Kane County Nuggets

Episode 464 (Duration 19:10) Here's a quick summary of the cases that suggest, that maybe, houses have more constitutional protection than apartments.

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In This Episode...

We discuss the following cases:

• Florida v. Jardines, 133 S. Ct. at 1409 (2013)
• People v. Burns, 2016 IL 118973 (March)
• People v. Bonilla, 2017 IL App (3d) 160457 (June)
• People v. Martin, 2017 IL App (1st) 143255 (June) 

Florida v. Jardines

Florida v. Jardines, 133 S. Ct. at 1409 (2013).

“Property based approach” holds that dog brought to the front step of a single family home constitutes a search.  Gist

The Court considered whether using a drug sniffing dog on a homeowner’s porch to investigate the contents of a home was a “search” within the meaning of the fourth amendment.

Facts

Jardines was growing the marijuana in his home.

This case began when police are told he had a growing operation in his home. DEA agent with a sniff dog knock on front door, the dog alerts to presence of drugs, police leave, and comeback with a warrant.

To be clear, the police did not go into the home with the police dog. Before getting the warrant, the officers and the dog remained on the front stoop and only walked on the walkway of the stoop.

Property Rights

The Court stated that pursuant to Katz, “property rights are not the sole measure of Fourth Amendment violations.” The Court stated that the area “immediately surrounding and associated with the home,” known as curtilage, was “part of the home itself for Fourth Amendment purposes.”

The Court then assessed whether the officer’s’ investigation “was accomplished through an unlicensed physical intrusion.” The Court stated that a police officer without a warrant “may approach a home and knock, precisely because that is no more than any private citizen might do.”

Holding

Ultimately, the Court found that the use of trained police dogs to investigate a home and its immediate surroundings was a “search” within the meaning of the fourth amendment.

The Court commented that the Fourth Amendment actually uses the word “houses” (also known as your home) then held that: The Amendment establishes a simple baseline, one that for much of our history formed the exclusive basis for its protections:

When “the Government obtains information by physically intruding” on persons, houses, papers, or effects, “a ‘search’ within the original meaning of the Fourth Amendment” has undoubtedly occurred. Jardines, 133 S.Ct. 1409 (2013); quoting United States v. Jones, 565 US 945, 132 S.Ct. 945 (2012) (this is a GPS tracking case).

The police were in his home and on his property in an investigative capacity. They did not have permission to be there.

That was a search.

What About The Other Dog Sniff Cases?

The fact that the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that a search occurred. Jardines, 133 S.Ct. 1409 (2013).

The Court was well aware of its own case law that said dog sniffs are not searches. However, the Court refused to play the “expectation of a privacy interest” game in this case. Instead, they took a property-based approach.

The House From Jardines In Miami Dade, Florida

People v. Burns

People v. Burns, 2016 IL 118973 (March).

The "no-nights visits" rule is affirmed, can't bring the sniffer dog to your front step for a little sniff. Facts

After receiving a tip that Defendant is selling weed from her apartment, the police bring a dog to her apartment door. The dog alerts to the presence of contraband. The police then go get a warrant.

Issue

Which begs the question: does the warrantless use of a drug-detection dog at an apartment door, located within a locked apartment building, in the middle of the night, violate defendant’s fourth amendment rights?

Defendant's Argument

Defendant counters that under Jardines, a search warrant is required to conduct a dog-sniff search at the entrance to a home. Indeed, the problem in Jardines, according to Scalia, was that the cops intruded physically on defendant's property in order to conduct a search.

All the relevant factors pointed to the conclusion that this apartment stoop was part of the curtilage of Defendant's home.

Locked Apartment

The court took special note of the fact that the entrances to the apartment building were locked and the common areas were not open to the general public. The court also found that the landing to the defendant’s apartment was curtilage, noting that the landing was directly in front of the apartment and a clearly marked area within a locked building with limited use and restricted access.

The court stated that the police conduct in the case “certainly exceeded the scope of the license to approach the defendant’s apartment door,” as the officers entered a locked building in the middle of the night and remained in the building for more than a very short period of time.

Holding

This intrusion onto her locked front stoop at 3:20 a.m. was declared unconstitutional.

However, Jardines left open the middle ground between traditional apartment buildings and single-family houses, including split-level duplexes, buildings that were converted from houses to apartments, and garden apartments whose doors open directly to the outdoors.

Was the court apply a strict property-based approach? Exactly when does it apply? Was the dog dispositive? The front door?

People v. Bonilla

People v. Bonilla, 2017 IL App (3d) 160457 (June).

Constitutional violation did not depend on whether the common door to the apartment was locked. Facts

On a tip police bring a dog to an apartment complex in Moline, Illinois. The exterior doors leading into the apartment building common-area hallways were not locked, and there was no lock, pass card, entry system, or anything whatsoever on the closed exterior doors of the apartment building that would prevent any person off the street from entering into the common-area hallways of the apartment building.

More Facts

Once inside the apartment building, the canine officer walked his drug-detection dog down some of the common-area hallways. As the dog came to apartment 304, however, the dog moved back and forth in the doorway, sniffing at the bottom of the door, and signaled a positive alert for the presence of illegal drugs.

Arrested

The police officers obtained a search warrant for apartment 304 based upon the drug-detection dog’s alert. After obtaining the search warrant, the officers searched the apartment and found a quantity of cannabis and certain other items. Defendant, who lived in apartment 304, was later arrested and charged with unlawful possession of cannabis with intent to deliver.

Property Based Approach

There are two different approaches that a court may be called upon to apply when determining whether a police officer’s actions constitute a search under the fourth amendment— a property-based approach and a privacy-based approach.

If applicable, the property-based approach should be applied first.

There is no need to apply the privacy-based approach if a violation of the fourth amendment has been found under the property-based approach. The property-based approach recognizes a simple baseline of protection that is provided by the fourth amendment as it relates to the property interests specified: that when the government obtains information by physically intruding (trespassing) on a person’s house, papers, or effects, a search within the original meaning of the fourth amendment has undoubtedly occurred.

Was There An Intrusion?

The question a court must ask when applying the property-based approach is whether the police officers intruded (trespassed) upon a constitutionally protected area (one of the protected properties specified in the text of the fourth amendment) to obtain the information in question.

Privacy Based Approach

The privacy-based approach recognizes that property rights are not the sole measurement of the fourth amendment’s protections and that fourth amendment protections also extend to areas in which a person has a reasonable expectation of privacy.

Was There A Reasonable Expectation Of Privacy?

The question a court must ask when applying the privacy based approach is whether the complaining person had a reasonable expectation of privacy in the area invaded (the location or object of the alleged search) by the police.

That is so because the privacy-based approach adds to the fourth amendment protections provided under the property-based approach; it does not diminish those protections and is not a substitute for those protections.

Reexamine Jardines

Prior to the United States Supreme Court’s decision in Jardines, it was generally established that a warrantless police intrusion into a common area of an apartment building did not violate the fourth amendment rights of a defendant tenant.

In Jardines, however, the United States Supreme Court held that a police dog sniff of the front door of a single family home was a search under the fourth amendment. The Supreme Court reached that conclusion, as stated in its majority opinion, by applying a property-based approach to the police officer's’ actions and by finding that the police officers had intruded (trespassed) on the curtilage of the home (the front porch) to gather the information (the alert by the drug detection dog) that was later used as the basis for obtaining a search warrant for the home.

Reexamine Burns

The Illinois Supreme Court later applied the holding of Jardines in the context of a multi unit apartment building in Burns and found that a police dog sniff of the front door of a defendant’s apartment was a search under the fourth amendment because the police officers had intruded on the curtilage (the landing outside of defendant’s apartment door in a locked apartment building) of the defendant’s residence in the middle of the night. Burns, 2016 IL 118973, ¶¶ 32-45.

In reaching that conclusion, the supreme court emphasized that the apartment building where defendant lived was locked and that the common areas of the building were not open to the general public.

This Case

In the present case, although we are mindful of the supreme court’s comment in Burns, we nevertheless conclude that the police officer’s actions constituted a search under the fourth amendment, even though the apartment building involved was unlocked and unsecured.

Analysis

Other than the unlocked status of the building itself, the officer’s conduct in the present case was virtually identical to that of the officer in Burns. The court could not conclude that a person who lives in an unlocked apartment building is entitled to less fourth amendment protection than a person who lives in a locked apartment building.

The fourth amendment draws a firm line at the entrance to the home as the home is first among equals in the protected areas specified in the fourth amendment. At the very core of the fourth amendment is the right of a person to retreat into his or her own home and there to be free from unreasonable governmental intrusion. In providing that protection, the fourth amendment does not differentiate as to the type of home involved.

Can Ignore Privacy Right Cases

The court acknowledged that there is precedent to support the State’s assertion that a person does not have a reasonable expectation of privacy in the common area of an apartment building, that a dog sniff is not a search under the fourth amendment, and that a dog sniff is not the same as the thermal imaging scan.

Nonetheless, the state’s arguments were rejected based on the above analysis. Do we apply property-based approach to all apartments now?

Does the dog matter?

People v. Martin

People v. Martin, 2017 IL App (1st) 143255 (June).

Constitutional violation depended on whether the 2 story flat was more like a single family home or an apartment building; but this is not a sniff case.  Drug Deal

Police say they observed a man approach defendant and raise his right index finger, whereupon defendant acknowledged the gesture and entered the main door frame of a two story flat.

The door to was slightly ajar. Defendant stood on the immediate threshold and reached into the door inside of the doorframe. Defendant retrieved a blue plastic bag, manipulated it, and then retrieved a smaller unknown item from the bag. Defendant then placed the bag on top of the door and returned to the man, where he received money from and tendered the small unknown item to the man.

Defendant tendered the money to another male who was standing outside of the house. The man was arrested and he said he just purchased heroin. Police then arrested defendant.

The Search

An officer then reached above the doorframe on the inside of the door and recovered the blue bag.

The items inside the blue bag matched the suspect narcotics that were recovered from the man. The baggies were branded with a bomb logo and said “stay high imagine”. The front door was open, and it emptied into a vestibule or common area that had another door leading into the residence.

The police did not have a warrant. 

Issue

The court acquitted defendant of the hand to hand delivery and of possession with intent to deliver but found him guilty of possession of a controlled substance. On appeal defendant challenges the warrantless seizure of the drugs.

Court Takes A Privacy Rights Approach

Under Katz, to claim the protection of the fourth amendment, a person must have exhibited an actual (subjective) expectation of privacy in the place searched or thing seized, and this expectation must be one that society is willing to recognize as “reasonable.”

Jardines Left Things Unsettled

Of note, Illinois courts have found that there is no reasonable expectation of privacy in common areas of apartment buildings that are accessible to others. Although Burns applied Jardines to a multi-unit apartment building, the specific contours of Jardines are unsettled.

Jardines left open the middle ground between traditional apartment buildings and single-family houses, including split-level duplexes, buildings that were converted from houses to apartments, and garden apartments whose doors open directly to the outdoors.

Under both Katz and Jardines, the type of building at issue matters.

Privacy Rights Cases

Illinois courts have found that there is no reasonable expectation of privacy in common areas of apartment buildings that are accessible to others. See People v. Smith, 152 Ill. 2d 229, 245 (1992) (no reasonable expectation of privacy in a conversation that occurred in an apartment building’s unlocked common area that was shared by other tenants, the landlord, their social guests, and other invitees); People v. Carodine, 374 Ill. App. 3d 16, 23 (2007) (the defendant had no reasonable expectation of privacy in the dryer vent of his three-unit apartment building where dryer vent was in a common area that was accessible to the landlord and other members of the general public); People v. Lyles, 332 Ill. App. 3d 1, 7 (2002) (stating that a tenant has no reasonable expectation of privacy in common areas of an apartment building that are accessible to other tenants and their invitees).

Two Story Flat

Here, the State and defendant dispute how to characterize the two story flat, with the State asserting that it is a multi-unit apartment building and defendant contending that it is a single-family home.

Defendant's mother owned the flat, he was a guest there, and the second story was empty. Nobody was living upstairs. The court found that there is a greater expectation of privacy in duplexes owned and occupied by one family. It should be treated as a single-family home for fourth amendment purposes.

This was not a typical multi unit building where numerous tenants and members of the public were expected to enter. Rather, it was viewed as the family home. The court further stated that “a strict apartment versus single-family house distinction” was troubling because it would apportion fourth amendment protections on grounds that correlate with income, race, and ethnicity, citing data showing that a smaller percentage of African-Americans and Hispanics live in one-unit detached houses than whites and that the percentage of households that live in one-unit, detached houses rises with income.

Analysis

As “the Fourth Amendment has drawn a firm line at the entrance to the house”, the area above the inside door frame was a constitutionally protected area. Further, that area outside the door was akin to a porch, which is a “classic exemplar” of curtilage.

Clearly, the officers’ actions were accomplished through an unlicensed physical intrusion.

Here, the police went up the stairs of the flat reached above the inside door frame, and recovered a blue bag. This was well beyond what an ordinary private citizen could do. Here, the police physically intruded on the inside of the home to gather evidence. That the door was open does not change this result. A private citizen would not think that he could breach the open door of a home and investigate its contents. Any physical invasion of the home’s structure by even a fraction of an inch is too much.

Holding

Police exceeded what a private citizen was permitted to do at the front door. The court held that this was a warrantless search under Jardines. Without the suppressed evidence of the narcotics, the State cannot prove that defendant possessed the narcotics and his conviction must be reversed outright. More questions remain?

Would result be different if that was more like an apartment building?

The Two-Story Flat From Martin In Chicago, Illinois

People v. Tetter, 2018 IL App (3d) 150243 (January). Episode 463 (Duration 8:43)

SORA declared unconstiututional as applied to this defendant.

Gist

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

A jury found that defendant continued this relationship after learning S.K. 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.

See Also

• Episode 449 - In re T.J.D. - The "No Risk" v. "Low Risk" Conundrum
• Episode 321 – People v. Pearse – SORA is One Big Bloody Mess Says Illinois Supreme Court
• Episode 322 – People v. Gomez – State Failed To Prove Defendant Was Living In The City – Failure To Register Reversed
• Episode 386 – Packingham v. North Carolina – North Carolina Law Forbidden Sex Offenders From Going Online Stricken Down
• Episode 406 – People v. Jones – In A SORA Prosecution The Duty To Register Must Be Proven By The State
• Episode 407 – In re B.G. – Right To Petition To Terminate Obligation To Register As A Sex Offender Survives After A Subsequent Conviction
• Episode 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

People v. Turner, 2018 IL App (1st) 170204 (February). Episode 462 (Duration 9:30)

Good faith exception saves this warrantless blood draw.

Collision

Shortly after 10 p.m. on July 2, 2011, the defendant’s pickup truck collided with a motorcycle carrying two persons.

The truck and motorcycle had collided in an intersection. The driver of the motorcycle, James McFall, was killed; his wife, Kasey McFall, sustained serious injuries. The defendant was taken to the emergency room at St. James Hospital, where two blood samples were drawn from him.

Officer Murphy recalled that the defendant’s “speech was slurred and mumbled” when he spoke to hospital staff and that his eyes were “glassy and bloodshot.”

Not High Speeds

Based on the extent of deformation of the motorcycle’s wheelbase, Coulom calculated that the motorcycle’s speed at impact was approximately 25 miles per hour. Using another formula, he determined “an approximate speed of 23 miles per hour which was consistent with the 25 [miles per hour] I got with the wheelbase deformation.”

He applied a separate “energy formula” to estimate that the pickup truck’s speed was between 13 and 15 miles per hour at the time of the collision. Officer Coulom testified that the pickup truck’s “black box” data recorder reflected that five seconds prior to the crash, the truck’s speed was approximately 10 miles per hour.

The recorder indicated that the truck’s brakes were applied five seconds before the impact.

Blood Samples

According to Escamilla’s records, the defendant admitted to a nurse that he was drinking alcohol before the accident.

The first blood draw was taken pursuant to a physician’s order as a part of his emergency room treatment, at approximately 10:46 p.m. At the request of police, nurses performed a second blood draw for inclusion in a “DUI kit” shortly after midnight on July 3, 2011.

Both tests indicated that the defendant’s blood alcohol content was above the legal limit. The hospital blood was 0.142 and the ISP blood was .118.

Charged With Aggravated DUI

The defendant was charged with 10 counts of aggravated driving under the influence of alcohol and reckless homicide.

Defendant Says He Didn't Consent

Defendant testified that at the hospital, he was asked for a blood sample “around three to four times” by nurses, in the presence of police. He stated that he “continually asked the reason why they wanted to draw blood” but was given no reason. He further testified that at some point he was told “that in order for me to go home that I would have to give a blood sample.”

He claimed that he never consented to the DUI kit blood draw.

State Says When There Is  A Death That's Different

The State argued that McNeely was distinguishable and that the DUI kit blood draw was permissible under section 11-501.2 of the Illinois Vehicle Code (Code), which states that “if a law enforcement officer has probable cause to believe that a motor vehicle driven by *** a person under the influence of alcohol *** has caused the death or personal injury to another, that person shall submit, upon the request of a law enforcement officer, to a chemical test or tests of his or her blood, breath or urine for the purpose of determining the alcohol content thereof.” 625 ILCS 5/11-501.2(c)(2) (West 2010).

8 Year Sentence

The court found that the defendant’s failure to yield was the proximate cause of James McFall’s death and Kasey McFall’s injuries. Accordingly, the court found the defendant guilty of all 10 charged counts. The trial court sentenced the defendant to two concurrent eight-year sentences on counts I and V.

Issue

We first address the argument that the trial court erred in denying the defendant’s motion to suppress the DUI kit blood draw. The defendant argues that, because he did not consent and Officer Murphy did not attempt to obtain a warrant, the DUI kit blood draw violated his rights under the fourth amendment of the United States Constitution.

625 ILCS 5/111-501.2(c) Unconstitutional

Eubanks’s holding that section 11-501.2(c)(2) is unconstitutional on its face does not end our analysis of the DUI kit in this case, since the State argues for application of the good-faith exception to the warrant requirement.

Don't Forget About
The Good Faith Exception

If that exception applies, it will support admission of the DUI kit blood draw, notwithstanding section 11-501.2(c)(2)’s unconstitutionality.

“There is no constitutional right to have the evidence resulting from an illegal search or seizure suppressed at trial. The mere fact of a fourth amendment violation does not mean that exclusion necessarily follows.” People v. LeFlore, 2015 IL 116799, ¶ 22. Evidence will not be excluded where police acted with an “objectively reasonable good-faith belief that their conduct [was] lawful” as in such cases “there is no illicit conduct to deter.”

Accordingly, under the good-faith exception, “searches conducted [by police] in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” Davis, 564 U.S at 232. 

Case Law: People v. Harrison

We find that People v. Harrison, 2016 IL App (5th) 150048 supports application of the good-faith exception under the facts of this case.

As in Harrison, the defendant’s arrest in this case occurred after our supreme court’s decision in People v. Jones, 214 Ill. 2d 187 (2005) but before the 2013 decision in McNeely. Thus, Officer Murphy could reasonably rely on Jones for the proposition that warrantless blood draws are permitted in DUI cases, even where the defendant objected to the blood draw.

The court in Harrison recognized that a 1975 decision of our supreme court stated that “a compulsory blood test does not violate any constitutional rights of an individual merely because he objected to such tests.” (quoting People v. Todd, 59 Ill. 2d 534, 544-45 (1975)). Harrison further recognized that subsequent decisions of the appellate court “consistently upheld the constitutional validity of warrantless, nonconsensual blood draws such as the one administered in the present case.”

People v. Jones

Harrison also relied heavily on our supreme court’s 2005 decision in Jones, 214 Ill. 2d 187, which held that results of blood and urine tests were admissible even if the tests were “performed over defendant’s objection.” Id. at 202. The Fifth District concluded that Jones supported application of the good-faith exception.

Force Is Different

Since our supreme court in Jones expressly cautioned that it did not “permit law enforcement officers to use physical force in obtaining blood, urine, and breath samples” (Jones, 214 Ill. 2d at 201), we concluded that the officers in Eubanks “could not have reasonably relied on Jones to authorize such conduct.” Eubanks, 2017 IL App (1st) 142837, ¶ 72.

In Eubanks, we rejected the State’s reliance on Jones, noting that the defendant in Jones “verbally refused to give blood and urine samples but did not physically resist their collection.” Id. ¶ 72. Further, we emphasized our supreme court’s statement in Jones that, “We do not suggest that a DUI arrestee’s lack of a right to refuse chemical testing *** permits law enforcement officers to use physical force in obtaining blood, urine, and breath samples." 

Analysis

Thus, the police in this case could have reasonably relied on Jones as binding precedent authorizing the taking of the defendant’s blood pursuant to section 11-501.2(c)(2). We recognize that our recent opinion in Eubanks rejected the State’s reliance on Jones to invoke the good-faith exception. Eubanks, 2017 IL App (1st) 142837, ¶ 72. However, our conclusion in this case is not inconsistent, as Eubanks is clearly distinguishable under its particular facts. The defendant in Eubanks did not merely decline to consent to the tests; rather, our court emphasized that “physical force was used to obtain Eubanks’s blood and urine samples,” including that he was “handcuffed to the hospital bed while blood was forcibly drawn from him.”

The facts of the present case are plainly distinguishable from Eubanks. Although the defendant in this case testified that he initially refused requests for a blood draw, he did not claim (and there is nothing in the record to suggest) that he was physically threatened or restrained in order to obtain the sample.

Holding

As the good-faith exception applies in this case, we affirm the denial of the motion to suppress the DUI kit blood draw.

The trial court specifically found that he was not coerced, and that finding is not against the manifest weight of the evidence. In this sense, the circumstances of the defendant’s DUI blood draw are much more similar to Harrison than to Eubanks. Thus, as in Harrison, we conclude that at the time of this occurrence, Officer Murphy could reasonably have relied on our supreme court’s decision in Jones to request the blood draw.

Conviction and sentence affirmed.

See Also

Episode 438 – People v. Eubanks, 2017 IL App (1st) 142837 (December) (really bad defendant held down in the hospital)

Episode 461 - People v. Hayes, 2018 IL App (5th) 140223 (February) (defendant was not ticketed so so state could not establish consent to the blood draw)

Episode 439 - People v. Sykes, 2017 IL App (1st) 150023 (December) (no police action when police hold a lady down in the hospital)

Episode 423 – People v. Brooks, 2017 IL 121413 (November), (our supreme court recently held that mere police participation, absent the private actors acting as an agent or instrumentality of the State, is not state action)

Episode 319 How Can Police Enforce A Blood Warrant | A Discussion With Anthony Cameron 

Episode 186 – Birchfield v. North Dakota, 136 S. Ct. 2160, 2174 (2016)

 

Episode 459 (Duration 54:23) What do police think about the case law? Do they think about the case law? Matthew Taylor provides some insight.

 

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In This Episode...

"I think that they got it right. It shows that the courts are taking an understanding of what an officer has to do on a daily basis and they are deferring more to the officer's inherent and unique skill set..." -- Matthew Taylor

Retired officer, teacher, lawyer and mentor Matthew Taylor provides unique perspective on the criminal law.

Matthew Taylor

Matthew Taylor is retired from the Palatine Police Department. He served as a school resource officer, general patrol, and instructor to other officers on the law. While he was on the force he obtained his law degree and now practices law full time.

Learn More About Matt Taylor...

• mjtaylorlaw.com
• [email protected]
• (847) 894-8038

"Can't Miss" Moments:

✓ All the important details you've forgotten about the landmark case Terry v. Ohio and why they matter. (Go to 3:10)

✓ What the court got write in 1968. Terry stops and frisks were happening before the term "reasonable suspicion" entered the lexicon. (Go to 7:50)

✓ The "perception separation" makes it hard to understand what policing was like before computers. (Did you know call boxes were invented in Cleveland?) (Go to 9:55)

✓ The reason why Terry was important to law enforcement officers. What changed for them? What reasonable suspicion really means in the streets. The beautiful words were... (Go to 12:00)

✓ The facts described in this case are a pretty common and typical scenario. How you feel about the outcome depends on how you see things. (Go to 13:38)

✓ A sure fire way to set off alarm bells in a police officer's head is to do this. "Those alarm bells is what officers call reasonable suspicion."  -Matthew Taylor (Go to 16:20)

✓ When rolling up your sleeves is the beginning of a bad day.  (Go to 18:44)

✓ "That's a green light and a Christmas gift all in one for an officer to hear that." - Matthew Taylor

✓ "Case law is littered with officers who don't care...that's the burden of every good officer out there, to overcome those officers by doing it right..." - Matthew Taylor (Go to 27:20)

✓ The right way to conduct a police-citizen encounter. What police and attorneys have in common. Why tone and attitude really matter. (Go to 30:44)

✓ The reason why a police uniform can't always be seen as an authoritarian symbol. (Go to 32:15)

✓ How a police officer got a law degree, stayed on the force and became an "officer lawyer." How love for the cases, the law and the constitution turned into a police instructor and scholar. "I'm more of a constitutional enthusiast than I am a scholar but..." - Matthew Taylor  (Go to 43:01)

Cases Mentioned

• Terry v. Ohio, 392 U.S. 1 (1968
• People v. Smith, 2016 IL App (3d) 140648 (March)
• People v. Gherna, 203 Ill. 2d 165, 178 (2003)
• Arizona v. Gant, 556 U.S. 332 (2009)

Links & Resources

• Palatine Police Department
• North East Multi-Regional Training (NEMRT)
• NEMERT Hostage Negotiation School
• FBI Crisis Negotiation
• Ernie Blomquist

See Also

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• Search & Seizure Cases 
• One Other Cool Thing

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This is the January 2018 Illinois criminal case law audio round-up (the fast case law summary). Episode 455 (Duration 20:10)

Click here to download the written summary of these cases:  January 2018 Round-Up 

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

Here's a quick snapshot of the top cases:

1. People v. Mumaugh

Defendant was driving under the speed limit when he hit a girl wearing all black in the middle of night when she was standing in the middle of the roadway.

2. People v. Ernsting

Ronald Henson testified that blood in the mouth produces unreliable breathalyzer results and would tend to produce a disproportionately higher BAC.

3. People v. Carey

Defendant's charge of felony murder put him on notice that he had to defend against the allegation that he used a gun in the attempted armed robbery of an armored truck.

4. People v. Coats

One Act - One Crime principles needed a little cleaning up.

5. People v. Branch

21 year old defendant wanted his 40 year sentence reduced to the minimum; it was not.

6. People v. Adame

Defendant was convicted of theft under $500, yet the restitution ordered was over $1000, what gives?

7. People v. Tetter

SORA declared unconstitutional as applied to this defendant.

8. People v. Johnson

Stealing from a Walmart was not a burglary.

9. People v. Perkins

Defendant shoots his girlfriend in the face then argues her statements implicating him were not a dying declaration or a forfeiture by wrongdoing.

10. People v. Clark

Codefendants previous armed robbery was used to support the argument that he used a real gun in this case.

11. People v. Hoare

Improper immigration advice is back on the table in a messy way after Lee v. U.S.

12. People v. McDonald

Defendant is misinformed that the will have to finish his MSR in prison, now he wants to take back the guilty plea even though he's served his time.

People v. Ernsting, 2018 IL App (5th) 160330 (January). Episode 454 (Duration 9:07)

Ronald Henson testified that blood in the mouth produces unreliable breathalyzer results and would tend to produce a disproportionately higher BAC.

Car Crash

At approximately 11 p.m., the defendant crashed her 2011 Chevrolet Camaro into an unoccupied pickup truck that was parked along a street near her home in Steeleville. The defendant’s dog was riding with her at the time, and the impact of the collision caused the car’s airbags to deploy. At the scene of the accident, the defendant stated that she did not require medical treatment and that her dog had distracted her driving.

She exhibited signs of alcohol impairment, however, and failed multiple field sobriety tests. As a result, she was arrested and charged with DUI (625 ILCS 5/11-501(a)(2) (West 2016)) and was transported to the Randolph County jail for the administration of a breath-alcohol test.

The Breath Test

The defendant’s breath-alcohol test was administered by Randolph County Sheriff’s Deputy Kyle Colvis, using an Intox EC/IR II breath-test machine. The testing procedure was video recorded, but the recording has no audio. After the defendant’s first attempt to provide a sufficient breath sample failed because she inserted the machine’s mouthpiece too far into her mouth, Colvis removed the mouthpiece with his right hand, purged the machine, and then reinserted the mouthpiece so that the defendant could try again.

The defendant’s second attempt was successful, and the machine indicated that her BAC was 0.215.

However, the officer had not checked the defendant’s mouth for blood prior to her performance of the breath test, even though he had been trained to check a subject’s mouth prior to and after the pre-test 20-minute observation period. 

She was thus charged with operating her vehicle while her BAC was 0.08 or more (id. § 11-501(a)(1)).

Mouth Check

We note that the “DUI checklist” states, “CHECK MOUTH PRIOR TO AND AFTER 20 MINUTE PERIOD,” but does not reference “foreign substances.” Colvis testified that he was not “familiar with the Illinois Administrative Code regulations,” but he agreed that blood in a subject’s mouth would be considered a “foreign substance” such as chewing gum or chewing tobacco. Colvis further agreed that if a subject had blood in the mouth, a blood or urine test would be preferable to a breath test and that he would “at least” have the subject “rinse their mouth out” and then restart the 20-minute observation period. Colvis acknowledged that the purpose of checking a subject’s mouth before and after the observation period is to ensure reliable test results.

Issue

Defendant changes the reliability of the tests.

The defendant’s motion specifically alleged, among other things, that when her car’s airbags had deployed, she had “sustained an injury to her mouth which caused a cut and, therefore, bleeding, in the inside of her mouth.” The motion further alleged that assuming that there was any measurable amount of alcohol in the blood, the blood in the defendant’s mouth would have materially affected the reliability of the test results.

Did She Act Like She Was .215?

Colvis acknowledged that the defendant had not stumbled or staggered during the testing procedures. Colvis did not recall whether the defendant had questioned the breath-test results in his presence. The defendant’s husband, Dale Ernsting, testified that on May 7, 2016, he and the defendant had purchased a used Jeep in the morning and had spent the day running errands in it.

Ernsting and Defendant stated that the defendant had not consumed any alcoholic beverages during the day, but she had three beers during a family get-together at a restaurant later that evening. Ernsting estimated that the defendant had consumed the three beers between 5:30 p.m. and 9 p.m. Ernsting indicated that the defendant had not consumed any additional alcohol after they returned home.

Ernsting testified that later that night, the defendant had called him advising that she had hit a parked vehicle down the street and that he needed to meet her and take their dog back to their house. Ernsting indicated that before the defendant had left the house with the dog, she had not been impaired by alcohol, and he had no concerns that she “might be picked up by the police because of alcohol.”

Ernsting testified that the defendant rarely drove with their dog in the car and that the dog had been “really hyper” that night because they had been gone all day.

The defendant stated that after taking the breath-alcohol test, she had questioned the results as being extremely high.

The Injury

The defendant explained that her dog weighed 85 pounds and had been jumping around the car and licking her face. She further explained that immediately before she hit the parked truck, her dog had obstructed her vision, and she had pushed him off of her.

The defendant indicated that when her car’s airbags deployed, one of the bags had hit her in the face, causing a tooth to “puncture a spot on [her] lip.” The defendant further indicated that the puncture wound had not been serious enough to warrant medical attention.

The defendant acknowledged that she had not advised Colvis that she had cut her lip or that she had blood in her mouth.

Failed The Field Sobriety Tests

The defendant testified that she had difficulties performing the field sobriety tests because she had been wearing flip-flops and had recently injured one of her knees. She further testified that her red eyes and slurred speech had been caused by her head’s contact with the deploying airbag.

DUI Expert Ronald Henson

Ronald Henson of Beron Consulting and Labworks testified as an expert for the defense.

Henson testified that he was familiar with the Intox EC/IR II breath-test machine and the factors that might affect the accuracy of its test results. Henson testified that prior to the hearing, he had interviewed the defendant and had reviewed the video of her taking the breath test at the Randolph County jail. With respect to the administration of the defendant’s breath test, Henson testified that Colvis had done two things wrong.

No Mouth Check

Most notably, Colvis had failed to check the defendant’s mouth before and after the pretest 20-minute observation period. Stating that the defendant had reported that she had been “actively bleeding” from a cut on her inner lip, Henson explained that blood in a subject’s mouth will “inflate a breath test” if the blood contains any amount of alcohol. Henson indicated that the increase in alcohol molecules caused by “blood leaking inside the mouth” disrupts the equilibrium upon which the breath test is based and will thus lead to “overreported” results.

Henson stated that blood in a subject’s mouth is also considered a “foreign substance.” Henson indicated that a “foreign substance” is something that is not ordinarily in a subject’s mouth. Henson further noted that the blood in the defendant’s mouth had likely been capillary blood, which would have contained higher alcohol concentrations than her venous blood. Henson testified that had Colvis checked the defendant’s mouth and observed the blood, he should have requested that she submit to a blood test. Henson further testified that pursuant to “recommended procedures,” Colvis should not have removed and reused the machine’s mouthpiece after the defendant’s initial attempt to provide a sufficient breath sample.

Henson explained that Colvis should have used a new mouthpiece to avoid possible contamination by any substances that might have been on his hands or by any alcohol molecules that might have been in the condensate of the used mouthpiece.

Unreliable Breath Test Results

Henson opined that, given the blood in the defendant’s mouth and Colvis’s handling of the mouthpiece, the results of the defendant’s breath test were not reliable within a reasonable degree of scientific certainty. Henson also testified that the defendant’s appearance on the video recording of the test procedure, which was shown at the hearing, further supported his opinion. Henson indicated that the defendant’s ability to walk around with “no problem” was inconsistent with a BAC reading of 0.215.

When cross-examined, Henson acknowledged that there were no administrative regulations governing the changing of a mouthpiece during a breath test.

He further acknowledged that the regulation referencing “foreign substances” does not specify that blood is considered a foreign substance.

State Says Reliable

In support of its position that the results of the defendant’s breath test were reliable, the State adduced the following evidence.

Colvis testified that when he spoke with the defendant at the accident scene, she had slurred speech, “glassy red” eyes, and a strong odor of alcohol on her breath. She also admitted that she had been drinking beer prior to the incident. Colvis testified that he had the defendant perform field sobriety tests and that her difficulties with the “walk and turn test” and the “one leg stand test” had confirmed his suspicions that she had been DUI.

Colvis subsequently found a cold, unopened can of beer in the defendant’s car.

Colvis testified that the defendant had never indicated that she had blood in her mouth and had claimed that she had not been injured in the accident. Colvis did not observe any blood on the defendant’s person or on the mouthpiece she had used. Colvis indicated that when he removed the mouthpiece from the machine, he had not touched either end of it and had no contaminants on his hands.

Colvis indicated that the machine had been certified as accurate on April 4, 2016, and May 19, 2016, and had been functioning properly when he administered the defendant’s breath test.

On appeal, the State emphasizes that because the blood in the defendant’s mouth was in her body when the 20-minute observation period commenced, the blood was not a “foreign substance,” as defined by the Code. Suggesting that the trial court misinterpreted the Code and granted the defendant’s motion to suppress and petition to rescind based solely on Henson’s testimony that the blood in the defendant’s mouth was a “foreign substance,” the State maintains that the court’s judgment was erroneous as a matter of law.

The Administrative Code

Section 1286.310 of Title 20 of the Illinois Administrative Code (Code) provides that

“[p]rior to obtaining a breath analysis reading from a subject,” the subject must be continuously observed for at least 20 minutes, during which “the subject shall be deprived of alcohol and foreign substances and shall not have vomited.” 20 Ill. Adm. Code 1286.310(a)(1) (2004).

The Code defines “ ‘[f]oreign [s]ubstance’ ” as “any substance not in the subject’s body when a 20­ minute observation period is commenced, excluding a substance introduced due to normal breathing.” 20 Ill. Adm. Code 1286.10 (2015).

Statutory Summary Suspension Hearing

A defendant is entitled to relief where she makes a prima facie case that the results of her breath test are not reliable and the State fails to rebut her prima facie case with evidence that the results are reliable.

To make a prima facie case of unreliability, the defendant must show that

(1) the breath test was not properly administered,
(2) the regulations regarding the testing were violated, or
(3) the results are not accurate or trustworthy.

At the outset, we note that the Code’s definition of “foreign substance” was never before the trial court, and the court was never asked to consider it in conjunction with the evidence adduced at the hearing. The definition was merely alluded to during Henson’s, Shovan’s, and Colvis’s testimony.

Analysis

The State’s argument on appeal ignores that Henson did not testify that the results of the defendant’s breath test were unreliable merely because the blood in her mouth was a “foreign substance.” He testified that due to the increase in alcohol molecules caused by blood in a subject’s mouth, blood is a foreign substance that will “inflate a breath test” and lead to “overreported” results.

As the trial court noted, Henson’s “main point [had been] that the blood was a contaminant,” and the State failed to rebut Henson’s expert opinion that “blood is a foreign substance[,] and it affects the reliability of the test.”

Emphasizing that it was not determining whether or not the defendant had been DUI, the court further noted that it was granting her motion to suppress and petition to rescind based solely on the evidence that “the blood in the mouth [w]as a contaminant.” The record thus belies the State’s assertion that the trial court’s judgment was based solely on Henson’s testimony that the blood in the defendant’s mouth was a “foreign substance.”

The State’s argument further ignores that whether a defendant’s breath test was administered in compliance with the provisions of the Code is a distinct inquiry from whether the defendant’s test results are ultimately reliable and that reliability “is the paramount concern.”

In the present case, the defendant testified that she had blood in her mouth when she took the breath test, and the trial court credited her claim. She also presented unrebutted expert testimony that the blood in her mouth was a contaminant that affected the reliability of her test results, and the court accepted her expert’s opinion.

Thus, regardless of whether blood technically falls within the Code’s definition of “foreign substance,” the defendant presented a prima facie case that the results of her breath test were untrustworthy, and the State failed to rebut her prima facie case. Accordingly, we cannot conclude that the trial court’s judgment was against the manifest weight of the evidence, and we reject the State’s contention that the court’s judgment should be reversed as a matter of law.

Holding

For the foregoing reasons, the trial court’s judgment granting the defendant’s motion to suppress and petition to rescind is hereby affirmed.

The State’s reliance on our decision in People v. Van Bellehem, 389 Ill. App. 3d 1129 (2009), is misplaced (chewing gum would not have qualified as a foreign substance as defined in the Administrative Code but more importanlty defendant did not provide proof that the reliability of the test has been affected).

People v. Mumaugh, 2018 IL App (3d) 140961 (January). Episode 453  (Duration 16:35)

Defendant was driving under the speed limit when he hit a girl wearing all black in the middle of night when she was standing in the middle of the roadway.

Defendant

Mumaugh was 43 years old at the time of trial. He lived in Marseilles, and had been a professional truck driver for 27 years. On June 21, 2012, at approximately 10:30 p.m., Mumaugh left work in Ottawa and began driving his GMC Blazer east on I-80 toward Marseilles.

He exited the Interstate at the Marseilles exit and proceeded south on Highway 15 toward the Marseilles city limits.

It was a very dark night with no moonlight.

The Highway

Highway 15 is a paved, two-lane road. At the time of the accident, the posted speed limit was 55 m.p.h. At the location of the accident, there were no lights illuminating the highway. The area is rural, and the highway is surrounded by open fields and bordered by gravel shoulders.

The Girls

At the same time Mumaugh was driving home that night, 12-year-old Jennifer Dennis (Jennifer) and her friend, 13-year-old Courtney Brown (Courtney), were walking on the east side of Highway 15, at the edge of the northbound lane.

Jennifer and Courtney had sneaked out of Courtney’s house to go the Dollar Store for soda. Finding the store closed, they continued north on Highway 15 in Marseilles toward a gas station, which was also closed.

The girls then walked south along Highway 15 on their way back to Courtney’s house.

Phone Calls

At 10:34 p.m., Maggie Thomas, a 911 dispatcher, received a call from Milan Najdanovich.

Najdanovich told Thomas,

“I’m on my way into town, and you got two little girls, they’ve got to be 12 or 14 years old, walking on Marseilles blacktop walking in between Hicks Gas and the Shell station. They've got no reflectors on, no nttin' Honey, they're goin' to get hit. They're wearing dark clothes. I'm really afraid somebody's gonna hit 'em or soemmething”

Within 58 seconds of Najdanovich’s 911 call, a squad car was dispatched to the scene.

The Accident

As Courtney and Jennifer walked, Courtney’s flip flop broke, and she bent down to fix it.

Mumaugh was driving south on highway 15 at 50 miles per hour when he saw the white legs of a young girl (Courtney), in the northbound lane. Courtney was about 75 feet away. Within a split second, another young girl, Jennifer, appeared out of nowhere in the southbound lane, immediately in front of Mumaugh’s vehicle.

Jennifer was wearing black clothes and had her back to Mumaugh.

Mumaugh immediately swerved his vehicle to the right to avoid striking Jennifer, but Jennifer was right in front of his vehicle. The left side of his vehicle struck Jennifer. Courtney heard a crash as she was bending over. Mumaugh’s vehicle veered off into a ditch on the west side of the highway.

Jennifer sustained serious injuries as a result of the accident, including an injury to her brain. She was in a coma for several months and suffered permanent disabilities.

Defendant Administer's Aid

Mumaugh immediately exited his vehicle to give aid to Jennifer. Mumaugh had been an emergency medical technician (EMT) for approximately 10 years in the 1990s. He encountered Courtney, who said to him,

“I kept telling her to get out of the road. I kept telling her she shouldn’t walk on the road.”

Mumaugh and Courtney found Jennifer lying face down on the east side of the highway. Her breathing was very labored.

Authorities Arrive

Courtney called 911.

The 911 dispatcher received the call about eight minutes after the Marseilles squad car was dispatched. 

A Marseilles ambulance also arrived, rendered aid, and took Jennifer to an area where she could be airlifted to a hospital. Judd then spoke to Courtney, who was sitting in Judd’s vehicle. Judd asked her what happened. Courtney told Judd that Jennifer was walking in the middle of the road, kicking a rock.

Courtney also told others at the scene that Jennifer was walking in the middle of the road and provided a written statement to that effect.

Officer Baudino asked Mumaugh if he had been drinking. Mumaugh responded that he had not and offered to take field sobriety tests. After administering field sobriety tests, Officer Baudino told Mumaugh that he was “good” and that he saw no signs of impairment.

Agreed To Urine Test

Mumaugh agreed to be taken by ambulance to OSF Hospital to give blood and urine samples.

Detective Gordon and Officers Faber and Baudino did not detect any odor of cannabis on Mumaugh’s breath or clothing. At no time did they observe anything that would lead them to believe that Mumaugh was under the influence of drugs. Mumaugh did not show any signs of impairment in his actions or senses.

Mumaugh told the officers that he had “smoked weed” five days earlier (on June 16, 2012), but had not smoked any marijuana on the day of the accident.

A chemical analysis performed at the Illinois State Police Joliet Forensic Science Laboratory detected an undetermined quantity of THC metabolite in Mumaugh’s urine

The Hitter Pipe

While at the accident scene, Mumaugh realized that he had a “hitter” pipe in his vehicle and he knew that the police would probably search the vehicle. To avoid being arrested for possession of the pipe, Mumaugh removed the pipe from the vehicle and discarded it on the side of the road. Mumaugh claimed he did not use the pipe to smoke cannabis at any time that day.

He did not have any cannabis on his person or in his vehicle.

Officer Rogel saw the hitter pipe (a type of pipe commonly used to smoke cannabis) on the ground next to the ambulance that took Mumaugh to the hospital. The pipe was not warm to the touch, and there was nothing Officer Rogel observed that would lead him to believe that the pipe had been used recently.

Officer Rogel secured the pipe as evidence. Marseilles police officers thoroughly searched Mumaugh’s vehicle. They found no items of contraband or illegal substances.

Accident Reconstructionist

Adam Diss, a certified accident reconstructionist for the LaSalle County State’s Attorney’s Office, was dispatched to the accident scene. Based on his observations, Diss concluded that the crash occurred around the center line of Highway 15.

Mumaugh’s vehicle was traveling south on Highway 15 at approximately 50 miles per hour.

Jennifer was walking south on the same road near the center line when she was struck from behind by Mumaugh’s vehicle.

There was damage to the left front fender and the left upper edge of the windshield of Mumaugh’s vehicle. The headlights were working properly. There was a large amount of change (which Jennifer had had on her person at the time of impact) scattered across the northbound lane and some into the southbound lane of Highway 15.

 Trial & Sentence

The trial court found Mumaugh guilty of aggravated DUI.

The court sentenced him to two years’ imprisonment and one year of mandatory supervised release. The court stayed the sentence until the conclusion of appellate proceedings.

Mumaugh filed his notice of appeal that same day.

Strict Liability Offense

On appeal, Mumaugh argues that his conviction should be reversed because the State failed to present evidence sufficient to prove that the defendant’s driving was the proximate cause of the victim’s injuries, a required element of the offense of aggravated DUI.

A person convicted of violating section 11-501(a)(6) is guilty of aggravated DUI if “the person in committing a violation of subsection (a) was involved in a motor vehicle accident that resulted in great bodily harm or permanent disability or disfigurement to another, when the violation was a proximate cause of the injuries.” 625 ILCS 5/11-501(d)(1)(C) (West 2012).

At the time of the accident at issue in this case, Section 11-501(a)(6) of the Code provided, in pertinent part, that

“[a] person shall not drive *** any vehicle in this State while *** there is any amount of a drug, substance, or compound in the person’s breath, blood, or urine resulting from the unlawful use or consumption of cannabis listed in the Cannabis Control Act.” (Emphasis added.)

Our supreme court has clarified that (1) “aggravated DUI is simply misdemeanor DUI with an aggravating factor, which turns the offense into a felony" (Martin, 2011 IL 109102, ¶ 24); and (2) the essential and underlying criminal act, however, remains the same: driving while under the influence. The physical injury caused to others by driving while under the influence produces the felony. See Quigley, 183 Ill. 2d at 10. See also Way, 2017 IL 120023, ¶ 21.

The Amended Statute

625 ILCS 5/11-501(a)(6) (West 2012). Public Act 99-697, effective July 29, 2016, amended section 11-501(a)(6). The amended statute no longer criminalizes driving with any amount of a drug, substance, or compound in the person’s breath, blood, or urine resulting from the unlawful use or consumption of cannabis.

It now criminalizes having a concentration of THC of 5 nanograms or more of delta-9-[THC] per millileter of whole blood or 10 nanograms or more of delta-9-[THC] per millileter of other bodily substance within two hours of driving. See 625 ILCS 5/11-501(a)(6), 5/11-501.2(a) (West 2016).

However, in this case, we shall apply and construe the prior version of the statute which was in effect at the time of the accident. Section 11-501(a)(6) is a strict liability provision. A person may be convicted of violating this provision (which is a misdemeanor offense) if he is found to have any concentration of THC in his blood or urine, regardless of whether the level of THC was sufficient to impair the defendant’s driving. Martin, 2011 IL 109102; see also People v. Fate, 159 Ill. 2d 267, 260-71 (1994).

Proximate Cause Defense

To obtain a conviction for aggravated DUI, the State is not required to prove that the marijuana or other drug in the defendant’s system (or any impairment caused by such drug) was the proximate cause of the victim’s injuries; rather, it must merely prove beyond a reasonable doubt that the defendant’s driving was a proximate cause of his or her injuries. 

However, proximate cause must be proven by the State in such cases; it is not simply presumed along with the presumption of impairment under section 5/11-501(a)(6).

Proximate causation consists of two elements: cause in fact and legal cause.

Cause In Fact

Cause in fact exists when a defendant's conduct is a material element and a substantial factor in bringing about the injury.  A defendant's conduct is a material element and a substantial factor in bringing about an injury if, absent that conduct, the injury would not have occurred. 

Legal Cause

“Legal cause,” by contrast, is essentially a question of foreseeability. The relevant inquiry is whether the injury is of a type that a reasonable person would see as a likely result of his or her conduct. In proximate cause disputes, Illinois courts draw a distinction between a condition and a cause. 

If the negligence charged does nothing more than furnish a condition by which the injury is made possible, and that condition causes an injury by the subsequent, independent act of a third person, the creation of the condition is not the proximate cause of the injury. The test that should be applied in all proximate cause cases is whether the first wrongdoer reasonably might have anticipated the intervening efficient cause as a natural and probable result of the first party's own negligence.

Applying these principles in First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 257-58 (1999)., our supreme court held that the defendant’s illegal parking of a tanker truck near an intersection was not the proximate cause of a pedestrian’s fatal injuries where, instead of crossing the street at the crosswalk (where the view of oncoming traffic was unobstructed), the pedestrian attempted to jaywalk across the street in the middle of the block, immediately in front of the parked tanker truck, where she could not have seen the oncoming traffic. The Court found that the parked tanker truck was a cause in fact of the pedestrian’s injuries because, had the truck not been parked illegally at that location, the pedestrian’s injuries almost certainly would not have occurred, as her view of the roadway would have been unobstructed. However, the court found that the truck was not the legal cause of the pedestrian’s injuries, because the injury was not the type that a reasonable person would foresee as a likely result of his or her conduct. The court explained that the dispositive question was “whether it was reasonably foreseeable that violating a ‘no parking’ sign at mid-block would likely result in a pedestrian’s ignoring a marked crosswalk at the corner, walking to mid-block, and attempting to cross a designated truck route blindly and in clear violation of the law.” 

The court concluded, “[c]learly, it would not.” The court found that the pedestrian’s decision to jaywalk, “while undeniably tragic and regrettable, was entirely of her own making.”  The court emphasized that the driver of the tanker truck “neither caused [the pedestrian] to make that decision, nor reasonably could have anticipated that decision as a likely consequence of [his] conduct.”

Similar Case

In Reuter v. Korb, 248 Ill. App. 3d 142 (1993), our appellate court reached a similar conclusion on facts markedly similar to those presented in this case. In Reuter, the defendant was driving south in a dark, rural area at approximately 11:25 p.m. when a pedestrian wearing dark clothing suddenly appeared in the center of the defendant’s lane. Less than one second later, the defendant’s vehicle struck the pedestrian. The defendant was traveling at the posted speed limit (45 miles per hour) at the time. Approximately five minutes before the accident, a motorist had reported to a police officer that he had to swerve to avoid hitting a pedestrian walking in the roadway in the same street. Toxicology reports administered after the accident indicated that the pedestrian had a blood alcohol level of .298.

Our appellate court held that the evidence established that the proximate cause of the accident was the pedestrian’s own conduct because the pedestrian had violated the law and “was not in an area where the [defendant] should have known or expected a pedestrian to be.”

Analysis

Likewise, in this case, the State failed to prove beyond a reasonable doubt that Mumaugh’s driving was a proximate cause of Jennifer’s injuries. There was no evidence that Mumaugh committed any traffic violation or any negligent act at the time of the accident. He passed all field sobriety tests administered at the scene, and the officers who interacted with him did not smell cannabis on his breath or clothes and found no evidence of impairment. The State notes that Mumaugh was carrying a "hitter" pipe in his car at the time of the accident. However, the pipe was not warm at the time the police found it on the accident scene, the police found nothing to suggest that it had been used recently, and nothing in the defendant’s car or on his person suggesting that he had been smoking marijuana shortly before the accident.

He was driving five miles per hour below the posted speed limit at the time of the accident, and there is no evidence that he was distracted or that he veered outside of the southbound lane of traffic at any point (other than during his attempt to avoid striking Jennifer, who was walking near the middle of the road and, according to Mumaugh, suddenly appeared directly in front of him in the southbound lane).

Mumaugh’s headlights were working properly, and there was no evidence that he could have avoided hitting Jennifer, who appeared immediately in front of his car a split second before he hit her.

In sum, there is no evidence that Mumaugh did anything as far as his driving was concerned that could have foreseeably caused the accident. Moreover, like the pedestrians in Galman and Reuter, Jennifer performed an unforeseeable act that subjected her to extreme danger.

Pleanty Of Cases Going The Other Way

The State relies upon several cases wherein our supreme court or our appellate court upheld convictions for aggravated DUI and found that the defendant’s driving was a proximate cause of the victim’s injuries or death. However, in each of these cases, there was evidence suggesting that the defendant driver did something illegal or improper that could have foreseeably caused the accident. See Martin, 2011 IL 109102 (the defendant drove his vehicle across the center line); People v. Merrick, 2012 Il App (3d) 100551 (the defendant’s BAC was .212 and the defendant conceded the element of causation); People v. Swift, 2016 Ill App (3d) 140604 (the defendant had taken his eyes off the road at the time of the accident); People v. Cook, 2011 Il App (4th) 090875 (the defendant’s BAC was .109 to .119 at the time of the accident, which could have allowed the jury to infer that the defendant could have been more alert); People v. Ikerman, 2012 Il App (5th) 110299 (the defendant was drunk and speeding); People v. Merritt, 343 Ill. App. 3d 442 (2003) (the defendant was intoxicated and speeding); People v, Johnson, 393 Ill. App. 3d 127 (2009) (the defendant was impaired and was street racing).

The State correctly notes that, in order to be guilty of aggravated DUI, the defendant need only be a proximate cause of the accident, not the sole proximate cause, and that unexpected hazards appearing in the roadway do not negate the defendant’s responsibility as a matter of law.

However, in this case, there was no evidence suggesting that the defendant’s driving was even a contributing proximate cause of Jennifer’s injuries. All the other evidence suggests that Jennifer’s conduct was the sole proximate cause of her injuries.

Holding

In sum, it is simply not foreseeable that a pedestrian would be walking in the middle of a dark, unlit, rural road at 10:30 p.m. on a moonless night wearing dark clothing and no reflectors. Nor would a reasonable person foresee that the accident in the case was the “likely result” of his conduct when he was driving normally (non-negligently), below the posted speed limit with functioning headlights, and within his proper lane of traffic.

Contrary to the State’s argument, the fact that “accidents occur all the time” does not render this particular accident foreseeable.

The dispositive question is whether the defendant reasonably might have anticipated the accident as a “natural and probable result of the [his] own negligence,” i.e., whether Jennifer’s injury was “of a type that a reasonable person would see as a likely result of his or her conduct.” That is clearly not the case here, because there is no evidence that Mumaugh's driving was improper in any way, and, at the time of the accident, Jennifer was not in an area where the defendant should have known or expected a pedestrian to be.

We will reverse a conviction on the basis of insufficient evidence only where, viewing the evidence and all reasonable inferences therefrom in the light most favorable to the State, the evidence is so insubstantial that no rational trier of fact could find each element of the charged offense beyond a reasonable doubt. This is such a case.

Proximate cause is an element of the offense of aggravated DUI. 625 ILCS 5/11­ 501(d)(1)(C) (West 2012). Based on the stipulated evidence in this case, no rational trier of fact could find that element proven beyond a reasonable doubt. Thus, even applying the deferential Collins standard, the defendant’s conviction must be reversed.

See Also

• Episode 349 - Proximate Cause Defense In Aggravated DUI Remains Intact After Law Change - People v. Way
• Episode 097 - An Aggravated DUI Defense In This Cannabis Case? - People v. Way
• Episode  249 - Aggravated DUI Proximate Cause Cannabis Case Doesn’t Mention The New Law - People v. Swift
• Episode 348 - Reckless Homicide Reversed Outright | The Difference Between Negligence and Recklessness - People v. Shakirov
• Episode 405 - Legitimate Claim Of Self Defense Gets Twisted Into An Armed Violence Conviction - People v. Barnes

People v. Henderson, 2017 IL App (3d) 150550 (November). Episode 452 (Duration 8:53)

The judge brought the jury into the courtroom to let them see a video with neither the judge, the ASA, nor the defense attorney being there.

Gist

A jury  found defendant guilty of first degree murder under an accountability theory and not guilty of first degree murder as the principal.

This was a murder trial where the defendant was identified as the shooter. At one point in the trial the jury wanted to see some to see some of the videos.

What The Judge Does

The judge told the jury:

“I hear there’s a couple things you wish to view. I’ve got Ms. Bernard here from the State. Obviously, there’s nobody else in here. I would just ask that [you do] not discuss the case with yourselves as long as Ms. Bernard is here in. So you can watch whatever you guys want to watch. She’s obviously the one who seems to know how to run things because nobody else does. And whatever you want to watch, just let her know.”

The defense attorney, prosecutor nor defendant were in the courtroom when the video was played.

The person running the equipment was an ASA not on the case.

After some discussion regarding the actual evidence the jury wished to see and hear, the court stated,

“Well, I’ll let you guys talk to Becky because we are out of here. Like I said, I just want to make sure you don’t talk about the case because, technically, [she is an] employee of the State’s Attorney’s office. You know, normally you get to sit here and discuss it, if you watch it, and if you want to watch any more if you want to watch it two or three times, I’ll keep her here as long as you guys want it.”

They Want More

After a short recess, the court and the jury reconvened, and the jurors requested to watch the video of defendant’s confession.

The court announced,

“Ms. Bernard is back, present. There is nobody else in the courtroom.”

Go Home Or Continue

The court also asked the jury to “decide as a group as to whether or not you feel that you would like to take a break and come back tomorrow morning and continue your deliberations, or if you wanted us to order you dinner and keep deliberating tonight. That, too, is entirely up to you.”

The court informed the jury that, when it got to about 5 p.m., it would send the bailiff in to ask what they want to do.

The court stated “it’s not my goal to lock you in there and force something out of you if you truly think you would like to take a break and start tomorrow refreshed again. That’s entirely your decision.”

They Had A Verdict

After another recess, the parties returned to the courtroom because the jury had indicated it had reached a verdict. Prior to bringing the jury back in, the trial court informed the parties that the jury had, on two different occasions,

“wanted to watch audio or visual evidence that had been submitted” and that it “didn’t feel it necessary to contact either of the attorneys at that time.”

The court further explained that Ms. Bernard came in and hooked everything up and that the jury was told not to discuss anything in front of Ms. Bernard. The court also noted that the jury was supervised by the bailiffs at all times. The jury was then called into the courtroom.

Issue

On appeal, defendant argues that the trial court committed reversible error when it allowed the jury to observe audio and video evidence in the courtroom during deliberations in the presence of a representative of the State’s Attorney’s office.

Plain Error

“Plain-error review is appropriate under either of two circumstances:

(1) when ‘a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error’; or
(2) when ‘a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence.

Secret Deliberations

We begin by noting that it is a basic tenet of our criminal justice system that deliberations of the jury shall remain private and secret.

The primary purpose of this “cardinal principle” is to protect the jury’s deliberations from improper influence. We also note that the issue here does not call into question the trial court’s decision to allow the jury to review the requested audio and video evidence, which is a matter within the court’s discretion.

Analysis

Rather, the issue concerns the procedure used by the court in allowing the jury to review the evidence during deliberations. While the record indicates the trial court instructed the jury that it should not discuss the case in front of the State employee the first time the jury requested to review evidence, no similar instruction was given during the jury’s second request to review evidence.

Further, even if the jury did not discuss the case while in the presence of the bailiff or the employee of the State’s Attorney office, we simply have no way of determining what affect their presence had on the jury. As defendant notes, the employee of the State’s Attorney’s office or the bailiff could have frowned at a piece of evidence or scoffed at defendant’s testimony. However, neither the judge, nor defendant, nor defense counsel was present to oversee the interaction and to observe any impropriety.

Holding

Thus, we find the trial court committed a clear error by allowing the jury to review the video and audio evidence in this manner. Based on the record before us, we cannot say with any degree of confidence that the procedure employed by the trial court in this case did not affect the jury’s deliberations or result in bias.

On the other hand, we can say with absolute certainty that allowing the jury to review evidence in the courtroom during deliberations and only in the company of an employee of the State’s Attorney’s office and a court bailiff rendered defendant’s trial “fundamentally unfair” and “an unreliable means of determining guilt.”

That is, we find that allowing a representative of the State to be in the room while the jury reviews evidence, without any prior notice to defendant, to be so far beyond the pale of what is expected in a criminal jury trial as to “erode the integrity of the judicial process.” Herron, 215 Ill. 2d at 186.

Accordingly, we find second prong plain error. We reverse defendant’s conviction and sentence and remand for a new trial. Structural errors are those which erode the integrity of the judicial process and undermine the fairness of the defendant’s trial.

An error is typically designated as structural only if it necessarily renders a criminal trial fundamentally unfair or an unreliable means of determining guilt or innocence.

Reversed; cause remanded.

People v. Smith, 2017 IL App (1st) 151312 (October). Episode 451 (Duration 10:59)

One act - One crime principles will save this defendant 6 years.

Gist

An elder commander of the Veterans of Foreign Wars (VFW) post was robbed while he was outside the bank about to make a deposit.

Facts

A teller saw it go down and called the police. Meanwhile, a high-speed police chase of the black car, driven by codefendant Brown, had ensued. Smith and Brown crashed into another vehicle and came to a stop. They ran from the black car in opposite directions. Minutes later, police found Brown hiding underneath a vehicle in a backyard and placed him in custody.

During a custodial search, police recovered over a thousand dollars from his right pocket. The A.J. Smith bank deposit bags and money were found inside the black car.

Blood samples taken from the passenger’s side of the black car were submitted to the Illinois State Police crime laboratory for testing. Results of that testing indicated a DNA match with Smith, and he was arrested on February 5, 2010.

Old Guy In Bad Shape

Mary Burtner, William’s wife, testified that her husband was treated and released from the hospital on the day of the robbery. When he returned home, he was in a lot of pain, uncomfortable, and favoring his left side. He had lung cancer and was going through chemotherapy.

He died in his sleep later that night.

Burtner suffered from lung cancer, two prior heart attacks, and heart disease and had three fractured ribs on the left side of his chest wall. The rib fractures were less than three or four days old and were consistent with being punched.

Dr. Arunkumar determined that the cause of death was hypertensive cardiovascular disease with, as a significant contributing factor to the heart attack, the fractured ribs due to an assault. In her opinion the cause of death was homicide.

Not Guilty Of Murder

The trial court found that the State failed to prove that Smith and Brown caused Burtner’s death and so found them not guilty of first degree murder.

Aggravated Battery Of A Senior

The trial court, however, found that defendants “certainly” inflicted great bodily harm on Burtner and, therefore, found both men guilty of aggravated battery of a senior citizen.

The trial court also found defendants guilty of robbery and aggravated battery. The aggravated battery counts were merged into the aggravated battery of a senior citizen offense.

Sentence

As Burtner was over the age of 60, the trial court ruled that the robbery offense was elevated from Class 2 to a Class 1 felony.

The trial court sentenced Smith to 12 years’ imprisonment for robbery and a consecutive term of 6 years’ imprisonment for aggravated battery of a senior citizen. The court expressly stated that Smith’s criminal history and the nature and circumstances of the offense required consecutive sentences to protect the public from further criminal conduct by Smith.

Issue

Smith contends only that his conviction for aggravated battery of a senior citizen should be vacated because it violates the one-act, one-crime doctrine where it is based on the same single physical act as his robbery conviction. Smith argues that the only evidence of a physical act committed against Burtner was the single punch that resulted in fractured ribs. Smith also argues that the single punch cannot serve as the basis for both the aggravated battery and the force element for the robbery.

State's Response

The State responds that the one-act, one-crime doctrine was not violated because Smith committed two separate acts.

The State asserts that the punch was one act and the taking of the deposit bags was a separate act. The State contends that the common act of the punch can serve as the basis of both offenses because there was another separate act for the robbery.

One Act - One Crime Doctrine

Under the one-act, one-crime doctrine Smith cannot be convicted of multiple offenses that are based on precisely the same single physical act, and where he is convicted of two such offenses, the conviction for the less serious offense must be vacated. Our supreme court has defined an “act” as “any overt or outward manifestation which will support a different offense.” People v. King, 66 Ill. 2d 551, 566 (1977).

In clarifying the one-act, one-crime rule from King, the supreme court explained that a court must first determine whether Smith’s conduct consisted of a single physical act or separate acts. People v. Rodriguez, 169 Ill. 2d 183, 186 (1996).

A defendant can be convicted of two offenses where a common act is part of both crimes. But, where two offenses share a common act, there must be another separate act to sustain the two convictions. As long as there are multiple acts as defined in King, their interrelationship does not preclude multiple convictions.

Analysis

The State charged Smith with robbery for taking money from Burtner by the use of force or by threatening the imminent use of force. 720 ILCS 5/18-1(a) (West 2008).

The aggravated battery of a senior citizen offense alleged that Smith intentionally and knowingly caused great bodily harm to Burtner, a person 60 years of age or older, by striking him about the body, causing injuries. 720 ILCS 5/12-4.6(a) (West 2008).

The record reveals that the evidence presented at trial demonstrated that Smith committed one single physical act—a single punch to Burtner’s left side.

The single punch was used as the basis for the aggravated battery conviction and as the element of force for the robbery conviction. There was no evidence of any other use of force or threat of force by Smith. There was no evidence of a verbal threat. Indeed, because Burtner was punched from behind, he was likely unaware that Smith was approaching him.

Based on this record, we find that Smith committed only one single physical act.

Isn't The Taking A Separate Act?

We note that the State asserts that the taking of the money from Burtner constituted a separate physical act for the robbery and, thus, the two convictions may stand. The State primarily relies on this court’s decision in People v. Pearson, 331 Ill. App. 3d 312 (2002), which it claims is directly on point. In Pearson, the defendant grabbed a woman’s purse off her shoulder.  A struggle ensued, and the woman was knocked to the ground. The defendant was convicted of both robbery and aggravated battery. On appeal, this court found that the two convictions did not violate the one-act, one-crime doctrine, as the defendant committed two separate physical acts—he took the woman’s purse, and he then pushed her to the ground.

We find the facts of this case distinguishable from Pearson.

There, the act of grabbing the woman’s purse off her shoulder was, in and of itself, a taking of property by force.

Pearson’s subsequent act of pushing the woman to the ground was a separate act.

Holding

Here, however, the evidence demonstrates that Smith committed only one physical act, the punch. There was no evidence that Smith used another act of force to take the money from Burtner. There is no evidence explaining how the taking occurred. There is no evidence of a struggle over the deposit bags nor any evidence that Smith forcefully removed them from Burtner’s hand.

It is possible that Burtner dropped the bags after he was punched and fell to the ground, as he apparently did with the cigar box.

Accordingly, Pearson does not apply to this case.

Based on this record, we find that Smith’s convictions for robbery and aggravated battery of a senior citizen were both based on Smith’s single physical act of punching Burtner. The two convictions therefore violate the one-act, one-crime principle and cannot stand. The aggravated battery of a senior citizen offense is a Class 2 felony and, thus, is less serious than the robbery of a senior citizen, which was elevated to Class 1.

We vacate the aggravated battery of a senior citizen conviction and affirm Smith’s conviction and sentence for robbery.

In re T.Z., 2017 IL App (4th) 170545 (December). Episode 450 (Duration 10:35)

7 year old victim is allowed to whisper the damaging testimony to the judge who then repeated the statement for the record.

Gist

On February 15, 2017, the State filed a petition for adjudication of delinquency and wardship, alleging respondent committed the offenses of aggravated criminal sexual assault (720 ILCS 5/11-1.30(b)(i) (West 2016) (count I)) and criminal sexual assault (720 ILCS 5/11­ 1.20(a)(3) (West 2016) (count II)) against T.W., his seven-year-old nephew.

The court adjudicated respondent a ward of the court, committed him to the DOJJ for an interim period, and set a review hearing to consider residential treatment.

Victim's Testimony

Seven-year-old T.W. “promise[d]” to tell the truth.

He testified in open court as to his age, schooling, living situation, and familial relationship with respondent. T.W. also identified respondent as being present in the courtroom. T.W. testified he recalled an occasion when he stayed the night at his neighbor’s home, where respondent was also staying the night.

But when the kid got to the contact he would whisper it to the judge and the judge would repeat the statement for the record.

Whispering Testimony

For example, it went like this:

([T.W.] whispers to the court.)

THE COURT: Do you want me to say what you just said or can you say it?

[T.W.]: You.

THE COURT:

You want me to say that he touched you in your privates? Is that what you told me?

[T.W.]: Yes.

THE COURT: Okay.

[STATE]: Your private. Was there anything that [respondent] did with his private to you? Do you want to tell the judge?

[T.W.]: (Nods head.)

[STATE]: Yeah?

([T.W.] whispers to the [c]ourt.)

THE COURT: He said he put his private in his butthole.

[STATE]: Did he do anything with his private in your mouth?

[T.W.]: (Nods head.)

[STATE]: You nodded your head. Does that mean yes?

[T.W.]: Uh-huh.

[STATE]: Okay. Did anything happen with his private when he put it in your mouth? 

([T.W.] whispers to the court.)

[DEFENSE COUNSEL]: Your Honor, if we may approach?

THE COURT: Not yet. Go ahead. He said I would choke.

[STATE]: Did that happen more than one time?

[T.W.]: Yes.

Issue

Respondent asserts his right to confrontation was violated at his adjudicatory hearing by the manner in which the trial court permitted T.W. to testify.

Specifically, respondent complains of the manner in which T.W. was allowed to answer questions by whispering answers to the court to be repeated by the court for the record.

Confrontation Clause

The confrontation clause of the sixth amendment of the United States Constitution, made applicable to the states through the fourteenth amendment (U.S. Const., amend. XIV), provides, in part, as follows:

“In all criminal prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses against him.” U.S. Const., amend. VI.

Conforming with the confrontation clause of the United States Constitution, the confrontation clause of article I, section 8, of the Illinois Constitution provides in part as follows:

“In criminal prosecutions, the accused shall have the right *** to be confronted with the witnesses against him or her.” Ill. Const. 1970, art. I, § 8.

The right to confront witnesses is equally applicable in juvenile delinquency proceedings. People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 201-02, 909 N.E.2d 783, 796 (2009).

Case Law On Alternate Procedures Lofton

In Lofton the State, implemented an ad hoc courtroom procedure to receive a child's testimony. See People v. Lofton, 194 Ill. 2d 40, 740 N.E.2d 782 (2000). The Illinois Supreme Court addressed the constitutionality of a courtroom procedure designed to prevent a child witness from having to face in open court a defendant charged with sexually assaulting the child.

The trial court in Lofton implemented an ad hoc procedure to allow the child witness to testify from behind a barrier of podiums, which precluded the defendant from being able to view the child when testifying. See also Coy v. Iowa, 487 U.S. 1012 (1988) (large screen that prevented defendant from seeing the kid was unconstiutional).

Craig

But in Maryland v. Craig, 497 U.S. 836, 841 (1990) the court allowed one way closed circuit tv testimony of the child after the court made a finding that the child witness would suffer severe emotional distress if required to testify in open court.

Hadden 

As this court stated in People v. Hadden, 2015 IL App (4th) 140226, ¶ 28, 44 N.E.3d 681, “[s]poken language contains more communicative information than the mere words because spoken language contains ‘paralanguage’—that is, the ‘vocal signs perceptible to the human ear that are not actual words".

See Also Child Shield Act

See 725 ILCS 5/106B-5.

Analysis

The court’s procedure of permitting T.W. to answer questions by whispering answers to be repeated by the court for the record precluded both respondent and his counsel from listening to T.W.’s answers and the manner in which he testified. 

The inability to hear T.W. answer questions limited possible lines of inquiry that might have been indispensable to effective cross-examination.

The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact. We find, as respondent asserts, listening to the manner in which a witness testifies is as vital as observing the manner in which the witness testifies.

We also note, prior to implementing such a procedure, the court made no case-specific finding of necessity on the record. The trial court must *** find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant.

We find the ad hoc courtroom procedure used by the trial court was a clear and obvious violation of respondent’s right to confrontation. by the trial court was a clear and obvious violation of respondent’s right to confrontation. This error directly impacted respondent’s ability to contest the credibility of the complaining witness.

The error is particularly prejudicial here, where the trial court made clear in the oral pronouncement of its decision that (1) “the issue before the court [was] one of credibility,” and (2) it relied on the answers whispered by T.W. in reaching its credibility determination.

In addition, the trial judge is not sworn, as an interpreter would be, and cannot serve as a witness as well as a fact finder. In our assessment, we find the evidence is closely balanced.

Respondent is entitled to relief under the first prong of the plain-error doctrine. We reverse and remand for a new adjudicatory hearing before a different judge and, if necessary, a new dispositional hearing. Reversed and remanded.

Clearing The Courtroom

See 725 ILCS 5/115-11.