder, as charged by the State, and as necessarily found by the jury in the required statutory progression.

Here is a little more from the trial discussion between judge, prosecutor and defense attorney:

[DEFENSE COUNSEL]: Judge, I think if they are—if we use the language that they have found guilty on first degree murder, and now that they are on the second theory, if they are not unanimous, doesn’t say, all right, you six are wrong since we can’t agree, or you 11 are wrong since you can’t agree so it’s guilty of first degree murder; that’s not correct at all. So simply answering that question yes is leading the jury to believe that if one says a mitigating factor exists and 11 state a mitigating factor doesn’t exist, if [sic] guilty of first degree, that’s not true at all, Judge.

[THE STATE]: To be honest, I don’t know the answer to that question. If they found 12 to nothing for first degree murder, and they contemplate second degree murder, I don’t know what the answer to that question is. I think it has to be 12 to nothing to find that mitigating factor, but if we get to a point in time
that they are deadlocked on that, if it’s six to six, I don’t think that’s a hung jury, Judge. I might be wrong about that. I would have to do some research on that. But what’s the hung—what are they hung on at that point in time?

How The Jury Question Was Answered

THE COURT: Here’s what I’m proposing responding and willing to listen
to either side, simply to say: "Your verdict must be unanimous. Continue deliberating."

[THE STATE]: I have no problems with that.

[DEFENSE COUNSEL]: I believe that’s correct, Judge.

The Old Murder Law

As this court explained in People v. Jeffries, 164 Ill. 2d 104, 113 (1995), under the old homicide statute, the State—as now—had the burden to prove, beyond a reasonable doubt, the elements of murder. The defendant then had the opportunity to present evidence of a factor in mitigation, either serious provocation or unreasonable belief, which must have been present to reduce an offense of murder to voluntary manslaughter.

The State then had the burden to prove, beyond a reasonable doubt, the absence of the factor in mitigation.

As this court observed in Jeffries:

“Under the new act, *** the defendant now bears the burden to prove, by a preponderance of the evidence, one of the factors in mitigation which must be present to reduce an offense of first degree murder to second degree murder.”

Obviously, as this court recognized in Jeffries, the significant change the legislature saw fit to make was to take the burden of proving the absence of a mitigating factor from the State and to place the burden of proving the presence of a mitigating factor on the defendant.

Lesser Mitigated Offense

This court also clarified, in Jeffries, that second degree murder is properly characterized as “a lesser mitigated offense of first degree murder,” that it is “first degree murder plus defendant’s proof by a preponderance of the evidence that a mitigating factor is present.”

As the Jeffries court recognized, as the jury in this case was instructed, and as this court continues to affirm,

“[t]he State must prove the elements of first degree murder beyond a reasonable doubt before the jury can even consider whether a mitigating factor for second degree murder has been shown.” People v. Staake, 2017 IL 121755, ¶ 40. See Episode 260 (Second degree murder is not a lesser included offense of first degree murder; it is a lesser mitigated offense of first degree murder.)

“The jury”—not some jurors, rather the jurors unanimously—must first find that the State has proven defendant guilty of first degree murder beyond a reasonable doubt before “the jury” can consider whether defendant has met the burden the legislature has imposed upon him, the burden of proving the existence of a mitigating factor by a mere preponderance of the evidence. See IPI Criminal 4th No. 7.06B (advising the jury that it “may not consider whether the defendant is guilty of *** second degree murder until and unless” it has “first determined that the State has proved beyond a reasonable doubt each” of the elements of first degree murder).

Analysis

It is defendant’s position that his failure to meet the modest burden the legislature has imposed upon him, i.e., to convince “the jury” that a mitigating factor exists, should negate what is necessarily a unanimous finding that the State has proven defendant guilty of first degree murder beyond a reasonable doubt.

His failure to meet his burden should, in effect, render the entire proceeding a nullity.

The appellate panel in this case appears to have come to that conclusion by taking a disjunctive view of the statutory scheme.

According to the appellate court, “if some jurors vote to find the presence of a mitigating factor, and if other jurors vote otherwise, the jury is not unanimous on the defendant’s guilt of first degree murder.” 2017 IL App (2d) 140930, ¶ 15.

Defendant would have us believe,

(1) despite the legislature’s decision to take the burden of proving the absence of a mitigating factor from the State and to place the burden of proving the presence of a mitigating factor on the defendant and
(2) despite the legislature’s requirement that “the jury” first find that the State has proven defendant guilty of first degree murder beyond a reasonable doubt before “the jury” can even consider whether defendant has met the burden the legislature has imposed upon him,

that his inability to convince “the jury,” even by a preponderance of the evidence, that a mitigating factor exists, should result in a hung jury, essentially nullifying the entire proceeding.

Unjust & Absurd Results

“The process of statutory interpretation should not be divorced from consideration of real-world results, and in construing a statute, courts should presume that the legislature did not intend unjust consequences.” Fort, 2017 IL 118966, ¶ 35.

Defendant’s reading of this statute leads to unjust and absurd results here.

Holding

We conclude that the legislature clearly intended that a defendant’s failure to sustain his burden—the burden of convincing all 12 jurors that a mitigating factor exists for purposes of second degree murder—does not nullify the jurors’ unanimous finding that the State has proven defendant guilty of first degree murder beyond a reasonable doubt.

Given our holding, the trial court’s response to the jury’s question was correct when considered in conjunction with instructions the jurors had already received. The jurors, who had obviously proceeded beyond a unanimous finding of first degree murder—having followed the required, sequential statutory progression—were advised that their verdict must be unanimous.

They then returned a verdict of first degree murder, and subsequent polling verified that was indeed the verdict of each juror. The trial court’s response to the jury’s question was correct; the polling the trial court conducted was appropriate.

Nothing more was required.

For the foregoing reasons, the judgment of the appellate court is reversed, and the circuit court’s judgment is affirmed. Appellate court judgment reversed.

See Also

Episode 308 - People v. Fort - Second Degree Murder Is Not An Automatic Transfer Offense So What Happens When Minor is “Acquitted” of First Degree Murder?

Episode 367 - People v. Brown - The jury signed the not guilty of first degree murder conviction and they signed the second degree murder instruction, this was inconsistent, yet the conviction is sustained. 

Episode 260 - People v. Staake - Originally Charged With Second Degree Murder, Then Amended To First Degree Murder, Problem?

People v. Phillips, 2018 IL App (3d) 130270 (February). Episode 479 (Duration 13:35)

18-year-old's confession ruled involuntary, in part, because defendant is told baby killers get killed in prison.

Gist

Defendant's baby died under suspicious circumstances while in his care.

Facts

Defendant did not have a job, and he would watch the minor when his girlfriend was at work.

The minor had multiple injuries, some of which were recent and some of which were old. His injuries included two skull fractures, fractured clavicles, hemorrhaging behind an eye, and bleeding on the brain.

The minor died as a result of blunt force trauma.

Arrest &  Charges

Phillips was charged by information with first degree murder.

Phillips was arrested and taken to the Rock Island Police Department where he was interviewed and ultimately made an inculpatory statement to the police.

Issue

Phillips filed a motion to suppress his statement to police.

Phillips argued that he did not give the statement knowingly and voluntarily and that it was “the result of coercion, deceit, trickery, and false promises on behalf of the investigators.”

The Interrogation

The interview lasted from approximately 11 a.m. to 3:30 p.m. and included breaks for the restroom, food, and water.

Phillips, who was then 18 years old, did not have an attorney or family member present at any time during the interview. Defendant wanted to see his mother and they denied that request.

After 45 minutes of reviewing the days activities, the police became more aggressive. Phillips was told that the cause of the minor’s death was not an accident and that the minor had been shaken.

For the next hour or so, Phillips continually denied that he shook or otherwise injured his son. At around 1:15 p.m., which was over two hours into the interview, Hufford entered the room and began aggressively interrogating Phillips.

Did They Cross A Line?

Variously, Hufford told Phillips that he was trying to save Phillips’s life and that a lot of things could change going forward, including the first degree murder charge.

Hufford also asked Phillips if he knew what happened to baby killers in prison and stated that Phillips’s life would not last long as a baby killer in prison. 

Hufford also told Phillips that unless he told the truth, neither God nor the minor would forgive him.

Then He Starts Talking

After a short break he began telling the detectives about how he could not get the minor to stop crying so he tossed the minor onto the bed. However, he bounced off the bed, hit his head on the nightstand, and fell to the floor.

Hufford discussed Phillips’s physical state as he was confessing to injuring the minor. He stated that Phillips began crying and “was sinking down, his body was just collapsing. You could see this leaving his body. He’s just letting it out finally.”

Eventually Allowed To See His Mother

Phillips asked if he was going to see his mother.

Phillips was told that “you can talk to your mother when we’re done. We’ve called her and told her to come get you in a little while, all right?” and that “this is your last opportunity to tell us what happened.”  

He stated that he had misspoken regarding Phillips’s mother coming to get him and said that he had assured Phillips multiple times throughout the interview that he would be allowed to talk to his mother.

After Phillips had further discussed the incident with the detectives, he was allowed to see his mother. During their brief time together, Phillips’s mother asked him several times whether he told the truth to the police.

Phillips either answered no or shook his head to indicate no every time she asked him that question. Phillips’s mother was escorted out of the interrogation room shortly thereafter.

Then They Tell Him He's Being Charged

Phillips originally was calm, collected, and polite before entering the interview room, but after being informed he was under arrest for murder, he became visibly upset and cried loudly.

This happened after they showed him the charges with his name on it and his arrest warrant.

Defendant's Perspective

Phillips testified and stated he believed police were telling him baby killers get murdered in prison.

Phillips asserted that he told the officers the truth—that he had not injured the minor— but the interview continued, and he felt the officers were looking for a specific answer.

He stated he “provided them with information to the best of [his] knowledge and at that point the interrogation wasn’t over, so [he] felt like [he] at least had to give them a satisfactory answer *** before [he] could see [his] mom.”

He recalled being told “you don’t get punished and injustices for telling the truth, you get into trouble for doing something intentional or accidental and showing no remorse.”

He testified that he interpreted this to mean, “[the officers] were trying to tell him if he can give the officers some closure for this situation, then maybe the officers can help him out.”

Made Up A Story

This was a new situation for him; he was afraid, and he had not secured an attorney. Says he made up a story during the interview.

He stated “[he] felt like the answer they were going for was that [he] had done something to [his] son.”

Medical Records Don't Jive With What He Said

Interestingly, the medical records don’t jive with injuries being done this way.

After describing his actions to the police regarding the minor, Phillips stated that he was allowed to see his mother.

He testified to the interaction he had with his mother and stated that he told her that what he told the police was not the truth.

When she began to tell him to explain that to the police, Hufford entered the room and told his mother to leave.

Convicted

The trial judge found the statement to be volunatary.

Following the presentation of extensive evidence, the jury found Phillips guilty of first degree murder as charged. He was sentenced to 25 years of imprisonment.

Law On Confessions

“It is *** axiomatic that the defendant’s constitutional rights have been violated if his conviction is based, in whole or in part, on an involuntary confession, regardless of its truth or falsity. [Citations.] This is so even if there is ample evidence aside from the confession to support the conviction [citations].” Miranda v. Arizona, 384 U.S. 436, 464 n.33 (1966).

If an individual’s “will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.” Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973) (quoting Culombe v. Connecticut, 367 U.S. 568, 602 (1961)).

The test for determining whether a confession was voluntary is whether the defendant made the statement freely, voluntarily, and without compulsion or inducement of any sort, or whether the defendant’s will was overcome at the time he or she confessed.

In determining whether a statement is voluntary, a court must consider the totality of the circumstances of the particular case; no single factor is dispositive. Factors to consider include the defendant’s

• age
• intelligence
• background
• experience
• mental capacity
• education and
• physical condition at the time of questioning
• the legality and duration of the detention
• the presence of Miranda warnings
• the duration of the questioning
• and any physical or mental abuse by police
• including the existence of threats or promises.

See People v. Richardson, 234 Ill. 2d 233, 253-54 (2009).

At a hearing on a motion to suppress, it is the State’s burden to prove, by a preponderance of the evidence, that a confession was voluntary. 725 ILCS 5/114-11(d).

Analysis (Voluntary)

Regarding Phillips’s age, intelligence, background, experience, mental capacity, education, and physical condition at the time of questioning, we find that these factors weigh in favor of a finding that the confession was voluntary.

The evidence presented on these factors, including the video of the interrogation, showed that 18-year-old Phillips was intelligent and articulate, and he had experience with the criminal justice system in that he had been interviewed by police several times prior to the interrogation in which he confessed.

He had an eleventh grade level education and had no apparent physical impairments. Additionally, the duration and legality of the detention, as well as the duration of the questioning, weigh in favor of a finding that the confession was voluntary, as the interrogation was conducted postarrest, took place in an interrogation room at the police station, featured no more than two officers at one time, lasted under four hours (including breaks for the restroom and food and drink), and was conducted in the middle of the day.

Further, the interrogation did not begin until after Phillips had been read his Miranda rights and he signed the waiver form, factors which also weigh in favor of a finding that the confession was voluntary.

Analysis (Involuntary)

However, the remaining factors—any physical or mental abuse by police, including the existence of threats or promises—weigh strongly in favor of a finding that Phillips’s confession was not voluntary.

Statement About The Charges

First, the statement regarding the charge changing was indicative of improper coercion.

Hufford told Phillips:

I’m trying to save your life, okay? *** None of us here want you to go to prison forever. We don’t want you to die. We don’t want any bad thing to happen to anybody, especially an 18­ year-old kid that made a mistake. But by you giving this type of interview, the people will see later—you show absolutely no remorse.

Okay?

We’re not asking you anymore, did you kill [the minor]. That, that part of the investigation’s over.

Okay?

We’ve already showed enough probable cause in front of attorneys and judges that you killed [the minor].

Okay?

We’re giving you a chance to save your life.

You know what that charge carries right? They told you what the sentence was. I heard them.

Okay?

That’s not even the number of years. That’s till you die.

Okay?

The only reason, just because that’s your charge, that doesn’t mean that’s the finalized thing that’s going to happen. There’s a long time before you’re sentenced and you’re found guilty. There’s a lot of time. A lot of things can change, including that charge, if the truth is brought out. And if it comes out of your mouth.

This court has stated that “[t]o constitute an offer of leniency that renders a confession inadmissible, a police statement must be coupled with a suggestion of a specific benefit that will follow if the defendant confesses.” People v. Kellerman, 342 Ill. App. 3d 1019, 1027 (2003).

In this case, Hufford’s statement included a suggestion of a specific benefit—that the charge could change. An open promise is not a problem. Something like the judge will take it into consideration.

Here, the detectives did not tell Phillips that they would recommend a lowering of the charge. Certainly, the detectives did not clarify that the prosecutor was the only one who could lower the charge. Rather, the clear import of Hufford’s statement was that the defendant could avoid the first degree murder charge if he confessed, which weighs in favor of finding the confession involuntary.

The "Baby Killer" Statement

Second, the “baby killer” comments indicate improper coercion. The following statements were made to Phillips by Hufford:

“You don’t get punished in this justice system for telling the truth. You get punished by doing an accident or doing something intentional and showing no remorse. Those people are called killers. And what do you think happens to baby killers in prison? What do you think is going to happen? You’re eighteen.”

MEIRESONNE:

“It’s mandatory life.”

HUFFORD:

“And your life won’t be long as a baby killer in prison. Check the history papers. Stay online when you get a chance in the county jail. See what happens to baby killers in jail. You show no remorse whatsoever and that makes me angry.”

MEIRESONNE:

“When you get convicted of this and you go over for sentencing in front of that judge, every judge wants to send a baby killer to prison forever.”

These “baby killer” statements were threats of physical violence that case law has reasonably found to be indicative of improper coercion.

"We Just Wanna Help You"

We also note that numerous comments were made to Phillips that the officers were trying to help him and/or save his life.

They also told him that he was too young to go to prison for the rest of his life and that...

“When a person is truthful and honest and tells the police what happened, that goes a long way as it goes down through the court system. One of the things that the courts really like is the fact that somebody takes responsibility for their actions.”

Forgiveness and Faith

We also note that numerous comments were made to Phillips regarding forgiveness and faith.

For example, Meiresonne told Phillips that

“You have to let it go. You have to tell us. For your own self-preservation, in the eyes of God and everyone else.”

Hufford stated,

“[e]verybody will forgive you if you tell the truth.”

Hufford also stated,

“Aren’t you scared of God? Because God will never forgive you if you don’t tell the truth. [The minor] will never forgive you. You’re going to see him someday.”

Holding

Considering the multiple instances of coercive conduct employed by the police in this case, we find that the factors weighing in favor of a finding of involuntariness outweigh the factors indicating the contrary, and we therefore hold under the totality of the circumstances of this case that Phillips’s confession was involuntary.

In arriving at this conclusion, we also note that the court’s finding that Phillips failed to respond three or four times to his mothers’ questions regarding the truthfulness of his confession is against the manifest weight of the evidence.

The video clearly shows that Phillips either said no or shook his head to indicate no in response to his mother’s questions about whether he told the police the truth.

Regardless, whether Phillips was lying or telling the truth—indeed, whether he in fact harmed the minor and/or caused the minor’s death—is irrelevant.

What matters is whether Phillips’s will had been overborne by improper means. For the foregoing reasons, we hold that it was.

We are mindful of the undoubtedly tragic circumstances of this case. However, the quest for justice for the minor cannot justify the violation of Phillips’s constitutional rights. Under the circumstances of this case, we hold that the circuit court erred when it denied Phillips’s motion to suppress his statement to police. We remand the case for further proceedings consistent with this opinion.

People v. Jones, 2018 IL App (1st) 151307 (March). Episode 478 (Duration 11:04)

Defendant didn't make a clear unequivocal demand for trial so it counts as a date by agreement.

Gist

Defendant was convicted of raping a 12 year old when he was 17 years old. He got 10 years for it.

Issue

On appeal he argued he was brought to trial in 152 days. The statute required he be brought to trial in 120 days.

The parties where in disagreement about how to count 36 days which if they counted against the state would have broken the speedy trial requirement. 

Defendant argues that the court’s ruling that the State was not ready and that the hearing was continued on the State’s motion show that this time was attributable to the State, not defendant.

725 ILCS 5/103-5(a)

Section 103-5(a) (in custody) provides in relevant part:

Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant ***. Delay shall be considered to be agreed to by the defendant unless he or she objects to the delay by making a written demand for trial or an oral demand for trial on the record.

725 ILCS 5/103-5(a).

725 ILCS 5/103-5(b)

Section 103-5(b) (out on bail) provides in relevant part:

 (b) Every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial unless delay is occasioned by the defendant...Any demand for trial made under this subsection (b) shall be in writing; and in the case of a defendant not in custody, the demand for trial shall include the date of any prior demand made under this provision while the defendant was in custody. 

725 ILCS 5/103-5(b).

725 ILCS 5/103-5(f)

Section 103-5(f) speaks about delay:

(f) Delay occasioned by the defendant shall temporarily suspend for the time of the delay the period within which a person shall be tried as prescribed by subsections (a), (b), or (e) of this Section and on the day of expiration of the delay the said period shall continue at the point at which it was suspended. 

725 ILCS 5/103-5(f).

In Custody Is Different

The last line quoted above, requiring a defendant to make a written or oral demand for trial, was added in 1999. As a result of the 1999 amendment, we must consider any delay to be agreed to by a defendant “unless he or she object[ed] to the delay by making a written demand for trial or an oral demand for trial on the record.” 725 ILCS 5/103-5(a).

Interpreting the 1999 amendment, our supreme court has held that it requires a defendant to make a demand for trial after the delay is proposed. People v. Cordell, 223 Ill. 2d 380, 391 (2006). 

A prior demand by defendant for trial is not enough to qualify as an objection. Our supreme court explained why:

“As amended, section 103-5(a) places the onus on a defendant to take affirmative action when he becomes aware that his trial is being delayed. To allow basic requests for trial, made before any delay was even proposed, to qualify as objections to ‘delays’ not yet proposed would provide defendants with another sword to use after the fact to overturn their convictions. This does not comport with the intent of section 103-5(a).” Cordell, 223 Ill. 2d at 391-92.

Qualified Objections

Thus, to qualify as an objection, there must be, first, a proposed delay and then a written or oral demand for trial by the defense.

While the amendment does not mandate any magic words constituting a demand for trial, it does require some affirmative statement in the record requesting a speedy trial.

The provisions of section 103-5 are to be liberally construed in favor of the defendant, and *** the State cannot improperly manipulate criminal proceedings or purposefully evade the operation of the section’s provisions.

Disputed Days

The State informed the court that its witnesses were still unavailable, and the court stated that “[t]he record is going to reflect the State’s not ready.” The trial court then asked defense counsel what her position was, and defense counsel responded,

“Well, [the prosecutor] did advise me this morning as to the unavailability of the witnesses, so …”

The court then stated,

“The matter is going to continue, motion State.”

There was also a discussion between the judge, the defense attorney and the prosecutor as to the other trials that were set that day. During this discussion over the rescheduling not once did defense counsel assert a demand for trial as the amended statute explicitly requires.

Analysis

While no magic words are required, some affirmative statement is required to assert a trial demand under the amended statute, and defense counsel failed to utter any words resembling a trial demand before the court ruled or during the subsequent discussion about rescheduling. See also People v. Phipps, 238 Ill. 2d 54, 65 (2010) (requiring “a written demand for trial or an oral demand for trial on the record”).

Thus, this 36-day period was excluded from the speedy-trial clock, and no speedy-trial violation occurred. In addition, defense counsel's statements after the trial court's ruling could be interpreted as agreeing. While we do not rest our opinion on this point, we cite it only as some additional support for our finding. 

What is now required is an affirmative demand for trial. 725 ILCS 5/103-5(a) (requiring “a written demand for trial or an oral demand for trial on the record”).

The whole point of the amended statute is to remove any need for courts to scour the record to determine whether defense counsel implicitly or arguably did or did not agree. Only an affirmative demand for trial, in writing or on the record, will do. 725 ILCS 5/103-5(a). 

Holding

Trial counsel was not ineffective for not moving to dismiss on speedy-trial grounds because there was no speedy-trial violation.

Affirmed.

See Also

• Episode 173 - People v. Lilly, 2016 IL App (3d) 140286 (April) (in custody defendant continues to file motions after his demand)
• Episode 205 - People v. Smith, 2016 IL App (3d) 140235 (June) (in custody defendant was held for more than one offense, state blows the speedy)
• Episode 241 - People v. Kilcauski, 2016 IL App (5th) 140526 (August) (state blows speedy when they transfer defendant to Missouri)
• Episode 354 - People v. Pettis, 2017 IL App (4th) 151006 (May) (no speedy trial violation because the state properly relied on the DNA extension)
• Episode 384 - People v. Dalton, 2017 IL App (3d) 150213 (June) (speedy trial rights and compulsory joinder combine to reach a finding of speedy violation)
• Episode 404 - People v. Connors, 2017 IL App (1st) 162440 (September) (the due diligence to obtain evidence exception)

People v. Encalado, 2018 IL 122059 (March). Episode 477 (Duration 8:50)

There is no body of case law documenting the public shaming of patrons of prostitutes.

Gist

Defendant was indicted on 15 charges of aggravated criminal sexual assault and 3 charges of criminal sexual assault.

Facts

In the indictment, it was alleged that, on the morning of March 5, 2006, defendant knowingly, and by the use of force or threat of force, committed acts of oral, vaginal, and anal sexual penetration upon Y.C.

The victim in this case was brutally raped by defendant. She got into his car because he said her family member needed her. 

Other Crimes

Prior to defendant’s trial, the State filed a motion to admit other crimes evidence to show that defendant committed similar sexual assaults against J.H., C.C., and S.A.

The trial court granted the State’s request with respect to C.C. and S.A., allowing admittance of other crimes evidence to show intent, lack of consent, and propensity.

A prior victim testified that she too was punched in the mouth by defendant and raped by him after he had offered to give her a ride.

Defendant's Story

After the trial court ruled to allow the admission of other crimes evidence, defense counsel advised the court that defendant intended to testify that Y.C., C.C., and S.A. all consented to having sex with defendant in exchange for the payment of cash and drugs but that, after they provided the agreed services, defendant took back the payments he made.

Counsel stated that the jurors “are going to hear evidence that [defendant] did engage in soliciting and using prostitutes.”

Defendant testified this was all consensual sex with prostitutes and they were angry with him for not paying.

Voir Dire

Accordingly, defense counsel asked the court to inquire of the venire whether

“[t]he fact that you will hear evidence about—and just put it mildly—to not try to indoctrinate them at all—you will hear evidence about prostitution. Would that fact alone prevent you from being fair to either side?”

The court refused the request, finding that the question was improper because it would be “asking them to comment on particular types of evidence that they may hear.” 

Appellate Court

The appellate court, with one justice dissenting, reversed defendant’s convictions and remanded for a new trial. The court held that the circuit court abused its discretion when it refused to question the venire members about any potential bias they might have in connection with prostitution.

Issue

The relevant question in this case is not whether patrons of prostitutes can be made to feel ashamed if their behavior is publicized or whether prostitution evokes “strong responses” in the minds of the public. Rather, the question is whether prospective jurors harbor such bias against those people who patronize prostitutes that the jurors will not believe the testimony of such a person or be able to give that person a fair hearing.

It is the jurors’ ability to fairly consider the evidence before them that is the critical issue.

Gang Cases

Voir dire questions on gangs not required because gang members feel ashamed of being in a gang, or simply because gang membership provokes strong feelings in the public. Instead, the questions were required because the public views the testimony of gang members with skepticism and may, therefore, fail to consider the testimony of a gang member without prejudice.

And, importantly, this fact was established by a substantial body of case law. See People v. Strain, 306 Ill. App. 3d 328, 332 (1999)

Sex Cases

There is no similar body of law here.

None of the articles or decisions cited by the appellate court below discuss how members of the general public treat the testimony of those who patronize prostitutes. And none of the authorities establish that the public harbors bias against the patrons of prostitutes to the extent that such a person’s testimony cannot be considered fairly. There is no body of law that holds that the testimony of patrons of prostitutes is treated with skepticism by the public.

Disagreement Over The Facts

In Strain, the gang affiliation of the witnesses was a matter that was both inescapably a part of the trial and a matter that was not in dispute by either party.

In this case, in contrast, it was disputed whether Y.C. and C.C. were, in fact, prostitutes. Thus, defendant’s proffered question did not involve a matter that was indisputably true and inextricably a part of trial. Rather, the question amounted to a preliminary argument regarding a disputed question of fact.

Voir Dire Procedure

This type of questioning during voir dire is generally not permitted.

Even if it were true that Y.C. and C.C. were prostitutes, it is difficult to conceive how a juror who could fairly judge the explicit sexual conduct would be rendered incapable of fairly judging defendant based on the fact he patronized prostitutes.

The trial court in the case at bar conducted a thorough voir dire, asking all members of the venire, among other things, whether they could follow the law and obey the instructions given by the court and whether they would use sympathy, bias, or prejudice in reaching a decision.

 Holding

Allowing defendant’s proffered question would have permitted defendant to pre argue a disputed issue of fact. Given these circumstances, we cannot say that refusing defendant’s proffered question regarding prostitution rendered the voir dire proceeding fundamentally unfair.

Accordingly, we hold that the trial court did not abuse its discretion in denying defendant’s question. For the foregoing reasons, the judgment of the appellate court is reversed.

See Also 

Episode 314 - People v. Encalado (the lower appellate court opinion)

People v. Boose, 2018 IL App (2d) 170016 (March). Episode 476 (Duration 11:08)

Sloppy drafting of a warrant means all the murder evidence is out.

Gist

The victim was beat with a broom and died in the hospital. Defendant was her husband and their 7 year old granddaughter was living with them and she saw the beating and told police.

Problem With The Warrant

For some reason police used a drug warrant to get into the house and take evidence of the murder.

The complaint was mainly a drug complaint but did include some items germaine to the murder. The warrant’s description of the items to be seized was identical to the complaint’s description of items that would be relevant to the investigation of a drug offense. However, the warrant did not include the following items listed in the complaint that were germane to the investigation of the victim’s death:

“broom handles, bludgeons, wooden handles, extension cords, ropes, belts, [and] any binding agents.”

The Warrant Application

The entire search-warrant paperwork consisted of five pages: a one-page complaint for a search warrant, a three-page affidavit accompanying the complaint, and a one-page search warrant. The affidavit had the 7 year old’s story, but the warrant was asking to confiscate drug paraphernalia.

The Complaint

The one-page complaint for a search warrant began by listing certain items to be seized that would be pertinent to a narcotics investigation but not relevant to the murder investigation that Detective Schroder was conducting.

In the middle of this list of narcotics evidence were the items that pertained to the murder investigation:

“broom handles, bludgeons, wooden handles, extension cords, ropes, [and] belts.”

After listing those six items, the list of items common to drug dealing resumed, and the complaint then referred to “the premises located at 2204 Van Wie Avenue, Rockford, Illinois.” (Emphasis in original.)

The complaint concluded with the language:

“That complainant has probable cause to believe that aforesaid facts are true for the following reasons: see attached affidavit, which is incorporated by reference herein.”

The Search Warrant

The one-page search warrant provided the correct address. The list of items to be seized was identical to the list on the complaint for a search warrant, except that it did not contain the six items related to the murder investigation. The search warrant also contained language incorporating the complaint for a search warrant:

“Whereas, a written complaint under oath has been made before me this day stating facts sufficient to show probable cause for search of the following described place.”

The Affidavit

The three-page affidavit accompanying the complaint and the search warrant clearly set forth the details that supported probable cause to search the premises, including the following:

...that police were called to Rockford Memorial Hospital regarding a deceased woman whom the fire department transported from her residence (2204 Van Wie Avenue, Rockford) to the hospital, that the seven-year-old granddaughter of the victim and defendant had witnessed defendant beating the victim with a broomstick and throwing her into the walls, that the victim had multiple abrasions and bruises about her body, that family members said that there had been "a lot of domestic violence" between the defendant and the victim, that the victim had been deceased for about eight hours, and that the coroner’s office had conducted an autopsy of the victim and had “declared this incident a Murder.”

Items Collected

The items that the police later collected pursuant to the search warrant included broom and mop heads and handles, hair, a leather belt, and bloody and ripped clothing. This evidence was consistent with the items described in the complaint and with the murder investigation.

Issue

In his motion to quash and suppress, defendant argued that the warrant was defective because the affidavit did not establish probable cause to seize the items listed in the warrant.

In granting the motion to reconsider, the trial court reasoned as follows:

“[T]he detectives who conducted the search did so with no particularized description of the items to be searched. In addition there is no evidence that the affidavit prepared by Detective [Schroder] was attached to the search warrant dropped off at defendant’s residence. The Court finds that in the absence of Detective [Schroder] under these circumstances, the detectives on the scene transformed the search warrant into a general search warrant, which is a violation of the defendant’s Fourth Amendment rights."

State's Argument

The State argues that the warrant was, indeed, valid. It is undisputed that the complaint for the warrant, and the accompanying affidavit, established probable cause to search for and seize evidence of the offense of first-degree murder. It is also undisputed that the warrant sufficiently described the place to be searched. 

According to the State, it is apparent that the warrant was prepared on a computer and that Schroder mistakenly cut and pasted boilerplate language used in warrants to search for evidence of drug offenses. The State maintains that the inclusion of this language was a “technical error best described as a scrivener’s error” and that it did not invalidate the entire warrant. According to the State, the valid portion of the warrant may be severed from the invalid description of the items to be seized.

No General Warrants

“To be valid, a search warrant must state with particularity the place to be searched and the persons or things to be seized.” People v. Garcia, 2017 IL App (1st) 133398, ¶ 41. This requirement is designed to “prevent the use of general warrants that would give police broad discretion to search and seize.” People v. Burmeister, 313 Ill. App. 3d 152, 158 (2000).

In People v. Fragoso, 68 Ill. App. 3d 428 (1979) the court stated that, in determining whether a warrant is valid, we may look to the affidavit for the warrant “where the affidavit is attached to the warrant, incorporated by reference, or as is the case here, where the officer who signed and swore to the affidavit also executed the search warrant.”

Analysis

The obvious problem with the state's argument is that severing the invalid portion of the warrant from the remainder would simply leave the warrant without any description of the items to be seized. We would be left with a general warrant running afoul of the fourth amendment.

To overcome this problem, the State argues that the warrant incorporated the complaint by reference and that the complaint, in turn, incorporated the affidavit by reference.

The State’s position is that incorporation by reference is sufficient to satisfy the fourth amendment’s particularity requirement, even if the incorporated document does not accompany the warrant. Citing Groh v. Ramirez, 540 U.S. 551 (2004), defendant responds that the incorporated document must accompany the warrant. Groh noted that “most Courts of Appeals have held that a court may construe a warrant with reference to a supporting application or affidavit if the warrant uses appropriate words of incorporation, and if the supporting document accompanies the warrant.”

However, in cases decided after Groh, United States Courts of Appeals have reached differing conclusions on the question of whether an affidavit must accompany a warrant. We need not decide whether incorporation of a document by reference is sufficient in itself or whether the document must also accompany the warrant. Here, the warrant simply did not incorporate the complaint by reference. The warrant’s only reference to the complaint was the following language:

“Whereas, a written complaint under oath has been made before me this day stating facts sufficient to show probable cause for search of the following described place ***.”

Similar language has been held to be insufficient to incorporate by reference a complaint into a search warrant. In People v. Staes, 92 Ill. App. 2d 156, 157-58 (1968), the warrant proclaimed “ON THIS DAY Donald T. Shaw COMPLAINANT HAS SUBSCRIBED and sworn to a complaint for search warrant before me.” The Staes court held that “[i]n the case before us the warrant did not expressly adopt the description in the complaint for search warrant.”

Holding

Similarly, here, the warrant did not expressly adopt the complaint’s description of the items to be seized.

Instead, it merely acknowledged the complaint before expressing a different description of the items to be seized. We will not “use the mere fact that the police requested a warrant to search [for particular items] to infer that the issuing judge found probable cause to authorize a search [for those items], despite the sheer absence of any language to that effect in the warrant itself.” People v. Mabry, 304 Ill. App. 3d 61, 66-67 (1999); cf. People v. Siegwarth, 285 Ill. App. 3d 739, 741, 743 (1996) (defendant’s substantial rights were not impaired by seizure of cannabis, cash, and a triple-beam scale pursuant to warrant that left the space to list items to be seized blank, but directed officers to seize “related paraphernalia which have been used in the commission of, or which constitute evidence of the offense of Unlawful Possession of Cannabis”). 

Affirmed. See the strong dissent.

See Also 

Episode 444 - People v. Ross, 2017 IL App (4th) 170121 (December). (Police put the wrong address on the search warrant…oops.)

Episode 475 (Duration 26:13) Here are 4 cases on the Illinois Sex Offender Registration Act (SORA) You should know something about. 

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We discuss the following cases:

• In re T.J.D., 2017 IL App (5th) 170133 (November)
• In re B.C., 2018 IL App (3d) 170025 (February)
• People v. Tetter, 2018 IL App (3d) 150243 (January)
• People v. Zetterlund, 2018 IL App (3d) 150435 (March)
• People v. Rodriguez, 2018 IL App (1st) 151938 (February)

In re T.J.D.

In re T.J.D., 2017 IL App (5th) 170133 (November)

Petitioner has to prove he poses “no risk” to reoffend even though evaluators never go beyond a “low risk” assessment. Juvenile Sex Probation

The court entered an adjudication and disposition order on April 14, 2011, which required respondent to register as a juvenile sex offender under the Act. 730 ILCS 150/3-5.

Respondent was also placed on probation for five years and home electronic monitoring for 12 months. Respondent registered as a juvenile sex offender. Respondent was discharged from probation and subsequently filed filed a petition to terminate his sexual offender registration pursuant to section 3-5(d) of the Act. 730 ILCS 150/3-5(d).

Minor May Terminate Registration

Under this section of the Act, a court may terminate the registration of an adjudicated juvenile delinquent if he or she shows, by a preponderance of the evidence, that he or she “poses no risk to the community.” 730 ILCS 150/3-5(d).

In support of respondent’s contention that he posed no risk to the community, respondent asserted that he had completed a current risk assessment, which

• recommends he be removed from registration
• he successfully completed individual sex offender treatment
• his sexual offender history and recommendations from counselors indicate he is a low risk and
• requires no supervision or restrictions
• he has resided and attended school in the community without any incidents; and
• the continued requirement of registration presents an undue burden.

Sex Offender Registration Act Section 3-5(d)

The relevant section of SORA provides:

“(d) The court may upon a hearing on the petition for termination of registration, terminate registration if the court finds that the registrant poses no risk to the community by a preponderance of the evidence based upon the factors set forth in subsection (e). ***

(e) To determine whether a registrant poses a risk to the community as required by subsection (d), the court shall consider the following factors:

(1) a risk assessment performed by an evaluator licensed under the Sex Offender Evaluation and Treatment Provider Act [(225 ILCS 109/1 et seq. (West 2014))]; 
(2) the sex offender history of the adjudicated juvenile delinquent; 
(3) evidence of the adjudicated juvenile delinquent’s rehabilitation; 
(4) the age of the adjudicated juvenile delinquent at the time of the offense; 
(5) information related to the adjudicated juvenile delinquent’s mental, physical, educational, and social history; 
(6) victim impact statements; and 
(7) any other factors deemed relevant by the court.

(f) At the hearing set forth in subsections (c) and (d), a registrant shall be represented by counsel and may present a risk assessment conducted by an evaluator who is licensed under the Sex Offender Evaluation and Treatment Provider Act.”

730 ILCS 150/3-5(d), (e), (f) (West 2014).

Psychosexual Risk Assessment & Evaluation

Attached to respondent’s petition was a psychosexual risk assessment and evaluation prepared by Linda Stover, a licensed sex offender evaluator.

Based on her review of records, clinical interviews, written assessments, and stable and acute risk factors, Stover concluded that respondent should be considered a low risk to the community.

Stover opined that respondent had demonstrated he can live an offense-free life and should be given the opportunity to continue his life without having to register as a sex offender. Stover further stated that respondent had completed everything the court asked of him, he assumes full responsibility for his actions, and he “is very remorseful for all of it.” Stover strongly recommended that respondent be removed from the registration law.

The State’s Evaluator

The State’s own evaluator stated that respondent had participated in both residential and outpatient sex offense specific treatment and that he successfully completed the treatment with highly positive reports from his treatment providers. The evaluator opined that respondent had demonstrated a number of strengths in dynamic risk areas and had shown patterns of behavior associated with decreased risk for sexual offense recidivism. She found the risk of respondent’s recidivism to be very low.

Regarding registry removal requirements in Illinois, Adkerson opined:

“Illinois requires a finding that the individual pose no risk to the community to be appropriate for registry removal, which presumably would be a risk level equivalent to community members at large. A finding of no risk is not possible, as some risk for sexual offense exists even among the general population for whom no prior sexual offenses have been identified.”

In sum, the evaluator recommended that respondent be released from his sex offender registry requirements because there “is every reason to believe” respondent would not reoffend, and because remaining on the sex offender registry creates risk of destabilization in housing and employment which in turn undermines best functioning.

The Trial Judge

The court called the factual basis underlying the adjudication both “disturbing and disgusting” and observed that both of respondent’s victims were between two and four years old at the time the offenses were committed.

The court found the evidence clearly demonstrated respondent gained the trust of the victims and the victims’ parents, and after doing so, respondent repeatedly molested the children over a period of months until he “grew bored.” The court noted that respondent chose the minor victim, one of the victims, because “he could get away with it and she would be easy.”

The court further concluded that respondent’s testimony lacked credibility.

The court found there were inconsistencies regarding respondent’s testimony, which were not explained to the court’s satisfaction, and observed respondent’s manner and tone to be “well-rehearsed” and “less than forthright.

In its conclusion, the court stated, in relevant part:

“[T]he Court finds [respondent] has failed to prove by a preponderance of the evidence that he poses ‘no risk’ to the community. Both experts found him to be low risk. The Court is unwilling to give that statutory direction a lesser meaning. The Legislature chose to make the standard ‘no risk.’ Low risk is not the same as no risk. The Court finds by a preponderance of the evidence that [respondent] is a low risk to the community; however, that does not meet the standard set out in 730 ILCS 150 3/5. Based on the evidence presented, the Court cannot find the burden to prove he is no risk to the community has been met.”

Issue

Turning to the merits, respondent argues the “no risk” requirement under section 3-5(d) of the Act—which, if proven by a preponderance of the evidence, permits a court to terminate an individual’s sexual offender registration—creates an impossible burden to obtain and renders this statutory provision meaningless.

Respondent requests that this court reverse and remand this cause with directions regarding the reasonableness of “no risk” under section 3-5(d).

Analysis

In support of his argument, respondent asserts that experts in the field of sex offender treatment will never make a formal finding lower than “low risk.

Respondent contends it is irrational that a court must make a finding of “no risk” in order to terminate sexual offender registration, but must consider a risk assessment performed by a licensed evaluator pursuant to section 3-5(e) of the Act which will not label a petition lower than “low risk.” Respondent further argues the legislative history indicates the court was intended to have discretion in determining whether to grant a petition to terminate sexual offender registration, and the plain language of the statute has stripped the court of that discretion.

After careful consideration, we do not find the statutory language at issue to be ambiguous. Section 3-5(d) clearly requires the court to make a finding, by a preponderance of the evidence, that the applicant poses “no risk” to the community. 730 ILCS 150/3-5(d). Here, we find nothing which suggests “no risk” within the meaning of section 3-5(d) is ambiguous or absurd.

Further, contrary to respondent’s assertion, we do not find this provision creates an impossible burden for respondent to obtain. To obtain relief, the legislature adopted a preponderance of the evidence as the burden of proof. Our supreme court has defined a preponderance of the evidence as that evidence which renders a fact more likely than not. After careful consideration, we find this burden is not unreasonable or impossible to satisfy. If the statute employed an “impossible burden” as respondent suggests, it would be a much heavier burden of proof such as beyond a reasonable doubt or clear and convincing evidence.

By adopting a preponderance of the evidence as the burden of proof, the legislature afforded petitioners the opportunity to prove they pose “no risk” to the community.

Holding

In this case, the court, after considering the factors outlined in section 3-5(e) of the Act (which included the evaluations concluding respondent was a low risk to the community), simply determined respondent failed to meet that burden. It is clear that the burden of proof adopted by the legislature is not unreasonable or unattainable.

In sum, we do not find that the “no risk” requirement under section 3-5(d) creates an impossible burden. Although we agree the statute creates a very high burden on respondent, a showing of “no risk,” while under limited circumstances, is not unreasonable or impossible to obtain. It was possible for respondent to prove he posed no risk to the community by a preponderance of the evidence.

We further note that the offenses committed by respondent are a far cry from the “less serious sex offenses” section 3-5 is intended to protect. For these reasons, we reject respondent’s argument.

In light of the foregoing, we cannot say that the trial court’s decision denying respondent’s petition was against the manifest weight of the evidence. As a reviewing court, we will not reverse a trial court’s decision simply because we might have reached a different conclusion based on conflicting evidence. Here, although we may have weighed the evidence differently, we cannot say the court’s judgment was unreasonable, arbitrary, or not based on the evidence.

Legislative Act Required

Accordingly, we reject respondent’s argument. In sum, we conclude that section 3-5(d) of the Act clearly requires an individual to prove he poses “no risk” to the community by a preponderance of the evidence in order to permit a court to terminate his or her sexual offender registration. This is not an impossible burden to obtain. However, considering that medical experts refuse to label an offender as “no risk” (the lowest recognized category by the treatment providers in this case was “low risk” or “lowest possible risk”), we encourage the legislature to reconsider that standard. We further conclude that the court’s decision denying respondent’s petition was not against the manifest weight of the evidence. For these reasons, we affirm the order of the circuit court of Williamson County, denying respondent’s petition to terminate his sexual offender registration.

In re B.C.

In re B.C., 2018 IL App (3d) 170025 (February)

The law does allow a petitioner to establish that it is “more probable than not” that he poses no risk to the community not withstanding an evaluation that says he poses a “low risk to the community.” Gist

The minor was 14 years old when he put his penis in the mouth and anus of two 8 year old boys. He was charged in juvenile court under aggravated criminal sexual abuse and was adjudicated.

Registration Required

He had a 10 year registration requirement and it later turned into a 20 year period.

Original Evaluation

The doctor who evaluated B.C. In her report, said B.C. appeared to be making positive strides in therapy, and he had improved his social skills. She noted that assessing B.C.’s risk of reoffense was “not an easy task” because recidivism rates for adolescent sex offenders were low compared to adult sex offenders and a 100% accurate empirical risk assessment did not exist.

Nevertheless, the doctor cited the following factors that may reduce B.C.’s likelihood of reoffense:

(1) B.C. had no history of juvenile delinquency before the adjudicated offense
(2) since B.C.’s adjudication, he has not had any new involvement with the justice system
(3) B.C. consistently engaged in and demonstrated progress in treatment
(4) B.C. admitted that he committed the offenses
(5) B.C.’s level of denial had decreased
(6) B.C.’s exposure to sexually explicit material had decreased
(7) B.C. did not have a history of being victimized
(8) B.C. did not have a deviant sexual arousal pattern
(9) B.C.’s family was willing to engage in treatment
(10) B.C. was involved in a functional family system
(11) B.C. did not have a history of academic or behavioral problems
(12) B.C. had increased his involvement with peers his age and decreased his involvement with younger peers
(13) B.C. had increased parental and adult supervision
(14) B.C.’s empathy for the victims had increased but was still incomplete
(15) B.C. did not have a history of drug or alcohol use
(16) B.C.’s social skills were increasing and 
(17) B.C. was not suffering from a significant emotional or psychological problem.

The doctor also cited four factors that may increase B.C.’s likelihood of reoffense:

(1) B.C. and his parents continued to display cognitive distortions related to the offense
(2) B.C. and his family did not have sufficient knowledge of the environmental, interpersonal, and family factors that may have contributed to the abuse 
(3) B.C. and his family have yet to develop an appropriate level of victim empathy and 
(4) B.C. and his family failed to completely understand the exploitative nature of the offenses.

Finishes Probation

Five years he was discharged from probation.

…11 Years Later

11 years after that he petitioned for termination of his sex offender registration requirement. 730 ILCS 150/3-5(c).

The petition alleged that

(1) B.C. became statutorily eligible to petition for termination on September 1, 2005
(2) B.C. had successfully completed a sex offender treatment program, and 
(3) according to a different licensed professional evaluator, B.C. was a “low risk to re-offend,” had a plan for accountability, and was aware of his triggers.

What He Was Up To…

At the hearing on the petition, B.C. testified that he committed the charged offenses when he was 14 years old.

Since his convictions, B.C. had graduated from high school and attended 1½ years of community college. After high school, B.C. worked full time at several Taco Bell locations. B.C. had also worked as a manager at a Buffalo Wild Wings restaurant and was then the general manager of the Taco Bell he worked at.

He had no new arrests, no violations of probation and had met all his registration requirements.

Victim Impact Statement

The State called, the mother of the minor victim, to read a victim impact statement.

In her statement, she detailed continuing anxiety and emotional distress felt by the victim caused by B.C.’s actions. The mother acknowledged that people can change, but advocated that B.C. remain on the sex offender registry for as long as possible because of the harm B.C. had caused.

Counseling After Probation & 

Further after his probation ended he sought additional counseling to get a handle on his issues and to ensure he didn’t re offend.

He successfully completed a sex offender treatment program after his probation had ended and had a low risk to reoffend. The evaluator explained that the sex offender treatment program consisted of three phases:

(1) offender check-ins and learning accountability for the deviant behavior
(2) accountability, understanding the cognitive errors that led to the offender’s poor choices, and developing empathy and understanding the impact of the offender’s actions on the victim and society; and 
(3) managing and understanding the offender’s triggers and high risk areas.

These three phases included 18 assignments and took four years to complete.

At the end of the program, the evaluators determined whether the offender had changed his erroneous thinking or had merely moved through the steps.

The New Evaluation

The evaluator explained the biggest factor in preparing the assessment was determining whether B.C. understood his actions were wrong and how to prevent the behavior in the future. She said the following factors reflected favorably on B.C.’s risk assessment:

(1) B.C. had voluntarily undertaken the sex offender treatment program
(2) B.C. had a history of continuous employment
(3) B.C. had a positive family support network and 
(4) B.C.’s family understood the program was not about “curing” B.C., but educating and training B.C. to understand the thinking errors that led to the offenses.

Munson ultimately determined that B.C. had a “low risk to re-offend.”

You Only Get A “Low Risk”

The evaluator said that neither she nor any of the other evaluator had ever issued a “no risk to offend” opinion. The only options were “low risk, medium risk, or high risk.”

On cross-examination, she explained that the sex offender treatment program teaches offenders “to accept that there is always a possibility of re-offense. That’s a part of why we build and instill in them an understanding of what their triggers are and ways of making sure that they don’t get themselves in situations. Many of our assignments are based on looking at their cycle of behavior and then planning for exits of how to get out of that cycle. So it’s a part of our successful treatment that they understand you cannot ever say, ‘I will never re-offend.’ You have to understand that the possibility is there, but the risk factor determines how probable that is.”

The evaluator was not saying that B.C. had “no risk” to reoffend because she did not “know how the standard can have it as zero risk since that goes against all of the sex-offender-based training that [she has] had; but [she thought] it was written by lawyers, not practitioners.”

On redirect examination, she said that, based on her experience, B.C. had the “lowest risk possible.” B.C. also had fully accepted responsibility for his offenses, understood his triggers, and did not have a strong attraction to children. She reiterated “[t]here is no cure. There is only education.”

Trial Judge Denies The Motion

The trial judge denied the motion saying:

“But that’s not what the statute says, and I cannot rewrite the statute. The statute says ‘no risk.’ I don’t get to make those judgment calls. That is not my place as a trial judge. My place is to follow the statute. The word is ‘no risk.’ And, therefore, the petition—despite all of the compelling evidence with regards to the minimal nature of the risk, the statute has to be followed. And, therefore, I have to deny the petition.”

Issue

B.C. argues the court improperly interpreted section 3-5 of the Sex Offender Registration Act (Act) (730 ILCS 150/3-5 (West 2016)) and ceded responsibility for making a judgment to persons other than the court.

Specifically, B.C. contends that the trial court effectively shifted the judicial decision-making authority to the evaluator, who found that B.C. posed a “low risk” instead of the statutorily required “no risk.” Additionally, B.C. submits that the court’s interpretation nullifies section 3-5 because, according to the evaluator, all assessments will result in, at best, a “low risk” determination. B.C.’s argument is derived from the trial court’s interpretation of subsection 3-5(d) of the Act.

The Statute

This subsection provides that once a juvenile sex offender files a subsection 3-5(c) petition,

“[t]he court may upon a hearing on the petition for termination of registration, terminate registration if the court finds that the registrant poses no risk to the community by a preponderance of the evidence based upon the factors set forth in subsection (e).”

730 ILCS 150/3-5(d).

The language of subsection 3-5(d), stating that the court must find the registrant poses “no risk to the community by a preponderance of the evidence based upon the factors set forth in subsection (e),” is clear and unambiguous. T.J.D., 2017 IL App (5th) 170133, ¶ 23.

When deciding whether B.C. satisfied his burden of proof, the court was required to consider the following factors:

(1) a risk assessment performed by an evaluator licensed under the Sex Offender Evaluation and Treatment Provider Act; 
(2) the sex offender history of the adjudicated juvenile delinquent; 
(3) evidence of the adjudicated juvenile delinquent’s rehabilitation; 
(4) the age of the adjudicated juvenile delinquent at the time of the offense; 
(5) information related to the adjudicated juvenile delinquent’s mental, physical, educational, and social history; 
(6) victim impact statements; and
(7) any other factors deemed relevant by the court.

730 ILCS 150/3-5(e) (West 2016). 

High Standard

The legal “no risk” standard of subsection 3-5(d) is necessarily high because this onerous burden strikes a balance between the intent of the Act to protect the public (see People v. Bonner, 356 Ill. App. 3d 386, 388-89 (2005) (Act is intended to protect the public rather than punish sex offenders)) and the statutory ability afforded only to juvenile offenders to terminate registration (see Rufus T., 409 Ill. App. 3d at 975 (section 3-5 of the Act is “intended to protect the rights of juvenile delinquents, who have a greater likelihood of rehabilitation, by allowing them the opportunity to petition the court to remove them from the sex offender registry”)).

It must be recognized that the legislature tempered the high standard of “no risk” by incorporating a preponderance of the evidence burden of proof upon the petitioner. 730 ILCS 150/3-5(d) (West 2016). This statutory burden does not require proof beyond a reasonable doubt and can be satisfied with sufficient evidence to show that a fact is “more likely than not.” T.J.D., 2017 IL App (5th) 170133, ¶ 26.

Analysis

We agree that if the burden of proof was beyond a reasonable doubt, the burden, combined with the “no risk” standard would effectively nullify section 3-5, as it is nearly impossible for a sex offender to show no risk of reoffending. Therefore, the adoption of the preponderance of the evidence burden of proof permitted B.C. to show that he posed “no risk to the community” even though evidence of some of the factors did not weigh in his favor.

The preponderance of the evidence burden of proof requires only that B.C. show that it is “more likely than not” (T.J.D., 2017 IL App (5th) 170133, ¶ 26) that he “poses no risk to the community” (730 ILCS 150/3-5(d) (West 2016)).

This standard is less exacting than the criminal beyond a reasonable doubt standard as it does not require B.C. to prove his case beyond all doubt, but that it is “more probable than not” that he poses no risk to the community. The evaluator's testimony establishes that “low risk” is the label applied to the most successfully rehabilitated sex offender. Her explanation appears to make a “no risk” assessment, as required by subsection 3-5(d), an unattainable goal.

We note that the legal standard of “no risk,” when measured by a preponderance of the evidence, may be satisfied in spite of a “low risk” assessment by a nonjudicial professional evaluating defendant in a clinical, rather than legal, context.

Grant The Petition

Here, expert testimony indicated that B.C. earned the highest rating a clinician could provide. Thus, based on the unique facts of this case, we conclude that B.C.’s “low risk” assessment weighs in favor of granting the petition. The only factor that went against granting the petition was the severity of the offense. And the victim impact panel went against him but it’s value was undermined.

The history of his evaluations was this:

In July 2000, the first evaluation stated B.C. had a low to moderate risk to commit future sex offenses. Relevant to B.C.’s mental and social history, the moderate risk factors cited included B.C.’s failure to understand the exploitive nature of the offenses and B.C.’s negative self-esteem.

The later report, about a year and a half later, indicated B.C. had worked to remedy at least some of these issues as he had consistently engaged in and progressed in treatment, admitted that he committed the offenses, decreased his level of denial, and expressed some empathy for the victims.

The expert testimony at the hearing on B.C.’s petition to terminate registration established that B.C. had resolved these issues after he completed the sex offender treatment program. In particular, the evaluator noted that B.C. had accepted responsibility for the offenses and understood his triggers.

Holding

Based on her evaluation of B.C., the evaluator opined B.C. had the lowest risk possible. Viewed together, this evidence showed that B.C. made substantial progress in correcting the mental issues that existed at the time of the offense. Further, B.C.’s testimony of his employment history, academic history, and current career established a positive educational and social history following the offenses.

Therefore, this factor weighs in favor of granting the petition. From our review of the record, the risk assessment, evidence of rehabilitation, age at the time of the offense, and B.C.’s mental, physical, emotional, and social history factors each weigh firmly in favor of granting the petition.

The evidence supporting the denial of the petition is limited to B.C.’s sex offender history, which consists only of two, albeit very serious, offenses and the victim impact statement. Therefore, we conclude B.C. met the burden of showing, by a preponderance of the evidence, that he poses “no risk” to the community. 730 ILCS 150/3-5(d), (e)(3) (West 2016).

We conclude that the court’s denial of B.C.’s petition to terminate registration was contrary to the manifest weight of the evidence.  The judgment of the circuit court of Kankakee County is reversed and remanded with directions for the court to grant B.C.’s petition to terminate sex offender registration.

Reversed and remanded with directions.

People v. Tetter

People v. Tetter, 2018 IL App (3d) 150243 (January)

SORA declared unconstiututional as applied to this defendant. Gist

Defendant, age 21 at the time, began a relationship with a minor who represented herself to be 18.

A jury found that defendant continued this relationship after learning she was 16 and convicted him of aggravated criminal sexual abuse (720 ILCS 5/11-1.60(d) (West 2012)).

Issue

Defendant also raises, for the first time on appeal, a constitutional challenge claiming the Illinois Sex Offender Registration Act (SORA) (730 ILCS 150/1 et seq. (West 2012)), Sex Offender Community Notification Law (Notification Law) (730 ILCS 152/101 et seq. (West 2012)), residence and presence restrictions within 500 feet of school zones or 100 feet of school bus stops (720 ILCS 5/11-9.3 (West 2012)), residence and presence restrictions within 500 feet of a public park (720 ILCS 5/11-9.4-1 (West 2012)), mandatory annual driver’s license renewal (730 ILCS 5/5-5-3(o) (West 2012)), and prohibiting defendant from petitioning to change his name (735 ILCS 5/21­ 101 (West 2012)) impose disproportionate punishment as applied to him.

We refer to these statutes collectively as “sex offender statutes” herein.

SORA And It’s Progeny

Our legislature subsequently passed numerous amendments imposing additional requirements and restrictions upon sex offenders.

Most importantly, it imposed specific restrictions on where sex offenders may be present or live. See 720 ILCS 5/11-9.3, 11-9.4-1 (West 2012). Sex offenders cannot have jobs where they work, at any time for any reason, within 500 feet of a school or public park or within 100 feet of a school bus stop. SORA also effectively bars offenders from working any job requiring extensive travel; sex offenders must notify, in person, both Illinois law enforcement and the destination’s law enforcement when they are away from home for three or more days. 730 ILCS 150/3(a) (West 2012).

The amendments since People v. Malchow, 193 Ill. 2d 413, 424 (2000) “directly restrict where [a sex offender] can live, work, and even move about his community.” People v. Avila-Briones, 2015 IL App (1st) 132221, ¶ 51.

Thus, we are faced with very different and more restrictive statutes than those addressed in Malchow or Smith, 538 U.S. at 98 (Alaska SORA constitutional).

After Probation

After completing sex offender probation, offenders are subject to the sex offender statutes for either 10 years or life—defendant’s conviction subjects him to lifetime registration. Under the sex offender statutes, off-parole sex offenders must register with the DOC, inform the DOC of certain life events (such as buying or using a new car, growing a beard, moving, or taking a vacation), consent to having Internet usage monitored, and most importantly, not live or be present near school zones, school bus stops, or public parks.

Parole Conditions

Because of the restrictions on movement the sex offender statutes are now akin to probation or supervised release. Probation and other forms of supervised release are considered punishment. Sex offenders, like defendant, are subject to dozens of additional parole conditions. See 730 ILCS 5/3-3-7(a)(7.5)-(7.13), (b)(7.5)-(7.6), (b-1) (West 2014). These conditions include sex offender treatment, not living in the same residential unit (including apartments or condominiums) with other known sex offenders, wearing an electronic monitoring device, not communicating with or contacting people on the Internet whom the offender believes to be under 18, consenting to searches of all devices with Internet access, not possessing prescription medications for erectile dysfunction, not “scrubbing” or erasing data on any computer device, residing only at an approved location, obtaining approval prior to accepting employment or pursuing education, not being employed or participating in any volunteer activity involving contact with children, refraining from entering designated geographic areas without approval, neither possessing nor having access to pornography or sexually stimulating material, not patronizing any adult entertainment establishment or telephone hotline, not residing near or being present in places where minors may congregate without advance approval, taking an annual polygraph exam, maintaining a travel log, and other restrictions.

After Parole

Off-parole sex offenders are more restricted in many ways than non-sex-offender parolees. While non-sex-offender parolees are monitored and prohibited from committing crimes, off-parole sex offenders may not reside or be present near places where the legislature has deemed them more likely to recidivate. Sex offender statutes restrict where defendant may live, work, or be present, in addition to the numerous obstacles imposed by the registration requirements. These requirements and restrictions, collectively, constitute an affirmative disability and restraint—defendant is restricted in most aspects of his daily life. Specifically, “safe zones” surrounding schools, school bus stops, and public parks, significantly restrict defendant’s lawful movement within the community. These zones restrict where he may live, drive, work, visit, or attend any social function for life. Although not to the same degree as prison, the sex offender statutes’ restrictions affirmatively disable and restrain offenders such as defendant. Therefore, this factor suggests that the sex offender statutes constitute punishment.

Punishment v. Civil Sanctions

However, since the legislature enacted sex offender statutes that restrict a convicted sex offender’s presence, residence, and liberty to move about society, the court has not addressed whether the sex offender statutes’ punitive effects negate the legislature’s intent to deem the laws civil.

For the reasons stated below, we find that they do. Our sex offender statutes satisfy the traditional definition of punishment.

What Is Punishment?

Citing published legal philosophy, the Snyder court defined “punishment” as involving pain or unpleasant consequences following from an offense against the law, applying to the offender, being intentionally administered by people other than the offender, and being imposed and administered by an authority constituted by a legal system against which the offense was committed.

Our sex offender statutes, like parole or MSR, satisfy this definition.

Analysis

We find that this factor also suggests that the sex offender statutes constitute punishment.

The trial court referred defendant to a licensed clinical psychologist for his evaluation. Defendant scored in the zero percentile on the child molestation, drug abuse, and alcoholism scales. In other words, a clinical psychologist chosen by the court, not defendant, concluded that he poses no greater risk than any other person to commit child sex crimes or those involving drug or alcohol abuse.

Nonetheless, the sex offender statutes require defendant to register for life and not set foot near school zones or public parks where children frequently congregate. Defendant is simply not the person at whom the sex offender statutes’ purposes are aimed. Its statutes are not tailored to regulate only dangerous offenders, those likely to recidivate, or those with little or no potential for rehabilitation; therefore, offenders like defendant must endure the statutes’ restrictions without society reaping any benefit.

These statutes go well beyond the dissemination of accurate, already-public information. We agree with the trial court’s assessment of defendant’s sentence:

“I can only say his life will never be the same. He will go through life now as a predator. He will be labeled a predator in every way. He—it will be very difficult to get a job. He’ll not be able to have a cell phone, use those apps that he uses or be on the Internet. He won’t be able to live where he wants to live. He won’t be able to associate with who he wants to be [sic]. His life will—will never be the same and—and in effect that is great punishment.”

If the sex offender statutes’ application were not irrevocable, our analysis might be different.

Disproportionate Sentence

We now address whether defendant’s punishment is unconstitutionally disproportionate to his crime.

Article I, section 11 of the Illinois Constitution provides,

“[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.”

Ill. Const. 1970, art. I, § 11.

“A proportionality challenge contends that the penalty in question was not determined according to the seriousness of the offense ***.” People v. Sharpe, 216 Ill. 2d 481, 487 (2005). Our proportionate penalties clause coincides with the eighth amendment. The eighth amendment allows defendants to challenge sentences as disproportionate “given all the circumstances in a particular case.” Graham, 560 U.S. at 59.

In doing so, courts must be mindful that the eighth amendment contains a narrow proportionality principle, that does not require strict proportionality between crime and sentence but rather forbids only extreme sentences that are grossly disproportionate to the crime.

Holding

We find that the sex offender statutes constitute punishment as contemplated by the eighth amendment and the Illinois Constitution’s disproportionate penalties clause. Given defendant’s background and his virtually zero risk to recidivate, we hold that his lifetime subjection to the sex offender statutes is grossly disproportionate to his crime. As applied to him, lifetime subjection to the sex offender statutes’ registration requirements and restrictions violates the Illinois Constitution’s proportional penalties clause and the United States Constitution’s eighth amendment. For the foregoing reasons, we affirm defendant’s conviction, jail sentence, and probation term. We vacate defendant’s subjection to the sex offender statutes’ registration requirements and restrictions.

People v. Zetterlund

People v. Zetterlund, 2018 IL App (3d) 150435 (March).

Another defendant says SORA is unconstitutional; he loses. Facts

Defendant was present at a party with the victim and several other individuals. During the course of the night, the victim became severely intoxicated and lost consciousness. While the victim was unconscious, defendant removed the victim’s clothing and performed vaginal intercourse on the victim.

Defendant’s friend, was present and recorded the assault on his phone.

Sentence

The court sentenced defendant to six years’ imprisonment and an indeterminate term of three years to life of mandatory supervised release (MSR). Because of defendant’s conviction, he is subject to the restrictions and obligations set forth in the SORA statutory scheme for the remainder of his life.

Issue

Defendant challenges the constitutionality of the SORA statutory scheme, which he is now subject to because of his present conviction. Defendant makes two arguments to support his contention:

(1) the SORA statutory scheme violates the due process clauses of the United States and Illinois Constitutions (U.S. Const., amend. XIV, § 1; Ill. Const. 1970, art. I, § 2) and
(2) the SORA statutory scheme violates the proportionate penalties guarantees of the United States and Illinois Constitutions (U.S. Const., amend. VIII; Ill. Const. 1970, art. I, § 11).

Case Law Says Constitutional

Before analyzing each constitutional argument, we note that our supreme court has upheld prior versions of the SORA statutory scheme against similar constitutional challenges. See People v. Cornelius, 213 Ill. 2d 178 (2004); People v. Malchow, 193 Ill. 2d 413 (2000).

Nevertheless, defendant contends that the SORA statutory scheme is different than the prior versions determined to be constitutional because recent additions have made the SORA statutory scheme so onerous that it no longer satisfies constitutional protections.

Holding

Upon review, we find the SORA statutory scheme satisfies substantive and procedural due process requirements. Therefore, we hold the SORA statutory scheme does not violate defendant’s due process rights under the United States and Illinois Constitutions.

See also In re A.C., 2016 IL App (1st) 153047, ¶¶ 35-79, and People v. Pollard, 2016 IL App (5th) 130514, ¶ 23, the court found that the current version of the SORA statutory scheme did not violate an individual’s due process rights (substantive or procedural).

We agree with the conclusions reached in A.C. and Pollard and adopt their reasoning. In defendant’s brief, he does not specifically state which basis he is relying upon in support of his argument. Consequently, we find defendant has forfeited any argument that the SORA statutory scheme is facially unconstitutional. Despite this, we consider the substance of defendant’s argument to be an as-applied challenge. We find the record is simply insufficient to determine whether imposing lifetime registration requirements is grossly disproportionate to defendant’s crime.

People v. Rodriguez

People v. Rodriguez, 2018 IL App (1st) 151938 (February). 

Unfit defendant says SORA is unconstitutional as applied to him. Gist

Defendant was found not not guilty of aggravated criminal sexual assault on the basis of unfitness. He is nonetheless required to register under SORA.

Must Still Register

We held that pursuant to People v. Cardona, 2013 IL 114076, ¶ 25, “an individual found not not guilty of a sex offense, even on the basis of being found unfit, falls within the purview of SORA” and is required to register.

Issue

Defendant now appeals arguing that the SORA statutory scheme is unconstitutional both on its face and as applied to him, an unfit defendant allegedly incapable of understanding the registration requirements. Defendant still claims he does not understand his requirements under SORA.

The sole issue on appeal is the constitutionality of subjecting unfit defendants found not not guilty of sexual assault to SORA’s “statutory scheme,” which, according to Rodriguez, encompasses the duty to register (730 ILCS 150/3), the penalty for noncompliance with the registration requirements and the failure to register (id. §§ 7, 10), the limitations on a sex offender’s residence and presence in certain locations (720 ILCS 5/11-9.3, 11-9.4-1), the requirement that a sex offender must renew his driver’s license yearly (730 ILCS 5/5­), and the prohibition on name changes for sex offenders (735 ILCS 5/21-101).

Analysis

We must first determine whether the SORA statutory scheme constitutes “punishment” at all. Our supreme court has answered that question in the negative on several occasions, most recently in 2013. Cardona, 2013 IL 114076, ¶ 24; see also People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 203 (2009); People v. Malchow, 193 Ill. 2d 413, 424 (2000).

Rodriguez acknowledges these holdings, but maintains that they are outdated, as the registration requirements and limitations imposed on sex offenders have become more onerous since these cases were decided. Specifically, today’s SORA

(1) increases the number of agencies with which a sex offender must register to include not only police departments in the county where the offender resides, but also in the county where he works or attends school (730 ILCS 150/3(a), (d))
(2) increases the amount of information a sex offender must provide when registering to include a photograph, telephone number, place of employment, employer’s telephone number, school attended, information about his qualifying offense, information about identifying marks on his body, license plate numbers for vehicles registered in his name, and all e-mail addresses, Internet identities, and Internet sites he maintains (id. § 3(a));
(3) provides less time to report changes in this information (from 10 days to 3 days) (compare id. § 3(b), with 730 ILCS 150/3(b));
(4) increases how often a sex offender must register and how often he must report in person (730 ILCS 150/6);
(5) increases the initial and annual registration fees (id. § 3(c)(6));
(6) imposes harsher penalties for noncompliance with registration requirements (id. § 10); and
(7) imposes greater restrictions on where a sex offender can live or be present (720 ILCS 5/11-9.3, 11-9.4-1).

What Is Punishment?

Even when the legislature intends to enact a civil regulatory scheme, the law may nevertheless constitute punishment if “the clearest proof” shows that it is punitive in purpose or effect.

When determining whether an ostensibly civil statute has a punitive effect, Illinois courts have applied the seven factor test first set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), which considers whether

(1) the sanction involves an affirmative disability or restraint,
(2) the sanction has historically been regarded as punishment,
(3) the sanction is applicable only upon a finding of scienter,
(4) operation of the sanction promotes retribution and deterrence,
(5) the behavior to which the sanction applies is already a crime,
(6) an alternative purpose to which the sanction may rationally be connected is assignable to it, and
(7) the sanction appears excessive in relation to the alternative purpose assigned.

See Malchow, 193 Ill. 2d at 421. We previously applied the Mendoza-Martinez factors to the 2013 SORA in Fredericks, 2014 IL App (1st) 122122, ¶ 58, and A.C., 2016 IL App (1st) 153047, ¶¶ 77-78, and determined that the changes to SORA since Malchow did not render the Act punitive.

We reach the same conclusion today.

Holding

We conclude that while the SORA statutory scheme has become more onerous since 1998, it remains nonpunitive in effect under Mendoza-Martinez.

Here, despite being in certain ways under- or overinclusive, the SORA statutory scheme is rationally related to protecting the public from sex offenders, which is a legitimate state interest. Thus, although the scheme may be imperfect, it is rationally related to the legitimate state interest of protecting the public from sex offenders and not unconstitutional on its face.

Rodriguez’s argument that the statutory scheme is unconstitutional as applied to him fares no better.

But He Aint Right...

Rodriguez maintains that his “cognitive and physical defects” “make reoffending next to impossible” and also make him unable to comprehend and comply with the SORA statutory scheme. But Rodriguez suffered from the same cognitive defects at the time he was charged with the offense that led to this proceeding; he has not alleged any new defects that would prevent him from committing a similar offense in the future.

And we rejected Rodriguez’s contention that he was incapable of understanding or complying with the registration requirements in our earlier decision. He had some level of cognitive functioning when he committed the crime. The evidence also reveals that Rodriguez had worked in a shop where his responsibilities included sweeping, putting on gloves, and gathering scrap metal and brake lining and putting them in a truck.

Rodriguez was also responsible for his own personal hygiene, had the ability to clean, do laundry, pay bills, and received a high school degree from a school that specializes in teaching individuals with cognitive deficits. Rodriguez was capable of complying with the registration requirements, and we decline to find otherwise today.

For these reasons, we affirm the constitutionality of the SORA statutory scheme both on its face and as applied to Rodriguez.

See Also

• 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 408 – People v. McClenton – Judge Can’t Order State Police To Remove Person From Sex Offender Registry
• Episode 411 – People v. Jackson – SORA SORA No Time Is A Good Time For Goodbyes