Kane County Nuggets

People v. McClenton, 2017 IL App (3d) 160387 (September). Episode 408 (Duration 6:55)

Judge can't dismiss SORA charges or order ISP to remove a person from the sex offender registry.

Defendant registered a change of address with the Joliet Police Department, listing his address as 614 Madison Street, Joliet, Illinois. Defendant registered at that same address again on April 30, 2013, July 30, 2013, October 30, 2013, and January 30, 2014. Each time defendant registered in 2013 and 2014, he signed and acknowledged the registration requirements that he must notify the Joliet Police Department within three days of a change of address and that he could be charged with a felony for providing false information.

On February 15, 2014, law enforcement conducted a routine sex offender registration check at 614 Madison Street, the last registered address defendant provided on January 30, 2014, and discovered that defendant no longer resided there. The resident of that address stated that he lived there with his wife and children. Further, the resident stated that although defendant did not live there, he allowed defendant to use the address as a mailing address. The resident stated that defendant did not keep any personal belongings at the address and that since October 30, 2013, defendant had stayed at the house three times and approximately 10 times in total.

Subsequently, the police spoke to defendant, who stated that he was living with his girlfriend in Chicago half of the time and with the resident of the Joliet address, located at 614 Madison Street, the other half of the time.

The defendant also stated that he periodically removed his belongings from the Joliet address and moved his belongings elsewhere. However, defendant still believed he had some items at 614 Madison Street in Joliet.

The judge granted defendant’s motion to dismiss his charges.

At the hearing, the trial judge recognized that according to the statute in effect in 1997, when a nonparent of a minor victim was convicted of the offense of unlawful restraint, these circumstances required the person convicted of unlawful restraint to register as a sex offender.

However, the judge noted that following the 2006 amendments to SORA, any person convicted of unlawful restraint would not be required to register as a sex offender unless the sentencing judge made an express factual finding, based on the evidence, that the offense of unlawful restraint was “sexually motivated.”

During the 2016 motion hearing, the judge remarked,

“That hardly seems fair, does it?...Well, if it was 1997, I would not be able to find based on what I have here that it was sexually motivated. It was the sole count of the Indictment, unlawful restraint. So if the law is what it is today that finding wouldn’t have been made based upon what I have here. So he wouldn’t have been required to register as a sex offender. He was 17. He gets all the detriments of the new law, but he gets none of the benefits. I am gonna grant your motion.”

Then the judge signed an order directing the state police to remove Defendant from the sex offender registry.

The trial court granted defendant’s motion to dismiss the indictment because, in part, the trial judge did not make a finding that the unlawful restraint “was sexually motivated as defined in Section 10 of the Sex Offender Evaluation and Treatment Act.”

At the time of defendant’s 1997 conviction for unlawful restraint, section 2(B)(1.5) of SORA (730 ILCS 150/2(B)(1.5)) defined “sex offense” as a felony offense of unlawful restraint “when the victim is a person under 18 years of age, the defendant is not a parent of the victim, and the offense was committed on or after January 1, 1996.”

According to the statutory scheme in 1997, following defendant’s guilty plea to the offense of unlawful restraint in Will County, defendant was statutorily required to register as a sex offender for a period of 10 years after his 1997 conviction. See 730 ILCS 150/3, 7.

In addition, defendant was convicted of a violation of SORA in 2001. This 2001 conviction occurred after section 7 of SORA was amended to add a provision requiring the director of the Illinois State Police to administratively extend a sex offender’s registration period by an additional 10-year time period for any sex offender who failed to comply with the requirements of SORA.

Both parties agree that when defendant was charged with failing to register as a sex offender in this case in 2014, section 2(B)(1.5) of SORA defined “unlawful restraint” as a sex offense only

“when the victim is a person under 18 years of age, the defendant is not a parent of the victim, the offense was sexually motivated as defined in Section 10 of the Sex Offender Evaluation and Treatment Act, and the offense was committed on or after January 1, 1996.”

730 ILCS 150/2(B)(1.5).

After the 2006 amendment to SORA, a person convicted of unlawful restraint is not considered a sex offender for the purpose of SORA unless the sentencing judge made a finding that the offense was sexually motivated.

Applying the principles of due process, the trial court dismissed the indictment because the definition of sex offender changed from 1997 to 2006.

However, existing case law does not support the trial court’s decision to dismiss the indictment on this basis.

The Illinois Supreme Court has addressed this exact issue in People v. Johnson, 225 Ill. 2d 573 (2007). However, the Johnson court held that even though amended section 2(B)(1.5) applies retroactively, such retroactivity does not automatically remove defendant from the sex offender registry.

The court explained that “the Act is not self-executing” and “does not provide for a fresh judicial determination of whether an offense that placed a person on the sex offender registry before June 27, 2006, was sexually motivated.”

Thus, our supreme court held section 86 of the Violent Offender Against Youth Registration Act provided no relief to Johnson.

The supreme court concluded that the defendant’s only recourse was the transfer provision contained in section 11 of the Violent Offender Against Youth Registration Act. Pub. Act 94-945 (eff. June 27, 2006) (adding 730 ILCS 154/11).

Yet, the court recognized section 11 of the Violent Offender Against Youth Registration Act gives the State’s Attorney’s Office in the county in which the offender was convicted the sole discretion to recommend the removal of a convicted offender’s name from the sex offender registry in order to transfer the convicted offender’s name to the newly enacted child murderer and violent offender against youth registry.

In short, our supreme court concluded that under similar circumstances to those present in the case at bar, Johnson’s name must remain on the sex offender registry “because Public Act 94-945 offer[ed] him no way off of it.”

Because defendant fit SORA’s definition of a sex offender in 1997, his name must remain on the sex offender registry until he completes the original 10-year term for registration or any other extensions of that original term arising from his 2001 conviction, which preceded the 2006 amendment to SORA.

Further, we must state the obvious.

Namely, we emphasize that the State has the obligation to prove that defendant was continually subject to the registration requirements of SORA until the time of the charged offense in 2014.

However, for the reasons discussed below, we hold the trial court erroneously and prematurely evaluated the State’s ability to establish defendant was required to register as a sex offender in 2014, a necessary element of the indicted offense.

The reviewing court said both provisions of the singular written order dismissing the indictment and removing defendant from the sexual offender registry must be reversed.

In re B.G., 2017 IL App (3d) 170144 (July). Episode 407 (Duration 5:24)

Defendant's right to petition to end his sex offender registration was not terminated by his new offense.

Defendant originally was adjudicated delinquent for a sexual crime (an offense that would have been charged as a Class 1 felony if B.G. was an adult).

As an adult he was charged and convicted of failure to register as a sex offender.

Later, he tried to file a motion to end his registration requirement but the motion was dismissed.

The issue here is at what point in time can an individual, who has been subject to additional registration requirements under section 7 of the Act, file a petition to terminate sex offender registration, under section 3-5 of the Act?

At the time of the adjudication 3-5 did not exist, but it applies retroactively (730 ILCS 150/3-5(h)).

Section 3-5 specifies the rights and obligations of juvenile delinquents who are subject to the Act. 730 ILCS 150/3-5. Section 3-5 is intended “to protect the rights of juvenile delinquents, who have a greater likelihood of rehabilitation, by allowing them the opportunity to petition the court to remove them from the sex offender registry.” 730 ILCS 150/3-5(c).

Subsection 3-5(c) states:

“For a minor adjudicated delinquent for an offense which, if charged as an adult, would be a felony, no less than 5 years after registration ordered pursuant to subsection (a) of this Section, the minor may petition for the termination of the term of registration.”

At the time of his 2016 petition, B.G. had satisfied each of the subsection 3-5(c) requirements.

Specifically, the original adjudication statutorily classified B.G. as a “sex offender” as defined in subsection 2(A)(5). 730 ILCS 150/2(A)(5), 3-5(a). B.G. was originally required to register as a sex offender for a 10-year period. See 730 ILCS 150/2, 3, and 7.

Thus, under subsection 3-5(c), B.G. was eligible to petition for termination in 2009. 730 ILCS 150/3-5(c).

While B.G. did not seek termination at that time, he was convicted in 2013 of failing to register as a sex offender (730 ILCS 150/10(a)).

Section 7 states:

“The Director of State Police, consistent with administrative rules, shall extend for 10 years the registration period of any sex offender, as defined in Section 2 of this Act, who fails to comply with the provisions of this Article. The registration period for any sex offender who fails to comply with any provision of the Act shall extend the period of registration by 10 years beginning from the first date of registration after the violation.”

 730 ILCS 150/7.

By its plain language, section 7 does not create a new registration period but extends the underlying registration term by 10 years.

Specifically, section 7 empowers the Director of State Police to “extend” the registration period. It does not authorize the director to order a new registration period.

The court said this plain language to means that a juvenile registrant may file a section 3-5 petition to terminate registration five years or more after the original order was entered under subsection 3-5(a), even if the registration period was extended under section 7.

This interpretation of the statute is consistent with the legislature’s intent “to protect the rights of juvenile delinquents, who have a greater likelihood of rehabilitation.”

At the time B.G. filed his petition, he had been subject to registration for more than 12 years due to the 2004 registration order (730 ILCS 150/3) and the 2013 extension (730 ILCS 150/7).

Because more than five years elapsed from the 2004 order, B.G. had the right, under section 3-5(c), to file a petition to terminate registration in 2016. 730 ILCS 150/3-5(c).

Therefore, the court erred in dismissing B.G.’s petition. 

People v. Jones, 2017 IL App (1st) 143718 (July). Episode 406 (Duration 8:56)

This SORA conviction is reversed because the state failed to prove defendant had a duty to register.

Defendant was arrested on a warrant and tells police he was homeless and unaware that he was required to register weekly.

Defendant also indicated to he was not up to date with his registration.

Defendant first registered in 2012 and reported being homeless. That’s when they told him he had to register weekly. He never registered again.

SORA was designed to aid law enforcement agencies in monitoring the whereabouts of sexual offenders by allowing “ready access to crucial information” about their residency and movements.

The plain language of SORA makes clear that the duty to report as a sex offender follows from the duty to register as a sex offender:

If one is not required to register as a sex offender, then one does not have a duty to report. See 730 ILCS 150/10.

Defendant’s original conviction was for attempt rape entered in 1979.

Section 7 of SORA states that sex offenders who have not been adjudicated to be sexually dangerous, and who are not also labeled sexual predators, are required to register for a period of 10 years after conviction or adjudication,

“if not confined to a penal institution, hospital or any other institution or facility, and if confined, for a period of 10 years after parole, discharge or release from any such facility.”

730 ILCS 150/7.

A person who is convicted of attempt criminal sexual assault after July 1, 1999, is labeled a “sex offender” as well as a “sexual predator.” 730 ILCS 150/2(E)(1).

As defendant was convicted of attempt rape in 1979, he is labeled only as a “sex offender” and, thus, only had a ten year registration requirement. 730 ILCS 150/2(A)(1)(a), (B)(1).

Sexual predators, as well as offenders who have been adjudicated as “sexually dangerous” or “sexually violent” are required to register for life. 730 ILCS 150/7.

Defendant was charged with one count of violation of section 6 of SORA (730 ILCS 150/6 ) in that,

“having been previously convicted of attempt criminal sexual assault under case No. 78-5878, he lacked a fixed residence and failed to report weekly with the Robbins police department.”

Section 6 imposes on those required to register a duty to report periodically to the law enforcement agency with whom they last registered.

“Any person who lacks a fixed residence” is required to report weekly. “In order to sustain a conviction under section 6 of the Act, the State must generally prove that

(1) defendant was subject to the reporting requirements under the Act, and
(2) defendant knowingly failed to report in person at the requisite reporting agency.” 

See 730 ILCS 150/6.

Defendant’s point is that the State did not prove that he was still required to register the day he was arrested. That day was long after the 10 years period expired on September 4, 1989.

The State says the 10-year registration period extended beyond September 4, 1989 and encompassed the time period between July 5, 2012, and defendant’s arrest on January 2, 2013, because the period was tolled by defendant’s continuous confinement following his 1979 conviction.

Indeed, Defendant was convicted of murder and, on January 21, 1981, was sentenced to 21 years’ imprisonment. Subsequently, defendant was convicted of a violation of probation in the 1979 attempt rape case and sentenced to 4 years’ imprisonment. While imprisoned, defendant was twice convicted of aggravated battery; on November 9, 1995, he was sentenced to 8 years’ imprisonment, and on June 11, 1999, he was sentenced to 5 years’ imprisonment. He was ultimately released from Department of Corrections custody on October 23, 2003.

This information arguably could have been used to prove that defendant still had a duty to register and report on July 5, 2012, given the fact that a sex offender’s duty to register is tolled by confinement.

However, The stated did not admit any of defendant’s criminal history which would have established that he was in prison after 1979 and his registration period was tolled.

A challenge to the sufficiency of the evidence is not a question of what the State could have proved at trial; it is a question of what the State actually proved at trial. Here, the State failed to provide any information regarding when or if defendant’s registration period was tolled due to reconfinement.

Officer Walker testified that she registered defendant on June 29, 2012, and had done so in the past but provided no explanation as to why defendant’s underlying felony, listed on his SORA form as a conviction for attempt rape on February 16, 1981, required him to register on July 5, 2012.

Even viewing the evidence in the light most favorable to the State, we find that no rational trier of fact could have found that defendant was still subject to the reporting requirements of SORA.

Where a sex offender’s duty to register has been tolled by imprisonment or extended by a subsequent conviction, the State should provide evidence of such at trial.

It failed to do so.

The court said the evidence adduced at trial was insufficient to prove beyond a reasonable doubt that defendant was still subject to the reporting requirements of SORA nearly 33 years after his underlying conviction for attempt rape from 1979.

Reversed.

Episode 321 - SORA is One Big Bloody Mess Says Illinois Supreme Court - People v. Pearse, 2017 IL 121072 (March)

In re Tyreke H., 2017 IL App (1st) 170406 (September). Episode 402 (Duration 10:10)

Kid on a bike is stopped because he's a witness to a murder, then they see a gun in his pocket.

The State filed a petition for adjudication of wardship, charging Respondent with two counts of aggravated unlawful use of a weapon (AUUW) and one count of unlawful possession of firearms (UPF).

Plain clothes officers driving in an umarked car were looking for the the minor respondent because he was wanted for questionining in a homicide.

The officers saw an individual they believed to be Respondent riding a bicycle.

Both Respondent and the officers were traveling eastbound. The officers drove past Respondent, visually confirmed his identity, and stopped the car just in front of Respondent, just east of him, so that he would ride directly to them.

Police notice a bulge in Respondent’s right front jeans pocket.

They get his name and Respondent cooperated, and made no furtive movements either before or during the stop. Officer Ludwich testified that, after they confirmed that Respondent was Tyreke H., it was Officer Ludwich’s intention to ask Respondent some questions and ask whether he was willing to go down to the station. Officer Ludwich came around the rear of the car and approached Respondent from behind. When he was about four feet away, he saw the bulge in Respondent’s pocket.

He testified that this bulge appeared “to be basically a handgun in [Respondent’s] right front pants pocket.” Officer Ludwich also stated that “[i]t was a silhouette of a handgun in a front jeans pocket.”

Officer Ludwich had recovered a handgun “hundreds” of times during his 23-year career with the Chicago police department. And, in his opinion, the bulge in Respondent’s pocket was “different than what a typical wallet or set of keys would look like.”

Before conducting a protective pat down of Respondent, Officer Ludwich tapped Respondent’s right pant pocket to confirm, for officer safety, whether it was a firearm. Officer Ludwich described what he felt as a “hard metallic nonyielding touch.”

Based on what he felt when he tapped Respondent’s right front pants pocket, Officer Ludwich “believed” and “knew” it was a gun in Respondent’s pocket.

He said, “What’s this?”

Respondent replied, “It’s a gun. I need it for protection.”

Officer Ludwich performed a protective pat down and recovered a .22 caliber AMT semiautomatic handgun with six live rounds, five in the magazine and one in the chamber.

Officer Ludwich testified that the gun was approximately seven inches long. The weapon was inventoried, and Respondent was arrested.

Respondent raises two issues regarding his encounter with the police officers.

He says he was unreasonably seized in violation of the fourth amendment, and that he was unreasonably searched in violation of the fourth amendment.

Respondent says that the police seized him when they blocked his path, forcing him to stop his bicycle and answer questions, and that they did so without any reasonable, articulable suspicion that Respondent had committed a crime.

The Illinois Supreme Court has stated that “the absence of Mendenhall factors, while not necessarily conclusive, is highly instructive.” Luedemann, 222 Ill. 2d at 554.

The United States Supreme Court has identified the following four factors that indicate a seizure:

(1) the threatening presence of several officers,
(2) the display of a weapon by an officer,
(3) some physical touching of the person, or
(4) using language or tone of voice compelling the individual to comply with the officer’s requests. United States v. Mendenhall, 446 U.S. 544, 554 (1980); see also Almond, 2015 IL 113817, ¶ 57.

“If those factors are absent, that means that only one or two officers approached the defendant, they displayed no weapons, they did not touch the defendant, and they did not use any language or tone of voice indicating that compliance with their requests was compelled.” Luedemann, 222 Ill. 2d at 554.

“Obviously, a seizure is much less likely to be found when officers approach a person in such an inoffensive manner.”

But the Mendenhall factors are not exhaustive, and a seizure may be found on the basis of other coercive police conduct similar to the Mendenhall factors.

A reasonable, innocent person, riding a bike along a public roadway, seeing a vehicle stop “just in front of him” and positioned in his path of travel such that he “would ride directly to” that car, and then seeing two officers wearing badges on their vests quickly emerge from the vehicle and face him, could only come to one conclusion:

“that the officer[s] wanted no further movement and expected submission.”

The only conclusion a reasonable, innocent person could draw from the officers’ actions was that they were demanding to speak with him then and there. This was not a low-key approach on a sidewalk for a consensual chat; Respondent’s travel by bicycle was halted in the middle of the road by a vehicle that cut off his path of travel, with two officers immediately emerging from that car to address him.

We acknowledge the general rule that the police do not seize citizens when they approach them in public to ask a question.

But there is a difference between approaching a pedestrian on the sidewalk and stopping a bicyclist in mid-travel down the street, by positioning a police vehicle directly in front of the bike’s forward path and immediately leaving the car to speak with the oncoming bicyclist.

This was kind of like stopping a car in traffic.

An encounter between a police officer and a civilian ‘is a seizure only if the officer adds to those inherent pressures by engaging in conduct significantly beyond that accepted in social intercourse. This action was an unquestionable show of police authority above and beyond ordinary social intercourse, and it would be perceived as such by any reasonable, innocent p

Our analysis need not rise or fall on whether Respondent’s path was completely, mostly, or partially obstructed.

The reason why the officer stopped the citizen is the next question.

Did the officer have justification to seize the citizen? 

The Constitution does not forbid seizures per se, only unreasonable seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6.

In the investigatory context, Terry is a narrow exception to the general rule that a citizen may not be detained without probable cause.

That narrow exception typically requires a reasonable, articulable suspicion that the person being detained is involved in criminal activity. See Terry, 392 U.S. at 26-27.

But the U.S. Supreme Court has unanimously held that suspicionless detentions of citizens as potential witnesses to a crime, even if they are seizures, are not per se unconstitutional, but rather are subject to a reasonableness test. Illinois v. Lidster, 540 U.S. 419, 426 (2004).

We believe that Lidster applies here as well.

The Supreme Court gave several reasons for applying a reasonableness test to suspicionless police checkpoints, rather than a per se rule of unconstitutionality, all of which apply here. See DUI Checkpoints, All Your Questions Answered and More!

First, if “[t]he Fourth Amendment does not treat a motorist’s car as his castle” (Lidster, 540 U.S at 424), it most certainly does not treat a person’s bicycle as such.

Second, the Court’s rationale that “the law ordinarily permits police to seek the voluntary cooperation of members of the public in the investigation of a crime” (id. at 425) is no less applicable to bicyclists than it is to motorists.

Finally, the Court noted that information seeking highway stops are “less likely to provoke anxiety or *** prove intrusive,” “are likely brief,” and are not likely to elicit self-incriminating information.

We acknowledge that being stopped on a bicycle is more confrontational than being one of many drivers stopped at a roadside checkpoint.

But given that the ultimate goal of the officers is to seek information, not to investigate the bicyclist for commission of a crime, the likelihood of a self-incriminating confrontation is just as low as it would be for a driver; we do not see the intrusion or anxiety to be so great as to justify a different test for bicyclists than for drivers stopped at a checkpoint.

As the Supreme Court did there, we instead apply a reasonableness test to the officers’ conduct here.

Applying the reasonableness test from Lidster, we find the seizure here to have been reasonable.

The investigation underway was a homicide. And the stop in this case was far more tailored to advance the public’s interest in solving this homicide than the stop in Lidster.

There, all drivers were stopped; their connection to the bicyclist’s death was nothing more than the fact that, one week after that incident, they were on the same road, at the same time of night, as the bicyclist when he died. Yet that was sufficient tailoring for the Supreme Court.

Here, officers were targeting a specific person whose assistance was sought, and they believed (correctly) that they had found that specific person. The stop could not have been more narrowly tailored toward the public interest in solving this homicide.

We thus hold that the traffic stop was a seizure, but a reasonable one.

A bulge in the defendant’s clothing, by itself, does not create reasonable suspicion. But the evidence here went beyond testimony of seeing a mere bulge. We agree with the trial court that Officer Ludwich’s observation of not merely a bulge, but the outline of a weapon, in Respondent’s jeans was a specific and articulable fact that supported a reasonable suspicion that Respondent was armed.

Obviously, in the course of detaining an individual during a suspicionless but reasonable seizure, an officer may frisk the individual if the officer develops a reasonable suspicion that the individual is armed.

In sum, the officers seized Respondent when they stopped him in the middle of the street on his bike. Their seizure was reasonable, in that they targeted Respondent for questioning as a witness, not a suspect, in the most serious of crimes, a homicide.

And once they had effected a reasonable seizure and only then developed a reasonable suspicion that Respondent was armed, the officers were entitled to conduct a protective pat down of Respondent for weapons.

See Also Kilo of Cocaine Suppressed: Investigative Hold Is Not Probable Cause 

People v. Barnes, 2017 IL App (1st) 142886 (September). Episode 405 (Duration 12:06)

Defendant shot at someone that first shot at him, the state says this constitutes mob action and armed violence.

What does it mean for two or more people to be “acting together” as required to commit the offense of mob action? See 720 ILCS 5/25-1(a)(1).

Defendant Tyrone Barnes and an unidentified man shot at each other on the street, resulting in the death of an innocent bystander.

A jury acquitted defendant of felony murder but convicted him of armed violence predicated on mob action. He was sentenced to 24 years in prison.

The theory of the predicate charge was that defendant and the unidentified man acted together by “participating” in a “gunfight” that the State has likened, both at trial and on appeal, to a “21st century version of a duel” held on the streets of Harvey.

Defendant was outside the restaurant waiting for his friend who went inside.

Defendant exchanged gunfire with an unidentified man in front of Gus Restaurant, a popular neighborhood spot located on Center Avenue near 153rd Street in Harvey. The unidentified man was with Bivens, who recently had a dispute of some kind with defendant.

That’s when Bivens came by with another man who was the shooter. Bivens had a beef with the defendant. The other man lifted his shirt and showing a gun and then started shooting. By this point defendant was back in his car and returned fired. The victim was hit by the other man’s shooting.

An errant gunshot fired by the unidentified man, and intended for defendant, struck and killed Sanders, a stranger who was passing by the restaurant.

Defendant was tried for the felony murder of Simeon Sanders, predicated on the aggravated discharge of a firearm at Maurice Bivens, and for armed violence predicated on mob action.

The State’s theory was that defendant and the unidentified man agreed to fight in a duel—a “shootout and a show-down in the middle of Center Street,” like “something that you would see at the Okay Corral,” or like “what happens in those western movies that we have all watched at some point growing up.”

The State argued that defendant agreed to the duel by standing in the street, assuming a “stand-off showdown position.”

Based on “this acting together of shooting at each other and creating this western scene in the middle of Harvey,” the State concluded, defendant was guilty of mob action.

The State views Bivens pointing at defendant, and the unidentified man displaying his gun, as the “challenge,” and defendant’s retrieval of his weapon and return fire after being shot at as the acceptance of the challenge. 

Defendant’s theory of defense, in turn, was that the unidentified man opened fire on him, and he returned fire in self-defense. For this reason, defense counsel argued, they were not “acting in concert with common purpose,” and thus defendant did not commit mob action.

The crux of his challenge is legal rather than factual.

Specifically, he argues that the “acting together” element requires concerted action—an agreement or common purpose—by the participants. The State says that it needed to prove only that defendant participated in the gunfight, regardless of any agreement or common purpose.

Thus, Defendant argues for a reversal of his conviction for armed violence, claiming the State failed to prove beyond a reasonable doubt that he committed the predicate offense of mob action.

“A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law” that does not “make[ ] the possession or use of a dangerous weapon” an element of the offense. 720 ILCS 5/33A-2(a) (West 2008).

 For the mob-action predicate, the jury received the pattern instructions; like the statute, those instructions use, but do not define, the phrase “acting together.” See Illinois Pattern Jury Instructions, Criminal, Nos. 19.03, 19.04 (4th ed. 2000).

So the jury was never instructed on the meaning of “acting together.”

Mob action, as charged in this case, was defined at the time as “[t]he use of force or violence disturbing the public peace by 2 or more persons acting together and without authority of law.” 720 ILCS 5/25- 1(a)(1) .

Among other things, the State had to prove that defendant was one of “2 or more persons acting together” in the use of force of violence.

Thus, the question of law presented: Do two (or more) people “act together” simply by shooting at each other; or does this statutory element require them to have an agreement, or otherwise to share a common purpose or intent? 

The minimal case law on this subject, the plain language of the statute, and a review of the legislative history of the mob-action statute guides the results in this case.

First of all the definition of “together” suggests a course of concerted action, a collaborative, cooperative effort, something beyond merely being proximate to one another, beyond merely doing the same thing at the same time.

Those dictionary definitions are consistent with a lay understanding of that word. Thus, an interpretation of the phrase “acting together” as requiring some agreed-upon pursuit or unity of purpose among the actors strikes us as a perfectly reasonable interpretation of the phrase, consistent with its plain and ordinary meaning.

To the extent that the dictionaries supply a definition of “together” that suggests mere proximity between the defendant and another person during the commission of the crime, we cannot accept it as a reasonable construction.

No doubt, defendant “participated” in the gunfight.

But is participation alone enough?

The State’s definition would impose criminal liability even when, as here, the two actors each “participated” in the violence but did not have the same criminal purpose when they did so. They were not aiding each other toward a mutual goal. Their goals could not have been more diametrically opposed. They were shooting at each other, not a common victim.

Under the State’s interpretation of “acting together,” every exchange of gunfire constitutes mob action, because every exchange of gunfire necessarily requires the “participation” of two shooters. For that matter, every fight of any kind—with bats, knives, or just fists—would be mob action, no matter how spontaneous, and mattering not one wit that the two individuals were at cross-purposes, not joined in a quest to commit violence against an agreed-upon third party.

The offense of mob action, in its current form, was first enacted as part of the Criminal Code of 1961. Ill. Rev. Stat. 1961, ch. 38, § 25-1. The legislature intended the offense to provide “a comprehensive codification of the former law regarding” the offenses of

riot
rout
affray
unlawful assembly, and
mob action. Ill. Ann. Stat., ch. 38, § 25-1, Committee Comments—1961, at 140 (Smith-Hurd 1964).

These antecedent offenses, derived from the common law, were designed to address the heightened threats posed to public safety and law enforcement “[w]hen numerous persons confederate against the public peace” in various ways; or in other words, when a group of people acts together toward a common, violent or illegal, end.

The offenses of riot, rout, and affray all required the participants to have an agreement or common purpose.

Riot - As our supreme court explained, the “universal conception and understanding of the meaning of the word ‘riot’ ” was “a mob or an assemblage of people of threatening attitude, acting in concert, with force and violence and determined to accomplish some injury to a person or property in spite of any resistance which might be offered.”

The requirement of “acting in concert” was understood to mean that the use of force or violence must be the product of “a concerted intent of the perpetrators to mutually assist one another against all who should oppose them in the doing of an unlawful act.”

Rioters, in short, had to share a common purpose or intent; and for that reason, they were accountable for each other’s actions in the course of the riot.

Rout - Second, the offense of rout required that two or more people “meet to do an unlawful act *** and make advances toward it.” A rout was more than an unlawful assembly but less than a riot; it required the participants to “perform an act in the direction of their common purpose, i.e., they are on their way toward executing their plan,” but “because their objective is not yet accomplished, it is not yet a riot.”

Affray - Third, the offense of affray was committed when two or more people, “by agreement, fight in a public place.” Thus, under the Illinois statute, an affray was akin to a duel, except that it did not require the use of deadly weapons, nor did it involve the ritualized practice of issuing and accepting a challenge through seconds that was characteristic of dueling.

So each of the three offenses that were incorporated into the subsection of the statute under consideration required concerted action of some kind—a common purpose (riot and rout) or an agreed-upon course of conduct (affray)—as an element.

Mob Action - Because the legislature’s purpose in enacting subsection 25-1(a)(1) was merely to unify and simplify these antecedent offenses, we see no reason to conclude that the legislature intended to eliminate their common requirement of concerted action. To the contrary, we believe the legislature used the phrase “acting together” to express precisely that requirement in one all-encompassing, intuitive general term.

Thus, to prove the predicate charge of mob action in this case, the State had to prove that defendant and the unidentified man “acted together” in that they shared a common criminal purpose, or they agreed to a gunfight. Nothing in the record here suggests anything other than the most obvious of intentions—the unidentified man tried to shoot defendant; and defendant, perhaps in self defense, shot at the unidentified man.

They were trying to shoot each other, plain and simple, putting themselves at “cross purposes”—and about as far from concerted action as they could possibly be.

Unless the participants have agreed to a gunfight, as in a duel or affray, an exchange of hostile gunfire is not concerted action.

There is absolutely no evidence in this record that defendant agreed to a gunfight. There was no testimony, first of all, that defendant had planned anything in advance with Bivens or his companion, the man in black. The evidence shows only that the men happened upon defendant.

There is nothing in the record to demonstrate that defendant had been expecting the men, much less that an encounter had been planned in advance. Nor do we find any evidence that, once the men all came upon each other, a non-verbal “agreement” to a shoot-out somehow blossomed on the spot during this approximately 15-to-20- second interval.

Both Young and defendant said that defendant did not retrieve his gun until the man in black displayed his gun, which can only be taken to mean that defendant was reacting to the threat of the handgun by getting his own gun. There was no evidence from the record to indicate that defendant wanted this gunfight, much less that he “agreed” to it.

We find nothing in the record that indicates that defendant indicated, verbally or non-verbally, that he agreed to a gunfight. Rather, the facts of this case seem to resemble so many cases we see of one instance of bad judgment following another, of senseless violence erupting spontaneously and ending tragically.

We agree with defendant that the phrase “acting together” requires some concerted action—some common purpose or agreed-upon course of conduct— among the actors.

It is not only a reasonable interpretation of the statute—which would be enough in itself—but the interpretation that the General Assembly clearly intended.

For all of these reasons, we read “acting together” under section 25-1(a)(1) of the mob action statute as requiring concerted action—that is, a common purpose or agreed-upon course of action among the “2 or more people” who engage in “[t]he use of force or violence disturbing the public peace.” 720 ILCS 5/25-1(a) (West 2008).

 This was a senseless shooting, spawned by animosity, that resulted in the death of an innocent bystander. It was tragic and unnecessary. But it was not the 21st-century equivalent of a duel.

Because the State was required to show that defendant and the other shooter had agreed to a gunfight to show that they were “acting together” in their use of violence, and because the evidence wholly failed to show as much, defendant was not proven guilty beyond a reasonable doubt of the predicate offense of mob action.

As such, his conviction for armed violence is reversed.

• People v. Shakirov, 2017 IL App (4th) 140578 (April). Episode 348 (Duration 18:46) (Reckless Homicide Reversed Outright | The Difference Between Negligence and Recklessness
• People v. Yeoman, 2016 IL App (3d) 140324 (June). Episode 201 (Duration 4:29) (Another Single Blow Murder Reversed)
• People v. Nibbe, 2016 IL App (4th) 140363 (February). Episode 151 (Duration: 2:35) (Single Blow With The Hand Does Not Create Strong Probability of Death)
• Glasgow Interview I (How To Advise Clients, Friends, and Colleagues on Conceal and Carry) Episode 169
• Glasgow Interview II (How Conceal and Carry Can Go Wrong) Episode 170
• Glasgow Interview III (Conceal And Carry May Come With Civil Law Consequences) Episode 171
• People v. Kent, 2016 IL App (2d) 140340, ¶ 25. 

People v. Connors, 2017 IL App (1st) 162440 (September). Episode 404 (Duration 9:32) 

DUI dismissed because prosecutor did not show due diligence in getting the trooper to court for trial.

A trooper saw a black sedan veer to the left across the lane markings and then to the right so that half the car crossed the fog line.

Forney followed the car for about a mile before he activated his lights and directed the sedan’s driver to pull over.

The driver, Connors, failed the sobriety tests Forney administered. Connors refused to take a breathalyzer test. Prosecutors charged Connors with driving under the influence of alcohol.

Defendant demanded a trial and four times the case had to be continued on the state’s motion when the trooper did not show up to court.

There were some status days after that when the defense attorney couldn’t make it and they were waiting for an evaluation.

Eventually, defendant demanded trial again, and again the trooper did not come to court.

When the trooper finally showed up he testified about Connors’s erratic driving and the coordination tests that Connors failed.

Connors stipulated that he told Forney he had drunk four beers, and that he had “nodded off” while driving, which caused him to drive the car across the fog line.

Upon the state’s request, the court extended the speedy trial term for 60 days and set the case for trial.

Defendant filed a motion to dismiss arguing that for the court to give the prosecution a 60-day extension, the prosecution needed to show due diligence in its efforts to produce Forney for trial. See 725 ILCS 5/103-5(c).

Connors argued that the prosecution had not shown due diligence.

The parties agree that only subsection (c) of the speedy trial statute could justify the 60- day extension the trial court granted. Subsection (c) provides:

“If the court determines that the State has exercised without success due diligence to obtain evidence material to the case and that there are reasonable grounds to believe that such evidence may be obtained at a later day the court may continue the cause on application of the State for not more than an additional 60 days.”

725 ILCS 5/103-5(c).

The State bears the burden of proof on the question of due diligence.

The test of due diligence is whether the State began efforts to locate its witness in sufficient time to secure his presence before the speedy trial term expired.

There were at least 2 occasions where the prosecution asked for a continuance because the trooper was not in court and had no explanation for why not.

The third time he didn’t show, the prosecutor admitted that more than a year after the court first set the case for trial and Connors answered ready for trial, after three trial dates set specifically at the prosecutor’s request for which the prosecution’s single witness failed to appear, and knowing that the full 160 days had run on Connors’s speedy trial term—the prosecutor still had not found out how to contact his one witness so that he could set a date on which his witness would come to court.

The prosecutor did not seek to present the testimony of a person with no fixed job or address, or one who tried to avoid trials.

The witness who failed to appear continued to work at his job as a state trooper, a job that he had held since the prosecutor first assumed responsibility for the case about two years before the hearing.

The prosecutor did not say exactly when he started to make an effort to find Forney through his third person contact. He said only that state troopers used a different system than Chicago police.

He did not tell the court when he learned that state troopers used a different system, or what steps he had taken to determine how to get a state trooper to come to court.

Almost two years after he took responsibility for the case, and after Connors had answered ready for trial on multiple trial dates, with delays totaling 160 days solely due to the prosecution’s inability to bring the state trooper to court, the prosecutor did not know how to get in touch with Forney to find out when he could get to court.

Whatever "due diligence" means, it cannot be defined as ignoring or doing nothing about a statutory requirement.

For a long time, the prosecution here did nothing to find out how to bring Forney to court.

After the full 160 days had run on Connors’s speedy trial term, the prosecutor did not act with the diligence needed to justify the 60-day extension of the speedy trial term.

The trial court’s finding that the State exercised due diligence is against the manifest weight of the evidence because the evidence shows that the prosecutor did not make the effort necessary to bring his witness to court in sufficient time to secure his presence before the speedy trial term expired.

We hold that the trial court abused its discretion when it granted the prosecution a 60 day extension beyond the speedy trial term when the prosecution had not acted with due diligence.

The only possible remedy for deprivation of speedy trial rights is discharge.

We implore prosecutors to take drunk driving charges seriously.

Therefore, because the prosecutor did not show the diligence required for the extension the court granted, we reverse the conviction.

The court said the prosecutor here could have sought instead a 21-day extension of the speedy trial term, under subsection (f) of the speedy trial statute, and for that extension, the prosecution did not need to show due diligence. See 725 ILCS 5/103-5(f). 

This section says:

“(f) Delay occasioned by the defendant shall temporarily suspend for the time of the delay the period within which a person shall be tried as prescribed by subsections (a), (b), or (e) of this Section and on the day of expiration of the delay the said period shall continue at the point at which it was suspended. Where such delay occurs within 21 days of the end of the period within which a person shall be tried as prescribed by subsections (a), (b), or (e) of this Section, the court may continue the cause on application of the State for not more than an additional 21 days beyond the period prescribed by subsections (a), (b), or (e).”

725 ILCS 5/103-5(f).

Episode 354 DNA Speedy Trial Extension: Best Practice

People v. Pulido, 2017 IL App (3d) 150215 (August). Episode 403 (Duration 9:59)

After a traffic stop the car is towed to the police station so it could be searched more thoroughly.

It turns out the defendant was under investigation by a narcotics unit and they had tipped of the trooper to defendant’s car.

Six days before the traffic stop defendant gave some meth to an undercover. They set up a bigger deal. Rather than go through with the deal investigators decided to tip off state troopers to the car.

All they told the trooper was that the car had drugs in it.

Didn’t tell him what kind of drugs or where they were kept.

The the evidence showed that defendant was properly stopped for speeding.

K-9 unit arrived at the scene while the stop was ongoing, and Rico alerted to narcotics.

The trial court noted that Rico’s certification had expired, but found that went to the weight of the evidence. The court also found that defendant consented to a search of his vehicle. No drugs were found during the first search and the vehicle was moved due to rain and safety issues.

Eventually, at the police station investigators found tubes wrapped with black tape from the vehicle’s air filter. Inside the tubes was a substance that later tested positive for methamphetamines.

Ultimately, the court found defendant guilty, and sentenced defendant to 15 years’ imprisonment.

Was seizing and towing the car outside the scope the police's constitutional authority?

A traffic stop is analogous to a Terry investigatory stop, and therefore, the reasonableness of police conduct during a traffic stop may be judged by reference to Terry’s dual inquiry.

The two prongs of this inquiry are

(1) whether the stop was justified at its inception and
(2) whether the officer’s actions during the course of the stop were reasonably related in scope to the circumstances that initially justified the stop.

Terry v. Ohio, 392 U.S. 1, 19-20 (1968).

Here, the trooper testified that he had tested and verified that his LIDAR device was working properly at the start of his shift. The LIDAR device showed defendant was traveling seven miles per hour above the posted speed limit. Defendant, therefore, violated section 11- 601(b) of the Illinois Vehicle Code (625 ILCS 5/11-601(b)).

The decision to stop defendant’s vehicle was lawful at its inception.

After obtaining defendant’s information, the trooper and defendant returned to the squad car so that he could run the information through LEADS and write defendant a warning.

Before the trooper finished writing defendant a warning and receiving the confirmation from LEADS, the K-9 unit arrived on the scene and conducted the free-air sniff. After Rico alerted on the vehicle, the trooper was informed by radio that defendant’s LEADS check was clear. A free-air sniff conducted during a lawful traffic stop does not violate the fourth amendment, as long as it is done, as it was here, within the time reasonably required to complete the mission of the initial traffic stop.

Having found that the free-air sniff did not unreasonably prolong the traffic stop, we now consider whether Rico’s alert constituted probable cause to search defendant’s vehicle.

Although we find that Rico’s positive alert provided the officers with probable cause to search defendant’s vehicle on I-80, we find that such probable cause dissipated after the officers’ initial 15 minute hand search of the vehicle did not reveal any evidence of narcotics or any evidence of a hidden compartment within the vehicle.

Therefore, we hold that the officers improperly transported defendant’s vehicle to the Channahon police department for a second search.

Because the initial hand search revealed neither narcotics nor any evidence of a hidden compartment within the vehicle, we conclude that the officers lacked probable cause to relocate the vehicle for a second search.

The fourth amendment requires that a search not continue longer than necessary to effectuate the purposes of an investigative stop.

More specifically, an investigative stop must cease once reasonable suspicion or probable cause dissipates.

In the present case, two state troopers searched the entire vehicle on I-80 and failed to find any contraband. More significantly, the State failed to produce any evidence that they observed any indication that the vehicle may have had a hidden compartment that would justify moving the vehicle to the Channahon police department for a second search. The mere fact that the trooper believed the vehicle may have contained a hidden compartment is insufficient to establish probable cause, as he offered no evidence to support his belief.

Thus, when the initial search of the vehicle on I-80 was fruitless, any probable cause dissipated and the officers no longer had any authority to continue their search.

This conclusion remains true even though the narcotics investigator testified that moving the vehicle was due to weather conditions and officer safety.

The standard for measuring the scope of a suspect’s consent is that of “objective’ reasonableness,” which requires consideration of what a “typical reasonable person [would] have understood by the exchange between the officer and the suspect.”

The scope of a search is defined by its expressed object or purpose.

In the present case, the trooper asked defendant on I-80, “can we search your vehicle to make sure there’s nothing in there that’s not supposed to be, there’s nothing illegal?” and defendant allegedly replied “yes.”

Assuming defendant did in fact respond in the affirmative, the reasonable inference is that his consent was limited to a search of his vehicle at the site of the stop on I-80. Thus, a reasonable person in defendant’s position would have understood that he had authorized the trooper to search his entire vehicle while it was stopped on I-80.

In other words, it is unreasonable to believe that when defendant gave his consent, he also consented to the relocation of his vehicle for an even more invasive search. Stated another way, we do not believe an Illinois citizen who is pulled over on a highway and subsequently consents to a search of his vehicle intends to voluntarily and knowingly consent to have his vehicle removed from the highway and relocated to the local police station for a further search once the initial search on the highway is completed.

The officers’ decision to relocate defendant’s vehicle in the instant case exceeded the scope of defendant’s alleged consent along I-80.

The officers engaged in impermissible conduct when they seized defendant’s vehicle without probable cause and transported it to the Channahon police department for a more prolonged and invasive search.

It is of no consequence that defendant later “consented” to the second search as the second search was inextricably bound with the illegal conduct of the officers. We therefore conclude that defendant’s “consent” (being the fruit of an illegal assertion of authority) cannot justify a further illegal search.

Consequently, the second search pursuant to the traffic stop performed by the officers at the Channahon police department lacked probable cause and cannot be justified by defendant’s later consent.

The State asserted that the probable cause for the supplemental search in Channahon was that flowing from the prior money-less drug transaction between defendant and undercover officers six days earlier. The proper response to that claimed probable cause was to use the ensuing six days either to complete the drug investigation with an actual transaction or to apply for a warrant to search defendant’s car.

It was not authorization to orchestrate a traffic stop to enable a warrantless search.

People v. Bianca, 2017 IL App (2d) 160608 (September). Episode 401 (Duration 6:26)

Officer jumps right into FSTs before corroborating the unamous tip.

LaBarbera testified that he was performing a traffic stop when a citizen drove by and reported seeing a car driving “recklessly and all over the road” and that she had seen the vehicle park behind K&L Liquors.

The citizen described the vehicle as a black SUV with a manufacturer’s marking that looked like an “upsidedown V.”

The citizen did not give LaBarbera a description of the license plate or the car’s exact make or model and could not describe anything about the driver other than that she was a white female with blonde hair.

The citizen did not elaborate on what she meant by “driving recklessly and all over the road,” and she did not explain how long the driver had done so.

The citizen then drove off and LaBarbera did not ask her to wait so he could obtain more information.

Further, the the informant’s tip was truly unanimous and required corroboration that did not exist. It was not sufficiently reliable to provide LaBarbera with reasonable suspicion for the investigatory stop.

He then saw defendant leave the store and enter the car. LaBarbera left the traffic stop, parking his marked squad car next to defendant’s car.

Defendant testified that LaBarbera parked his marked squad car behind her car, blocking her from leaving, and then got out of his car. He was in full uniform. He came up to her window to speak to her.

LaBarbera testified that he could not recall “for sure,” but he did not think he “even got out of [his] car.”

LaBarbera asked defendant to “stay in that spot” so he could speak with her after he “cleared” his other traffic stop.

He testified that he did not “command” defendant to stay but rather “requested” her to do so. Defendant testified that the officer asked her to stay. Although the officer asked her to stay, defendant believed she was required to stay and would not have left.

LaBarbera agreed that defendant “followed his instructions” and waited for him to return.

When LaBarbera returned to defendant’s car, he asked for her driver’s license and proof of insurance.

Eventually, he had defendant step out of the car to perform field sobriety tests. Following the field sobriety tests, LaBarbera arrested defendant.

He brought her to the station, where she submitted to a Breathalyzer.

LaBarbera never observed defendant driving the vehicle, but he testified that defendant’s arrest was not based solely on the anonymous tip he had received from the citizen.

There are three tiers of police-citizen encounters:

(1) an arrest of a citizen, which must be supported by probable cause;
(2) a temporary investigatory seizure conducted pursuant to Terry v. Ohio, 392 U.S. 1 (1968), where an officer may conduct a brief, investigatory stop of a citizen when the officer has a reasonable, articulable suspicion of criminal activity and such suspicion amounts to more than a mere “hunch”; and
(3) police-citizen encounters that are consensual, which involve no coercion or detention and do not implicate any fourth amendment interests.

The State has argued consistently both before the trial court and now on appeal that the evidence shows that the encounter between defendant and LaBarbera was consensual because the officer merely asked her to remain while he completed the unrelated traffic stop and she agreed to that request.

Both LaBarbera and defendant testified that LaBarbera asked defendant to stay.

Therefore, the trial court’s finding that the officer commanded defendant to stay is against the manifest weight of the evidence. An individual is seized for fourth amendment purposes only when, by means of physical force or a show of authority, his freedom of movement is restrained.

Such restraint is analyzed under the totality of the circumstances and is considered a seizure when a reasonable person would believe he or she was not free to leave.

There are four Mendenhall factors that indicate a seizure:

(1) the threatening presence of several officers;
(2) the display of a weapon by an officer;
(3) some physical touching of the person; or
(4) using language or tone of voice compelling the individual to comply with the officer’s requests.

The factors are not exhaustive.

However, there is ample authority to support a holding that submission to field sobriety testing is a seizure under the fourth amendment.

In this case, the evidence shows that defendant’s acceding to the officer’s direction was not consensual. Defendant testified that LaBarbera told her to exit the car and had her perform field sobriety tests.

Also, LaBarbera admitted that, upon his return, he asked defendant for her driver’s license and proof of insurance and he had her exit the car for field sobriety testing.

There is no evidence to support an argument that defendant’s performance of the tests was consensual.

If the defendant makes a prima facie showing that she was doing nothing unusual to justify her seizure by the police, the burden of going forward then shifts to the State.

After defendant testified, the trial court shifted the burden to the State, but the State does not argue on appeal that this was improper. As previously noted, the State also does not argue that LaBarbera had a reasonable, articulable suspicion to direct defendant to perform the field sobriety tests.

At the point where defendant submitted to the direction to exit the car to perform field sobriety tests, there was a seizure unsupported by a reasonable, articulable suspicion.

Therefore, the trial court did not err in granting the motion to suppress.

This is the September 2017 Illinois criminal case law audio round-up (the fast case law summary). Episode 400 (Duration 26:52)

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

Here's a quick snapshot of the top cases:

1. People v. Boykins

Defendant really thought the judge needed to spell out the MSR terms.

2. People v. Wright

They said 60 years when really the max was 75, either way defendant was adamant that he wanted to go pro se.

3. Round v. Holman

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

4. 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.

5. People v. Peterson

Drew Peterson loses his appeal to the Illinois Supreme Court.

6. People v. Gray

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

7. People v. Connors

DUI must be dismissed because prosecutor did not show due diligence in getting the trooper to court for trial.

8. People v. Bianca

Officer jumps right into FSTs before corroborating the unamous tip.

9. In re Tyreke H.

Kid on a bike is stopped because he's a witness to a murder, then they see a gun in his pocket.

10. People v. Kimble

Judge declares a mistrial too early and now the state cannot recharge defendant.

11. People v. Djurdjulov

Defendant gets a new trial because the trial judge refused to pay for a phone records expert.

12. People v. Barnes

Defendant shot at someone that first shot at him, the state says this constitutes mob action and armed violence.

13. People v. Thompson

Officer with no firearm training gets on the stand and says the pellet gun was a firearm.

14. People v. Cox

Counsel did not object to the FOID certificate from the State police, was that ineffective assistance?

15. People v. Melecio

State nolled the felony murder for trial then forget to change the jury instruction for first degree murder, so the jury got the felony murder instruction.

People v. Frazier, 2017 IL App (5th) 140493 (July). Episode 399 (Duration 6:44)

No error here where defense counsel waited to object to an insufficient complaint until after the trial started.

After a bench trial in the circuit court of Marion County, defendant, Robin Frazier, was convicted of criminal sexual assault based upon a position of trust, supervision, or authority (720 ILCS 5/11-1.20(a)(4) (West 2010)) and sentenced to four years in the Department of Corrections.

Defendant was employed as a counselor by Kemmerer Village, a residential treatment facility for emotionally and behaviorally disturbed children ages 12 to 18.

A little after 10 p.m., defendant clocked out for the night after doing a final bed check of the female residents assigned to her cottage. As defendant was leaving her parking spot, one of the female residents, B.H., age 17, opened the passenger door and got in defendant’s car. Defendant was aware of B.H.’s history of running away from not only Kemmerer Village but also previous group homes where she resided.

They ended up in a hotel room where they drank, did pot, and Defendant performed oral sex on the victim.

After B.H. answered four questions, defense counsel asked to approach the bench, where he filed a motion to dismiss on the basis that the information “fails to adequately define the nature of the position of trust, authority, or supervision held by [defendant].”

Defendant relied on the Third District case of People v. Sparks, 221 Ill. App. 3d 546 (1991), which holds that the charging document, alleging the offense, must set out the nature of the alleged position of trust, authority, or supervision.

Defense counsel said he was not in a position to file the motion to dismiss before trial as jeopardy would not have attached.

If he filed the motion before trial, then the State would have been allowed to amend the information. Under such circumstances, defense counsel asserted he would have been guilty of ineffective assistance of counsel.

Defendant still claimed counsel was ineffective for not filing the motion to dismiss before trial.

Defendant insists trial counsel erred by waiting to challenge the sufficiency of the charge until the trial started, thereby subjecting her to a higher standard of review.

A defendant has a fundamental right, as set forth in section 111-3 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/111-3), to be informed of the nature and cause of the criminal accusations made against him or her.

It is well settled that if an indictment or information is challenged before trial in a pretrial motion, the charging instrument must strictly comply with the pleading requirements of section 111-3 of the Code.

If the indictment or information does not strictly comply with the pleading requirements of section 111-3 of the Code, the proper remedy is dismissal.

If, on the other hand, a charging instrument is attacked mid-trial, the applicable standard for a challenge is the prejudice standard.

In the instant case, even assuming arguendo that the information was technically deficient and defense counsel raised the issue in a pretrial motion, the trial court would have undoubtedly granted the motion to dismiss.

The State would then have been allowed to amend the information to add more specificity as to the nature of the position of trust, authority, or supervision defendant held over B.H.

Under these circumstances, there was no prejudice by her attorney’s decision to wait until mid-trial to file the motion to dismiss. Thus, defendant has not met the second prong of Strickland. No further discussion of defendant’s claim of ineffective assistance is necessary.

People v. Swift, 2016 IL App (3rd) 140604 (October) - Episode 249 (defendant must show prejudice when challenging the indictment in the middle of trial)