Kane County Nuggets

This little line in Sotomayor’s dissent in Utah v. Strieff (the big improper stop & attenuation case) has been stuck in my mind.See also Podcast Episode 185 of the Premium Nuggets.

At the beginning of section IV in her dissent she wrote:

“Writing only for myself, and drawing on my professional experiences, I would add that unlawful “stops” have severe consequences much greater than the inconvenience suggested by the name.”

It’s the line about “drawing on my professional experiences” that really stuck out.

Why did she have to write that down? What did she think we would have assumed she was basing her opinion on? In that fourth part of her decision she goes into all the crap police are allowed to legally put people through. She explains how this may affect a person.

Obviously, she was worried she would be criticized for abandoning her legal training and basing her opinion on just her personal beliefs.

She was trying to cut off the criticism that her opinion was based on her experiences growing up as a Latina in the urban landscape of New York, where encounters with the police were probably pretty frequent.

No, she was explicitly telling us that her opinion did not rely on her personal experience and was solely rooted in constitutional law.

…and that was the big fat lie.

Now, to be fair to the Justice, this is a lie that all the high court judges are telling. They all had to be confirmed and swear and promise that their own personal beliefs and bias would not interfere with their ability to remain impartial and to rule on decisions.

They all make the promise, we all know they can’t live up to.

Do we think that Thomas, Alito, and Scalia (when he was around) kept their personal views and opinions on the proper role of government out of their interpretations of the constitution?

Hell no.

This is how the game is played. You have to get up there raise your right hand and say:

“I am a legal robot, I will not let my humanity enter into my decisions, I can do this. I promise.”

But we all know better.

This is the kind of stuff we go back and forth over at the Premium Nuggets Podcast.

Talking about the cases doesn’t always mean just learning the rules and the doctrines being applied. We really get in there and look at the motivations behind decisions.

This is how we remember the cases and really nail down the ideas. Afterall, we too are just people. It’s the people stories that make all this legal mumbo-jumbo really stick.

If you think this kind of legal learning is for you then the Premium Nuggets is where you wanna be. We’re getting ready to wrap-up the Q2 cases (April-June) and gonna plow right into July. The courts don’t slow down so we can’t either.

Hit the link below, and I’ll see you on the other side.

http://www.PremiumNuggets.com

Take care,
Sam.

People v. Smith, 2016 IL App (3d) 140235 (June). Episode 205 (Duration 7:12)

Conviction for aggravated criminal sexual abuse is reversed to speedy trial violation.

Both the United States Constitution and the Illinois Constitution guarantee the right to a speedy trial for anyone accused of a crime. U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8. The Illinois speedy trial statute enforces this constitutional right, and its protections are to be liberally construed in favor of the defendant.

Defendant contends that he was denied his statutory right to a speedy trial as:

(1) he was served with a Peoria County arrest warrant in this case while he was awaiting trial in Sangamon County on another charge (he was convicted of this different aggravated criminal sexual abuse case)
(2) he was held in the Sangamon County jail for 31 days after he was sentenced on the Sangamon County case (7 years IDOC); and 
(3) over 120 days passed from the termination of proceedings in Sangamon County to the date he filed his motion to dismiss.

The court had to analyze if defendant was “in custody” on the Peoria charge while he was sitting in jail in Sangamon County on a different charge?

725 ILCS 5/103-5(a) of the speedy trial statute states,

“Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant ***.”

 The IDA (Illinois Detainer Act -730 ILCS 5/3-8-10) further applies the 160-day time period and trial demand requirement to “persons committed to any institution or facility or program of the [DOC] who have untried complaints, charges or indictments pending in any county of this State.”

The terms custody and commitment are both terms which have commonly been used interchangeably to characterize actual imprisonment, or incarceration, or confinement. See People v. Mikrut, 117 Ill. App. 2d 444, 448 (1969).

As defendant was not actually imprisoned, incarcerated, or confined by the DOC at the time that the proceedings in Sangamon County were terminated, defendant was not in the custody of the DOC, and the IDA does not apply.

Defendant was, thus, always under a 120-day speedy trial clock.

Further, this clock does not begin to run until the proceedings in the first county end and defendant is held in custody by or for the second county on the subject charges.

A defendant is not in the custody of the second county until the first proceedings have ended, even where a defendant is served with a warrant while incarcerated in the first county, where a hold or detainer is lodged against him while incarcerated in the first county, or where defendant is brought before the court in the second county, but then is returned again to the custody of the first county.

In order for a defendant to be in the custody of the second county upon termination of proceedings in the first county, defendant must be served with a warrant while incarcerated in the first county.

The service of the Peoria County warrant on defendant effectuated his custody by Peoria County upon the termination of the Sangamon County proceedings.

Stated another way, defendant was legally transferred to the custody of Peoria County once he was sentenced on the Sangamon County conviction.

Accordingly, defendant was in custody of Peoria County after he was sentenced on June 11, 2013, and therefore, section 103-5(a) of the speedy trial statute applies, giving the State 120 days to bring defendant to trial.

Over 120 days passed from the time defendant was taken into custody by Peoria County to the time his motion to dismiss was filed on October 24, 2013, and even more time passed before his trial ultimately took place on December 11, 2013.

Defendant's speedy trial rights were violated so long as the delay was not attributable to him. Before the trial date, the State asked for a continuance. Defendant objected and told the court he was prepared for trial. The continuance was granted over defendant's objection. The new trial date that was set was outside of the 120-day speedy trial window.

People v. Collins, 2016 IL App (1st) 143422 (June). Episode 204 (Duration 5:31)

Assuming the codefendant (who was the shooter) was a really bad dude and did threaten the defendant, exactly how imminent does the potential harm have to be? 

Compulsion is an affirmative defense whereby a defendant is not guilty of an offense “by reason of conduct that he or she performs under the compulsion of threat or menace of the imminent infliction of death or great bodily harm, if he or she reasonably believes death or great bodily harm will be inflicted upon him or her, if he or she does not perform that conduct.” 720 ILCS 5/7-11(a).

To warrant an instruction on compulsion, defendant must present “some evidence” sufficient to raise an issue of fact for the jury and create reasonable doubt as to defendant’s guilt. However, this defense is not available if defendant had an ample opportunity to withdraw from participation in the offense but failed to do so.

For the compulsion defense to apply, the threat of death or great bodily harm must be imminent.

A threat of future injury “is not sufficient to excuse criminal conduct.”

In this robbery of a gas station the clerk gets shot by one of the men involved.

Defendant admitted his job was to go in first to get the attendant to open the glass door. Defendant accomplished this by asking for a cigarette and then not letting the attendant close the door.

Defendant testified that the codefendant, the one witht the gun, reached into his hoodie pouch and pulled out a black gun. He told defendant that “all I need you to do is go into the gas station and get him to open up the gas station window” so they could commit the robbery.

The codefendant pointed the gun toward defendant’s chest. Defendant testified he felt threatened.

The judge refused to give the compulsion instruction. Finding that the threat subsided when defendant walked out. He could have gone out–he had two phones. He could have called anybody. But he didn’t.

Simply, the threat of future injury in this case was not sufficient to excuse criminal conduct and that defendant had a number of ample opportunities to withdraw from the criminal enterprise and he failed to take steps in that direction. That is the key.

He failed to withdraw. Defendant was convicted of attempted armed robbery and aggravated battery with a firearm, but not guilty of attempted first degree murder. The actual robbery and shooting did not occur until around 8:20 p.m., hours after the incident in Allen’s garage.

People v. Alvarez, 2016 IL App (2d) 140364 (June). Episode 203 (Duration 5:04)

The statute required “great bodily harm and permanent disfigurement”, however consecutive sentencing requires “severe bodily injury”, the judge only made one finding.

People v. Gibbs, 2016 IL App (1st) 140785 (June). Episode 202 (Duration 7:56)

Was it error for the judge to deny defendant's motion to continue the trial so he could build up his Lynch material?

No not in this case.

Defendant hit the victim over the head with a brick and took his phone. Defendant was only found guilty of aggravated battery and acquitted of the robbery.

After the trial the defense did produce 30 reports of the victim's arrests for crimes such as aggravated criminal sexual assault, battery, armed robbery, and assault. Turns out victim was a bad dude.

At the trial, defendant was only allowed to admit one of the victim's certified convictions.

When denying the continuance the trial judge said:

“It strikes me as a desire to delay now that the State has answered ready, and they have their complaining witness here in court. It's not a game where you can answer ready, demand trial, knock some time off the term, and then request a continuance once the State answers ready.”

It did appear that the defense was only worried about this Lynch material until after the codefendant plead guilty.

Here, the court's decision to deny the motion for continuance rested on the earlier demand for trial as well as his lack of diligence in pursuing his defense.

The defense argued that its failure to pursue a defense based on the victim's violent criminal history was based on the codefendant's unexpected “unavailability” and the late tendered discovery, there is no evidence that either event was a surprise requiring a change in trial strategy.

Defendant demanded trial and was running a speedy clock with knowledge that discovery was missing.

So he had no credibility when he then claimed surprise to justify a continuance to reevaluate his trial strategy. The trial court was not unreasonable in determining that the defense failure to pursue a strategy emphasizing the victim's criminal history reflected a lack of diligence that could not be excused by his allegations of surprise.

This is particularly true where, as part of discovery (and months prior to trial), the defense had the victim's Criminal History Report reflecting dozens of arrests for alleged crimes of violence.

Also, good discussing on when witness testimony is appropriate when admitting Lynch material.

People v. Yeoman, 2016 IL App (3d) 140324 (June). Episode 201 (Duration 4:29)

Single blow second degree murder is vacated.

This was a road rage situation that lead to defendant and the victim getting out of their cars.

Defendant punched elder victim one time in the face.

That was the only blow that was struck during the entire confrontation by either party.

Victim was stunned or knocked out, fell back, and hit his head on the pavement. Victim was disorientated and began throwing up. An ambulance was called.

Tests revealed that his skull was broken on the left front area of his forehead, that he had suffered a large scale hematoma at the top and front of his head, and that he had bleeding on both sides of his brain and within his brain.

Three months after the incident occurred, the victim passed away as a result of his injuries.

Defendant was charged with two counts of second degree murder (Class 1 felonies), one count of aggravated battery of a senior citizen (a Class 2 felony), one count of aggravated battery on a public way (a Class 3 felony), and one count of aggravated battery causing great bodily harm (a Class 3 felony).

Defendant was 39 years old, had been a carpet installer for the past 22 years, he was 5'7″ tall, and he weighed 160 pounds. Similarly, victim was almost 64 years old, he was very active and had great mobility for his age, he was 5'6″ tall, and he weighed 160 pounds as well.

The jury found defendant guilty of all four charges.

There is a long-standing general rule in this state that death is not ordinarily contemplated as a natural consequence of a blow or blows from a bare fist. There are, however, some exceptions to the general rule that have been recognized over the years. See Podcast Episode 151.  People v. Nibbe, 2016 IL App (4th) 140363, ¶ 28.

For example, the courts have held that striking another person with a bare fist may constitute murder when there is a great disparity in size and strength between the defendant and the victim.

The reviewing court held that this conduct alone was not the type of conduct that would generally create a strong probability of death or great bodily harm to the victim. the evidence was insufficient to prove the knowledge element of the second degree murder charge.

Defendant, therefore, could not have knowledge that such a result was practically certain to occur. See 720 ILCS 5/4-5(b). See also Nibbe, 2016 IL App (4th) 140363, ¶ 34.

Defendant's conviction for second degree murder was, thus, reversed, and sentence for aggravated battery to a senior citizen was affirmed.

Also, supposed Lynch material was properly excluded because there was no indication in the prior statement that the victim made at the group counseling session that he did anything more than approach the offending vehicle and possibly yell at the driver. Such conduct is not sufficient to qualify as aggressive and violent behavior.

People v. Davis, 2016 IL App (1st) 142414 (June). Episode 200 (Duration 3:45)

Due to a bad stipulation, the State failed to prove beyond a reasonable doubt that the defendant was guilty of delivery of a controlled substance within 1000 feet of a school.

The defendant was charged by indictment with one count of delivery of a controlled substance, less than one gram of heroin, within 1000 feet of a school under section 407(b)(2).

The reviewing court agreed that although the evidence established that the delivery of less than one gram of heroin took place in the alley behind the gas station the officer did not identify the exact location in the alley where the transaction took place, and the State failed to introduce evidence of the distance from the location of the transaction in the alley to Orr Academy High School.

The State, thus, failed to prove him guilty beyond a reasonable doubt of delivery of a controlled substance within 1000 feet of a school.

Illinois courts have not directly addressed the issue of how distance should be measured in order to establish that an offense under the Act occurred within 1000 feet of a school.

Several cases involving drug transactions alleged to have taken place within 1000 feet of a church appear to accept the proposition that the measurement is to be made from the actual location of the drug transaction to the real property comprising the church (720 ILCS 570/407(b)(2).

Although this court has not directly spoken on the measurement necessary to establish that an offense under the Act occurred within 1000 feet of a school, they now have done so.

In order to convict a defendant of delivery of a controlled substance within 1000 feet of a school, the State must prove beyond a reasonable doubt that the distance from the actual site of the transaction to “the real property comprising any school” is 1000 feet or less. 720 ILCS 570/407(b)(2).

In this case, the record is devoid of evidence establishing that the distance between the real property comprising Orr Academy High School and the actual location in the alley where the delivery of the controlled substance took place is 1000 feet or less.

First, there is no evidence describing where in the alley behind the gas station the transaction occurred.

Second, there is no evidence establishing where Investigator began his measurement, the stipulation only states the address which could be anywhere on the gas station’s property taking the stipulated testimony as true, the parties only agreed that somewhere on the property of the gas station was within 1000 feet of the Orr Academy High School gymnasium at the nearest property line gate.

The natural probative effect of the stipulation thus falls short of proving that the distance from the actual site of the transaction in the alley behind the gas station to the real property comprising Orr Academy High School is 1000 feet or less.

That conviction alone was reversed.

People v. Suggs, 2016 IL App (2d) 140040 (June). Episode 199 (Duration 9:35) 

Recorded interrogations can be used to justify an interrogation that occurred of a Defendant held well over 98 hours.

Sometimes the defense can gather up pretty convincing evidence of police misconduct, and the trial judge just can't pull the trigger on doing the right thing. Episode 198 (Duration 16:04)

See People v. Montanez, 2016 IL App (1st) 133726 (June) and
People v. Serrano, 2016 IL App (1st) 133493 (June). 

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Trial court's granting of the State's motion for directed verdict after the defendant's testimony in this third stage hearing was reversed.

The reviewing court said any other result would work a palpable injustice.

This petition involves a murder 22 years ago. This was a shooting.

The entire petition relied on a snitch who recanted and other state witnesses who subsequently recanted.

The state's witness who said the defendant's confessed to him completed an affidavit in which he recanted his trial testimony. He averred that his testimony at trial was “false in all respects.”

Going point by point, attested that the testimony he gave was supplied to him entirely by Detective Guevara and that he agreed to give the testimony as a result of threats, physical coercion, and promises of leniency for his own crimes.

The witness accepted 9 years when he was eligible for 100.
He was also given money and received special treatment in prison in return for supplying false information in this case and in others at the behest of Guevara.

Defendant and his codefendant filed a statement from another eyewitness who never testified at trial but testified before the grand jury. This witness also recanted his supposed eyewitness testimony offered during the investigation and to the grand jury.

Affidavits or other forms of sworn statements from at least 10 different witnesses swearing that Guevara had abused them or coerced them into giving false testimony were also obtained.

At the evidentiary hearing, Detective Guevara invoked his fifth amendment right, refusing to answer on grounds that he might incriminate himself. Similarly, the state's informant invoked the fifth amendment and refused to give testimony to back up his sworn recantation. There were several indications that he feared prosecution for having previously perjured himself at defendant's’ trial.

The allegations against the police were that they beat the witnesses and gave them photos and reports to "study".

One of the defendant's in this case said the detective beat him into a confession and threatened to beat his wife if he didn't confess. Other witnesses testified to similar police misconduct. One witness said he was punched so hard by the detective he suffered permanent hearing loss and confessed to a murder he did not commit.

The trial court barred the testimony of 12 other individuals who would have averred that they were abused or otherwise witnessed misconduct by Guevara. The trial court’s reasoning for not allowing the evidence was that the testimony was too temporally remote or not similar enough to the allegations in this case.

The victim's own wife was barred from testifying at the third stage hearing.

She would have testified that she was unable to identify a vehicle when she drove with the detectives, but that Guevara took her to the location of the vehicle and told her that it was the car from the gas station. It was him, not her, who identified the vehicle.

She would have also testified that Guevara falsely told her that some bullet holes in the subject car matched the ballistic testing done at the scene of her husband’s murder when they, in fact, did not.

The trial judge denied the petition claiming the defendant failed to prove his case that the the witnesses were coerced into testifying falsely.

Because the trial judge dismissed after a directed motion by the state, the question here is: has the petitioner made a prima facie showing that the new evidence presented, taken in a light most favorable to him, would probably change the result if the case was retried?

At trial, the only direct evidence of petitioner’s guilt was the informant's testimony. The informant supplied what amounted to a confession from defendants including details of the crime that swayed the fact finder. The trial judge commented, “were it not for the testimony of [the informant], there wouldn’t have been much evidence here. His testimony is crucial.”

That “crucial” testimony is now entirely repudiated in a sworn statement by the person who gave it.

The witness now claims the testimony was “false in all respects.” Detail by detail the informant averred that the testimony he gave at trial was fed to him by Guevara, was coerced, and was not true.

Although, recantations should be viewed skeptically, this one contained significant additional corroboration. The postpetition trial judge stated that “the evidence in the present case so overwhelmingly favors the State that no contrary verdict based on that evidence could ever stand.” The reviewing court profoundly disagreed. The reviewing court was not so dismissive of the petitioner's witnesses.

“In our view, any allegation that Guevara coerced a person to provide evidence is relevant to whether defendants in the case at bar were similarly coerced.” For the trial court to find all of that evidence totally unworthy of any credit when it was required to view the evidence in a light most favorable to petitioner is truly puzzling. At this stage in the proceedings, petitioner was required to make out merely a prima facie case that would cause the court to view the “evidence presented at trial in a different light and undercut the court’s confidence in the factual correctness of the guilty verdict.”

That has clearly occurred here.

When all of the postconviction evidence is viewed in a light most favorable to petitioner, the trial court was wrong to say that no contrary ruling could ever stand. The trial court turned a blind eye to much of the evidence and also refused to admit probative, admissible evidence that, when evaluated under the proper standard, is damning.

Even where the court gave lip service to the standard it was supposed to apply, the court clearly did not adhere to that standard.

The postconviction court gave the impression that it was flatly unwilling to consider the evidence offered by petitioner. Therefore, in the exercise of discretion under the supreme court rules, the reviewing court found that the interests of justice would be best and most efficiently served by the case being assigned to a different judge on remand.The directed finding in favor of the State is vacated. The case is remanded to the presiding judge of the criminal division of the circuit court with instructions that the case be assigned to a different judge to adjudicate the reinstated third-stage postconviction proceedings.