Kane County Nuggets

People v. Jones, 2016 IL App (1st) 142582 (August). Episode 217 (Duration 7:23)

A nunc pro tunc order is not a way to predate a court order.

Facts

Defendant was arrested and released on crime A.

Later, he was arrested anew for crime B.

Defendant asked the court to exonerate his bond nunc pro tunc to the arrest date on crime B so that he could get credit on crime A for the time he was in custody for crime B.

The State did not object and presumably intended that the defendant would be considered in custody on charge as well.

Nonetheless, the reviewing court said the trial court was in error when it entered the nunc pro tunc for the simple reason that there was no order ever entered that omitted something the court previously did or that needed correction or clarification.

You see, the use of “nunc pro tunc” orders or judgments is limited to incorporating into the record something which was actually previously done by the court but inadvertently omitted by clerical error. See People v. Melchor, 226 Ill. 2d 24, 32 (2007); see also Harreld v. Butler, 2014 IL App (2d) 131065, ¶ 13.

A “nunc pro tunc” order is an entry now for something previously done, made to make the record speak now for what was actually done then.

Because a “nunc pro tunc” amendment may reflect only what the trial court actually did, it must be based on some note, memorandum, or other memorial in the court record.

Here is the big one: An order entered nunc pro tunc may not supply omitted judicial action or correct judicial errors under the pretext of correcting clerical orders.

While defendant was on bond in this case he decided to surrender on another unrelated charge. He was never brought before any court on this charge nor did he make any attempt to exonerate his bond until after he was arrested on the other charge.

Defendant wants credit against this sentence for the time he was in custody on the unrelated charge, claiming a nunc pro tunc order entitles him to the credit even though he did not surrender his bond in this case until he appeared before the trial judge in this case.

(Revoking bond is being used the same way as exonerating his bond.)

A defendant who is out on bond on one charge, and who is subsequently rearrested and returned to custody on another charge, is not returned to custody on the first charge until his bond is withdrawn or revoked.

A defendant arrested while on bond remains on bond until the bond is exonerated, at which point the defendant will be considered to be in simultaneous custody on both charges.

Giving effect to the “non pro tunc” order would effectively give the circuit court, the defendant and the State the power to increase the in custody credit beyond the parameters set by the legislature under 730 ILCS 5/5-4.5-100(b).

The mittimus was ordered to be corrected to reflect the loss of the credit defendant was seeking. The only reason it was before the court is because he was fighting for three additional days, instead he ended up losing 50.

People v. Garner, 2016 IL App (1st) 141583 (August). Episode 216 (Duration 7:21)

Expert witness may testify as to the defendant's character to commit the crime.

People v. Olivieri, 2016 IL App (1st) 152137 (August). Episode 215 (Duration 8:18)

Insufficient evidence to prove reckless discharge of a firearm by this conceal and carry permit holder; SNSR wins the day.

People v. Burhans, 2016 IL App (3d) 140462 (July). Episode 213 (Duration 5:38)

Harmless error to allow this sex case expert to testify about unsupported opinion testimony.

This was a predatory criminal sexual assault conviction with an expert nurse.

The expert was in pediatric nursing, advanced forensic nursing, and in evaluating children of suspected sexual abuse.

She testified that numerous research studies show that frequent physical and anogenital exams result in normal findings even in cases of abuse.

She also referenced other studies that analyzed injury to the anogenital area and concluded that the area healed “very rapidly and often without any residual injury.” She further testified that “95 percent of the time outside of 72 hours the exam is perfectly normal.”

Experts may premise their testimony on information and opinions obtained from the reading of standard publications on which their opinions are based.

However, while an expert does not have to name the publication upon which she relied, the expert must show that the general consensus of the medical and forensic community recognizes the study upon which the expert relies.

In this case, the nurse neither identified any publication nor testified that the general consensus of the medical and forensic science community recognize the studies she cited, thus it was error for the trial court to overrule the defense objection to the nurses references to the conclusions of unidentified research studies.

Court talked about laying a proper foundation for experts but this is basically a 403 argument. See http://illinoiscaselaw.com/expert-witness-new-foundational-element/

People v. Zambrano, 2016 IL App (3d) 140178 (July). Episode 212 (Duration 10:30)

Ineffective assistance of counsel for not giving the accomplice instruction leads to murder reversal.

This was a murder involving at least 4 known culprits. The victim was shot in the head after opening his apartment door. This was a dispute over a girl.

The defendant was seen and recorded in the presence of the other suspects. One of those individuals testified in an early trial then testified again against defendant.

However, this time he invoked his 5th Amendment right to not incriminate himself and only testified after the State granted him use immunity.

Defense counsel argued defendant was not present for the killing and that a codefendant alone murdered the victim.

Further the state’s witness was the only witness to identify his client as participating in the murder.

Counsel recited jury instructions regarding witness credibility and argued that the sole eyewitness was not a credible witness.

He suggested that this witness received leniency on his prior charges and hoped to do so for his pending charge in exchange for his testimony.

IPI 3.17 says that…

“When a witness says he was involved in the commission of a crime with the defendant, the testimony of that witness is subject to suspicion and should be considered by you with caution. It should be carefully examined in light of the other evidence in the case.”

The instruction should be given when there is probable cause to believe the witness, not the defendant, was responsible for the crime as a principal or as an accessory under an accountability theory, despite his denial of involvement.

Indeed, testimony of accomplices should be viewed with suspicion and accepted only with great caution, especially where the witnesses were promised leniency or where the testimony was induced with a grant of immunity.

Where the accomplice testifies, strategic reasons for not requesting the accomplice-witness instruction typically have eluded the courts.

During cross-examination of the state’s witness, defense counsel impeached him with his prior inconsistent statements to the police during his initial interview.

He was also examined about bias regarding the criminal DWLR charges he faced after the murder, and their disposition, including dismissal and reduction of charges, which took place after his testimony at the first codefendant’s trial.

Defense counsel also used the general jury instructions regarding witness credibility to portray the state’s witness as a noncredible witness.

Throughout the proceedings, the defense asserted that he was a liar, whose testimony was impeached by his prior inconsistent statements and the videos from the apartment complex, that his pending cases were resolved favorably after his prior testimony and that he was not a believable witness.

There is no doubt that the evidence at trial and the reasonable inferences that can be drawn from the evidence establish probable cause that the state’s witness acted as an accomplice.

He entered the building with defendant and the first codefendant and left with them. This witness testified under a grant of use immunity, the jury should have been instructed that it should carefully scrutinize his testimony in light of his role as an accomplice.

The testimony was detrimental to defendant in that it created the inference that defendant was the shooter, or at least acted in concert with the shooter. This was the only evidence establishing defendant’s participation.

These circumstances, coupled with the fact that defense counsel embraced the strategy that the witness could not be trusted, reinforce the need for the accomplice witness instruction.

There is no reasonable purpose for leaving out the instruction. Counsel’s failure to submit an instruction on accomplice testimony prejudiced defendant by depriving the jury of critical information it needed to evaluate the witnesses testimony.

Reversed and remanded. I can totally see another panel going the other way with this with a holding that there was prejudice.

Forced PBT leads to suppression of DUI evidence and DUI reversal.

Defendant parks his car to ask the officer following him for directions.

The officer conducts FSTS, but he munks them all up.

The trial judge said that in light of the instructional errors, defendant’s performance was “satisfactory,” he had “no difficulties performing the tests, no problems with swaying or balance or other issues as to that.”

The trial court found that defendant did not consent to the PBT and therefore it was suppressed.

The officer never asks the defendant if he would take test, instead he essentially just jams the thing in his mouth.

The creates the question the state wanted the reviewing court to answer on appeal: Does a PBT have to be consensual or can it be forced?

625 ILCS 5/11-501.5(a) says that if there is reasonable suspicion, an officer “may request” a PBT, and the suspect “may refuse.”

The “request” and “refuse” elements of the PBT statute together the statutory use of the phrase “may refuse” denotes a choice, and the phrase would have no meaning if it did not signal that the suspect had the choice to take, or to refuse, the “requested” PBT. Thus, some level of consent or choice is implicit in the statutory language.

Clearly, this has to mean that per the PBT statute an officer cannot command a suspect to take the PBT and that a suspect will not be penalized for refusing the PBT.

Indeed, the purpose of the PBT is to aid in determining probable cause; the PBT results may be used by the State only to establish that the arresting officer had probable cause to arrest, not as evidence at a DUI trial.

In the absence of probable cause, the statute affords protection against unreasonable searches by requiring the request-and-refuse protocol to be conducted under reasonable suspicion.

The court read this protocol as requiring some form of consent before a PBT may be administered.

This is an important distinction between PBT and normal breathalyzer procedures. 

The police do not necessarily have to inform the driver that he has the option of refusal.

The legislature’s purposeful decision not to require an officer to inform a suspect of his or her right to refuse evidenced the legislature’s intent that the officer need not obtain “informed consent” prior to administering the PBT.

Granted the consent does not need to be “informed consent”.

So to sum it all up: the “may refuse” language does not oblige an officer to inform a suspect that he or she may refuse, but it does require that the suspect have a reasonable opportunity to refuse.

Where a suspect voluntarily submits to the PBT upon request, the statute’s request-and-refuse requirements have been met. In other words, so long as the officer requests the PBT without commanding submission, and so long as the suspect is given an opportunity to refuse, the PBT is voluntary.

The PBT does not become involuntary because the suspect is not told that he or she may refuse or because the suspect ultimately was motivated by collateral pressures. Where an officer “requests” that a suspect take the PBT, the suspect is presented with the choice as to whether to take or refuse the PBT (even if the suspect is not informed of the consequences of taking or refusing the PBT).

Here, the officer did not present that choice, and thus he affected defendant’s opportunity to refuse the PBT.

In re S.W.N., 2016 IL App (3d) 160080 (July). Episode 210 (Duration 11:57)

Minor had an IQ of 70, otherwise voluntary confession suppressed.

Great example of the court relying a little too much on a recorded interrogation.

This was an investigation of a forcful rape that occurred the night before.

Minor immediately interrogate. The minor ended up confessing to a forcible sexual assault.

The officer only knew that defendant played on his school's special olympic basketball team. The officer did nothing else to gathering information on the minor's mental and cognitive abilities.

In court, the forensic psychologist testified that the minor had numerous cognitive deficiencies, had an IQ of 70 and would not have understood his Miranda waiver.

 Now here is a fine point. The expert was not saying the minor didn't understand the interrogation questions nor saying that the minor provided an involuntary statement; she was only saying that he likely did not understand the waiver.

He was not retarded, but had extreme impaired functioning.

The minor presented 3 school officials who all said the minor has a good vocabulary of individual words, but the words put together to describe intangible rights would have been a big cognitive hurdle for the minor. They all said he often seeks to please to get past the questioning or testing, but later reveals that he didn't understand the original question.

The trial court denied the motion to suppress on two points: First the minor was not in custody so Miranda was not required.

Second, the officer took great care in advising respondent of his rights.

The court commented that the officer went considerably farther than just a mere ritualistic recital of the Miranda warnings. The court also put great emphasis on the video recording of the interview, finding the suggestion that respondent did not understand his rights was belied by the video.

Respondent appeared relatively calm, appeared to understand the situation, and was able to provide clear answers to the questions. The court found that respondent's repeated nods constituted a full acknowledgment of his rights in context. On that point, the court noted: “[H]e is nodding emphatically, as he always does when it's clear that he understands what is going on.” Further, the court stated: “I saw a kid in that video that was very focused. He was with [the officer] every step of the way.”

The minor was sentenced to JIDOC.

The reviewing court saw it differently.

On the custody issue the court said our supreme court clarified that the reasonable person standard for custody inquiries must take into account the age and mental capabilities of the person being questioned. The Braggs court reasoned that the factors of age, intelligence, and mental makeup are “analytically intertwined” with the reasonable person standard. See People v. Braggs, 209 Ill. 2d 492, 506 (2003).

The established legal principle is that juvenile defendants are generally more susceptible to police coercion, and that this susceptibility must be taken into account when establishing procedural safeguards attendant to custodial interrogation.

If a juvenile is more susceptible to police coercion during a custodial interrogation, then the same juvenile is also more susceptible to the impression that he is, in fact, in custody in the first instance. This reasoning extends with equal force to defendants with mental impairments.

Simply stated, just as the mentally impaired are more susceptible to police coercion, they are more susceptible to the impression that they are in custody.

Considering respondent's intellectual limitations along with the other appropriate factors the reviewing court said this respondent was subjected to a custodial interrogation, and that the Miranda warnings were therefore required.

The reviewing court held that the overwhelming weight of the evidence in the present case warrants a finding that respondent did not knowingly and intelligently waive his Miranda rights.

The trial court's finding that the officer had taken great care and gone beyond a ritualistic recitation, was against the manifest weight of the evidence.

Indeed, the officer himself testified that he had delivered the warnings in the same fashion he would to an adult of average intelligence. He said that he had read the Miranda warnings to respondent “with very little explanation of what they mean,” falling short of the “special care” required in taking confessions from juveniles and intellectually impaired individuals.

The totality of the circumstances indicate that respondent did not understand his Miranda rights, nor did he comprehend what their waiver would entail. No special care was taken to ensure that respondent, an intellectually impaired juvenile, understood the nature of the rights or the consequences of waiving them.

Accordingly, respondent could not have knowingly and intelligently waived those rights, and the incriminating statements he made while in custodial interrogation are inadmissible.

In re L.W., 2016 IL App (3d) 160092 (July). Episode 209 (Duration 8:21)

Sentencing on petition to revoke probation entitles you to more credit than a sentence on contempt of court.

Minor was going in and out of detention based on an original petition of adjudication. However, the minor ended up doing over 260 days of detention based on several petitions to revoke his probation and several contempt of court petitions all filed in the original case.

No new charges with different case numbers were ever filed. His one file just kept getting fatter.

When he was sentenced to another 179 days on a fourth contempt of court petition the minor said he had over 260 days of credit built up from all the time he served on the prior PTRs and contempt petitions.

Reviewing court said, “no”, not really. The fourth contempt sentence was the result of an independent proceeding, and therefore, he was only entitled to sentencing credit for the time he spent in custody in connection with the contempt proceeding.

First, the Illinois Supreme Court has held that the contempt power is a means to enforce the terms of a juvenile's probation as an alternative to the statutorily provided enforcement mechanisms.

705 ILCS 405/5-710(1)(a)(v) entitles a minor to custody “credit on the sentencing order of detention for time spent in detention.” However, prior case law has held that, because a contempt proceeding “is an original special proceeding, collateral to and independent of, the case in which the contempt arises,” the custody credit is limited to the time the minor spent in custody in connection with the contempt petition. People ex rel. Scott v. Silverstein, 87 Ill. 2d 167, 172 (1981).

This would have been a different situation had he been sentenced on a PTR. See People v. Hutchcraft, 215 Ill. App. 3d 533 (1991), where defendant was resentenced on a PTR but was properly given credit for time he served on a prior contempt of court finding.

This is because a PTR sentence is a sentence on the original charge, which is the same as the underlying sentence. But custody credit incurred for serving time on another contempt proceeding, even if derived from the same sentence of probation, cannot be applied as a custody credit to a subsequent contempt sentence.

To allow contempt custody credits to be applied to a subsequent contempt sentence would dilute the court's contempt power which is recognized as being completely independant.

If sentenced to a PTR you are entitled to credit for time served for all the days you have served on that file. If your sentenced on a contempt petition you only get credit for time served on that petition.

People v. Geiler, 2016 IL 119095 (July). (Episode 208 Duration 8:00)

Pro Se speeding ticket guy loses at the Supreme Court; Rule 552 Violations probably will never lead to dismissal.