Kane County Nuggets

People v. Mandoline, 2017 IL App (2d) 150511 (February). Episode 318 (Duration 6:01)

Sometimes you can get a felony murder proximate cause defense instruction.

One victim died in her sleep after inhaling smoke from a car fire.

A second victim did not die but suffered from serious burns.

The fire was caused by an arson of a car parked in the driveway of the home. The garage door was open.

Defendant had been dating the deceased and was upset with her.

Their relationship had been on the rocks.

He left a part at the home earlier that night where he told everyone that he wished they would all die. In an interview with police he admitted to putting a burning piece of paper in the car’s gas tank.

Finally, defendant wanted a jury instruction on foreseeability.

Specifically, defendant offered IPI Criminal 4th No. 7.15A (Supp. 2011) in the following form:

“A person commits the offense of first degree murder when he commits the offense of aggravated arson or arson, and the death of an individual results as a direct and foreseeable consequence of a chain of events set into motion by his commission of the offense of aggravated arson or arson. It is immaterial whether the killing is intentional or accidental.”

Defendant argues that the manner of Morgan’s death was not foreseeable; rather, it was a combination of unforeseeable circumstances that resulted in her home becoming engulfed in flames. According to defendant, the house caught fire only because the garage door had been left open, the door to the mudroom had been left open, and a powerful all-house fan in the attic drew the smoke and flames from the car into the house.

In Illinois felony murder is strict liability.

The State is not required to prove that the defendant could foresee the death or that the defendant intended to commit murder; the State need show only that the defendant intended to commit the underlying felony.

However, where a death is caused by a third party, the felony-murder rule follows the proximate-cause theory, meaning that liability for murder will attach for any death proximately resulting from the unlawful activity, even if the death is caused by one resisting the crime.

This makes sense.

If the death is caused by one outside of the criminal actors, then it would be unjust to impose liability if the mechanism of death was so remote as to be unforeseeable; whereas it remains just to impose liability for an act directly committed by the defendant that caused the death of the victim, even if the precise mechanism of death was not envisioned by the defendant as he was committing the underlying crime.

Accordingly, the foreseeability qualification embodied in IPI Criminal 4th No. 7.15A (Supp. 2011) has been required only in cases in which a third party outside of the criminal actors caused the death.

The comments to IPI Criminal 4th No. 7.15A (Supp. 2011) suggest that it is to be given in situations “where the defendant did not perform the acts which caused the death of the deceased.” IPI Criminal 4th No. 7.15A (Supp. 2011), Committee Comments.

Based on the fact that the comments suggest that IPI Criminal 4th No. 7.15A (Supp. 2011) does not apply to a situation in which the defendant is alleged to have committed the act that resulted in the death of the deceased, and the fact that the only cases we have been able to find in which IPI Criminal 4th No. 7.15A (Supp. 2011) has been used are those in which the defendant did not perform the act that caused the death of the deceased, the trial court did not err in refusing defendant’s proposed jury instruction.

Besides, the fact that fire spreads is eminently foreseeable and a burning car parked in the driveway of a home might communicate the flames from the car to the house is obvious.

People v. Staple, 2016 IL App (4th) 160061 (December). Episode 317 (Duration 21:49)

This case does a great job of digging down into the very basics of double jeopardy.

You ever notice how at the end of a case that has been reversed and remanded for a new trial judges are very careful to include a line that says that Defendant was proven guilty beyond a reasonable doubt.

What's that all about?

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The answer lies in the doctrine of double jeopardy.

In this broadcast I republished an episode that was previously only available to Premium Nugget subscribers is now made available to everyone for free.

The case begins with the fact that the defendant was simultaneously charged with misdemeanor DUI and felony DUI charges exact same course of conduct.

He had both a “DT” file and a “CF” file.

He plead guilty to the misdemeanor and moved the trial court to dismiss the felony charges, claiming double jeopardy had attached when he plead to the misdemeanor.

The trial court granted defendant’s motion to dismiss.

The reviewing court reversed this decision.

The fifth amendment to the United States Constitution, made applicable to the states via the fourteenth amendment, provides, in part, that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const., amend. V. See also Ill. Const. 1970, art. I, § 10; 720 ILCS 5/3-4.

The double jeopardy clause protects against

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

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

Notably, double jeopardy clause did not prohibit the State from prosecuting lesser included offenses along with the more serious charges.

When a defendant pleads guilty to lesser included offenses he has not been exposed to conviction on the charges to which he pleaded not guilty, nor has the State had the opportunity to marshal its evidence and resources more than once or to hone its presentation of its case through a trial.

The acceptance of a guilty plea to lesser included offenses while charges on the greater offenses remain pending, moreover, has none of the implications of an implied acquittal which results from a verdict convicting a defendant on lesser included offenses rendered by a jury charged to consider both greater and lesser included offenses.

There simply isn’t any of the governmental overreaching that double jeopardy is supposed to prevent.

On the other hand, ending prosecution would deny the State its right to one full and fair opportunity to convict those who have violated its laws.

In this case, it is clear defendant was aware of the pending felony charges when he pleaded guilty to the misdemeanor charges.

As the United State Supreme Court stated, a defendant should not be entitled to use the Double Jeopardy Clause as a sword to prevent the State from completing its prosecution on the remaining charges.

This case presents none of the interests double jeopardy seeks to protect.

Defendant was well aware of the pending felony charges when he pleaded guilty to the misdemeanor charges. Additionally, the State has not marshaled its resources and evidence more than once or honed its presentation of the case through a trial on the misdemeanor charges.

Accordingly, the court concluded double jeopardy does not bar the State from pursuing the felony charges that were pending at the time defendant pleaded guilty to the lesser-included misdemeanor charges.

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People v. Mandoline, 2017 IL App (2d) 150511 (February). Episode 316 (Duration 12:31)

The police misconduct here did not overbear defendant’s will so as to deprive him of the opportunity to knowingly and intelligently relinquish his rights and give statements to the police.

One victim died in her sleep after inhaling smoke from a car fire.

A second victim did not die but suffered from serious burns.

The fire was caused by an arson of a car parked in the driveway of the home. The garage door was open.

Defendant had been dating the deceased and was upset with her.

Their relationship had been on the rocks.

He left a part at the home earlier that night where he told everyone that he wished they would all die. In an interview with police he admitted to putting a burning piece of paper in the car’s gas tank.

The circumstances of the interrogation was challenged on appeal.

Defendant says he was arrested without probable cause.

Turning to the question of when the arrest occurred, we note that the overarching consideration is whether, under all of the circumstances present, a reasonable, innocent person would conclude that he or she was not free to leave.

This test is objective.

A person’s decision to voluntarily accompany police officers means that he or she has not been arrested. In considering whether an arrest has occurred, the court is to consider the following factors:

(1) the time, place, length, mood, and mode of the encounter between the defendant and the police;
(2) the number of police officers present;
(3) any indicia of formal arrest or restraint, such as whether the officers used handcuffs or drew their guns;
(4) the officer's’ intention;
(5) the defendant’s subjective belief or understanding;
(6) whether the defendant was informed that he or she could refuse to accompany the officers;
(7) whether the defendant was transported in a police car;
(8) whether the defendant was informed that he or she was free to leave;
(9) whether the defendant was informed that he or she was under arrest; and
(10) the language used by the officers.

No single factor is dispositive.

Pursuant to defendant’s arguments, there are three possible times at which the arrest occurred:

• at his house
• upon his arrival at the police department and
• at 8:44 a.m., when he was informed that he would not be allowed to leave.

The parties agree that defendant was under arrest no later than 8:44 a.m.

Therefore, the court analyzed whether defendant was arrested at his home or upon arriving at the department, in light of the factors set forth above as well as the overall circumstances present.

Police first arrived at his home at 7:15 am.

The detectives explained that they were investigating a fire that occurred at a party that defendant attended, and they asked to speak with defendant.

Defendant’s mother awakened defendant, and he conversed with the detectives. 2 more detectives arrived, and defendant agreed to accompany the police to the department to answer questions. Defendant asked to grab some items and to use the bathroom, and the police agreed to this request.

As defendant went into his basement bedroom, two detectives followed and observed as he grabbed his wallet, footwear, and keys.

By following defendant unbidden, the detectives made their presence somewhat more ominous and irresistible. However, they were in plain clothes, and it is clear that their purpose was self-protection, to make sure that defendant did not grab a weapon along with the other items he said he wished to retrieve.

Thus, on balance, the time, place, and length of the encounter were reasonable, and the mood was not confrontational. Defendant was not handcuffed and he police were in plain clothes.

So, once at the police station was the defendant arrested before 8:44 when he asked to leave and they explicitly told him he couldn’t?

Defendant was patted down and Mirandized which is consistent with an arrest.

At the outset of the questioning, when defendant asked whether he needed an attorney, a detective told him that he needed to decide that for himself. Defendant asked whether, if he decided to request an attorney, he would need to remain in the interview room. The detective replied, “Yeah, obviously.”

Thus, not only was defendant not informed that he was free to leave, he was informed that he was, in fact, not free to leave. This factor strongly weighs in favor of an arrest.

In the reviewing court’s analysis these factors are sufficient to tip our calculus to the conclusion that, by around 7:45 a.m., defendant had been arrested.

So did they have probable cause to arrest him by this time?

Probable cause does not require proof beyond a reasonable doubt; rather it is the probability of criminal activity, and probable cause can exist even though the evidence does not even support a belief that it is more likely than not that the defendant committed a crime.

The police investigation had determined that the fire that partially consumed the Morgan home had started in Morgan’s car, parked near the garage. The fire department believed that the fire was the result of arson, having found ashes in the car’s gasoline fill tube.

Before the fire started, defendant had attended a party at Morgan’s house.

Defendant and Morgan had dated, but they either had broken up or were in the process of breaking up.

During the party, defendant became extremely upset and engaged in a heated argument with Morgan, ostensibly over a necklace he had given her. The argument was so heated that partygoers restrained defendant and calmed him down before Schopa drove him away from the party.

There was evidence suggesting that the argument between defendant and Morgan turned physical, with defendant pushing Morgan and grabbing her. Defendant called Morgan names while he was demanding the return of the necklace.

At some point, defendant stated to the partygoers that he hoped they would all die.

There was a suggestion that Morgan had been within earshot of this threat, but it was not entirely clear whether she had heard the threat.

After defendant had been driven away and before the fire started, several partygoers observed someone in the shadows near Morgan’s home. They were unable to identify the shadowy figure, but they all believed it to be defendant.

Additionally, one of the partygoers informed the police that defendant told him in a phone conversation that he was returning to Morgan’s home.

Finally, after defendant had dressed in the same clothes he wore to the party, the police observed that the clothes were visibly wet, apparently with sweat, as if defendant had engaged in significant physical exertion, such as running from Morgan’s home to his home.

That morning, when the police arrived at defendant’s home, the temperature was about 70 degrees. Before 7:45 a.m., the police further learned that Sanchez had intervened in the argument between defendant and Morgan, because Sanchez was afraid that defendant was about to strike Morgan. Sanchez reported that he was a friend of Morgan’s and that he knew that defendant and Morgan’s relationship was going so badly that she no longer wanted anything to do with defendant.

Additionally, also before 7:45 a.m., Melissa Czarnik, another friend of Morgan’s, informed the police that defendant had tried to pull the necklace from Morgan’s neck but that Czarnik got in between defendant and Morgan, trying to make defendant back off.

Czarnik also confirmed that defendant was wearing a light-colored T-shirt and baggy khaki shorts at the party.

This constituted sufficient probable cause for his arrest.

Defendant next challenges that he invoked discussion with the police after he had requested an attorney.

Defendant is saying his invocation is not valid because the police essentially ignored his initial request for an attorney made at 8:18 but not honored until 11:26 am.

According to defendant, the detectives told him that he could go home only if he first decided to talk to them again.

Defendant further explained that the detectives told him what to say in front of the camera. When he was returned to the interview room, he followed the script he received during the second smoking break, stating that he approached the detectives to talk about the case again and executing the forms with which he was presented.

Thus, defendant concludes, the police orchestrated the events so that it was actually they and not defendant who provided the impetus for the reinitiation of the discussion about the case.

According to defendant, they studiously ignored all of his invocations of his right to have counsel present and groomed defendant to expect that what he said would not matter.

The trial court did not adopt this version of events.

The Supreme Court clarified that, after an accused has invoked this right, the police cannot show a valid waiver of that right simply by demonstrating only that he responded to further police-initiated custodial interrogation; an individual who has indicated that he wishes to deal with the police only through counsel is not subject to further interrogation by the police until after counsel has been made available to him, unless the accused himself initiates further discussion with the police.

Police will violate this rule if they approach the accused for further questioning without first making counsel available.

The upshot is that any waiver of the right to counsel given in a discussion initiated by the police will be presumed to be invalid, and any statements obtained pursuant to the presumptively invalid waiver will be inadmissible in the State’s case-in-chief.

Sometimes police misconduct by failing to honor an invocation of Miranda rights may render invalid a defendant’s reinitiation of the discussion with police.

Here, it is significant that at 10:26 a.m. they finally honored defendant’s repeated invocation.

Defendant’s rights were not altogether ignored.

Here, after an hour of leaving him alone defendant reinitiated the discussion with the police, the detectives once again administered Miranda warnings and defendant expressly waived his rights.

To the contrary the record demonstrates that defendant did make voluntarily, knowingly, and intelligently waiver of his right to counsel after he reinitiated discussions with detectives.

The test for voluntariness is whether the defendant made the decision freely, without compulsion or inducement, or whether the defendant’s will was overborne at the relevant time.

To implement this test, we consider the totality of the circumstances surrounding the statements, including

• the defendant’s age,
• intelligence,
• education,
• experience, and
• physical condition at the relevant time;
• the duration of the interrogation;
• the presence of Miranda warnings;
• the presence of any physical or mental abuse; and
• the legality and duration of the detention.

The duration of the interrogation had been relatively brief.

By the 11:36 a.m. waiver, he had been questioned for about three hours, with a break from about 10:30 to 11:30 a.m.

Defendant had been at the police department for a total of four hours when he made the 11:36 a.m. waiver.

The two hours of defendant’s interrogation conducted after defendant had invoked his right to counsel weigh against voluntariness.

On the other hand, as mentioned above, the police eventually, albeit belatedly, honored defendant’s invocation of his right to counsel, and this tends to mitigate the illegality of the interrogation.

On balance, the interrogation in violation of defendant’s right to counsel tips this factor slightly against voluntariness.

He was allowed to use the restroom and to smoke cigarettes when he asked to do so.

The questioning became intense, but the police did not subject defendant to mental abuse.

Defendant had a headache and perhaps a hangover, but he was not incapacitated as a result.

The reviewing court held that defendant voluntarily gave his statements following the 11:36 a.m. waiver.

Because defendant reinitiated the discussion with Malatia and Evoy and his subsequent statements were voluntarily given, the reviewing court affirmed the trial court’s judgment on this point.

Defendant argues that the detectives’ ignoring his attempts to invoke his right to counsel overbore his will to resist and rendered involuntary his statements after the reinitiation. While this is a concern, it was mitigated when the police stopped the questioning, telling him that they were doing so because he had asked for counsel.

Thus, while continuing the interrogation after his 8:18 a.m. request for counsel arguably led defendant to expect that the police were never going to stop the questioning, the other side of the coin is that, at 10:26 a.m., the police did stop the questioning at defendant’s insistence on his right to counsel, and this should have led defendant to expect that he had been and would be allowed to exercise his rights.

Moreover, when defendant attempted to speak about the case during the second smoking break, Malatia and Evoy flatly refused to engage defendant, explaining that they could not talk about the case with him because he had invoked his right to counsel.

This exchange should have further informed defendant that the police were serious about honoring his right to counsel, even though it might not have been enough to erase the earlier misconduct.

The court said the police significantly rectified their earlier misconduct.

Accordingly, while a concern, the misconduct is not dispositive.

Finally, defendant wanted a jury instruction on foreseeability.

Specifically, defendant offered IPI Criminal 4th No. 7.15A (Supp. 2011) in the following form:

“A person commits the offense of first degree murder when he commits the offense of aggravated arson or arson, and the death of an individual results as a direct and foreseeable consequence of a chain of events set into motion by his commission of the offense of aggravated arson or arson. It is immaterial whether the killing is intentional or accidental.”

Defendant argues that the manner of Morgan’s death was not foreseeable; rather, it was a combination of unforeseeable circumstances that resulted in her home becoming engulfed in flames. According to defendant, the house caught fire only because the garage door had been left open, the door to the mudroom had been left open, and a powerful all-house fan in the attic drew the smoke and flames from the car into the house.

In Illinois felony murder is strict liability.

The State is not required to prove that the defendant could foresee the death or that the defendant intended to commit murder; the State need show only that the defendant intended to commit the underlying felony.

However, where a death is caused by a third party, the felony-murder rule follows the proximate-cause theory, meaning that liability for murder will attach for any death proximately resulting from the unlawful activity, even if the death is caused by one resisting the crime.

This makes sense.

If the death is caused by one outside of the criminal actors, then it would be unjust to impose liability if the mechanism of death was so remote as to be unforeseeable; whereas it remains just to impose liability for an act directly committed by the defendant that caused the death of the victim, even if the precise mechanism of death was not envisioned by the defendant as he was committing the underlying crime.

Accordingly, the foreseeability qualification embodied in IPI Criminal 4th No. 7.15A (Supp. 2011) has been required only in cases in which a third party outside of the criminal actors caused the death.

The comments to IPI Criminal 4th No. 7.15A (Supp. 2011) suggest that it is to be given in situations “where the defendant did not perform the acts which caused the death of the deceased.” IPI Criminal 4th No. 7.15A (Supp. 2011), Committee Comments. Based on the fact that the comments suggest that IPI Criminal 4th No. 7.15A (Supp. 2011) does not apply to a situation in which the defendant is alleged to have committed the act that resulted in the death of the deceased, and the fact that the only cases we have been able to find in which IPI Criminal 4th No. 7.15A (Supp. 2011) has been used are those in which the defendant did not perform the act that caused the death of the deceased, the trial court did not err in refusing defendant’s proposed jury instruction.

Besides, the fact that fire spreads is eminently foreseeable and a burning car parked in the driveway of a home might communicate the flames from the car to the house is obvious.

27 year sentence and conviction is affirmed.

People v. Ochoa, 2017 IL App (1st) 140204 (February). Episode 315 (Duration 29:55)

Defendant's murder conviction is reversed a second time for the same reason it was reversed the first time (Cameron Hearing Problem).

Defendant was accused of being the shooter in gang killing that killed a 15 year old girl.

The intended victim was her boyfriend who was standing right next to her. Two codefendants were arrested near the scene. They were interrogated and they gave up the defendant.

The investigation then shifted to identifying and finding the defendant.

Eventually, defendant was also arrested and he too confessed to being the shooter.

First of all, hearsay is an out-of-court statement offered to prove the truth of the matter asserted.

Testimony by a third party as to statements made by another non testifying party identifying an accused as the perpetrator of a crime constitutes hearsay testimony and is inadmissible.

Therefore, a codefendant’s statement incriminating a defendant is inherently unreliable, particularly when the co-defendant does not testify at trial and cannot be cross-examined.

The introduction of a co-offender’s hearsay statement implicating the defendant violates the defendant’s sixth amendment right to confrontation. U.S. Const., amend. VI.

When it comes to testimony outlining the steps in an investigation the case law goes both ways.

Our supreme court has held that law enforcement officers “may recount the steps taken in the investigation of a crime, and may describe the events leading up to the defendant’s arrest, where such testimony is necessary and important to fully explain the State’s case to the trier of fact.” People v. Simms, 143 Ill. 2d 154, 174 (1991).

In addition, a law enforcement officer “may testify about his conversations with others, such as victims or witnesses, when such testimony is not offered to prove the truth of the matter asserted by the other, but is used to show the investigative steps taken by the officer.” Simms, 143 Ill. 2d at 174.

“Testimony describing the progress of the investigation is admissible even if it suggests that a non testifying witness implicated the defendant.” Simms, 143 Ill. 2d at 174. The gist of this argument is that the steps in an investigation is not hearsay. Because the testimony is not being used to prove the matter asserted, but instead is being used to explain the step in an investigation.

Then there is People v. Boling, 2014 IL App (4th) 120634 which counsels that out-of-court statements that explain a course of conduct should be admitted only to the extent necessary to provide that explanation and should not be admitted if they reveal unnecessary and prejudicial information.

An officer may not testify to information beyond what is necessary to explain his or her actions.

The trick here is to make sure that the State not use the limited investigatory procedure exception to place into evidence the substance of any out-of-court statement that the officer hears during his investigation, and only elicits such evidence to establish the police investigative process.

This is a very fine line to walk.

Case law clearly says there is a distinction between an officer testifying to the fact that he spoke to a witness without disclosing the contents of that conversation and an officer testifying to the contents of the conversation.

Under the investigatory procedure exception, the officer’s testimony must be limited to show how the investigation was conducted, not to place into evidence the substance of any out-of-court statement or conversations for the purpose of establishing the truth of their contents. The police officer should not testify to the contents of the conversation, since such testimony is inadmissible hearsay.

On appeal, defendant first contends that he was denied a fair trial where the trial court allowed two police officers to testify to the substance of the co-defendants’ statements implicating defendant as the shooter.

According to defendant, the State’s actions on retrial mirrored its actions at defendant’s first trial for which this court reversed and remanded the cause for a new trial.

The State responds that there was, in fact, no error; that the detectives’ testimony was properly admitted for the limited purpose of showing the course of their investigation; and that any error that did occur was cured by the trial court’s limiting of the testimony.

The specific testimony with which defendant takes issue is the following testimony by Detective Garcia:

ASA [Q]: After these line-ups, Simon and Bentazos were still in custody at Area 4, correct?

DETECTIVE GARCIA [A]: Yes.

Q: After dealing with Bentazos and Simon, what did you do next in this investigation?

A: We obtained information of two additional offenders.

[ASSISTANT PUBLIC DEFENDER]: Objection.

THE COURT: Sustained. Disregard that answer, ladies and gentlemen. Ladies and gentlemen, you are to disregard the last question and answer.

The court also admonished Detective Garcia not to mention the fact that he had any conversations with Simon and Bentazos.

The following testimony then transpired:

Q: After these line-ups, Detective, what is the next thing you did in your investigation?

A: We—we had information on two additional persons.

[ASSISTANT PUBLIC DEFENDER]: Objection.

THE COURT: Disregard that question and that answer. Ask your next question.

Q: What is the next thing you did in this investigation?

A: We were looking for two other subjects.

Q: What information did you initially have about these two subjects?

A: We had nicknames.

Q: What were the nicknames?

A. One by the name of Chilango (phonetic) and the other by the name of Spook.

Defendant also takes issue with the following testimony by Detective Lopez:

Q: When that investigation was turned over to you was anybody in custody for that murder at area four?

A: Yes, sir.

Q: Who was that?

A: Mr. Bentazos and Mr. Simon.

Q: And when the investigation was turned over to you, did you look for any additional offenders besides the two in custody?

A: Yes.

Q: Who were you looking for?

A: Torres and a subject by the name of Chilango.

Q: And did Eduardo Torres also have the nickname of Spook?

A: He did, yes.

Q: Did you and Detective Schleder take steps that evening and the night of December 18th to try and locate Eduardo, Spook, Torres?

A: Yes, sir.

Q: Were you successful that evening?

A: No, not at that time.

Q: Did you share any information with uniformed officers in the district that comprised area four?

A: Yes, with the tenth district, correct.

Q: And specifically what did you share with them?

A: Eduardo Torres’s IR number, his internal record number, his description, and that was passed along to the beat officers.

Q: And did you and Detective Schleder attempt to develop information on Chilango?

A: Yes.

Q: Were you still working just after midnight and into the morning on December 19th 2002?

A: Yes, I was.

Q: Did you learn that Torres was arrested at 12:10 a.m. on December 19th on the street at 2501 South Drake by uniformed officers?

A: Yes.

Q: And was Eduardo Torres subsequently brought to area four [police station]? [DETECTIVE LOPEZ:]

A: He was.

Q: Did you continue your investigation into Marilou’s murder at that time?

A: Yes.

Q: Did you have an opportunity to leave area four at [3:45 that morning?]

A: Yes.

Q: When you left area four were you going to a specific location?

A: Yes.

Q: Where were you going?

A: The tenth district 2448—the 2400 block of south Spaulding I believe it was.

Q: Okay, did you subsequently relocate to 2442 South Saint Louis, first floor?

A: Saint Louis, yes, sir.

Q: Okay. And were you looking for a specific person at that address?

A: Yes, sir.

Q: Who were you looking for?

A: Male, Hispanic by the—with the nickname of [Chilango] or [Beto].

Q: And did you have any other identifiers of that individual?

A: Medium height 5'6'' with a tattoo on his arm.

[ASSISTANT PUBLIC DEFENDER]: Objection.

THE COURT: Basis.

[ASSISTANT PUBLIC DEFENDER CHRISTL]: Hearsay.

THE COURT: Overruled.

Q. You may continue.

A: Yes, sir. That was the approximate description.

Defendant argues that the testimony at the second trial was nearly identical to that at the first trial and, therefore, the same reversible error occurred.

This is the reversible error from the first trial:

In defendant’s first trial, the State asked Detective Garcia if codefendants Simon and Bentazos were at the police station, prompting the following exchange:

A: Yes, they were, ma’am.

Q: Were interviews conducted in the late night hours of December 17th and the early morning hours of December 18, 2002?

A: Yes, they were.

Q: After interviews were conducted, did your investigation continue?

A: Yes, it did, ma’am.

Q: Were you looking for any other offenders in this shooting?

A: Yes, due to our interviews with Mr. Simon and Mr. Bentazo, we were able to obtain two nicknames also involved in the shooting which they gave us so—

DEFENSE COUNSEL: Judge, objection.

THE COURT: Sustained.

Rephrase your question. The question asked of the Detective and the answer will be stricken.

Q: After interviews were conducted were you looking for any other offenders or possible offenders?

A: Yes, we were looking for two subjects. One by the street name of Chilango. Chilango was later determined to be defendant.

Additionally, in the first trial, Detective Lopez said these things:

Q: Did you see Eduardo Torres when he was brought to Area 4 in the early morning hours of December 19, 2002?

A: I did.

Q: Did your investigation continue into the homicide of 15 year old Marila Soscha at this point?

A: Yes.

Q: Were interviews conducted?

A: Yes.

Q: After interviews were conducted at approximately 3:30 to 3:45 A.M. still on December 19, 2002, did you have occasion to leave Area 4?

A: Yes.

Q: When you left Area 4, were you going to a specific location?

A: Yes. We were directed to 2442 South St. Louis on the first floor.

Q: When you say you were directed to 2442 South St. Louis on the first floor, were you specifically looking for someone at that address?

A: Yes. I was looking for a male Hispanic named Chilango who also went by— who also had a first name of Alberto who was a male Hispanic approximately five-six, medium build, with a tattoo on his arm that said Beto.

In the first appeal the reviewing court held that the State repeatedly elicited testimony that contained a strong inference that the co-defendants implicated defendant in their statements.

This exchange went beyond mere questioning concerning the investigatory process, and included serial questions to build the inference that defendant was named by his criminal cohorts.

Furthermore, rather than limiting testimony to the actions within the investigatory process, the jury was told that, after interviewing co-defendants at the police station, police knew the defendant’s home address, his first name, his nickname, his ethnicity, height and build, and that he had a very specific tattoo.

This testimony was inadmissible hearsay, as it went beyond the mere steps that the police took in their investigation, and instead placed into evidence the substance of the co-defendants’ out-of-court statements for the purpose of establishing their truth.

Moreover, the State reinforced this evidence by reminding the jury multiple times during closing arguments that, after police interviewed the codefendants, they knew they were looking for a person with the precise characteristics of defendant.

The reasonable inference to be drawn by the jury was that this information came from the co-defendants.

In this later trial, the reviewing court said the same thing happened.

The series of questions and answers established that “after dealing with” the co-defendants, Detective Garcia then had specific identifying information about defendant. From this testimony, then, the jury learned that, after talking with the co-defendants, the police were then looking for a suspect nicknamed “Chilango.”

It was never disputed at trial that defendant’s nickname was Chilango.

When the additional suspect was brought in to the police station and, very soon thereafter, Detective Lopez knew to search for a specific individual with defendant’s specific identifiers of nickname, height, build, ethnicity, gender, and tattoo.

The jury could easily infer from this series of questions that co-defendant Torres implicated defendant in the crime.

Again, the reviewing court found the detectives’ testimony was inadmissible hearsay.

The State repeatedly elicited testimony with the strong inference that defendant’s co-defendants implicated him to the police.

The jury witnessed this exchange, which went beyond mere questioning concerning the investigatory process and, like in the first trial, included serial questions to build the inference that defendant was named by his criminal cohorts.

Testimony regarding the steps of an investigation may not include the substance of a conversation with nontestifying witnesses.

Again, as in the first trial, this testimony was in no way limited to the actions police took as part of their investigatory process, but instead the jury was informed that, with co-defendants Simon, Bentazos, and Torres at the police station, the detectives discovered:

the defendant’s home address

• nickname
• gender
• ethnicity
• height and build
• and information about his tattoo.

There was no material difference between the substantive contents of the detectives’ testimony between defendant’s first and second trials.

The steps in the investigation were that that Simon and Bentazos were arrested, that Torres was arrested the following day, and that defendant was arrested later that day.

Instead, the reasonable inference to be drawn by the jury from the information provided at trial was that defendant’s co-defendants implicated him in the crime. Again like the first trial, the State reinforced this evidence by reminding the jury during closing arguments that defendant’s co-defendants had implicated him in the crime.

In discussing defendant’s inculpatory statement to the police, the prosecutor told the jury:

“And you know why he gave it up as soon as he sat down with Sergeant Lopez? He gave it up because he knew the game was over. He knew the three co-defendants were in custody at that station. He knew the police— [DEFENSE COUNSEL Objection was overruled.]: Had solved this crime. And you know what? He knew at that point there was no reason to deny it. You heard from Sergeant Lopez, he didn’t deny it. He started talking immediately.”

The reviewing court concluded that this statement to the jury linked the reason defendant allegedly provided an inculpatory statement to the fact that his co-defendants had already been arrested and were in custody upon his arrival to the station, and it provided further reason for the jury to infer that the information obtained by police—including defendant’s gender, ethnicity, nickname, build, and home address—was provided to them by the co-defendants.

The central warning of People v. Boling is particularly pressing here.

Investigatory steps taken by a police officer are rarely more than marginally relevant at best, while the risk of jury misuse of the information at great expense to the accused is substantial.

This evidence linking defendant to the crime was so crucial to the State’s case that its admission prejudiced defendant.

Reversed and remanded.

On remand, the State was instructed to use more caution in its examination of the detectives such that the detectives’ testimony does not bolster the State’s case against defendant.

The State should understand more fully the strictures of the investigatory procedure exception and should steer clear of any testimony that goes beyond an officer “reconstructing the steps taken in a crime’s investigation” and “describing the events leading up to the defendant’s arrest where such testimony is necessary and important to fully explain the State’s case to the jury,” being mindful that “there is a distinction between an officer testifying to the fact that he spoke to a witness without disclosing the contents of that conversation and an officer testifying to the contents of the conversation.”

But the trial court also said that what happened in the previous trial is not what happened here. The court and the state both believed that if they stayed away from the direct conversations with the co defendants they were fine.

They didn’t understand that it was the implications from those conversations is where the damage was being done.

See Also Episode 057 - Prosecutorial Misconduct Example | They All Do This

People v. Shinaul, 2017 IL 120162 (February). Episode 311 (Duration 4:52)

State is not allowed to reinstate charges after Defendant vacates an invalidated Aguilar AUUW conviction.

This case looks at whether or not the State will be allowed to reinstate dismissed charges after a defendant files a civil petition to vacate an invalidated Aguilar AUUW conviction.

In this case, the issues before the circuit court were limited to whether the AUUW count to which defendant had pled guilty should be vacated, whether he should be allowed to withdraw his negotiated guilty plea, and whether the State should be allowed to reinstate the counts it had nol-prossed as part of that negotiated plea agreement.

A civil remedy that extends to criminal cases, section 2-1401 of the Code of Civil Procedure outlines a comprehensive, statutory procedure by which final orders and judgments may be vacated by the circuit court more than 30 days following their entry.

See 735 ILCS 5/2-1401 et seq.

A section 2-1401 proceeding is a new and separate cause of action that is subject to the usual rules of civil procedure.

In this case, defendant attacked his conviction under the plea agreement because the offense to which he pled guilty was declared unconstitutional and void ab initio by this court in Aguilar.

It is undisputed that defendant’s section 2-1401 petition correctly asserted that his conviction as part of the negotiated plea should be vacated in light of this court’s decision in People v. Aguilar, 2013 IL 112116.

Further, the State properly filed its motion to reinstate the prior nol-prossed charges by proceeding under this court’s alternative method of reinstating once nol-prossed charges. See People v. Hughes, 2012 IL 112817, ¶¶ 24-25 (identifying two mechanisms by which the State can reinstate once nol-prossed charges: the State may file a new information or indictment, or the State can alternatively move to vacate the nolle prosequi and reinstate the original charges).

 In light of Aguilar’s holding, defendant correctly notes that he essentially pled guilty to something that was never a crime.

To receive relief from his void conviction, defendant properly understood that the only way to vacate a conviction after a judgment has been entered on a guilty plea is to hold that the plea was defective and that his conviction should be vacated through the filing of a section 2-1401 petition. See Episode 187 - People v. McFadden, 2016 IL 117424, ¶¶ 20, 31-32. 

When a circuit court vacates and sets aside a judgment, as it has done here, the prior judgment is eliminated, and the case thereby returns to its status before the judgment was made.

In many circumstances, this will leave a case in a procedural posture such that it requires further proceedings.

For the reasons stated below, however, the facts of this case prevent reinstatement of the nol-prossed charges.

The criminal statute of limitations serves two primary purposes: to avoid the use of stale evidence and to provide an incentive for swift governmental action in criminal cases.

Limitations are designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past.

The high court said there is no provision in the Code that permits the tolling of the statute of limitations in the circumstances before this court.

While the statute of limitations may benefit some wrongdoers it declined to create a prophylactic rule or read into the statute of limitations a nonexistent exception in order to benefit the State.

To do so would be precisely contrary to the central purpose of the statute of limitations and inconsistent with this court’s general principles of statutory interpretation.

The court held that the statute of limitations serves as an absolute bar to the State’s motion to reinstate the charges it nol-prossed.

So defendants can use the 2-1401 petition to vacate these Aguilar gun convictions, and the State may not be put back in it's original position before the plea.

See also Episode 188 - People v. Billups, 2016 IL App (1st) 134006 (May).

Should the rules allow judges to do something about bigotry that's discovered during jury deliberations?

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The recent opinion from the Supreme Court of the United States, Pena-Rodriguez v. Colorado, SCOTUS (March 2017) poses a dilemma for trial judges.

What to do when it becomes apparent that a bigot was allowed to deliberate in a criminal case?

The defendant was convicted by jury trial in Colarado of sexaually contact with minors. Two jurors told defense counsel that, during deliberations, another juror had expressed anti-Hispanic bias toward petitioner and petitioner’s alibi witness.

Defendant’s counsel reported this to the court and, with the court’s supervision, obtained sworn affidavits from the two jurors.

Here are some of things the third juror (biased juror) told the other jurors:

● He “believed the defendant was guilty because, in the biased juror’s experience as an ex-law enforcement officer, Mexican men had a bravado that caused them to believe they could do whatever they wanted with women.”

● Dude said Mexican men are physically controlling of women because of their sense of entitlement, and further stated, “I think he did it because he’s Mexican and Mexican men take whatever they want.”

● The biased juror further explained that, in his experience, “nine times out of ten Mexican men were guilty of being aggressive toward women and young girls.”

● Finally, the guy said that he did not find petitioner’s alibi witness credible because, among other things, the witness was “an illegal.”

Ultimately, though, the judge didn't do anything about this bigotry in the jury deliberation room.

The reason was because of something called the...

A general rule has evolved to give substantial protection to verdict finality and to assure jurors that, once their verdict has been entered, it will not later be called into question based on the comments or conclusions they expressed during deliberations.

This principle, itself centuries old, is often referred to as the "no-impeachment" rule.

The original idea behind the rule was that a juror could not “impeach” their verdict by talking about their deliberation.

So the rule did not allow them to testify about their subjective mental process or about objective events that occurred during deliberations.

The rule morphed from there. 

The common-law development of the no-impeachment rule reached a milestone in 1975, when Congress adopted the Federal Rules of Evidence, including Rule 606(b).

Congress, endorsed a broad "no-impeachment" rule, with only limited exceptions for outside extraneous influences on the jurors. The current version of Rule 606(b) states as follows:

“(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters. (2) Exceptions. A juror may testify about whether: (A) extraneous prejudicial information was improperly brought to the jury’s attention; (B) an outside influence was improperly brought to bear on any juror; or (C) a mistake was made in entering the verdict on the verdict form."

The Illinois Rules says,

"Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. But a juror may testify (1) whether any extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror’s affidavit or evidence of any statement by the juror may not be received concerning a matter about which the juror would be precluded from testifying."

Illinois Rule of Evidence 606(b). 

The instant case presents the question whether there is an exception to the no-impeachment rule when, after the jury is discharged, a juror comes forward with compelling evidence that another juror made clear and explicit statements indicating that racial animus was a significant motivating factor in his or her vote to convict.

In this case, the Court must decide whether the Constitution requires an exception to the no-impeachment rule when a juror’s statements indicate that racial animus was a significant motivating factor in his or her finding of guilt.

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Pena-Rodriguez v. Colorado, SCOTUS (March 2017). Episode 310 (Duration 22:11)

The constitution must allow for some form of judicial inquiry when it becomes clear that a juror has allowed racial bias to influence their verdict.

Defendant was convicted by jury trial in Colarado of sexaually contact with minors. Two jurors told defense counsel that, during deliberations, another juror had expressed anti-Hispanic bias toward petitioner and petitioner’s alibi witness.

Petitioner’s counsel reported this to the court and, with the court’s supervision, obtained sworn affidavits from the two jurors.

Here are some of things the third juror (biased juror) told the other jurors:

● He “believed the defendant was guilty because, in the biased juror's experience as an ex-law enforcement officer, Mexican men had a bravado that caused them to believe they could do whatever they wanted with women.”

● Dude said Mexican men are physically controlling of women because of their sense of entitlement, and further stated, “I think he did it because he’s Mexican and Mexican men take whatever they want.”

● The biased juror further explained that, in his experience, “nine times out of ten Mexican men were guilty of being aggressive toward women and young girls.”

● Finally, the guy said that he did not find petitioner’s alibi witness credible because, among other things, the witness was “an illegal.”

The judge denied defendant any relief citing the Colorado “no-impeachment” rule.

Like all human institutions, the jury system has its flaws, yet experience shows that fair and impartial verdicts can be reached if the jury follows the court’s instructions and undertakes deliberations that are honest, candid, robust, and based on common sense.

A general rule has evolved to give substantial protection to verdict finality and to assure jurors that, once their verdict has been entered, it will not later be called into question based on the comments or conclusions they expressed during deliberations.

This principle, itself centuries old, is often referred to as the "no-impeachment" rule.

The original idea behind the rule was that a juror could not “impeach” their verdict by talking about their deliberation.

So the rule did not allow them to testify about their subjective mental process or about objective events that occurred during deliberations.

The rule morphed from there. 

The common-law development of the no-impeachment rule reached a milestone in 1975, when Congress adopted the Federal Rules of Evidence, including Rule 606(b).

Congress, like the McDonald Court, rejected the Iowa rule.

Instead it endorsed a broad no-impeachment rule, with only limited exceptions for outside extraneous influences on the jurors. The current version of Rule 606(b) states as follows:

“(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters. (2) Exceptions. A juror may testify about whether: (A) extraneous prejudicial information was improperly brought to the jury’s attention; (B) an outside influence was improperly brought to bear on any juror; or (C) a mistake was made in entering the verdict on the verdict form."

The Illinois Rules says,

"Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. But a juror may testify (1) whether any extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror’s affidavit or evidence of any statement by the juror may not be received concerning a matter about which the juror would be precluded from testifying."

Illinois Rule of Evidence 606(b). 

The instant case presents the question whether there is an exception to the no-impeachment rule when, after the jury is discharged, a juror comes forward with compelling evidence that another juror made clear and explicit statements indicating that racial animus was a significant motivating factor in his or her vote to convict.

In this case, the Court must decide whether the Constitution requires an exception to the no-impeachment rule when a juror’s statements indicate that racial animus was a significant motivating factor in his or her finding of guilt.

It must become the heritage of our Nation to rise above racial classifications that are so inconsistent with our commitment to the equal dignity of all persons. This imperative to purge racial prejudice from the administration of justice was given new force and direction by the ratification of the Civil War Amendments.

The central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States.

In the years before and after the ratification of the Fourteenth Amendment, it became clear that racial discrimination in the jury system posed a particular threat both to the promise of the Amendment and to the integrity of the jury trial.

The duty to confront racial animus in the justice system is not the legislature’s alone. Time and again, this Court has been called upon to enforce the Constitution’s guarantee against state-sponsored racial discrimination in the jury system.

The unmistakable principle underlying these precedents is that discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice.

Permitting racial prejudice in the jury system damages both the fact and the perception of the jury’s role as “a vital check against the wrongful exercise of power by the State.

This case lies at the intersection of the Court’s decisions endorsing the no-impeachment rule and its decisions seeking to eliminate racial bias in the jury system.

The two lines of precedent, however, need not conflict.

An effort to address the most grave and serious statements of racial bias is not an effort to perfect the jury but to ensure that our legal system remains capable of coming ever closer to the promise of equal treatment under the law that is so central to a functioning democracy.

For instance, this Court has noted the dilemma faced by trial court judges and counsel in deciding whether to explore potential racial bias at voir dire.

Generic questions about juror impartiality may not expose specific attitudes or biases that can poison jury deliberations. Yet more pointed questions could well exacerbate whatever prejudice might exist without substantially aiding in exposing it.

Thus, there is a sound basis to treat racial bias with added precaution.

Not every offhand comment indicating racial bias or hostility will justify setting aside the no-impeachment bar to allow further judicial inquiry.

For the inquiry to proceed, there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict.

To qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror’s vote to convict. Whether that threshold showing has been satisfied is a matter committed to the substantial discretion of the trial court in light of all the circumstances, including the content and timing of the alleged statements and the reliability of the proffered evidence.

The states and the their court’s should figure out the details. This case does not ask, and the Court need not address, what procedures a trial court must follow when confronted with a motion for a new trial based on juror testimony of racial bias.

The Court also does not decide the appropriate standard for determining when evidence of racial bias is sufficient to require that the verdict be set aside and a new trial be granted.

A constitutional rule that racial bias in the justice system must be addressed—including, in some instances, after the verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.

For the reasons explained above, the Court now holds that where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.

The progress that has already been made underlies the Court’s insistence that blatant racial prejudice is antithetical to the functioning of the jury system and must be confronted in egregious cases like this one despite the general bar of the no-impeachment rule.

It is the mark of a maturing legal system that it seeks to understand and to implement the lessons of history.

The Court now seeks to strengthen the broader principle that society can and must move forward by achieving the thoughtful, rational dialogue at the foundation of both the jury system and the free society that sustains our Constitution.

Reversed and remanded.

People v. Acevedo, 2017 App (3d) 150750 (March). Episode 309 (Duration 6:09)

Discovery sanction in this rescission hearing consisted of a finding that the defendant met his initial burden, then the State was allowed to have the officer testify to the probable cause for the DUI arrest.

Case begins with a car accident.

Defendant failed the fields and blew a .183 on the PBT.

When the officer got to the scene the defendant had difficulty removing his license from his wallet. She testified that the defendant told her he had been at a union meeting and that he had 4 to 5 beers. Defendant was stumbling and swaying.

In this DUI case the State was ordered to turn over the squad car video.

The video did exist at one time. The officer made a copy of the DVD from the recording system in her squad car and turned it in with her report. However, it was later found that the DVD was cracked and would not play.

When the officer went to make another copy she discovered it had been recorded over.

The trial court found that a discovery violation had occurred and, as a sanction, imputed that the defendant had sustained his burden of proof and shifted the burden to the State to show cause why the suspension should be sustained.

The trial court declined to bar the officer’s testimony of the arrest, her observations, and the SFSTs as a sanction. 

The defendant argues that the trial court erred by not barring the testimony of the arresting officer as sanctions for a discovery violation.

The defendant argues that, as a sanction, the arresting officer should have been barred from testifying to the events that would have been seen on the DVD.

This reviewing court did not read People v. Kladis, 2011 IL 110920 as broadly as defendant did.

Despite the defendant’s argument that Kladis stands for the proposition that testimony must be barred whenever there is a discovery violation that results in missing evidence, the court concluded that Kladis does not dictate such a hard and fast rule.

There was no abuse of discretion here.

In this case, the trial court considered available options for sanctions and determined that imputing that the defendant had met his burden of proof regarding a prima facie case for rescission was the appropriate sanction, rather than completely barring the arresting officer’s testimony regarding the stop.

Also, attorneys should take note of the proper way to admit a PBT result in a rescission hearing.

Under section 11-501.5 of the Illinois Vehicle Code, a PBT, like other field sobriety tests, is admissible to establish that probable cause existed to arrest the defendant for driving under the influence, even though the PBT is not admissible as evidence of intoxication in a criminal proceeding. 625 ILCS 5/11-501.5.

In order to lay a proper foundation for the admission of the results of 5 the PBT, the witness must testify that the PBT machine is one approved for use by police officers, and that the device was checked for accuracy every 93 days by a person specially trained to perform such tasks. 20 Ill. Adm. Code 1286.240; 20 Ill. Adm. Code 1286.250 (2011).

In addition, the witness must testify that the test was administered according to an operational procedure programmed into the instrument and that the test consisted of only one breath analysis reading, based on the instrument’s internal operational calculations. 20 Ill. Adm. Code 1286.260 (2007).

This is the February 2017 Illinois criminal case law audio summary. Episode 303 (Duration 20:28)

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Why read about what the Illinois criminal law courts have been up to when you can just listen? 

The best way to ensure you consistently outmatch and outgun the competition is by doing the work they won't do. That means staying on top of the important opinions.

The February 2017 round-up is 20:28 minutes long. Hit the "download" button and listen to the full  program now.

Download the full audio summary featuring a short review of every important case released this month. To hear what you missed click below. 

Here's a quick snapshot of what's included in your MP3 Download, this is what you missed:

1. People v. Fort

When the State may want to charge second degree murder even though it’s kind of redundant, silly, and a little stupid to do it.

2. People v. Ayres

The right way to accuse you of being completely incompetent and ineffective.

3. People v. Shinaul

The sneaky little way the State is trying to stop defendants from vacating unconstitutional gun convictions.

4. People v. Williams

This off duty officer knows how to make an extrajurisdictional arrest stick. He was off-duty and way outside of his city limits when he made a citizen’s arrest.

5. In re Manuel M.

A completely inappropriate use of the “surveillance privilege” is used to deprive the accused minor of significant discovery.

6. People v. Oelerich

A demon told him to test his invincibility. What he did was shocking.

7. People v. Grant

The wrong way to handle a gun. Defendant shoots himself in the hand in his empty apartment...but is that a reckless discharge?

8. People v. Encalado

Paying for sex from prostitutes is usually embarrassing and kept on the down-low...Wrong! This defendant wanted to blab all about it in front of the jury.

9. People v. Pepitone

Why Sex offenders can now go to a Bear’s game at Soldier field.

10. People v. Ochoa

Are you letting the prosecution try to admit the kitchen sink by helping the jury understand the “steps in an investigation”? These prosecutors will be trying this murder case for the 3rd time because defense counsel put her foot down.

11. People v. Ortiz

How to dissect, break down and de fang a landmark “pro defense” opinion.

12. People v. Mandoline

When just a little police misconduct and constitutional rights trampling is no big deal.

13. People v. Washington
Courts have to tiptoe through the process with unfit defendants. The fastest way to a reversal is to respect every wish of an unfit defendant.

Don't leave without downloading your MP3 of the February 2017 case list. An audio system makes it more likely you'll stay up to date and aware of the big issues.

Steady, persistent attention to the cases will transform you into the kind of attorney who regularly outguns the other side.

Click the orange button below:

Download the full audio summary featuring a short review of every important case released this month. To hear what you missed click below. 

People v. Fort, 2017 IL 118966 (February). Episode 308 (Duration 9:57)

Illinois Supreme Court says State must charge second degree murder if they want to continue with adult sentencing after they lose a first degree murder count.

At issue in this appeal is whether a minor who is tried in adult court under the “automatic transfer” provision of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/5-130) but is later not convicted of the charges which brought him into adult court is subject to mandatory adult sentencing under the Act.

Because defendant was charged with first degree murder, an offense specified in section 5-130 of the Act (705 ILCS 405/5-130(1)(a)), also known as the “automatic transfer” statute, defendant was tried as an adult. 705 ILCS 405/5-130(1)(b)(ii).

Defendant was 16 when he shot at a group of people.

He said he thought the victim had a gun and was going to shoot him.

The trial court reduced the offense of first degree murder to second degree murder based on the mitigating factor of an unreasonable belief in self-defense. The court entered judgment on a conviction of second degree murder (720 ILCS 5/9-2(a)(2).

Although defendant was a minor, the State never filed a written motion requesting that defendant be sentenced as an adult pursuant to section 5-130(1)(c)(ii) of the Act (705 ILCS 405/5-130(1)(c)(ii). Instead, the trial court and the parties proceeded directly to a sentencing hearing under the Unified Code of Corrections (730 ILCS 5/1-1-1 et seq.) pursuant to section 5-130(1)(c)(i) of the Act.

Defendant was sentenced to 18 years’ imprisonment.

The automatic transfer provision in section 5-130 of the Act is an exception to the juvenile court’s exclusive jurisdiction over minors charged with a crime. 705 ILCS 405/5-130.

At the time of defendant’s offense, the automatic transfer statute provided, in pertinent part:

Ҥ 5-130. Excluded jurisdiction. (1)(a) The definition of delinquent minor under Section 5-120 of this Article shall not apply to any minor who at the time of an offense was at least 15 years of age and who is charged with:

(i) first degree murder,
(ii) aggravated criminal sexual assault,
(iii) aggravated battery with a firearm where the minor personally discharged a firearm as defined in Section 2-15.5 of the Criminal Code of 1961,
(iv) armed robbery when the armed robbery was committed with a firearm, or
(v) aggravated vehicular hijacking when the hijacking was committed with a firearm.

These charges and all other charges arising out of the same incident shall be prosecuted under the criminal laws of this State...

(c)(i) If after trial or plea the minor is convicted of any offense covered by paragraph (a) of this subsection (1), then, in sentencing the minor, the court shall sentence the minor under Section 5-4.5-105 of the Unified Code of Corrections. (ii) If after trial or plea the court finds that the minor committed an offense not covered by paragraph (a) of this subsection (1), that finding shall not invalidate the verdict or the prosecution of the minor under the criminal laws of the State; however, unless the State requests a hearing for the purpose of sentencing the minor under Chapter V of the Unified Code of Corrections, the Court must proceed under Sections 5-705 and 5-710 of this Article.

To request a hearing, the State must file a written motion within 10 days following the entry of a finding or the return of a verdict. Reasonable notice of the motion shall be given to the minor or his or her counsel. If the motion is made by the State, the court shall conduct a hearing to determine if the minor should be sentenced under Chapter V of the Unified Code of Corrections.

In making its determination, the court shall consider among other matters:

(a) whether there is evidence that the offense was committed in an aggressive and premeditated manner;
(b) the age of the minor;
(c) the previous history of the minor;
(d) whether there are facilities particularly available to the Juvenile Court or the Department of Juvenile Justice for the treatment and rehabilitation of the minor;
(e) whether the security of the public requires sentencing under Chapter V of the Unified Code of Corrections; and
(f) whether the minor possessed a deadly weapon when committing the offense.

The rules of evidence shall be the same as if at trial. If after the hearing the court finds that the minor should be sentenced under Chapter V of the Unified Code of Corrections, then the court shall sentence the minor accordingly having available to it any or all dispositions so prescribed.”

705 ILCS 405/5-130(1).

Defendant argued that his conviction for second degree murder was “not covered by” section 5-130(1)(a) because second degree murder was not a “charge[ ] arising out of the same incident” as the first degree murder charges. 705 ILCS 405/5-130(1)(a), (1)(c)(i) (West 2008). Therefore, defendant argues, he should have been sentenced as a juvenile pursuant to section 5-130(1)(c)(ii) unless the State specifically requested a hearing to sentence him as an adult. 705 ILCS 405/5-130(1)(c)(ii).

The Illinois Supreme Court agreed with defendant that his adult sentence was imposed in violation of the statute, based on the fact that he was convicted of second degree murder, an uncharged non-automatic transfer offense, and not convicted of all first degree murder charges.  

The statutory language clearly requires that a minor be tried in adult court if he is charged with one of the offenses listed in section 5-130(1)(a) of the statute. Moreover, a minor is properly tried in adult court on all of the charged offenses “arising out of the same incident,” even if some of those charges are not listed in section 5-130(1)(a).

This procedure obviously benefits the State and the court system by avoiding separate trials in criminal court and juvenile court for the same incident.

However, the same logic does not apply to sentencing when a defendant is not convicted of the charges that brought him into adult court and ultimately convicted of a less serious, uncharged offense.

The plain language in section 5-130(1)(c)(ii) evinces the legislative intent that when a minor is convicted only of an uncharged, non-automatic transfer offense, the court must proceed under the Juvenile Court Act for sentencing unless the State moves for adult sentencing and that request is granted. Mandatory adult sentencing under section 5-130(1)(c)(i) only applies when a minor is convicted of an offense “covered by” section 5-130(1)(a). 705 ILCS 405/5-130(1)(c)(i).

Section 5-130(1)(a) lists four specific charges and provides that “[t]hese charges and all other charges arising out of the same incident shall be prosecuted under the criminal laws of this State.” 705 ILCS 405/5-130(1)(a). Thus, in order for a conviction to be “covered by” section 5-130(1)(a), it must be for a charged offense, whether one of the enumerated charges or a separate charge arising out of one of the enumerated charges.

This court has recognized that the framework of the Act turns on the offenses in the charging instrument.

Thus, it is the charging instrument that determines whether the minor has the right to have the proceedings in juvenile court.

In this case, defendant was charged and tried for first degree murder but was not charged with second degree murder. Second degree murder is a separate offense from first degree murder. 720 ILCS 5/9-1, 9-2. The State chose to proceed to trial on only the first degree murder charges.

Therefore, the offense of second degree murder did not qualify as an “other charge[ ] arising out of the same incident” as the charged offenses. 705 ILCS 405/5-130(1)(a).

Under the plain language of the statute, defendant’s conviction on an uncharged offense was not “covered by” section 5-130(1)(a). 705 ILCS 405/5-130(1)(a), (1)(c).

Thus, sentencing should have proceeded under section 5-130(1)(c)(ii) rather than section 5-130(1)(c)(i). In the absence of a request by the State for adult sentencing, defendant’s adult sentence is contrary to the express statutory language and must be vacated. See 705 ILCS 405/5-130(1)(c)(ii).

The State argues that defendant was not “acquitted” of first degree murder because second degree murder is considered a “lesser mitigated offense” of first degree murder. See Episode 260.

In convicting defendant, the trial court found that the State had proved all of the necessary elements for first degree murder but the evidence supported a mitigating factor, which reduced the crime to second degree murder.

According to the State, then, defendant’s second degree murder conviction was “covered by” section 5-130(1)(a) because it arose out of the same incident as the proven first degree murder charge. See 705 ILCS 405/5-130(1)(a), (1)(c)(i). The high court said this argument as both factually and legally incorrect.

But here the conviction in the books is for second degree murder not first degree murder. For the foregoing reasons, the judgments of the lower courts are reversed. The cause is remanded to the trial court with directions to vacate defendant’s sentence and allow the State to file a petition requesting a hearing pursuant to section 5-130(1)(c)(ii) of the Juvenile Court Act. 705 ILCS 405/5-130(1)(c)(ii).

In accord with the timeline provided in the statute, the State must file its motion within 10 days of the date the trial court vacates defendant’s sentence.

The dissent stressed that second degree murder is not a separate crime from first degree murder. It is not an “alternative to first degree murder.” It is not a lesser-included offense of first degree murder. Rather, it is a mitigated form of the same crime.

Correspondingly, a charge of second degree murder is incorporated into every charge of first degree murder. The elements of the two offenses are the same. The only thing that distinguishes them is that for a defendant to be convicted of second degree murder, he or she must have met the burden of establishing a mitigating factor after the State has proven the charge of first degree murder beyond a reasonable doubt.

The first degree murder charge were not rejected; rather, the trier of fact found that the State successfully proved the charge of first degree murder but also found that defendant proved the existence of a mitigating factor.

Because the charge of first degree murder was sufficient to trigger the automatic transfer provision of section 5-130 and because the charge for which defendant was ultimately found guilty—second degree murder—was merely a variant of that same qualifying offense and not a different or lesser-included offense, it therefore cannot be said that the defendant here was convicted of an offense for which he had not been charged.

To the contrary, he quite clearly was.

Defendant was found guilty of second degree murder, and the State had leveled a charge of second degree murder against him when it charged him with first degree murder. The trial court was therefore entirely correct when it sentenced defendant as an adult.

Under the majority’s view, in order to avoid the issue here, the State would have been required to expressly and simultaneously charge first degree murder and second degree murder. In sum, a charge of second degree murder is incorporated in every charge of first degree murder. Defendant was thus convicted of a charged offense arising out of section 5-130 of the Act and was properly sentenced under the Unified Code of Corrections.

People v. Ingram, 2018 IL App (4th) 160099 (July). (minor plead to the lesser charge)

Episode 260 - People v. Staake, 2016 IL App (4th) 140638 (November) (Originally Charged With Second Degree Murder, Then Amended To First Degree Murder, Problem?)