Kane County Nuggets

People v. Kimble, 2017 IL App (2d) 160087 (September). Episode 398 (Duration 26:29)

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

Facts

This was a jury trial for sex crimes against a child who was 11 at the time of trial testified and had some inconsistencies in her testimony.

The defendant denied any wrongdoing.

He was a neighbor and friend of the father.

Jury Question

At one point the foreman sent a note to the judge:

“Dear Judge Prather, after deliberating for 5 hours and despite our best efforts, we are at an impasse [sic].”

After receiving this communication, the judge convened defense counsel and the State. The record does not show whether defendant was present.

The judge disclosed the note, and she also disclosed that the jury had earlier indicated to her, through her bailiff, that it was at an “impasse.” She divulged that she had instructed the bailiff to tell the jury to continue deliberating. According to the judge, that ex parte communication occurred “shortly after” the jury rewatched the CAC interview with the child.

The Response

Now, the judge suggested that she inquire whether further deliberation would help.

She noted that she was willing to ask if the jurors would like to go home, sleep on it, and return the next morning. When the State wondered whether the judge’s questions would elicit multiple responses, the judge stated:

“I’ll inquire of the foreperson.”

Defense counsel agreed.

The jurors returned to the courtroom, and the judge asked the foreman how long the jury had been at an impasse. He replied,

“Pretty much a good part of the day. Four and a half hours or five hours.”

He indicated that “some numbers changed here and there, but we were stuck at a certain proportion” for the last three hours.

The judge asked if it would do any good to go home and “sleep on it” and continue deliberations the next day. The foreman stated:

“I asked that question, and it was indicated that it would not [do any good].”

The judge asked: “It would not?”

The foreman replied: “No, ma’am.”

Mistrial Declared

The jury then returned to the jury room.

The State and defense counsel both asked the judge to give the Prim instruction and to bring the jury back for further deliberations the following morning.

The judge responded: “I am fearful, folks, if I do that, you’re going to have some extremely angry jurors. *** There has been [sic] some very loud voices back there for a period of time. I think it would be futile to do that. Therefore, I would decline.”

The prosecutor said: “Understood, Judge.”

Defense counsel did not respond.

The judge then excused the jurors and declared a mistrial.

Does Double Jeopardy Prevent A New Trial?

Defendant filed a motion to dismiss the charges on the ground that reprosecution was barred by double-jeopardy principles.

Defendant argued that, as he and the prosecution had both requested the court to give the Prim instruction and to order further deliberation, there was no “manifest necessity” to declare a mistrial.

The Fifth Amendment

The fifth amendment to the United States Constitution provides that no person shall

“be subject for the same offence to be twice put in jeopardy of life or limb.”

U.S. Const., amend. V. Illinois Constitution. See Ill. Const. 1970, art. I, § 10.

The double jeopardy clause protects against

(1) a second prosecution for the same offense following acquittal,
(2) a second prosecution for the same offense following conviction, and
(3) multiple punishments for the same offense.

One of the deeply ingrained idea behind the prohibition against double jeopardy is that the State, with all its resources and power, should not be permitted to subject a defendant to the embarrassment, expense, and ordeal of multiple prosecutions.

Indeed, the prohibition against trying a defendant twice for the same crime is the sine qua non of American due process standards. Because a second prosecution subjects a person to the ignominy alluded to above, the protection against double jeopardy embraces a defendant’s “valued right” to have his trial completed by a particular tribunal.

Rules

The protection against double jeopardy attaches after the jury is selected and sworn. See 720 ILCS 5/3-4(a)(3):

A prosecution is barred if the defendant was formerly prosecuted for the same offense, based upon the same facts, if that former prosecution: was terminated improperly after the jury was impaneled and sworn...

(1) A defendant who requests or consents to a mistrial is presumed to have deliberately elected to forgo a decision on his or her guilt or innocence before the jury seated at that time.

(2) However, where the court, acting without the defendant’s consent, declares a mistrial, the court necessarily deprives the defendant of his valued right to have a particular jury decide his fate.

This does not necessarily preclude a second trial, because a defendant’s right to have his trial completed by a particular jury must in some instances yield to the public’s interest in fair trials.

Retrial Possible Only If...

When the court declares a mistrial without the defendant’s consent, the State should be allowed to retry the defendant only if there was a manifest necessity for declaring the mistrial.

Accordingly, reprosecution of a defendant following the declaration of a mistrial is constitutionally permissible if

(1) the mistrial was attributable to the defendant by virtue of his motion or consent; or
(2) the mistrial was warranted by "manifest necessity".

Manifest Necessity

Essentially, in deciding if a manifest necessity exists, the trial court must balance the defendant’s interest in having the trial completed in a single proceeding, reserving the possibility of obtaining an acquittal before that “particular tribunal,” against the strength of the justification for declaring a mistrial.

Discussing the phrase “manifest necessity,” the Supreme Court held that it cannot be interpreted literally, but that a “manifest” necessity means a “high degree” of necessity.

On review, we may consider several factors, including whether :

(1) the difficulty was the product of the actions of the prosecutor, defense counsel, or trial judge, or was the product of events over which the participants lacked control;
(2) the difficulty could have been intentionally created or manipulated by the prosecution to strengthen its case;
(3) the difficulty could have been “cured” by an alternative that would have preserved the trial’s fairness;
(4) the trial judge actually considered the alternatives to a mistrial;
(5) a subsequent conviction would be subject to reversal on appeal;
(6) the trial judge acted in the heat of the trial confrontation;
(7) the trial judge’s decision rested on an evaluation of the demeanor of the participants, the “atmosphere” of the trial, or any other factors that similarly are not amenable to strict appellate review;
(8) the trial judge granted the mistrial solely for the purpose of protecting the defendant against possible prejudice;
(9) the evidence the State presented, prior to the mistrial, suggested a weakness in its case (e.g., a witness failed to testify as anticipated);
(10) the jurors had heard enough of the case to formulate some tentative opinions;
(11) the case had proceeded so far as to give the prosecution a substantial preview of the defense’s tactics and evidence; and
(12) the composition of the jury was unusual.

Factors relevant when you have a jury at an impasse or a deadlocked jury:

(1) the jury’s collective opinion that it cannot agree,
(2) the length of the deliberations,
(3) the length of the trial,
(4) the complexity of the issues,
(5) any proper communications that the judge has had with the jury, and
(6) the effects of possible exhaustion and the impact that coercion of further deliberations might have on the verdict.

Andrews, 364 Ill. App. 3d at 266-67.

Acquiesces To Mistrial?

Here, defense counsel did not stand mute.

Counsel joined in the State’s request for the Prim instruction, and he also suggested that the court order the jury to keep deliberating.

That conduct is inconsistent with a request for, or acquiescence to, a mistrial.

In our case, defense counsel’s position that he wanted the trial to continue could not have been clearer. Defense counsel stated three times that he was requesting the Prim instruction. When the State suggested that the court give the Prim instruction before discharging the jury, defense counsel stated:

“I would agree with the State, your Honor.”

The court responded: “Pardon?”

Defense counsel repeated: “I would agree with the State.”

The court inquired: “You agree with the State?”

Defense counsel replied: “I do.”

Defense counsel then suggested that the jury return the next day to deliberate.

Surely, three requests for the Prim instruction as well as asking that the jury return the next day qualify as “forceful argument” that the trial continue.

There was no need to make a pro forma objection when the court declared the mistrial.

Accordingly, we hold that defendant did not consent or acquiesce to the mistrial.

The Judge's Action Caused Problems

Much of the case law applying the manifest-necessity doctrine involves the proper evaluation of alternatives to a mistrial.

A legal commentator has construed Jorn to mean that a trial judge abuses his or her discretion by ordering a mistrial without a “scrupulous” search for alternative means to deal with the difficulties. Thus, a mistrial is improper where the trial judge is responsible for the difficulty and alternatives are available.

In our case, the judge’s ex parte jury communication led to the precipitous declaration of a mistrial without considering available alternatives.

Jury deliberations are a critical stage of trial, involving substantial rights that trigger a defendant’s right to be present and participate in person and by counsel.

Communications between the judge and the jury after the jury has retired to deliberate, except when held in open court and in the defendant’s presence, deprive the defendant of his or her fundamental rights. This tipped the scales in the judge’s decision to sua sponte abort the trial rather than give the Prim instruction.

The judge disclosed the ex parte communication to emphasize that the 4:25 p.m. note from the jury was “the second time” the court “received information from the jury that they [sic] are at an impasse.”

Hence, the judge concluded that it would be “futile” to give the Prim instruction and allow further deliberations. Without the earlier ex parte communication, the court could not reasonably have believed that giving the Prim instruction would be futile.

Prejudice To Defendant

The foreman’s note said that the jury had been deliberating for five hours. However, we note that, in that time, it had also picked the foreman, eaten lunch, and rewatched the video of the CAC interview with S.M.

Furthermore, we determine that the judge’s ex parte communication prejudiced defendant. We look at whether the content of the communication created prejudice. The judge told the bailiff to instruct the jury to “continue to deliberate.”

Presumably, that is what the bailiff conveyed to the jury, though the bailiff’s precise words are not part of the record. That direction was given when the jury first indicated that it was at an impasse, “shortly after” it rewatched the video.

Purpose Of The Prim Instruction

The purpose of the Prim instruction is to guide a jury that is unable to reach a verdict.

Having the bailiff tell the jury to “continue to deliberate” left the jury with no guidance. Indeed, jurors voting in the minority conceivably could feel coerced if, when seeking guidance from the court, “they are met with stony silence and sent back to the jury room for further deliberation.” Prim, 53 Ill. 2d at 74.

The purpose of a defendant’s right to be present with counsel at any jury communication is so that counsel can “aid and advise the defendant as to what course of action he should take, including whether to object, concur, or attempt to influence how the court addresses the jury.” Here, the court’s ex parte communication foreclosed defendant’s option to request the Prim instruction earlier in the afternoon when the jury first considered itself at an impasse.

Then, because the jury declared itself still at an impasse approximately two hours later, the court declined to give the Prim instruction, which informs the jury that the verdict must be unanimous, the jury has a duty to deliberate, the jurors must impartially consider the evidence, and the jurors should not hesitate to reexamine their views and change their opinions if they believe them to be erroneous, provided that the change is not due solely to the other jurors’ opinions or the mere desire to reach a verdict. See People v. Prim, 53 Ill. 2d 62, 75-76 (1972) (approving the language of a draft instruction to be used by trial courts faced with juries in disagreement); Illinois Pattern Jury Instructions, Criminal, No. 26.07 (4th ed. 2000) (taken verbatim from the language approved in Prim).People v. Chapman, 194 Ill. 2d 186, 222 (2000).

Our supreme court explicitly directed that trial courts give this instruction when faced with juries in disagreement. Prim, 53 Ill. 2d at 76.

In People v. Cowan, 105 Ill. 2d 324, 328 (1985), the court held that whether and when to give the instruction is discretionary, based upon such factors as the length of the deliberations and the complexity of the issues. It is proper to give the Prim instruction if the court perceives that the jury is having difficulty reaching a verdict.

People v. Preston, 76 Ill. 2d 274, 284 (1979). The court is not required to delay giving the instruction until the foreman flatly states that the jury cannot reach a verdict. Preston, 76 Ill. 2d at 284.

The court may have the jury continue to deliberate even though it has reported that it is deadlocked and will be unable to reach a verdict. Cowan, 105 Ill. 2d at 328.

When faced with a deadlocked jury, a trial judge should not leave the jury “to grope in such circumstances without some guidance from the court.” Prim, 53 Ill. 2d at 74.

The instruction to “continue to deliberate” did not contain the five points inherent in the Prim instruction:

(1) to return a verdict, each juror must agree thereto,
(2) jurors have a duty to consult with one another and to deliberate with a view to reaching agreement,
(3) each juror must decide the case for himself or herself but only after an impartial consideration of the evidence with fellow jurors,
(4) jurors should not hesitate to reexamine their own views and change their opinions if convinced they are erroneous, and
(5) no juror should surrender his or her honest conviction.

Whereas the Prim instruction encourages jurors to reexamine their opinions and to abjure them if the evidence warrants it, the direction to “continue to deliberate” conveys a different message:

“Keep doing the same thing you’re already doing.”

The judge’s ex parte communication thus might have contributed to the jury’s lack of progress and later did unduly influence her denial of the joint request for the Prim instruction.

Holding

Consequently, we hold that the court’s judicial indiscretion, rather than a manifest necessity, prompted the mistrial.

Under these circumstances, reprosecution is barred.

Also, there was no manifest necessity to declare a mistrial.

Here, the judge asked the foreperson if they were deadlocked. However, polling each juror with respect to his or her opinion on the issue of deadlock is the preferred procedure. The salient point, here, is that the actual deadlock was only three hours old. The jury’s own view of whether it can reach a verdict is only one factor in the court’s determination.

There is no requirement that a mistrial be declared because of the jurors’ inability to come to a unanimous verdict immediately. Here, the judge expressed her belief that “you’re going to have some extremely angry jurors” if deliberations were allowed to continue.

Experience shows that tempers flare in the emotional atmosphere of a criminal trial. In other words, angry voices do not necessarily signal a hopelessly deadlocked jury. Here, the trial involved four counts of aggravated criminal sexual abuse, and it lasted three days. The five hours that the jury deliberated included time-outs to pick the foreman and to eat lunch, as it retired to deliberate near the lunch hour. Then, the jury spent over a half hour rewatching the video of the CAC interview.

The issue that the jury had to resolve was S.M.’s credibility.

That issue was anything but straightforward. Because the jury did not deliberate for even a full workday, this factor weighs against a manifest necessity to declare a mistrial.

We are mindful that, while trial judges have “considerable leeway” in determining whether the jury is hopelessly deadlocked, the reviewing court has an obligation to satisfy itself that the trial judge exercised sound discretion.

If the record establishes that the trial judge failed to exercise sound discretion, the reason for deference disappears.

Accordingly, we hold that there was no manifest necessity for the court’s sua sponte declaration of the mistrial. It follows that the court abused its discretion in denying defendant’s motion to bar reprosecution, we grant defendant’s motion to bar reprosecution.

Reversed.

See Also

Prosecutor Gets Sick In The Middle Of Trial And Can't Continue - Episode 389

 

 

Missouri v. Stockley, 1622 CR 02213-01 (September 2017). Episode 397 (Duration 39:07)

Former St. Louis Officer Jason Stockley acquitted of Murder. Here's what they didn't tell you.

In This Episode

"It seems more reasonable to conclude that what the State characterizes as a 'puff of smoke' was in reality exhaled breath in cold air. Puffs of smoke are seen multiple times on the dash cam video unrelated to the firing of any gun, but coming from the mouths of officers in cold air." -- Judge Timothy J. Wilson

In This Episode

✓ A law enforcement officer need not retreat or desist from efforts to arrest or prevent  the escape of a person the officer believes to have committed an offense. A law enforcement officer is entitled to use deadly force where the officer reasonably believes the use of deadly force is necessary to effect the arrest and reasonably believes the person is attempting to escape by the use of a deadly weapon or may otherwise endanger life or inflict serious physical injury.  (Go to page 19)

✓ There was also no evidence that Stockley even knew who was being pursued. (Go to page 20)

✓ The Court does not believe Stockley's conduct immediately following the end of the pursuit is consistent with the conduct of a person intentionally killing another person unlawfully. (Go to page 21)

✓ Stockley admitted he was in possession of an AK-47 pistol, he testified he knew his possession of such a weapon was in violation of department policy, but he said he had it with him to use as a deterrent in situations in which he (and other officers) might be facing persons armed with more dangerous weapons than a Baretta service revolver. (Go to page 23)

✓ In regards to the gun the prosecution says Stockley planted in the victim's car: The gun was a full size revolver and not a small gun, such as a derringer, that n fit in the palm of one's hand or into the side pocket on a pair of pants without being obvious. Stockley was not wearing a jacket; if he had such  a gun in his possession it would have been visible on the cell phone video. The tun was too large to fit entirely within any of the pockets on the pants he was wearing, there was no bulge in any pocket indicating a gun within the pocket, and the gun would have been visible if it was tucked into his belt. Three were several officers standing around adjacent to the driver's side of the Buick and not one of them was called to testify that the saw Stockley plant a gun in the Buick. (Go to page 25)

Links & Resources

• Judicial Findings & Verdict In The Jason Stockley Trial
• A breakdown of the judge's ruling in Jason Stockley murder case - St. Louis Post-Dispatch
• Stockley case transcripts reveal misstatements to grand jury - St. Louis Post-Dispatch
• Terrifying dash cam footage shows a St. Louis police officer shooting and killing a driver - The Sun
• Laquan McDonald death: Officer indicted on 16 new charges - CNN
• Prosecutors can use what Officer Van Dyke told union rep at Laquan McDonald shooting - Chicago Tribune
• Three Chicago cops indicted in alleged cover-up of Laquan McDonald shooting details - Chicago Tribune
• Dashcam Video of Officer Jason Van Dyke Shooting Laquan McDonald - YouTube

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People v. Peterson, 2017 IL 120331 (September). Episode 396 (Duration 17:32)

Drew Peterson loses his appeal to the Illinois Supreme Court.

Background

Drew Peterson was sentenced to 38 years for the murder of his third wife.

She was discovered drowned in a bathtub and the original autopsy said it was accidental. When Drew’s fourth wife disappeared they exhumed his third wife’s body and the autopsy was changed to murder.

Issue

Statements from the fourth wife were admitted and on appeal Drew argues that the forfeiture by wrongdoing doctrine did not apply and the statements were admitted in error, such error requires this court to reverse his conviction.

Two principals are at issue:

(1) whether, under separation of powers principles, the common-law doctrine of forfeiture by wrongdoing adopted by this court, rather than the forfeiture rule adopted by the legislature, governed the admission of the hearsay statements and
(2) whether the State met its burden of proof at the pretrial forfeiture hearing for admission of the hearsay statements at trial.

Facts

Prior to trial, the State filed a motion seeking the admission of hearsay statements made by Kathleen (third wife and this murder victim) and Stacy (fourth wife still missing presumed dead).

Kathleen

In its motion, the State identified several statements allegedly made by Kathleen to family members and others regarding threats defendant made to her in which he stated that he could kill her and make it look like an accident, she should just die, and she would not make it to the divorce settlement.

The State further sought admission of a letter from Kathleen to the Will County State’s Attorney’s office, as well as Kathleen’s handwritten statement provided to police, recounting an incident in which defendant allegedly entered Kathleen’s home without permission, pinned her to the stairs for over three hours while he reviewed their history, and threatened her with a knife.

Stacy

As to Stacy, the State generally sought admission of statements she made to others regarding defendant’s conduct on the night of Kathleen’s death.

Namely, that defendant was dressed in all black that night and came home and immediately washed women’s clothes. The clothes was not Stacy’s.

Code of Criminal Procedure

Ordinarily, the rule against hearsay would prohibit the introduction at trial of such out-of-court statements that are offered to prove the truth of the matter asserted.

The State, however, sought admission of these statements pursuant to section 115-10.6 of the Code of Criminal Procedure of 1963 (Code), a legislatively created exception to the hearsay rule. 725 ILCS 5/115-10.6. The General Assembly has since repealed section 115-10.6 (see Pub. Act 99-243, § 5 (eff. Aug. 3, 2015)), but at the time defendant was tried, the statute provided as follows:

“Hearsay exception for intentional murder of a witness.

(a) A statement is not rendered inadmissible by the hearsay rule if it is offered against a party that has killed the declarant in violation of clauses (a)(1) and (a)(2) of Section 9-1 of the Criminal Code of 1961 intending to procure the unavailability of the declarant as a witness in a criminal or civil proceeding.

(b) While intent to procure the unavailability of the witness is a necessary element for the introduction of the statements, it need not be the sole motivation behind the murder which procured the unavailability of the declarant as a witness.

(c) The murder of the declarant may, but need not, be the subject of the trial at which the statement is being offered. If the murder of the declarant is not the subject of the trial at which the statement is being offered, the murder need not have ever been prosecuted.

(d) The proponent of the statements shall give the adverse party reasonable written notice of its intention to offer the statements and the substance of the particulars of each statement of the declarant. For purposes of this Section, identifying the location of the statements in tendered discovery shall be sufficient to satisfy the substance of the particulars of the statement.

(e) The admissibility of the statements shall be determined by the court at a pretrial hearing. At the hearing, the proponent of the statement bears the burden of establishing 3 criteria by a preponderance of the evidence:

(1) first, that the adverse party murdered the declarant and that the murder was intended to cause the unavailability of the declarant as a witness;
(2) second, that the time, content, and circumstances of the statements provide sufficient safeguards of reliability;
(3) third, the interests of justice will best be served by admission of the statement into evidence.

(f) The court shall make specific findings as to each of these criteria on the record before ruling on the admissibility of said statements.

(g) This Section in no way precludes or changes the application of the existing common law doctrine of forfeiture by wrongdoing.” 725 ILCS 5/115-10.6.

Common Law Forfeiture By Wrongdoing

The State also sought admission of Kathleen’s and Stacy’s hearsay statements under the common-law doctrine of forfeiture by wrongdoing, referenced in subsection (g) of the statute (725 ILCS 5/115-10.6(g).

The common-law doctrine, which dates back to the seventeenth century, permits the introduction of an absent witness’s statements where the defendant engaged in conduct designed to prevent the witness from testifying. Giles v. California, 554 U.S. 353, 359-61 (2008).

The Supreme Court adopted the common-law doctrine in the early case of Reynolds v. United States, 98 U.S. 145 (1879). Giles, 554 U.S. at 366.

Reynolds explained that the doctrine is founded on the equitable maxim that “no one shall be permitted to take advantage of his own wrong.”

The Federal Rule

The common-law doctrine was eventually codified in the Federal Rules of Evidence as an exception to the rule against hearsay.

The federal rule provides that:

“[a] statement offered against a party that wrongfully caused—or acquiesced in wrongfully causing—the declarant’s unavailability as a witness, and did so intending that result,” is “not excluded by the rule against hearsay.” Fed. R. Evid. 804(b)(6).

Illinois Jumps Aboard (With A Rule)

In People v. Stechly, 225 Ill. 2d 246 (2007), this court recognized the common-law doctrine of forfeiture by wrongdoing as the law of Illinois. People v. Hanson, 238 Ill. 2d 74, 97 (2010).

The common-law doctrine has since been codified in the Illinois Rules of Evidence. See Ill. R. Evid. 804(b)(5) (eff. Jan. 1, 2011). The rule is super simple saying,

"(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (5)  Forfeiture by Wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness."

Statute v. Rule

The trial court believed the statute was applicable and the appellate court says the rule is what governs.

The separation of powers clause of the Illinois Constitution provides that the “legislative, executive and judicial branches are separate” and that “[n]o branch shall exercise powers properly belonging to another.” Ill. Const. 1970, art. II, § 1.

Thus, each branch of government has its own unique sphere of authority.

The separation of powers clause, however, is not intended to achieve a “complete divorce” between the branches of government. The law of evidence is one area in which an overlap between the spheres of authority exercised by the judicial and legislative branches exists.

Although this court is empowered to promulgate rules regarding the admission of evidence at trial, the General Assembly may legislate in this area without necessarily offending separation of powers.

Notwithstanding this overlap between the judicial and legislative branches, this court retains primary constitutional authority over court procedure. Kunkel, 179 Ill. 2d at 528.

Accordingly, where an irreconcilable conflict exists between a legislative enactment and a rule of this court on a matter within the court’s authority, the rule will prevail. See also Ill. R. Evid. 101 (eff. Jan. 1, 2011) (“statutory rule of evidence is effective unless in conflict with a rule or a decision of the Illinois Supreme Court”).

Analysis

We agree with the State that, in this instance, the statute and the rule cannot be reconciled and the statute must give way to the rule. The statute’s imposition of a reliability requirement creates an irreconcilable conflict with a rule of this court on a matter within the court’s authority. Under such circumstances, separation of powers principles dictate that the rule will prevail. 

Rule 804(b)(5) identifies only two criteria or factors that must be satisfied for the admission of hearsay statements under the rule:

(1) that the party against whom the statement is offered “has engaged or acquiesced in wrongdoing” and
(2) that such wrongdoing “was intended to, and did, procure the unavailability of the declarant as a witness.”

Ill. R. Evid. 804(b)(5) (eff. Jan. 1, 2011).

The rule, like our case law, makes no distinction based on the nature of the “wrongdoing.”

Thus, contrary to defendant’s argument, the rule applies whether the declarant is rendered unavailable through murder or some other wrongdoing.

In contrast to the rule, section 115-10.6 of the Code applies exclusively to cases involving the declarant’s murder.

The Statute Required

Significantly, the statute imposes additional criteria that must be satisfied for admission of the declarant’s statements at trial: the proponent of the statements must demonstrate, and the trial court must make a specific finding on the record, that “the time, content, and circumstances of the statements provide sufficient safeguards of reliability.” 725 ILCS 5/115-10.6(e)(2).

This court has held, however, that a defendant forfeits his ability to challenge the reliability of the declarant’s statements by the very act of preventing the declarant from testifying. Hanson, 238 Ill. 2d at 98.

Indeed, requiring additional indicia of reliability would undermine the equitable considerations at the very center of the forfeiture by wrongdoing doctrine.

Accordingly, “so long as the declarant’s statements are relevant and otherwise admissible, statements admitted under the forfeiture by wrongdoing doctrine need not reflect additional indicia of reliability.”

Holding

Thus, the appellate court did not err when it held, in its earlier decision, that the admissibility of Kathleen’s and Stacy’s hearsay statements was governed by the common-law doctrine of forfeiture by wrongdoing, embodied in Illinois Rule of Evidence 804(b)(5), and not section 115-10.6 of the Code.

The Hearing

The State’s burden of proof at a forfeiture by wrongdoing hearing is a preponderance of the evidence. Stechly, 225 Ill. 2d at 278 (citing Davis v. Washington, 547 U.S. 813, 833 (2006)).

The preponderance standard is a less stringent standard than proof beyond a reasonable doubt or even the intermediate standard of clear and convincing evidence.

Under the preponderance standard, the State need only present evidence “that renders a fact more likely than not. Thus, in a forfeiture hearing, the State must establish that defendant, more likely than not, engaged or acquiesced in wrongdoing and that such wrongdoing was intended to, and did, procure the unavailability of the declarant as a witness."

Ill. R. Evid. 804(b)(5) (eff. Jan. 1, 2011).

See Also Rule 104

"(a) Questions of Admissibility Generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination, the court is not bound by the rules of evidence except those with respect to privileges.

Defendant's Beef

Defendant here does not challenge the trial court’s finding that the State established the “wrongdoing factor,” i.e., that the State proved by a preponderance that he murdered Kathleen and Stacy.

Defendant does challenge the trial court’s finding that the State established the “intent factor,” i.e., that the State proved by a preponderance that he murdered the two women to make them unavailable as witnesses.

This Hearing

The court disagreed, however, with defendant’s second proposition—that proof of a defendant’s intent to prevent a witness from testifying requires the State to identify the specific testimony from the absent witness that the defendant wished to avoid.

Nothing in Giles, our case law, or the language of Illinois Rule of Evidence 804(b)(5), suggests such an evidentiary requirement.

There is, of course, evidentiary value to the State of identifying the testimony the absent witness likely would have provided. Establishing the intent factor is an easier task with, rather than without, such evidence. But adopting defendant’s position and requiring such evidence in every case in which the State relies on the forfeiture by wrongdoing doctrine would come very close to imposing upon the State the burden of proving intent by direct evidence.

Motive and intent, however, are rarely proved by direct evidence. Rather, they “must be inferred from conduct and the surrounding circumstances.”

No reason exists to depart from this evidentiary construct.

Accordingly, we hold that the State need not identify the specific testimony defendant wished to avoid in order to prove defendant’s intent for purposes of the forfeiture by wrongdoing doctrine. The State was only required to prove that her murder was motivated “at least in part” by an intent to prevent her from testifying.

When we codified the common-law doctrine of forfeiture by wrongdoing in Illinois Rule of Evidence 804(b)(5), we did not condition the doctrine’s application on the existence of a pending legal proceeding. 

Closing

Equity demands that a defendant who silences a witness, or a potential witness, through threats, physical violence, murder, or other wrongdoing should not be permitted to benefit from such conduct based solely on the fact that legal proceedings were not pending at the time of his wrongdoing.

Because the absence of pending legal proceedings is not a bar to application of the forfeiture by wrongdoing doctrine, the State was not precluded from pursuing its theory that defendant’s intent, when he murdered Stacy, was to prevent her from reporting to police defendant’s involvement in Kathleen’s murder or testifying at a reasonably anticipated divorce hearing or criminal trial.

See Also

• Attorney Conflict of Interest: Did Drew Peterson’s Attorney Have One When He Signed a Publicity Contract? (Episode 106)
• How Did the Clergy Privilege Make an Appearance in the Drew Peterson Case? (Episode 107)

People v. Boykins, 2017 IL 121365 (September). Episode 395 (Duration 9:31)

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

Issue

Defendant was admonished on his 3 years of MSR when he plead guilty to murder for 22 years.

On appeal he is saying the court failed to adequately admonish him regarding the statutorily required three-year term of MSR.

He maintains that although the court mentioned MSR when admonishing him about the possible range of penalties he could receive, the admonishments did not satisfy due process where the court did not “link” the admonishment about the MSR term with his actual agreed-upon sentence to clearly apprise defendant that MSR would apply to his bargained-for sentence.

He argues that an ordinary person in his circumstances would not understand that his sentence included the three-year MSR term.

Facts

Section 5-8-1(d)(1) of the Unified Code of Corrections (Code) requires that a sentence for first degree murder must include a three-year MSR term in addition to the term of imprisonment. 730 ILCS 5/5-8-1(d)(1) (West 2008).

Since the MSR term is statutorily mandated, it is not part of the plea bargain; the State cannot offer to exclude it as a part of a plea negotiation, and the court has no authority to withhold it in imposing sentence.

Rule 402

The requirement that a defendant be informed of the statutorily required MSR term arises from Illinois Supreme Court Rule 402(a)(2), which mandates that in hearings on pleas of guilty, the trial court must inform the defendant and determine that he understands “the minimum and maximum sentence prescribed by law.” Ill. S. Ct. R. 402(a)(2) (eff. July 1, 1997).

Case Law

In Whitfield, this court explained that pursuant to Rule 402, “every defendant who enters a plea of guilty has a due process right to be properly and fully admonished.” Whitfield, 217 Ill. 2d at 188.

Thus, before accepting a guilty plea, the trial court must substantially comply with Rule 402(a)(2). To substantially comply with Rule 402 and due process where a defendant enters into a negotiated plea for a specific sentence, the trial court must advise the defendant, prior to accepting his plea, that a term of MSR will be added to the sentence.

Therefore, where Whitfield had bargained for a specific sentence, and the trial court accepted his plea without advising him that an MSR term would be added to the sentence, we held that Whitfield essentially received a sentence that was more onerous than the sentence for which he bargained, which violated due process notions of fundamental fairness.

“Whitfield requires that defendants be advised that a term of MSR will be added to the actual sentence agreed upon in exchange for a guilty plea to the offense charged.”

“An admonition that uses the term ‘MSR’ without putting it in some relevant context cannot serve to advise the defendant of the consequences of his guilty plea and cannot aid the defendant in making an informed decision about his case.”

To ensure that defendants understand the consequences of their plea agreement and to avoid prolonged litigation on the issue, we strongly encouraged trial court judges to follow best practices in admonishments.

Best Practice

This includes:

(1) The admonishment about MSR should be explicitly linked to the sentence to which defendant agreed in exchange for his negotiated plea
(2) be given when reviewing the provisions of the plea agreement, and
(3) be reiterated both at sentencing and in the written judgment.

Nevertheless, we recognized that “there is no precise formula in admonishing a defendant of his MSR obligation” and that the admonition must be read in a practical and realistic way.

Sufficient If...

Consequently, we held that to satisfy due process, the admonition is sufficient if an ordinary person in the circumstances of the accused would understand it to convey the required warning.

Analysis

Here, he was  advised that

“[u]pon your release from the penitentiary, there is a period of three years mandatory supervised release, sometimes referred to as parole.”

From this information, an ordinary person in defendant’s circumstances would understand that the penalty for the offense to which he was pleading guilty required a period of imprisonment in the range of at least 20 to 60 years and that any term he served in prison would be followed by a 3-year period of MSR.  

Defendant does not dispute, and the record reflects, that he understood the concept of MSR or parole.

Proper Admonishments

Where defendant was informed that MSR was a required part of any sentence that would be imposed upon his release from prison, a reasonable person would understand that his negotiated prison sentence would be followed by a term of MSR.

When read in a practical and realistic manner and judged by an objective standard, the record reveals that defendant’s due process rights were satisfied.

Additionally, as required by Rule 402, defendant was made aware that the minimum possible penalty for the offense to which he was pleading guilty was 20 years in prison plus a 3-year term of MSR, which is a total period of 23 years.

Thus, an ordinary person in defendant’s circumstances would understand that the minimum possible penalty was 23 years.

Therefore, defendant’s allegation—that his understanding was that the full extent of his penalty was 22 years—is contradicted by the record. Those cases that have found a violation of due process are cases in which the MSR admonitions did not convey unconditionally that an MSR term would follow those bargained-for sentences.

Morris Overruled

Morris established a bright-line rule that to satisfy due process the admonishments must expressly link MSR during the pronouncement of the agreed-upon sentence, we reject such a rigid interpretation as inconsistent with our decision in Morris. To the extent that the foregoing cases applied a bright-line rule requiring a link of MSR to the pronouncement of the agreed-upon sentence, we expressly overrule them.

We trust that going forward the trial court will seek to follow the guidelines set forth in Morris to avoid any potential for confusion in the future and to insulate the plea from subsequent attack. Additionally, we note that the Code now requires judges to include MSR in their written sentencing orders. 730 ILCS 5/5-8-1(d).

Holding

In sum, we hold that the summary dismissal of defendant’s postconviction petition was proper where the record refutes his claim that the trial court’s admonishment regarding the requisite statutory MSR term fell short of constitutional due process requirements.

Round v. Lamb, 2017 IL 122271 (August). Episode 394 (Duration 10:39)

Defendant has to do 4 years of MSR even though they didn't write it down on the sentencing order.

Facts

Petitioner, Danny Round, is presently incarcerated and seeks immediate release on the basis that he has already served his entire sentence, including two years of mandatory supervised release.

He plead guilty to two counts: violation of order of protection and harassment of a witness. He served 2 and 5 years concurrently.

His sentencing order said he owed 2 years MSR on the harassment of a witness case but did not list anything for the OP violation. By statute, a sentence for violating an order of protection includes a four-year MSR term. 730 ILCS 5/5-8-1(d)(6).

Issue

Petitioner argues he is entitled to immediate release from custody and seeks an order of habeas corpus or, alternatively, mandamus.

It is clear the court and petitioner believed petitioner was pleading guilty in exchange for a sentence of seven years in custody—five years in prison (the five- and three-year terms served concurrently) and two years of MSR. Enforcing the four-year MSR term extends the sentence to nine years.

Not Mentioned During Plea

However, no term of MSR connected to that conviction was mentioned during plea negotiations, during the sentencing hearing, or in the written sentencing order.

The circuit court of Cook County conceded that it had not informed petitioner of the four-year MSR term on count III, noting that the court had failed to realize that although count III was a lesser class felony than count I, it carried a longer MSR term.

Defendant served all his time and was “violated at the door” for failure to identify a suitable host site for electronic monitoring. He was not released after his 2 years of MSR because the Illinois Department of Corrections asserted that his sentence included a four-year MSR term by law and that the four-year term did not start until the completion of the five-year prison sentence.

Case Law

The Illinois Supreme Court has noted that the plain language of section 5-8-1 of the Unified Code of Corrections, which at that time stated that “except where a term of natural life is imposed, every sentence shall include as though written therein a term in addition to the term of imprisonment. ” 730 ILCS 5/5-8-1(d).

The court concluded that “the sentencing order issued by the trial court included a term of MSR even if the court did not mention the MSR term at the sentencing hearing or in the sentencing order.”

The language of that statute has since been amended: in 2009, the phrase “as though written therein” was eliminated (Pub. Act 95-1052 (eff. July 1, 2009)), and in 2012, the requirement that the mandatory supervised release term “shall be written as part of the sentencing order” was added (Pub. Act 97-531, § 5 (eff. Jan. 1, 2012)).

Current Statute

The current requirement is that all sentences, except natural life sentences, include an MSR term. 730 ILCS 5/5-4.5-15(c) (West 2016); see also People v. Viverette, 2016 IL App (1st) 122954, ¶ 24 (“Section 5-8-1(d)(1) read in conjunction with section 5-4.5-15(c) makes it clear that the MSR term was a mandatory component of defendant’s sentence and that it was imposed by the court and not the DOC.”).

This section says:

“Except when a term of natural life is imposed, every sentence includes a term in addition to the term of imprisonment.”  730 ILCS 5/5-4.5-15(c).

MSR Term Required

Certainly, the statute now requires judges to include MSR in their written sentencing orders.

What is not clear is the effect of failure to comply with that requirement.

Directory Requirement

The answer turns on whether the requirement is directory or mandatory. Procedural commands to government officials—here, the command to trial judges to include the appropriate MSR term in their written sentencing orders—are presumed to be directory. People v. Geiler, 2016 IL 119095, ¶ 18; People v. Delvillar, 235 Ill. 2d 507, 517 (2009).

“The presumption is overcome *** only if

(1) negative language in the statute *** prohibits further action in the case of noncompliance or
(2) the right the statute *** is designed to protect would generally be injured under a directory reading.” Geiler, 2016 IL 119095, ¶ 18 (citing Delvillar, 235 Ill. 2d at 517). ¶ 14

The statute does not include any negative language prohibiting further action in the case of noncompliance. It prescribes no result for situations in which the judge fails to include the MSR term in the written order.

This rule is clearly directory.

Where The Law Came From

The substantive rights of the accused are not violated when the law is not followed.

Instead, the legislative history is quite clear that the rule came from the IDOC which was just looking for guidance on setting MSR for inmates.

When a requirement is directory, “no specific consequence is triggered by noncompliance.” Geiler, 2016 IL 119095, ¶ 24. A petitioner must show he was prejudiced to be entitled to relief for a violation of a directory rule. He suffered no prejudice.

Therefore, the high court said the MSR term is included in the sentence as a matter of law and that the failure to include the term in the written sentencing order does not on its own invalidate the sentence or any part of it.

Can He Be In Prison And On MSR Simultaneously?

Next defendant said his MSR for the OP should have started when he finished the 3 year sentence.

But this is illogical.

It would be illogical to hold that a prisoner can simultaneously be serving a prison term and be on supervised release. Supervised release is designed to facilitate reintegration back into society, a purpose distinct from serving time in prison. See 730 ILCS 5/3-3-7(a).

See 730 ILCS 5/5-4.5-45(l) (West 2016) (“[T]he parole or mandatory supervised release term shall be one year upon release from imprisonment.”

The Remedy

He’s doing the required MSR error or not.

But...

There is a case law saying defendant should be allowed to withdraw his plea or have a judge re sentence him so that the terms of the plea are complied with. But here he declined to withdraw his guilty plea when he had a chance.

Holding

In light of these facts, petitioner has not proven he had a right to have his sentence reconfigured in this case.

Therefore, he is not entitled to the extraordinary remedies of habeas or mandamus. the Unified Code of Corrections continues to indicate that a term of mandatory supervised release is a mandatory part of a sentence. The circuit court’s failure to comply with the requirement that the MSR term be included in the written sentencing order does not invalidate that part of the sentence.

 

When, as here, an offender receives multiple, concurrent sentences including terms of MSR, the prison terms are to be served concurrently, and then the MSR terms are to be served concurrently to one another once all prison terms have been completed.

 

In most cases, this results in the offender serving the lengths of the prison and MSR terms of the most serious offense. In this case, however, the lesser felony—violation of an order of protection—carries a longer term of MSR than the more serious felony, resulting in a longer overall time in custody.

 

However, petitioner had an opportunity shortly after beginning to serve his prison sentence to withdraw his guilty plea in light of the error. Petitioner declined to withdraw his guilty plea at that time and has not proven a right to have his sentence reconfigured. The motion for an order of habeas or, in the alternative, for mandamus is denied. Writ denied.

People v. Djurdjulov, 2017 IL App (1st) 142258 (September). Episode 393 (Duration 22:18)

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

Cobras v. SGD

The Spanish Cobras gang and the Spanish Gangster Disciples (SGD) gang fought for control of areas in Chicago early in 2009.

On January 30, 2009, a thrown glass bottle shattered a window in the home of Djurdjulov, a member of the Cobras.

Around 1 a.m. on January 31, 2009, a fire started raging through a three-story apartment building on Argyle Street, near Pulaski Road.

Members of the SGD lived on the second and third floors of the burned building.

Rosanna Ocampo and her daughter, Itzel Fernandez, who lived on the second floor of the building, died from inhaling smoke from the fire.

Arson Suspected

Firemen at the scene smelled gasoline in the building.

Police recovered debris from the scene and sent it to a lab to test for accelerants.

The Interrogation

Police arrested Djurdjulov on March 10, 2009, in connection with an incident unrelated to the fire.

Djurdjulov remained in an interrogation room at the station for about 36 hours, where police questioned him about the fire. After about 24 hours in custody, including 6 hours of questioning, and significantly after detectives told Djurdjulov about the cell phone records, Djurdjulov changed his account, and said he saw the fire when it started. Police recorded the questioning.

Djurdjulov eventually said that David Vasquez, a former member of the SGD, started the fire, and Vasquez asked Djurdjulov to act as a lookout.

Djurdjulov said he went with Gomez around midnight to drop off some friends with whom they had spent the evening. After they dropped the others off, Djurdjulov needed to urinate. Gomez parked and Djurdjulov got out of the car. He went into an alley to urinate. He saw an empty bottle, near a building where he knew SGD lived.

He decided to throw the bottle through the window of the home. As he got to the building, he saw the fire starting and he saw Avila leaving the building.

Detectives said someone must have helped Avila.

Djurdjulov said he saw a second person in a hoodie leaving with Avila, but he did not recognize that person.

Prosecutors charged Djurdjulov with two counts of first degree murder.

Cell Phone Records
Mentioned In Interrogation

Detectives told Djurdjulov that Avila’s cell phone records showed that Avila stayed home that night. Djurdjulov said he saw Avila around 7 p.m. on January 30, 2009, several hours before a bottle came through the window of Djurdjulov’s home, and Avila said he intended to get revenge on SGD because they shot at him.

Detectives emphasized that the cell phone records made the account unbelievable.

Some hours later, Djurdjulov changed his account again.

He said Vasquez, formerly an SGD, set the fire.

Djurdjulov said Avila did not come to the scene at all.

Djurdjulov saw Vasquez in Cobras territory on January 30, 2009. Vasquez told Djurdjulov to meet him near the SGD home on Argyle at 1 a.m. so Djurdjulov could watch Vasquez burn it. Police said that Vasquez must have needed someone to look out for police and SGD. Djurdjulov said that Vasquez asked him to act as a lookout, and he agreed.

Detectives told Djurdjulov that the cell phone records showed his phone exchanging texts with Gomez’s phone.

They said his story, that Gomez dropped off some friends with Djurdjulov in Gomez’s car and then they went to the Santiagos’ home, made no sense because he would not send text messages to Gomez while riding in Gomez’s car.

The detectives also told Djurdjulov that his cell phone records showed a call to Camacho, another Cobra, around 1 a.m. Djurdjulov continued to insist that he did not call Camacho any time near 1 a.m., and Djurdjulov had ridden in Gomez’s car after midnight and then went with Gomez to the Santiagos’ home around 1 a.m.

Djurdjulov said that when he went to meet Vasquez at the arranged spot before 1 a.m., Gomez parked and Djurdjulov got out of the car without telling Gomez about the arranged meeting. Djurdjulov also said, consistently, that he did not tell Gomez about the fire when he returned to Gomez’s car.

The parties stipulated to cell phone records that showed a call from Djurdjulov to Camacho around 3 a.m. on January 31, 2009, but no call near 1 a.m.

Over the course of about 36 hours in the interrogation room from March 10 to March 12, 2009, in about 8 hours of questioning, the detectives who interviewed Djurdjulov frequently accused him of lying and frequently yelled at Djurdjulov.

Motion For Funds

Djurdjulov expected police to use cell phone records as evidence at the murder trial.

Defense counsel filed a motion asking the court for funds so that Djurdjulov could pay an expert to analyze the cell phone records and help with cross-examination of the prosecution’s cell phone expert.

At the hearing on the motion, Djurdjulov testified that he owned no bank accounts, no car, no valuable items like electronics or jewelry, no home or land, no business, and no assets he could use to pay for an expert. Djurdjulov testified that his aunt paid the fees of his privately-retained attorney.

The State offered no evidence to challenge the credibility of Djurdjulov’s assertions about his assets.

Trial Court Denies Motion

“[Djurdjulov has] been represented by privately-retained attorneys for the last four years. He in fact may be indigent, but someone’s been paying the bills for his representation. It would seem to me if the issue is the expert fees for the defense of the case, in light of the fact that persons *** have been providing funds to represent him in the case so far, that the issue is is that person able to pay for the expert fees.”

The court denied the request for fees.

Other Witnesses

No witness claimed to have seen who set the fire, and no witness claimed to have seen Djurdjulov near the apartment building near the time the fire started.

Michael testified that police arrested him on March 17, 2009, and told him someone had identified him as a shooter in an incident unrelated to the fire.

Police questioned Michael about the fire and not about the shooting.

He told them that Djurdjulov said he set the fire.

Prosecutors never charged Michael in connection with the shooting incident.

The parties stipulated that Michael told an investigator working for defense counsel that Djurdjulov had not smelled like gasoline on January 31, 2009. The parties stipulated that Michael also said to the investigator that during the questioning in March 2009, police told Michael that they would release him from custody if he said what police wanted to hear about Djurdjulov.

Michael testified that he lied to the defense investigator.  

At the trial Michael testified that around the time of the arson defendant's left his gas-soaked pants in Michael’s bathroom.

Michael put the pants in the garbage.

The Cell Phone Records

 Joseph Raschke of the Federal Bureau of Investigation testified that the numbers in the record identified the cell phone that made each call, the cell phone that received the call, and the cell phone towers that transmitted the signals to and from those cell phones.

From the location of the tower that transmitted the call, Raschke could approximate the location of the cell phone, within a radius of one or two miles.

Records for Avila’s phone showed that he made and received several calls after midnight on January 31, 2009, and all used the tower nearest to Avila’s home.

Calls from Djurdjulov’s phone at 12:53 a.m. and 1:06 a.m. used a tower only two blocks from the fire.

A call at 1:12 a.m. used a tower near Cicero and Peterson.

According to Raschke, the calls showed that Djurdjulov was near the scene of the fire when the fire started, and he left the area soon thereafter.

On cross-examination, Raschke admitted that obstructions, or damage to a tower, can affect which tower transmits a call. Raschke did not check for obstructions or damage to towers in the area of the fire and surrounding neighborhoods.

Defendant's Witness

A codefendant testified for defendant saying he was with all the players the night of.

Defendant never smelled like gas and he never said he did it.

Further, all he ever did was get out of the car to take a piss and he never made the calls the police said he made.

Jury Deliberations

During deliberations, the jurors requested the cell phone records, a map showing the cell phone towers, and a transcript of the questioning of Djurdjulov from March 10 to March 12, 2009.

The court sent the requested materials to the jury.

The jury found Djurdjulov guilty of the first degree murders of Ocampo and Fernandez.

Sentence

The presentence investigation report showed that Djurdjulov, who turned 18 between the date of the fire and the date of questioning.

The trial court sentenced Djurdjulov to two terms of 45 years in prison with the sentences to run consecutively.

Issue Not Waived

First, constitutional issues that were previously raised at trial and could be raised later in a postconviction petition are not subject to forfeiture on direct appeal.

When, as here, a defendant fails to raise a constitutional issue in a posttrial motion but the issue was raised at trial and could be raised in a postconviction petition ‘the interests in judicial economy favor addressing the issue on direct appeal rather than requiring defendant to raise it in a separate postconviction petition.

We find that Djurdjulov has not forfeited review of the issue of whether the trial court violated his constitutional right to a fundamentally fair trial when the court denied his request for fees so that he could hire an expert to review the cell phone data.

We review the issue under the standards for issues properly preserved for review, despite the failure of Djurdjulov’s counsel to include the issue in the posttrial motion for a new trial.

Issue

Djurdjulov contends that the trial court violated article I, section 8 of the Illinois Constitution (Ill. Const. 1970, art. I, § 8) and the sixth amendment to the United States Constitution (U.S. Const., amend. VI) when it denied his motion for fees so that he could hire an expert to analyze the cell phone records. See People v. Lawson, 163 Ill. 2d 187, 219-20 (1994).

Expert Witness

Every defendant accused of a crime has a “fundamental right to summon witnesses in his behalf.” Lawson, 163 Ill. 2d at 220. “[The right] should not be made to depend upon the financial circumstances of the defendant.

Reasonable funds should be made available to accuseds, in certain circumstances, in order to imbue the right with substance.” Lawson, 163 Ill. 2d at 220.

“[I]t is well established that a denial of funds to an indigent for the securing of expert witnesses in defense of criminal charges may violate constitutional protections.”

Right To Funds

A defendant establishes a right to funds for an expert witness “where the defendant demonstrates that the expert services sought are necessary to prove a crucial issue in the case and where the defendant’s financial inability to obtain his own expert will prejudice his case.”

The State contends that Djurdjulov did not prove indigence.

Djurdjulov testified that he owned no bank accounts, no car, no valuable items like electronics or jewelry, no home or land, no business, and no assets he could use to pay for an expert.

The State offered no evidence to challenge the credibility of Djurdjulov’s assertions about his assets.

A defendant needs to establish only his own indigence as part of the proof needed to show a right to fees. He need not show the indigence of relatives or other persons he knows. Friends, relatives, or others who help with some of the costs of defense have not thereby committed themselves to paying all costs necessary for the defense.

When a defendant shows indigence and the need for an expert, he has a right to fees “regardless of whether the indigent defendant receives assistance of counsel from a court-appointed attorney.

It is the indigency of the defendant that matters, not who represents the defendant at trial.

Case Law

Nonetheless, the State contends that we should affirm the conviction despite the court’s error because Djurdjulov did not show that he needed an expert witness. United States v. Durant, 545 F.2d 823 (2d Cir. 1976), which our supreme court cited with approval in Lawson, 163 Ill. 2d at 229, provides useful guidance.

Prosecutors accused Durant of bank robbery, and they intended to present testimony from a fingerprint expert. Durant sought funds so that he could hire an expert to examine the prints from the crime scene. The trial court denied the request, finding that defense counsel could protect Durant’s rights by cross-examining the prosecution’s expert.

The expert testified that fingerprints found on the examination of a government expert as well as presentation of an expert defense witness. This does not mean that applications for expert assistance should be granted automatically, or that frivolous applications should be granted at all. But it does mean that the Act must not be emasculated by inappropriate construction.

The 2nd Circuit said in that case the judge should have granted the defense request for appointment of a fingerprint expert.

We find Durant persuasive.

Analysis

The cell phone records here formed a critical part of the evidence against Djurdjulov.

The jury apparently considered the cell phone evidence especially significant, as it specifically requested the records and a map showing the locations of the towers relative to the fire and the other addresses mentioned at trial.

The defense needed an expert at least to educate defense counsel about the technicalities of the field and to assist with the preparation of an effective cross-examination of Raschke.

Even the police needed help understanding the records, as the officer who obtained the records said cell providers explained the records, which he found “quite confusing.”

Less Than Slam Dunk Against Defendant

The other witnesses against Djurdjulov, like the robbers who testified against Durant, had much to gain from testifying against Djurdjulov.

The dissent relies in part on the testimonies of Michael, LaSalle, and Quesada, who all changed their statements completely after police arrested Michael and Michael stood to gain a considerable advantage by testifying against Djurdjulov. Michael, LaSalle, and Quesada all testified that they lied to police, and after they changed the account they gave police, they lied to a defense investigator. A reasonable trier of fact could reject all of the testimony of Michael, LaSalle, and Quesada as lacking credibility.

While Djurdjulov eventually gave a statement implicating himself as an accomplice, the prosecutor argued that the jury should not believe the statement, except insofar as it placed Djurdjulov at the scene of the fire with some idea that someone might start a fire there.

Here, police kept Djurdjulov, a teenager, in custody for 36 hours, during which police used deception and intimidation to elicit statements from Djurdjulov. Djurdjulov made a number of statements. The State asked the jury to reject as unbelievable almost all aspects of almost all of the statements Djurdjulov made. But the State and the dissent now insist that we should find that part of one of the statements amounts to overwhelming evidence that Djurdjulov committed murder, even while the State and the dissent demand that we reject as unbelievable other parts of the same statement. We find that a reasonable trier of fact could disagree with the prosecution’s tenuous inferences from the inconsistent statements made after a long period in custody.

The jury could have viewed Djurdjulov’s statement, in the context of the extensive questioning, as his effort to explain the evidence the police described and not as a truthful statement at all.

No physical evidence tied Djurdjulov to the crime or the crime scene. No credible prosecution witness saw Djurdjulov near the murder scene.

The only credible prosecution witness whose testimony placed Djurdjulov near the scene of the crime was Raschke, the cell phone expert. An expert who could challenge the credibility of Raschke’s testimony could have made a critical difference in the result of the trial.

We find that the record supports the conclusion that the lack of an expert prejudiced Djurdjulov.

Holding

The trial court abused its discretion when it relied on the payment of fees by Djurdjulov’s aunt to private counsel as grounds for denying the indigent Djurdjulov the fees needed to retain an expert.

Following Durant, we vacate the convictions and remand for a new trial.

We have given serious consideration to merely remanding for appointment of an expert whose report could then be considered by the trial court or by us in deciding whether to grant a new trial.

But we believe this misconceives the purpose of providing expert service to the defense.

It is not to supply either the trial or appellate court with anything, but to furnish defense counsel expert information to use as he sees fit. It may be that such expert advice will prove to be of little or no assistance, but on this record we can hardly say that.

Furthermore, even if the new trial ultimately proves wasteful because an appointed expert does not help the defense, none of the blame for the waste will rest with the defendant.

Under the circumstances, we believe it appropriate to order a new trial.

 The prosecution has not met its burden of proving that the trial court’s error was harmless beyond a reasonable doubt. Following the reasoning of Durant, 545 F.2d at 827-29, we find that we must reverse the convictions and remand for a new trial because of the trial court’s constitutional error of denying Djurdjulov’s motion for the funds he needed to hire an expert to challenge Raschke’s testimony.

The trial court denied Djurdjulov his right to present witnesses on his behalf when it denied his request for fees so that Djurdjulov could hire an expert to contest the prosecution’s evidence concerning cell phone records.

Accordingly, we vacate the convictions and remand for a new trial.

See Also

Episode 279 - How To Win A Motion For Funds With Joshua Kutnick

In re Christian W., 2017 IL App (1st) 162897 (August) Episode 392 (Duration 22:36)

Victim shot in the head then he was fed facts by the detectives about the identify of the person who shot him.

Gist Of The Case

The victim and his brother are shot in the head but survive.

One of the victim’s has different versions of who shot them. He implicates the accused minor and another kid from the neighborhood. However, the victim gave several conflicting accounts about the number of shooters and how they looked.

Police Fed Him Info

He admitted on the stand that he incorporated information he received from the police into his own uncertain recollections.

He said the originally thought one of the shooters had short hair but the Detective responded that the “other people interviewed” all said “the [second] shooter had dreads.” After his interview with the Detective the victim nonetheless “went with * * * the dreads.”

He explained, “I was never one hundred percent sure about the guy had dreads,” but “I did tell the State I thought the guy had dreadlocks because that’s what [Detective Galliardo] * * * was telling me,” and “I kind of got confused by the officer coming to tell me what other people were saying.”

Then Pleads The Fifth

At one point in the trial the victim refused to answer questions about his own drug dealing and possible motives others had to shoot him. Instead he invoked his privilege against self-incrimination and declined to answer any further questions about his alleged drug dealing. The trial court said it would consider the assertion of the privilege when weighing his testimony.

Trial Court

In the end the trial court found the victim’s identification of Christian was positive and reliable.

In reaching this conclusion, the trial court conducted its analysis entirely within the framework of Neil v. Biggers, 409 U.S. 188 (1972), and People v. Slim, 127 Ill. 2d 302 (1989).

The trial court found that all five of the Slim/Biggers factors supported Michael’s identification. The trial court paid special attention to one factor—the accuracy of the witness’s prior description—and used it as an analytical framework for addressing Christian’s challenges to the victim’s credibility.

It Should Be Noted

The co-accused minor was acquitted of all charges.

Issue On Appeal

The State’s case against Christian comprised a single eyewitness identification, with no other occurrence witnesses, no physical evidence, no confession, and no evidence of motive. Because Christian’s adjudications are based entirely on one victim’s identification testimony, the question we must confront is whether a trier of fact could rationally believe that testimony, on its own, was sufficiently trustworthy to prove Christian guilty beyond a reasonable doubt.

Initial Statement

In his initial statement to the police only hours after the shooting, while he was still at the hospital.

He did not say that Christian was involved in the shooting, even though he had known Christian for several years and claimed to have recognized him immediately during the shooting.

The victim’s narrative account of the incident included a fine-grained description of a lone shooter:

a black male, 18-20 years old, 5’4’’-5’5’’, and 140-145 pounds; with a medium complexion and short hair; wearing a red, green, and brown hoodie; and holding a black scarf over his mouth.

That description bears little resemblance to Christian or to the description of Christian that the victim gave in later police interviews and at trial.

Christian was far younger (14 years old), and though the victim did not know his precise age, he “knew he was young.” Christian was two inches taller and twenty pounds heavier.

Christian was always (later) described by the victim as wearing, at the time of the shooting:

a black shirt, brown or tan pants, and black shoes, not a red, green, and brown hoodie.

And that is to say nothing of the two features that he continually cited as most distinguishing Christian: his hair (“curly straight almost like Hispanic”) and his eyes (“darkened eyes,” “like raccoon-ish eyes”).

What About The Second Shooter?

The notion that the victim had been describing the supposed second shooter—the one who shot him, not his brother—holds no water.

He only described one shooter to Rios, and that description bore no resemblance to either Christian or the second shooter tentatively identified later, as “Munchie.”

But Victim's Are Often Scared To Cooperate...

It’s true that sometimes a victim has a knee-jerk instinct not to cooperate with law enforcement.

Sometimes a victim may want to seek retribution of his own, outside the justice system, and identifying Christian would interfere with that plan. He may have been fond of Christian and was reluctant, at least initially, to turn him in. Or he may have been scared, thinking that if Christian was acting at the direction of someone else (perhaps “Little Dave”), identifying Christian to the police could endanger his own life.

It would not be the first time that a witness declined to cooperate with law enforcement in the apprehension or prosecution of a suspect.

This Victim's Reasons Remain Unknown

But this victim gave none of those reasons at the adjudicatory hearing.

As described earlier, he testified that he did not appreciate the detective’s attitude, and that “[i]t just didn’t seem right at the time” to give Christian’s name.

And even if one or more of the excuses we have posited above were the real reason for the victim not identifying Christian, those excuses would still not explain why the victim, rather than remain mum, gave a wholly inaccurate description of the shooter.

Bottom Line On Initial Statement

This was the reviewing court’s concern with the victim’s credibility is his account of the events at the hospital to Detective Rios: He did not identify Christian by name. He did not describe Christian by appearance. He never mentioned a second shooter. And the description that he did provide did not even resemble that of the second shooter he later tentatively identified.

Also troubling was the fact that the trial court did not reconcile the victim’s testimony at trial with the statement he gave the detective.

At trial the victim said he did identify a second shooter and described Christian to the detective, but the detective at at trial adamantly denied this.

It would be one thing had the trial court found Detective Rios incredible for whatever reason—dishonesty, incompetence, or that he was merely confused—and determined that the victim was more credible. But there was no such finding by the court, nor does the State contend as much.

And the explanations we have been given for the inconsistencies are unsatisfactory.

Wait There's More...

And if this was not enough to find the victim’s statement suspect there was the second interview with Detective Galliardo.

This testimony casts serious doubt, by itself, on his credibility.

First, if we are to believe him here, the victim admittedly was willing to change his story and falsely identify a different individual as the second shooter based on what a police detective told him.

To be fair, he did not positively identify that second shooter, but he identified him no less. He told prosecutors that Davon and Donovan were different people, though he did not believe that to be true.

Why He Lied About The Second Shooter

He told them the second shooter had dreadlocks, though he did not believe that to be true.

His stated reasons why he lied do more harm than good to his credibility. First, he claimed confusion. He said he mixed up the similar names “Davon” and “Donovan.” And this Davon/Donovan individual—“Munchie”—used to have dreadlocks before apparently getting a haircut.

In other words, the victim claimed at trial that there was only one “Munchie,” but the names and former-versus-current hairstyles of that individual threw him off during the meeting with prosecutors a month before trial.

The trial court accepted that explanation.

The reviewing court could not.

Now He Remembers Dread-Locks?

And while it might be understandable that the victim might have confused the similar names “Davon” and “Donovan,” no amount of confusion could explain why he now remembered the second shooter as having dreadlocks, not short, inch-high hair.

His attempt to explain away that discrepancy by suggesting that “Munchie” used to have dreadlocks, then got a haircut, does nothing to help him. Whatever hairstyles the second shooter once wore, the victim saw short, inch high hair on the day of the shooting, yet he told the prosecutors a month before trial that the second shooter wore dreadlocks.

The trial court did not mention the hairstyle discrepancy in attributing his see-sawing account to “confusion.”

Detective Fed Him Facts

And then, of course, there is Michael’s claim at trial that he was fed facts by the detectives.

The State, interestingly, does not disavow this portion (or any portion) of the testimony, either. In fact, the State embraces it, calling him “honest and forthcoming” about it.

We will say this much for this apparent concession by the State:

the victim’s claim of being fed such facts as the dreadlocks by the police was certainly unrebutted in the record—unrebutted, that is, because the State apparently saw no reason to call either the detective accused of fact feeding—Detective Galliardo—or Galliardo’s unnamed partner.

Of course, the State is not required to call any particular witness, but we do find it troubling that the State remained mute in the face of that serious accusation by a witness for the State—a witness on whose credibility the entire case turned.

So the trial court seemed to believe that the police fed the victim facts at the interview, and the State accepts it as fact. And both the court and the State embraced it as an excuse for the victim’s confusion.

If the victim was being “honest and forthcoming” at trial about police fact-feeding, then he was admitting to tailoring his testimony away from his memory and belief based on what the police had told him, and thereby accusing someone falsely of attempted murder.

Defendant Asked The Trial Court To Drive A Truck Through It

Christian invited the reviewing court to take it all the way.

He says that if police suggestiveness regarding “Munchie,” existed it follows that the identification of Christian is tainted, too.

It is impossible to believe, that the same detective who fed the victim facts about one shooter “scrupulously avoided contaminating him” with facts about the other shooter, especially when his description of the events and shooter(s) changed so dramatically upon meeting with that very officer.

It would be tempting, as Christian argues, to paint that entire interview with a broad brush of taint and infer that the police may have given the victim Christian’s name and description, too. But the trial court obviously did not see things that way; though the court barely mentioned the rather disturbing (and conspicuously unrebutted) allegation of police fact-feeding, the trial court clearly accepted the victim’s identification of Christian, the only person on trial.

Since Trial Court Bought It Appellate Court Must Accept It

So the reviewing court did not agree to go as far as Christian would have liked.

Suffice it to say, however, that

(1) the victim admitted to lying to sworn law enforcement officers a month before trial about the identity of an attempted-murder suspect, and
(2) either he was willing to bend his testimony at the suggestion of police detectives, or he is lying about that reason, neither of which inspires any confidence in his overall credibility.

Witness Is Still Unreliable

There is no outcome on this police-fact-feeding question that favors the victim’s testimony.

In the end, police fact-feeding or not, it is still undisputed that the victim gave prosecutors a different story about the second shooter than he gave to detectives eleven months earlier.

Fact feeding or not, it is undisputed that he lied more than once to law enforcement regarding the second shooter.

The trial court finally said that it afforded the State every reasonable inference in an attempt to untangle the victim’s testimony and parse together a plausible argument for upholding this conviction. But in the end, we can only conclude that he was not a credible witness.

His testimony was subject to considerable doubt at every turn.

Our concerns are too many and run too deep for us to have any confidence in his testimony. And yet the State’s case rested entirely on that testimony.

The State did not produce any other eyewitnesses or any physical evidence—no weapon, fingerprints, DNA, gunshot residue, or the like.

Christian did not make any inculpatory statements.

There was no evidence of motive.

Holding

We hold that the State’s evidence was so unsatisfactory as to justify a reasonable doubt of Christian’s guilt.

As in those cases, without explicitly detailing the Slim factors, we have found that the significant discrepancies and inconsistencies in Michael’s testimony have so compromised his credibility that, absent any corroborating evidence whatsoever, a reasonable doubt of Christian’s guilt remains.

We thus reverse Christian’s adjudications of delinquency.

People v. Ramsey, 2017 IL App (1st) 160977 (August). Episode 391 (Duration 8:51)

Police take some bloody glass from defendant's house after responding to an emergency; did they need a search warrant?

Facts

Defendant arranged with the victim to pay her for sex on line.

As they got to the top of the stairs, Ramsey placed his hand on F.S.’s shoulder, held a knife to her neck, and told her not to scream or he would kill her. Ramsey told F.S. to “get on the couch” in the bedroom and take off her clothes. After F.S. disrobed and while Ramsey still held the knife, he demanded that F.S. perform oral sex on him.

He sexually assaulted her.

Ramsey was interrupted by his phone ringing.

Ties Her To A Bench

He took F.S. to an exercise bench in the room and tied her to the bench with her hands behind her back and put a sock in her mouth so she could not scream. Ramsey dressed and left the room to return the phone call. While Ramsey was out of the room, F.S. was able to free her hands. She then punched out a window in the room. When she could not escape through the window, she leaned out the window and called out for help.

Screams For Help

Ramsey then returned and pulled F.S. back into the room by her hair. As they struggled, Ramsey bit F.S.’s shoulder and punched her face and head several times.

Alphonzo Wells, Ramsey’s next door neighbor, was outside washing his truck around noon that day. Wells heard the screams, saw a hand pull F.S. back into the house and called 911.

Police Arrive

Ramsey told F.S. to get dressed and to go wash the blood off her face because the police would be arriving soon.

As Ramsey stood by the front door, other officers entered the home. F.S., crying, disheveled, and with scratches on her arms, ran down the stairs and towards the officers. Police noticed blood droplets on his T-shirt. Another officer noticed glass on the sidewalk under the broken window. Ramsey told the officers he had gotten into a fight with his girlfriend.

Ramsey was placed under arrest, and F.S. was taken to the hospital by ambulance.

The Walk Through

Officers walked through both floors of the residence to determine whether other perpetrators or victims were present.

They checked closets, under the beds, and anywhere else a person could be hiding. There is no evidence that the officers opened drawers or otherwise searched in locations where a human being could not hide. In the second floor bedroom, they noticed a knife and exercise equipment.

The officers did not take any items at that time.

Evidence Tech Shows Up

About an hour later, an evidence technician entered the home and recovered the knife, an exercise cord, an audiovisual cord wrapped around a piece of exercise equipment, and a container of petroleum jelly.

The technician also recovered a latex condom from the floor of the bedroom by the bed.

The technician remained in the house for about 20 minutes, collecting the items in the bedroom and taking photographs.

Issue

Before trial, Ramsey filed a motion to suppress items recovered from and photographs taken inside his home.

Ramsey claims the police were unjustified in entering and searching the residence after he was arrested and an ambulance was called for F.S. He also contends that the delay in recovering the items, necessitating a second entry by the evidence technician, provides additional grounds for suppression.

Ramsey argued that because there were no exigent circumstances, police were required to obtain a warrant to search his home after he was arrested.

State Says

The State contended that officers responding to the 911 call had probable cause to enter the home in order to locate any victims or other offenders, particularly in light of Ramsey’s admission that he had been fighting with his “girlfriend.” Once inside the home, police saw in plain view a broken window, blood on the windowsill, and the items eventually recovered.

Emergency Aid Exception 

The fourth amendment to the United States Constitution guarantees the right of citizens to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const., amend. IV.

As a general rule, warrantless searches are deemed unreasonable. People v. Jones, 215 Ill. 2d 261, 269 (2005). But exceptions to the warrant requirement exist, and the totality of the circumstances can render a warrantless search reasonable under the fourth amendment.

One such exception is the emergency aid exception, which permits a warrantless entry into a home in emergency situations.

If officers believe it is necessary to enter a home “to render emergency assistance to an injured occupant or to protect an occupant from imminent injury,” warrantless entry is permitted. As long as police have

(i) reasonable grounds to believe an emergency exists and
(ii) a reasonable basis “approximating probable cause” that the area searched is associated with the emergency, the warrant exception will apply.

Evidence of a crime discovered during an emergency entry may also be seized without a warrant.

Plain View

In particular, evidence in plain view may be seized during an emergency entry as long as police have probable cause to associate the evidence with criminal activity. Jones, 215 Ill. 2d at 271-72 (plain view doctrine allows police to seize an object without a warrant); People v. Jackson, 149 Ill. App. 3d 156, 159 (1986).

As applied here, the emergency aid exception justified the warrantless entry of Ramsey’s residence, the search of the residence to locate other potential victims or offenders and the seizure of the evidence in plain view reasonably associated with Ramsey’s assault of F.S.

Analysis

When police arrived in response to the 911 call from Wells, they spoke to Wells, saw broken glass on the ground under the second floor window, and encountered Ramsey at his front door.

Ramsey’s appearance (nervous, sweaty, blood droplets on his T-shirt), as well as his spontaneous statement that he and his girlfriend had just had a fight, gave police probable cause both to arrest Ramsey and enter the residence. Once inside, when officers saw F.S., crying and with cut marks on her arms, it was reasonable for them to walk through the entire residence to determine whether anyone else was present.

There is no evidence that officers exceeded the scope of the permissible search by opening drawers or looking in, for example, kitchen cabinets. And once the officers saw items in plain view in the bedroom, which they reasonably believed were associated with Ramsey’s assault on F.S. (a knife, cords, petroleum jelly and a condom), they were justified in seizing those items.

The Defense Is Wrong

The U.S. Supreme Court cases relied on by Ramsey are readily distinguishable.

In each, police conducted an exhaustive warrantless search of a defendant’s residence after entering in response to an emergency.

For example, in Mincey, the warrantless search lasted for several days while police conducted an exhaustive search of defendant’s residence for potential evidence in connection with the murder of an undercover police officer. Thompson v. Louisiana, 469 U.S. 17 (1984). Mincey v. Arizona, 437 U.S. 385 (1978).  Flippo v. West Virginia, 528 U.S. 11 (1999).

In contrast, when police entered Ramsey’s home and encountered F.S., it was eminently reasonable for them to walk through the residence to determine if anyone else was present.

And when during that permissible search they saw items in plain view in the bedroom where the attack occurred, which obviously related to the attack, they were entitled to seize that evidence, again without a warrant.

Courts have recognized that if seizure is justified under the plain view doctrine, the fact that the ultimate recovery of the evidence is accomplished not by the officer who first saw the evidence, but by another member of law enforcement, does not invalidate the seizure.

Holding

Once the privacy of the residence has been lawfully invaded, it is senseless to require a warrant for others to enter and complete what those already on the scene would be justified in doing. Thus, because police properly entered Ramsey’s residence and conducted a limited search necessary to determine the presence of others and because the evidence ultimately recovered by an evidence technician was in plain view and its relation to the crime was readily apparent, the trial court properly denied Ramsey’s motion to suppress.

Criminal Law Attorney Shady Yassin in Episode 390 (Duration 20:45) describes how he's making his way as a criminal law attorney in Illinois.

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In This Episode

"It was a cool thing that our friendship merged into a business partnership and it was one that became stronger..." -- Illinois Attorney Shady Yassin.

Attorney Shady Yassin

Shady Yassin is a former Cook County Public Defender 711 Intern.  

He's been licensed since 2010, and currently is a partner at Abdallah Law located in Tinley Park, Illinois.

In This Episode:

✓ Discover how a first generation Palestinian American finds himself in a firm with other first generation Palestinian Americans.  You'll be surprised to learn Shady's parents started out in Puerto Rico.

✓ Ever wonder if the Illinois criminal justice system is welcoming to Muslims? What happens to the daily prayer requirement when you're in the middle of a trial? 

✓ On Shady's first day as a 711 for the Cook County Public Defender he was the only one of his kind. As a test he was asked to go into the lock-up to talk to a pretty intimidating defendant. It was a test. Listen in to see if Shady past the test.  

✓ "Everybody who is not an attorney is telling me, 'Oh, why are you trying to do criminal defense? There's no money there. Why don't you do business? Why don't you do corporate?' That's all I heard."

✓ Any government sector lawyer with the tiniest thought of going "private" needs to see what Shady means when he talks about the "hustler mentality". Shady has some wise advice on receiving other's advice; we can all benefit from this tip.

Links & Resources

• Abdallah Law
• Shady Yassin
• Shady's Partners
• Above The Law - Law Student of the Day: Shady Yassin
• More About Shady Yassin

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