Kane County Nuggets

People v. Simpson, 2015 IL 116512 (January). Episode 226 (Duration 11:16)

People v. Simpson, 2015 IL 116512 has set us straight on the personal knowledge requirement.

This is where the heavy thinking takes place.

…don't take anything for granted. Don't skip anything. Follow the steps in the checklist and get it right.
The checklist easily tells us when it's relevant.

People v. Cruz, 162 Ill.2d 314 (1994). Episode 225 (Duration 12:09)

These threshold questions can end the analysis before it really begins.

Two itty-bitty questions can short-circuit the process if you remember to ask them!

People v. Cruz, 162 Ill. 2d 314 (1994) is an oldie but a goodie. 
Know this one and you'll cure many trial headaches.

People v. Brothers, 2015 IL App (4th) 130644 (September). Episode 224 (Duration 3:54)

So exactly why do we keep screwing up prior inconsistent statement?

In People v. Brothers, 2015 IL App (4th) 130644, the court really hammers Illinois attorneys for consistently flubbing this issue up.

Yes, this stuff is “easy“…but if you don't have it written down and chiseled in your brain mistakes will happen.

People v. Evans, 2016 IL App (3d) 140120 (July). Episode 223 (Duration 6:52)

Prosecutor gets a little aggressive with a codefendant who improperly took the fifth.

In this murder trial, the defendant was accused of felony murder in the shooting of a gas station clerk. Defendant's codefendant had already been convicted and was put on the stand even though counsel knew he would plead the fifth.

The prosecutor granted use immunity and the witness was admonished he had to answer.

Nonetheless, he continued to plead the fifth.

The prosecutor kept him up there and kept going at him. 20 times he said he was pleading the fifth.

Defendant filed a motion for a new trial, in which he argued, among other things, that the trial court erred by allowing the State to continue to examine the codefendant in the presence of the jury where the examination amounted to testimony by the prosecutor and assumed facts not in evidence.

Here, leading questions tracked his testimony in his own trial.

Defendant argued that he is entitled to a new trial because the manner in which the prosecutor questioned the codefendant deprived him of his constitutional right to confront witnesses against him.

(Even the issue as presented by the defense was technically inaccurate.)

Defendant claimed prejudice because of the inferences that could have been made from the refusal to answer added “critical weight” to the State's case in a form not subject to cross-examination.

Namely, that the codefendant ran away from the gas station with Defendant, that Defendant was the shooter, and that they hid the gun at his sister's house.

The prosecutor had argued that her questioning was proper for impeaching the response that the witness did not remember being with defendant on the day of the murder.

The continued questioning was not error because he had answered some questions, which created an inference he might be willing to answer additional questions.

The reviewing court is wrong in holding that had the prosecutor laid a proper foundation she would have been entitled to impeach the witness with his prior inconsistent statement from his own trial.

The court said the witnesses testimony that he did not remember was inconsistent per Rule 801(d)(1)(A)(1). This is just wrong.

The error, said the court, was that the prosecutor never attempted to lay a proper foundation regarding the prior statement made by, and she failed to offer any substantiating proof of the statement to complete the so-called impeachment.

The gist of the error was that the prosecutor improperly disclosed the substance of the codefendant's alleged prior statement to the jury through leading or suggestive questions, which presumed facts not in evidence.

This is actually correct (plus the resulting prejudice).

This conclusion is shaky though:

“Consequently, without the admission of the prior statement, the prosecutor's leading questions that placed [the witnesses] alleged prior inconsistent statement before the jury constituted improper impeachment under applicable evidentiary rules.”

I don't see this as a confrontation clause issue.

The court made no attempt to justify this holding with case law. Arguably, since the witness was on the stand “answering questions” he was sufficiently confronted. The trail court again reiterated that the witness responded, “I plead the Fifth” to 20 questions.

As a result of the leading questions, the State's theory of the case regarding the circumstances of the murder was placed before the jury.

Again, with no attempt to put into evidence the witness's prior statement, the testimonial aspects of the examination of the witness regarding the circumstances of the crime came from the prosecutor's questions and not from the witness.

The court's final holding was that that regardless of the grant of immunity to and regardless of whether he actually had the right to assert the fifth amendment, without the admission of the prior statement, defendant's right to confrontation was violated where, over defendant's objection, in the presence of the jury, the witness refused to answer 20 of the prosecutor's leading and suggestive questions about the alleged crime. Murder conviction was reversed because this was not harmless error. Here, the prosecutor improperly brought every detail of the codefendant's prior testimony to the attention of the jury, and it could be argued that it had a prejudicial influence in the minds of the jury due to the indication that the defendant committed the crime for which he was being tried.

People v. Romanowski, 2016 IL App (1st) 142360 (August). Episode 222 (Duration 8:07)

Is it prejudicial to tell the jury that defendant was told if he refused to blow that his DL would be suspended? 

People v. Franklin, 2016 IL App (1st) 140059 (August). Episode 221 (Duration 9:15)

Police find weed in this hotel room, but the warrantless search of the room exceeded the scope of a search incident to arrest.

The August 2016 Illinois criminal case list weighed in 30 published cases. Don't worry if you didn't get to them. Listen to audio round-up and download your copy of the case list. This is Episode 220 (Duration 31:14).

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All you have to do is three things to know you've mastered the August cases: (1) listen to episode 220 which is about 30 minutes long, (2) download the case list and pursue at your own leisure, and (3) join the Premium Nuggets and stop messing around.

Here are the...

1. People v. Franklin

Police overstepped this consent search of a hotel room. They find weed for sure and arrest defendant for that, but a search incident to arrest is no longer a free pass to search everything. Go to case.

2. People v. Williams

Police say to defendant, "Come over here?" What do you think? Was he seized at that moment? Go to case.

3. People v. Tates

The single most frequent error trial judges are making with search warrant cases. It has to to do with constructive possession. Go to case.

4. People v. Carey

This has to be what can only be described as the world's worst armed robbery of an armored car. Short of getting himself killed it couldn't get any worse for this defendant.  Go to case.

5. People v. Olivieri

The SNSR defense was invented by police who found themselves in a little trouble. This defendant is able to beautifully apply it to his own criminal defense...and he wins! Go to case.

6. People v. Garner

 The most frequently overlooked and forgotten rule of evidence that can be employed by the defense just can't get any respect. Are litigators astutely staying clear of this thing or do they just don't know about it? Go to case.

7. People v. Fountain

The reason why this defendant was convicted even though there was shaky DNA evidence, unreliable cell phone evidence, and a less than perfect 4 second observation by an eyewitness probably has to do with a lottery ticket. Go to case.

8. People v. Jones 

What issue should never be appealed in a criminal law case. Knowing a little latin would have saved this defendant a whole bunch of anguish. Go to case.

9. People v. Arbuckle

The secret to avoiding a double enhancement in aggravated battery sentences. This won't work in a murder sentencing. Go to case.

10. People v.  Romanowski

WARNING - "The Warning To Motorist" cannot be discussed in front of the jury in one appellate district...seems to be cool in the rest of them. Go to case.

Don't waste your time sifting through cases, I've already done all the work for you. 

To get your hands on the August 2016 Illinois criminal case list just click the image below. 

July was the month that pro se defendant, Steven Geiler, lost his case. He gave us all quite a ride. What are you gonna do? Welcome to the club Geiler. You work your butt off in a case and just like that you go right back to where you started. This is Episode 214 (Duration 14:39)

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There were, of course, other cases. Here's what the courts were up to in July:

1. People v. Geiler

Pro se guy who was able to convince the trial judge to dismiss his speeding ticket because of a Rule 552 violation. He then wins at the appellate level. Then he takes it to the Illinois Supreme Court. He argues his own case, and there the court tells him a little police incompetence ain't so bad. Where's your prejudice? Go to case.

2. People v. Taylor

This case involved a nonconsensual PBT (preliminary breath test). You ever wonder what a nonconsensual PBT looks like? Man, it ain't pretty. Hit play to find out what happened. Go to case.

3. In re L.W.

This case involves the type of super niche knowledge few prosecutors keep track of. A defense attorney who has this principle in mind can really benefit their client. Hint: It has to do with receiving a good chunk of credit for time served. Go to case.

4. People v. Zambrano

Trial counsel was found to be ineffective here for not ensuring a certain jury instruction was given. Now, the rest of know to look for this and won't miss it in our cases. Go to case.

5. People v. Burhans

This involved an expert forensic nurse testifying for the state. Anytime an expert gets up they pretty much can say anything they want right? WRONG! Trial courts are really reining in some opinions. Go to case.

6. People v. Evans

The number one source of trial error popped up again. This time it was bad. Everyone, I mean everyone just trips over themselves trying to explain the error or lack of error. Go to case. 

Don't waste your precious summer evenings sifting through cases that may never even help you.

I've done all the work for you. To get your hands on the July Illinois criminal case List just click the image. 

People v. Arbuckle, 2016 IL App (3d) 121014-B (August). Episode 218 (Duration 7:08)

Bodily harm may be considered an aggravating factor without employing a double enhancement if the injury is above a threshold level.

Well known that a death cannot be considered a factor in aggravation in a murder.

This guy wacks his girlfriend with a golf club breaking her arm. Then he jabbed her with the broken end. Her arm was pretty much shattered, a “Grade I open left ulna shaft fracture with comminution involving greater than 5 pieces.”

She couldn't use it anymore.

Defendant argued the judge improperly thought he was extended term eligible on the class 3 aggravated battery.

He was only extended term eligible on the class 2 aggravated domestic battery. Defendant is right that he was not extended term eligible on the class 3 but there is no evidence the judge thought he was. See 730 ILCS 5/5-8-4(a).

Also, the defendant argued he was subjected to a double enhancement because the trial judge considered the victim's harm as an aggravating factor.

We have some good language on this issue. In People v. Saldivar, 113 Ill. 2d 256 (1986), our supreme court stated:

“Certain criminal conduct may warrant a harsher penalty than other conduct, even though both are technically punishable under the same statute. Likewise, the commission of any offense, regardless of whether the offense itself deals with harm, can have varying degrees of harm or threatened harm. The legislature clearly and unequivocally intended that this varying quantum of harm may constitute an aggravating factor…[T]he severity of the sentence depends upon the degree of harm caused to the victim and as such may be considered as an aggravating factor in determining the exact length of a particular sentence, even in cases where serious bodily harm is arguably implicit in the offense for which a defendant is convicted.”

Death is different because it does not come in various degrees.

The degree of great bodily harm must still rise above a baseline level before a court may consider the harm as an aggravating factor. We were clearly above that baseline level in this case.

The bone had failed to mend despite extensive treatment and therapy. The victim suffered from continued pain that affected her on a day-to-day basis, and the injury still required further surgery.