Kane County Nuggets

People v. Shakirov, 2017 IL App (4th) 140578 (April). Episode 348 (Duration 18:46) 

Reckless homicide reversed outright when the state failed to establish any recklessness at all.

Defendant was driving a semi-tractor trailer southbound on Interstate 39 (I-39) near Hudson, Illinois (which is just north of Peoria), when he collided with several emergency vehicles that were responding to an earlier accident.

The collision resulted in the death of volunteer firefighter.

2 Months later he was charged of reckless homicide. The United States Marshall Service subsequently arrested defendant in Spokane, Washington. He was convicted by a jury and sentenced to 4 years in prison.

A person commits reckless homicide when

(1) while driving a motor vehicle,
(2) the person “unintentionally kills an individual without lawful justification *** if his acts whether lawful or unlawful *** are such as are likely to cause death or great bodily harm,” and
(3) those acts were performed recklessly.

720 ILCS 5/9-3(a).

As applied to the offense of reckless homicide,

“A person is reckless or acts recklessly when that person consciously disregards a substantial and unjustifiable risk that [his acts are likely to cause death or great bodily harm], and that disregard constitutes a gross deviation from the standard of care that a reasonable person would exercise in the situation.”

720 ILCS 5/4-6.

The indictment read as follows:

“[T]hat defendant, while acting in a reckless manner, performed acts likely to cause the death of or great bodily harm to some individual in that he operated a motor vehicle, a white 2003 Freightliner [semi-tractor trailer], in a southern­ direction on the inside (left passing lane) of I-39, *** at a speed which was greater than was reasonable and proper with regard to the existing traffic conditions and the safety of persons properly upon the roadway, failed to proceed with the necessary due caution and yield the right-of-way by slowing down and change into the right lane, while reducing speed of the vehicle and maintaining a safe speed for the conditions, upon approaching authorized emergency vehicles displaying the appropriate warning lights, in that the defendant caused his vehicle to strike ***[the volunteer firefighter], thereby causing his death.”

The gist of the allegation is that he was driving too fast for the snowy/icy conditions and he should have moved over to the right ride.

The accident that preceded this collision involved a semi that had jackknifed and flipped on it’s side after a pick-up truck had crossed the median and interfered with southbound traffic.

It was snowy and icy.

Emergency vehicles were travelling between 35 and 40 mph.

The evidence presented by the State showed that mere minutes after the commanding officer­ halted the traffic control duties being performed by the firefighters traveling in SUV 105, defendant approached mile marker 6 at a speed of 37 mph.

Defendant attempted to brake but could not stop.

An expert testified at the moment of impact, defendant’s semi was traveling at a minimum speed of at least 37.36 miles per hour.

At sentencing the defendant said: “I deeply regret what happened, your honor, but at the time of the accident I had been a truck driver for over a month and I was driving south on [I-]39 and the roads seemed to be clear up north. And while I saw the emergency lights, I assumed that they’re on the right side and moved over from the right lane to the left lane and [began] slowing down. When I realized that emergency vehicle on the left lane, I tried to stop my vehicle and I couldn’t and lost control and [the] accident happened. *** [M]y heart goes out for *** Brown’s family and everybody who got hurt in that accident.”

In reversing this conviction the court said that the State’s case was utterly bereft of any evidence showing a conscious disregard of anything.

Recklessness may be inferred from all the facts and circumstances in the record and may be established by evidence of the physical condition of the driver and his manner of operating the vehicle.

Proof of negligence alone, however, cannot sustain a finding of recklessness.

While an accident may result from negligence, mere negligence is not recklessness. Where an occurrence may be equally attributed to either a negligent cause or a criminal cause, the burden of reasonable doubt cannot be sustained and the negligent cause will be adopted.

The State had to prove that defendant consciously disregarded the danger posed by the less-than-ideal road conditions and, in so doing, engaged in conduct that represented a gross deviation from established norms society expects reasonable persons to undertake given those circumstances.

Defendant’s speed was consistent with—and generally less than—the speeds the safety workers of the safety workers that night.

Regardless of the actual speed defendant may have been traveling that night, “evidence of excessive speed, by itself, is not sufficient to sustain a conviction of reckless homicide.”

Instead, the “evidence of excessive speed, combined with other circumstances that would indicate a conscious disregard of a substantial risk likely to cause death or great bodily harm to others such that a reasonable person would act differently under the same circumstances, is sufficient to establish reckless homicide.”

In this regard, the State posits that:

• defendant’s speed
• “combined with the precarious weather conditions” and
• defendant’s failure to decrease his speed or move into the right southbound lane,

was clearly reckless.

“When, at the close of the State’s evidence or at the close of all of the evidence, the evidence is insufficient to support a finding or verdict of guilty[,] the court may and on motion of the defendant[,] shall make a finding or direct the jury to return a verdict of not guilty, enter a judgment of acquittal[,] and discharge the defendant.”

725 ILCS 5/115-4(k).

A directed verdict or a judgment n.o.v. is appropriate when a trial court concludes, after viewing all of the evidence in a light most favorable to the State, that no reasonable juror could find that the State had met its burden of proving the defendant guilty beyond a reasonable doubt.

Simply stated, in this case the trial court erred by denying the motion for a directed verdict and, later, the motion for a judgment n.o.v..

The state admitted evidence that defendant may have violated the 14 hour rule. However, the record showed that immediately following the technical violation, defendant spent the next 10½ hours in the sleeper berth of his semi in satisfaction of the underlying spirit and intent of the Federal Regulation, which is to ensure drivers are well rested­ before embarking on a new 14-hour day of activity.

The State claimed that the evidence regarding defendant’s violation of the 14-hour rule the day before, was relevant to the issue of defendant’s alleged recklessness the night of the collision.

The contention that a technical violation of the 14-hour rule the previous night is probative on the issue of recklessness the next night because that violation suggests defendant may have been inattentive as he approached the accident site due to fatigue is not only wildly speculative but also highly prejudicial.

This record contains not a shred of evidence that defendant was fatigued at the time of the accident.

The reviewing court found the State's case wholly unpersuasive.

 The best that can be said of the State’s case is that defendant may have been­ inattentive for a few seconds (perhaps adjusting his radio or engaging in some similar activity) and then failed to realize the left lane was blocked as he unsuccessfully attempted to brake his huge semi at night on an icy highway in blowing snow.

Such brief inattention (if it even occurred) falls far short of the conscious disregard of a substantial and unjustifiable risk that establishes a gross deviation from the standard of care that the State needed to prove beyond a reasonable doubt.

This evidence does not come close to meeting that standard.

Reversed outright.

People v. Motzko, 2017 IL App (3d) 160154 (April). Episode 347 (Duration 6:18)

Defendant wins his motion to suppress in this DUI arrest in part because the officer doesn't understand HGN.

Defendant was involved in single-vehicle motorcycle accident and was subsequently charged with citations for improper lane usage (625 ILCS 5/11-709(a)), failure to reduce speed to avoid an accident (625 ILCS 5/11-601(a)), and DUI (625 ILCS 5/11-501(a)(2)).

A hearing was held on defendant’s motion to suppress evidence and quash arrest.

When the officer arrived, he saw a motorcycle lying on its side and defendant sitting on the ground being treated by medical personnel.

The officer spoke to a witness, who told him that he observed defendant drive his motorcycle up Main Street at a “high rate of speed,” fail to negotiate the curve, and crash. The witness also told the officer that he could smell alcohol on defendant’s breath. The officer did not question the security guard further.

The officer spoke to defendant while he was being treated at the scene.

The officer asked defendant if he had consumed any alcohol. Defendant initially stated that he had a 12-ounce beer and then corrected himself and said he had a 20-ounce beer. The officer admitted that he had no record or recollection of defendant having slurred speech.

At the hospital, the officer performed a Horizontal Gaze Nystagmus (HGN) test on defendant.

The officer did not perform any other field sobriety tests on defendant because of his injuries from the accident.

Before the administration of the HGN test, defendant told the officer that he was blind in his right eye. The officer did not remember asking defendant if he struck his head during the accident but admitted that defendant may have sustained a head injury.

The officer did not take that into account when administering the HGN test to defendant.

He said he observed five clues during defendant’s HGN test and explained that the presence of four or more clues is a strong indication that the individual being tested is “over .08 or intoxicated.”

The officer testified that he received training in the HGN test and was taught that it can be used to determine if someone is intoxicated. He testified that HGN is “one of the most *** accurate tests in determining somebody to be over a .08 [blood alcohol level].”

In his report, the officer listed “glassy bloodshot eyes, slight odor of an alcoholic beverage, single vehicle crash involving motorcycle, [and] admission to drinking” as his reasons for believing defendant was driving under the influence of alcohol.

At the hearing, the officer testified that he arrested defendant for DUI based on the clues he observed on the HGN test, the odor of an alcoholic beverage on defendant, defendant’s glassy, bloodshot eyes, and his admission to drinking. The officer also considered that defendant was likely coming from a bar when the accident happened based on defendant’s statement that he had been “downtown.”

The officer testified that he also considered the accident and the statements by the security guard when he arrested defendant for DUI.

The trial court explained that the officer’s testimony that HGN testing can determine the level of intoxication was wrong under People v. McKown, 236 Ill. 2d 278 (2010), and caused the court to call into question his “credibility on the issue of impairment in this case” as well as the HGN test itself “in terms of the officer’s experience, knowledge of the standards, and how it was conducted.”

The court also took issue with the officer’s failure to investigate whether defendant had a head injury that may have affected his performance on the HGN test and the State’s failure to call the security guard to testify about his observations of defendant’s driving.

The odor of alcohol on a defendant’s breath and his inadequate performance of a field sobriety test do not constitute reasonable grounds to believe that the defendant was driving under the influence. See People v. Boomer, 325 Ill. App. 3d 206, 209 (2001) (officer lacked probable cause to arrest defendant for DUI where defendant was involved in accident, admitted drinking, and had the odor of alcoholic beverage on his breath).

Speeding and being involved in an accident are insufficient bases upon which to support a DUI probable cause determination. See People v. O’Brien, 227 Ill. App. 3d 302, 307 (1992) (no probable cause to arrest defendant for DUI where defendant was speeding, admitted to drinking, and unsuccessfully performed sobriety test).

Finally, a defendant’s consumption of alcohol and glassy bloodshot eyes “are not enough to lead a reasonably cautious person to believe that the defendant had committed the crime of DUI.” People v. Day, 2016 IL App (3d) 150852, ¶ 38 (probable cause must rise to a level higher than mere suspicion.)

Where a defendant admitted to drinking, had the strong odor of alcohol on his breath, had bloodshot eyes, and slurred his speech, the trial court properly ruled that the officer lacked probable cause to arrest the defendant for DUI because any suspicions of impairment were not corroborated by other factors, such as poor driving, stumbling, falling, or an inability to communicate.

Evidence of HGN testing, when performed according to protocol by a properly trained officer, is admissible for the purpose of showing that the subject has likely consumed alcohol. McKown, 236 Ill. 2d at 306.

While HGN testing is an indicator of alcohol consumption, it is not necessarily a sign of impairment.

There should be no attempt to correlate HGN test results with any particular blood-alcohol level or range or level of intoxication.

For the results of HGN testing to be admissible, a proper foundation must be laid, showing that the witness is properly trained and performed the test in accordance with proper procedures. The admissibility of HGN evidence in an individual case will depend on the State’s ability to lay a proper foundation and to demonstrate the qualifications of its witness.

As set forth in Day, the odor of an alcoholic beverage, admission to drinking, and glassy and bloodshot eyes are insufficient to create probable cause for a DUI without evidence of other factors to support impairment, such as poor driving, stumbling, falling, or an inability to communicate.

There was no testimony or evidence that any of these factors were present to support the officer’s assumption that defendant was driving under the influence.

The officer testified that he also considered the accident and the testimony of the security guard in determining that defendant was impaired. However, the officer admitted that he did not question the security guard about exactly how fast he thought defendant was driving and further that he had no experience in accident reconstruction that would cause him to believe that the accident was caused by the defendant being impaired.

Speeding and being involved in an accident are insufficient bases upon which to support a DUI probable cause determination.

Additionally, as explained by the supreme court in McKown, HGN testing is an indicator of alcohol consumption but is not an indicator of a specific level of impairment. By stating that HGN testing was the most reliable indicator of whether someone has a blood alcohol level of .08, the officer showed that he was not properly trained to understand and interpret the results of HGN testing.

The trial court did not err in giving little to no weight to the officer’s determination that defendant failed the HGN test because the State failed to show that the officer possessed the expertise to properly understand the results of HGN testing.

At the suppression hearing, the trial court stated that it questioned the officer’s “credibility on the issue of impairment in this case.”

Where the trial court finds the State’s primary or only witness at a suppression hearing to lack credibility, the trial court does not err in granting the defendant’s motion to suppress.

Because the officer was the only witness to testify at the suppression hearing and the trial court questioned his credibility, the trial court properly granted defendant’s motion to suppress.

People v. Mayo, 2017 IL App (2d) 150390 (May). Episode 346 (Duration 10:46)

23 year old defendant with an IQ of 48 doesn't necessarily have an obvious mental state seeking sexual gratification.

Defendant was indicted on one count of aggravated criminal sexual abuse for knowingly committing an act of sexual conduct for the purpose of his or the victim’s sexual gratification or arousal, where the victim was at least 13 but under 17 years old and he was at least 5 years older than the victim (720 ILCS 5/11-1.60(d)), and one count of battery for knowingly making physical contact of an insulting or provoking nature by grabbing the victim (720 ILCS  5/12-3(a)(2)).

Defendant lived in Chicago with his mother, her husband, and defendant’s brother and sister.

He was 23 years old, and suffered a brain injury when he was 5 months old. He was described as being physically 24 years old but acting like a 5- or 6- year old. Other tests placed his overall range to be that of someone three years, five months old.

They said he scored as low as he could score on IQ tests and finally said his intelligence quotient (IQ) was 48.

He was considered moderately retarded and developmentally disabled.

Defendant lacks executive functioning, which is the ability to decide what he needs to do next. He has difficulty with any question requiring a fluid thought process.

Workers here were familiar with defendant said he was very shy. He was never seen touching anyone inappropriately and they had no complaints about that kind of thing. Defendant once tried to hit a kid who was making fun of him, and they said he was a cryer.

Further, the report indicated there is a legitimate concern that defendant lacks the insight to recognize whether any sexual acting out is inappropriate.

A video surveillance recording showed that, during a period of about 45 minutes, defendant entered and exited a Walmart bathroom six times.

The alleged victim was a 15-year-old male with Down Syndrome.

The victim, his father, and his 12-year-old sister were at the East Dundee Walmart. According to the victim, as he was standing near the sink in the bathroom, defendant reached out with his hand and grabbed the victim’s penis. The victim had his pants on when defendant grabbed him.

The victim described the grab as hard.

Based in large part on defendant’s very limited ability to speak and his limited ability to communicate, the trial court found defendant unfit to stand trial and scheduled a discharge hearing (725 ILCS 5/104-23).

A discharge hearing takes place only after a defendant has been found unfit to stand trial, and it is a proceeding to determine only whether to enter a judgment of acquittal, not to make a determination of guilt.

The question of guilt is deferred until the defendant is fit to stand trial.

If the evidence presented at a discharge hearing is sufficient to establish the defendant’s guilt, no conviction results; instead, the defendant is found “not not guilty” and is subject to further treatment, ranging from one to five years depending on the offense. 725 ILCS 5/104-25(d).

If, at the expiration of the treatment period, the defendant remains unfit, the court must determine whether the defendant is subject to involuntary commitment; if so, the commitment cannot exceed the maximum sentence to which the defendant would have been subject had he been convicted in a criminal prosecution. 725 ILCS 5/104-25(g)(2).

Although a judicial finding of not not guilty does not result in a conviction, the standard of proof is the same as that required for a conviction. The trial court found the defendant not not guilty.

The trial court noted that the evidence showed that defendant ordered “just over $800 worth of pornography and wrestling.”

The court found that, based on the surveillance video and the victim’s testimony, it was “certain that [defendant] was acting out sexually.”

The court found that defendant’s walking in and out of the bathroom several times showed that he was seeking a victim. The court added that the fact that the bathroom was a “secret place” further showed defendant’s intent.

Upon review, the appellate court has come to the system’s senses.

The mens rea of a crime can rarely be proved with direct evidence.

Rather, the mens rea is generally inferred from circumstantial evidence. That is equally so for a case of criminal sexual abuse. Sexual gratification or arousal is not defined by statute. The intent to sexually gratify or arouse has no restrictive meaning and can be proved by circumstantial evidence, including an inference from the defendant’s conduct.

Although a defendant’s intent generally can be inferred solely from the nature of the act, such an inference is not reasonable when the accused is a child.

The issue of a child’s intent to sexually gratify or arouse must be determined on a case-by-case basis, and the fact finder must consider all of the evidence, including the child’s age and maturity, before deciding whether such intent can be inferred.

The element of knowledge likewise can be inferred from circumstantial evidence.

In this case, it is undisputed that defendant touched the victim’s penis through the victim’s clothing.

The disputed issues are whether he knowingly did so for the purpose of his sexual gratification or arousal and knowingly made contact of an insulting or provoking nature.

Because defendant has an IQ of 48 and functions at the approximate level of a three-year old, he is effectively a young child, notwithstanding his chronological age. Therefore, the trial court without anything more could not base its finding that he knowingly acted for the purpose of sexual gratification or arousal solely on the nature of the contact.

Any reliance on a prior act of sexual misconduct was misplaced.

This report did not include any details concerning that incident.

It was a nondescript school incident and insufficient to support a belief that defendant was a sexual dangeous person and needed constant monitoring to protect others.

More importantly, there was no indication that in the school incident defendant knowingly touched anyone for the purpose of either his or the alleged victim’s sexual gratification or arousal. Simply stated, the vague reference to an incident involving inappropriate sexual conduct at school, without more, was not sufficient to show that defendant knowingly acted for the purpose of sexual gratification or arousal in this case.

Also, there was some highly prejudicial testimony that defendant once had an erection in a park.

The State offered no specifics as to that incident, such as whether defendant exposed himself, fondled himself, or otherwise sought sexual gratification.

Like the school incident, the lack of specificity rendered that evidence insufficient to show that defendant knowingly touched the victim for the purpose of his sexual gratification or arousal.

There was a reference that defendant once ordered “pornography” via the television.

Well, this evidence was equivocal as to whether defendant actually ordered the pornography, as opposed to someone else in the home having done so.

However, even if defendant did, there was no evidence that he ever watched the pornography, that he understood what he was ordering, or that he was sexually gratified or aroused by it.

That brings us to the last piece of the State’s evidence, the surveillance video.

In relying on that, the trial court commented that, when the victim looked back at defendant, the victim showed concern and fear.

However, any such concern or fear does not prove that defendant knowingly acted for a sexual purpose. Defendant also entered and exited the bathroom six times in a 45-minute period. The trial court found that that showed defendant’s effort to seek out a victim. His counselor’s testimony, however, was that defendant was incapable of acting with much forethought or intent and that he could not decide what to do next.

The testimony was that defendant had to be told what to do and his counselors testified that defendant would stand in one place until told what to do. Based on this testimony it was not reasonable to infer from the number of times that defendant entered and exited the bathroom that he was seeking out a victim.

Next, the trial court concluded that the fact that the bathroom was a “secret place” showed defendant’s intent.

The reviewing court said it respectfully disagreed. Although a bathroom is generally a place where private bodily functions are performed, the bathroom in this case was public. Indeed, the video showed numerous people, other than defendant and the victim, going in and out of the bathroom, including a Walmart employee only moments before the incident.

Additionally, the act occurred near the sink, as opposed to inside a stall.

Therefore, the act did not occur in a secret place such that it was reasonable to infer any intent by defendant to commit a crime.

The reviewing court reversed the trial court and held that the State’s evidence was insufficient to prove beyond a reasonable doubt that defendant, who had an IQ of 48 and the mental capacity of a three-year-old, knowingly acted for the purpose of his sexual gratification or arousal or with intent to insult or provoke.

Although the standard for reversing a finding of not not guilty is high, the appellate court said that it believed that, in light of the overwhelming evidence of defendant’s extremely low mental capacity, the evidence was not sufficient, even when viewed in the light most favorable to the State, to prove beyond a reasonable doubt that defendant knowingly touched the victim for his sexual gratification or arousal or that he knowingly made contact of an insulting or provoking nature.

In the face of such evidence, no rational trier of fact could find defendant not not guilty of either criminal sexual abuse or battery.

In re Davontay, 2013 IL App (2d) 120347 (December 2013) (sexual gratification not so obvious with young defendants)

Adjudications of Delinquency for aggravated criminal sexual abuse of female passenger on a school bus upheld because court could infer sexual gratification.

Two brothers (13 & 12 yoa) harassed a 13 year old girl on the bus. They did not let her leave as they “humped” her and touched her body without permission. Defense said standard inferences drawn with adults cannot be drawn with children. The trial court’s inference that these actions were for sexual gratification or arousal, as opposed to an attempt to humiliate the victim, as respondents contend, is not against the manifest weight of the evidence. In re Davontay A.

This is the May 2017 Illinois criminal case law audio round-up (the fast case law summary). Episode 345 (Duration 20:48)

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

Here's a quick snapshot of the top cases:

1. People v. Mayo

23 year old with IQ of 48 doesn't necessarily act for purposes of sexual gratification.

2. People v. Pettis

State gets 120 extra days on their speedy clock even though the DNA came in faster than expected.

3. People v. Veach

Proximate cause defense alive and kicking after the DUI cannabis reform.

4. People v. Smith

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

5. People v. Veal

Passenger was not free to leave after the driver was arrested.

6. People v. Petty

Plain view doctrine justifies the seizure of these UPC labels.

7. People v. Richardson

Pat down was justified when defendant reached for his midsection.

8. People v. Fickes

State didn't prove it was a church.

9. People v. Wells

Statute of limitations prevents prevents the state from bringing back old charges that were dismissed when a post conviction petition is granted.

10. People v. Brown

Attempt armed robbery is a per se forcible felony.

11. People v. Pena

In this asset forfeiture the state had a duty to send the notice to defendant's Illinois address.

12. People v. Brown

Inconsistent jury verdicts in this case don't mean the conviction must be vacated.

13. People v. Hardimon

Jury had no business seeing that portion of the recorded interrogation where they police go at the defendant more aggressively.

This is the April 2017 Illinois criminal case law audio round-up (the fast case law summary). Episode 344 (Duration 11:10)

There were 44 published opinions in March!

Buckle your seats we're covering the most important ones right here.

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

Here's a quick snapshot of the top cases:

1. People v. Austin

How to properly make a prima facie case Batson challenge.

2. People v. Byrd

What is the proper remedy after a Batson problem has been held to exist?

3. People v. Way

Proximate cause defense alive and kicking after the DUI cannabis reform.

4. People v. Peck

Trial counsel ineffective for not challenging this confession; the decision to talk without a lawyer was not legit.

5. People v. Shakirov

Reckless homicide reversed outright.

6. People v. Terrell

Defendant could not be sufficiently tied to this apartment trap door where the drugs were hidden.

7. People v. Lewis

Steigman sets us straight on the proper mechanic for simple impeachment.

8. People v. Motzko

This officer says HGN proves defendant was above .08.

9. In re Ronald J.

Judge didn't order the kid's school records before sending him to JIDOC.

10. People v. Fletcher

Attorney says "we waive jury", but defendant didn't say anything.

People v. Byrd, 2017 IL App (2d) 140715 (April). Episode 343 (Duration 5:07)

So when there is Batson violation, what is the appropriate remedy?

Defendant was convicted of being mentally ill and the murder and armed robbery of his mother.

He made a Batson challenge that was actually sustained by the court.

The State then offered its race-neutral explanation for challenging juror 21, stating that the juror’s brother had been arrested for a drug crime and the juror had visited him in jail.

The State maintained that the juror would closely identify with defendant’s sister, who had visited defendant in jail.

The State added that, when it questioned juror 21, she appeared to be defensive, in that she “had her brows knitted” and “had her arms crossed” in reaction to being asked whether the criminal justice system had been fair to her brother.

However, the judge let the jury go before the issue was resolved.

The trial court then stated that it was rejecting the State’s race-neutral explanation for challenging juror 21 and found a Batson violation.

In doing so, the court noted that it did not observe juror 21 cross her arms or be antagonistic or hostile toward the State. The court added that, although juror 21 might not have completely understood the State’s questions, the court did not interpret that as animus or hostility.

When the judge finally held that there indeed was a Batson problem the juror was already gone.

As a remedy, since the juror could not be brought back the trial court then discharged the entire jury pool.

Defendant did not object or request that juror 21 be seated.

The court then stated that it had “declared a mistrial without prejudice.”

The next day when they were going to pick a brand new jury, defense counsel asked that jury 21 be brought back. After the trial court denied the motion to seat juror 21, defendant immediately moved to dismiss the case, contending that the Batson violation, combined with the State’s misrepresentation regarding the lack of potential remedies for that violation, resulted in the denial of his right to have a fair representation of his race on the jury.

The trial court denied the motion to dismiss.

He challenges the way his jury was picked.

The issue here is whether, under the particular circumstances, the trial court abused its discretion in denying defendant the remedy of seating juror 21.

In Batson, the Supreme Court commented on the possible remedies for the racially discriminatory use of a peremptory challenge.

In light of the variety of jury-selection practices followed by various state and federal courts, the Court expressed no view on whether, upon a finding of purposeful discrimination, the trial court should discharge the venire and select a jury from a new panel not previously associated with the case or disallow the peremptory challenge and resume selection with the improperly challenged juror reinstated on the venire.

Thus, the Court recognized two possible remedies for a Batson violation:

(1) seating the juror who was improperly challenged or
(2) discharging the venire and starting jury selection anew with another venire.

However, the Court did not state a preference for either remedy or discuss under what circumstances a particular remedy might be appropriate.

In Hunt v. Harrison, 303 Ill. App. 3d 54 (1999), the court addressed the issue of whether dismissal of a plaintiff’s case for a violation of Batson was a proper remedy. In holding that it was not, the court cited Batson.

More importantly, the court’s review of cases both in and out of Illinois revealed that, where a Batson violation is found, courts apply one of the two remedies identified in Batson.

The Hunt court did not address the issue of which of the two remedies identified in Batson, if either, is preferred.

In People v. Rivera, 307 Ill. App. 3d 821 (1999), the court held that the defendant’s peremptory challenge violated Batson. Rivera, 307 Ill. App. 3d at 831-32.

In so holding, the court noted, without expressing any preference for a particular remedy, that the impaneling of the challenged juror was an appropriate remedy in “[that] case.” Rivera merely recognized that seating a juror is one “possible remedy.”

The court in Rivera never suggested that seating a juror is the only remedy.

Thus, Rivera does not stand for the proposition that a court must always remedy a Batson violation by seating the juror. Because the law recognizes that there are at least two possible remedies, either seating the juror or discharging the entire venire, depending on the jury-selection practice being followed, it is necessarily a matter of discretion as to which remedy should be applied.

 Notably, Defendant did not object to the court’s doing so.

Nor did defendant request that juror 21 be seated in the event that the court found a Batson violation.

Instead, defendant waited until the following day to move for juror 21 to be seated. By that time, however, juror 21 had been excused for more than 12 hours.

Thus, there was a significant risk that she had been exposed to information related to the case or had discussed the case. That alone was a proper reason for the court to refuse to seat juror 21.

Further, having excused juror 21 and the entire venire without objection, the court had opted to start jury selection all over with a new venire.

Under the circumstances, the court’s refusal to seat juror 21 was not arbitrary, fanciful, or unreasonable.

Thus, the court did not abuse its discretion in denying defendant’s motion to seat juror 21.

• Episode 189 - Foster v. Chatman, (May 2016) (Prosecution uses initials next to names to make it pretty clear that they struck black jurors because of their race ) 
• Episode 113 - People v. Williams, 2015 IL App (1st) 131103 (November) (Defense counsel’s unsubstantiated assertion was an insufficient basis for the trial judge to find that a prima facie Batson case had been established.)
• Episode 342 - People v. Austin, 2017 IL App (1st) 142737 (April) (Fact that multiple jurors of the same race have been stricken, without more, does not raise a prima facia case for a Batson violation.)
• Episode 255 - In re A.S., 2016 IL App (1st) 161259 (October) (A pattern of discrimination is not demonstrated anytime a party strikes more than one juror of any race.)
• Episode 174 - People v. Shaw, 2016 IL App (4th) 150444 (April) (Court accepted race neutral reasons for excluding minority jury members - they gave prosecutor some attitude.)
•  

People v. Austin, 2017 IL App (1st) 142737 (April). Episode 342. (Duration 17:15)

Fact that multiple jurors of the same race have been stricken, without more, does not raise a prima facia case for a Batson violation.

He and a codefendant stole a car and some items at gunpoint from a lady.

A jury convicted Defendant of armed robbery, aggravated vehicular hijacking, and aggravated assault.

After a bench trial on an armed habitual criminal charge, the trial court found Austin guilty of the lesser-included charge of unlawful use of weapon (UUW) by a felon.

During voir dire, the State used three peremptory challenges to exclude prospective jurors.

Defense counsel challenged the State’s peremptory removal of two black venirepersons.

In addition, the State excused a third prospective juror, who was not black.

Three black venirepersons were accepted to serve on the jury.

The third juror stricken was not black but had four prior convictions.

Without the defendant making a prima facie showing that the prosecution exercised peremptory challenges based on race, the trial court asked the State to provide race-neutral reasons for striking the two black jurors.

The prosecutor pointed out that the defense had “not made a prima facie showing,” to which the court replied, “I’m not sure they have either, but tell me the reason.”

The prosecutor then stated that one of the excluded venirepersons had a domestic battery conviction that he did not disclose (the venireperson had been arrested 19 years earlier for domestic battery and the charges were dropped). The prosecutor told the court the other black venireperson had “indicated several things that her brother (actually, brother-in-law) was a CPD police officer that was beat up by Calumet Park Police Officers.

She says she reads the Bible.

She says she is a youth minister.

Those are all the reasons where the State struck her.”

When the trial court asked defense counsel if he had anything else to argue, defense counsel responded “No, Judge.” The State attempted to put on the record that the defense did not make a prima facie showing, to which the trial court replied, “I’m not saying that they did. We just went a little quicker to get that out of the way” and “I’m not accusing anybody of anything. It just makes it quicker to get it done.

That’s all.

The reasons you gave I think are more than sufficient easily.” The trial court reiterated that one had a prior conviction he did not disclose and the other “the situation with the police.”

Moments later, the trial court stated, “I wasn’t giving the parties a hard time about that race-neutral stuff. There is no issue in my mind that there was a prima facie case. I just jumped it forward to save a little time. There was no issue in my mind of any discrimination whatsoever. So let’s move on.”

A prosecution’s use of peremptory challenges to exclude prospective jurors based on race violates a defendant’s right to equal protection under the fourteenth amendment. Kentucky v. Batson, 476 U.S. 79, 89 (1986).

Batson established a three-step process for addressing alleged racially discriminatory use of peremptory challenges. People v. Rivera, 221 Ill. 2d 481, 500 (2006).

First, Batson requires the trial court to determine whether the defendant has established a prima facie case of purposeful discrimination.

Once a prima facie case is shown, the State has the burden to articulate a nondiscriminatory, race-neutral explanation based on the facts of the case.

Then, considering the State’s explanation, the trial court makes a final determination as to whether the defendant has shown purposeful discrimination.

Our supreme court has articulated several relevant factors a trial court should consider in determining whether a prima facie Batson violation has been established, including:

(i) the racial identity between the party exercising the peremptory challenge and the excluded venirepersons;
(ii) a pattern of strikes;
(iii) disproportionate use of peremptory challenges;
(iv) the level of black representation in the venire as compared to the jury;
(v) the prosecutor’s questions and statements of the challenging party during voir dire examination and while exercising peremptory challenges;
(vi) whether the excluded black venirepersons were a heterogeneous group sharing race as their only common characteristic; and
(vii) the race of the defendant, victim, and witnesses.

 Any ambiguities in the record will be construed against the party asserting the claim.

The party attempting to exercise a peremptory challenge is not required to provide race neutral reasons for the exercise of its peremptory challenge if a prima facie case of purposeful racial discrimination has not been demonstrated.

The burden of establishing a prima facie case of purposeful discrimination in jury selection is on the party making the Batson claim.

By definition, a prima facie case entails the establishment of a legally required rebuttable presumption or a party’s production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor.

The problem with collapsing the inquiry is that if the State were allowed to interrupt the prima facie hearing stage by obtaining judicial consideration of its explanations even though they would be insufficient to overcome an already established prima facie case, those explanations would constitute a thumb on the scales that weigh the prima facie submission, which would undermine the very concept of a prima facie case as outlined in Batson.

Here, the trial judge stated there was “no issue in my mind” regarding “any discrimination whatsoever” and skipped the initial prima facie stage to “move things along.”

Had the factors relevant to a prima facie showing of discriminatory use of peremptory challenges been examined, the inquiry would have gone no further. 

The record does not reflect that defense counsel relied on anything other than the number of peremptories used by the State against prospective black jurors, a relevant factor that standing alone is not sufficient to make out a prima facie Batson violation.

Pattern of discrimination not demonstrated “anytime a party strikes more than one juror of any race.

Further, when a Batson claim is made regarding discrimination against a particular race, the unchallenged presence of jurors of that race on the seated jury is a factor properly considered and tends to weaken the basis for a prima facie case of discrimination.

Indeed, by the time defense counsel raised his Batson challenge, three black jurors had already been accepted by the State.

Given this circumstance, at a minimum, the trial court should have required Austin’s counsel to articulate in more detail the basis for his Batson challenge.

But, when given the opportunity to elaborate further, defense counsel declined.

Failing a showing of factors other than the number of peremptories used against black members of the venire, there was no prima facie showing of a Batson violation and the State should not have been required to articulate any reason for striking those jurors.

Any error in a trial court’s finding of a prima facie showing of a Batson violation is generally rendered moot by a later finding, as here, that no purposeful discrimination has occurred.

Given the seriousness of a Batson challenge and the potential for depriving a defendant of a fair trial, strict adherence to Batson’s mandate should be maintained.

Because Austin failed to meet his burden to demonstrate a prima facie Batson violation, we reject his contention of error on this ground.

People v. White, 2017 IL App (1st) 142358 (March). Episode 341 (Duration 11:27)

Judge gets annoyed with defendant who wants to show him his tattoos.

A drug detective said he bought drugs off the defendant.

He identifies the defendant from a photo array. Defendant is arrested days later.

The dealer had a white sleeveless t-shirt and the detective did not notice any tattoos.

A surveillance officer also noted the white sleeveless shirt and wrote that the offender “did not have any tattoos."

Counsel stated for the record that defendant had a tattoo of his name, “Derrick,” and that it ran from his elbow to his wrist, and the court added it was located on the underside of his arm.

Defense counsel further attempted to note that defendant had another tattoo on his left arm, but the court found that tattoo “irrelevant.” The court stated: “The only thing relevant is the right arm that did the transaction.”

At the bench trial the judge got annoyed with defendant and defense counsel when they wanted to show him that he had tattoos.

The judge refused to get down off the bench and made a big deal about the fact that the drug dealers palm’s were down during the transaction. The judge finished the demonstration by telling the defendant to sit down then stated,

“The record can reflect that he has a tattoo on his forearm with his palm facing up, but the record will reflect that you never specified in your cross-examination of the officer how he viewed the arm. He may have seen it with the palm up. He may have seen it with the palm down. You never did that with your direct examination. As a result, it is not in the record. What is in the record is that he didn’t notice any tattoos. That is his testimony.”

Counsel noted that the person who sold drugs to the undercover that day was wearing a tank top—that he had no sleeves on either arm—and that the officer had testified that, had he seen the tattoos, he would have put them in the report. 

The judge obviously found defendant guilty saying the officer was unimpeached and basically was a choir boy and the court noted that the demonstration defense counsel requested was “inappropriate and improper criminal procedure,” and could have been accomplished in other ways, including through defendant testifying.

The trial court later sentenced defendant to 10 years’ imprisonment.

Defendant argues on appeal that he was misidentified as the offender, as demonstrated by the fact that he has a dark scar on his nose, a large tattoo on his right forearm, and other tattoos on his left arm, yet neither officer observed a tattoo on the offender, and the detective did not recall the offender having any scars.

The reviewing court agreed that the trial judge acted inappropriately.

Defendant’s best evidence was that neither police officer had described the drug dealer as having tattoos when they observed him during the drug transaction, when in fact defendant had tattoos on both arms. In more than one way, the trial court prevented defendant from presenting this defense.

First, the trial court did not allow defendant to demonstrate that, from the detective’s viewpoint at the time of the alleged drug sale, defendant’s tattoos would have been visible to the officer.

An in-court demonstration should be probative of facts in issue and conducted under substantially similar conditions and circumstances as those which surrounded the original occurrence. Evidence that defendant’s tattoos would have been visible to the undercover at the time of the drug transaction was unquestionably probative and relevant to the credibility of the officers’ identifications of defendant as the drug dealer in question.

And by having the officer demonstrate exactly his positioning vis-à-vis defendant during the events in question, the demonstration would have been conducted under substantially similar conditions.

Instead, the trial court decided that its own view of defendant’s right forearm, when turned palm down, from its vantage point on the bench “about two feet above” defendant, was all the court needed to know—that when defendant’s palm was turned down, the tattoo on the right forearm was not visible. The officer, when recalled by defendant, hedged in his testimony on exactly how defendant’s arm was positioned.

The court erred in substituting its own view of defendant’s right arm, under not substantially similar conditions, in lieu of this relevant testimony.

The court also erred by not allowing defense counsel to introduce any evidence whatsoever regarding the tattoo on defendant’s other arm (left arm). The court deemed it irrelevant, reasoning that the man who handed the officer the drugs did so with his right hand, not his left.

The flaw in this reasoning is that the detective did not limit his testimony to only seeing defendant’s right arm; he said that he first saw defendant emerging from a garage into the alley and then walking up to him.

In other words, he saw more than just defendant’s right arm. He had a clear view, on a sunny day, of defendant as he approached him head-on and then stopped just short of him, face-to-face.

Defendant was entitled to challenge the testimony of the officers, that the drug dealer did not have any tattoos, by showing that he had one on his left arm every bit as much as he had the right to show that he had one on his right arm.

In this case, by not permitting any evidence of defendant’s left-arm tattoo, by not permitting defendant, via a demonstration, to have the detective testify as to whether he could see either tattoo on defendant, and by making a finding of fact that the right-forearm tattoo would not have been visible to the officers based only on its own dissimilar view of defendant from the bench, the trial court denied defendant a meaningful opportunity to present his defense and confront the witnesses against him.

See U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8.

Clearly, the two officers did not observe any tattoos on the dealer’s body, and their reports stated that the dealer did not have any tattoos.

But defendant has a large wrist-to-elbow tattoo on his right arm and one on his left arm as well.

Thus, the trial court’s erroneous rulings that prevented relevant tattoo evidence from being presented or considered “might have contributed to the conviction” of defendant.

Additionally, there were serious problems with the photo array used in this case. Defendant was identified from the array 2 hours after the deal. But the photo array arguably emphasized and highlighted defendant’s photograph.

Four of the photos are grouped together in a square on the left side of the array. But defendant’s photograph is isolated on the right side. The other four persons all have round heads and faces. Defendant is the only person with a long, narrow head and face.

Each of the heads of the other four persons is facing forward; defendant’s head is turned.

All four of the other individuals have mustaches; defendant does not. The other four individuals have neutral expressions while defendant is sucking his lips in what he describes as a strange expression.

The other four individuals’ clothes are visible; defendant’s clothes are not visible.

The picture of defendant shows his head framed on all sides by a white border and background, whereas all of the other four individuals are standing in front of what appears to be the same gray wall.

Conviction was vacated and remanded for a new trial.

In Episode 340 (Duration 14:18) of the Criminal Nuggets Podcast, Kim Bilbrey of the Kane County Public Defender's office indulges me as I ask about one of the easiest ways for police to search a car without a warrant.

Hit play to hear what she said. 

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Register Now (March 19, 2017).

Kim Bilbrey has been with the Kane County Public Defender's Office for 9 years. 

She and her colleagues have had some success defending cases involving drug dog sniffs. Additionally, she and her team have brainstormed numerous ways in which the legal landscape around warrantless car searches is changing.

✓ These magic words instantly allow an officer to search a car without a warrant. (Go to 0:37) & (Go to 1:58 & 2:44)

✓ What happens when a soccer mom who hasn't smoked weed in her life has passengers in her car who reek of the stuff. (Go to 2:04)

✓ The presence of a prescription bottle in a car does not indicate or necessarily signal criminal activity. The new cannabis environment means we may have to rethink how we think about the odor of cannabis. (Go to 3:21)

✓Possession of a gun in Illinois is not necessarily illegal anymore. So, when an officer sees a gun it's not obvious at all that a crime is being committed. So too, the fundamental question here is this: If cannabis is not necessarily illegal anymore then how can the odor of cannabis justify a warrantless search of a car?  (Go to 4:39) & (Go to 5:08) 

✓ Kim is going be presenting at the IACDL Drug Seminar on Friday May 19, 2017. She'll be explaining how she breaks down a drug dog sniff case and reveal her secrets on how she's found success in these cases. Hit the link below to learn more and get registered for this CLE. (Go to 8:41)

• Illinois Association of Criminal Defense Lawyers Drug Seminar
• Learn More About The IACDL
• Police Car Search Legal in Illinois if They Smell Marijuana, So Why is There an Illegal Traffic Stop Here?
• Ball-Hitch "Obstructing" Case - Traffic Stop Based on Reasonable Mistake of Law is Not Illegal

This CLE presentation provides 6 hours of CLE credit including 1 hour of professional responsibility credit. 

Hit the button below to learn more.

Hit the button below to learn more and register now.

Register Now

Register Now (March 19, 2017).

People v. French,  2017 IL App (1st) 141815 (March). Episode 339 (Duration 18:04).

Little review of the hearsay rule involving the course of conduct and existing state of mind exceptions.

This was a drive-by shooting involving a driver and the shooter, who was the defendant in this case.

One victim died at the scene a second survived his gunshot wounds.

The surviving victim testified he saw the car pass by the group twice. The second time the victim that died tried unsuccessfully to wave or flag down the driver.

Deceased victim (Victim D) told surviving victim (Victim) that he wanted to talk to the driver about “what was going on between” him and Victim D’s family.

When the driver came back the third time he had the shooter with him and the shooting happened.

Defendant argued this testimony was hearsay and should have been excluded.

Hearsay evidence is testimony regarding an out-of-court statement offered to prove the truth of the matters asserted.

Unless hearsay falls within an exception to the hearsay rule, it is generally inadmissible due to its lack of reliability and the inability of the opposing party to confront the declarant.

The matters asserted as employed in the definition of hearsay includes both matters directly expressed and matters the declarant necessarily implicitly intended to express. When the declarant necessarily intended to express the inference for which the statement is offered, the statement is tantamount to a direct assertion and therefore is hearsay.

The declarant necessarily intends to assert (i.e., implicitly asserts) matters forming the foundation for matters directly expressed in the sense that such additional matters must be assumed to be true to give meaning to the matters directly expressed in the context in which that statement was made.

To illustrate, the question “Do you think it will stop raining in one hour?” contains the implicit assertion that it is currently raining.” Michael H. Graham, Cleary & Graham’s Handbook of Illinois Evidence § 801.1.

The trial court erred when it admitted this statement and found the testimony was not hearsay because it was not offered for the truth of the matter, and allowed the testimony to explain the course of conduct.

The trial court added that very often victims’ statements made just prior to their murder were admissible.

Explaining the course of conduct is akin to explaining the effect of words on a listener. Here, contrary to the trial court’s ruling, the statement was not admissible for the nonhearsay purpose of explaining the course of conduct because the deceased victim’s out-of-court statement cannot be used to explain his own conduct.

This was not a case where statements were offered for their effect on the listener or to explain the subsequent course of conduct of another person, which would not be hearsay.

Illinois Rule of Evidence 803(3) is not applicable.

It says that a “statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health)” is not excluded by the hearsay rule, even though the declarant is available as a witness.

Rule 803(3) does not permit the surviving victim to testify to the deceased victim’s intent, plan, or motive to stop the driver and talk to him about something because the deceased victim’s state of mind was not relevant to a material issue in the case.

Perhaps the deceased victim’s state of mind might have been relevant if defendant or the driver had claimed to have acted in self-defense, but here the material issues were the identities of the driver of the car and the shooter in the passenger seat.

Under the plain terms of Rule 803(3), Victim D’s belief that he saw who was driving the car and his intent to stop the car to talk to the driver about a dispute that could serve as the driver’s motive for the subsequent shooting do not constitute then-existing state of mind hearsay exceptions.

Victim D’s statement that he wanted to stop the car to talk to the driver about something contains the implicit assertion that Victim D believed he observed the driver in that car and it implies there was some beef between the driver and Victim D’s family.

This is not a situation where the out-of-court statement was relevant simply because of the fact it was said.

Here, the relevance of the implicit assertion in the deceased victim’s statement depends on his believing that it was true, so it was offered for the truth of its content and therefore is hearsay.

Similarly, Victim D’s directly expressed assertion that he wanted to talk to the driver about something that was going on between their families is also relevant only for the truth of its content.

They also discuss a 115-10.1 issue. I think trial court gets the analysis wrong. But it doesn’t matter because all this hearsay stuff was plain error.