Kane County Nuggets

People v. Ayres, 2017 IL 120162 (February). Episode 307 (Duration 5:41)

What does defendant have to say to trigger a Krankel inquiry?

Defendant mailed a pro se petition to withdraw guilty plea and vacate sentence, alleging “ineffective assistance of counsel” and nothing more.

This motion was ignored by the trial court.

The issue in this case is whether defendant’s allegation of “ineffective assistance of counsel” without any factual support was sufficient to trigger a Krankel inquiry.

There is a split in the appellate court on this question.

Some decisions hold a bare claim warrants inquiry. Conversely, other decisions hold a bare allegation is insufficient and that a defendant must meet minimal requirements by asserting supporting facts or specific claims.

The common-law procedure, which has evolved from our decision in Krankel, is triggered when a defendant raises a pro se post trial claim of ineffective assistance of trial counsel. People v. Jolly, 2014 IL 117142, ¶ 29.

This procedure “serves the narrow purpose of allowing the trial court to decide whether to appoint independent counsel to argue a defendant’s pro se post trial ineffective assistance claims.”

Defendant can raise the issue through a motion, orally or in a letter.

However, the trial court is not required to automatically appoint new counsel when a defendant raises such a claim.

Rather, the law requires the trial court to conduct some type of inquiry into the underlying factual basis, if any, of a defendant’s pro se post trial claim of ineffective assistance of counsel.

Specifically, the trial court must conduct an adequate inquiry, that is, inquiry sufficient to determine the factual basis of the claim.

If the trial court determines that the claim lacks merit or pertains only to matters of trial strategy, then the court need not appoint new counsel and may deny the pro se motion.

However, if the allegations show possible neglect of the case, new counsel should be appointed. In making the inquiry, some interchange between the trial court and trial counsel regarding the facts and circumstances surrounding the allegedly ineffective representation is permissible and usually necessary in assessing what further action, if any, is warranted on a defendant’s claim.

Accordingly, the trial court is permitted to inquire of trial counsel about the defendant’s allegations.

Likewise, the court is permitted to discuss the allegations with defendant.

Lastly, the trial court is permitted to make its determination based on its knowledge of defense counsel’s performance at trial and the insufficiency of the defendant’s allegations.

Here, the Illinois Supreme Court held that, when a defendant brings a clear claim asserting ineffective assistance of counsel, either orally or in writing, this is sufficient to trigger the trial court’s duty to conduct a Krankel inquiry.

The court agreed with defendant in saying that the whole point and primary purpose of the preliminary inquiry is to give the defendant an opportunity to flesh out his claim of ineffective assistance so the court can determine whether appointment of new counsel is necessary.

Plus, judicial economy is served by holding an express claim of ineffective assistance of counsel is all that is necessary to trigger a Krankel inquiry.

The goal of Krankel is to facilitate the trial court’s full consideration of a defendant’s pro se claims of ineffective assistance of trial counsel and thereby potentially limit issues on appeal.

Moreover, by initially evaluating the defendant’s claims in a preliminary Krankel inquiry, the circuit court will create the necessary record for any claims raised on appeal. Absent such a record, as in the case at bar, appellate review is precluded. The inquiry is not burdensome upon the circuit court, and the facts and circumstances surrounding the claim will be much clearer in the minds of all involved when the inquiry is made just subsequent to trial or plea, as opposed to years later on appeal.

A full blown Krankel procedure is limited to post trial motions.

So general concerns that full blown inquiries will be triggered each and every time a defendant claims ineffectiveness are not a concern.

After a trial, in a post trial motion the purpose of the preliminary inquiry is to ascertain the underlying factual basis for the ineffective assistance claim and to afford a defendant an opportunity to explain and support his claim.

In this way, the circuit court will have the necessary information to determine whether new counsel should be appointed to argue the claim of ineffective assistance of counsel.

A defendant need only bring his claim to the court’s attention, post trial, whether orally or in writing.

Here, defendant properly filed a pro se petition to withdraw his guilty plea and vacate sentence in which defendant claimed he received ineffective assistance of counsel.

Despite this, the circuit court never addressed defendant’s petition. Defendant was not present at the post trial hearing and, therefore, was unable to ask the court to rule on his petition.

Reversed and remanded for a preliminary Krankel inquiry.

People v. Jindra, 2018 IL App (2d) 160225 (July).

People v. Hernandez, 2017 IL App (2d) 150731 (January). Episode 306 (Duration 9:04)

Defendant is accountable for this 7 kilogram heroin deal (he did the heat run).

Defendant was tried on the theory that he was accountable for the actions of his father and brother who had conducted a 7 kilogram heroin drug deal in a Wal-Mart parking lot.

Defendant drove a seperate car to the parking lot and parked it in a way that allowed him to act as a “look out.”

The trial court found defendant guilty.

The court noted that it was undisputed that a drug transaction occurred, the only question being whether defendant knowingly participated in it or was merely present.

The court then extensively recounted the evidence and concluded that defendant was a knowing participant.

Had the evidence of the drug delivery itself been the only evidence, the court stated, it might well have been insufficient to prove that defendant knowingly participated.

However, the State presented extensive evidence of the events preceding it. The court referred to evidence of the heat run, noting that there was:

“...inexplicable stopping, pulling over, pulling forward, turning around, coming back, going north of the home, going south of the home, crossing the river in Elgin on the one side only to then turn around and come back, and then to park the vehicle with no apparent reason other than to somehow disconnect the vehicle from the address by parking down the street and around the corner. *** All of which leads to the conclusion that the defendant knew that he needed to know if he was under surveillance or [if] that vehicle was under surveillance. It’s the only viable explanation, the only reasonable inference to be drawn from that. Rather this is not like you drove around the corner and re parked [sic] the car. He drove a considerable distance over a considerable period of time looking for any law enforcement surveillance.”

The court then recounted the evidence that defendant drove to a condominium complex in Elgin and that his car emerged in tandem with another car containing defendant’s father and brother.

The court found it significant that the other two men were defendant’s close relatives, rather than “two individuals who may or may not have some connection to him.”

“So the question is, does all of that evidence show that defendant was merely present and in some sort of coincidental fashion with his father and his brother doing the seven kilogram transaction, and that he did not know, and did not attempt to aid or abet them in the commission of this offense, and that he was merely as was suggested on his way to join them for a meal and this was done along the way. *** There is no innocent explanation for why the three would be traveling from Elgin to the restaurant in two separate cars. There’s no innocent explanation why he would position his car[ ] the way he did in relation to the transaction, the reasonable inferences and positions of his vehicle so as to act as the lookout, to lookout for any potential problems. The evidence was that each of the three individuals, the father, the brother and the defendant all had two cell phones and likely could communicate in regard to the use of any of those cell phones.”

A defendant’s intent may be inferred from the nature of his or her actions and the circumstances surrounding the criminal conduct.

Words of agreement are not necessary to establish a common purpose to commit a crime, and accountability may be established through a defendant’s knowledge of and participation in the criminal scheme, even though there is no evidence that he or she directly participated in the criminal act itself.

However, mere presence at the scene of a crime, even when joined with flight from the scene or knowledge of the crime, is insufficient to establish accountability.

“Accountability focuses on the degree of culpability of the offender and seeks to deter persons from intentionally aiding or encouraging the commission of offenses.”

Here, the evidence sufficiently proved that defendant served as a lookout while his father and brother conducted a drug transaction.

The police drug expert described how defendant conducted a heat run, driving a circuitous route around Elgin with no apparent destination in mind.

Participating in a heat run has been recognized as an important piece of evidence that a defendant was knowingly involved in a drug transaction.

Additional evidence showed that, when defendant returned from the heat run, he parked more than a block away from the house, although parking was available closer to the house.

Several hours later, he left the house with another man and drove to a condominium complex in Elgin.

Three men left the complex in two cars and drove in tandem, in a circuitous route, to a Wal-Mart parking lot.

The cars parked several spaces from each other, with defendant parking in a spot where he could see anyone approaching.

The men in the other car were met by another man.

They gave him a black bag that later proved to contain heroin.

Afterward, the three men again drove in tandem to a restaurant.

As the trial court observed, it is difficult to imagine any legitimate purpose for such activity.

Had they merely been running an innocent errand, there was no need to drive in two separate cars from Elgin to a Wal-Mart in Addison, park in the parking lot without ever entering the store, and then drive back toward Elgin to a restaurant in Hanover Park.

Additional evidence showed that defendant possessed two cell phones.

Moreover, the car he was driving contained a hidden compartment that could have been used for hiding drugs. All of these factors point to defendant’s knowing participation in the drug delivery and render extremely unlikely any innocent explanation for his conduct.

The trier of fact is not required to disregard inferences that flow from the evidence, nor is it required to search out all possible explanations consistent with innocence and raise them to a level of reasonable doubt.

Indeed, it is highly unlikely that two of defendant’s close relatives engaged in a transaction involving drugs worth more than $1 million while defendant, who was in close proximity to them the entire time, was completely uninvolved.

The fact that no physical evidence directly tied defendant to the drug transaction is not fatal. The detective's’ testimony regarding defendant’s actions was sufficient to establish his knowledge of, and participation in, the transaction.

People v. Brown, 2017 IL App (3d) 140907 (January). Episode 305 (Duration 3:42)

Defendant entitled to more credit for time served because he was in jail on another matter in a different county when the new charges and arrest warrant were issued.

Defendant was in Cook County Jail when they charged him with a home invasion in Will County.

41 Days later they transport him to Will County.

When he plead guilty to the Will County case he received credit for time served for all the time he was detained in Cook minus the 41 days.

Defendant was charged and a warrant was issued while defendant was in the custody of Cook County. Defendant never posted a bond on the warrant.

He says he is entitled to credit beginning when the warrant was issued.

The Unified Code of Corrections states, that "[an] offender shall be given credit on the determinate sentence or maximum term and the minimum period of imprisonment for the number of days spent in custody as a result of the offense for which the sentence was imposed." 730 ILCS 5/5-4.5-100(b).

Sentencing credit for time served is mandatory and a claim of error in calculating such credit cannot be forfeited.  

The reviewing court said he was in simultaneous custody for his Cook and Will cases starting from the date Will County issued the charges and their warrant.

An offender who is in simultaneous custody on two offenses is entitled to presentence custody credit on the newer offense beginning on the date he or she was charged and became subject to arrest.

Therefore, defendant is entitled to an additional 41 days of presentence custody credit.

In People v. Robinson, 172 Ill. 2d 452, 463 (1996), the court determined that a defendant is entitled to sentencing credit for both offenses when he is incarcerated on one charge and his bond is withdrawn or revoked on another charge as he is in simultaneous custody on both charges.

This court has extended the Robinson rule to give sentencing credit to a defendant at the time the defendant is charged and the arrest warrant is issued.

But the Fifth District has a case saying the warrant must be served before defendant can start to accrue credit. See People v. Seesengood, 266 Ill. App. 3d 351, 360 (1994).

Episode 234 - People v. Nesbit, 2016 IL App (3d) 140591 (September) (This Defendant Is Not Entitled To Credit Because He Never Revoked The Bond)

People v. Heller, 2017 IL App (4th) 140658 (January). Episode 304 (Duration 5:23)

Use this modified IPI 3.14 when other crimes evidence is admitted in a domestic battery pursuant to 725 ILCS 5/115-7.4.

Defendant punched his ex-wife in the face 10 times and told her he would “slit my throat”.

In the trial the victim recanted. She testified nothing happened the night of the incident.

The state impeached here with a recorded statement she made to police. On the recording, she was seen and heard telling police that defendant sat on top of her while she was on the bed and choked her twice—once using his hands and once using his forearm.

The victim also told police that defendant punched her in the chest and jaw.

In this domestic battery the state admitted a prior domestic battery pursuant to 725 ILCS 5/115-7.4.

The other-crimes evidence may be introduced for any relevant purpose, including to establish the defendant’s propensity to commit the charged offense.

As required by section 115-7.4, the trial court must—as with any evidence—balance the probative value of the proffered evidence against its prejudicial effect. 725 ILCS 5/115-7.4(b).

In conducting that balancing test, the court should consider, in particular, the other crime’s

(1) proximity in time and
(2) degree of factual similarity to the charged offense,

in addition to any other relevant facts and circumstances.

To be admissible under section 115-7.4, the other-crimes evidence must bear merely “general similarity” to the charged offense.

In this case, the other crime and the charged offense were similar enough to support admitting the other-crimes evidence.

During both alleged offenses, defendant positioned himself on top of his victim and struck her on the face.

In addition, both offenses were a reaction by defendant to the prospect of another romantic partner being involved with the victims, who had both been romantic partners with defendant.

Both attacks occurred in the home of the victim.

The differences between the offenses highlighted by defendant are not so significant as to bar the other-crimes evidence.

Defendant points to the following differences to support his argument that the other-crimes evidence should not have been admitted: the charged offenses involved choking instead of punching; defendant was married to the other crimes victim but merely dating this victim; the incident with his ex wife resulted from a long argument, while the attack on his finance was spontaneous; a child was present during the attack on the ex, but nobody witnessed the incident with this victim.

Defendant’s acts of violence both resulted from the possibility that his victims were involved romantically with another person.

During both incidents, defendant responded to that perceived threat by violently assaulting his victim in her home. Those key facts established a level of similarity between the offenses that is not undone by the minor differences noted by defendant.

The trial court did not abuse its discretion by admitting the other-crimes evidence.

Further, the State did not focus unduly on the other-crimes evidence, such that the trial became a “mini-trial.” Instead, the State properly focused its case on both the other-crimes testimony and the impeachment of the victim with her prior inconsistent statements.

The trial court’s decision to admit the evidence was not arbitrary, fanciful, or unreasonable.

A modified IPI 3.14 is recommended.

Other-crimes evidence admitted pursuant to section 115-7.4 of the Code (725 ILCS 5/115-7.4) may be considered by the jury for any relevant matter, including the defendant’s propensity to commit the charged crime.

A recent unpublished order from the First District illustrates an example of how to adapt IPI Criminal 4th No. 3.14 to instruct the jury on the proper use of other-crimes evidence admitted pursuant to either section 115-7.4 or section 115-7.3 of the Code.

In People v. Banks, 2016 IL App (1st) 131009, ¶ 116, the trial court gave the jury the following instruction concerning other-crimes testimony admitted pursuant to section 115-7.3 of the Code:

“Evidence has been received that the Defendant has been involved in an offense other than those charged in the indictment. This evidence has been received on the issue of the Defendant’s propensity and may be considered by you only for that limited purpose. It is for you to determine what weight should be given to this evidence on the issue of propensity.”

The instruction given here was wrong but harmless.

In this case, the jury instruction informed the jury that the other-crimes evidence could be considered only “on the issues of the factual similarity and proximity in time.”

That instruction was incorrect.

The issues of factual similarity and proximity in time are to be considered by the trial court when determining whether the other-crimes evidence should be admitted. Once admitted, the evidence may be used by the jury for “any relevant matter.”

To say that the evidence may be used by the jury only on the issues of factual similarity and proximity in time confuses the role of the jury with that of the trial court.

This is the January 2017 Illinois criminal case law audio summary. Episode 302 (Duration 16:53)

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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 don't do. That means staying on top of the important opinions.

The January 2017 round-up is 16:53 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 cases 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. Day

You know how I always say DUI litigants win a case at the trial level and the appellate court comes along and snatches away the victory? Well it happened again. WRONG! Defendant actually wins at the trial level AND the appellate level by demonstrating the SFST’s were unreliable. Get this one in your DUI binder right away.

2. People v. Soto

When exactly does the the taint of a Mirandaless confession wear off? Does it take hours? or days? This defendant is reinterviewed in the same interrogation room with the same officer’s present. The opinion discusses curative measures like a substantial break in time and changing circumstances. Interestingly, defendant was homeless and was allowed to sleep at the police station during the investigation!

3. People v. Edwards

Here, a 17 year old with documented mental illness who was off his meds, nonetheless gives a 100% voluntary confession. He read at a fifth grade level, was hospitalized previously for mood disorder, bipolar disorder, and depression.

4. People v. Anderson

If you really want to use an eyewitness identification expert in your case then you better see how trial courts are distinguishing People v. Lerma.

5. People v. Biagi

That didn’t last long. This DUI litigant won at the trial level then lost at the appellate level. The trial judge was wrong to interpret flashing overhead lights as a show of force. Hmmm?

6. People v. Viramontes

Defendant’s codefendant had documented mental health issues. The state had her records. Defendant wanted them. State said "no". Defendant used this often overlooked rule to easily get the records.

7. People v. Jones

Speaking of mental health records, this time defendant wanted to get his hands on the victim’s mental health records. However, defendant did not completely follow through with the rule.

8. People v. Heller

Are you remember to give a modified 3.14 when they bring in other crimes in a domestic battery? The IPI is wrong.

9. People v. Hernandez

How a “heat run” meant this defendant was accountable for a 7 kilo deal even though he was not the buyer or the seller of the smack.

10. People v. Brown

Counting days ain’t the most exciting thing we do, but if you can help your client get out 41 days sooner you can’t pass that up. Use this case to make sure you get every day he’s entitled to.

Don't leave without downloading your MP3 of the January 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 cases released this month. To hear what you missed click below. 

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

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Subscribe: iTunes | Google Play | Android | RSS | Download

iTunes Google Play Android RSS

Download

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. 

Episode 301 (Duration 1:01:21) features an inside view on what judges really think. 

Retired Judge Allen Anderson provides useful insight both new and experienced criminal law attorneys will find extremely valuable.

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How do you get a judge to do what you want and dominate your courtroom?

Show Me The Secret Now

Show Me The Secret.

Before I left the Kane County State's Attorney's Office my last assignment was in courtroom 311 before Judge Allen Anderson. 

Judge Anderson was one of those judge's that just made you better. I like to think there is only 2 things to do when you are in front of a judge like Judge Anderson. 

You either:

1. Grow as an attorney and get better
2. Or you complain about "all the work" 

I like to think I went with option 1.

In 1972 Allen Anderson was sworn in as an Illinois attorney.

He graduated from the John Marshall Law School in Chicago, and was admitted before he had even taken the LSAT.

By January of 2000 he was sworn in as a Kane County, Illinois Judge. 

✓ (14:11) The single most important ability that stood out and really separated the best attorneys from the rest of the herd. The most experienced courtroom litigators could do this one thing consistently and always improved their clients chances of winning the best possible outcome.

✓ (18:38) Discover the kind of attorney the judge respected the most and appreciated having in his courtroom. These were not always the most talented or skilled attorneys.

✓ (20:45) The Judge explains how police officers, and for that matter all other witnesses on the stand, could have been more effective. (Hint: 100% of the blame goes to the attorney when this wasn't done. There is a super simple remedy you can start implementing right away.)

✓ (25:20) Talking to the jury after a trial was one of the most enjoyable parts of being a judge. Find out the most common question the jury had for the judge, how he answered it, and how the Judge feels about our jury system.

✓ (28:50) What to do if you want to be a great trial attorney. The best lawyers in front of a jury were rarely the most flamboyant or animated attorneys. The judge knew he had an amature on the case when he saw this.

✓ (33:03) The Judge shares deep insight and raw experience extremely helpful in deciding between the a bench or a jury trial. Any attorney who tries cases will appreciate this frank discussion on when it's best to ditch the jury.

✓ (36:49) "One size doesn't really fit all." Listen up: The Judge explains how rational judges think about sentencing. If you really want to make a difference at sentencing you and your client can do one thing. Character witnesses have their place, but there's something way more effective you can be doing that gives you the best shot at keeping your client out of prison. Plus, the Judge reveals an underutilized resource that can be having a huge impact in your sentencing hearings right now.

✓ (39:44) Sometimes well thought out and thourough legal briefs hurt your case. Sometimes citations and resources up the yazoo just don't help. There is a way to tell if your research and argument is good enough. This advice alone can sky rocket your litigation results and save you priceless research time. (Hint: Judges actually read, actively weigh, and appreciate your written arguments and case citations.)

✓ (40:52) How to know if the criminal law is for you.

Case law mastery is crucial to zealous and effective advocacy.

I've come to believe that steady, persistent attention the cases can take any attorney to the next level. 

If you're interested in taking the first step towards mastering your Illinois criminal courtroom then hit the link below.

How do you get a judge to do what you want and dominate your courtroom?

Show Me The Secret Now

Show Me The Secret.

People v. Edwards, 2017 IL App (3d) 130190-B (January). Episode 300 (Duration 5:42)

This 17 year old's confession was voluntary even though he had a fifth grade reading level, suffered from various mental disorders, and that the investigating officers did not allow him to speak to his mother.

Defendant executed a victim during a home invasion.

Defendant was sentenced to 90 total years. He and a co defendant broke into a home to steal drugs and money. Defendant put a pillow over the face of the man and shot and killed him.

He did the same thing to the woman but she did not die.

Prior to trial, defendant filed a motion to suppress, claiming his confession to police was involuntary based on the fact that he was:

• 17 years old at the time
• had a fifth grade reading level
• suffered from mood disorder
• bipolar disorder
• and depression
• not taking his Depakote (prescribed medication)
• in special education classes and that
• the investigating officers did not allow him to speak to his mother or another concerned adult

despite his request to do so.

The trial court denied the motion.

Illinois courts have long recognized that receiving a confession from a juvenile is a “sensitive concern.”

As a consequence, the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.

Thus, in determining whether a juvenile’s confession was voluntarily given, relevant considerations include

(1) the juvenile’s age, intelligence, background, experience, education, mental capacity, and physical condition at the time of questioning;
(2) the duration of the detention, including whether the police physically or mentally abused the juvenile or employed trickery or deceit in obtaining the confession; and
(3) whether the juvenile had an opportunity to speak with a parent or other concerned adult prior to or during the interrogation, including 13 whether the police prevented or frustrated such opportunities.

No single factor is dispositive; rather, the courts must consider the totality of the circumstances surrounding the confession.

The trial court thoroughly and methodically considered the factors of...

• defendant’s age
• intelligence
• background
• experience
• mental capacity
• education and
• physical condition
• at the time of questioning.

Defendant was no wide-eyed, 17-year-old that appeared immature.

Quite the opposite, defendant responded appropriately to questioning and was articulate, both during the interview and in his testimony during the suppression hearing.

While there was some allusion to force and deception on the part of officers in Westmorland, there was no such behavior exhibited by officers here.

The officers here were all trained juvenile officers.

Since this case was an “adult” case, the police did not have to contact his mother.

The reviewing court side swiped the sentencing issue by noting that defendant was attacking the minimum sentence of 76 years, but he did not get the minimum.

He got more than the minimum. The court rejected defendant’s attempts to attack the constitutionality of sentences he did not receive.

Defendant received discretionary sentences. Kind of a weird way to handle this issue.

Why don’t they just say after balancing the crime with his history that he was not entitled to anything less?

Episode 210 - In re S.W.N., 2016 IL App (3d) 160080 (July)(This Voluntary Confession is Suppressed, Minor With IQ 70)

People v. Viramontes, 2017 IL App (1st) 142085 (January).
People v.  Jones, 2017 IL App (1st) 143403  (January) Episode 299 (Duration 5:53)

Defendant has a right to in camera inspection of mental health records, but he has to ask for it.

Defendant and his codefendant robbed two ladies.

He swung his bat at the first victim, striking her in the head.

He then struck the other victim, also hitting her in the head.

He then struck the first victim a second time in the neck before making off with their valuables.

Both victims spent weeks in the hospital and suffered permanent injuries. One of the victim’s injuries were so extensive she will require 24-hour care for the rest of her life. He was convicted of 2 counts of attempt murder and armed robbery.

They were caught because they used the victim’s phones and credit cards.

Defendant challenges the trial court’s decision to limit the disclosure of his codefendant’s mental health records.

It had become known to the defense that she was taking psychotropic drugs and had recently been evaluated by Forensic Clinical Services.

Prior to trial, the trial court conducted an in camera review of all of Cruz’s mental health records.

The court determined several more recent records were discoverable. The court refused to tender the older mental health records.

On appeal, defendant contends he was entitled to all of Cruz’s mental health records in order to adequately test her credibility.

It is well established under Illinois law “evidence of a witness’ mental condition is admissible to the extent it bears upon the credibility of the witness’ testimony.”

Illinois supreme court rule 415(f) provides a procedure for allowing documents reviewed in camera to be a part of the appellate record. Ill. S. Ct. R. 415(f).

Rule 415(f) provides:

“(f) In Camera Proceedings. Upon request of any person, the court may permit any showing of cause for denial or regulation of disclosures, or portion of such showing, to be made in camera. A record shall be made of such proceedings. If the court enters an order granting relief following a showing in camera, the entire record of such showing shall be sealed, impounded, and preserved in the records of the court, to be made available to the reviewing court in the event of an appeal.”

A defendant need only file a motion pursuant to Rule 415(f) before the trial court in order to ensure the documents which were reviewed in camera are available to the appellate court.

A defendant has the responsibility to ensure compliance with Rule 415(f).

A review of the record that is before this court shows no abuse of discretion.

After receiving all of the mental health records, the trial court conducted an in camera review in the presence of a court reporter. The trial court proceeded to identify each record it was viewing, detailing the nature of the record and the reason it was or was not being tendered to the defendant.

The court found many of the older records contained irrelevant information.

Further, the court concluded relevant material in the older records was contained in the disclosed material.

The trial court’s statements on the record indicate the vast majority of the records concerned depression, anxiety, and an eating disorder, none of which would be relevant to testing Cruz’s credibility.

See 725 ILCS 5/115-7.1 - Court may not order mental examination of sex victim.

"Except where explicitly authorized by this Code or by the Rules of the Supreme Court of Illinois, no court may require or order a witness who is the victim of an alleged sex offense to submit to or undergo either a psychiatric or psychological examination."

Defendant was convicted of aggravated domestic battery for stabbing his girlfriend in the chest.

He claims his constitutional right to confront her were violated when the trial court denied his request to admit her mental health records.

As a result, he was precluded from probing her history of mental illness during cross-examination.

These mental health records, however, are not part of the record on appeal.

The trial judge did receive the records and held that were not relevant to any of the current allegations against defendant. I don't see how in any way they would be helpful to either party.

At the hearing on the motion, counsel argued that the defense at trial would be that the victim stabbed herself, and her mental health records would help us determine her mental state and to possibly lead us to any other records in preparation for confronting the victim at trial.

The trial court noted that the records were from 2009, and detail an incident that occurred four years prior to the allegations that are before me.

And although the complaining witness did in fact receive that mental health treatment for a short period of time, it ended in 2009 with respect to that particular incident. Nothing about that incident seems to me to be in any way relevant to the incident at hand here.

On cross-examination, the victim was asked if she had been diagnosed with bipolar disorder. She answered, Wrong.

I don't know how you;all diagnosed me with that because I'm not bipolar and they cannot make no diagnosis off of me.

The trial court sustained the State's objection and held a sidebar to hear argument on the issue.

Defense counsel argued that the defense's theory is that the victim stabbed herself, and the medical records showing she had been treated for bipolar disorder is relevant to their theory because it would show her state of mind at the time this stabbing occurred.

This exchange followed:

THE COURT: Do you have any reason to believe by way of evidence that [she] stabbed herself.

MS. PAYETTE [defense attorney]: Other than there's two people in the room and I have strong medical evidence to show that [defendant] is physically incapable of doing it. I think that that would be sufficient, Judge.

THE COURT: So your answer is no, you don't have any evidence that you're going to be putting on?

MS. PAYETTE: Not that I'm going to be putting on, Judge.

THE COURT: Your objection will be sustained. The trial court viewed the records in camera on the State's motion.

Illinois Supreme Court Rule 415(f) (eff. Oct. 1, 1971) states that if the court enters an order granting relief following a showing in camera, the entire record of such showing shall be sealed, impounded, and preserved in the records of the court, to be made available to the reviewing court in the event of an appeal.

It is the defendant's burden, as the complaining party, to request that the records involved are sealed, impounded, and preserved for appeal.

Absent a request for such compliance, any deficiency in the record will be attributable to that party.

People v. Pepitone, 2017 IL App (3d) 140627 (February). Episode 298 (Duration 4:34)

Third District finds the charge of being a child sex offender in park to be facially unconstitutional.

Defendant was walking his dog on a public park.

He has a prior predatory criminal sexual assault of a child conviction.

He came to the police's attention because he parked across 3 parking spots.

He was convicted of being a sexual offender in a public park (720 ILCS 5/11-9.4-1(b) - A class A misdemeanor for first offense).

Defendant challenges the constitutionality of the charge and asks whether it is a reasonable means of achieving the legislature’s stated goal of protecting users of public parks from child sex offenders and sexual predators.

His claim is that section 11-9.4-1(b) sweeps too broadly and must, therefore, be struck down.

Where the statute does not affect a fundamental constitutional right, the test for determining whether the statute complies with substantive due process is the rational basis test.

To satisfy this test, a statute need only bear a rational relationship to the purpose the legislature sought to accomplish in enacting the statute.

Pursuant to this test, a statute will be upheld if it bears a reasonable relationship to a public interest to be served, and the means adopted are a reasonable method of accomplishing the desired objective.

To pass constitutional muster under rational basis review, a statute must not be arbitrary or unreasonable.

Section 11-9.4-1(b) of the Criminal Code of 2012 provides that:

“[i]t is unlawful for a sexual predator or a child sex offender to knowingly be present in any public park building or on real property comprising any public park.”

720 ILCS 5/11-9.4-1(b).

Other challenges to this law that have been struck down under a violation of due process claim and have not addressed the rational basis directly.

The court found the lack of any culpable mental state and the reach to countless types of innocent conduct, like say, walking a dog to be very problematic.

In addition, the instant statute cannot be reasonably construed as aimed at preventing a substantial step toward the commission of a sex offense against a child or any offense that would result in an individual qualifying as a sexual predator (see 730 ILCS 150/2(E).

Mere presence in a public park building or public park, without more, is not unlawful conduct.

The previous version of this law was different.

The predecessor statute not only limited the prohibition against being in the park to times when children are present on the premises, it also required that the offender “approach, contact, or communicate with” the child.

By contrast, the sweep of the current iteration of the statutory prohibition is extraordinary. At most, section 11-9.4-1(b) could be premised on a vague notion that a child or other “target” may be present in a public park building or on public park property.

But the presence of such a person in a public park building or public park is certainly not guaranteed, and, in light of the particular circumstances, may not even be likely.

Section 11-9.4-1(b) is an outright ban on all individuals with certain sex offense convictions from public park buildings and public park property without any requirement that anyone—particularly a child—be actually, or even probably, present.

The statute also obviously makes no attempt to assess the dangerousness of a particular individual.

Further, the statute also criminalizes substantial amounts of innocent conduct, including the walking of a dog.

As appellate counsel for the defendant pointed out during oral arguments, the list of activities that routinely occur in public park buildings or on public park property, and in which individuals subject to this statute’s ban cannot partake is extensive.

These can include:

• attending concerts
• picnics
• rallies
• Chicago Bears games at Soldier Field
• Expeditions to the Field Museum
• The Shedd Aquarium
• The Art Institute
• The Adler Planetarium or
• The Museum of Science and Industry

all of which are public buildings on park land; bird-watching;  photography; hunting; fishing; swimming at a public beach; walking along riverwalks; cycling on bike trails; hiking at Starved Rock; and the list goes on and on.

We believe that this statute contains the type of overly broad sweep that doomed other statutes.

In those other cases, statutes that potentially punish innocent conduct violate due process principles because they are not reasonably designed to achieve their purposes.

The court held that section 11-9.4-1(b) is facially unconstitutional because it is not reasonably related to its goal of protecting the public, especially children, from individuals fitting the definition of a child sex offender or a sexual predator.

Nor is it drafted in such a way as to effect that goal without arbitrarily stripping a wide swath of innocent conduct and rights he has as a citizen and taxpayer from a person who has paid the penalty for his crime and is compliant with “collateral consequences” requirements established by the General Assembly.