Kane County Nuggets

People v. Nesbit, 2016 IL App (3d) 140591 (September). Episode 234 (Duration 4:44)

Trial counsel ineffective for not surrendering defendant’s bond.

Defendant was sentenced to 23 years for being an armed habitual criminal.

People v. Lucious, 2016 IL App (1st) 141127 (September). Episode 233 (Duration 7:07)

Codefendant's statement was inappropriately used against this defendant.

Defendant hit the victim in her face and stomach. Then Defendant and codefendant threw her to the ground, took her backpacks, and fled.

Victim said that Defendant pressed a gun to her right temple while she was on the ground.

The trial judge only found defendant guilty of aggravated robbery (indicating your armed) and acquitted him of the armed robbery.

No firearm was recovered after the boys were picked up.

In defendant's confession, he said he didn't have a gun only a cell phone.

In the codefendant's confession he made a statement to the effect that…

“he told the victim, don’t make him shoot you.”

The codefendant also said they did not actually have a gun.

Illinois Rule of Evidence 801(d)(2)(D)

The trial judge said defendant was accountable for the codefendant's words and found that Defendant alluded that he had a gun. No Doubt, the court was thinking of Illinois Rule of Evidence 801(d)(2)(D) which says:

“A statement is not hearsay if [made] by a coconspirator of a party during the course and in furtherance of the conspiracy.”

This statement about “don't make him shoot you” came from the codefendant in his interrogation and not the victim.

That difference is crucial, because that statement came in form a cop and not the victim nor the codefendant.

In Bruton v. United States, 391 U.S. 123, 127-28 (1968), the United States Supreme Court held that the admission of a codefendant’s statement inculpating defendant during a joint jury trial violates the confrontation clause of the sixth amendment.

Subsequently, in Lee v. Illinois, 476 U.S. 530, 543 (1986), the Court held that the confrontation clause is violated when the trial court presiding over a joint bench trial “expressly *** relie[s]” on a codefendant’s confession as evidence of the defendant’s guilt. Indeed, the trial court erred in relying on codefendant’s statement to find that the State proved an essential element of its case against defendant.

The record shows that the trial court did not consider codefendant’s statement solely as to codefendant’s guilt. To the contrary, the trial court’s findings demonstrate that it expressly considered codefendant’s statement as evidence of defendant’s guilt.

Counsel was ineffective for allowing this testimony to be used against his client.

Reversed and remanded.

People v. Lubienski, 2016 IL App (3d) 150813 (September). Episode 232 (Duration 5:04)

Will crossing the line once justify a traffic stop?

Now, before you judge this you have to listen to the entire plan.

We take judges, prosecutors and police and figure out a way to string ‘em up – that’s right string ‘em all up

…and suspend them in the air.

I’m telling you, there is technology out there that would allow us to do this pretty easy actually a simple crane or bungee cord would do the trick.

Not like a piñata. They’d have to be horizontal, “Mission Impossible” style.

Then we put a miniature copy of the constitution underneath them.

I don’t think they’d need to be up there for too long. A few minutes should do the trick.

We bring ‘em down and debrief them.

I think you may find these individuals may have a new respect for our nation’s laws and the system they have sworn to honor and protect.

I’m telling you this could work.

You see, there is something called the “overview effect” – this is an actual real thing – it’s described as a physical reality that leads to a philosophical enlightenment.

You’re probably thinking: “Say what?”

Astronauts who have been in space, way above the earth, report this euphoric effect from seeing the earth below them. Many say their perspective changed when they looked down. They felt a more fragile sphere below them. Somehow new truths were revealed; vulnerability, inter-connectedness, beauty, all were seen and felt for the first time.

More importantly, when they got back to earth they felt inspired to protect it.

Often former astronauts become environmental activists, tree-huggers, humanitarians and overall do-gooders.

They feel compelled to act, working to solve global problems.

See what I mean?

Imagine when we pull down the judges, prosecutors and police officers who we’ve suspended way up over the constitution – imagine a world where judges, prosecutors and police perceive a fragile, vulnerable constitution.

They’ll just want to protect it!

Well, I say it’s worth a try right?

It’s way cheaper than sending an astronaut into space, that’s for sure.

I have other ideas about our criminal justice system. These other ones are more boring though. They don’t come from space or astronauts, just from the case law.

To do your part check out my cases lists by jumping over to

http://IllinoisCaseLaw.com/caselists

If your all in and really want to roll your sleeves up stop got to

http://PremiumNuggets.com

Right away.

People v. Tates, 2016 IL App (1st) 140619 (August). Episode 230 (Duration 5:59)

Drug conviction reversed because defendant can't be sufficiently tied to the contraband.

People v. Wilkerson, 2016 IL App (1st) 151913 (August). Episode 229 (Duration 9:25)

Codefendant who was found not guilty paid for this defendant's attorney.

People v. Carey, 2016 IL App (1st) 131944 (August). Episode 228 (Duration 7:35)

Felony murder indictment failed to specify which predicate offense his felony murder was based on, conviction reversed.

People v. Campbell, 2015 IL App (1st) 131196 (August). Episode 227 (Duration 14:04)

See also People v. Blakey, 2015 IL App (4th) 130719 (November);

People v. Evans, 2016 IL App (3d) 140120 (July).

The Last Step: Don't Get This Far Just To Choke In the End – D'Oh!

Pay attention. It's almost over.

Every conversation, document, and recording is made up of many many statementS. Use only what you need and avoid error.