Kane County Nuggets

People v. Taylor, 2016 IL App (1st) 141251 (October). Episode 253 (Duration 6:57)

Remanded for new sentencing to see if a class 1, sudden and intense passion resulting from serious provocation, sentencing is appropriate for this attempted murder conviction.

Facts

Defendant was convicted of attempted 1st degree murder for shooting his girlfriend 3 times after she sideswiped a car his child was in.

Sentencing

Defendant was sentenced as a class X.

Attempt Murder Mitigation

However, at sentencing and on appeal he argued that he should be sentenced as a Class 1 offender pursuant to section 8-4(c)(1)(E) of the Criminal Code, which reads:

“[I]f the defendant proves by a preponderance of the evidence at sentencing that, at the time of the attempted murder, he or she was acting under a sudden and intense passion resulting from serious provocation by the individual whom the defendant endeavored to kill, or another, and, had the individual the defendant endeavored to kill died, the defendant would have negligently or accidentally caused that death, then the sentence for the attempted murder is the sentence for a Class 1 felony.”

720 ILCS 5/8-4(c)(1)(E).

“Accidental or Negligent”?

The trial court found this section inapplicable because it did not believe that had the victim died, Taylor's conduct could have been described as accidental or negligent.

In other words, the trial court understood the statute to require Defendant to prove that he intentionally attempted to kill due to serious provocation, but that, had he been successful, the killing would have been deemed negligent or accidental.

This interpretation is incorrect.

Analysis

Here, the statutory language clearly addresses two separate scenarios.

First, it addresses the scenario where the defendant attempts to kill the one who provoked him, and second, it addresses the “transferred intent” scenario where the defendant specifically intends to kill his provoker, but instead takes a substantial step towards killing another, whose death, had it occurred, would have been deemed negligent or accidental.

The trial court's interpretation would make it impossible for a defendant convicted of attempted murder to obtain a reduction in classification based on provocation and render the statute meaningless.

Attempted murder requires a showing that a defendant had the specific intent to kill, which is fundamentally incompatible with the statutory language providing that if the defendant's victim died, the death would have been deemed negligent or accidental.

Taylor's interpretation of the statute as referring both to the situation where the defendant attempts to kill his provoker as well as the separate situation where the defendant negligently or accidentally acts against another in his attempt to kill his provoker better conforms to legislative intent.

Holding

Defendant's actions stemmed from witnessing the victim drive her car at a speed of 30 to 35 miles per hour into the car carrying his daughter. He was indeed acting under a sudden and intense passion when he shot her. File was remanded for the trial court to determine if defendant was act sufficiently provocated under the law.

People v. Duran, 2016 IL App (1st) 152678 (October). Episode 252 (Duration 8:54)

This traffic stop from its inception was a drug investigation, reasonableness has to take that into account.

Illinois criminal law attorney Jeffrey Hall from Peoria helped draft the new cannabis related DUI subsection that appeared in the Illinois Cannabis decriminalization law. (Or should I say, "Illinois's version of decriminalization"?)

In Episode 251 (Duration 42:00), Jeff lets us know what is happening with this new law since it passed.

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Jeffrey Hall

Jeffrey R. Hall is a former Assistant State's Attorney from Tazewell County, Illinois. He has been practicing criminal law since 2004. Currently, Jeff continues to concentrate his practice on criminal law and driver's license issues. He is a partner of Hall, Rustom & Fritz, LLC. 

Topics Covered

Jeff really rolled up his sleeves and provided valuable insight into the following general topics:

• Recap of specific changes to the law
• Easy analysis on what happens to charges in the system before a major law change happens
• Provides a sample motion for practitioners
• Highlights problems and weaknesses with the new law
• Addresses the new Illinois Supreme Court Rules on the topic

"Can't Miss" Discussion

Hardcore practitioners are going to have listen carefully. Jeff provides a sample motion and explains how to use it. The sample motion, when filed, helps to ensure defendant's can benefit from the significant changes to possession of cannabis charges. Not only can you find the sample motion on Jeff's blog, you can also download it below.

Additionally, Jeff talks about a helpful tip for anyone fighting off a cannabis related DUI driver's license suspension. Make sure to listen in to capture the benefits of all this information pertaining to the legislation.

Download Jeff's Sample "Motion For Admonishments...And Notice Of Election" 

Download this sample motion Jeff uses to ensure his clients charged with possession of cannabis before the law change are able to benefit from the change in the law.

Add To My Library Now

Download This Sample Motion Now!

Important Links

• Attorney Jeffrey R. Hall
• Jeff Hall's Blog
• Hall, Rustom & Fritz, Inc.
• People v. Glisson, 202 LL.2d 400 (2002) (application of new laws)
  
• Attorney Juliet Boyd of Boyd & Kummer, LLC
• 625 ILCS 5/11-501.2(b) (chemical and other test presumptions)
• 625 ILCS 5/11-501(a)(7 ) (new cannabis related DUI)
• Ken Wang Summary of Illinois Cannabis Decriminalization Law
• Illinois Supreme Court 587 (civil notice to accused)
• Illinois Supreme Court 588 (civil fines and penalties)
• People v. Johnson, 197 Ill.2d 478 (2001) (bad warning to motorist DUI case)

Here's What Else You'll Miss By Not Listening...

✓ Easy to remember way to quickly figure if new laws are applied retroactively or not (assuming legislature don't make it clear in the language of the new law itself).

✓ The most creative argument I've seen so far on why courts should not allow cannabis related DUIs charged before the law change to continue after the law change. (Idea here is attributed to Attorney Juliet Boyd.) - Jump to minute 5:08

✓ A great discussion on on a sample motion you can file to ensure your clients benefit from the new possession of cannabis legislation. Jeff provides practical steps, procedures, and outlines exactly how to structure this kind of motion. He calls it a "Motion to Readmonish & Notice of Election..." -

✓ How some prosecutors are arguing the new cannabis law should not be applied retroactively. Funny, defense attorneys are trying to figure out how to apply the DUI statute retroactively while prosecutors are trying to figure out how to apply none of these new laws retroactively. - Jump to minute 15:34

✓ A sneaky little loophole that can be exploited by police and local prosecutors to completely undo all the intended benefits of the new law, including the ability to automatically expunge a cannabis case from your record. - Jump to minute 18:23

✓ New Illinois Supreme Court Rules intended to help guide how to execute these new laws. Things look nice and rosey...that is if the rules are actually followed. - Jump to minute 22:35

✓ One super easy way one thoughtful prosecutor's office is implementing the new expungement procedure. Apartenly "automatic" really can mean "automatic". Jump to minute 26:10

✓ Behind the scenes access to the wheeling and dealing that lead to the birth of the new cannabis DUI subsection (a)(7). The birth of this subsection was the equivalent of a legislative "ugly baby". Learn how such an imperfect statute could come out of the law making process. - Jump to minute 29:30

✓ A "tricks of the trade" pointer for defense lawyers fighting a cannabis related DUI suspension of driver's licenses. (Hint: These cases are always fact sensitive, but the "warning to motorist" has not been updated yet.) - Jump to minute 33:06

<<< See Also: Ken Wang Interview on The Illinois Cannabis Decriminalization Law >>>

 

People v. Wall, 2016 IL App (5th) 140596 (October). Episode 250 (Duration 5:47)

Police lied to him about a break-in at his home, then tell him to sign the consent form or he'll get arrested.

Illinois Case Law Updates for January 2015. Here are the top Illinois criminal law decisions. Fast and convenient summary of recent Illinois criminal court cases. The Appellate Courts and Illinois Supreme Court had a busy-busy January. Click Here to Download a One-Page PDF of January's Top Cases!    Get Case List Now!

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Sentencing [caption id="attachment_1589" align="alignleft" width="94"] Ill. Sup. Ct.[/caption]

Remanded for resentencing on an old gun conviction before he gun add-ons were fixed.

Public Act 95-688, enacted shortly after Hauschild, amended the armed violence statute so that robbery can no longer serve as a predicate offense for armed violence. But this law did not apply retroactively to cover Defendant's charges. Case was remanded for resentencing so that the parties' expectations can be met as much as possible. People v. Taylor

Search & Seizure [caption id="attachment_1466" align="alignleft" width="94"] Ill. 4th Dist.[/caption]

 

Police need a warrant to bring a drug dog to an apartment front door.

The State argued that Florida v. Harris did not require reversal because that case involved a single story residential home. This court said a home also includes an apartment and Harris is directly on point. People v. Burns

 

[caption id="attachment_1466" align="alignleft" width="94"] Ill. 1st Dist .[/caption]

 

DUI arrest was improper when the officer could not explain why he pulled his gun out and aimed it at the lady.

Defendant was seized without probable cause or reasonable suspicion when the officer approached the driver’s door with his gun drawn. Subsequent field sobriety tests and officer’s observations were suppressed. People v. Bozarth  

Sexual Assault [caption id="attachment_1466" align="alignleft" width="94"] Ill. 1st Dist .[/caption]

 

Remember to check the date of offense on sexual assault cases; the gun add-on may have been void at the time of the crime.

The 15 year additional sentence for the firearm enhancement is stricken because this crime occurred in 2006 when that penalty violated the proportionate penalties clause of the Illinois Constitution. Defendant will do 12 years not 12 plus 15. People v. Lampkins  

[caption id="attachment_1466" align="alignleft" width="94"] Ill. 1st Dist .[/caption]

 

Conviction for aggravated kidnapping does not have to be vacated because the kidnapping was not incidental to the aggravated criminal sexual assault that occurred.

The Levy-Lombardi doctrine says a defendant cannot be convicted of kidnapping where the asportation (carries from one place to another) or confinement of the victim was merely incidental to anothe crime such as robbery, rapr or murder. A court must consider the following factors to determine whether the asportation amounts to the independent crime of kidnapping: "(1) the duration of the asportation or detention; (2) whether the asportation or detention occurred during the commission of a separate offense; (3) whether the asportation or detention is inherent in the separate offense; and (4) whether the asportation or detention created a significant danger to the victim independent of that posed by the separate offense." People v. Johnson  

Evidence [caption id="attachment_1466" align="alignleft" width="94"] Ill. 1st Dist .[/caption]

 

Defendant answered questions in Spanish during his confession. Are the tranlsated transcripts substantive evidence?

Generally, when transcripts of an audio recording are provided the transcripts are not substantive evidence. The recording itself is the evidence and the transcripts are only provided as an aid. However, when the transcripts also translate a foreign language into English then the transcripts do become substantive evidence if it has been established that the translation is a fair and accurate. The defense is always free to challenge any translation with their own translator in court when they see fit. People v. Betance-Lopez

[caption id="attachment_1466" align="alignleft" width="94"] Sup. Ct.[/caption]

 

Trial counsel was ineffective for failing to object to hearsay evidence that Defendant used a bat to hit the murder victim.

Testifying witness said he could not remember what the defendant told him about the murder. The witness’s recorded interview with police is then played. Witness tells police Defendant told him he hit the victim with a bat 30 times. Section 115-10.1 requires that witness have personal knowledge of the crime being described and not just personal knowledge of the conversation about the crime. Supreme Court settled this issue apparently already settled by the appellate courts. Note: the inconsistent statement could not have been impeached by the State either because his testimony did not affirmatively damage the State’s case. See People v. Cruz, 162 Ill. 2d 314, 359-60 (1994). People v. Simpson    

[caption id="attachment_1466" align="alignleft" width="94"] Ill. 1st Dist.[/caption]

 

Trial court erred in admitting highly prejudicial evidence of other crimes and failing to comply with Illinois Supreme Court Rule 431(b), conviction for stalking is reversed.

Other-crimes evidence is objectionable because a jury, upon hearing this evidence, might convict the defendant merely because it feels that the defendant is a bad person who deserves punishment. Even where other-crimes evidence is relevant for a permissible purpose, the circuit court must weigh the prejudicial effect of admitting the other-crimes evidence against its probative value. When facts concerning the uncharged criminal conduct are part of a continuing narrative of the charged criminal conduct, they do not concern separate, distinct, and unconnected crimes. The fight with the victim’s boyfriend was not connected to the stalking charge. The fight occurred 2 hours later and no contact with the stalking victim occurred. People v. McGee   

[caption id="attachment_1466" align="alignleft" width="94"] Ill. 4th Dist.[/caption]

 

Does the silent witness theory of video evidence prevent a narration of what has been recorded including the identity of the defendant?

A casino security employee testified that Defendant and a co-defendant were following the victim in the casino and followed him outside where the victim was robbed at gun-point. The video evidence was properly authenticated under the silent witness theory. Even though the security employee did not personally observe the video that was captured, he could still narrate what was recorded (including the identity of Defendant) because the security employee had some basis for concluding the witness is more likely to correctly identify the defendant from the videotape than the jury. In other words, a lay witness may testify regarding the identity of a person depicted in a surveillance video if there is some basis for concluding the witness is more likely to correctly identify the individual from the videotape than is the jury. The Fifth District has gone another way on this issue. They require a witness's appearance to be different at trial or if the image was unclear. People v. Mister  

[caption id="attachment_1466" align="alignleft" width="94"] Ill. 3rd Dist.[/caption]

 

Trial juidge errored in admitting photographs of drug messages found near the drugs as other crimes evidence against the defendant; drug conviction reversed. 

Drugs, drug paraphernalia and several phones with drug messages are recovered after a search warrant is executed. Defendant and five other adults were present. For the purpose of establishing a proper foundation for admissibility, text messages are treated like any other form of documentary evidence. Here, the only evidence presented by the State to authenticate the text messages was the fact that the cell phone was found in the same house as defendant, albeit in a drawer in a common area, and the fact that some of the messages referred to, or were directed at, a person named "Charles." This was not sufficiet authentication. There were no cell phone records to indicate that the cell phone belonged to or had been used by defendant or anyone else at the residence; there was no eyewitness testimony to indicate that the cell phone belonged to or had been used by defendant or that the messages were being sent to defendant; and there were no identifying marks on the cell phone itself or on the cell phone's display screen to indicate that cell phone belonged to or had been used by defendant (other than possibly the references to "Charles" in the text messages).  People v. Watkins   

[caption id="attachment_1466" align="alignleft" width="94"] Ill. 4th Dist.[/caption]

 

Police mixes all the drugs in one bag and send it to the lab that way.

Trial counsel is ineffective for not figuring out how the testing was done before trial and before he agreed to stipulate to the weight and testing of the drugs. When counsel stipulated he threw away a huge issue for the defendant. When the drugs were mixed it became impossible for the state to prove how much cocaine there really was. People v. Coleman  

Juvenile [caption id="attachment_1466" align="alignleft" width="94"] Ill. 1st Dist .[/caption]

 

Minor cannot appeal his order of supervision because it is not a final judgement.

Illinois Supreme Court rules governing juvenile delinquency proceedings do not provide for appellate review of an interlocutory order in a case that has been continued under supervision. Appeal dismissed. In re Henry B.  

 

[caption id="attachment_1466" align="alignleft" width="94"] Ill. 3rd Dist.[/caption]

 

Unlawful consumption of alcohol by a minor conviction is reversed because the burden that the kid is not drinking under the supervision of a parent is on the State

Officer responds to complaints of a party. She walks around back and onto a deck where there is some drinking going on. Defendant immediately tells her to “Get off my property. You don’t have a warrant to be here.” Ouch. Police established that the defendant was drinking while his mother was present. They did not establish that the mother was not supervising the drinking. People v. Cannon  

Statute of Limitations [caption id="attachment_1466" align="alignleft" width="94"] Sup. Ct.[/caption]

 

Discovery of a financial crimes involves more than just being told by the police that Defendant wrote some checks out; at best this merely raised a suspicion that a crime occurred.

Extended statute of limitations period authorizes a charge one year after a victim discovers the crime or within a year of the prosecutor becoming aware. See 720 ILCS 5/3-6(a)(2). However, section 3-6(a)(2) requires more than mere suspicion of a crime, or even awareness of a loss. Rather, activation of section 3-6(a)(2) requires awareness or knowledge that there has been a violation of a penal statute. The victim in this case did not discover the offense prior to the Adams County State’s Attorney becoming aware of it. People v. Chenoweth  

Sentencing [caption id="attachment_1466" align="alignleft" width="94"] Ill. 1st Dist.[/caption]

 

Convictions for armed robbery and aggravated unlawful restraint do violate one-act, one-crime principles in this case.

This is nice little example demonstrating the King concepts. The robbers order to lie down on the ground and give up their money was one inherent act. It all was one thing. State unsuccessful tried to argue that ordering them to count to 50 after they got the money was a separate act. No it wasn’t. People v. McWilliams  

Prosecutorial Misconduct [caption id="attachment_1466" align="alignleft" width="94"] Ill. 3rd Dist.[/caption]

 

There may be something here.

Defendant has an affidavit from the then 11 year old witness who now is saying (a) that he was related to one of the prosecutors on the case he testified in and (b) someone told him to lie about seeing the victim with a gun. This is proceeding to a second stage post conviction. People v. Haynes  

DUI [caption id="attachment_1466" align="alignleft" width="94"] Ill. 1st Dist.[/caption]

 

The granting of this petition to rescind statutory summary suspension is reversed, suspension is back in effect.

Defendant filed the petition because he did not receive notice of the suspension from the SOS until after the suspension was in effect. He argued this denied him a chance to contest it in court. The trial court agreed saying this was a violation of 625 ILCS 5/11-501.1(g). The appellate court said Defendant received proper notice from the police on the day of his arrest and had more than ample opportunity to challenge the suspension in court before it became active. People v. Morales  

Jury Instructions [caption id="attachment_1466" align="alignleft" width="94"] Ill. 1st Dist.[/caption]

 

Defendant won his self defense case in his murder and attempted murder trial; but the self defense instruction was not given on one count!

Defendant shot and killed one man and wounded another. It was ineffective assistance of counsel for the trial attorney to allow this missing self-defense instruction on the aggravated discharge count. Here, three of the four charged offenses included a self-defense instruction, but the remaining aggravated discharge instructions did not, a rational juror employing elementary rules of logic could—in fact, should—find that omission to be meaningful. This was also plain error. Remanded for new trial. People v. Getter  

Illinois Case Law Updates for February 2015 - Fast and convenient summary of recent Illinois criminal court cases created just for you. Click Here to Access Your February Illinois Case List Now!   Get Criminal Case List Now! This Case List PDF Download is made available for the busy practitioner.

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The Illinois Supreme Court had some things to say about the criminal law. Remember, the case list I created for you features a one page clickable summary of the top February cases AND a short summary of every Februay case.

Also, make sure to subscribe to the podcast and download the audio round-up for February 2015.

Illinos Supreme Court SENTENCING Decisions [caption id="attachment_1589" align="alignleft" width="94"] Il. Sup. Ct.[/caption]

This never happens. Illinois Supreme court upholds trial courts ruling that AUUW (the only non-probationable class 4 felony known to man) is unconstitutional. Go to case.

People v. Aguilar, 2013 IL 112116, is further explained and its limited. Minors may definitely be banned from possessing guns. A FOID requirement is also legal. However, the non-probationable status of 24-1.6(d)(2) mandating prison for 18 year olds or older is void because it references sections that are clearly unconstitutional under Aguilar. Defendant’s misdemeanor conviction stands.  People v. Mosley

[caption id="attachment_1589" align="alignleft" width="94"] Il. Sup. Ct.[/caption]

Illinois Supreme Court says that two separate convictions (for possession of the gun and the bullets in the gun) are proper under one-act, one-crime principles when a Defendant is armed with a loaded gun. Go to case.

Cops take a gun off of Defendant in a gas station store. Defendant is subsequently convicted of armed habitual criminal based on the gun and UUW Felon based on the ammunition in the gun. “Under the plain meaning of this statutory language, the UUW by a felon statute unambiguously authorizes separate convictions when a felon possesses a loaded firearm, a conviction based on the firearm and a conviction based on the ammunition inside that firearm. The language not only criminalizes the possession of any firearm or any firearm ammunition by a felon, but also clarifies that the possession of each firearm or firearm ammunition by a felon constitutes a single and separate violation.” ¶ 36 The charging instrument clearly illustrated the State’s intent to treat Defendant’s conduct as distinct and separate acts. It would be a different story if the indictment merely referred to a “loaded gun.”  People v. Almond

[caption id="attachment_1589" align="alignleft" width="94"] Il. Sup. Ct.[/caption]

Illinois Supreme Court says that People v. White, 2011 IL 109616, does not apply retroactively. Go to case.

White held that when the factual basis for a plea agreement which is accepted by the circuit court establishes that the defendant is subject to a mandatory sentencing enhancement, the court must impose it, even if the plea agreement between the State and the defendant included the condition that the State would not pursue the enhancement. People v. Smith

Professional Responsibility [caption id="attachment_1589" align="alignleft" width="94"] Ill. 3rd Dist.[/caption]

Appellate court reverses trial court's finding that defense attorney had an ethical lapse in judgement. Go to case.

Defense attorney was defending one inmate and talking to another about representation. The inmate who was on the fence solicited the client inmate to commit murder. The State’s Attorney caught wind of this and asked the attorney if the client would wear a wire. Client had already agreed to do this and attorney was only essentially informed that all this was going on. Attorney immediately informs family of murder solicitor that he won’t take the case. Defendant is charged with solicitation of murder and files a motion to suppress the overhead recordings claiming his prospective attorney violated his ethical duties. Appellate court held that it was error to grant this motion because Defendant did not meet his burden in establishing that there was a violation of Rule 1.18 of the Illinois Rules of Professional Conduct. People v. Shepherd

Traffic [caption id="attachment_1589" align="alignleft" width="94"] Ill. 5th Dist.[/caption]

Violation of Rule 552 leads to traffic ticket dismissal; Officer basically admits to systematic and chronic violations. Go to case.

Defendant’s pro se motion to dismiss his speeding ticket was granted after it was filed 4 days after it was issued. Officer said there is a gap because tickets are only brought to the courthouse twice per week. He said it was impossible to file the tickets the next day. The cop said Rule 552 is not a mandate. The circuit court clearly saw there was a clear and consistent violation of a Supreme Court Rule, notwithstanding the “directory” nature of this rule. People v. Geiler 

Accountability [caption id="attachment_1589" align="alignleft" width="94"] Ill. 1st Dist.[/caption]

Summer block party gets out of hand when Defendant and his buddies start shooting all over the place, nonetheless Defendant is not guilty of murder by accountability. Go to Case.

There was no evidence that the bullet that killed the victim came from a gun shot by a person with the same criminal design as defendant. At best all the state showed was that multiple people were committing multiple crimes simultaneously. State choose to go with an accountability murder charge and forego all other charges. That was their mistake. People v. Cowart

Sentencing [caption id="attachment_1589" align="alignleft" width="94"] Ill. 1st Dist.[/caption]

Notice under section 725 ILCS 5/111-3(c) for aggravated kidnapping was not required because the only offense Defendant could be guilty of was a felony. Go to case.

I think something else is happening here. This decision seems to broaden the decision under People v. Easley, 2014 IL 115581, ¶¶ 19, 22-26 into a different space. This court held that when a person commits a domestic battery and they have a prior domestic battery then only a felony conviction is statutorily available. See ¶ 44. Thus, the State was not seeking an enhanced sentence, but rather, the imposition of the only sentence statutorily permissible. This kind of sounds like felonies are becoming “automatic” without any procedural notice by the State. But in Easley, the jury decided on the existence of the prior. Here, the priors were admitted at sentencing. People v. Sumler

[caption id="attachment_1589" align="alignleft" width="94"] Ill. 5th Dist.[/caption]

This mandatory life sentence in a double murder committed by a 15 year old can’t stick without the trial court taking into account the Defendant’s age. Go to case.

Defendant was taking antidepressants, alcohol, and marijuana when he committed the home invasions. In the end though, he basically was caught by the victims during a break in so he shot them. However, Miller v. Alabama, S.Ct. 2455, 2460(2012) requires a remand for new sentencing. Life sentence for a juvenile cannot be mandatory but only discretionary. Voluntariness of juvenile confession also discussed. People v. Baker

[caption id="attachment_1589" align="alignleft" width="94"] Ill. 2nd Dist.[/caption]

Defendant’s attempt to get out of paying the remainder of his restitution simply because 5 years has passed failed. Go to case.

Defendant stole more than $400,000 from elderly malpractice victim. He stopped paying restitution then filed motions to void the trial court's contempt of court finding and purge order. “It is true that under the June 2006 restitution order defendant was not obligated to make additional monthly payments beyond those that were due during the five-year period. But it does not follow that the order became unenforceable as to unpaid amounts that became due during the five-year period.” Also, remember a restitution order gives rise to a judgment lien that is enforceable in the same manner as a lien arising from a civil judgment. See 730 ILCS 5/5-5-6(m); People v. Mitchell, 241 Ill. App. 3d 1094, 1098 (1993) ¶ 7. People v. Bruun

[caption id="attachment_1589" align="alignleft" width="94"] Ill. 2nd Dist.[/caption]

Is there a right to a public hearing on a revocation of probation hearing? Go to case.

Spectors were accused of harassing the State’s witnesses in a probation revocation hearing alleging new criminal conduct. Judge throws them out of court. Defendant did not object at that time. Trial judge’s order stands. Plain-error review is reserved for errors that are clear or obvious based on well settled law. “The pertinent law is not sufficiently settled to permit review under the plain-error rule.” ¶ 11.  People v. Williams

Search & Seizure [caption id="attachment_1589" align="alignleft" width="94"] Ill. 2nd Dist.[/caption]

This illegal pat down does not lead to suppression of evidence (no drugs recovered) but does require vacating a resisting arrest conviction because the officer was not acting in an “authorized” capacity. Go to case.

Defendant was walking on the paved portion of a highway median on a hot day. Cop pulls up on him with overhead lights. Defendant says is talking on his phone, tells cop he is going to McDonald’s and begins to put his other hand in his pocket. Cop grabs the hand and that is when hell breaks loose. Defendant pulls away, taser comes out and Defendant is tazed with no effect once but cop gets him in the leg as he is trying to get away. He then is handcuffed. State argued it was all Defendant’s fault because, “It was defendant who “changed the nature” of the encounter by putting his hand in his pocket and disregarding the officer’s commands.” ¶ 8. Section 720 ILCS 5/7-7 says that a Defendant may not resist an unlawful arrest. However, that section only applies to the actual arrest. Here, Defendant resisted an unlawful pat down. No community caretaking here because Defendant was not in distress (not until the cops started messing with him). People v. Slaymaker

DUI  [caption id="attachment_1589" align="alignleft" width="94"] Ill. 2nd Dist.[/caption]

Defendant’s statutory summary suspension stands notwithstanding the fact the sworn report the officer gave him did not list a date for when the warning was given. Go to Case.

The officer later amended the report that was sent to the SOS. 625 ILCS 5/2-118.1(a) requires written notice of suspension to Defendant. The SOS had enough information to determine that notice was given because “the sworn report listed the date that defendant refused to submit to testing, indicated that notice of the suspension was served on defendant immediately, and stated that it was signed on the same date.” ¶ 14. People v. McLeer

Speedy Trial Violation [caption id="attachment_1589" align="alignleft" width="94"] Ill. 5th Dist.[/caption]

State failed to try Defendant within 120 days after he demanded a speedy trial;  but should all the charges he was facing been dismissed or just the one the state initially elected on? Go to Case.

Trial court dismissed missed all three charges Defendant was being held on. State elected on the DWLR, but did not hold a trial on any of the pending unrelated charges. Nonetheless, Defendant’s right to a speedy trial under 725 ILC 5/103-5(e) was violated for each and every charge he was facing. It was proper to dismiss all of them with prejudice. Tolling under 103-5(e) only occurs if the State actually has a trial on the elected charge within the required time period. The mere election of a charge alone is insufficient for proper tolling. “Thus, section 103-5(e) provides for the tolling of the speedy-trial clock and the additional time as long as the State proceeds to trial or obtains an adjudication of guilt on one of the charges within the initial 120-day period. See generally People v. Quigley, 183 Ill. 2d 1, 14-15, 697 N.E.2d 735, 741-42 (1998).” ¶ 14. People v. Raymer

Evidence [caption id="attachment_1589" align="alignleft" width="94"] Ill. 5th Dist.[/caption]

Murder conviction upheld, crime occurred in 1957, Defendant’s mother’s death wish hearsay that “John did it” ruled harmless error. Go to case.

In 1957 a seven year old girl disappeared from rural Sycamore. Her body was later discovered about four months later. The state of the body made it impossible to determine a cause of death but an autopsy years later found that a “stabbing” could have occurred. The case against Defendant essentially consisted of several jailhouse snitches and occurrences witness who put Defendant in the town the night of the disappearance. Defendant’s mother was disoriented, confused and heavily drugged up the night she died and said, “John did it.” Court also discusses Hearsay Rule 803(16) involving ancient documents. People v. McCullough

[caption id="attachment_1589" align="alignleft" width="94"] Ill. 4th Dist.[/caption]

Pro se defendant allowed his video interrogation to be played unedited which meant the jury heard about his drug use, prior drug sells, and maybe he knows the guys committing all the shootings. Go to case.

The case against Defendant that he sold drugs to a police was so overwhelming, however, that the appellate court didn’t even need to consider if an error occurred. The court noted that proceeding without an attorney in a criminal matter is unwise. Defendant will be held to the same legal standard as an attorney. Also, noteworthy in this case is the notion that it is improper for the sentencing judge to consider that Defendant received compensation for his drug deal because that is an inherent in the offense. See People v. Atwood, 193 Ill. App. 3d 580, 592, 931 N.E.2d 1362 (1990). People v. Scott

Defenses [caption id="attachment_1589" align="alignleft" width="94"] Ill. 3rd Dist.[/caption]

Insanity defense fails. Defendant was convicted of attempted first degree murder for shooting his 12 year old son in the head. Go to case.

Defendant argued he suffered from paranoid schizophrenia and he was unable to appreciate the criminality of his actions. Two experts testified. One testified the Defendant did not appreciated the criminality of his conduct; the other testified that he did. It was harmless error for the State to argue that when Defendant was arrested the doctors found nothing wrong with him. Technically, the jail medical records were used by the experts to form their opinions and those records were not admitted substantively. Defendant’s heavy drinking contributed to court’s finding that this was not a closely balanced case. People v. Tademy

 

[caption id="attachment_1589" align="alignleft" width="94"] Ill. 3rd Dist.[/caption]

In a shooting over a dispute for a location to sells shoot in a parking lot, Defendant’s witnesses testify that Defendant did not do the shooting; some other guy did it. Go to case.

It was not error to deny Defendant’s request for self defense instruction when he did not plead self defense nor was there any evidence by Defendant that he actually shot the victim. Yes, very slight evidence is sufficient to claim self defense. However, when the State’s evidence does not raise the issue it is incumbent on the Defense to do so. That did not happen here. This is another example of a Defendant relying on this over broad language to his detriment. Generally, it is quite hard to have your self defense cake and also deny that you did it. People v. Lewis

[caption id="attachment_1589" align="alignleft" width="94"] Ill. 3rd Dist.[/caption]

Defendant was required to be present at trial in order to claim that there was ineffective assistance of counsel and raise an affirmative defense of entrapment. Go to Case.

Proper to dismiss this postconviction petition. Gang informant in this case actually takes gun clip out of a gun so the Co-Defendant doesn’t actually kill anyone. People v. Montes

Guilty Plea [caption id="attachment_1589" align="alignleft" width="94"] Ill. 1st Dist.[/caption]

Courts continue to go different ways with the issue of admonishing a Defendant on sex registration at the time of a plea. Go to case.

Here, the court held that mandatory sex offender registration as a collateral consequence, rather than a direct one. Here Defendant did not argue that his attorney failed to advise him (so no ineffective assistance claim) but instead argued the trial court failed to admonish him on having to register. Therefore,  the plea court was not required to admonish Defendant in regard to registration as a sex offender, the absence of such admonishment does not render his plea unknowing or involuntary. People v. Cowart

Post Sentence Petitions [caption id="attachment_1589" align="alignleft" width="94"] Ill. 2nd Dist.[/caption]

Court is serious about appeal deadlines. Go to case.

It was proper to dismiss this appeal as untimely even though Defendant was admonished incorrectly on the timing by the trial judge. The rule in People v. Serio, 357 Ill. App. 3d 806 (2005) creates a conundrum for a defendant.  Here the trial court’s consideration of his pro se motion alleging ineffectiveness filed after the court answered the posttrial motion delayed the notice of appeal more than 30 days after the denial of the first posttrial motion. The trial court misadvised Defendant that the time in which he could appeal was tolled when, it was not. “Defendant’s loss of his right to appeal was rooted in incorrect advice from the court; the result here is problematic in that respect. However, we do not have the authority to disregard our lack of jurisdiction; such jurisdiction may be realized only by a supreme court supervisory order.” ¶ 9 People v. Norton

[caption id="attachment_1589" align="alignleft" width="94"] Ill. 1st Dist.[/caption]

Court is really serious about appeal deadlines. Go to case.

Trial court no longer had jurisdiction over Defendant’s case when he filed his claim of ineffective assistance of counsel more than 30 days after the the final judgement. Further, the mailbox rule under Illinois Supreme Court Rule 12(b)(3) does not cover prison mail but only covers U.S. mail. People v. Shines

[caption id="attachment_1589" align="alignleft" width="94"] Ill. 1st Dist.[/caption]

State has no burden to provide effective counsel when Defendant hires private counsel to file a postconviction petition. Go to case.

Defendant abandons all his substantive issues and only argues that his post conviction petition attorney was ineffective for filing later than two years after the denial of the direct appeal. Per People v. Csaszar, 2013 IL App (1st) 100467 100467, ¶ 18, although a pro se defendant has a right to reasonable assistance from appointed counsel, neither the Act nor case law supported the claim that the State was required to provide reasonable assistance of counsel for any petitioner able to hire his own postconviction counsel. , and therefore defendant failed to state a cognizable claim for relief. See also People v. Anguiano, 2014 IL App (1st) 113458, ¶ ¶ 32, 34 for a case saying that the Act does require a reasonable level of assistance from all counsel. People v. Cotto

Jury Trial [caption id="attachment_1589" align="alignleft" width="94"] Ill. 2nd Dist.[/caption]

Juries of less than 12 people are within the sound discretion of the trial court, so no error in denying Defendant's request for a 6 member jury in his double murder trial. Go to case.

Why would you want to waive your jury in a murder trial anyway? Appellate court said that “since it is readily apparent that it would be more difficult for a group of 12 people to reach a unanimous verdict than it would for a group of 6 to reach such a verdict, the defendant’s ability to establish such prejudice would be dubious at best.” No prejudice no error. Also, Defendant was not intimidated into not going pro se before trial. He failed to knowingly and intelligently waive counsel in a clear unequivocal way. Court did what was right by informing Defendant that reappointment of counsel in the middle of trial was unlikely. People v. Jones

People v. Swift, 2016 IL App (3d) 140604 (October). Episode 249 (Duration 8:33)

New cannabis law only gets a passing mention in this proximate cause aggravated DUI case.

People v. Jones, 2016 IL 119391 (October). Episode 248 (Duration 5:53)

Prior adjudications may be considered for extended terms proved up at sentencing with a PSI without any Apprendi violations.

Defendant was sentenced to 24 years for aggravated robbery. He was given an extended term based on a prior adjudication of delinquency for residential burglary.

Delinquency Adjudication Not A Conviction

On appeal, defendant contends that a prior juvenile delinquency adjudication is not the equivalent of a prior conviction for purposes of extended-term sentencing under Apprendi and that such a fact must be alleged in the indictment and proven beyond a reasonable doubt.

The Code

Section 730 ILCS 5/5-5-3.2(b) of the Unified Code of Corrections (Code of Corrections) sets forth various factors that the court may consider as a reason to impose an extended-term sentence. Relevant here is the factor in subsection (b)(7) of section 5-5-3.2, which governs,

“[w]hen a defendant who was at least 17 years of age at the time of the commission of the offense is convicted of a felony and has been previously adjudicated a delinquent minor under the Juvenile Court Act of 1987 for an act that if committed by an adult would be a Class X or Class 1 felony when the conviction has occurred within 10 years after the previous adjudication, excluding time spent in custody.”

730 ILCS 5/5-5-3.2(b)(7).

Apprendi

In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

725 ILCS 5/111-3(c-5) codified this development.

Issue

The question here is whether defendant’s juvenile adjudication, which qualified defendant for an extended-term sentence, falls within Apprendi’s prior-conviction exception and, in turn, the exception in section 111-3(c-5) of the Criminal Code.

It appears the federal courts have gone every which way on this issue. The balancing act focused on the fact that there are no juries for prior adjudications. Prior convictions pass Apprendi muster, in part, because the the defendant is afforded full procedural and constitutional rights in the prior case.

Holding

Nonetheless, the Illinois Supreme Court sided with the jurisdictions that found sufficient due process in juvenile proceedings.

Analysis

SCOTUS made clear in McKeiver that due process does not require the right to a jury trial in juvenile proceedings, reasoning that a jury trial would not strengthen greatly, if at all, the fact finding function.

Juvenile Cases Are Different

The tradition in this area has been to regard recidivism as a sentencing factor not to be proven before the jury.

Prior convictions are different from other factors that increase the sentence for an offense because of the procedural safeguards inherent in the proceedings that resulted in that conviction.

A juvenile adjudication of delinquency is similar to a prior conviction in the sense that both are the result of a person’s prior unlawful behavior or recidivism. The proceedings that result in a juvenile adjudication contain the same constitutional procedural safeguards as those proceedings that result in a prior conviction, except the jury trial right.

Constitutionally Sufficient Safeguards

However, because there is no constitutional right to a jury trial in juvenile proceedings, a juvenile adjudication and a prior conviction both result from proceedings in which the minor or the defendant received constitutionally sufficient procedural safeguards.

Final Say

A juvenile adjudication, therefore, is no less valid or reliable a form of recidivism than is a prior conviction.

For purposes of extended-term sentencing, they are on equal footing. Though defendant did not have the right to a jury trial in his delinquency proceedings, he did have all the other procedural rights of adults in criminal proceedings, such as the right to notice, counsel, confrontation, cross-examination, and proof of guilt beyond a reasonable doubt. See 705 ILCS 405/5-101(3), 5-525, 5-530, 5-605, 5-610.

Those juveniles who are not rehabilitated and commit crimes as adults may be punished in accordance with their entire criminal history.

Clinical Professor of Law Karen L. Daniel and Director of the Northwestern Center on Wrongful Convictions recently sat down with the Criminal Nuggets podcast. 

In Episode 247 (Duration 32:18), the professor provides insight and answers questions trial attorneys may face when litigating eyewitness identification issues.

 

Clinical Professor Karen L. Daniel

Clinical Professor Karen L. Daniel is a Clinical Professor of Law at the Northwestern Pritzker School of law. She is also Director of the Center on Wrongful Convictions. The Center has helped free numerous wrongfully convicted individuals.

Through her experience in personally handling these cases and supervising her law students the professor has gained a certain expertise in working with eyewitness identification expert witnesses.

What We Cover

Listen in as the professor...

• Reveals available resources on eyewitness identification
• Describes her own experiences working with eyewitness experts
• Breaks down the ground breaking case of People v. Lerma
• Illustrates possible litigation strategy
• Demystifies the eyewitness identification report

What Won't Want To Miss

Pay careful attention when Professor Daniel talks about the one motion in limine we should all be making in eyewitness identification cases. The law is not perfect and rule making has not caught up with the research. 

There is one tricky situation where we'll want the careful input of an eyewitness identification expert. Sometimes an expert is not relevant or required. However, sometimes an expert can help guide you and a jury through some tricky terrain. 

Hit the play button above to ensure you capture all this insight.

Eyewitness Identification
Issues Checklist

Download this checklist of possible eyewitness identification issues that may warn you of problems in your case. This is not an exhaustive list. It's just a place to start. 

Add To My Library Now

Download this checklist now! Important Links & References Mentioned

• Clinical Professor Karen L. Daniel
• Northwestern Pritzker School of Law
• Center on Wrongful Convictions
• Professor Daniel email: [email protected]
• Recent Case Professor Daniels Worked On (New Trial Ordered)
• People v. Lerma, 2016 IL 118496 (January)
• Recent Case In The News Dealing With Eyewitness Identification
• Professor Shari Berkowitz (Eyewitness Expert)
• Dr.Gary Wells (Eyewitness Expert) Iowa State University Department of Psychology
• Dr. Gary Wells Personal Resource Page
• Dr. Gary Wells Articles
• Illinois Pattern Jury Instruction 3.15
• Illinois Code of Criminal Procedure 725 ILCS 5/107A-2 - Line Up Procedure
• The Innocence Network
• The Innocence Network Amicus Curiae Brief Filed Before Illinois Supreme Court (Hint: all our best arguments for admissibility are in there.)
• Geoffrey R. Loftus (Eyewitness Expert)
• Dr. Elizabeth Loftus TED Talk
• Slate Article on Elizabeth Loftus
• The Jennifer Thompson Story
• More on Jennifer Thompson 
• Jennifer Thompson Explains What Happened
• See Also "Eyewitness Identification Expert Witness Trial Court Hates 'Em"

Highlights Right From The Discussion

✓  There are two indisputable facts about eyewitness identification that supporters and distractors must agree on. One has to do with the nature of the scientific findings and the other has to do with our own perceptions. (Go to 3:05) 

✓  What an attorney should send to their eyewitness identification expert. (4:47)

✓  Some of the factors that an expert can help you identify during the actual event are listed here. (5:55)

✓  When it comes to the police procedures used to facilitate an identification the game is all about discovering what you don't know and scrutinizing what you do. Practical real life examples are given to illustrate. (6:39)

✓  A little known jury instruction that you can ask for when proper police procedure is not followed. (7:44)

✓  Why you should  interview eyewitness identification witness for yourself and never just accept the police report version of events.  For example, when witnesses talk to each other that rarely makes into a police report, but there is much more to look out for. (8:22 - 8:34)

✓  Hints and a suggestion on how to find an eyewitness identification expert. (9:22)

✓  What to do to make your first meeting or discussion with an eyewitness identification expert witness as productive as possible. (10:46)

✓  The secret to knowing when you've been tendered an eyewitness identification expert witness report that is on the money and knowing when you have to send it back. (11:42)

✓  Any good eyewitness identification expert will include a statement about this in their final report. This kind of statement is insurance for improving ultimate admissibility of your expert. (14:02)

✓  How to respond to the other side's or even the court's objection, "What good are they?" (14:37)

✓  The true strength and value in People v. Lerma. (15:19)

✓  What to do with the tricky scenario of where the witness has identified the suspect before any police interaction. Let's face it when the witness knows the suspect there is no place for calling an eyewitness expert witness...but subsequent formalized identifications are irrelevant. (16:09-17:14)

✓  WARNING: When the witness kind-of-knows the suspect (acquaintance identifications) you better get an expert involved. This is when things really get tricky. (16:09-17:14)

✓  Do you know about "unconscious transference"? (17:14)

 ✓  The truth about People v. Lerma and why innocence workers were nervous when it first went up to the Illinois supreme Court. Hint: we were still talking about acquaintance identifications. (17:38) 

✓  In a stranger identification case why there should be absolutely no reason why the judge does not admit your eyewitness identification expert witness. (18:06)

✓  CAUTION: There is a big problem with the Illinois Pattern Jury Instruction on identification testimony. In every case there should be motion to use something different. (19:15-22:00)

✓  When the very best witnesses are the absolute worst. (23:00)

✓  How not to put together a lineup.  Police are probably doing this more often than we think. Professor Daniel only became aware of it because she worked with an expert. (24:35)

✓  The shocking error rate (yet hardly discussed) that an expert can explain to a jury and absolutely has to convince a jury that there are deep flaws in human eyewitness identifications. (25:47)

<<<  Go To Interview With Real Life Eyewitness Expert Witness

In Episode 246 (Duration 44:57), she clearly articulates exactly how an eyewitness expert can be used in a criminal case.

Go to show notes.

Who is Professor Berkowitz?

Professor Dr. Shari Berkowitz is on the faculty at California State University Dominguez. She is an assistant professor of criminal justice administration. She completed her PhD at the University of California Irvine under her mentor Dr. Elizabeth Loftus.  

Her particular research interests include: eyewitness memory, false memory, false confession, and the causes and consequences of wrongful convictions. Dr. Berkowitz serves as an expert witness and consultant in legal cases involving eyewitness memory and memory distortion.

She has consulted in criminal, civil, state, federal and military courts for both sides. 

Listen-In As The Professor...

• Discusses her professional background
• Outlines exactly what eyewitness experts can and cannot do
• Explains the very basics of how memory works 
• Reports on her own research on false memories
• Breaks down the structure of a typical report she may issue when she's on a case

You Won't Want To Miss...

How Professor Berkowitz studied under and was mentored by Dr. Elizabeth Loftus. How she talks about specific high profile cases which first captured her attention and interest in this field. 

Don't let the Professor's Chicago connection fly by without notice. She was formerly an assistant professor in psychology at Roosevelt University in Chicago.

That's where she came across The Northwestern School of Law Center on Wrongful Convictions. She met the director at the time and eventually was introduced to Professor Karen Daniel who is currently the director.

Important Links & References Mentioned

• California State University Dominguez Hills
• Assistant Professor Shari Berkowitz
• Professor Berkowitz email: [email protected]
• Professor Berkowitz phone: (310) 243-30971
• Roosevelt University in Chicago
• Dr. Elizabeth Loftus TED Talk
• More on Elizabeth Loftus 
• "Eyewitness Testimony" by Elizabeth Loftus
• Center on Wrongful Convictions
• Professor Karen Daniel
• National Research Council (NRC) 2014 Report Assessing Eyewitness Identification

More Highlights From Episode 246

✓ Straight talk on how false allegations can happen to anyone but are particularly devastating when it happens to people with limited resources.

✓  You've heard of "repressed memories" right? When something so bad happens to someone they block it out of memory to preserve their sanity. WRONG! There is no credible scientific evidence that "repressed memories" even exist.

✓ Which begs the question: How does a horrific memory of abuse get reported if (by the reporter's own admission) the memory never existed in the first place?

✓ What the research says about a very detailed memory combined with high emotional impact and reported with high certainty by the person recalling the memory.

✓ How a layperson's understanding of how memory works is DEAD WRONG and how that can cause huge problems in a trial.

✓ The simple reality of how memory actually works and the three stages of memory that happen over and over and over again.

✓ Ever hear a prosecutor tell the jury that a memory was "burned" into a victim's brain or "seared" into their mind for prosperity? The research says defense counsel should be jumping up like their hair is on fire and objecting.

✓ Did you know an eyewitness identification can do more than just help educate a judge or jury? Attorneys have used experts to educate themselves, develop cross examination questions, determine if a motion to suppress should be filed, and as consultants on police line-up or photo array procedures. You'll never guess how the Professor helped in one Illinois case.

✓ What experts never say in their opinions and why this should never be a reason to exclude your own expert witness.

✓ Education, Education, Education is the number one priority, task and goal of an eyewitness identification expert witness. Does your judge or jury know what the latest research on eyewitness memory says? Does your judge or jury know how the science relates to the facts in your case? Of course not, that's why you get an expert. 

✓ Weighing the evidence and credibility determinations always remains with the jury. Don't you want to arm them with the right tools to properly weigh the identification of the accused?

✓ Discover the difference between how true and false memories look to the brain.

✓ Why your jury needs to be aware of the three stages of memory. (Hint: It's all about the distortions that can occur at each stage.)

✓ Bet you've never seen this procedure followed in a lineup. Knowing about it will easily help you determine if the lineup used in your case was fair to the defendant.

✓ Lawyers have learned to be skeptical of eyewitness evidence. However, if you don't know the details behind the skepticism you are no good to your client and easily out matched by a skilled adversary.

✓ I asked the professor point blank, "What kinds of cases should attorneys be looking for to determine if an eyewitness expert can help?" Her reply will make you rethink your entire practice.