Kane County Nuggets

People v. Durden, 2017 IL App (3d) 160409 (November). Episode 420 (Duration 7:33)

Can police ask for blood after you pass the breathalyzer?

Gist

Defendant is arrested for DUI. He passes the breathalyzer. Then he refuses to submit to blood or urine testing, and he’s suspended. On appeal he challenges the denial of his petition to rescind the statutory summary suspension of his DL.

The trial court denied defendant’s petition to rescind.

The Stop

The officer testified that he was on patrol at approximately 1:12 a.m., when he observed defendant commit “[m]ultiple lane violations.”

According to Middleton, defendant’s vehicle veered toward his patrol car, crossed over the double yellow line three times, veered into the painted median twice, and “began to veer towards the opposite lane of traffic.” After observing defendant commit “approximately five lane violations,” Middleton of the Shorewood police department activated his overhead lights.

Defendant stopped his vehicle, and Middleton approached and asked for defendant’s driver’s license.

The Contact

In attempting to retrieve his license, defendant’s “hands slipped off his wallet numerous times” and before handing the license to Middleton, defendant dropped it in his lap.

Defendant also dropped his cell phone in his lap. Middleton asked defendant if he had consumed any alcoholic beverages or was on any medication. Defendant denied both. Middleton returned to defendant’s vehicle and asked him to step out of the car.

• At that time, Middleton smelled a “moderate” odor of an alcoholic beverage.
• Middleton also observed that defendant had “slurred speech, glossy, bloodshot eyes” and “unusual behavior.”
• He fails the FSTS but declines the PBT.

He Blows

He’s arrested based on defendant’s “slurred speech, *** very dangerous driving, [and] performance on the field sobriety tests.”

Defendant blew a 0.035, which is well below the legal limit of 0.08.

Probable Cause For DUI Arrest

A defendant alleging that an arresting officer did not have reasonable grounds to believe that he was driving under the influence bears the burden to produce prima facie evidence that the officer lacked reasonable grounds.

“Probable cause is not guilt beyond a reasonable doubt.”

Probable cause deals with probabilities and involves factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The existence of probable cause depends upon the totality of the circumstances at the time of the arrest.

Erratic driving, such as crossing the centerline, is sufficient to justify an investigatory stop.

Additionally, slurred speech, red and glassy eyes, the odor of an alcoholic beverage, difficulty producing documents, and failed field sobriety tests “have repeatedly been held to be indicia of intoxication adequate to support an arrest for driving under the influence of alcohol.”

Chemical Tests Of Blood, Breath, or Urine

Once an officer has probable cause to arrest a driver for DUI, the officer may request “a chemical test or tests of blood, breath, or urine for the purpose of determining the content of alcohol, other drug or drugs, or intoxicating compound or compounds or any combination thereof in the person’s blood.” 625 ILCS 5/11-501.1(a).

“Multiple testing is not always proper.”

However, “a police officer can first require a breath test for alcohol and then require a blood or urine test for drugs.” People v. Krosse, 262 Ill. App. 3d 509, 511 (1994). When a defendant submits to one test and the results indicate that defendant is not under the influence of alcohol, the officer must “present reasonable evidence for requesting a second test.” People v. Klyczek, 162 Ill. App. 3d 557, 560 (1987).

Where an officer requests further testing to determine whether there are drugs in defendant’s system, the second test is “reasonable, and the defendant’s refusal to perform that test warrants suspension of his driver’s license.”

Analysis

Here, Officer Middleton pulled over defendant because of erratic driving.

After speaking to defendant, Middleton noticed that defendant had glossy eyes, slurred speech, and difficulty handling small objects, such as his cell phone and driver’s license.

Middleton had defendant perform three field sobriety tests, which defendant failed because he could not follow instructions. These observations were sufficient to justify defendant’s arrest for DUI.

When the results of defendant’s breath test showed that defendant’s blood alcohol concentration was less than 0.05, defendant was presumed not to be under the influence of alcohol. See 625 ILCS 5/11-501.2(b)(1).

Holding

Schloesser testified that he requested defendant’s blood or urine because defendant’s actions were inconsistent with his low blood alcohol concentration. Middleton also testified that defendant made “unusual statements” and exhibited “unusual behavior,” supporting the request for additional testing.

Because the officers found defendant’s actions and behavior inconsistent with his blood alcohol level, it was reasonable for Schloesser to request that defendant undergo further testing to determine if he was under the influence of drugs.

The judgment of the circuit court of Will County denying defendant’s petition is affirmed.

In regards to the Warnings being only read once to defendant, nothing in the Code requires that officers provide the “Warning to Motorist” more than once if more than one test is requested. Nor have we found any Illinois case law interpreting the Code in such a way. 

People v. Sheley, 2017 IL App (3d) 140659 (October). Episode 419 (Duration 14:30)

Judge falls asleep during murder trial.

Murderous Defendant

Defendant was on trial for the bludgeoning and killing of four people.

The circuit court sentenced defendant to four consecutive sentences of natural life imprisonment without parole. It was part of murderous rampage defendant went on in Illinois and Missouri.

Judge Falls Asleep

In this Illinois trial during the playing of a video the judge fell asleep.

Here’s how the defense attorney addressed the topic.

“MR. KARLIN: Judge, I apologize for having to do this, but as you can appreciate the position that I’m in, I have to make a record of this. There was a point at the ending of the hearing or the trial session this morning when the video was being played and Officer Cirimotich was testifying on, I think it was apparent that you had fallen asleep. I, I wrote down on my notes that I called twice from counsel— when I observed that you had fallen asleep, and I don’t know how long you were, that I called, I said, Judge, from counsel table, I believe, twice. That at then when you did not respond I was concerned. I came to the bench, I called, I said Judge, to you again, you, and after that was when the clerk either, I think poked you and then you awoke. Frankly, this is not the first time that I’ve observed this, but certainly not to the degree that I observed this morning and I have to make a record of that.

THE COURT: Understandable. Did your suggestion disrupt in any way the video.

MR. KARLIN: I believe, Judge, at that point we had, we reached a breaking point of the video.

MR. ELWARD: That is correct, Judge.

MR. KARLIN: And you were not called upon to make any evidentiary rulings during the playing of the video. I think we—yeah, I think those two things are accurate.

THE COURT: Comments from the State?

MR. ELWARD: Judge, I share Mr. Karlin’s observations. I was focused on Detective Cirimotich. I would just inquire as to the Court’s health, if you are okay, we can proceed. It is of concern, obviously, just want to, just wanted to make sure that we are good to go for this afternoon.

THE COURT: Okay. I will speak to the record that I have no physical inabilities at this point, that I’m aware of and, if the record shows no objections that I was required to respond to, while the videos were going on, and I don’t think there were any or I would have been aware of them. Your observation is noted for the record.”

Motion For Mistrial

Motion for mistrial was denied. And just when you thought it would be handled cordially, the judge explained why he denied the motion:

“This phrase in here ‘on multiple occasions’, I regard as gratuitous, because nowhere in this record did the defense make any objection whatsoever to multiple occasions of what they perceived. On the one occasion that they did make a record on what their perceptions were I want to explain the circumstances. It was a video deposition. There was nothing evidentiary about the video aspect of this other than an above-the waist head and shoulders shot of the witness that was testifying. No evidentiary value of that at all.

If the jury, who are fact-finders in this case, chose to assess her credibility on based [sic] what they viewed, so be it, but they are the finders of fact. So if I was not looking at the video, that does not mean that I was not listening and hearing everything that was being said, and I find that the allegations that I fell asleep on multiple occasions to be feckless, factually unsupported, and, in fact, factually inaccurate, because I am the one that knows.

And frankly, the insertion in this motion for new trial for the first time an allegation of multiple occasions, which does not appear anywhere else in this record, I find to be a desperate claim of error by a desperate defense on that particular issue.

The test on that is whether the judge ever lost control of the courtroom in these proceedings, and the answer to that is absolutely not. No one spoke in the courtroom during this deposition. There were no objections, there was nothing for the Court to rule on other than to sit there and listen to what this deposition witness had to say, and that was the end of that.

And the press had a field day with that one.

I don’t like to think that all journalists are yellow journalists, but to pick that out, when most of the reporters weren’t even present here, and then run with it in the press, I found to be a little bit out of bounds. So, the issue there was not the deposition. It was not the evidence that was heard. It’s this assertion that I was asleep. And it’s feckless, it’s inaccurate, and that’s my record for the appellate court. I find it disgusting.”

Law On Illinois Mistrial Requires Structural Error

“Generally, a mistrial should be awarded where there has been an error of such gravity that it has infected the fundamental fairness of the trial, such that continuation of the proceeding would defeat the ends of justice.” People v. Sims, 167 Ill. 2d 483, 505 (1995).

“Automatic reversal is only required where an error is deemed ‘structural,’ i.e., a systematic error which serves to ‘erode the integrity of the judicial process and undermine the fairness of the defendant’s trial.’ ” People v. Glasper, 234 Ill. 2d 173, 197-98 (2009).

An error is structural “only if it necessarily renders a criminal trial fundamentally unfair or an unreliable means of determining guilt or innocence.” People v. Thompson, 238 Ill. 2d 598, 609 (2010).

“[Most errors of constitutional dimension are subject to a harmless error analysis. Only those constitutional violations that are ‘structural defects in the constitution of the trial mechanism,’ such as total deprivation of the right to trial counsel or absence of an impartial trier of fact, are per se error that necessitate remandment for a new proceeding.” People v. Shaw, 186 Ill. 2d 301, 344-45 (1999)).

Sleepy Judge Not Structural Error

We hold that a judge falling asleep for a portion of a trial does not rise to the level of structural error.

That is, such an error does not “necessarily render[ ] a criminal trial fundamentally unfair or an unreliable means of determining guilt or innocence.” Rather, such an error is subject to harmless error analysis.

Defendant's Guilt

The evidence of defendant’s guilt was overwhelming.

Police officers discovered cigarettes and clothing containing defendant’s DNA in the victims’ apartment.

Some of the clothing was stained with the victims’ blood. Additionally, officers found clothing containing defendant’s DNA and the victims’ blood in the dumpster in Festus. The State also introduced photographs of defendant wearing one of the victims’ shirts the day after the murders.

Analysis

 It is undisputed that neither party called upon the judge to make any evidentiary rulings during that time.

When ruling on defendant’s post trial motion, the trial judge noted that defense counsel made a record of his observations that the trial judge had fallen asleep on only one occasion, which occurred during a video deposition.

Presumably, the circuit court was referring to Sebben’s video deposition.

However, the record shows that the incident of which defense counsel made a record occurred during Cirimotich’s testimony when security camera videos were being played. It is unclear whether the judge was merely mistaken as to which video was playing when he fell asleep or whether he fell asleep on both occasions.

We note, however, that neither party called upon the judge to make any evidentiary rulings while Sebben’s video deposition played.

Additionally, neither party stated on the record that the judge had fallen asleep at that time.

Defense Failed To Make A Record

We note that defendant argues the record “strongly suggests” that the judge fell asleep on multiple occasions during trial, though the occasion during Cirimotich’s testimony was the most egregious instance. Defendant bases this argument on defense counsel’s repeated statements that he believed he had observed the judge fall asleep more than once. However, defendant provides no further details regarding these incidents.

Thus, defendant has not shown that he was prejudiced by these alleged additional incidents.

Holding

Because the evidence in this case was overwhelming and the parties did not call upon the trial judge to make any evidentiary rulings at a time when the judge was asleep, the judge falling asleep was harmless error.

Thus, the circuit court did not abuse its discretion on denying defendant’s motion for a mistrial.

Briefly Falling Asleep
Is Not Like Leaving The Bench

In reaching our holding, we reject defendant’s reliance on People v. Vargas, 174 Ill. 2d 355 (1996).

In Vargas, the judge left the bench during a jury trial to take a phone call while a witness continued testifying.

The Vargas court held that “the nature of the error— total judicial absence for a portion of a felony trial—is per se reversible because such error is inherently prejudicial, not only to defendant’s right to a fair trial but also to the integrity of the judicial process.”

We find that the policy concerns underlying the holding in Vargas do not apply in situations, as in the instant case, where a judge falls asleep on the bench. The Vargas court refused to apply harmless error analysis, in large part, to deter judges from abusing such a rule. 

Unlike physically leaving the bench, which is always a voluntary act, falling asleep is often inadvertent.

Thus, a rule of per se reversible error for a judge falling asleep during a trial would not have the same deterrent effect as in a situation where a judge chooses to physically leave the bench. In the instant case, for example, the judge fell asleep while the lights were turned off and a video was playing. Assuming that the jury was even aware that the judge fell asleep, it likely attributed it to the darkness of the room and fatigue rather than to lack of interest in the proceedings. There is nothing in the record to indicate that the jury was aware of the incident.

Concurring Opinion Alleges "Sandbagging"a

Defense counsel’s tactic of not addressing the apparent problem of the judge falling asleep until it was time to “make a record” leads me to conclude that defense counsel was deliberately building error into the record, without giving the court any opportunity to address or prevent the error.

The practice of deliberately building error into the record, a practice commonly known as “sandbagging,” is strongly disfavored by our courts. People v. David, 96 Ill. App. 3d 419, 422 (1981).

Sandbagging can result in the waiver or forfeiture of all issues, including purported violations of constitutional rights.

Stern v. Marshall, 564 U.S. 462, 482 (2011) (“the consequences of ‘a litigant … “sandbagging” the court—remaining silent about his objection and belatedly raising the error only if the case does not conclude in his favor’ [citation]—can be particularly severe”).

Given the facts here, I find that defense counsel “sandbagged” the trial judge by not bringing his observation of the trial judge’s condition to immediate attention. I would further find that the only reason counsel did not address the issue at the soonest point possible, was his desire to “make a record.”

For this reason, I would find that the defendant invited the error that he claims on appeal requires a new trial.

I would affirm the defendant’s conviction.

See Also

What To Do When Judge Screws Up The Zehr Admonishment - Episode 361

Episode 418 (Duration 33:13) The NIU College of Law Criminal Defense Clinic is essentially a law firm staffed by law students - Professor Paul J. Cain reveals how it works on the inside.

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In This Episode

"I love what I'm doing. I love the combination of academics with practice, and it's fun to see the students develop over the course of a semester or even multiple semesters ." -- Paul J. Cain

Professor Paul J. Cain

Professor Paul J. Cain has been a professor at the NIU College of Law for 14 years.  Currently, he is the clinical professor of their Defense Clinic.

The Professor is also the president of the Illinois Association of Criminal Defense Lawyers (November 2017 to November 2018).

"Can't Miss" Moments:

✓ Learn all about the Zeke Giorgi Criminal Defense Clinic. What charges are covered? How students get their cases? How'd you end up in Winnebago County and not Dekalb? Who was Zeke Giorgi? What do the local public defenders think? How do the judges treat the students? Do students do jury trials? (Go to 6:30)

✓ Track a Defense Clinic case from inception to the end. Are students allowed to handle substantive motions and litigation hearings? (Go to 14:12)

✓ There are 2 classes that are mandatory prerequisites the students have to have before being admitted into the clinic. Evidence, criminal procedure, trial advocacy, and mock trial are all just recommended but not required.  (Go to 15:20)

✓ Benefits and value offered by membership to the IACDL... (Illinois Association of Criminal Defense Lawyer) (Go to 22:20)

Links & Resources

• Paul J. Cain Clinical Professor
• NIU College of Law Criminal Defense Clinic
• NIU College of Law Experiential Learning
• NIU Today: NIU’s Zeke Giorgi Legal Clinic honors 10 years of courtroom advocacy for Rockford community
• WREX.com: Zeke Giorgi Legal Clinic celebrates decade of service
• NIU Law Clinical Programs (PDF)
• NIU College of Law
• Barbara Vella (attorney and daughter of Zeke Giorgi)

See Also

You may also want to check out...

• Lighthouse Recovery Inc.
• Illinois Association of Criminal Defense Lawyers

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This is the October 2017 Illinois criminal case law audio round-up (the fast case law summary). Episode 416 (Duration 16:56)

Click here to download the written summary of these cases:  October 2017 Round-Up 

The October 2017 Top Illinois Criminal Law Cases (The Monthly Round-Up)

Here's a quick snapshot of the top cases:

1. People v. Paddy

Drug interdiction patrol officer unreasonably prolonged this traffic stop for a drug dog sniff.

2. People v. Manzo

Bare bones affidavit nonetheless establishes a nexus to defendant's house.

3. In re Destiny P.

First offender juvenile delinquents charged with murder are not constitutionally entitled to a jury trial.

4. People v. Sheley

Judge falls asleep during murder trial.

5. People v. Lee

Schizophrenic and suicidal patient loses his shit with a nurse and strikes her, but was it accidental?

6. People v. Gibson

Defendant used his right to attorney and his right to go pro se as a tactic to delay the trial.

7. People v. Clark

Defendant was released on bond to attend drug treatment she was charged with escape when she didn't come back to the jail.

8. People v. Dabney

Kid didn't testify about some of the acts.

9. People v. Reese

Vehicular hijacking doesn't require that defendant take actual control of the vehicle.

10. People v. Henson

Defendant not given the lesser included of theft in his burglary charge.

11. In re Omar F.

No gang contact was overly broad.

12. People v. Smith

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

13. People v. Johnson

Defendant agreed to plea guilty for a cap; he says judge relied on improper sentencing factors, must he know move to withdraw the guilty plea in order to challenge the sentence?

14. People v. Gullens

Fundamental fairness demands that this defendant be allowed to finish his conditional discharge rather than go to prison for possessing a gun for only 10 minutes.

People v. Rosado, 2017 IL App (1st) 143741 (August). Episode 414 (Duration 9:02)

It was error to admit a drug deal defendant was acquitted of or he should have been allowed to tell the jury he was not guilty of that charge.

Delivery To Undercover

Defendant faced several drug delivery charges for deliveries to an undercover spread over three days.

The State elected to try the later charges first.

The state was not allowed to get into the first two transactions in this first trial because the evidence was more prejudicial than probative and that the jury might convict Rosado based on the other-crimes evidence.

First Trial

At the jury trial, Rosado argued that his brother, Javier Moreno, had sold the drugs; Rosado was acquitted of the later charges in this first trial.

Second Trial

Before trial in this case (the second trial), the State nevertheless moved to admit evidence of the later incident as “other crimes” evidence, to show identity.

The trial court admitted the evidence over Rosado‘s objection, without referencing whether the evidence was more probative than prejudicial.

The trial court also denied Rosado’s request to inform the jury that he had been acquitted of selling drugs on the later date. Rosado’s counsel argued that Gonzalez had little opportunity on March 29 to successfully identify Rosado and that Gonzalez had confused Rosado for his brother, Moreno, who was being investigated during the same time frame.

Officers testified they could tell them apart, although they did look similar.

One was older and a little taller. They had different mannerisms and defendant had a tatoo on his hand that his brother did not not have.

The police testified that the same person did the deal both days and that the brother was not there. He was convicted of this one.

Core Issue

The State argues that Officer Gonzalez’s identification of Rosado was the core issue at trial and the later drug deal “lent credibility to the officer's identification, showed that a relationship between the parties was established, and gave a more complete picture of the crime charged.”

But here, the State submitted evidence from a later sale.

The officers did not explain how their ability to recognize Rosado on the earlier deal, both in person and in the photo array that same day, was somehow increased based on what they saw six days later. Further, the later deal evidence could not explain how the buyer-seller relationship had already been established during the earlier deal.

Error To Admit

The trial court should have allowed Rosado to introduce evidence of his acquittal. The acquittal was relevant, in that it made “the existence of any fact that is of consequence to the determination of the action more probable or less probable.” Ill. R. Evid. 401.

And it was highly probative on the crucial issue of identification.

Did the police officers (especially Officer Gonzalez) recognize the man who sold the drugs on the earlier day as Rosado? Or did they have him mixed up with his brother Moreno, who was also being investigated by the same officers during the same time period?

This jury had to actively decide who sold the drugs on the later day.

The evidence of the later acquittal would have provided the jury with a “complete context” for Officer Gonzalez’s allegations that Rosado had sold him drugs that day—especially in light of Officer Gonzalez’s vehement protestations that Rosado, not Moreno, had sold the drugs on the later deal.

The acquittal would have strongly impeached Officer Gonzalez’s testimony, and he was the most consequential witness against Rosado—the only officer who saw the drug seller up close.

No Mini Trial

When admitting other-crimes evidence, we often warn trial courts not to allow a “minitrial” on the other crime, since that could confuse the jury and waste time. 

But if a trial court is going to admit it, the trial court must do so equitably.

Rosado should have been allowed to tell the jury about the acquittal.

A question of basic fairness must be dealt with.

Order Of The Trials

The State chose to try the March 29 case before the March 23 case.

Rosado, for whatever reason, was acquitted.

And yet, the State was allowed to proceed with the March 23 case as though the acquittal never happened and re-present the March 29 evidence to a second jury, forcing Rosado to defend himself again.

Further, the trial court allowed the State to use other-crimes evidence in this case after having denied leave to do so in the March 29 case, concluding there that the evidence was more prejudicial than probative. The record does not reveal a sound reason for why the trial court made an about-face and ruled to the contrary here.

Unreasonable

Both in terms of logic and fairness, the trial court’s decision was “unreasonable” and an abuse of discretion.

Improper admission of other-crimes evidence is harmless if the defendant has not been prejudiced or denied a fair trial, and the State must show beyond a reasonable doubt that the result would have been the same without the improper admission.

Not Harmless

The State has not shown that these errors were harmless beyond a reasonable doubt.

The case depended on Officer Gonzalez, who had also been investigating Moreno at the same time and admitted he could not remember which days he had bought drugs from Moreno.

There was no physical evidence tying the drugs or the money to Rosado.

Officer Gonzalez’s testimony might have been sufficient to support a conviction, but that is not the same thing as “overwhelming” evidence. The court will also consider whether the other crimes evidence was a “material factor” in the conviction. The evidence of the later drug deal was definitely a “material factor” in the jury’s decision.

Holding

Accordingly, the trial court abused its discretion in admitting this evidence because it could not bolster identification (the only basis on which it was admitted) and had no other relevance; it also was, as such, more prejudicial than probative.

Rosado is entitled to a new trial.

Reversed and remanded with instruction that the case go to a new judge. Ouch.

People v. Holman, 2017 IL 120655 (September)
People v. Hoy, 2017 IL App (1st) 142596 (September)
People v. Evans, 2017 IL App (1st) 143562 (August). Episode 413 (Duration 10:27)

Defendant was 17 years old when he was given a discretionary life sentence, is he entitled to a new sentencing hearing? 

People v. Holman Facts

Defendant was 17 when he and a buddy burglarized a home and shot and killed the 82 year old woman who lived there.

Because he was five weeks from his eighteenth birthday at the time of the offense, he was not eligible for the death penalty. See Ill. Rev. Stat. 1979, ch. 38, ¶ 9-1(b). Instead, he was eligible for a discretionary life sentence.  See Ill. Rev. Stat. 1979, ch. 38, ¶ 1005-8-1(a)(1).

Criminal History

The Madison County circuit court’s probation and court services department prepared a presentence investigation report (PSI). The PSI included the defendant’s criminal history.

Defendant had a prior conviction for murder and one for attempt murder under his belt.

At age 14, he was adjudicated delinquent for burglary and placed on two years’ probation.

At age 15, he was adjudicated delinquent for three counts of criminal damage to property and committed to the Department of Corrections’ juvenile division. The defendant was paroled and then arrested for burglary three months later.

His parole was revoked, and he was returned to the Department of Corrections. The defendant was paroled again at age 17.

While he was free, Esther was murdered.

No Remorse

“The defendant expressed no guilt for this offense or remorse for the victim, who was an 82 year old woman who posed no physical threat to him. The defendant’s history of senseless criminal acts of mortal violence toward others and lack of remorse for his victims indicates to this officer that the defendant has no predilection for rehabilitation.”

Neurological Impairment

On an intelligence test, the defendant scored in the borderline or mildly retarded range. Prost attributed some of his performance to “neurological impairment.” Other tests confirmed that and indicated a high probability of organic brain damage.

He was diagnosed as mildly mentally retarded.

The defendant’s verbal intelligence indicated that he does have capacity for making a “socially appropriate judgment.”

Given Natural Life

The appellate court noted that the defendant’s sentence was not unconstitutional under Miller because the defendant here was afforded a sentencing hearing where natural life imprisonment was not the only available sentence.

Defendant Pushing The Envelope

The defendant appealed.

Defendant was pushing the envelope and asking that the Illinois Supreme Court create a categorical ban on juvenile life sentences.

Procedurally, this is a denial of a successive postconviction that is being appealed.

Law

The United States Constitution prohibits “cruel and unusual punishments.” U.S. Const., amend. VIII.

Inherent in that prohibition is the concept of proportionality. See Graham, 560 U.S. at 59. Criminal punishment should be “graduated and proportioned to both the offender and the offense.” Davis, 2014 IL 115595, ¶ 18 (citing Miller, 567 U.S. at ___, 132 S. Ct. at 2463, and Roper, 543 U.S. at 560). When the offender is a juvenile and the offense is serious, there is a genuine risk of disproportionate punishment.

In Roper, Graham, and Miller, the United States Supreme Court addressed that risk and unmistakably instructed that youth matters in sentencing.

Roper

Roper held that the eighth amendment prohibited capital sentences for juveniles who commit murder. Roper, 543 U.S. at 578-79.

Graham

Graham held that the eighth amendment prohibited mandatory life sentences for juveniles who commit nonhomicide offenses. Graham, 560 U.S. at 82. Roper and Graham established that “children are constitutionally different from adults for purposes of sentencing” in three important ways:

First, juveniles are more immature and irresponsible than adults.

Second, juveniles are more vulnerable to negative influences and pressures from family and peers than adults.

Third, juveniles are more malleable than adults—their characters are less fixed and their malfeasance is less indicative of irretrievable depravity.

Those differences lessen juveniles’ moral culpability and enhance their prospects for reform.

Miller

Miller held that the eighth amendment prohibited mandatory life sentences for juveniles who commit murder. Miller, 567 U.S. at ___, 132 S. Ct. at 2475. Miller does not invalidate the penalty of natural life without parole for multiple murderers, only its mandatory imposition on juveniles. 

Montgomery

In Montgomery, the Court held that Miller applied retroactively.

Analysis

The defendant in this case did not receive a mandatory life sentence but rather a discretionary life sentence.

Thus, we initially must decide whether his Miller claim is even viable.

That is, we must decide whether Miller applies to discretionary life sentences.

A minor may still be sentenced to natural life imprisonment without parole so long as the sentence is at the trial court’s discretion rather than mandatory.

The Miller court specifically noted that:

“Although we do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”

The Court reiterated that its decision “mandates only that a sentencer follow a certain process—considering an offender’s youth and attendant characteristics—before imposing a particular penalty,” life imprisonment without the possibility of parole. Stated differently, a trial court must consider a juvenile’s “age and age-related characteristics and the nature of their crimes” as “mitigating circumstances.”

The greater weight of authority has concluded that Miller and Montgomery send an unequivocal message:

Life sentences, whether mandatory or discretionary, for juvenile defendants are disproportionate and violate the eighth amendment, unless the trial court considers youth and its attendant characteristics.

We agree with that conclusion and hold that Miller applies to discretionary sentences of life without parole for juvenile defendants.

What It Means To Apply Miller?

We must next decide what it means to apply Miller.

The court noted that, consideration of the Miller factors is consistent with section 5-4.5-105 of the Unified Code of Corrections, which now requires the trial court to consider factors taken from the Supreme Court’s list. See 730 ILCS 5/5-4.5-105 (West 2016).

Because Miller is retroactive, all juveniles, whether they were sentenced after the statutory amendment became effective on January 1, 2016, or before that, should receive the same treatment at sentencing.

The Test

A juvenile defendant may be sentenced to life imprisonment without parole, but only if the trial court determines that the defendant’s conduct showed irretrievable depravity, permanent incorrigibility, or irreparable corruption beyond the possibility of rehabilitation. The court may make that decision only after considering the defendant’s youth and its attendant characteristics. Those characteristics include, but are not limited to, the following factors:

(1) the juvenile defendant’s chronological age at the time of the offense and any evidence of his particular immaturity, impetuosity, and failure to appreciate risks and consequences;
(2) the juvenile defendant’s family and home environment;
(3) the juvenile defendant’s degree of participation in the homicide and any evidence of familial or peer pressures that may have affected him;
(4) the juvenile defendant’s incompetence, including his inability to deal with police officers or prosecutors and his incapacity to assist his own attorneys; and
(5) the juvenile defendant’s prospects for rehabilitation.

See Miller, 567 U.S. at ___, 132 S. Ct. at 2468.

In revisiting a juvenile defendant’s life without parole sentence, the only evidence that matters is evidence of the defendant’s youth and its attendant characteristics at the time of sentencing.

Whether such evidence exists depends upon the state of the record in each case.

Holding

The court was well aware of his age and his problems as they were covered adequately in the PSI.

The PSI and the psychological reports provided some insight into his mentality but did not depict him as immature, impetuous, or unaware of risks. The PSI included information about the defendant’s family. Although his father and his stepfather had died, he reportedly maintained a close relationship with his mother and siblings. Thus, the trial court had no evidence to consider on any of the statutory factors in mitigation, but some evidence related to the Miller factors.

The PSI alerted the trial court to the defendant’s susceptibility to peer pressure, as well as his low intelligence and possible brain damage from a head injury, but there was nothing presented at trial or sentencing to indicate that the defendant was incompetent and could not communicate with police officers or prosecutors or assist his own attorney.

The defendant’s sentence passes constitutional muster under Miller.

Finally, we note that amicus asks for a categorical ban on life sentences for juveniles. We refuse to adopt such a rule. Whether or not discretionary life sentences for juveniles are advisable is a question for legislators. Whether or not such sentences are constitutional is a question for judges, and the justices of the United States Supreme Court have so far declared that they may be, provided the trial court complies with Miller.

People v. Hoy

52 years for a 16 year old who reacted violently with a gun when he killed his buddy is not a defecato life sentence.

Facts

16-year-old defendant and his longtime friend, 17-year-old James Thomas, were in front of a three story building on Chicago’s west side.

A few days before, a friend of both boys had been shot in the neighborhood so defendant acquired a pistol that he had on him that day. As boys that age are known to do, defendant and James got into a heated verbal argument, which ordinarily would have resulted in hitting or pushing the other and both probably wrestling on the ground to the point of exhaustion, their heated passions drained away.

But for the fact that defendant had a gun, what ordinarily should have happened between these boys did not happen.

In this heated moment, with the immediate availability of a gun, defendant fatally shot James once in the stomach and twice more as James tried to crawl away. A witness heard defendant say,

“Say it again. Say it again. I’ll shoot the s**t out of you.”

James died from his injuries, and defendant is now serving a sentence of 52 years’ imprisonment for first degree murder.

Issue

Defendant contends that his sentence of 52 years’ imprisonment should be vacated and the case remanded for resentencing.

730 ILCS 5/5-4.5-105(a)

First, he argues that he should be resentenced in accordance with the provisions of section 5-4.5-105 of the Unified Code of Corrections (Code) (730 ILCS 5/5-4.5-105 (West 2016)), because the legislature enacted this provision while defendant’s appeal was pending.

Section 5-4.5-105 addresses additional factors the court shall consider in mitigation when sentencing a defendant who was under the age of 18 when he committed the offense. These factors include defendant’s “age, impetuosity, and level of maturity at the time of the offense”; whether defendant “was subjected to outside pressure, including peer pressure, familial pressure, or negative influences”; and defendant’s home environment, his rehabilitation potential, as well as the circumstances of the offense. 730 ILCS 5/5-4.5-105(a)(1)-(5).

Section 5-4.5-105(a) provides that “[o]n or after the effective date of this amendatory Act of the 99th General Assembly, when a person commits an offense and the person is under 18 years of age at the time of the commission of the offense,” the court “shall consider the following additional factors in mitigation in determining the appropriate sentence[.]” 730 ILCS 5/5-4.5-105(a).

The court in Wilson determined that the plain language of the provision clearly “demonstrates the legislature’s intent that the statute apply to offenses committed after the [statute’s] effective date” of January 1, 2016. Wilson, 2016 IL App (1st) 141500, ¶ 16.

Therefore, section 5-4.5-105 could not be applied retroactively to the defendant’s case.

De Facto Life Sentence

Defendant also argues that his sentence of 52 years’ imprisonment violates the eighth amendment to the United States Constitution (U.S. Const., amend. VIII) and the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11), because his sentence essentially is a sentence of “natural life” in prison and therefore “runs afoul of the constitutional principles” set forth in Miller.

Reyes

Then our supreme court in People v. Reyes, 2016 IL 119271, ¶ 9, applied the holding in Miller to a “mandatory term-of-years sentence that cannot be served in one lifetime.”

The juvenile defendant in Reyes, who was 16 years old when he committed the offense, received a mandatory minimum sentence of 20 years’ imprisonment for first degree murder, plus a mandatory 25-year firearm enhancement, and 26 years for each of his two attempted murder convictions consisting of the minimum 6-year sentence for attempted murder plus a 20-year mandatory firearm enhancement.

Pursuant to statute, the defendant was required to serve his sentences consecutively; therefore, he “was sentenced to a mandatory minimum aggregate sentence of 97 years’ imprisonment” and “required to serve a minimum of 89 years” before being eligible for release.

The court held that to sentence a juvenile defendant to a mandatory term “that is the functional equivalent of life without the possibility of parole,” without consideration of the mitigating factors of youth set forth in Miller, “constitutes cruel and unusual punishment in violation of the eighth amendment.”

Analysis

Defendant here, who was also 16 years old when he committed the offense, was sentenced to 52 years’ imprisonment which included a 25-year mandatory firearm enhancement.

The minimum sentence he could have received was 45 years’ imprisonment.

Although the trial court determined that a sentence above the minimum was required, it did not believe “that natural life is the appropriate sentence in this case.” Even if defendant served 100% of his sentence, he would be released at 68 years old.

Although defendant’s age upon release would fall toward the end of his lifespan, this sentence is survivable and thus cannot be considered “the functional equivalent of life without the possibility of parole.”

We find that defendant’s sentence complies with the requirements set forth for constitutionality in Miller, Montgomery, and Reyes.

Affirmed.

People v. Evans

45 actual years is not a de facto life sentence.

Facts

In 1996, then-17-year-old Angelo Evans was tried and convicted of attempted first degree murder and aggravated criminal sexual assault.

The State alleged that Evans had sexually assaulted a family friend, K.R., then tried to kill K.R. by stabbing her multiple times and setting her head on fire.

Sentencing

At sentencing, the trial court was presented with several reports detailing Evans’s tragic family history and mental health issues, and Evans’s counsel argued for leniency in sentencing.

The trial court, however, found that no mitigating factors applied, describing Evans’s conduct as “shockingly evil.”

The trial court sentenced Evans to an extended term of 60 years for the attempted murder and 30 years for the aggravated criminal sexual assault to run consecutively.

Issue

Perhaps inevitably, the next flood of cases to reach our appellate courts concerned what constitutes a “mandatory, de facto life-without-parole” sentence, as does Evans’s appeal.

Analysis

So far, neither the United States nor Illinois Supreme Courts has held that sentencing courts need to hear or consider the mitigating factors of youth if the sentence is less than death, mandatory life without parole, or mandatory “de facto” life without parole.

Evans is luckier; he committed his crimes under different sentencing statutes and is eligible for day-for-day good conduct credit against his sentence.

This sentencing scheme means that he could be released after serving only 45 years of his sentence, at age 62.

This alone takes Evans out of the Miller category, since he is not serving a sentence without the possibility of parole.

Prison Is Harsh

Evans acknowledges that he might not serve all 90 years but still argues that a 45-year sentence is de facto life because he is unlikely to survive it.

Prison life is undoubtedly harsh.

But Evans invites us into the weeds of actuarial tables, asking us to make a legal determination of his likely lifespan.

We are in a poor position to make this prediction and decline to do so.

It is one thing to say with some certainty, as the Reyes court did, that a defendant will not survive until release at age 105. It is quite another to overturn Evans’s sentence based on assumptions and speculation that he will not survive to age 62.

Holding

Evans’s potential 45-year sentence is not as long as other de facto life sentences. Since Evans is not serving a de facto life sentence, the new protections elucidated by Miller and its progeny do not apply to him.

See Also

• Episode 281 - Two Youthful Offenders Two Different Sentences
• Episode 235 - Illinois Supreme Court Recognizes De Facto Life Sentences for Juveniles as Unconstitutional

Episode 412 (Duration 37:05) 

What's it take to become an Illinois state judge? 

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In This Episode

"Always have integrity when you walk into the courtroom because the judge you're in front of may be one of the deciding votes in your campaign for associate judge." -- Scott J. Frankel

"If you're thinking of running for circuit court judge you need people, you need a committee, you can't do it by yourself." -- Tony Sasson

Scott J. Frankel

Scott J. Frankel is running for judge in the 11th Subcircuit of Cook County.

He is an Illinois attorney in federal and state court. He has experience in civil law, criminal law, state court, federal court, appeals, and has appeared before the Illinois Supreme Court.

In this 37 minute session, Scott J. Frankel, explains the process and procedure to become an Illinois state judge.

Tony Sasson

Tony Sasson is also an Illinois attorney and campaign manager for Scott J. Frankel.

• (312) 977-9050

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"Can't Miss" Moments:

✓ Interested in being a judge some day? You'll have to know the real differences between being an associate judge and circuit judge. (Go to 3:47), (Go to 29:15) & (Go to 30:22)

✓ There's an "application" for some judicial positions. The things you're doing today will effect what goes on that application tomorrow. What can you do now to position yourself for a strong judicial candidacy? (Go to 5:03) & (Go to 9:44)

✓ Winning the vote: Lawyers may have to run a different kind of "campaign". A campaign that seeks to woo other judges. (Go to 6:05)

✓ Where do the lawyer ratings ("not qualified", "qualified", and "highly qualified") come from? (Go to 7:22)

✓ Why you don't want to play dirty or dishonorably even with your less ethical adversaires. (Go to 9:44)

✓ What your colleagues and attorneys down in the trenches talk about when they're discussing future judges. (Go to 11:17)

✓ Thought a full circuit position is what you wanted? Just know that full circuit judges have to run a full electoral and political campaign with all the bells and whistles. (Go to 12:15)

✓ The differences between a sub-circuit election and a county wide judicial election. (Go to 13:07)

✓ BE CAREFUL: Judicial candidates running a full fledged electoral campaign for circuit judge can't run a traditional political campaign. You have to be careful you are following the special rules created for judicial candidates. (Go to 19:05) & (Go to 28:05)

 ✓ The truth about how much money it costs to run for judge. (19:57) & (Go to 26:12)

✓ "Young attorneys should be willing to talk to judges about their experiences on the bench and what route did they take to get the position. It doesn't matter what county you're in. There's always a certain amount of insight the judges can give you about the process in that county." -- Scott J. Frankel (Go to 31:35) 

Links & Resources

• Scott J. Frankel For Judge
• Frankel & Cohen
• Learn More About Scott J. Frankel
• The Judiciary  - Constitution of the State of Illinois
• Illinois Code of Judicial Conduct - Canon 7
• Illinois Board of Elections
• Illinois Board of Elections Judicial Guide
• Illinois Election Code

See Also

You may also want to check out...

• Episode 301 Retired Judge Allen Anderson: The View From The Bench
• Episode 256 Interview With Judge Steigman of the Fourth Appellate District

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People v. Jackson, 2017 IL App (3d) 150154 (September). Episode 411 (Duration 11:31)

Again, State charges under the wrong SORA provision.

Charges

The State charged the defendant with “Unlawful Failure to Register as a Sex Offender.”

The information alleged that: 

“defendant, a sex offender required to register every 90 days, knowingly failed to register in accordance with the provisions of the Sex Offender Registration Act with the chief of police of Galesburg, Illinois, within 90 days of his last registration on November 12, 2013, after having been convicted of Unlawful Failure to Register as a Sex Offender in Knox County Case 08 CF 402 in violation of 730 ILCS 150/3(b).”

Facts

The defendant admitted that he failed to register by February 10, 2014, because he believed he had a 10-day grace period.

Ultimately, the circuit court found the defendant guilty and sentenced the defendant to three years’ imprisonment.

Issue

On appeal, the defendant argues that his conviction is void because the State failed to charge him with an offense.

The defendant argues deficiencies in the charging instrument render his conviction void for lack of jurisdiction. The State concedes the information erroneously cited section 3 of the Act (730 ILCS 150/3(b)), while the factual allegations made in the information describe a violation of section 6 of the Act (730 ILCS 150/6).

In addition, the State concedes the information used the word “register” instead of “report” as defined in section 6 of the Act (730 ILCS 150/6).

However, the State argues that these deficiencies do not render the defendant’s conviction void.

Form Of Charge

Section 111-3 of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/111-3) requires that the charging instrument cite

the statutory provision alleged to have been violated.

However, “the mere reference in a charging instrument to an incorrect chapter or section of a statute is regarded as a formal rather than a substantive defect.” People v. McBrien, 144 Ill. App. 3d 489, 495 (1986).

Duty to Report. 730 ILCS 150/6

The language of the information made clear the defendant was being accused of a violation of section 6 of the Act.

Section 6 requires a sex offender to report to a law enforcement agency “no later than 90 days after the date of his or her last registration.”

730 ILCS 150/6.

The information alleged that the defendant

“failed to register in accordance with the provisions of the Sex Offender Registration Act with the chief of police of Galesburg, Illinois, within 90 days of his last registration on November 12, 2013 *** in violation of 730 ILCS 150/3(b).”

Duty To Register. 730 ILCS 150/3

Section 3 of the Act requires sex offenders to register

“within 3 days of beginning school, or establishing a residence, place of employment, or temporary domicile.” 

730 ILCS 150/3(b).

Timing Of The Challenge

Formal defects do not require reversal unless the defendant establishes prejudice from the defect.

Only where the defendant demonstrates prejudice will the mere fact that a criminal complaint contains an incorrect citation to the criminal statute be grounds for dismissal of the conviction.

It is well-settled that where a charging instrument is challenged in a pretrial motion, the charging instrument will be dismissed if it does not strictly comply with the requirements of section 111-3 of the Code. E.g., People v. Rowell, 229 Ill. 2d 82, 93 (2008).

It is equally well settled that where an indictment is challenged for the first time on appeal, a defendant must show prejudice in the preparation of his defense. People v. Davis, 217 Ill. 2d 472, 479 (2005).

In that context, an information will be deemed

“sufficient if it apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct.”

Analysis

In this case, the defendant is raising a challenge to the charging information for the first time on appeal.

He is therefore required to show resulting prejudice in the preparation of his defense.

The defendant, however, has put the full force of his argument on appeal behind the legal theory that his conviction is void and he is not obligated to show prejudice in the preparation of his defense. He makes no alternative argument that he actually did suffer prejudice.

In any event, the record would contradict any such argument.

Obvious It Was 150/6

Despite the erroneous citation and the mistaken use of the term “register” rather than “report,” it is clear from the facts described in the information that the defendant was being charged with a violation of section 6 rather than section 3.

No Prejudice

More importantly, while the defendant argues that the term “register” and “report” have different meanings under the Act, we fail to see how the mistaken use of these terms prejudiced the defendant in preparing his defense.

The defendant admitted that he knew he was required to appear at the police department every 90 days. He also admitted that he failed to appear at the police department before the 90-day period expired because he mistakenly believed he was entitled to a 10-day grace period.

In other words, the defendant’s entire defense revolved around whether he knowingly violated section 6 of the Act based on his mistaken belief.

The defendant fails to explain how his defense would have changed had the information used the term “report” rather than “register.”

Holding

Reversal of the defendant’s conviction, therefore, is unwarranted.

Although the defendant was not “perfectly” charged, he was “properly” charged.

JUSTICE McDADE, Specially Concurring.

I have two specific concerns with the current iteration of SORA pertinent to this appeal.

First, its reach is incredibly broad.

Specifically, the legislature has failed to include any provision to narrow the scope of its application by distinguishing between those offenders who are likely to reoffend and those who are not. In other words, critically absent from SORA is any mechanism by which a former offender can be exempted from its restrictions by showing that he or she is not a significant risk to reoffend.

Without such a mechanism, all offenders will be equally burdened, despite the fact that some pose little or no threat to children or others.

Second, the constant narrowing of the registration requirements in SORA make it nearly impossible, over the course of a lifetime (for some offenders), to maintain faithful compliance with the law.

As a consequence of the above restrictions, a released offender is severely impeded in his or her ability to find employment, decide where to live, have free access to public spaces and move freely throughout the state or country. In other words, these provisions make it nearly impossible for an offender to reintegrate normally into society after serving their prison term.

Even so, I am compelled to express my concern that an increasingly restrictive SORA has moved in a direction that is at odds with not only the basic foundational principles of our constitution:

...that all individuals, including those who have committed a crime and served their sentence, should be afforded the right to life, liberty, and the pursuit of happiness, but also with such basic rights of citizenship as equal access to the benefits and services supported by their taxes and the fair representation of their elected officials.

In sum, I believe the legislature has failed to equitably balance the various human interests impacted by SORA.

See Also

Episode 399 - The Old Insufficient Complaint Booby Trap Is Finally Dismantled

People v. Gray, 2017 IL 120958 (September). Episode 410 (Duration 8:33)

Although they had stopped dating for 20 years defendant was still in a "family or household member" of the victim.

Charges

Defendant and the victim, Tina Carthron, spent the evening together drinking.

She sustained knife wounds to her chest and back. Defendant was charged by information with two counts of attempted first degree murder (720 ILCS 5/8-4(a), 9-1(a)) and two counts of aggravated battery (720 ILCS 5/12-3.05(a)(5), (f)(1)).

Defendant was also charged with three counts of aggravated domestic battery, alleging great bodily harm (720 ILCS 5/12-3.3(a)), permanent disfigurement, and strangulation (720 ILCS 5/12-3.3(a-5)).

Facts

In the State’s case-in-chief, Carthron testified in pertinent part as follows.

Carthron was 51 years old. She was born in Chicago and had lived there her entire life. Carthron had known defendant for approximately 20 years. She began to spend time with defendant based on the friendship between their families. Fifteen years ago, they dated for approximately two years. They dated each other exclusively, and they slept over at their respective residences.

In early October 2011, Carthron saw defendant outside of his new apartment.

Several times thereafter she visited defendant at his apartment. On one visit, she brought some clothes and left them at defendant’s apartment when she went to work.

Carthron was not interested in rekindling their romantic relationship, but rather, they remained “just friends.”

The Incident

On November 1, 2011, defendant telephoned Carthron, and she went to his apartment.

It consisted of a single room, which included a kitchenette, and a bathroom. Carthron brought whiskey and beer, and she and defendant spent the evening drinking together. Carthron drank approximately a pint of whiskey and 40 ounces of beer.

During that evening, defendant’s girlfriend, Laura Moore, telephoned defendant. Carthron became upset, believing that it was disrespectful for defendant to talk to another woman in Carthron’s presence. After the call, Carthron and defendant argued, but they eventually listened to music, watched television, and had sex.

Defendant went to bed.

Carthron continued drinking.

Carthron testified that she “still was drunk” the next morning. At approximately 7:00 a.m., as she and defendant lay in bed, they argued about the telephone call from Moore. Defendant then climbed on top of Carthron, placed his hands on the front of her neck, and began to strangle her. She passed out. When Carthron regained consciousness, she saw defendant standing in the bathroom holding a knife.

Defendant told Carthron to leave because he had called the police.

"You Didn't Stab Me."

Carthron began to gather her clothes to get dressed.

As she grabbed her coat, Carthron saw that the left side of her chest was bleeding and said “oh no, you didn’t stab me.”

According to Carthron, defendant said in response: “Get out.”

Carthron testified: “He just kept saying get out. He had called the police on me.”

On cross-examination, Carthron testified that she did not remember defendant stabbing her. She also acknowledged that she was “kind of drunk” that morning and did not remember biting defendant. Carthron left defendant’s apartment dressed in only her jeans and a leather jacket, leaving behind her cell phone, eyeglasses, and underwear.

Carthron saw police officers outside of defendant’s apartment building. However, she did not approach them because she did not know what defendant had told them. Once the jacket was off, they discovered that Carthron had also been stabbed in the back. Suzette called 911, and Carthron was taken by ambulance to a hospital for treatment.

Sentence

The court sentenced defendant to concurrent five-year prison terms on the aggravated domestic battery convictions and a concurrent three-year prison term on the aggravated battery conviction.

Issue

On appeal, defendant challenged the sufficiency of the evidence against him, and claimed that section 112A-3(3) of the Code of Criminal Procedure of 1963 (Code of Criminal Procedure) (725 ILCS 5/112A-3(3)), which defined family or household members, is unconstitutional as applied to him and his relationship to Carthron.

The appellate court held that, because the relationship between defendant and Carthron was no longer under the effect of the prior romantic intimacy that had existed 15 years earlier, the definition of household or family member is unconstitutional as applied to defendant. See Episode 190.

As -Applied Challenge

In an as-applied challenge, the challenging party’s particular facts and circumstances become relevant.

“An as-applied challenge requires a showing that the statute violates the constitution as it applies to the facts and circumstances of the challenging party.”

When we are confronted with an as-applied challenge, we examine the facts of the case before us exclusively, and not any set of hypothetical facts under which the statute might be unconstitutional. While a successful facial attack voids the statute in its entirety and in all applications, a successful as-applied challenge enjoins enforcement of the statute only against the challenging party.

Rationale Basis Test

In the case at bar, defendant does not claim that the statutory definition of a family or household member deprives him of a fundamental constitutional right. When a challenged statute does not affect a fundamental constitutional right, the appropriate test for determining its constitutionality is the rational basis test.

A statute will be upheld under the rational basis test if the statute bears a reasonable relationship to the public interest to be served and the means adopted are a reasonable method of achieving the desired objective. In other words, a statute will be upheld if it bears a rational relationship to a legitimate legislative purpose and is neither arbitrary nor discriminatory. 

While not “toothless,” the rational basis test is highly deferential.

A court is not concerned with the wisdom of the statute or with whether it is the best means to achieve the legislature’s desired result. “The judgments made by the legislature in crafting a statute are not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.” Arangold Corp. v. Zehnder, 204 Ill. 2d 142, 147 (2003).

If there is any conceivable basis for determining that the statute is rationally related to a legitimate state interest, the law must be upheld. In applying the rational basis test, a court must first ascertain the purpose of the statute to determine whether the statute’s provisions reasonably implement that purpose.

Family Or Household Member

Further, section 12-0.1 of the Criminal Code provides, in relevant part, the following definition:

“Family or household members’ include *** persons who have or have had a dating or engagement relationship. *** For purposes of this Article, neither a casual acquaintanceship nor ordinary fraternization between 2 individuals in business or social contexts shall be deemed to constitute a dating relationship.”

720 ILCS 5/12-0.1.

By its plain language, “[t]he statute is very clear that there is no time limit.”

Unable to identify “any objective that would be furthered by treating Carthron as defendant’s family or household member,” the appellate court concluded that treating Carthron as defendant’s family or household member was not reasonably related to a public interest. 2016 IL App (1st) 134012, ¶ 47.

Analysis

In the case at bar, the appellate court observed that “the State has an interest in preventing abuse between persons who share an intimate relationship.”

The legislature’s obvious concern in enacting the domestic battery statute was in curbing the serious problem of domestic violence.

The legislature could rationally have believed that persons who have had a dating relationship are more likely to batter a former partner even after their dating relationship ends. The absence of a time limit on former dating relationships recognizes that such relationships may render persons more vulnerable to abuse by former romantic partners.

Indeed, not only is this rational basis conceivable, it is generally recognized. As one scholar has explained:

“One reason violence in a relationship differs from random violence between strangers is that the perpetrator takes advantage of the relationship to gain access to the victim. Relationships built on close personal interactions inevitably involve parties gaining information about each other. *** Such knowledge enables the accessibility that makes domestic violence most harmful, as it increases the victim’s exposure and vulnerability to the abuser. Therefore, accessibility and familiarity between abuser and victim can make violence between the two particularly problematic. *** Also, when the relationship comes to an end, the abuser may still exploit the relationship, continuing to access the victim, carrying on the abusive and controlling behavior.”

In other words, accessibility and familiarity enable domestic violence to be ongoing and to effectively intimidate and control the victim.

They Were Close

Defendant and Carthron had known each other for 20 years, and their families were neighbors.

• Even though their two-year dating relationship had ended 15 years earlier, they continued to see each other, and their relationship remained close.
• Carthron left her clothes at defendant’s apartment and sometimes spent the night with defendant.
• The night before the stabbing, defendant and Carthron spent the evening drinking and talking.
• Indeed, the argument that led to the stabbing began when defendant accepted a telephone call from another woman in Carthron’s presence, which she considered to be “disrespectful.”
• That night, defendant and Carthron spent the night together.
• Further, defendant referred to Carthron as his “girlfriend” to the 911 operator.
• The record demonstrates a level of accessibility and familiarity between Carthron and defendant such that it is reasonable to place Carthron within the protection of the aggravated domestic battery statute.

Applying this generally accepted rational basis to the circumstances of the case at bar, it is reasonable to regard defendant and Carthron as family or household members for purposes of the domestic battery statute.

Holding

 We conclude that the legislature’s decision not to include a time limit on former dating relationships, when applied to the facts of the instant case, was reasonable and rationally related to the statutory purpose of curbing domestic violence.

Accordingly, we hold that the definition of family or household members in section 12-0.1 of the Criminal Code did not violate substantive due process as applied to defendant. The judgment of the appellate court is reversed, and the cause is remanded to the appellate court for further proceedings.

See Also

Episode 190 - If You Haven’t Dated For Over 15 Years Are You Still A “Household Member”?

People v. Brindley, 2017 IL App (5th) 160189 (August). Episode 409 (Duration 10:51)

The State's Attorney may authorize an overhear in drug investigations.

Charges

Defendant was charged with one count of unlawful delivery of a controlled substance within 1000 feet of real property used primarily for religious worship (720 ILCS 570/407(b)(2)) and one count of criminal drug conspiracy (720 ILCS 570/405.1).

Facts

In October 2014, Officer Rick Morris was an investigator with the Illinois State Police and was assigned to the Southern Illinois Drug Task Force in Hardin County, Illinois.

He was working with a confidential informant in an ongoing narcotics investigation.

On October 22, 2014, Morris learned from the confidential informant that the informant could purchase prescription medication from the defendant’s wife, Rebecca Brindley.

Morris arranged for the confidential informant to make a controlled drug purchase from Brindley.

Controlled Buy

Morris first searched the informant for any contraband and then supplied the informant with money to make the purchase.

Morris maintained surveillance of the informant as the informant walked to the Brindley residence, went inside, and returned to Morris with clonazepam tablets. The informant told Morris that Brindley was not home and that the defendant sold the tablets.

This was the second controlled narcotics purchase with the same informant.

Third Is Recorded

On October 28, 2014, the confidential informant told Morris that he could again purchase more prescription medications from the Brindleys the next day.

After receiving the authorization from the State’s Attorney, this time utilizing a hidden video and audio recording device to record the defendant during the transaction.

Morris did not obtain judicial approval to make the recording.

Motion To Suppress Defendant Says

The defendant filed a motion to suppress the recording pursuant to section 108A- 9(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/108A-9(a)), which provides for the suppression of judicially authorized recorded conversations when

(1) the conversation was unlawfully overheard and recorded,
(2) the order of authorization or approval under which the device was used or a recording was made was improperly granted, or
(3) the recording or interception was not made in conformity with the order of authorization.

The defendant alleged that the conversations during the alleged drug transaction were unlawfully overheard and recorded because the State did not obtain judicial authorization for the recording pursuant section 108A-3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/108A-3), which sets out a procedure for obtaining judicial approval of law enforcement use of an eavesdropping device.

Prosecution Says

The State acknowledged that it did not obtain judicial approval for the overhear, but argued that section 14-3(q)(1) of the Criminal Code (720 ILCS 5/14-3(q)(1)) granted State’s Attorneys the power to authorize overhears during police investigations of drug offenses. It maintained that all of the requirements of section 14- 3(q)(1) had been met; therefore, the recording was admissible.

The circuit court agreed with the defendant and granted his motion to suppress the recording.

State Appeals

The issue before us is a legal one:

whether a recorded overhear that was approved by a State’s Attorney pursuant to section 14-3(q)(1) of the Criminal Code (720 ILCS 5/14-3(q)(1)) is admissible in the prosecution of a drug offense.

Eavesdropping Statute

Article 14 of the Criminal Code defines the criminal offense of eavesdropping as well as its exemptions. 720 ILCS 5/14-1 et seq. Under section 14-2(a) of the Criminal Code, a person commits eavesdropping when he uses an eavesdropping device, in a surreptitious manner, for purpose of overhearing or recording a private conversation unless he does so with the consent of all of the parties to the private conversation. 720 ILCS 5/14-2(a).

Section 14-3 of the Criminal Code defines “activities [that] shall be exempt from the provisions of [Article 14 of the Criminal Code].” 720 ILCS 5/14-3.

At the time of the recording in the present case, section 14-3(q)(1) provided the following exemption to eavesdropping:

“With prior request to and verbal approval of the State’s Attorney of the county in which the conversation is anticipated to occur, recording or listening with the aid of an eavesdropping device to a conversation in which a law enforcement officer, or any person acting at the direction of a law enforcement officer, is a party to the conversation and has consented to the conversation being intercepted or recorded in the course of an investigation of a drug offense.”

720 ILCS 5/14-3(q)(1).

Section 14-3(q)(1) authorized the State’s Attorney to grant approval for the overhear “only after determining that reasonable cause exists to believe that a drug offense will be committed by a specified individual or individuals within a designated period of time.”

Today, 720 ILCS 5/14-3(q)(7) has broadened this provision to includes investigation for many more felonies.

In section 14-3(q)(4) the legislature clearly and unambiguously stated that overhears obtained in compliance with section 14-3(q) are admissible in prosecutions for drug offenses.

Specifically, at the time of the recording at issue here, section 14-3(q)(4) stated in relevant part:

“Admissibility of evidence.

No part of the contents of any wire, electronic, or oral communication that has been recorded or intercepted as a result of this exception may be received in evidence in any trial, hearing, or other proceeding in or before any court *** other than in a prosecution of: 13 (A) a drug offense[.]”  720 ILCS 5/14-3(q)(4).

The statute defined a “drug offense” to include “a felony violation of *** the Illinois Controlled Substances Act,” which includes the charges the State brought against the defendant in the present case. 720 ILCS 5/14-3(q)(7).

Sunset Clause

Section 14-3(q) also contained a sunset clause which stated that section 14-3(q) was “inoperative on and after January 1, 2015,” but that “[n]o conversations intercepted pursuant to *** subsection (q), while operative, shall be inadmissible in a court of law by virtue of the inoperability” of the subsection on January 1, 2015. 720 ILCS 5/14-3(q)(8).

What About 108A Of The Code Of Criminal Procedure?

Article 108A of the Code of Criminal Procedure concerns judicial supervision of the use of eavesdropping devices. 725 ILCS 5/108A-1 to 108A-11.

Section 108A-1 states that a State’s Attorney may apply to a circuit court judge for authority to use an eavesdropping device by a law enforcement officer where any one party to a conversation to be monitored has consented to such monitoring. 725 ILCS 5/108A-1. 

Article 108A includes, among other things, the procedures for obtaining judicial approval to use an eavesdropping device, grounds upon which a judge may grant approval, the contents of any order granting the approval, requirements for retaining any recordings, and notice to the parties overheard. Under the clear and unambiguous language of the two statutes, however, they are each separate and alternative methods for law enforcement to use eavesdropping devices under different circumstances.

Each statute contains its own requirements, procedures, and limitations, including specific language discussing the admission of recordings obtained under each respective statutory provision.

Analysis

On appeal, the defendant does not argue that the State failed to comply with any of the requirements of section 14-3(q).

In the present case, Officer Morris obtained approval for the overhear recording under section 14-3(q) of the Criminal Code, not article 108A of the Code of Criminal Procedure. The statutory language of section 14-3(q) of the Criminal Code controls the admissibility of the recording, not article 108A of the Code of Criminal Procedure. 

Therefore, under the clear and unambiguous terms of section 14-3(q)(4) as it was written by the legislature at the time of the recording at issue, the recording is admissible in the State’s prosecution of the defendant for the charged drug offenses. This is the clear intent of the legislature in enacting the then-existing language of section 14-3(q).

 The legislature intended for section 14-3(q) to be a procedure for law enforcement officers to obtain recorded evidence admissible in felony “drug offense” prosecutions upon the authorization of State’s Attorneys.

The Differences

Section 14-3(q) allowed the State’s Attorney to authorize the use of an eavesdropping device for an overhear for only a limited period of time, 24 hours, and only for a limited type of a criminal investigation, felony drug offense (now includes more offenses).

This language did not contradict the language of article 108A, which authorizes the use of eavesdropping devices

• For any felony under Illinois law) 
• For longer time periods (up to 30 days) and
• Requires both prosecutorial and judicial approval.

725 ILCS 5/108A-1 ; 725 ILCS 5/108A-5(b).

Each statute serves a different purpose, applies under different circumstances, and has different procedures and limitations.

The legislature intended to give law enforcement officers a streamlined method for obtaining overhear authorization in limited circumstances during the investigation of certain offenses.

Holding

In the present case the clear and unambiguous language of section 14-3(q)(1) of the Criminal Code, provided that recordings obtained in compliance with the subsection are admissible in the prosecution of drug offenses. Therefore, in the present case, the circuit court improperly suppressed the recording, and we must reverse and remand for further proceedings.

Reversed and remanded.