Kane County Nuggets

People v. Threatte, 2017 IL App (2d) 160161 (August). Episode 389 (Duration 13:20)

Prosecutor got sick in the middle of trial and mistrial was declared - does double jeopardy prevent a new trial?

In this trial for domestic battery in the middle of trial the prosecutor went home ill.

The next day other prosecutors showed up to tell the judge she was sick and was not in court. They wanted to continue the trial for 24 hours to see if she’d be in court the next day.

Defendant objected to the continuance and wanted another prosecutor to take over the trial.

The other prosecutors said they could not take over.

The judge denied the continuance and ordered a mistrial.

Defendant then filed a motion to dismiss based on double jeopardy which was denied.

On the motion the attorney was better and said she was out for more than 24 hours.

The court noted its concern that

“[t]he jury, which had already been here for all of one day and part of the morning of a second day, would have had to sit doing nothing for at least two more hours on top of the two hours or so they had already been present the second day without ever even having come into the courtroom.”

On appeal defendant says there was no manifest necessity for declaring a mistrial, because other options were available.

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.

However, the rules with regard to double jeopardy, however, should not be applied in a mechanical nature, especially if the situation is such that the interests the rules seek to protect are not endangered and a mechanical application would frustrate society’s interest in enforcing its criminal laws.

Embedded in these ideas is the notion that the State, with all of its resources, should not be allowed multiple attempts to convict a person of an alleged offense.

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.

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".

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.

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.

The court thus did consider the possible alternatives and concluded that they were not practical.

Defendant seems to argue that the court did not devote enough time to considering the alternatives, but we are aware of no case prescribing a particular amount of time that must be devoted to the subject.

This was not a hasty decision.

Now he says the court should have granted a short continuance. During the trial he objected to any continuance, even for a few hours, but now argues on appeal that granting a continuance is precisely what the trial court should have done.

Defendant is not entitled to simply change positions this way. Defendant objected to both a continuance and a mistrial, apparently taking the position that the only viable option was for DeRue or Tyler to take over the case immediately, without any preparation whatsoever.

We are aware of no case, and defendant cites none, holding that the double-jeopardy clause entitles a defendant to force an unprepared prosecutor to take over the case immediately.

Thus, the jury, which was told that the case was expected to last one or two days and which had already been in court for two days, would have had to return the following day, with no guarantee that the State would be ready to proceed.

We do not know whether the court, the prosecutors, or even defense counsel had other matters on their schedules that would have precluded resuming the trial. Thus, we cannot say based on this record that the court abused its discretion. Affirmed and remanded for the case to continue.

DUI Dismissal Does Not Implicate Double Jeopardy - Episode 279

This is the August 2017 Illinois criminal case law audio round-up (the fast case law summary). Episode 388 (Duration 26:52)

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

Here's a quick snapshot of the top cases:

1. People v. Pulido

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

2. People v. Ramsey

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

3. Round v. Lamb

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

4. People v. Evans

45 actual years is not a de facto life sentence.

5. In re Christian W.

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

6. People v. Rosado

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

7. People v. Brindley

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

8. People v. Maya

Massive amounts of text messages and facebook messages were admitted against this defendant to demonstrate he had serious jealousy issues.

9. People v. Williams

Defendant is convicted of five counts of murder based on his confession, flipper testimony and historical cell phone site data.

10. People v. Bensen

Identify Theft conviction is reversed because Defendant had a credit card issued in her name.

11. People v. Threatte

Prosecutor got sick in the middle of trial and mistrial was declared - does double jeopardy prevent a new trial?

12. People v. Goodwin

Not all jailers are sworn police officers.

13. People v. Brown

Defendant is found guilty of a lesser included offense, was retried for that offense, but never formally charged with resisting arrest.

14. People v. Downs

Appointed counsel for the second stage Krankel hearing abandoned some of defendant's claims and he argued that was ineffective assistance.

15. People v. Morgan

Krankel inquiries can get a little tricky for the judge when you have an upset Defendant.

16. People v. Ramirez-Lucas

Defendant gets a hearing on his postconviction petition because he made a colorable claim that he was attacked in the bar before he shot all the people.

17. People v. Bridgeforth

Subpoenaed medical records were not delivered until after the trial, was counsel ineffective for not waiting for them?

People v. Holmes, 2017 IL 120407 (July). Episode 387 (Duration 10:12)

Illinois Supreme Court adopts the federal rule in holding that gun arrests before Aguilar are supported by probable cause.

Defendant filed a motion to quash his arrest and suppress evidence.

He says the probable cause underlying defendant’s arrest was based solely upon a violation of sections 24-1.6(a)(1), (a)(3)(A) and 24-1.6(a)(2), (a)(3)(A) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A); (a)(2), (a)(3)(A), the so called Aguilar charges, which were declared facially unconstitutional.

Defendant argued that the void ab initio doctrine retroactively invalidated probable cause and thereby incidentally mandating the suppression of the evidence inculpating defendant for his FOID violation..

Officer Barrera saw defendant lean into the passenger-side window of a vehicle to speak to the driver.

Defendant’s shirt rode up, revealing a revolver tucked into his waistband.

Officer Barrera approached defendant, asked him to place his hands on his head, and removed defendant’s revolver.

It was after defendant was taken into custody that Officer Barrera learned defendant’s name and that he did not have a FOID card. Officer Barrera had no arrest or search warrant for defendant at the time of his arrest.

Therefore, probable cause was based solely upon defendant’s violation of the subsequently invalidated AUUW subsections.

Defendant contends that our 2002 decision in Carrera mandates strict application of the void ab initio doctrine, which, defendant maintains, would have the effect of retroactively invalidating probable cause.

Any other result, according to defendant, would be counter to the void ab initio doctrine.

The void ab initio doctrine is a state jurisprudential principle.

“When a statute is held to be facially unconstitutional, the statute is said to be void ab initio, i.e., void ‘from the beginning.’ ” (Internal quotation marks omitted.) People v. McFadden, 2016 IL 117424, ¶ 17 (quoting Perlstein v. Wolk, 218 Ill. 2d 448, 455 (2006)).

“An unconstitutional law ‘confers no right, imposes no duty and affords no protection. It is as though no such law had ever been passed.’ ” People v. Gersch, 135 Ill. 2d 384, 399 (1990) (quoting People v. Schraeberg, 347 Ill. 392, 394 (1932)). “[W]here a statute is violative of constitutional guarantees, we have a duty not only to declare such a legislative act void, but also to correct the wrongs wrought through such an act by holding our decision retroactive.”

The law is clear that a defendant cannot be prosecuted under a statute that is void ab initio. See McFadden, 2016 IL 117424, ¶ 19. Less clear is whether the void ab initio doctrine is meant to be given such literal interpretation as to extend its reach to probable cause.

The Illinois Supreme Court said that strict application of the void ab initio doctrine in the present context, to the extent posited by defendant, would conflict

(1) with precedent from the United States Supreme Court and
(2) with two recent decisions from the court.

Federal case law is clear that, under the facts of this case, probable cause would not be retroactively invalidated by the subsequent invalidation of the statute upon which probable cause was based at the time of the arrest. DeFillippo, 443 U.S. 31; Charles, 801 F.3d 855.

The court said  this analysis was compelling.

Strict application of the Illinois void ab initio doctrine, to the literal extent posited by defendant, would conflict with our continued adherence to the limited lockstep doctrine. 

 Although we are obligated to declare an unconstitutional statute invalid and void, such a declaration by this court cannot, within the strictures of the separation of powers clause, repeal or otherwise render the statute nonexistent.

Also, in McFadden this court rejected the defendant’s argument that the void ab initio doctrine, in and of itself, procedurally operated to overturn the 2002 AUUW conviction.

The conviction would be treated as valid unless and until it was declared otherwise via judicial process.

We hold that the void ab initio doctrine does not retroactively invalidate probable cause based on a statute later held unconstitutional on federal constitutional grounds or on state constitutional grounds subject to the limited lockstep doctrine.

In the instant case, Officer Barrera had probable cause at the time of defendant’s arrest, and thus there is no reason to suppress the evidence collected incidental to the arrest.

Because we conclude that probable cause existed at the time of defendant’s arrest and that probable cause was not retroactively invalidated by the subsequent declaration of unconstitutionality on second amendment grounds, the exclusionary rule does not apply. Thus, there is no need to consider the good-faith exception to the exclusionary rule.

The void ab initio doctrine did not retroactively invalidate probable cause for defendant’s arrest because probable cause was predicated on a statute that was subsequently declared unconstitutional on federal grounds.

Because probable cause is a component of both the federal and state search and seizure provisions, we follow federal law pursuant to the limited lockstep doctrine.

Packingham v. North Carolina, 15-1194 (June 2017). Episode 386 (Duration 10:04)

Can't have a sweeping law keeping sex offenders off of Facebook and other social media.

North Carolina enacted a statute making it a felony for a registered sex offender

“to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.”

This includes commonplace social media websites like Facebook and Twitter.

Defendant—then a 21-year-old college student—had sex with a 13-year-old girl.

He pleaded guilty to taking indecent liberties with a child.

Because this crime qualifies as “an offense against a minor,” petitioner was required to register as a sex offender—a status that can endure for 30 years or more.

Defendant logged onto Facebook.com and posted the following statement on his personal profile:

“Man God is Good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court cost, no nothing spent. . . . . .Praise be to GOD, WOW! Thanks JESUS!”

The question presented is whether that law is permissible under the First Amendment’s Free Speech Clause, applicable to the States under the Due Process Clause of the Fourteenth Amendment.

A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.

The Court has sought to protect the right to speak in this spatial context.

A basic rule, for example, is that a street or a park is a quintessential forum for the exercise of First Amendment rights.

While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear.

It is cyberspace, and social media in particular.

Facebook has 1.79 billion active users.

This is about three times the population of North America.

Social media offers “relatively unlimited, low-cost capacity for communication of all kinds.” On Facebook, for example, users can debate religion and politics with their friends and neighbors or share vacation photos.

On LinkedIn, users can look for work, advertise for employees, or review tips on entrepreneurship.

And on Twitter, users can petition their elected representatives and otherwise engage with them in a direct manner.

In short, social media users employ these websites to engage in a wide array of protected First Amendment activity on topics “as diverse as human thought.”

The forces and directions of the Internet are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow.

This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet.

As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium. For centuries now, inventions heralded as advances in human progress have been exploited by the criminal mind. New technologies, all too soon, can become instruments used to commit serious crimes.

The railroad is one example, and the telephone another.

So it will be with the Internet and social media.

And it is clear that a legislature “may pass valid laws to protect children” and other victims of sexual assault “from abuse.”

The government, of course, need not simply stand by and allow these evils to occur.

But the assertion of a valid governmental interest must give weight to serious constitutional constraints. Though the issue is not before the Court, it can be assumed that

...the First Amendment permits a State to enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor.

Specific laws of that type must be the State’s first resort to ward off the serious harm that sexual crimes inflict.

(Of importance, the troubling fact that the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system is also not an issue before the Court.)

Even with these assumptions about the scope of the law and the State’s interest, the statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens.

Social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind. By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.

These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.

They allow a person with an Internet connection to “become a town crier with a voice that resonates farther than it could from any soapbox.”

In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights.

It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.

It is well established that, as a general rule, the Government “may not suppress lawful speech as the means to suppress unlawful speech.”

That is what North Carolina has done here.

Its law must be held invalid. The judgment of the North Carolina Supreme Court is reversed, and the case is remanded for further proceedings.

In re Dystyn, 2017 IL App (4th) 170103 (June). Episode 385 (Duration 6:42)

Delinquent minor is forbidden from entering a college campus.

Accused minor and a codefendant demanded cigarettes from a gas station clerk.

She refused, so they just took some lighters.

Each was brandishing a knife during the robbery.

He was adjudicated delinquent and put on probation which included an order that he

“not be present on the University of Illinois campus unless he/she is in the presence of his/her parent, guardian, or custodian or unless provided advance permission by the probation officer.”

On appeal, he challenges this provision of his probation.

Section 5-715(2) of the Juvenile Court Act of 1987 (705 ILCS 405/5-715(2)) describes the different kinds of conditions a trial court may impose on a juvenile probationer.

Section 5-715(2)(r) provides that a court may require the minor to do the following:

“Refrain from entering into a designated geographic area except upon terms as the court finds appropriate. The terms may include consideration of the purpose of the entry, the time of day, other persons accompanying the minor, and advance approval by a probation officer, if the minor has been placed on probation, or advance approval by the court, if the minor has been placed on conditional discharge[.]”

705 ILCS 405/5-715(2)(r).

Generally, courts have broad discretion to impose probation conditions, whether expressly allowed by statute or not, to achieve the goals of fostering rehabilitation and protecting the public.

However, the court’s discretion is limited by constitutional safeguards and must be exercised in a reasonable manner. Courts will uphold traveling restrictions if they are reasonable.

Specifically, a restriction on a probationer’s travel to a particular geographic area is reasonable only if

(1) there is a valid purpose for the restriction, and
(2) there is a means by which the probationer may obtain exemption from the restriction for legitimate purposes.

The touchstone of this evaluation is reasonableness.

For example, banning a kid from an entire city is not narrowly tailored and unreasonable.

Here, the trial court did not abuse its discretion by imposing this geographic limitation upon respondent as a probationary condition.

This defendant was 13.

He had no real business on a major college campus.

He was not flat out panned from the campus, and it was entirely reasonable and consistent with the goals of fostering rehabilitation and protecting the public.

The University campus is the crown jewel of the Champaign-Urbana community, and efforts should be made by local law enforcement agencies, as well as the local trial courts, to do all they can to ensure that the campus will be a sanctuary from crime, particularly violent crime, as in this case.

The University is a world-class institution, attracting tens of thousands of students and faculty from around the world. Efforts to provide extra protection for such persons is entirely understandable and commendable.

Such efforts include barring 13-year-old armed robbers from the campus.

Indeed, one would expect no less.

The defense argued he was being deprived of valuable public resources available on the campus.

The court said the notion that this probationary condition would somehow restrict respondent from seeking valuable educational pursuits on the University campus is hyperbole of the first order.

Frankly, given his conviction for armed robbery, he has no business being there at all.

The condition is narrowly drawn because it contains exemptions for legitimate access to the University campus and does not categorically ban respondent.

The ban does not apply when either

(1) respondent is in the presence of his parent, guardian, or custodian or
(2) respondent has received advance permission from his probation officer.

Conditions of Probation Challenged By This Convicted Police Officer - Episode 029

People v. Goossens, 2016 IL 118347 (September)

People v. Minnis, 2016 IL 119563 (October), (disclosure of internet use constitutional under SORA)

People v. Crabtree, 2015 IL App (5th) 130155 (July 2015) (sex probation sentencing terms prohibiting computer proper even though the crime did not involve a computer)

People v. Dalton, 2017 IL App (3d) 150213 (June). Episode 384 (Duration 5:52)

Defendant was charged with additional sex crimes more than 120 days after his first two original counts were charged.

Defendant made it to third stage postconviction hearing on the issue of whether the state had violated his speedy trial right.

He was originally charged with three counts of sexual crimes.

More than 120 days later the state charged him with 3 new additional charges.

The Judge at the hearing held no speedy trial violation occurred because some of the new counts charged different offenses base on different distinct acts and one of the late chartes was just an “upgraded” version of a previously filed charged.

The speedy trial statute provides that any person who is held in custody on criminal charges must be tried within 120 days. 725 ILCS 5/103-5(a).

The 120-day limitation applies both to charges that have been filed against defendant and charges that have not yet been filed but would be subject to mandatory joinder with the originally filed charges.

Multiple offenses are subject to mandatory joinder when they are all based on the same act by defendant. 720 ILCS 5/3-3(b).

It says:

(b) If the several offenses are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution

The General Assembly enacted the compulsory joinder statute...

“to prevent the prosecution of multiple offenses in a piecemeal fashion and to forestall, in effect, abuse of the prosecutorial process. A prosecutor might otherwise harass a defendant through successive prosecutions of multiple offenses and put a defendant through the expense of several trials until the prosecutor obtains a result that satisfies him.”

Consequently, a defendant held in custody and charged with a single offense must be tried within 120 days not only for that offense but also for any other offenses that could be charged based on the same underlying act.

Generally, the 120-day period under the speedy trial statute can be extended by a delay of trial that is attributable to the defense. 725 ILCS 5/103-5(a).

Delay is attributable to a defendant whenever he agrees to a continuance of trial. People v. Ingram, 357 Ill. App. 3d 228, 232-33 (2005). However, a defendant can only agree to the continuance of trial with respect to offenses with which he is actually charged.

Put another way, if a defendant is in custody and charged with one offense and agrees to continue his trial, that agreement tolls the 120-day period with respect to the charged offense but does not toll the 120­ day period for any uncharged offenses based on the same act.

Consequently, when a defendant is charged with an offense based on conduct that could support charges of multiple offenses, the State must file any additional charges based on that conduct within 120 days.

Any additional charges filed beyond the 120-day period violate the speedy trial statute. See People v. Williams, 204 Ill. 2d 191, 198 (2003).

This rule does not cover the charges that were based on different acts.

One of the additional charges, however, was based on the same act as count I, but included the allegation that defendant and victim had lived together continuously for at least one year.

In addition, the newly filed charge alleged a greater class of felony (Class 1 as opposed to Class 2).

Because both counts were based on the same physical act, we find defendant’s right to a speedy trial was violated when the State filed the additional charge more than 120 days after filing the original charges.

In reaching this conclusion, we reject the State’s argument that defendant’s right to a speedy trial was not violated because count I provided adequate notice to defendant against the late-filed count VI. Specifically, the State argues defendant had adequate notice as to count VI because it alleged the same act, date, parties, and the witnesses involved as count I.

Accordingly, the court found that defendant made a substantial showing of his constitutional claim that appellate counsel provided ineffective assistance. Therefore, the trial court erred in denying defendant postconviction relief on this claim.

See Also Episode 365 Careful And Artful Charging Decision Cannot Contravene Compulsory Joinder

People v. Brown, 2017 IL App (3d) 140921 (June). Episode 383 (Duration 6:25)

This attorney inadequately argued her own ineffectiveness.

• After a night of arguing and hostility defendant again became angry and began yelling at his girlfriend.
• She testified that defendant lunged at her and choked her.
• She also recalled “hitting the side of the house.”
• She was eventually able to leave and call for a ride.

A friend later took her to a hospital.

Howard testified that she did not strike defendant.

Police saw bruises on her neck and arms.

After first denying that he even knew the victim, defendant eventually tells police that “during the course of the argument, she accused him of cheating and pushed him, so he grabbed her by the neck to push her off of him, and then when she wanted to walk away, he grabbed her.”

He testified that he and Howard did not argue on that day and they did not engage in any sort of fight, be it verbal or physical.

Defendant testified that he did not make any of the statements.

After the trial and before sentencing defendant kind of made a motion that his attorney did not call some of his witnesses.

When the state asked the attorney if she was adopting this issue in her post trial motion she said:

“...So in any case, my client got to trial not being able to call Latisha Wilson or Lori Giles. I guess basically Latisha, because we didn’t have an address and she wasn’t subpoenaed to demand her appearance...So, in any case, he had to proceed to trial without calling all available witnesses... So we’d ask the Court to reconsider the verdict or to set aside the verdict of the jurors on the basis that this was nothing short of just a miscommunication and that it’s a miscommunication between him and me that led to him not being able to call all the people that could be put on, the best case to determine whether he in fact was guilty or innocent.”

The trial judge denied the post trial motion saying the witness was not called because defendant didn’t tell his attorney where to find them and sentenced defendant to 4 1/2 years.

Defendant next argues that counsel proceeded under a conflict of interest when she argued her own ineffectiveness in a posttrial motion.

Defendant contends that an attorney arguing his or her own ineffectiveness is a per se conflict of interest; alternatively, defendant contends that the record shows counsel nevertheless had an actual conflict of interest.

He argues that the matter should be remanded for new posttrial proceedings.

A defendant’s constitutional right to effective assistance of counsel includes the right to conflict-free representation.

There are two types of conflicts of interest:

per se conflicts and actual conflicts.

A per se conflict exists where certain facts about a defense attorney’s status alone present a disabling conflict. Where a per se conflict exists, a defendant is not required to demonstrate any prejudice flowing from the conflict.

“If a per se conflict does not exist, a defendant may still establish a violation of his right to effective assistance of counsel by showing an actual conflict of interest that adversely affected his counsel’s performance.”

In order to prevail on a claim of actual conflict of interest, a defendant must show ‘some specific defect in his counsel’s strategy, tactics, or decision making attributable to a conflict.

This is not a traditional per se conflict, and Appellate court decisions are split as to whether defense counsel’s allegation of his or her own ineffectiveness constitutes a per se conflict.

Because the facts of this case demonstrate an actual conflict of interest, we need not decide whether an attorney’s allegation of his or her own ineffectiveness constitutes a per se conflict.

Defense counsel’s motion to set aside the verdict in the present case was premised on a single issue: her own ineffectiveness in calling defendant’s witnesses.

In order to prevail on this motion then, counsel was obligated to show

(1) that her performance was constitutionally deficient and
(2) that but for that deficient performance, a reasonable likelihood existed that the result of the trial would have been different.

Defense counsel’s performance may be deficient where she fails to call known witnesses whose testimony may exonerate the defendant.

In order to establish prejudice in such situations, a defendant must present affidavits establishing the testimony that those witnesses would have provided.

Without such affidavits, there is no way of knowing whether that testimony would have impacted the outcome of the proceeding.

Defense counsel failed to make any reasonable effort with respect to either prong of the Strickland standard.

Rather than arguing that her performance had been deficient for failing to investigate and track down Wilson and Giles, she placed the blame on defendant and a “miscommunication.”

Ultimately, it was this characterization that led the court to deny the motion.

More importantly, counsel failed to provide affidavits concerning the expected testimony of Wilson and Giles.

Indeed, counsel failed to describe in any significant way what their testimony would have been.

Absent such evidence, the motion to set aside the verdict was fatally flawed, as counsel could not possibly have demonstrated prejudice.

We find that these clear and obvious defects in counsel’s performance were attributable to the conflict of interest inherent in arguing her own ineffectiveness.

To be clear, we express no opinion regarding the merits of the claim that defense counsel was ineffective for failing to call Wilson and Giles as witnesses. Defense counsel was certainly under no obligation to raise that argument in a posttrial motion. However, once counsel did choose to raise the issue of her own ineffectiveness, she had a duty to zealously represent her client in that proceeding.

While we do not foreclose the possibility that a defense attorney may zealously and competently argue his or own ineffectiveness, counsel in the present case failed to do so.

Accordingly, we vacate the circuit court’s denial of defendant’s posttrial motion and remand the matter for the appointment of conflict-free counsel, who may include whatever issues he or she deems meritorious in a new posttrial motion.

Is It A Per Se Conflict of Interest When Trial Attorney Raises Ineffective Assistance on Himself? - Episode 039 

People ex rel. Glasgow v. Carlson, 2016 IL 120544 (December). Episode 382 (Duration 10:20)

Mandamus awarded to force trial court to sentence defendant as a class X offender.

Petitioner, James W. Glasgow, State’s Attorney of Will County, seeks mandamus pursuant to Illinois Supreme Court Rule 381 against respondent, the Honorable David M. Carlson, judge of the circuit court of Will County.

Defendant had some priors in his background: Defendant’s record included a 1989 Class 2 felony conviction, a 1981 Class X felony conviction, and a 1980 Class 2 felony conviction.

Under the Illinois Constitution, this court has discretionary original jurisdiction to hear mandamus cases. See Ill. Const. 1970, art. VI, § 4(a), Illinois Supreme Court Rule 381.

Mandamus is an extraordinary remedy used to compel a public official to perform a purely ministerial duty where no exercise of discretion is involved.

This court awards mandamus relief only when “the petitioner establishes a clear right to the relief requested, a clear duty of the public official to act, and clear authority in the public official to comply. Only matters of law are ever appropriate in a mandamus.

Apparently, the judge had some bench book memo saying this section was inconsistent and some lenity should be applied.

The judge ignored the cases that were cited to him.

Petitioner asks this court to compel respondent to

(1) vacate its sentencing order,
(2) classify as a Class 2 felony a third violation of Illinois’s driving while under the influence (DUI) statute of the Illinois Vehicle Code (625 ILCS 5/11-501 et seq.), and
(3) resentence defendant as a Class X offender pursuant to section 5-4.5-95(b) of the Unified Code of Corrections (730 ILCS 5/5-4.5-95(b)).

Defendant was charged by indictment with Class 2 felony aggravated DUI (625 ILCS 5/11-501(a)(2)).

The indictment alleged he had 2 prior DUI convictions. The State acknowledged that a separate provision, subsection (d)(2)(A), generally classified aggravated DUI as a Class 4 felony.

Nonetheless, the State argued that because defendant was charged under subsection (d)(2)(B), that provision’s express classification of the offense as a Class 2 felony must control.

For support, the State cited to the appellate court’s decision in People v. Mischke, 2014 IL App (2d) 130318, that reached the same conclusion. In turn, the State argued that defendant was subject to a mandatory Class X sentence on his third DUI conviction based on his prior criminal record.

The circuit court, however, continued to express doubt that defendant’s third DUI conviction should be classified as a Class 2 felony.

The court repeatedly asked the State to explain when a third DUI conviction would ever be classified as a Class 4 felony.

The court also suggested that the State was asking the court to ignore subsection (d)(2)(A), that generally defined aggravated DUI as a Class 4 felony.

The court then sentenced defendant as a Class 4 offender to 24 months of probation.

First of all, subsection (d)(1)(A) provides that a person is guilty of aggravated DUI if that person commits a DUI offense

for the third or subsequent time.

625 ILCS 5/11-501(d)(1)(A).

The sentencing parameters for aggravated DUI, including the applicable felony classes, are contained in subsection (d)(2) of section 11-501.

Initially, that provision in subsection (d)(2)(A) provides the baseline felony class for aggravated DUI:

Except as provided otherwise, a person convicted of aggravated driving under the influence of alcohol *** is guilty of a Class 4 felony.

625 ILCS 5/11-501(d)(2)(A).

The next nine subsections, (d)(2)(B) to (d)(2)(J), detail factors that can elevate aggravated DUI to higher class felonies and, in some instances, impose mandatory and minimum sentences.

Particularly relevant here, subsection (d)(2)(B) provides that

[a] third violation of this Section or a similar provision is a Class 2 felony.

625 ILCS 5/11-501(d)(2)(B).

For each successive violation of section 11-501, the potential penalty is enhanced by either eliminating the possibility of probation or elevating the corresponding felony class.

Specifically, a

• fourth violation is a nonprobationable Class 2 felony (625 ILCS 5/11-501(d)(2)(C)
• a fifth violation is a nonprobationable Class 1 felony (625 ILCS 5/11-501(d)(2)(D)
• a sixth or successive violation is a Class X felony (625 ILCS 5/11-501(d)(2)(E)).

Reviewing the plain meaning of section 11-501, it is clear that the legislature meticulously prescribed unambiguous sentencing requirements and classifications for aggravated DUI, going from a baseline Class 4 felony classification (625 ILCS 5/11-501(d)(2)(A)) to a Class X felony classification for a sixth or successive DUI conviction (625 ILCS 5/11-501(d)(2)(E)).

As this court has explained, “[s]ection 11-501 therefore operates just as any other statute which initially sets forth the elements of the offense, and then, in a separate section, provides sentencing classifications based on other factors.”

Applying section 11-501 to defendant’s case, we necessarily conclude that defendant’s third DUI conviction constitutes aggravated DUI and is a Class 2 felony, as charged in the indictment.

Without question, subsection (d)(2)(B) demonstrates unambiguous legislative intent to classify a third DUI conviction as a Class 2 felony.

The unambiguous legislative intent was to classify aggravated DUI as a Class 4 felony only if no other provision in section 11-501 is applicable.

It is neither inconsistent nor illogical to conclude that a third DUI conviction is subject to a higher felony classification when section 11-501 of the Illinois Vehicle Code is viewed in its entirety.

A benchbook is to be used only as a practical legal reference guide. Thus, a benchbook should not be viewed or treated as authoritative precedent. No precedential value, is not intended to be cited by courts or litigants as authority in pleadings, rulings or otherwise, and is not a substitute for reading the statutes and cases cited.

Mandamus is awarded in this case.

Here, the law says a third or higher violation of section 11-501, is considered aggravated DUI and subjects the offender to stiffer penalties.

Judgment of mandamus awarded.

The circuit court was ordered to

(1) vacate it’s sentencing order,
(2) classify defendant’s third violation of section 11-501 of the Illinois Vehicle Code as a Class 2 felony, and
(3) resentence defendant as a Class X offender based on his prior criminal history.

People v. O’Donnell, 2015 IL App (4th) 130358 (March). Episode 381 (Duration 12:56)

Officer says she could tell defendant was not telling the truth when he told her his story.

Beckett testified he responded to a car accident at approximately 12:46 a.m. and no driver was found at the scene. At 1:12 a.m., he was notified by the local fire department an individual had been located walking approximately one mile away.

Beckett proceeded to that location, where he found defendant.  

Beckett testified defendant told him a friend had been driving his car, he had been a passenger, and after the crash, he exited the car to go to a business district to find a way home. Beckett stated, at the time he located defendant, defendant was not near a business district, but was walking deeper into a residential area.

Arresting officer Rebecca Bragg of the Mahomet police department testified next for the State.

She stated she observed skid marks across the road and a crashed vehicle in a bean field. She identified the vehicle as a white Grand Prix and testified the outside of the vehicle was damaged–the hood was crushed, the mirrors were broken, the front windshield was shattered, and the passenger’s side window was “busted out.”

Bragg testified she observed both the driver’s side and passenger’s side air bags had been deployed. She stated the driver’s side air bag looked like it had been tampered with and pushed in between the handles of the steering wheel. Bragg also observed a cushion and cell phone on the driver’s seat and miscellaneous items on the passenger’s seat.

She explained the passenger’s side air bag appeared not to have been tampered with and there was a path from the car through the bean field, leading away from the road, where it appeared someone had walked and broken the beans.

In Bragg’s opinion, the accident occurred when “the driver was going entirely too fast, couldn’t make the curve, went off the roadway, tried to overcorrect the steering, and causing [sic] them to skid, and it collided with a fire hydrant, which caused the car to flip and roll.”

Bragg testified she spoke with defendant, the registered owner of the car, after her assisting officer brought him back to the scene.

Defendant explained he went to Uncle Buck’s Sports Bar and Grill (the bar), where he played five or six games of pool with three or four different individuals. Bragg stated defendant could not describe or name any of the people he played pool with, except for one, “John.”

Bragg testified she asked defendant about his alcohol consumption, and defendant admitted he drank “approximately five, twelve-ounce Busch can beers” and was too drunk to drive.

Defendant told Bragg he was ready to leave the bar and talked to the man he had just met playing pool, John, who told defendant he would drive defendant’s car to an address on Prairie View Road. Defendant told Bragg he was not sure where that location was.

Bragg testified defendant told her John was driving too fast and he told him to slow down.

He then explained, once the car went off the roadway, he closed his eyes and did not open them until after the car landed. When he opened his eyes, John was not in the vehicle.

Defendant then told Bragg the car doors would not open, so he crawled out the passenger’s side window and started walking to try to find a business area so he could call a friend. Bragg testified defendant went in the opposite direction of a business area after the accident.

The only information defendant could give Bragg about John was he was a male, about 6 feet 2 inches tall, and wearing shorts and a T-shirt. Bragg testified after defendant said he had gone looking for help, she asked defendant if he had a cell phone. Defendant responded he had one on his person while he was at the bar, but he did not have it on him any longer.

“Q. While you were questioning the defendant at this time, did he admit that he was driving the car?

A. No.

Q. Okay. What did he do instead?

A. When I would ask him questions, he would show deception. When I would ask him about certain things that would reflect him being the driver, he would always look away from me, or look down, and he would just state, ‘I wasn’t the driver.’

Q. Based on your experience and training, is that a common tactic when somebody’s lying?

A. Yes, it’s a sign of deception when someone won’t look at you, when they look away to answer you.

Q. Okay. When you asked the question–or excuse me, when you asked the defendant questions about the car accident, did you specifically ask him where he was sitting?

A. I did.

Q. What did he tell you?

A. He told me he was sitting on his cushion.

Q. Where was that cushion?

A. In the driver’s seat.

Q. When you–when he answered that question, what did he do?

A. He looked away, and looked down.

Q. And officer, again, what was the defendant’s demeanor like during this conversation?

A. It was the same, showing deception. Sometimes I would ask him questions that I already knew the answer to, that he would not show deception [sic]. He was looking at me perfectly fine and would answer those, and when it came to proving that he was the driver, or even when I would state that he was the driver, he would look away from me, or look down.”

Defendant argues he was denied a fair trial because the State was allowed to present evidence in the form of a “human lie detector.”

Specifically, defendant contends the court should not have allowed Bragg to testify regarding her belief defendant was lying when he stated he had not been driving his vehicle at the time of the accident. Defendant contends the trial court erred when it allowed Bragg to testify defendant’s body language during his interview indicated he was being deceptive.

Defendant specifically argues, like a polygraph, Bragg was purporting to determine he was lying when he stated he was not driving his car at the time of the accident and such testimony is inadmissible.

The appellate court agreed.

In People v. Henderson, 394 Ill. App. 3d 747, 753, 915 N.E.2d 473, 478 (2009), we explained the uselessness of “human lie detector” testimony.

There, a police officer was allowed to testify at trial a defendant’s vague responses and body language during his interrogation indicated he was being deceptive.

A videotape of the interrogation was played for the jury and the officer was allowed to point out the segments where he believed the defendant was lying. On appeal, we concluded the testimony was inadmissible. We explained,

“An investigator’s testimony should be presented only to communicate what was said during an interrogation. Using such a witness as a ‘human lie detector’ goes against the fundamental rule that one witness should not be allowed to express his opinion as to another witness’s credibility.”

The court said Bragg’s testimony, like the officer’s testimony in Henderson, was “inadmissible opinion testimony by the officer that defendant’s story was not true.” These observations are improper characterizations of the defendant and useless in the determination of innocence or guilt, and in fact, they tend to prejudice the jury.

Accordingly, the court concluded the trial court erred when it allowed this form of testimony.

Although this was error it was not plain error.

The defendant’s explanation of events was highly implausible.

Defendant, the registered owner of the vehicle involved in the accident, admittedly drove his car to the bar. He admittedly became intoxicated. However, he claims he was not driving his vehicle at the time of the accident because he let a man he did not (and still does not) know drive his vehicle–a man who, after crashing the vehicle, conveniently immediately disappeared and was never found.

In one version of events, defendant opened his eyes and John was gone. In another version, John explained to defendant he was not going to “stick around” and then he was gone.

Several inconsistencies appear in defendant’s explanation of the accident.

Among these inconsistencies are defendant

(1) initially told Bragg he was sitting on his cushion (which was found in the driver’s seat) at the time of the accident but later claimed he misunderstood the tense of her question;
(2) initially told Bragg he exited the car through the passenger’s side window but later claimed he exited through the driver’s side door (even though Bragg testified none of the doors would open); and
(3) testified he was walking back to the bar to use the phone but was found walking deeper into a residential area away from the road. Defense counsel explicitly recognized these inconsistencies at trial but stated defendant had “tried to explain [them] away” during his testimony.

Both the police and the local fire department had searched the area surrounding the accident and the only person located was defendant.

There was only one footpath from the car through the bean field, and the officer was clear that none of the doors would open.

When the State asked defendant at trial whether his initial statement and Bragg’s testimony meant John had to crawl over him to exit the vehicle, defendant claimed both he and John exited the vehicle through the driver’s side door.

He did not dispute the doors to the vehicle would not open for Bragg, he simply could not explain it.

Inconsistent and conflicting testimony aside, when we view the photographs taken of the scene, we see defendant’s wrecked vehicle sitting in a bean field.

The doors to the vehicle are closed, the passenger’s side window is “busted out,” and the roof is completely smashed into the frame.

The rows of beans near the driver’s side door appear completely undisturbed, while the beans on the passenger’s side are visibly trampled and broken.

Defendant’s cushion and cell phone are sitting in the driver’s seat, and several random items, including papers, an ashtray, and two towels, are sitting in the passenger’s seat.

The driver’s side air bag was stuffed into the openings of the steering wheel, and the passenger air bag appeared undisturbed.

In short, the State presented testimony from two police officers and several photographs of the accident scene to support its position defendant was guilty of driving under the influence of alcohol.

Defendant, on the other hand, repeatedly admitted he had been drinking but claimed he was not in physical control of his vehicle at the time it exited the roadway and crashed into a bean field.

His only support for this contention was an incredible story about a man named John who basically evaporated into thin air following the accident.

The jury was not obligated to accept defendant’s account merely because it was possible.

Absent any other explanation and based on the record before us, we cannot say the evidence was so closely balanced that Bragg’s improper testimony tipped the scales of justice against defendant. Thus, we cannot find plain error.

This is not to say we condone the actions of the State in introducing this type of evidence.

Officer Opinion Testimony In This DUI Is Admitted - Episode 380

Aggressive Interrogation Is More Prejudicial Than Probative (Defendant Never Confessed) - Episode 378

Police Can Offer Opinion Testimony of Who They Think Is Depicted In a Video - Episode 135

People v. Martin, 2017 IL App (4th) 150021 (June). Episode 380 (Duration 9:58)

A little police opinion testimony was not a problem.

Defendant was convicted of aggravated DUI.

The Trooper discovered a black car in the ditch and two men standing outside the vehicle.

The Trooper asked if the men were all right, and they responded they were. The Trooper then asked who had been driving the vehicle, and defendant stated his wife had been driving.

Defendant explained his wife accepted a ride from someone on the interstate to get a tow truck.

The Trooper noted there were no footprints in the snow walking away from the vehicle or walking along the interstate. The Trooper Vandeventer also noted a strong smell of alcohol on defendant’s breath.

The other man eventually says defendant was driving.

Records check revealed he was revoked and at that point he is arrested.

Defendant, of course, appeared disoriented, his eyes were red and glassed-over, and his breath smelled of alcohol.

By this point a different the Trooper takes over and asks defendant how many alcoholic beverages he had consumed, and defendant responded he had consumed “four beers approximately.”

The Trooper administered a field sobriety test, but the test was inconclusive.

The Trooper then arrested defendant for driving with a revoked license.

The Trooper transported defendant to the jail and administered the “walk-and-turn” field sobriety test and the “one-legged stand” field sobriety test, both of which indicated defendant was impaired.

Defendant was then charged with DUI.

Defendant’s buddy testified that he was drinking beer with defendant. When they left defendant drove.

While defendant was driving, he slid off the road.

Defendant’s wife was never with them. The wife testifies she was driving, but admitted she did not say this to the the Trooper when she called defendant’s phone and the The Trooper answered.

At that point she was told he was being arrested for DUI and all she did was ask about her car being towed.

It was harmless error when the prosecutor asked the The Trooper who the The Trooper thought was driving.

Defendant argues The Trooper testimony was unfairly prejudicial because the jury was likely to believe him due to his role as a state Trooper.

Defendant also makes much of the fact The Trooper Vandeventer’s testimony related to “the only issue for the jury to decide” and complains this testimony “usurped the province of the jury to judge the credibility of witnesses and decide the facts.”

But the court rejected this idea, noting that: Illinois courts have rejected the so-called "ultimate fact" doctrine, which held that a witness may not express his opinion as to the ultimate issue in a case.

Instead, it is now well settled that a witness, whether expert or lay, may provide an opinion on the ultimate issue in a case. This is so because the trier of fact is not required to accept the witness’ conclusion and, therefore, such testimony cannot be said to usurp the province of the jury. See also Ill. R. Evid. 704. (“Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”)

The Trooper’s testimony as technically an improper lay opinion.

Illinois Rule of Evidence 701 states:

“If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.”

At the outset, we note the The Trooper’s opinion was rationally based upon his perceptions of the scene and his conversations with defendant and his buddy, and it was not based upon specialized knowledge.

The fact defendant was arrested for driving with a revoked license necessarily means The Trooper Vandeventer believed defendant was driving. Put another way, if The Trooper Vandeventer did not believe defendant was driving, The Trooper Hedges would not have arrested defendant.

Accordingly, the The Trooper’s testimony did not encourage the jury to make its decision on an improper basis but, rather, pointed to an obvious inference based upon the facts already in evidence.

We find no unfair prejudice in The Trooper’s statement he believed defendant was driving. We conclude the trial court did not abuse its discretion or commit plain error by overruling defendant’s objection to The Trooper’s testimony, and we honor defendant’s forfeiture.

 In People v. Hanson, 238 Ill. 2d 74, 939 N.E.2d 238 (2010), the supreme court drew a line between past and present opinions, concluding statements of past opinions were not improper lay opinions and were admissible.

The Degorski court concluded the officer’s testimony reflecting his prior opinion about the defendant’s credibility during an interrogation was not improper opinion testimony because it was a past—not present—opinion.

Here, the State’s questions with respect to The Trooper’s testimony were phrased in the past tense. The State asked, “Who did you think was driving?” and “How did you come to that conclusion?”

Though The Trooper’s answer to the first question was phrased in the present tense, his answer to the second question clarified the fact he was testifying about his prior beliefs.

Pursuant to the Hanson principle, this testimony was not an improper lay opinion because it was not offered as a present opinion on defendant’s credibility but, rather, was a statement of past belief offered to explain the course of investigation, i.e., why defendant was ultimately arrested.

The court concluded The Trooper’s testimony about his past opinion was outside the purview of Rule 701. The Trooper Vandeventer merely stated why he believed defendant was driving, which explained why and how defendant was investigated and ultimately arrested.

His belief was supported by his observations of the scene and Woodland’s confession.

This was not a “human lie detector” situation, and The Trooper’s testimony did not encourage the jury to base its decision on improper factors; rather, his testimony encouraged the jury to make its decision based on the evidence.

The court concluded this testimony was not unfairly prejudicial, as the probative value in explaining the course of the investigation and arrest was not substantially outweighed by any prejudicial effect. See Ill. R. Evid. 403.

Despite the fact defendant failed to clearly assign error to defense counsel with respect to The Trooper’s second statement, we conclude any such argument would have been groundless, and we reject his argument that The Trooper’s second statement was unfairly prejudicial.

Police Officer’s Human Lie Detector Testimony Clearly Erroneous Opinion Testimony - Episode 381 

Aggressive Interrogation Is More Prejudicial Than Probative (Defendant Never Confessed) - Episode 378

Police Can Offer Opinion Testimony of Who They Think Is Depicted In a Video - Episode 135