Kane County Nuggets

This is the June 2017 Illinois criminal case law audio round-up (the fast case law summary). Episode 358 (Duration 35:13)

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

Here's a quick snapshot of the top cases:

1. People v. Ringland

Prosecutors cannot create their own separate police force.

2. People v. Sebby

Supreme Court explains how plain error analysis works.

3. People v. Dismuke

Zehr principles are royal screwed up leading to a reversal under plain error.

4. People v. Smith

Joinder prevents the attorney general from charging on old search warrant counts.

5. People v. Nelson

Defendant says his attorneys had a conflict because they went with self defense rather than actual innocence.

6. People v. Schutz

Turns out all three of defendant's attorneys had a relationship with the jailhouse informant who testified against defendant.

7. People v. Brown

This attorney inadequately argued her own ineffectiveness.

8. McWilliams v. Dunn

Defendant was sentenced to death even though his attorney was asking for help and more time to make sense of the complicated mental health records.

9. Packingham v. North Carolina

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

10. People v. Kent

Admitting this Facebook post leads to murder conviction reversal.

11. Weaver v. Massachusetts

Right to public trial is a structural right, but it really matters when the issue is brought up.

12. People v. Alexander

Illogical verdicts won't always require reversal.

13. People v. Jackson

DOJ's report on CPD use of force cited in an appeal for the first time in a case featuring a mentally ill defendant.

14. People v. Martin

Constitutional violation depended on whether the 2 story flat was more like a single family home or an apartment building.

15. People v. Bonilla

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

16. People v. Church

Defendant used facebook and text message to help a lady get drugs; she ends up overdosing.

17. In re Dustyn

Delinquent minor is forbidden from entering a college campus.

18. People v. Bardsley

If you want to rely on an affirmative defense you got to claim an affirmative defense.

19. People v. Dalton

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

20. People v. Crosby

This is why defendants like keeping their case open and in the system as long as possible.

21. People v. Evans

After the proofs were in the Judge asked about a wallet that had been mentioned in the testimony but not admitted by the State, so the judge continued the case to see the wallet.

22. People v. Martin

A little police opinion testimony was not a problem.

23. Glasow v. Carlson

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

In Episode 357 (Duration 54:41), trial attorney and Professor Steve Beckett of the University of Illinois School of law reveals his secrets when litigating a change in venue motion.

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Change in venue motions can be a little tricky.
Download these documents to take a peek
at a winning motion and sample survey report.

Download Sample Motion & Data

Download Sample Motion & Data

"Fair and impartial doesn't mean you're ignorant." -- Professor Beckett

Professor J. Steven Beckett reveals his litigation secrets as he unfolds the intricacies of a motion to change venue...I mean a motion to change place of trial.

Professor J. Steven Beckett has been a trial attorney in Illinois for 44 years.

In 1987, The Professor began teaching trial advocacy at the University of Illinois College of Law. He has taught various other law classes over the years. He's currently retired from his practice and the law school.

The Professor cut his teeth with public opinion polls when he litigated several high profile obscenity cases.

✓ This was the very first question the Professor was asking himself after he saw the charges against Curtis Lovelace. It is not a coincidence that Curtis was charged in Adams county but tried in Sangamon County. (Go to 5:50)

✓ The little known history of the law around moving a trial. We go from territory days to modern times...and even cover a few famous Abraham Lincoln cases. (Go to 7:35)

✓ When it comes to motions for change in venue (change the place of trial) there is one specific area that if overlooked can cost you the motion. If this issue is present in your case it can practically guarantee you'll win the motion. (Go to 15:25)

✓ What's your hunch on how modern social media influences this issue? (Go to 17:21)

✓ Everything you need to know about professional public opinion polls and how to use this powerful legal weapon in your litigation. How are they done? What do they cost? Where to find a good polster? How long do they take? (Go to 17:52) & (Go to 31:45)

✓ Listen real close around minute 21:20, the Professor drops a real gem about jury bias and impartiality. This nugget is worth some real money, and the Professor gave it to you for free! Understanding this will change how you handle these motions in the future and ratchet up your chances of winning them. (Go to 21:20)

✓ Here are the exact questions to ask during voir dire when you're probing this topic. If the judge let's you, the Professor lays out a logical and efficient way to conduct the questioning (Hint: the Professor explains how to lure the judge into doing it your way.) (Go to 22:22) & (Go to 40:53)

✓ Be prepared to ask for these two things in the unfortunate scenario where you lose the motion to change place of trial. (Go to 37:52)

• The Professor's Book: Illinois Criminal Law And Procedure A Law Enforcement Perspective/Statutes, Cases, and Commentary
• Sound Jury Consulting (the firm used by the Professor in the Curtis Lovelace case)
• 725 ILCS 5/114-6 - Motion To Change Place of Trial
• William "Duff" Armstrong Case (Famous Lincoln Case: The Almanac Case)
• Father Chiniquy Slander Case (Famous Lincoln Case: Peter Spink v. Charles Chiniquy)
• Adams v. Texas (SCOTUS case on impartial jury)
• Sheppard v. Maxwell (SCOTUS case on impartial jury)
• More SCOTUS on Impartial Jury
• People v. Taylor (great Illinois case mentioned by The Professor where attorney kind of manages his own poll)
• People v. Hall (old obscenity case handled by Beckett where poll data was used)

You may also want to check out...

• Episode 334 The Curtis Lovelace Case 
• Episode 320 Evan Parke On The Curtis Lovelace Case
• Episode 013 Change of Venue Due To Pretrial Publicity Hard To Win

Make sure to download the materials discussed by the Professor in the podcast.

He mentioned how he helped file and win a motion to change venue in a recent high profile case.

Hit the link below to take a peek at the documents that were actually filed in the case:

Change in venue motions can be a little tricky.
Download these documents to take a peek
at a winning motion and sample survey report.

Download Sample Motion & Data

Download Sample Motion & Data

People v. Petty, 2017 IL App (1st) 150641 (May). Episode 356 (Duration 7:33)

Defendant was under investigation for a theft so police were within their rights to confiscate the UPC labels they saw on the floorboard of defendant's car.

Defendant Ronald Petty was convicted by a jury of retail theft (720 ILCS 5/16A-3(b)) and sentenced to two years’ incarceration.

Best Buy had issued a storewide alert for an individual placing UPC labels for $42 Sony DVD players on $400 BluRay players and purchasing the more expensive players at the lower price.

They gave police the name on the receipts as well as video of the man making the purchases.

Two hours after the report the man came back and the police were called. The police responded and waited in the parking lot. Defendant left the store and drove away without buying anything.

The officers ran the plates, which identified the car as belonging to Ronald Petty, whose license had been suspended.

The officers stopped him and arrested him for driving on a suspended license.

As Petty was being taken out of his car, an officer saw some UPC labels on a clipboard on the front passenger-side floorboard. When searched, Petty had a credit card in his name that ended with the same four numbers on the Best Buy receipt.

Petty argues that the trial court should have granted his motion to quash arrest and suppress uniform product code (UPC) labels seized from his car.  

Petty maintains that the search of his car and seizure of the UPC labels was not justified as a search incident to an arrest as (i) the labels were unrelated to the traffic stop for driving on a suspended license, his only offense, and (ii) he was not within reach of his car at the time of the search. Defendant says he was not within reach of his car. 

He says a warrantless search of an arrestee’s car may be conducted only when the arrestee is unsecured and within reach of the passenger compartment or there is a likelihood of discovering offense-related evidence. Arizona v. Gant, 556 U.S. 332, 351 (2009).

Petty asserts that the State cannot prevail on the latter basis

While noting that without the recovery of the UPC labels Petty would have been charged only with driving on a suspended license (625 ILCS 5/6-303(a)) and not retail theft, the trial court held that the active investigation for retail theft involving UPC labels justified the seizure.

The plain view doctrine allows the police to seize property without a warrant.

The doctrine requires that

(i) the officer was lawfully in a position from which he observed the property,
(ii) the incriminating character of the property was immediately apparent, and
(iii) the officer had a lawful right of access to the property.

The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity.

Petty argues that the plain-view exception to the warrant requirement does not justify the seizure of the UPC labels, as the incriminating nature of the UPC labels was not immediately apparent.

However, in Brown, 460 U.S. at 741, where the United States Supreme Court discussed the concept of an object’s “immediately apparent” criminality, calling the phrase “very likely an unhappy choice of words.”

Rather, “probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would ‘warrant a man of reasonable caution in the belief,’ that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A ‘practical, nontechnical’ probability that incriminating evidence is involved is all that is required.”

Petty is correct that at the time the officers saw the UPC labels they did not know as a certainty whether any of them pertained to Sony DVD players sold at Best Buy. But that is not meaningful because probable cause does not require proof beyond a reasonable doubt.

“Immediately apparent” or “probable cause” element does not require officer to “know” item he or she sees is contraband or evidence of crime.

The appropriate question is would a reasonable person in that officer’s position believe that a crime was being or had been committed?

A mere hunch is insufficient to support the seizure, but a police officer views the facts “through the lens of his police experience and expertise” and “may draw inferences based on his own experience in deciding whether probable cause exists.”

The reviewing court agreed with the trial court—Petty was stopped while under investigation for the retail theft as well as for driving on a suspended license.

There can be no dispute that the officers were following Petty as the next step in their investigation.

Petty claims his arrest was based entirely on driving on a suspended license. Not so.

As noted, the police officers were investigating Petty for possible retail theft, but they soon discovered he was driving without a valid license and initiated the traffic stop as a result. The officers had reason to believe that a more serious crime had occurred.

There need be only sufficient evidence to justify the reasonable belief that the defendant has committed or is committing a crime.

Bruni and his partner were experienced police officers on the tactical team investigating retail crimes.

They had just interviewed the Best Buy store manager and viewed the surveillance video.

The police officers could draw an inference from the totality of the information available to them that the UPC labels were related to the recent theft. The officers knew the credit card transaction was in Petty’s name and recognized Petty from the surveillance video in terms of his physical characteristics, his jacket, and the sling supporting his left arm.

Also, the store manager had told the officers that storewide thefts had occurred involving falsified bar codes. UPC barcodes were the modus operandi in accomplishing the theft. So otherwise innocuous UPC labels were incriminating because the thefts that had occurred involved the scanning of UPC labels on checkout, establishing more than a mere suspicion.

People v. Richardson, 2017 IL App (1st) 130203-B (May). Episode 355 (Duration 6:52)

This pat down was justified after Defendant was fidgeting with his waistband and reaching for something after he was told to show them his hands.

Officers stop a car matching the general description of a stolen car.

Officer Akinbusuyi approached the vehicle from the passenger's side while Officer Johnson approached the driver's side.

Officer Johnson requested that the driver exit the vehicle after the driver was unable to produce a driver's license or insurance information. As the driver exited the vehicle, Officer Akinbusuyi observed the defendant mumbling and reaching "into the center console with his right hand but with his left hand it was stuffing something in his waistband."

Officer Akinbusuyi testified that he found the defendant's actions unusual, because "he had no reason to be doing that after I verbally told him let me see your hands."

Officer Akinbusuyi testified that his "best judgment was that he was hiding something in his waistband."

Based on his experience, he believed that "[i]t was mostly likely a weapon, drugs or something he didn't want me to find."

Officer Akinbusuyi asked the defendant to exit the vehicle, and the defendant complied.

Officer Akinbusuyi handcuffed the defendant, "patted down the area" and discovered a handgun in the defendant's waistband.

The officers subsequently searched the vehicle and found the victim's culinary tools confirming it was the stolen car.

Defendant contends that his motion to suppress evidence and quash arrest should have been granted because the arresting officer's pat-down search was unconstitutional.

He argues that the pat-down search was not justified pursuant to Terry v. Ohio, 392 U.S. 1 (1968), because Officer Akinbusuyi lacked a reasonable belief that the defendant was armed and dangerous.

Both the fourth amendment and the Illinois Constitution of 1970 guarantee the right of individuals to be free from unreasonable searches and seizures. See U.S. Const., amend. IV; Ill. Const. 1970, art I., section 6. Courts have divided police-citizen encounters into three tiers:

(1) arrests which must be supported by probable cause;
(2) brief investigative detentions, or 'Terry stops,' which must be supported by a reasonable, articulable suspicion of criminal activity; and
(3) encounters that involve no coercion or detention and thus do not implicate fourth amendment interests.

In Terry, the United States Supreme Court held "that a brief investigatory stop, even in the absence of probable cause, is reasonable and lawful under the fourth amendment when a totality of the circumstances reasonably lead the officer to conclude that criminal activity may be afoot and the subject is armed and dangerous."

Terry further specifies when a pat-down search for weapons during an investigative stop is permissible if:

"...nothing in the initial stages of the encounter serves to dispel [the officer’s] reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

"The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger."

Terry, 392 U.S. at 27.

"[I]n determining whether the officer acted reasonably in such circumstances, due weight must be given *** to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience."

Defendant argues that the circumstances described in that testimony did not justify a reasonable belief that the defendant was armed and dangerous. He asserts that, in reviewing the legality of the pat-down search, the court may not consider the reason why the police stopped the vehicle.

He claims: "Although the officer[s] may have suspected that the vehicle they pulled over may have been" the vehicle reported stolen 90 minutes earlier, "they had absolutely no proof of it at the time they pulled it over."

He further argues that because he was "merely the passenger" and did not control the vehicle, "the status of the car plays no part in the search of [the defendant] by Officer Akinbusuyi."

The defendant suggests that, to support a pat-down search, the officer needed to testify to a more definite belief that the defendant was armed.

Regardless of whether the officers had yet found proof that the vehicle was stolen, in considering the "totality of circumstances", it was reasonable for Officer Akinbusuyi to take into account that the vehicle matched the description of a car stolen approximately 90 minutes earlier. See People v. Simpson, 2015 IL App (1st) 130303, ¶ 25 (finding that the Terry stop of a vehicle shortly after a reported home invasion was supported by the fact that the vehicle fit the victim's description of the suspects' car).

This fact could contribute to the officer's reasonable suspicion that the occupants were involved in criminal activity and were potentially armed and dangerous.

More importantly, Officer Akinbusuyi testified that, after the driver was asked to exit the vehicle and the defendant

• was asked to show his hands,
• the defendant reached toward the center console with one hand
• and used his other hand to put something into his waistband.

Officer Akinbusuyi testified that based on his experience, he believed the defendant was attempting to hide something, "most likely a weapon, drugs or something he didn't want me to find."

The officer's belief that the defendant was "mostly likely" hiding a weapon indicated a sufficient suspicion to warrant the pat-down search.

We reiterate that an arresting officer need not be "certain" that the defendant is armed to have a reasonable suspicion, and that the officer may rely on "reasonable inferences in light of his experience."

The defendants' furtive movements —especially after being asked to keep his hands visible—could support the reasonable suspicion that the defendant was armed.

We conclude that the pat-down search was justified under the Terry standard, where

(1) the police officers encountered two individuals at night in a vehicle that matched the description of a recently stolen car and
(2) the defendant's movements in the car supported a reasonable suspicion that he was armed or had access to a weapon in the vehicle.

People v. Pettis, 2017 IL App (4th) 151006 (May). Episode 354 (Duration 6:18)

No speedy trial violation because the state properly relied on the DNA extension.

On July 7, 2013, defendant was arrested and later charged with

(1) armed habitual criminal (720 ILCS 5/24-1.7(a) (West 2012)),
(2) aggravated unlawful possession of a firearm by a felon (720 ILCS 5/24-1.1(a) (West 2012)), and
(3) reckless discharge of a firearm (720 ILCS 5/24-1.5(a) (West 2012)).

Defendant remained in custody throughout these proceedings.

The State filed a motion to compel defendant to submit a DNA sample, which the trial court granted on, the State filed a motion for a continuance pursuant to section 103-5(c) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/103-5(c)), requesting 120 additional days for the Illinois State Police crime laboratory (lab) to complete its processing of defendant’s DNA.

Generally, under section 103-5(a) of the Code,

“[every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he [or she] was taken into custody.” 725 ILCS 5/103-5(a).

However, “[i]f the [trial] court determines that the State has exercised without success due diligence to obtain results of DNA testing that is material to the case and that there are reasonable grounds to believe that such results may be obtained at a later day, the court may continue the cause on application of the State for not more than an additional 120 days.” 725 ILCS 5/103-5(c).

The State contends it is responsible for 162 days of delay, whereas defendant asserts 249 days are attributable to the State.

For calculating the number of days in each time period, we exclude the first date and include the last date. Various dates were attributable to the state and various dates were attributed to the defendant.

The dates at issue revolved around the state’s motions for more DNA time.

The State asserts the trial court’s, order extended the speedy trial term an additional 120 days for DNA processing provided the State with a total of 240 days to bring defendant to trial.

Where the court grants the State additional time to procure DNA testing results under section 103-5(c), the State interprets these provisions as granting the State a cumulative period of 240 days to bring a defendant to trial.

Defendant, on the other hand, argues the State had only 120 days to bring him to trial because the DNA was completed early. The State didn't use the extra time for DNA related purposes.

The length of the delay depends on the State’s request. Under defendant’s analysis, once the State obtained the DNA evidence, the remainder of the additional 120 days granted pursuant to section 103-5(c) should be rescinded

This court has already affirmed that section 103-5(c) allows the trial court to continue cases involving DNA testing for a maximum of 120 days beyond the initial 120-day period provided in section 103-5(a), for a total maximum period of 240 days, without violating a defendant’s speedy-trial rights.

Here, the State filed its motion to continue pursuant to section 103-5(c) early in the initial 120-day speedy-trial period and requested an additional 120 days to procure DNA testing results, which the trial court granted after finding the State had acted with due diligence.

The court did not adopt the defendant's theory.

There is no “due diligence” in this analysis.

Based on the trial court’s, order granting the State an additional 120 days pursuant to section 103-5(c), the State was entitled to 240 total days to bring defendant to trial. Period.

Therefore, because only 162 days of delay are attributable to the State, the reviewing court concluded the trial court erred in granting defendant’s motion for discharge.

This doesn’t mean the defendant did not have a legitimate beef.

In this case, the State filed its motion seeking an additional 120 days, long before the expiration of the initial speedy-trial period. The trial court found the State exercised due diligence in its attempts to procure the evidence by that date, granted the motion to extend the speedy-trial deadline for an additional 120 days, and scheduled the case for a series of reviews to determine the status of the DNA evidence.

Although there was no apparent abuse in this case, procedurally, this approach may allow the State to delay a case for a period significantly longer than necessary to procure the DNA evidence.

For example, here, where the DNA evidence was available prior to the expiration of the initial speedy-trial period, the court’s ruling permitted the State to delay up to an additional 120 days for the purpose of obtaining testing results it had already received.

A better practice would be to avoid granting the entire 120 days unless the circumstances strongly suggest such an extension is necessary.

Periodic review dates, coupled with an order extending the speedy-trial period for a portion of the 120 days, would help to ensure only the time actually needed is given. If the State is unable to obtain the test results within the initial extension, the court, upon the request of the State, may grant additional extensions up to the 120 days allowed by the statute.

Additionally, defendants should not hesitate to request that if the court is inclined to grant a continuance, it do so for a period of less than 120 days. In making these suggestions, we do not intend to obligate the trial court to proceed as we have proposed.

The trial court was wrong to grant the defendant’s speedy trial violation motions. Reversed and remanded.

People v. Lewis, 2017 IL App (4th) 150124 (April). Episode 353 (Duration 14:28)

Steigman on how to conduct a proper impeachment.

Defendant is charged with aggravated battery for choking a girl.

He takes her phone.

She reacts.

He grabs her by the neck when his sister gets between them.

Defendant calls his sister as a witness who testified that defendant never choked the victim.

State calls a police officer who says sister did tell him defendant choked the victim.

Because the sister testified as a defense witness, the State was permitted to impeach her by showing that she had made an oral prior statement inconsistent with her trial testimony.

The State sought by this impeachment to undercut her credibility in the eyes of the jury.

Here, defendant’s sister testified as a defense witness, and the State sought to impeach her by first confronting her on cross examination with a prior oral statement she made to the officer that was inconsistent with her trial testimony and then completing the impeachment by calling the officer (the impeaching witness) to testify that the sister had made that statement.

What happened in this case was standard, run-of-the-mill impeachment of an opposing party’s witness by the introduction of that witness’ prior inconsistent statement, and section 115-10.1 was not implicated in this case.

When we are outside the bounds of 115-10.1, a witness who is impeached with statements made by him out of court, those statements may not be considered for their truth—that is, they do not constitute substantive evidence.

The fact that the witness made different, contradictory statements should be used only to undermine the credibility of the witness.

In the State's cross-examination, the State asked her the following question:

“Do you remember telling [the officer] that the defendant, choked your friend, the sister—or excuse me, you’re the sister—your friend, the victim, twice?”

The sister responded, “No.”

It should be remembered that the only matter at issue when the State called the officer was to complete its impeachment of the sister by establishing through the officer’s testimony that he had a conversation with the sister in which the sister told him that the defendant choked her friend, the victim, twice.

Instead of directly asking that question of the officer, the State asked him if he recalled what was said in his interview with the sister.

When The officer responded, “Yes,” the State then asked, “Could you please begin at the beginning?”

This was wrong.

In response, The officer described in some detail what the sister told him about the incident. The important—and the only probative portion—of the officer’s rebuttal testimony was when he testified that the sister told him that defendant “reached past the victim and grabbed her twice around the neck.” 

No objection was made to the officer’s testimony despite there being multiple problems with it.

The officer’s account about what the sister told him is not inconsistent, in a technical sense, with the sister’s testimony regarding her conversation with the officer. That is, when the State attempted to lay the foundation for the sister’s impeachment by a prior inconsistent statement, the State asked the sister on cross-examination if she remembered telling the officer that defendant “choked” the victim twice, and the sister replied "no".

However, when the officer testified in rebuttal as the impeaching witness and the State asked the open-ended question in rebuttal for him to describe his conversation with the sister, he did not use the term “choked.”

Instead, he testified that the sister told him that defendant “grabbed” the victim twice around the neck. This may at first seem like a minor matter, but it is not.

Grabbing someone around the neck is not the same as choking that person, although if one grabbed a person strongly enough around the neck, choking might well result. His testimony that the sister told him that the defendant “grabbed” the victim by the neck twice was no doubt his then-current, honest recollection of that conversation

Nonetheless, the fundamental rule of impeachment by a prior inconsistent statement is that the extrinsic evidence of the statement having been made—with which the declarant was confronted on the witness stand—must be the same statement with which the witness was confronted. Here, that did not happen.

Instead of using leading questions to complete the impeachment of the sister, the State used an open-ended question, thereby eliciting improper hearsay evidence about what the sister told the officer.

The State’s open-ended questioning of the officer resulted in his testifying about various details surrounding the incident that the sister told him (all of which was inadmissible hearsay), such as that the sister told the officer that defendant “got in the victim's face and began yelling at her and calling her names.”

Even more important, the State’s open-ended questioning of the officer resulted in the State’s failure to present the extrinsic evidence the State was required to present—namely, that the sister had in fact made a statement inconsistent with her testimony at trial.

As earlier discussed, the State asked the sister whether she told the officer that defendant twice “choked” the victim, whereas the officer, when relating his conversation with the sister, said that the sister told him that defendant twice “grabbed” the victim around the neck. Indeed, the State’s purported attempt at completing the impeachment of the sister in this case not only was improper, but it could serve as a “poster boy” of what can happen when the correct procedure to complete impeachment is not used. 

To sum up, the State’s open-ended questioning of the officer, the impeaching witness, had two bad results:

(1) the State never properly completed the sister’s impeachment because the officer never testified that the sister made the statement to him that was allegedly inconsistent with her trial testimony, about which she was questioned on cross-examination; and
(2) the jury heard the officer say that the sister told him “defendant got in The victim's face and began yelling at her and calling her names.”

Regarding that last point, we note that the victim herself never testified that defendant so behaved, and even the sister testified only that defendant and the victim were arguing and yelling at each other.

Because so much uncertainty seems to exist among trial lawyers regarding the issue of how to complete the impeachment of a witness through the presentation of extrinsic evidence to establish the inconsistent nature of the witness’ trial testimony, Steigman offers the following guidance:

The rule that must be followed is that,

“Before a witness may be impeached by a prior statement, a proper foundation must be laid in order to alert the witness, avoid unfair surprise, and to give the witness a chance to explain. The witness must first be asked as to the time, place[,] and persons involved in the alleged conversation; secondly, he must be asked whether he made a certain contrary statement at that time. *** When the impeaching witness is produced, the proper course is simply to ask him whether or not the witness to be impeached made the statement in regard to which he has been questioned at that time and place mentioned. It is improper to ask the impeaching witness to relate the whole conversation.”

The inherent danger posed by such cross-examination questions is that the jury will ignore the witness’ denial, make a presumption that the insinuation created by the questions is accurate, and substitute the presumption for proof.  

The State must have a good-faith basis to ask the cross-examination questions, as well as the intent and the ability to complete its impeachment.

In the present case, the State purported to complete the impeachment of the sister by calling the officer (the impeaching witness), but as is often the case, the State did not follow correct procedure in doing so.

Aside from the fact that none of his recollection is pertinent or admissible except for the narrow and limited purpose of establishing the prior inconsistent statement, an open-ended question to the impeaching witness could result in a surprise to everyone. After all, the impeaching witness might well be testifying (as here) several months after the conversation at issue occurred, and the impeaching witness’ testimony about that conversation could in all honesty be based upon that witness’ current recollection.

Actually, the better phrasing of the question to the sister to lay the foundation for a later impeachment would have been for the State to have asked its question as follows:

“You told the officer the defendant choked your friend twice, didn’t you?” or “Isn’t it true that you told the officer defendant choked your friend twice?”

Asking the sister whether she remembered telling the officer that defendant choked her friend is not quite the same thing.

Having elicited this testimony from the sister, the State was then duty bound to complete the impeachment by presenting extrinsic evidence that the sister in fact had made the statement to the officer she had just denied.

Generally, the State may not impeach a defense witness on cross-examination with a prior inconsistent statement unless the State can prove that statement with extrinsic evidence if the witness denies making it.

Thus, in the present case, to complete the sister’s impeachment, the State was required to call the officer, the impeaching witness, to testify in rebuttal.

Through the officer’s testimony, the State needed to present extrinsic evidence of the sister’s prior statement to the officer that the State maintained was inconsistent with her trial testimony. To do so, the State needed first to establish that the officer had a conversation with the sister about the incident in question, asking generally where and when the conversation occurred and who was present, if anyone, besides the sister and the officer.

Then the State should have asked a leading question, literally calling for only a yes or no answer, as follows:

“During that conversation, did the sister tell you that the defendant choked her friend, the victim, twice?”

Assuming, for the moment, the officer would have answered "yes" to that question, then the impeachment of the sister would have been completed and no further testimony from the officer about what the sister told him during that conversation would be either necessary or admissible.

That is because everything the sister told the officer in their conversation constituted inadmissible hearsay except the officer’s testimony about the sister’s prior inconsistent statement.

Had this procedure been followed, the officer would not have had the opportunity to tell the jury that the sister told the officer how “defendant got in the victim's face and was yelling at her and calling her names,” all of which was prejudicial to defendant and entirely inadmissible.

**To be clear—here, the officer—should never be asked what his recollection of the conversation at issue.

If the prosecutor before trial had discussed the officer’s testimony with him (as she should have done) before

(1) confronting the sister on cross-examination with her prior statement to the officer that was allegedly inconsistent with her trial testimony and then
(2) calling the officer as the impeaching witness, she might have refreshed his recollection with his reports showing that the term the sister used in that conversation was that defendant “choked” the victim twice.

Under these circumstances, it is possible that the officer, with his recollection having been refreshed, could have testified accurately and honestly that the sister used the term “choked.”

Further, if after an attempt to refresh the officer’s recollection during such a pretrial conference between the prosecutor and the officer, the officer still remembered the sister as using only the term “grabbed” instead of “choked,” then the prosecutor would know not to ask the sister during her cross-examination by the State if the sister told the officer that she saw the defendant “choke” the victim twice.

The prosecutor instead would know to use the term “grabbed” when cross examining the sister.

Yet, that mistake highlights why, to avoid this situation, it is necessary that only leading questions must be asked of the impeaching witness to establish the prior inconsistent statement.

People v. Nelson, 2017 IL 120198 (June). Episode 252 (Duration 13:20)

Defendant says his attorneys had a conflict because they went with self defense rather than actual innocence.

Defendant is one of four women who beat and stabbed a man on the sidewalk and left him for dead. He did die.

Defendant was convicted of murder and sentenced to 25 years.

The Cook County circuit court conducted severed but simultaneous bench trials.

On appeal, defendant argued, in part, that her convictions should be reversed because her attorneys, who were part of the same clinic that represented codefendant Hall, labored under an actual conflict of interest.

According to defendant, her statement to the police set out a plausible, alternative defense of actual innocence, based on a lack of accountability, which was hostile to Hall’s defense of self-defense.

Defendant maintained that her attorneys could have pursued this alternative defense but did not do so because they were constrained by their loyalty to Hall.

Defendant was represented by Richard Kling and Susana Ortiz, both from the Law Offices of Chicago-Kent College of Law.

Hall was represented by Daniel Coyne, also from the Law Offices of Chicago-Kent.

Because this case was originally a capital case, these attorneys were appointed by the court under the now repealed Capital Crimes Litigation Act. 725 ILCS 124/5.

For purposes of conflict of interest analysis, the law considers the representation of codefendants by law partners or associates the same as the representation of codefendants by one attorney.

However, the mere fact of joint representation of multiple defendants does not create a per se violation of the right to effective assistance of counsel.

Moreover, the Supreme Court has noted that, when joint representation is undertaken but the defendants are tried separately, it is less likely counsel will face a conflict.

Here, the issue was only raised on appeal, so defendant must establish an actual conflict. The Illinois Supreme Court has changed the standard here. T

In Echols, this court held that the mere availability of a strategy that would have helped the defendant at the expense of a codefendant does not create hostility between the interests of the two.

Thus, even assuming that defendant had a plausible, alternative defense that could have been pursued by her attorneys, that fact could not establish that his interests were hostile to those of other codefendants.

So long as there was a viable joint defense, the interests of codefendants were not hostile.

The Echols rule fails to recognize that a common defense for two clients does not necessarily demonstrate the absence of a conflict between their interests. See People v. Echols, 74 Ill. 2d 319 (1978) and Cuyler v. Sullivan, 446 U.S. 335 (1980).

The rule does not take into account the fact that a conflict of interest may arise when defense counsel must make the choice of strategy or defense to pursue in representing defendant.

Or, to put it another way, the Echols rule does not afford courts the opportunity to assess whether the interests of the codefendants actually are at odds with each other in a particular case and, therefore, whether a conflict of interest exists.

The Echols rule is therefore in conflict with the Sullivan standard for establishing an actual conflict and must be overruled.

Having rejected the Echols rule, the court had to consider whether defendant had established an actual conflict under Sullivan.

In order to establish that an actual conflict of interest adversely affected counsel’s performance, a defendant first, must demonstrate that some plausible alternative defense strategy or tactic might have been pursued. He need not show that the defense would necessarily have been successful if it had been used, but that it possessed sufficient substance to be a viable alternative.

Then he must establish that the alternative defense was inherently in conflict with or not undertaken due to the attorney’s other loyalties or interests.

Thus, to determine whether defendant and codefendant Hall’s interests were hostile in this case, the court first must evaluate the strength of the putative defense, if any, discarded by defendant’s attorneys and determine whether its presentation would harm the interests of Hall.

As the Seventh Circuit has stated, “the presentation of a united front may not be consistent with one defendant’s interest if it requires the abandonment of a plausible defense that benefits him at the expense of his codefendant.”

Defendant contends that a plausible, alternative defense existed in this case that was at odds with Hall’s self-defense strategy.

Defendant asserts that, in her statement to police, she established that Hall suddenly and without explanation stabbed Wilson while he was on the ground, that defendant tried to stop Hall when she discovered Hall was stabbing Wilson, and that defendant did not know Hall intended to kill Wilson.

From this, defendant asserts a defense of innocence based on a lack of accountability was of “sufficient substance to be a viable alternative’ to self-defense.”

The high court did not agree. Section 5-2(c) of the Criminal Code of 1961 provides that a person is legally accountable for the criminal conduct of another if “either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he or she solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.”

720 ILCS 5/5-2(c) (West 2008).

This statute incorporates the common-design rule.

Under the common-design rule, if “two or more persons engage in a common criminal design or agreement, any acts in the furtherance thereof committed by one party are considered to be the acts of all parties to the common design and all are equally responsible for the consequences of such further acts.”

Where there is a common design to do an unlawful act, then “whatever act any one of them does in furtherance of the common design is the act of all, and all are equally guilty of whatever crime was committed.” People v. Tarver, 381 Ill. 411, 416 (1942).

Thus, a defendant may be charged with murder based on a theory of accountability where the defendant enters a common design to commit only a battery yet a murder is committed during the course of the battery.

Defendant admitted she was the one who initially grabbed the knife from the kitchen and was aware at all times during the incident that Hall was in possession of it.

Defendant also admitted to physically attacking Wilson and grabbing his hood to hold him down.

Thereafter, defendant went through Wilson’s pockets and removed his jacket to search for Hall’s phone.

Defendant then returned with the others to Cox’s apartment.

At no time did defendant attempt to escape the incident or separate herself from the group or remove herself from the attack.

If the four co defendants’ common design was to commit a criminal assault on Wilson, then it would not matter under Illinois law whether Hall “suddenly” stabbed Wilson during the attack or whether, at some point, defendant told Hall to stop and attempted to grab the knife.

On this record, defendant is guilty of first degree murder under the common-design rule. Defendant’s proposed alternative defense was simply not available. Accordingly, defendant has not shown an actual conflict of interest.

Defendant failed to show that an innocence defense based on a lack of accountability was a plausible alternative defense.

People v. Sebby, 2017 IL 119445 (June). Episode 351 (Duration 9:25)

Supreme Court explains how plain error analysis works.

Deputies gets all scratched up on his arm and hand when deputies attempted to arrest defendant.

They were at his mother’s house serving a custody order to his sister involving the child of another sister of theirs.

Deputy said Defendant poked the deputy when he was telling him to get off his property, that prompted the arrest and the struggle. Defendant’s family members and defendant himself testified that he did not resist and that the officers were belligerent and hostile from the get go.

During the trial for aggravated resisting arrest the trial court screwed up the Zehr principles.

The court individually asked members of the panel whether any of them “[h]ad any problems” with those principles, while interweaving questions about whether there was anything that would prevent them from being fair and impartial in evaluating the evidence.

The trial court specifically repeated its question with respect to the presumption of innocence to two potential jurors because they indicated that they might be biased.

Using similar phrasing, the trial court spoke to each panel of prospective jurors about the Zehr principles. The trial court again asked the individual jurors of each panel whether they “[had any problems” with or “believed] in” those principles, as well as whether anything would prevent them from being fair and impartial.

Everyone agrees this was error.

Under Rule 431(b), the trial court should have asked whether jurors understood and accepted those principles.

Zehr, Rule 431(b) was designed to ensure that the defendant has a fair and impartial jury—a jury that understands and accepts four important constitutional principles:

“(1) that the defendant is presumed innocent of the charge(s) against him or her;
(2) that before a defendant can be convicted the State must prove the defendant guilty beyond a reasonable doubt;
(3) that the defendant is not required to offer any evidence on his or her own behalf; and
(4) that if a defendant does not testify it cannot be held against him or her.”

Ill. S. Ct. R. 431(b) (eff. July 1, 2012).

Because the defendant did not object, the issue became whether his forfeiture could be excused under the plain error doctrine.

Plain error requires reversal when

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

A Rule 431(b) violation is not cognizable under the second prong of the plain error doctrine, absent evidence that the violation produced a biased jury.

The relevant evidence at the defendant’s trial involved two elements:

(1) whether the defendant knowingly resisted the deputies’ actions in arresting him for battery to a police officer and, if so,
(2) whether that conduct proximately caused the injury.

Which means the defendant must establish that the evidence in his case was closely balanced.

In determining whether the evidence adduced at trial was close, a reviewing court must evaluate the totality of the evidence and conduct a qualitative, commonsense assessment of it within the context of the case.

The Illinois Supreme court said that standard seems quite simple, but the opposite is true. A reviewing court’s inquiry involves an assessment of the evidence on the elements of the charged offense or offenses, along with any evidence regarding the witnesses’ credibility.

The defendant argues that the evidence was closely balanced because both parties presented plausible versions of events.

The State responds that it presented ample, persuasive evidence of the defendant’s guilt.

The issue before the high court, however, does not involve the sufficiency of close evidence but rather the closeness of sufficient evidence. In other words, whether the evidence is closely balanced is, of course, a separate question from whether the evidence is sufficient to sustain a conviction on review against a reasonable doubt challenge.

A commonsense assessment of the evidence reveals that it was closely balanced. The deputies’ testimony was largely consistent, but so was the testimony of the defendant and his witnesses.

Minor inconsistencies clouded the testimony on both sides, but neither the prosecution nor the defense accounts of that morning’s events were fanciful.

The high court concluded that because both versions were credible, the evidence was closely balanced.

The State is correct in its contention that a defendant must show prejudice to obtain relief under the first prong of the plain error doctrine. As our cases clearly indicate, though, prejudice rests not upon the seriousness of the error but upon the closeness of the evidence.

What makes an error prejudicial is the fact that it occurred in a close case where its impact on the result was potentially dispositive.

The trial court’s questions about those principles, particularly the defendant’s presumption of innocence and the State’s burden of proof, constitute preliminary instructions to potential jurors on how they must evaluate the evidence, so a Rule 431(b) violation may affect the verdict.

If jurors do not understand and accept that the defendant is presumed innocent, then credibility contests could lean in the State’s favor, which could tip the scales of justice against the defendant in a close case. Or if jurors do not understand and accept that the State bears the burden of proof beyond a reasonable doubt, then, again, credibility contests could lean in the State’s favor, which also could tip the scales of justice against the defendant in a close case.

A jury that does not understand and accept those principles may weigh the evidence in favor of the State or render a guilty verdict on insufficient proof, again tipping the scales against the defendant in a close case.

Thus, the only question in a first-prong case, once clear error has been established, is whether the evidence is closely balanced.

The court rejected the State’s argument that we should abandon our definition of prejudicial error found in the case law. Plain errors by definition are substantial. See Ill. S. Ct. R. 615(a).

People v. Veal, 2017 IL App (1st) 150500 (May). Episode 350 (Duration 4:30)

When a driver is arrested does that then mean that the passengers are free to leave and go on their way?

Veal was charged with four counts of unlawful use of a weapon by a felon, two counts of aggravated unlawful use of a weapon, and one count of armed habitual criminal after an officer recovered a gun on Veal’s seat during a traffic stop.

Police pulled up next to a Honda Civic at a red light, at which time officers observed that the rear two passengers of the car were not wearing seatbelts.

Defendant was the rear seat passenger and was seen making movements toward his waist, as though he was trying to cover something.

Specifically, the officer testified that Veal moved his hands towards his waist on the right side of his body and pushed his waist down.

The driver was ordered out and arrested.

He then ordered Veal out of the car and opened the door for him.

As Veal exited the car, Officer Kanski saw a handgun underneath where Veal had been sitting, and he immediately secured Veal and took possession of the weapon.

The issue on appeal is whether or not the traffic stop had ended once the driver was arrested.

Specifically, the parties dispute whether Officer Kanski’s command for Veal to exit the car occurred while the stop was in progress. Veal contends that following the arrest of the driver, the stop had concluded and he was free to leave. 

Illinois courts have not squarely confronted the issue presented in this case, which is whether a traffic stop ends when, instead of returning papers to the driver, the officers arrest or restrain him.

There are several exceptions to the warrant requirement, including the circumstance where a police officer briefly stops a person for questioning when the officer reasonably believes that person has committed, or is about to commit, a crime—colloquially known as a Terry stop.

A motor vehicle stop is akin to a Terry stop (Knowles v. Iowa, 525 U.S. 113, 117 (1998)), and as such, we analyze the reasonableness of such stops under Terry principles (Jones, 215 Ill. 2d at 270).

And both parties agree that following a lawful traffic stop police may, as a matter of course, order the driver and any passengers out of the vehicle pending completion of the stop.

A traffic stop is reasonable when the police have probable cause to believe that a traffic violation has occurred.

Here, Veal does not challenge the legality of the stop based on the fact that both Veal and his fellow rear-seat passenger were not wearing seatbelts. See 625 ILCS 5/12-603.1(a) (generally requiring rear-seat passengers to wear safety belts).

According to Veal, the order to step out of the car constituted a new police-citizen encounter requiring separate justification under the fourth amendment.

The reviewing court disagreed.

We have considered the question of when a traffic stop “ends” for purposes of determining the legality of a later search of the automobile or the defendant. As a general matter, we have held that the return of paperwork—e.g., a driver’s license, vehicle registration, or proof of insurance—signifies the conclusion of the stop as it conveys to the driver that he is free to leave, and any ensuing search must be supported on grounds independent of the initial violation prompting the stop.

In this case, we do not believe the arrest of the driver would lead a reasonable person in Veal’s position to believe that he was free to leave.

Significantly, the stop was prompted by the fact that neither Veal nor the other rear-seat passenger was wearing a seatbelt, which is a petty offense subject to a fine. 625 ILCS 5/12-603.1(d).

While Officer Kanski began the encounter by restraining the driver, that alone did not suggest that Veal would escape ticketing. In other words, Officer Kanski’s action of handcuffing the driver did not convey to the passengers that they were then free to leave, particularly where two of those passengers had also committed traffic violations.

In sum, because we conclude that the stop was ongoing at the time Officer Kanski ordered Veal out of the car and because an officer may routinely order a passenger out of a car during a lawful traffic stop (Sorenson, 196 Ill. 2d at 433), the court held that Veal’s search and seizure did not run afoul of the fourth amendment.

Conviction Affirmed.

People v. Way, 2017 IL 120023 (April). Episode 349 (Duration 7:44)

Proximate cause defense in aggravated DUI cases remains alive and well after the cannabis reform law.

This was a cannabis related aggravated DUI.

Defendant drove over the centerline of a two-lane road in and struck head-on a truck driven by a pregnant lady.

Both the pregnant lady and defendant’s 14-year-old son, who was a passenger in defendant’s vehicle, suffered from great bodily harm.

Defendant consented to blood and urine samples on the day of the accident. The urine test revealed the presence of tetrahydrocannabinol (THC) metabolite, which results from cannabis use.

Section 11-501(a)(6) of the Illinois Vehicle Code (Vehicle Code) makes it a misdemeanor offense to drive or be in actual physical control of any vehicle in this state while there is any amount of a drug, substance, or compound in the person’s breath, blood, or urine resulting from the unlawful use or consumption of cannabis. 625 ILCS 5/11-501(a)(6).

Section 11-501(d)(1)(C) of the Vehicle Code elevates the misdemeanor offense to felony aggravated DUI if the person, in committing the violation of subsection (a), was involved in a motor vehicle accident that resulted in great bodily harm or permanent disability or disfigurement to another, when the violation was a proximate cause of the injuries. 625 ILCS 5/11-501(d)(1)(C).

Section 11-501 of the Vehicle Code provides, in pertinent part:

“(a) A person shall not drive or be in actual physical control of any vehicle within this State while: * * * (6) there is any amount of a drug, substance, or compound in the person’s breath, blood, or urine resulting from the unlawful use or consumption of cannabis listed in the Cannabis Control Act *** . * * * (d) Aggravated driving under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof. (1) Every person convicted of committing a violation of this Section shall be guilty of aggravated driving under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof if: * * * (C) the person in committing a violation of subsection (a) was involved in a motor vehicle accident that resulted in great bodily harm or permanent disability or disfigurement to another, when the violation was a proximate cause of the injuries[.]” 625 ILCS 5/11-501 (West 2010).

Note: This provision of the Vehicle Code was recently amended and no longer imposes a zero-tolerance ban on driving with cannabis in the driver’s system. Pub. Act 99-697 (eff. July 29, 2016).

Defendant was not allowed to call her doctor who would have testified that defendant “has low blood pressure and it is possible that the loss of consciousness right before the accident was caused by this condition and not caused by any particular drug.

At issue is whether defendant should have been allowed to present evidence from her physician that a medical condition, rather than drug impairment, led her to lose consciousness and was the sole cause of the resulting collision with Wood’s vehicle.

Of course, the doctor could not say that was the cause, simply that it was a possibility.”

Defense counsel also stated that defendant would have testified “that she was not impaired and had not done any illegal drugs that particular day” and would have called three lay witnesses “who saw her shortly before the accident to testify that she was not impaired.”

The Act now prohibits driving with either 5 nanograms or more of delta-9-THC per milliliter of whole blood or 10 nanograms or more of delta-9-THC per milliliter of other bodily substance, as measured within two hours of driving.

Under the DUI statute, proof of impairment was not necessary in two types of DUI cases:

(1) when the alcohol concentration in the person’s blood or breath was above the legal limit; or (2) when there was any amount of cannabis, controlled substances, or methamphetamine in the defendant’s body.

That’s what they meant by saying it was a “strict liability” offense as opposed to violations that required proof of impairment.

Therefore, the State was not required to prove that the defendant was impaired and that the illegal substance in his system, either alone or in combination with other factors, affected his ability to drive and was the proximate cause of the victims’ deaths.

Martin made plain that “the central issue at trial will be proximate cause, not impairment.

A defendant who is involved in a fatal motor vehicle accident while violating section 11-501(a)(6) is guilty of only misdemeanor DUI, where his driving was not a proximate cause of the death.”

The Illinois Supreme Court said reiterated that when an aggravated DUI charge is based on a violation of section 11-501(a)(6), as in this case, section 11-501(d)(1)(C) requires a causal link only between the defendant’s physical act of driving and another person’s great bodily harm or permanent disability or disfigurement.

The facts in this case are virtually identical to People v. Martin, 2011 IL 109102, ¶ 26. As the State correctly advances, because defendant was driving with cannabis in her system—a per se DUI offense requiring no evidence of impairment—an aggravated DUI charge based on defendant’s involvement in an accident resulting in great bodily harm or permanent disability to another requires a causal link only between her physical act of driving and another person’s injuries or death.

Here, as in Martin, although there was no evidence that the drugs in defendant’s system rendered her impaired or caused the accident, her driving in violation of section 11-501(a)(6) was a proximate cause of the victims’ great bodily harm.

Defendant acknowledges that the State had sufficient evidence to show that she was at fault when her car crossed the centerline and collided head-on with the other vehicle.

She asserts, however, that the trial court erred in barring her from presenting evidence to establish that a sudden medical condition (i.e., low blood pressure) resulted in her losing consciousness prior to the collision and was the sole proximate cause of the crash.

To a certain extent she is correct.

Sure enough, the law of proximate cause allows a defendant to raise as an affirmative defense that a collision resulting in serious bodily injury or death was caused solely by a sudden unforeseeable medical condition or act of God that rendered the defendant driver incapable of controlling the vehicle.

However, a defendant who raises this affirmative defense in an aggravated DUI prosecution, however, bears the burden of establishing that the alleged unforeseen medical condition constitutes the sole proximate cause of the accident and the resulting injuries.

She didn’t meet that burden here.

This defendant essentially just wanted to prove she was not impaired, which was irrelevant.

Her own doctor could not testify that defendant’s low blood pressure was the cause of her falling asleep or losing consciousness prior to the accident, only that it was a possibility.

Based upon the offer of proof, defendant was unable to show that her theory as to why she lost control of her vehicle was the sole proximate cause of the resulting collision to the exclusion of the presumed impairment.

Consequently, we find defendant failed to adequately support her claim that the trial court improperly barred her affirmative defense from proceeding.

For these reasons, the trial court erred in finding that defendant was barred, as a matter of law, from raising as an affirmative defense that the accident was caused solely and exclusively by a sudden unforeseeable medical condition that rendered defendant incapable of controlling her car.

Defendant, however, failed to make an adequate offer of proof to support this affirmative defense.

Accordingly, the judgment of the appellate court is reversed, and defendant’s conviction and sentence for aggravated DUI are reinstated.

Today, the state has to prove impairment or a minimum level of cannabis. However, this proximate cause defense remains intact.