Kane County Nuggets

People v. Williams, 2016 IL App (3d) 130901 (April). Episode 178 (Duration 7:30)

Shackling of defendant during bench trial in this child sex case leads to reversal.

In general, shackling the accused should be avoided. People v. Boose, 66 Ill. 2d 261, 265 (1977).

“Most of the courts that have considered the question have held that an accused should never be placed in restraints in the presence of the jury ‘unless there is a showing of a manifest need for such restraints.'” See Boose, 66 Ill. 2d at 266.

A defendant may be shackled when there is reason to believe that

• he may try to escape or that
• he may pose a threat to the safety of people in the courtroom or
• if it is necessary to maintain order during the trial.

Further, the trial judge should state for the record his reasons for allowing the defendant to remain shackled, and he should give the defendant's attorney an opportunity to present reasons why the defendant should not be shackled.

Factors to be considered include, but not limited to…

• Seriousness of the present charge
• Defendant's temperament and character
• Defendant's age and physical attributes
• Defendant's past record
• Past escapes or attempted escapes
• Evidence of a present plan to escape
• Threats to harm others or cause a disturbance
• Self-destructive tendencies
• Risk of mob violence or of attempted revenge by others
• Possibility of rescue by other offenders still at large
• Size and mood of the audience
• Nature and physical security of the courtroom and
• Adequacy and availability of alternative remedies

The number one reason to not shackling an accused during trial is to prevent great prejudice against defendant in the eyes of the trier of fact.

Does this concern during a bench a trial?

Although the possibility of prejudicing the jury is a factor to be considered, the reasons for forbidding shackling are not limited to trials by jury.

Here, there is no indication that the trial court conducted a Boose hearing before keeping the defendant in shackles during his bench trial.

Thus, the defendant proved a due process violation which amounted to error by showing that he was required to be restrained without the court having first determined that it was necessary.

Reversibility under plain error requires a showing that the evidence was closely balanced or that the error was so serious that it affected the fairness of his trial and challenged the integrity of the judicial process.

Reversal was required because this was a close case as it was a credibility contest between Defendant and the child victim. 

There is no indication that the the trial court conducted any type of a Boose hearing. In fact, the trial court suggests that the defendant was in shackles due to a blanket policy of the court.

Since there was no evidence of any threats or disturbances in the record, the trial court made the statement that suggests a blanket policy, and there was no hearing for which the court could remand for a more complete record, reversed and remanded for a new trial.

Also, this child is allowed to testify in the judge's chambers which could also have been a problem. 725 ILCS 5/115-11 permits a limited closure of a courtroom during the testimony of minors who are the victims of certain sex crimes. See also People v. Falaster, 173 Ill. 2d 220, 226 (1996). The trial court must make a finding that anyone with an interest in the case would also be allowed to go into chambers for the testimony.

It is quite easy to see that the case of People v. Guillermo has caused quite a little commotion among the Illinois criminal law DUI bar.

Top Illinois DUI lawyers all had the same immediate reaction after reading this case:

“The court got it wrong.”

It’s been awhile since a case has come down that has caused this much opinionated reaction within Illinois courthouses.

I usually like to take a more tempered approach to cases.

- Maybe it's just the super cautious attorney in me.

- Maybe I over do it with seeking out the other side’s opinion, or

- Maybe I’m just adverse to “legal friction” between myself and my government lawyer friends.

Either way, I really did not understand why the sentiment against the decision in this case was so strong.

At first glance, it just looked like the defense bar had something taken away from them that they were use to having. I thought the reaction was no different than the average sentiment from the “losing” side.

...but I scratched a little deeper to see if I was missing something.

I called upon a good friend of the podcast, Thomas Glasgow, to walk me through it.

Thomas has authored some reference materials on DUI’s, he has an extensive practice dealing with licensing matters with the Illinois Secretary of State, and he has handled roughly 4,500 DUI cases.

I felt quite comfortable asking Thomas to help me understand if there was some substance behind the almost unanimous sense of outrage to the decision in this case.

...or are we on the defense side just acting like big, whiny babies?

Listen in while Glasgow unravels this thing.

625 ILCS 5/118.1(b)

625 ILCS 5/11-501.1(h)

People v. Moreland, 2011 IL App (2d) 100699

People v. Madden, 273 Ill. App. 3d 114 (1995)

Hey, if keeping up with the Illinois DUI cases is important to you, then just hit the banner below to immediately get your hands on my most recent DUI case list:

People v. Kibbons, 2016 IL App (3d) 150090 (April). Episode 176 (Duration 12:07)

Prosecutor on this aggravated DUI represented defendant when he was charged with his first DUI. 

Is this a conflict of interest?

Well the defense argued that his plea should be vacated because there was a per se conflict of interest on the part of the State’s Attorney, a violation of the Illinois Rules of Professional Conduct, and violations of the Illinois constitution.

In Illinois the courts have identified three per seconflicts of interest specific to criminal defense attorneys:

(2) when defense counsel contemporaneously represents a prosecution witness; and

(3) when defense counsel was a former prosecutor who had been personally involved in the prosecution of defendant. 

see ¶ 216. See also Is It A Per Se Conflict of Interest When Trial Attorney Raises Ineffective Assistance on Himself? and People v. Poole, 2015 IL App (4th) 130847 (September 2015)

With a per se conflict there is no waiving of it. Reversal is automatic and there is no requirement of a finding of an actual conflict. 

So this defendant definitely had a legitimate (probably winnable issue) issue on appeal.

However, the court did not reach the merits of the claim. The defendant did not file a notice of appeal within 30 days of the denial of the motion to reconsider his plea.

Instead, he filed what he should have filed initially, that being a motion to vacate his guilty plea under Rule 604(d).

While that motion was filed when the trial court still had jurisdiction, it was not a timely motion under Rule 606(b), and the court had no discretion to forgive the defendant’s failure to comply with the rule. See People v. Salem, 2016 IL 118693, ¶ 19 (motion for a new trial, filed within 30 days of sentencing but not within 30 days of the verdict, was not a timely motion to extend the time to appeal under Rule 606(b); to hold otherwise would render the term “timely” in 606(b) meaningless).

Since the notice of appeal was untimely, the court lacked lack jurisdiction over the appeal.

People v. Hernandez, 2016 IL 118672 (May). Episode 175 (Duration 7:12)

The common-law definition of “dangerous weapon” found in the armed robbery statute is broader than the definition of “dangerous weapon” in the armed violence statute.

40 year extended sentence is constitutional (defendant is doing 80 in total).

Defendant was found guilty of armed robbery “while armed with a dangerous weapon, a bludgeon,” under 720 ILCS 5/18-2(a). Defendant used big heavy medal shears to hit an elderly couple over the head and force them to open a safe.

Defendant's claim is that his 40-year, extended-term, Class X sentence imposed on remand for armed robbery violated the proportionate penalties clause because it had the same elements as the lesser Class 2 offense of armed violence with a Category III weapon.

This issue has already been settled in the February 2016 of People v. Ligon, 2016 IL 118023.

There the court said that many objects, including the BB gun defendant possessed in this case, satisfy the ‘dangerous weapon’ element of AVH/DW, but not the ‘Category III weapon’ element of armed violence with a category III dangerous weapon.

“Dangerous weapon” is not defined in either the armed robbery statute at issue here, or the AVH/DW statute at issue in Ligon, but is derived from common law.

A dangerous weapon is a question of fact and includes any object sufficiently susceptible to use in a manner likely to cause serious injury. Therefore, the definition of dangerous weapon for purposes of the armed robbery statute includes not only objects that are per se dangerous, but objects that are used or may be used in a dangerous manner.

In contrast, for purposes of the armed violence statute, a person is considered “armed with a dangerous weapon” when he or she “carries on or about his or her person or is otherwise armed with a Category I, Category II, or Category III weapon.” 720 ILCS 5/33A-1(a).

Category III weapons are defined as “a bludgeon, black-jack, slungshot, sand-bag, sand club, metal knuckles, billy, or other dangerous weapon of like character.” Thus, Category III dangerous weapons for purposes of the armed violence statute are defined by the statute and are therefore limited to the weapons identified by the statute.

People v. Shaw, 2016 IL App (4th) 150444 (April). Episode 174 (Duration 4:14)

Trial court properly accepted race neutral reasons for excluding minority jury members.

Defendant is African American and was on trial for drug charges. The prosecution excluded two African Americans from the jury.

The State said that “when the question came up could you find the defendant guilty, there was a juror that there was a long pause, there was a look, the Court actually had to repeat the question and that's in the transcript.”

In regards, to the second African American the state recalled that it had initially sought to remove her for cause because she was friends with defendant's cousins and nieces.

In addition, the State noted her boyfriend had pending cases and was represented by the public defender's office.

The trial court found that defendant has not shown purposeful discrimination. The Court finds that the prosecutor was credible and that the prosecutor's demeanor did not show discriminatory intent, but merely showed strategic decisions.

Furthermore, the Court finds that the two juror's demeanor can be credibly said to have exhibited the basis for the strike attributable to the jury by the prosecutor.

eople v. Lilly, 2016 IL App (3d) 140286 (April). Episode 173 (Duration 7:44)

What happens when defendant demands a trial within 120 days but continues to file motions?

Although, defendant was adamant about wanting his 120 days, he also was pretty persistent with his pro semotion filing.

“For purposes of a speedy-trial question, a delay is charged to [a defendant] where his act in fact causes or contributes to the delay.”

Further, our supreme court has held that where a defense attorney requests or agrees to a continuance on behalf of a defendant, the resulting delay is attributable to the defendant even if the defendant did not agree with the continuance.

See 725 ILCS 5/103-5(a).

Here a new public defender was appointed to represent defendant and he simply could not be ready for trial on the date that already had been set. Where a defendant fails to “promptly repudiate an attorney's unauthorized act upon receiving knowledge of the same, the defendant effectively ratifies the act.” Further, “an agreed continuance tolls the speedy trial period *** .” “[A]n express agreement to a continuance on the record is an affirmative act attributable to the defendant.”).

Defendant failed to promptly repudiate defense counsel's actions.

Indeed, defendant responded that it was “fine” when the trial court told defendant that the motion for bond reduction would be heard the following week.

Although defendant was saying he wanted his 120 he was still agreeing to continuances and requesting bond reduction hearings; these dates were all attributed to him.

Any type of motion filed by defendant which eliminates the possibility that the case could immediately be set for a trial also constitutes an affirmative act of delay attributable to defendant. As defendant's motion needed to be resolved, it eliminated the possibility that the case could immediately proceed to trial.

Further, the court could not construe defendant's subsequent statement that he wanted to “use [his] 120” as an objection to the continuance.

Section 103-5(a) places the responsibility on a defendant to take affirmative action when he becomes aware that his trial is being delayed by objecting to the delay via a written demand for trial or an oral demand for trial on the record in order to prevent the speedy trial clock from tolling.

“Defendant's contention illustrates what the Cordell court sought to prevent, the use of section 103-5(a), not as a shield to protect defendant's right to a speedy trial, but as a sword to defeat his conviction.”

People v. Johnson, 2016 IL App (4th) 150004 (April). Episode 172 (Duration 7:05)

Defendant is convicted on two counts of predatory criminal sexual assault based on the child's testimony and her 115-10 statement.

The child testified that her father licked his fingers and inserted them into her private part.

In the recorded statement she also said that he put his private part in her private part, but on the stand she only testified to the digital penetration.

The 115-10 statement is substantive so defendant was properly convicted on both counts.

In Crawford, the Court dispensed with the “amorphous notions of ‘reliability' ” that governed the Roberts Court's confrontation clause analysis.

Instead, the Court held that, regardless of a statement's reliability, the confrontation clause bars the admission of any out-of-court statement that is “testimonial,” unless (1) the statement's declarant is unavailable and (2) the defendant was afforded a prior opportunity for cross examination.

Therefore any case law before Crawford suggesting that 115-10 statements need to be narrowly construed are now rejected.

Section 115-10 requires the trial court to “find[]” that “the time, content, and circumstances of the statement provide sufficient safeguards of reliability.” 725 ILCS 5/115- 10(b)(1).

The statute does not require that those findings be made in writing, nor does it require those findings to contain any specific level of detail.

The court merely tracked the language of the statute and that was found to be sufficient.

The court's unsupported conclusion that the child's statement was “reliable” met the constitutional standard under Crawford. Court need not give its reasoning in written form.

People v. Johnson, 2016 IL App (4th) 150004 (April). Episode 172 (Duration 7:05)

Defendant is convicted on two counts of predatory criminal sexual assault based on the child's testimony and her 115-10 statement.

The child testified that her father licked his fingers and inserted them into her private part.

In the recorded statement she also said that he put his private part in her private part, but on the stand she only testified to the digital penetration.

The 115-10 statement is substantive so defendant was properly convicted on both counts.

In Crawford, the Court dispensed with the “amorphous notions of ‘reliability' ” that governed the Roberts Court's confrontation clause analysis.

Instead, the Court held that, regardless of a statement's reliability, the confrontation clause bars the admission of any out-of-court statement that is “testimonial,” unless (1) the statement's declarant is unavailable and (2) the defendant was afforded a prior opportunity for cross examination.

Therefore any case law before Crawford suggesting that 115-10 statements need to be narrowly construed are now rejected.

Section 115-10 requires the trial court to “find[]” that “the time, content, and circumstances of the statement provide sufficient safeguards of reliability.” 725 ILCS 5/115- 10(b)(1).

The statute does not require that those findings be made in writing, nor does it require those findings to contain any specific level of detail.

The court merely tracked the language of the statute and that was found to be sufficient.

The court's unsupported conclusion that the child's statement was “reliable” met the constitutional standard under Crawford. Court need not give its reasoning in written form.

In Part III of this discussion on the Illinois conceal and carry law, Thomas Glasgow finishes up with the criminal liability one may be exposed to when things go wrong. However, just when you think you may have escaped criminal liability, you better be thinking about the civil consequences of your actions.

To to Show Notes.

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Again, you’ll hear the same theme ringing throughout this discussion:

“An ounce of prevention is worth a pound of cure.”

Thomas really walks us through the ringer and enlightens us on important factors we likely have not even considered.

✓ After an interrogation is over only one of two things can happen:

1. You get charged.
2. You don’t get charged. (If you prefer this one you may want an attorney in there with you.)

✓ Do you know how you’ll handle yourself during an integration?

✓ You ever notice how words can sometimes have a double meaning? (I wonder if that might come up in an interrogation?)

✓ After you get arrested have you thought about: What kind of bond you’ll you need? Where will you get the bond money? How will you pay for an attorney? How long will your case be tied up in the criminal justice system?

✓ Everything you need to know about making a case for self defense.

✓ Exactly when you are authorized to respond with deadly force and when you are not. How you can respond when a burglar is in your home.

✓ All 911 calls are recorded. This can really be used to help you or to hurt you, depends on how you handle the call.

✓ Do you know what to do when the police get there?

✓ The sneaky things a burglar may do to trick you into exposing yourself. (Tom identifies this little trick and shows you how not to get fooled.)

✓ The simple fact is that police often get shot by scared homeowners. Tom explains how you’ll know it's safe to put your gun away. (Let’s face it, if you shoot a cop it doesn’t matter how big a victim you were that night.  You are going to spend some nights in jail.)

✓ You better get over it. It’s going to happen. The family of a robber will have NO qualms about suing you for shooting their scummy loved one. You got to be ready for that.

✓ Huray! You managed to avoid getting arrested for a “good” shooting. Congratulations. Now it's time to get ready for the civil law portion.

✓ Why even the most obvious, "not your fault" self defense shooting will still have a police interrogation and why you can’t afford to blow it off. Yes, you still should have an attorney there with you even though you are completely innocent and the police have assured you are not “under arrest” or being charged.”

✓ Do you know exactly how many Illinois exonerations based on false confessions there have been? Thomas knows.

✓ Will you be ready to handle the highly trained, skillful detectives who have been through hundreds of similar interviews? How many will you have under your belt?

✓ Do you have a duty to tell an officer you are carrying a gun? Should you tell?

✓ Why the words, “I have a gun” probably are never the right words to use.

✓ The simple fact is that most home insurance policies do not cover incidents involving your gun even if you lawfully own it. Do you know what you can do to cover this gaping hole in liability?

✓ Who are the absolute worst types of witnesses that can hurt your civil case and who are absolutely the best types of witnesses you want on your side.

✓ How is a “reasonable shot” determined in court?

✓ The one thing you probably aren’t thinking about when you pick your firearm’s instructor, but definitely should be thinking about.

✓ How much gun training is enough gun training?

 If you missed part I or part II of this informative discussion click below to listen to them now.

<<< Catch Part I >>>          <<< Catch Part II >>>

Part II With Thomas Glasgow | What To Tell Your Clients About What Can Happen When Things Go Wrong With Conceal and Carry

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In part II of this discussion on the illinois conceal and carry law we jump much deeper into advising clients on what can happen when things go terribly wrong.

Obviously, the point here is that an ounce of prevention is worth a pound of cure.

Thomas really walks us through the dark side and enlightens us on important factors we likely have not even considered.

In Part II Thomas Explains…

✓ There is a range of crimes you may be exposed to ranging from least serious to the most serious of all.

✓ What happens if you violate the “conceal” part of conceal and carry.

✓ Pulling it out can be considered an assault?

✓ Conceal and carry is not “conceal, carry, & fire,” what happens when the weapon is actually fired.

✓ The range and types of charges associated with aggravated discharge

✓ What kind of liability your exposed to for “accidental” discharges.

✓ What it means when the law says that “bullets follow their intent”.

✓ Why you should know your backstops.

✓ When things really go wrong a conceal and carry permit won’t immune you from a murder charge.

✓ That 45-60 years can be really sobering.

✓ Why it may pay off to talk to an attorney before you get your permit and before things go wrong.

✓ What types of self defense claims will and won’t be available for you when you get arrested for an incident that involved your gun that you had a permit to carry.

✓ When it comes to preventing a forcible felony minding your own business may be the way to go.

✓ Defense of another should be limited to only some very specific type of people.

✓ Defending yourself also comes with its own complicated considerations.

✓ That when you shoot someone they always turn out to be the next Nelson Mandela or Mother Teresa.

✓ With his own real life examples situations where things went terribly wrong.

✓ When your right to self defense dissipates and disappears.

✓ That when you're carrying being the calmest guy in the room is going to help you in court.

✓ What you should do in those moments immediately after an event. (Seriously, you need to think about this way before anything actually happens so that when and if it does you are following a known protocol.)

✓ Securing your scene is not just a tv thing; there are serious reasons why you’ll want to do this.

✓ What to say when you pick up the phone and dial 9-1-1.

✓ Why a description of yourself & and what you look like may save your life.

✓ The only certainty after an event is that you ARE GOING TO GET ARRESTED; there is no “conceal and carry” get out of jail card. (The point is that Thomas really walks us through the process and prepares you for what happens after the handcuffs go on.)

✓ What should you say and not say during your interrogation.