Kane County Nuggets

People v. Nolan, 2019 IL App (2d) 180354 (April). Episode 627 (Duration 9:29)

Trial judge grants defendant’s motion to dismiss the indictment in part because the officer did not testify in the hearing.

Gist

This defendant filed a motion to dismiss the indictment. Trial judge granted the motion.

Facts

He testified at the hearing that he never told the officer the things the officer said he said. The officer never testified in the hearing and the state merely admitted the grand jury transcripts.

The trial judge noted that, in reviewing the transcript, “it’s like the prosecutor in this case testified.”

Trial Court Ruling

The court acknowledged that leading questions are permitted in grand-jury proceedings, but it commented that “sometimes the leading questions may get out of hand and present a false indication as to what actually happened.”

The court observed that the State could have called the officer to say “He really told me that” but they didn’t.

Point Of The Grand Jury

The grand jury determines whether probable cause exists that an individual has committed a crime, thus warranting a trial. 725 ILCS 5/112-4.

Interposing a grand jury between the individual and the government limits indictments for higher crimes to those offenses charged by a group of one’s fellow citizens acting independently of the prosecution and the court. In a sense it serves as a check on the prosecution. See United States v. Hogan, 712 F.2d 757, 759 (2d Cir. 1983).

In this independent position, a grand jury performs two distinct roles.

(1) It serves as an accuser sworn to investigate and present for trial persons suspected of wrongdoing.
(2) At the same time—and equally important—it functions as a shield, standing between the accuser and the accused, protecting the individual citizen against oppressive and unfounded government prosecution.

Challenging A Grand Jury

To preserve the grand jury’s independence in performing these vital roles, challenges to grand-jury proceedings are limited. DiVincenzo, 183 Ill. 2d at 255.

In general, a defendant may not question the validity of an indictment returned by a legally constituted grand jury. A defendant may not challenge the sufficiency of the evidence considered by a grand jury as long as some evidence was presented.

Narrow Exception To Challenge An Indictment

A defendant may, however, challenge an indictment that is procured through prosecutorial misconduct.

A defendant’s due-process rights can be violated if the prosecutor deliberately misleads the grand jury, knowingly uses perjured or false testimony, “or presents other deceptive or inaccurate evidence. However, the denial of due process must be “unequivocally clear” and the prejudice “actual and substantial.” People v. Holmes, 397 Ill. App. 3d 737, 741 (2010) (quoting People v. Oliver, 368 Ill. App. 3d 690, 695 (2006)). See Franks v. Delaware, 438 U.S. 154, 155-56 (1978). 

A Franks Hearing

Episode 134  – People v. Chambers, 2016 IL 117911 (January) (Defendant presented enough information such that he should have been granted a Franks Hearing, People v. Gorosteata, 374 Ill. App. 3d 203 (2007) is overruled.)

The purpose of Franks is to provide meaningful, albeit limited, deterrence of and protection against perjurious warrant applications.

The State contends that something more is necessary than a defendant’s testimony contradicting some aspect of the grand-jury testimony. Otherwise, the State argues, before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury.

The State points out that the reported cases have uniformly involved some type of objective proof that the grand-jury testimony in question was false or misleading. 

How To Get A Franks Hearing

Under Franks, if a defendant makes a “substantial preliminary showing” that a false statement was deliberately or recklessly included in an affidavit for a search warrant, and if the allegedly false information was critical to the probable-cause showing, the defendant is entitled to a hearing on whether the information was in fact false.

To challenge a grand jury indictment Defendant must make a substantial preliminary showing that is more than a mere request and more than an unsubstantiated denial and certainly something less than proof by a preponderance.

First, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine.

Second, there must be allegations of deliberate falsehood or of reckless disregard for the truth.

Third, those allegations must be accompanied by an offer of proof” and must “point out specifically the portion of the warrant affidavit that is claimed to be false.” The defendant must furnish affidavits or sworn or otherwise reliable statements of witnesses.

What Is A Substantial Preliminary Showing

In People v. Lucente, 116 Ill. 2d 133 (1987), the court considered what was needed to make the “substantial preliminary showing.” The court balanced the interest in permitting defendants a meaningful chance to make the required showing against the possibility of opening the floodgates to spurious challenges.

The court held that “Franks demands something more than a request, and even more than a defendant’s unsubstantiated denial.” Id. at 151. If no more were required, “Franks hearings would be held in every case.” Mini trials before the real trial would be commonplace. 

The State argues that the same concerns are present here.

Actually, no case discusses the quantum of proof necessary to establish a due-process violation based on false or misleading testimony. We leave for another day whether Franks provides the applicable standard for establishing due-process violations. However, we agree with the State that, at least under the facts here, defendant’s testimony did not warrant dismissing the indictment.

This Case

Here, nothing contradicted the officer’s grand-jury testimony except defendant’s testimony. The only evidence that the officer’s grand-jury testimony was false was defendant’s self-serving testimony in which he recalled the conversation differently.

There was no admission by the State or documentary evidence establishing that the grand-jury testimony was inaccurate.

The trial court’s real concern seems to have been the perfunctory way the case was presented to the grand jury, the court observing that the prosecutor appeared to be testifying. We are not unsympathetic to the trial court’s frustration with the prosecution’s cursory grand-jury presentation.

However, courts confronted with the issue previously have held that leading questions are permissible in grand-jury proceedings. See People v. Hirsch, 221 Ill. App. 3d 772, 779 (1991) (no “requirement that testimony before a grand jury cannot consist of monosyllabic responses”).

Holding

To allow a challenge such as defendant’s here would allow virtually any defendant to move to dismiss the indictment, deny having committed the offense, and argue that any contrary testimony before the grand jury was necessarily false.

Additionally, requiring the State to re-present its case at the hearing would negate the grand jury’s historic independence in performing its vital functions, making the court the ultimate arbiter of probable cause.

Moreover, as the State points out, such a practice would also usurp the role of the petit jury. At bottom, the court’s decision here was based on its finding that defendant’s testimony at the hearing was credible. The State is correct that it is the jury’s function to resolve factual disputes, assess witness credibility, and determine the sufficiency of the evidence.

 The judgment of the circuit court of Winnebago County is reversed and the cause is remanded for further proceedings.

See Also

• Episode 610 – People v. Rebollar-Vergara, 2019 IL App (2d) 140871 (March) (Prosecutors Questions Could Have Been Presented More Clearly And Completely In The Grand Jury Room But No Misconduct Here)
• Episode 144 – People v. Boston, 2016 IL 118661 (February) (This was very sloppy grand jury questioning but no prejudice to defendant resulted.)
• Episode 615 – People v. Garcia, 2019 IL App (2d) 161112 (March). (Prosecutor used an inartful example to illustrate accountability, but this was not plain error.)
• Episode 067 – People v. Williams, 2015 IL App (1st) 122745 (March) (Improper Witness Vouching | Was This Prosecutor Vouching For His Witness?)
• Episode 047 – People v. Haynes, 2015 IL App (3d) 130091 (January) (Did the prosecutor instruct a witness to lie at trial?)
• Episode 257 – People v. Jones, 2016 IL App (1st) 141008 (October) (Prosecutor Made The Statements But Trial Judge Gets Slapped Around)
• Episode 165 – Prosecutor Quits After Allegation Of Perjury
• Episode 148 – People v. Weinke, 2016 IL App (1st) 141196 (March) (court could not ignore the misrepresentation made by the state)
• Episode 127 – People v. Mpulamasaka, 2016 IL App (2d) 130703 (January) (Prosecutorial Misconduct Leads to Rape Reversal)
• Episode 333 – People v. O’Dette, 2017 IL App (2d) 150884 (March) (How Not To Run A Grand Jury Every Single Detective In Lake County Is Sworn In As a Grand Jury Investigator | Subpoena Abuse Ensues)
• Episode 596 – In re Appointment of Special Prosecutor, 2019 IL 122949 (January) (Grand Jury Secrecy Is Kind Of A Big Thing Press Not Allowed To Get Some Documents) 

People v. Buffer, 2019 IL 122327 (April). Episode 625 (Duration 8:41)

Illinois Supreme Court says anything over 40 years is a de facto life sentence.

Gist

A jury found defendant guilty of four counts of first degree murder (720 ILCS 5/9-1(a)(1), (a)(2)), and specifically found that defendant personally discharged a firearm that caused the victim’s death.

Defendant was sentenced in July 2010. At that time, Illinois law prescribed a sentencing range of 20 to 60 years for first degree murder (730 ILCS 5/5-4.5-20(a)), and mandated a minimum 25-year additional prison term for personally discharging a firearm that caused the victim’s death (id. § 5-8-1(a)(1)(d)(iii)).

The court sentenced defendant to 25 years on the first degree murder conviction and 25 years for the mandatory firearm add-on, for an aggregate sentence of 50 years.

Issue

On a  postconviction petition, relying on Miller, defendant argued that his 50-year sentence, imposed for a crime committed when he was a juvenile, violated the eighth amendment because it constituted a de facto life sentence.

Before this court, the State urges us to decide when a prison sentence for a term of years imposed on a juvenile defendant is the functional equivalent of life without parole. 

We choose to determine when a juvenile defendant’s prison term is long enough to be considered a de facto life sentence without parole.

Procedural History

The appellate court concluded that,

(1) Pursuant to Reyes, defendant’s 50-year sentence was a mandatory de facto life sentence and
(2) The circuit court failed to consider defendant’s youth and its attendant characteristics in imposing sentence.

Therefore, defendant’s sentence violated the eighth amendment.

The appellate court vacated defendant’s sentence and remanded his case to the circuit court for resentencing under the juvenile sentencing statute (730 ILCS 5/5-4.5-105). This case comes before us in the context of a postconviction proceeding.

Youthful Offender Rules Apply To Cases In Collateral Review

This court held that Miller applied retroactively to cases on collateral review. Davis, 2014 IL 115595, ¶¶ 39, 42. The United States Supreme Court subsequently held likewise, concluding that Miller was a substantive constitutional rule that applied retroactively. Montgomery, 577 U.S. at ___, 136 S. Ct. at 736.

Miller thereby rendered life without parole an unconstitutional penalty for that category of juvenile offenders whose crimes reflect the transient immaturity of youth. “As a result, Miller announced a substantive rule of constitutional law.” Further, Miller’s substantive rule of constitutional law applies retroactively to cases on state court collateral review.

De Facto Life Sentences & Geriatric Release

 The State contends that experience and common sense compel the conclusion that a 50-year sentence for a juvenile offender is not unsurvivable and thus is not prohibited for juvenile homicide offenders whose crimes reflect the transient immaturity of youth. The State argues that prison terms of less than 54 years for juvenile offenders are not functionally equivalent to life without parole.

The State posits that a prison term of somewhere between 54 and 59 years for a juvenile offender is functionally equivalent to life without parole. Defendant responds that the State’s survivability standard is arbitrary, unjustified, and unworkable.

The parties disagree as to whether, or to what extent, actuarial tables and other statistical data support their respective arguments for and against “survivability.” Some courts have held simply that Miller is triggered whenever a court imposes a sentence on a juvenile that results in a geriatric release. Practically, and ultimately, the prospect of geriatric release does not provide a juvenile with a meaningful opportunity to demonstrate the maturity and rehabilitation required to obtain release and reenter society.

The Wisdom of the General Assembly

We choose a different course, one already charted by the entity best suited to do so—the General Assembly. Relevant to the instant case, the United States Supreme Court decided Miller in 2012, and this court decided Davis in 2014. In February 2015, House Bill 2471 was introduced in the General Assembly and ultimately enacted as Public Act 99-69, adding section 5-4.5-105 to the Unified Code of Corrections. Pub. Act 99-69 (eff. Jan. 1, 2016) (adding 730 ILCS 5/5-4.5-105).

This statute provides a new sentencing scheme for defendants under the age of 18 when they committed their offenses. Before any sentence is imposed, subsection (a) requires the sentencing court to consider several “additional factors in mitigation in determining the appropriate sentence.” 730 ILCS 5/5-4.5-105(a). This list is taken from and is consistent with Miller’s discussion of a juvenile defendant’s youth and its attendant characteristics. See Holman, 2017 IL 120655, ¶¶ 45-46 (citing Miller, 567 U.S. at 477-78). Further, subsections (b) and (c) provide that the imposition of firearm enhancements is a matter of discretion with the court. 730 ILCS 5/5-4.5-105(b), (c).

Significantly, subsection (c) of the new juvenile sentencing statute provides in pertinent part as follows:

“(c) Notwithstanding any other provision of law, if the defendant is convicted of first degree murder and would otherwise be subject to sentencing under clause (iii), (iv), (v), or (vii) of subparagraph (c) of paragraph (1) of subsection (a) of Section 5-8-1 of this Code based on the category of persons identified therein, the court shall impose a sentence of not less than 40 years of imprisonment.”

Id. § 5-4.5-105(c).

It must be remembered that the sentencing ranges for first degree murder for an adult offender are 20 to 60 years (id. § 5-4.5-20), 60 to 100 years with a finding of various aggravating factors (id. § 5-8-2), and natural life imprisonment with a finding of specified aggravating factors (id. §§ 5-4.5-20, 5-8-1).

40 Years Sounds Right However, the General Assembly has determined that the specified first degree murders that would justify natural life imprisonment for adult offenders would warrant a mandatory minimum sentence of 40 years for juvenile offenders. The legislature evidently believed that this 40-year floor for juvenile offenders who commit egregious crimes complies with the requirements of Miller. In determining when a juvenile defendant’s prison term is long enough to be considered de facto life without parole, we choose to draw a line at 40 years.

This specific number does not originate in court decisions, legal literature, or statistical data. It is not drawn from a hat. Rather, this number finds its origin in the entity best suited to make such a determination—the legislature.

Extrapolating from this legislative determination, a prison sentence of 40 years or less imposed on a juvenile offender provides “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Miller, 567 U.S. at 479 (quoting Graham, 560 U.S. at 75).

Holding

We hereby conclude that a prison sentence of 40 years or less imposed on a juvenile offender does not constitute a de facto life sentence in violation of the eighth amendment.

In the case at bar, defendant committed an offense, at age 16, that subjected him to a legislatively mandated minimum sentence of 45 years and for which he received a sentence of 50 years. Because defendant’s sentence was greater than 40 years, we conclude that defendant received a de facto life sentence. We also conclude that the circuit court failed to consider defendant’s youth and its attendant characteristics in imposing that sentence.

Therefore, we hold that defendant’s sentence violates the eighth amendment. Accordingly, we vacate defendant’s sentence as unconstitutional pursuant to Miller, Montgomery, Reyes, and Holman. The cause is remanded to the circuit court of Cook County for resentencing in accordance with section 5-4.5-105 of the Unified Code of Corrections (730 ILCS 5/5-4.5-105).

See Also

• Episode 618 – People v. Corral, 2019 IL App (1st) 171501 (March) (This Was A Youthful Offender Who Got 31 Years This May Be How They Go From Now On)
• Episode 551 – People v. Harris, 2018 IL 121932 (October) (How To Handle “Big Number” Sentencing For 18-21 Year-Olds)
• Episode 457 – People v. Rodriguez, 2018 IL App (1st) 160030 (September) (An Extension Of De Facto Life Sentences But Is It Proper?)
• Episode 525 – People v. Coty, 2018 IL App (1st) 162383 (August) (Intellectually Disabled Defendant’s Should Be Treated Like Minors When It Comes To Sentencing)
• Episode 413 – People v. Holman, 2017 IL 120655 (September), People v. Hoy, 2017 IL App (1st) 142596 (September), People v. Evans, 2017 IL App (1st) 143562 (August) (Discretionary Life Sentence For Youngsters, De Facto Life Sentences, And More Fun With Young Violent Offenders)
• Episode 281 – People v. Harris, 2016 IL App (1st) 141744 (December) & People v. Horta, 2016 IL App (2nd)140714 (December) (2 Youthful Offenders 2 Different Sentences)

People v. Drake, 2019 IL 123734 (March). Episode 620 (Duration 11:14)

Although the reversal is still good the lower court judgement that double jeopardy barred a retrial is reversed.

Gist

Defendant was sentenced to 20 years’ imprisonment for aggravated battery of a child.

Facts

At defendant’s bench trial, the nurse testified that, as a registered nurse, she treated J.H. in the pediatric intensive care unit at Stroger Hospital for burns to his buttocks, genital area, and legs.

When the nurse entered his room one day, J.H. called to her and stated he was going to tell her something. J.H. then revealed that defendant poured hot water on him while he was in the bathtub.

When the nurse asked if J.H. had done anything to upset defendant, J.H. replied that he had done nothing.

Statement Came In

The trial court ruled that J.H.’s statement was admissible under the hearsay exception for statements made for purposes of medical diagnosis or treatment. See Ill. R. Evid. 803(4).

Lower Court Opinion

The appellate court held that the trial court erred in admitting J.H.’s statement identifying defendant as the offender under the hearsay exception for statements made for the purpose of medical diagnosis and treatment.

The appellate court concluded the hearsay statement was not made for that purpose and admission of the statement could not be considered harmless error.

Barred Retrial

The appellate court further held that the double jeopardy clause barred retrial because the evidence presented by the State was insufficient to prove defendant guilty of the offenses beyond a reasonable doubt.

Issue Now

According to the State, the appellate court failed to give adequate weight to J.H.’s out-of-court statement identifying defendant as the offender in its double jeopardy analysis. 

More On The Statement

J.H.’s hearsay statement that defendant poured hot water on him was the only evidence that defendant was even present in the bathroom, but the statement is inconsistent with Dr. Fujara’s opinion that the burns could have resulted only from forcible immersion.

Additionally, the evidence showed the hot and cold water lines were reversed, and the hot water temperature was 160 degrees, indicating the burns could have been caused accidentally. Defendant, therefore, concludes that this court should affirm the appellate court’s judgment. The applicable law is well established.

Double Jeopardy

The double jeopardy clause prohibits a second, or successive, trial to afford the prosecution another opportunity to provide evidence that it failed to present at the first trial. People v. Lopez, 229 Ill. 2d 322, 367 (2008).

The double jeopardy clause does not preclude retrial when a conviction has been overturned because of an error in the trial proceedings, but retrial is barred if the evidence introduced at the initial trial was insufficient to sustain the conviction. Lopez, 229 Ill. 2d at 367.

“For purposes of double jeopardy all evidence submitted at the original trial may be considered when determining the sufficiency of the evidence.” People v. Olivera, 164 Ill. 2d 382, 393 (1995).

Retrial is the proper remedy if the evidence presented at the initial trial, including any improperly admitted evidence, was sufficient to sustain the conviction. People v. McKown, 236 Ill. 2d 278, 311 (2010). 

On Double Jeopardy See Also...

• Episode 583 - People v. Shoevlin, 2019 IL App (3d) 170258 (January) (Serious double jeopardy concerns are raised when the judge declares a mistrial in this domestic battery case.)
• Episode 398 – People v. Kimble, 2017 IL App (2d) 160087 (September) (judge declares a mistrial too early and now the state cannot recharge defendant).
• Episode 279 – People v. Staple, 2016 IL App (4th) 160061 (December) (defendant plead guilty to misdemeanor DUI, so the trial judge dismissed the felony DUI without implicating double jeopardy)
• Episode 389 – People v. Threatte, 2017 IL App (2d) 160161 (August) (prosecutor got sick in the middle of trial and mistrial was declared)
• Episode 040  – People v. Guillen, 2014 IL App (2d) 131216 (November) (defendant tried to plead guilty to a misdemeanor DUI, the the judge allowed them to dismiss the charges so they could indict on felony charges)
• Episode 041 – More on Double Jeopardy Definition
• People v. Ventsias, 2014 IL App (3d) 130275 (July) (Double Jeopardy Does Not Attach on dismissed Charge, Double Jeopardy Attaches After a Guilty Plea)

Double Jeopardy Concerns

Double Jeopardy

The fifth amendment to the United States Constitution, made applicable to the states via the fourteenth amendment, provides, in part, that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const., amend. V. See also Ill. Const. 1970, art. I, § 10; 720 ILCS 5/3-4.

The double jeopardy clause protects against

(1) a second prosecution for the same offense following acquittal, 
(2) a second prosecution for the same offense following conviction, and 
(3) multiple punishments for the same offense.

However, the rules with regard to double jeopardy, however, should not be applied in a mechanical nature, especially if the situation is such that the interests the rules seek to protect are not endangered and a mechanical application would frustrate society’s interest in enforcing its criminal laws.

The Expert Witness

In this case, a rational trier of fact could have credited Dr. Fujara’s testimony that J.H.’s burns resulted from forcible immersion in hot water. Indeed, Dr. Fujara provided the only expert testimony explaining J.H.’s burns.

In this case, Dr. Fujara offered persuasive expert testimony that J.H.’s burns resulted from forcible immersion in hot water.

Dr. Fujara’s testimony ruling out alternative causes rebuts defendant’s argument that J.H. may have been burned accidentally as a result of the faulty water heater installation. We conclude that the trial court reasonably credited Dr. Fujara’s testimony that J.H.’s injuries resulted from forcible immersion.

Was The Evidence Sufficient Beyond A Reasonable Doubt?

The critical issue, therefore, becomes whether the evidence was sufficient to conclude beyond a reasonable doubt that defendant was the offender.

• The evidence showed defendant was the only adult present in the house at the time J.H. was injured.
• He did not seek prompt treatment for the severe injuries suffered.
• Kid taken to the hospital for treatment only after the other children informed their mother.
• The injuries apparently occurred when J.H. took a bath at some point in the morning.
• J.H.’s mother did not return home from work until late that night.
• Defendant lied at the hospital about his name and relationship.
• And, of course, the expert evidence outlined above.

Accordingly, substantial evidence pointed to defendant as the offender even without the excluded hearsay statement.

Before concluding that the evidence was insufficient to prove defendant guilty beyond a reasonable doubt, the appellate court observed that “J.H.’s erroneously admitted hearsay statement was the only piece of evidence placing defendant in the bathroom where the injury occurred” and “[t]he State provided no other identification evidence.” 2017 IL App (1st) 142882, ¶ 40.

Analysis

Although the appellate court mentioned the excluded hearsay statement in its analysis, we do not believe that statement was given the proper weight.  The excluded hearsay statement is, therefore, competent evidence that defendant caused J.H.’s injuries for the purpose of the sufficiency of the evidence analysis.

Further, all of the evidence, including J.H.’s hearsay statement, must be viewed in the light most favorable to the prosecution. Given that standard, we believe a rational trier of fact could have considered J.H.’s hearsay statement simply as an identification of the person who caused his injuries.

We do not believe a rational trier of fact is required to completely discount the part of J.H.’s statement identifying defendant as the person who caused his injuries merely because part of his statement is not perfectly consistent with the expert’s testimony.

In sum, our decision in this case is guided by the standard for reviewing this issue.

Holding

We must determine whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  We believe the evidence, including J.H.’s hearsay statement identifying defendant as the person who caused his injuries, was sufficient when viewed in the light most favorable to the prosecution for a rational trier of fact to find defendant guilty beyond a reasonable doubt.

Accordingly, the double jeopardy clause does not bar retrial, and this case must be remanded to the circuit court for retrial without the excluded hearsay evidence.

People v. Smith, 2019 IL App (3d) 160631 (March). Episode 619 (Duration 14:06)

Kid is available for cross even though they don't remember the actual allegation of sexual abuse.

Gist

Defendant was charged with predatory criminal sexual assault of a child (720 ILCS 5/11- 1.40(a)(1)) in that he placed his penis in the mouth of J.H.

Charges

The information alleged that defendant was 17 years of age or older at the time of the offense and J.H. was under 13 years of age. The State filed a motion for a hearing pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10). 

The court found defendant guilty of predatory criminal sexual assault of a child and aggravated kidnapping.

115-10 Statement

The State sought a ruling that J.H.’s recorded interview at the CAC would be admissible if J.H. testified and was subject to cross-examination. After a hearing, the court ruled that the recording of the interview would be admitted into evidence as an exception to the hearsay rule pursuant to section 115-10 of the Code.

Facts

7 year old female victim was at an auction with her 8 year old brother and grandpa.

A man took her into a camper and forced her to undress and put her mouth on his penis. Grandpa found her in the camper and chased the man. He was caught.

The child described the even in a recorded interview.

On The Stand

On the stand she testified to the events of the day including parts of the auction.

Then she said could not remember what happened inside the camper. During cross-examination, defense counsel asked J.H.

• questions about watching the recording of the interview previously,
• whether she had discussed the case with anyone,
• what defendant was wearing at the time of the incident, and
• whether J.H. saw defendant getting in trouble with his mother after the incident.

Defense counsel did not ask any questions about the incident itself.

J.H. answered all of defense counsel’s questions.

Independent Witnesses

Four witnesses testified that they were at the auction on the day of the incident.

They all saw a man running and heard another man yell to stop him. They all later identified defendant as the man they saw running.   

Sentence

The court sentenced defendant to natural life imprisonment for predatory criminal sexual assault of a child, which was mandatory based on defendant’s prior conviction for aggravated criminal sexual assault. The court sentenced defendant to 20 years’ imprisonment for aggravated kidnapping, to be served consecutively with his sentence for predatory criminal sexual assault of a child.

Issue

Defendant argues that his right to confront his accusers was violated in that the recording of J.H.’s interview at the CAC was admitted into evidence but J.H. was unavailable for crossexamination.

Specifically, defendant contends that J.H. became unavailable as a witness when she testified at trial that she could not remember the portion of the incident that comprised the offense of predatory criminal sexual assault of a child.

Confrontation

Both the United States Constitution and the Illinois Constitution guarantee a criminal defendant the right to confront his or her accusers. U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8.

“When the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements...The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.” Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004).

“In general, a witness is considered to be present, available for, or subject to cross-examination when the witness takes the stand, is placed under oath, and willingly answers questions, and the opposing party has an opportunity to cross-examine the witness.” People v. Dabney, 2017 IL App (3d) 140915, ¶ 19. The key inquiry in determining whether the declarant is available for cross-examination is whether the declarant was present for cross-examination and answered all of the questions asked of him or her by defense counsel.

Where the declarant appears for cross-examination, even where the declarant does not testify to the substance of his hearsay statement, its admission is a nonevent under the confrontation clause. People v. Garcia-Cordova, 2011 IL App (2d) 070550-B, ¶ 66.

Many Illinois cases have held that child victims of sex offenses were available for cross-examination for purposes of the confrontation clause where they testified at trial and answered the questions posed to them during cross-examination even if they were unwilling or unable to testify as to some or all of charged conduct. See Dabney, 2017 IL App (3d) 140915, ¶ 20 (collecting cases).

“A gap in the witness’ recollection concerning the content of a prior statement does not necessarily preclude an opportunity for effective cross-examination.” People v. Flores, 128 Ill. 2d 66, 88 (1989). “There are no confrontation clause problems merely because the witness’s memory problems preclude him from being cross-examined to the extent the parties would have liked.” People v. Leonard, 391 Ill. App. 3d 926, 934-35 (2009).

What About Rule 804(a)(3)?

Illinois Rule of Evidence 804 is called Hearsay Exceptions; Declarant Unavailable. The rule says,

 “Unavailability as a witness” includes situations in which the declarant–testifies to a lack of memory of the subject matter of the declarant’s statement..." 

Rule 804(a)(3).

Rule 804 concerns certain exceptions to the rule against hearsay that are applicable where a declarant is “unavailable as a witness.” Ill. R. Evid. 804.

To be sure, the definition of unavailability in Rule 804 applies when analyzing the admissibility of hearsay statements pursuant to the exceptions outlined in the rule. However, Rule 804 does not concern availability for cross-examination under the confrontation clause.

Defendant has cited no authority to support the proposition that the definition of unavailability in Rule 804 applies in the context of an alleged confrontation clause violation. We reassert that our supreme court has held that “a gap in the witness’ recollection concerning the content of a prior statement does not necessarily preclude an opportunity for effective cross-examination” for purposes of the confrontation clause.

People v. Learn Is Out

Defendant further relies on People v. Learn, 396 Ill. App. 3d 891, 899-900 (2009), for the proposition that a victim does not testify for purposes of the confrontation clause when the victim’s testimony is not incriminatory.

As we stated in Dabney, “we respectfully disagree with the conclusion reached by the appellate court in that case and do not believe that it reflects the current state of the law on this issue.” Dabney, 2017 IL App (3d) 140915, ¶ 21; see also In re Brandon P., 2013 IL App (4th) 111022, ¶ 44 (noting that much of the Illinois judiciary had distanced itself from Learn and that no court has cited it approvingly).

This Case

In the instant case, J.H. was available for cross-examination for purposes of the confrontation clause. She took the witness stand and willingly answered the questions posed to her by the prosecutor and defense counsel. She answered every question asked of her during cross-examination.

Although she testified that she could not remember what happened between the time she removed her clothing and the time her grandfather entered the camper, her lack of memory did not render her unavailable for cross-examination.

Holding

Conviction affirmed.

See Also

• Episode 433 - People v. Dabney, 2017 IL App (3d) 140915 (October) (kid was available for cross even though he she didn't describer everything)
• Episode 123 - People v. Burnett, 2015 IL App (1st) 133610 (December . (Witness Can Be Available Under Crawford But Unavailable Under Domestic Violence Statute)
• Episode 450 - In re T.Z., 2017 IL App (4th) 170545 (December) (Judge Gets A Little Too Involved With Kid On The Stand: 7 year old victim is allowed to whisper the damaging testimony to the judge who then repeated the statement for the record.)

People v. Corral, 2019 IL App (1st) 171501 (March). Episode 618 (Duration 11:38)

Kid got his eyewitness expert witness on the stand, but the witness was not allowed to get into what she thought about the reliability of the witness.

Gist

Buyers in a deal to purchase some cannabis instead shot the dealers in an attempt to take the weed. The shooter was a 16 year old. One man was hit 8 times and died.

The dealer identified defendant then picked his photo out of a live line-up.

Kid got 31 year sentence.

No Other Physical Evidence

There was no fingerprints, blood, or DNA belonging to defendant discovered at the crime scene. Police could not establish any direct phone contact between the shooter and other codefendant.

However, defendant’s cell phone was missing the “SIM card” and therefore he did not submit the cell phone to the Regional Forensics Computer Laboratory for analysis.

The Eyewitness Expert

Dr. Kimberly McClure testified as an expert in the field of eyewitness identification without objection.

She testified that even under optimal circumstances, i.e., where “a person has all the time in the world to view, the person is not under any duress or stress, and the person has an immediate opportunity to identify the person that they saw,”

there is only “67 to 70 percent” accuracy in those identifications.

Dr. McClure opined that the factors that tend to reduce the reliability of an eyewitness identification were present in the case.

Regarding Vargas’s degree of attention during his encounter with defendant, Dr. McClure testified that,

• the encounter commenced as something routine and not very memorable
• attention seemed to be on the older adult male that was involved not defendant
• the victim was focused on the weapon
• memory decay is an issue the longer a witness goes without making an ID
• on inattentive blindess

Inattentive Blindness

“Inattentive blindness” is where “we can interact with someone and we can see that person clearly, and it seems as if we are processing information about them but in fact we are not really processing information that’s related to the person’s face or how she or he might look and how we might subsequently be able to recognize them.”

Intervening Variables

Dr. McClure also discussed the “intervening variables” between the event and the actual identification that can impact memory.

Intervening variables “impact and change memory because we don’t just witness the event and never talk about it again.  We might tell our friends, we might tell our family members. Each time we are retrieving that information it has the potential to change how we remember that experience and how we remember the individual involved.

It is common for these intervening events to actually get incorporated into memories. We call that the misinformation effect.

48 Delay Here

Specifically addressing the 48-day delay between the shooting and the witness ID being presented with the photo array, Dr. McClure testified that it is a “very long time” in terms of memory. 

She noted that after 72 hours there is a detrimental effect on memory and it “drops off quickly, very fast. After 72 hours, 40 to 50 percent is a ballpark figure that I am pulling from my recollection.”

The Photo Array & Lineup

In this case, the lead detective and therefore not an independent administrator, conducted the photo array and lineup. Dr. McClure further testified that it was problematic that defendant was the only individual who appeared in both the photo array and the lineup.

According to Dr. McClure, one cannot be sure that the victim’s identification of defendant was because “he was actually there during the event or was it because he was the only person that was also in the photographic lineup.”

On cross-examination, Dr. McClure testified she was not compensated for her testimony apart from her travel and accommodation expenses and that this was the first time she had testified as an expert in eyewitness identification.

Helpful To The State

Dr. McClure testified that “most of the time people are pretty accurate” when describing basic features such as gender, ethnicity, and general physicality.

Dr. McClure further testified that memories related to traumatic experiences can be retained over time and that an individual’s memory can increase during a traumatic event. According to Dr. McClure, however, there is an upper limit to an individual’s ability to retain memories when under duress. Once an individual’s ability to cope with the stress is exceeded then his memory deteriorates.

Confidence & Retrieval Fluency

Dr. McClure also testified that when one is questioned over a period of time there is not an increase in accuracy in memory, but an increase in confidence. This means that someone can be confident in his memory because he has had “retrieval fluency,” i.e., he has practiced retrieving it and told a story to himself and others for so long that he is confident he is correct when in fact nothing has happened to affect the individual’s accuracy.

To this end, Dr. McClure further testified that while repeating a memory during an interview can “lock in an accurate memory” that only occurs where there is no misleading information or misinformation provided during the interview, because that misinformation can also be incorporated into the memory leading to “irretrievable effects.”

Dr. McClure also testified that the victim had the opportunity to go over the details of the event with detectives and the state’s attorneys several times. In that vein, Dr. McClure testified that eyewitness confidence or certainty is not a good indicator of accuracy and that the retrieval process can actually inflate confidence “so people appear as if they are more confident about what they saw but they are not any more accurate about what they experienced.”

Not Allowed

The only testimony Dr. McClure was excluded from presenting was her own opinion as to whether or not Vargas’s identification of defendant as the shooter was reliable.

Issue

Defendant maintains the trial court abused its discretion when it did not allow Dr. McClure to testify regarding her ultimate opinion of whether or not the victim's testimony was reliable.

Opinion On Credibility Testimony

Notably, in Lerma, Dr. Loftus also indicated he would not “issue judgments” about whether the witnesses’ memories or assertions were correct and that any part that implied the unreliability of the eyewitness should not be construed as meaning that the defendant was innocent. 

Under Illinois law, it is generally improper to ask one witness to comment directly on the credibility of another witness. People v. Kokoraleis, 132 Ill. 2d 235, 264 (1989); People v. Henderson, 394 Ill. App. 3d 747, 753-54 (2009). This is because “[q]uestions of credibility are to be resolved by the trier of fact.” Kokoraleis, 132 Ill. 2d at 264.

Thus, in this case the trial court did not abuse its discretion when it prohibited the defense from presenting Dr. McClure’s opinion regarding the reliability of Vargas’s identification.

Holding

We observe that “[a] trial court is not required to allow an expert to render an opinion on every conceivable question simply because such expert is qualified to do so.” People v. Cloutier, 156 Ill. 2d 483, 502 (1993). Given the facts of this case, the trial court properly limited Dr. McClure’s testimony, as such testimony could constitute direct, adverse comment on Vargas’s credibility.

In doing so, the trial court correctly left the issue of whether the State established the identification of the shooter to the jury. Therefore, based on the record before us, we find that the trial court’s decision was not arbitrary or unreasonable and does not amount to an abuse of discretion.

We therefore conclude that the trial court did not err in prohibiting Dr. McClure from testifying and rendering her opinion as to the reliability of Vargas’s identification, especially where such testimony “is clearly a function of the jury, not a purported expert.”

See Also

• Episode 293 -  People v. Anderson, 2017 IL App (1st) 122640 (January) (Trial court distinguishes Lerma to deny the use of an eyewitness expert in this case where the facts were stronger against defendant.)
• Episode 604 - People v. Macklin, IL App (1st) 161165 (March) (defense counsel no ineffective for not calling an eyewitness expert witness)  
• Episode 132 – People v. Lerma, 2016 IL 118496 (January)(Eyewitness Expert Testimony Validated by Illinois Supreme Court)
• See also Podcast 027 summarizing the lower court on this eyewitness expert testimony issue
• Episode 247 - Interview With Karen Daniel on Eyewitness Expert Litigation
• Episode 246 - Interview With Shari Berkowitz Expert on Eyewitness Identification
• Episode 578 -In re N.A., 2018 IL App (1st) 181332 (December) (No expert called in this single finger eyewitness identification case)
• Episode 392 - In re Christian W., 2017 IL App (1st) 162897 (August) (clear case where police fed the witness information)

People v. Ruiz, 2019 IL App (1st) 152157 (March). Episode 617 (Duration 15:47)

Defendant's conversation with his buddy is recorded and his friend kept telling him he always takes things to far.

Gist

Defendant was convicted of murder. He shot a killed a guy.

Issue

Prior to trial, defendant again tried to exclude recorded statements by filing a motion in limine to preclude the introduction at trial of a conversation between defendant and co-arrestee that took place in adjacent rooms at the police station shortly after the incident.

Defendant stated that he had asserted self-defense and the reasonableness of his actions was directly at issue.

According to defendant, his buddy’s commentary about defendant’s past actions was irrelevant, inadmissible, and highly prejudicial

Facts

As the victim was returning from purchasing cocaine and said, “What’s up?” to defendant, who was about 10 feet away from the victim.

Defendant asked, “Well, what you is?”, and the victim replied, “GD Folks.”

Defendant walked toward the victim, shot him three times, and ran to the back passenger seat of the Taurus, which left the area. 

The Car Stopped

Shortly after the shooting police stopped the car. Defendant had a gun on his lap.

Defendant, a female driver, and defendant's buddy were all arrested and taken into custody. They were taken to a police station and placed in separate rooms. Defendant’s and his buddy’s rooms were across from each other. Each room had video surveillance that was activated the entire time each person was in custody. A video camera is permanently mounted in the corner of each room and records anything that happens inside the room.

The Conversation

At one point, the men started talking to each other in Spanish. 

On the video and the recording you hear the buddy just wanting to know what happened. He wakes up in the car and the police are arresting everybody. He’s asking defendant what happened.

Defendant says things like:

"We did a f*** job, dude. I did it. I caught—I caught an a*** over there, dude. I caught a f***, dude. I let him have it, dude. Dude, you were—you were sleeping or very drunk, dude. I filled a guy with lead close range, n***. Close range—I filled him with lead, dude. He fell, dude, in front of me, dude. And when I—and when I tried to fill him up with lead again I didn’t have anymore, dude. I let him have like four or five, dude. Hey dude!"

The buddy repeatedly made statements such as, “You always take things too far.”

During the conversation, his buddy stated,

“You always take things too far,”

“You guys f*** take things too far, dude,”

“For real, dude, you guys take things too f*** far,”

“You went too far, dude,”

“Come on, man. No s*** man, you guys take things too f*** far,” and

“You guys take s*** too far, dude.”

Accountability

A defendant is legally accountable for another person’s criminal conduct when “either before or during the commission of an offense, and with the intent to promote or facilitate that commission, he or she solicits, aids, abets, agrees, or attempts to aid that other person in the planning or commission of the offense.” 720 ILCS 5/5-2(c).

To establish that a defendant intended to promote or facilitate a crime, “the State may present evidence that either (1) the defendant shared the criminal intent of the principal, or (2) there was a common criminal design.” People v. Fernandez, 2014 IL 115527, ¶ 13.

“Under the common-design rule, if ‘two or more persons engage in a common criminal design or agreement, any acts in the furtherance of that common design committed by one party are considered to be the acts of all parties to the design or agreement and all are equally responsible for the consequences of the further acts.’ ” Fernandez, 2014 IL 115527, ¶ 13 (quoting In re W.C., 167 Ill. 2d 307, 337 (1995)).

Admission By Silence 

The court found that the conversation between defendant and his buddy was not entitled to any constitutional protections because it was not prompted by the police or law enforcement. The court further stated that the statements were voluntary and defendant “could have said, ‘Listen, you’re out of line by saying this,’ otherwise it could be considered *** an admission by silence.”

At the hearing on defendant’s motion, the State asserted that his buddy’s words added context to the conversation.

Tacit Admission

Defendant argues that the court should have excluded the statement that defendant had gone “too far” and the numerous statements about “you guys” taking things “too far.” Defendant asserts that the tacit admission rule is flawed and at a minimum should not apply here because defendant was in police custody when the statements were made.

Under the tacit admission rule, a defendant’s silence may be introduced as a tacit or implied admission of guilt if the defendant remains silent in the face of an accusation of criminal conduct. People v. Sneed, 274 Ill. App. 3d 287, 295 (1995). When an incriminating statement is made in the presence and hearing of an accused and the statement is not denied, contradicted, or objected to, both the statement and the failure to deny it are admissible at trial as evidence of the accused’s acquiescence in its truth. People v. Childrous, 196 Ill. App. 3d 38, 53 (1990).

For the statement to be admitted, the following elements must be met:

(1) the defendant heard the accusative statement,
(2) the defendant had an opportunity to reply and remained silent, and
(3) the accusation was such that the natural reaction of an innocent person would be to deny it.

People v. Goswami, 237 Ill. App. 3d 532, 536 (1992).

The statement does not need to be made in an accusatory tone as long as it is evident that the defendant “was being painted or portrayed as a participant in illegal and prohibited activity.” People v. Miller, 128 Ill. App. 3d 574, 584 (1984). Further, “acquiescence or assent may be manifested by silence or by an evasive, equivocal, or unresponsive reply.” Childrous, 196 Ill. App. 3d at 53.

See Also

People v. Boston, 2018 IL App (1st) 140369 (December). Episode 580 (Duration 9:54) (In Illinois Post Arrest Silence Even Before Miranda Generally May Not Be Commented On)

Error To Apply The Rule Here

We decline defendant’s invitation to dispose of the tacit admission rule.

The tacit admission rule should not have been applied here to admit his buddy’s statements about defendant and “you guys” taking things “too far” and defendant’s failure to deny those statements.

It has been noted that tacit admissions should be “received with caution.” The tacit admission rule appears to be on particularly shaky ground when a defendant is in police custody and knows the police can hear his conversation, as in People v. Soto, 342 Ill. App. 3d 1005 (2003). See also Michael H. Graham, Cleary & Graham’s Handbook of Illinois Evidence § 802.7, at 679-80 (6th ed. 1994))), and that silence could be “motivated by many factors other than a sense of guilt or lack of an exculpatory story” (McCormick on Evidence § 262, at 306), such as “prior experience or the advice of counsel” (Powell, 301 Ill. App. 3d at 278).

Being in jai is a “unique” circumstance, it could not “reasonably be expected that defendant would feel free to respond” to his co-arrestee’s comments.

The statements by his buddy that defendant and “you guys” take things “too far” and defendant’s failure to deny those statements should not have qualified as tacit admissions.

Like the defendant in Soto, defendant here was under arrest and in a room at a police station. Further, defendant knew that an officer could hear him because he called for an officer multiple times while he spoke with his buddy. We find that defendant’s surroundings militate against applying the tacit admission rule to the specified statements made by his buddy and defendant’s failure to deny them.

Holding

We conclude that there is no reasonable probability that the jury would have acquitted defendant if his buddy’s statements had been excluded. The State’s evidence was overwhelming.

The judgment is affirmed.

People v. Rebollar-Vergara, 2019 IL App (2d) 140871 (March). Episode 616 (Duration 15:29)

Defendant gets into an argument with a guy and his buddy ups and shoots him, then sloppy questioning happens in the grand jury room.

Facts

Defendant and his buddy approach a rival gang member and trash talking ensues.

At one point the defendant’s buddy takes out his gun and fires 10 shots at the guy. One shot hits him in the back and the man dies. The shooter is convicted of murder in his own trial and gets 62 years.

This defendant says he didn’t know his buddy had a gun and didn’t know he was going to shoot the guy.

More Details

Defendant and the shooter were in the same gang, with the shooter allegedly serving in the role of security for the gang. Defendant and the shooter allegedly acted with the belief that the victim was a member of a rival gang. The state also showed that:

• Defendant and the shooter walked to the convenience store, encountered the victim at the counter, and trash talked. Defendant and the shooter quarreled with the victim as he backed out of the store and across the parking lot.
• Defendant admitted that he wanted a “one-on-one” fistfight with the victim, but the shooter shot him first.
• The surveillance video shows the shooter flashing gang signs at the victim.
• Defendant had gang tattoos.

Issue

Defendant says he is not accountable and says the indictment should have been dismissed because the evidence presented at the hearing showed that defendant did not confess or flash gang signs and the officers contrary testimony improperly affected the grand jury’s deliberations. Defendant argues that the statement was misleading because the surveillance video, which the grand jury did not view, does not show him flashing gang signs.

Convicted

The jury found defendant guilty of first-degree murder and also found that, during the commission of the offense, defendant, or one for whom he was legally responsible, was armed with a firearm. The court sentenced defendant to 38 years’ imprisonment.

Accountability

The trial turned on whether defendant was accountable for the shooter’s conduct, which the State attempted to show with evidence that defendant and the shooter were acting with a common criminal design to harm the victim, motivated by the victim’s disrespect to them and their gang.

“Accountability is not a crime in and of itself but, rather, a mechanism through which a criminal conviction may result.” People v. Pollock, 202 Ill. 2d 189, 210 (2002).

A defendant is legally accountable for another person’s criminal conduct when “either before or during the commission of an offense, and with the intent to promote or facilitate that commission, he or she solicits, aids, abets, agrees, or attempts to aid that other person in the planning or commission of the offense.” 720 ILCS 5/5-2(c).

To establish that a defendant intended to promote or facilitate a crime, “the State may present evidence that either (1) the defendant shared the criminal intent of the principal, or (2) there was a common criminal design.” People v. Fernandez, 2014 IL 115527, ¶ 13.

Says He Didn't Know

Defendant insists that he had no idea that the shooter would shoot the victim and therefore he did not share a common criminal design with the shooter.

Mere presence at the scene of a crime, or even presence coupled with flight from the scene or knowledge of the commission, is not sufficient to establish accountability. It's noteworthy that a third man was with the defendant's. He didn't approach the victim and stayed clear of the whole thing. He was not charged.

Unless an alleged accomplice intends to aid the commission of a crime, no guilt attaches. Perez, 189 Ill. 2d at 268. 

Common Design Rule

“Under the common-design rule, if ‘two or more persons engage in a common criminal design or agreement, any acts in the furtherance of that common design committed by one party are considered to be the acts of all parties to the design or agreement and all are equally responsible for the consequences of the further acts.’ ” Fernandez, 2014 IL 115527, ¶ 13 (quoting In re W.C., 167 Ill. 2d 307, 337 (1995)).

The State’s position was that defendant and the shooter acted with a common criminal design to harm the victim, and, to establish defendant’s accountability, it relied on his statement that he exited the store with the intent to fight the victim when the shooter shot him.

He's Accountable

Here's what the evidence was:

• Defendant and the shooter, were members of the same gang, and
• Defendant thought the victim was a member of a rival gang.
• Defendant was heard to make, and admitted making, gang references to the victim
• While arguing and talking trash with him.
• Defendant also admitted previously having a fistfight with the victim.
• Defendant admitted that he knew the shooter
• But was evasive about their relationship and the shooter’s role as the shooter.
• Defendant admitted that he exited the store intending to fight the victim.
• Defendant fled with the shooter.
• Defendant talked to police only after they sought him out.

The State presented ample evidence from which the jury could infer that defendant’s trash talking and pursuing the victim from the store was a cue to the shooter to escalate the confrontation

The shooter’s act of shooting the victim was in furtherance of the common design to harm the victim. Evidence of an express agreement between defendant and the shooter was not necessary to establish a common purpose to commit a crime, as defendant’s cues to the shooter established his participation in the criminal scheme, even though there was no evidence that defendant directly participated in the actual crime of shooting the victim.

Prosecutorial Misconduct

A prejudicial denial of due process can occur where an indictment is procured through prosecutorial misconduct. Legore, 2013 IL App (2d) 111038, ¶ 23. “ ‘The due process rights of a defendant may be violated if the prosecutor deliberately or intentionally misleads the grand jury, uses known perjured or false testimony, or presents other deceptive or inaccurate evidence.’ ” Oliver, 368 Ill. App. 3d at 694 (quoting People v. DiVincenzo, 183 Ill.2d 239, 257 (1998)).

To warrant dismissal of the indictment, the denial of due process must be unequivocally clear, and the prejudice must be actual and substantial. Oliver, 368 Ill. App. 3d at 694-95. Prosecutorial misconduct resulting in a due process violation is actually and substantially prejudicial only if the grand jury would not have otherwise indicted the defendant. Legore, 2013 IL App (2d) 111038, ¶ 23. 

Prejudice is shown if the evidence was so weak that the misconduct induced the grand jury to indict. Oliver, 368 Ill. App. 3d at 697-98.

The Grand Jury

In this case, the officer answered “yes” to several questions that allegedly conveyed to the grand jury that defendant “confessed” and flashed gang signs at the victim.

The two sets of questions were:

(1) “Subsequently the two defendants were arrested?” and “They did make confessions, is that correct?” and

(2) “As the victim began to walk out of the store, one of the defendants started flashing gang signs at him?” and “The defendants are following the victim out of the store flashing gang signs and arguing with him, is that correct?”

Furthermore, the challenged statement was immediately preceded by the officer affirming that, “as the victim began to walk out of the store, one of the defendants started flashing gang signs at him.”

What Does Confess Mean Anyway?

The Officer's statement that defendant “confessed” was ambiguous and not necessarily false.

Defendant defines “confession” as “a written or spoken statement in which you say that you have done something wrong or committed a crime.” Definitions of “confess” include “to tell of or make known (something private, hidden, or damaging to oneself)” and “to admit as true; assent to; acknowledge, especially after a previous doubt, denial or concealment.” Webster’s Third New International Dictionary 475 (1993).

Defendant claims that he, in fact, “did not confess to any involvement in the murder,” but that assertion is refuted by defendant’s acknowledgements during the police interview. Defendant’s initiation and escalation of the confrontation is now undisputed since the police confronted him with the surveillance video during the interview. Defendant admitted that he was at the convenience store and was at least a former member, if not a current member, of the gang.

Defendant admitted that he directed gang-related trash talk at the victim, whom he identified as a rival gang member. Defendant also admitted that he followed the victim into the parking lot with the shooter and intended a fistfight with the victim while the shooter looked on. He also admitted during his police interview that he argued with the victim as they exited the store.

No Prejudice

Defendant has not shown an “unequivocally clear” due process violation.

Even if the officer's affirmations regarding “confessions” and who flashed gang signs were inaccurate, we conclude that they did not cause “actual and substantial” prejudice.

The validity of the indictment did not turn on whether defendant explicitly “confessed” to being accountable for the shooter’s conduct or flashed gang signs at the victim. The grand jury heard detailed evidence that defendant and the shooter were fellow gang members who jointly confronted and aggressively pursued the victim, who they thought was a rival gang member. From these facts, we cannot say that “without [the complained-of testimony] the grand jury would not have indicted the defendant.” See Oliver, 368 Ill. App. 3d at 696-97.

The remaining evidence supported the grand jury’s determination of probable cause based on defendant’s actions.

Judge Had More Facts During The Hearing

The remaining evidence presented at the hearing shows that defendant admitted to conduct supporting the inference that he and the shooter shared a common criminal design. Defendant’s initiation and escalation of the confrontation was confirmed by the surveillance video that was viewed by the trial court at the hearing. At the request of defense counsel, the trial court also viewed portions of the video-recorded police interview of defendant. 

Counsel made the calculated decision that the surveillance and interview videos undermined the officer’s testimony.

In this appeal we are called upon to determine whether the trial court erred in denying defendant’s motion to dismiss the indictment after conducting a hearing that included the presentation of this evidence. The facts known at the time of the hearing were that:

• Defendant admitted that he was at least a former member of the Latin Kings.
• Defendant admitted directing gang-related trash talk at the victim,
• Whom he identified as a rival gang member.
• Defendant admitted that he and the shooter followed the victim into the parking lot
• Defendant admitted he intended to fight the victim.

Under these circumstances, the grand jury would have indicted defendant even if the challenged testimony by the officer had been excised from the proceedings.

As such, there was no unequivocally clear denial of due process resulting in actual and substantial prejudice.

Holding

We agree with the court that the officer’s testimony could have been presented more clearly and completely, and we do not condone the ambiguities that the prosecution elicited. However, to obtain a dismissal of the indictment for a due process violation, defendant had the burden of establishing that the error was “unequivocally clear” and resulted in “actual and substantial” prejudice. Defendant’s challenge to the indictment rises and falls on this extremely limited scope of review, which supports the court’s decision not to dismiss the indictment.

We hold that the trial court did not err in denying defendant’s motions to dismiss the indictment. We conclude that there was sufficient evidence to support the indictment, even without the challenged testimony that defendant confessed to the police and flashed gang signs at the victim. Second, we hold that the trial court did not abuse its discretion in excluding the shooter’s statement that defendant should not be charged. Third, we hold that the State’s closing argument did not amount to reversible prosecutorial misconduct.

Finally, the evidence presented at trial supported the murder conviction beyond a reasonable doubt.

There Is A Strong Dissent

The majority has exhausted itself trying to find a way to justify―or, at the very least, excuse―the State’s false claim of defendant’s confession; it has misstated law, conjured evidence, and created a false construct wherein the trial court, rather than the grand jury, determines probable cause based on evidence not presented to the grand jury.

Taken to its logical conclusion, the majority’s position supports the theory that no evidence need be presented to the grand jury so long as the defendant is convicted; the lack of evidence before the grand jury is harmless error if the petit jury is presented with proof beyond a reasonable doubt. If this satisfies due process, then I submit that the grand jury is a subverted vestigial organ that needs to be abandoned and replaced.

The majority essentially gives the State carte blanche to present whatever it wants to the grand jury, no matter how false and deceptive, so long as there is any evidence, no matter how equivocal, to support the resulting indictment. That is not the law, never was the law, and should never be the law if the grand jury is to serve its traditional purpose. No longer “a ‘shield’ against arbitrary prosecutions” (Rodgers, 92 Ill. 2d at 289), the grand jury becomes the proverbial mushroom that is kept in the dark and fed false confessions.

See Also

• People v. Garcia, 2019 IL App (2d) 161112 (March). Episode 615 (Duration 15:28) (Prosecutor used an inartful example to illustrate accountability, but this was not plain error.)
• People v. Hernandez, 2017 IL App (2d) 150731 (January). Episode 306 (Duration 9:04) (Defendant is accountable for this 7 kilogram heroin deal (he did the heat run).)
• Don't Beat-Up A Person With An Enlarged Heart - People v. Doolan, 2016 IL App (1st) 141780 (November). Episode 263 (Duration 6:47) (Defendant is accountable for first degree murder because him and his buddies decided to start a fight with a victim with an enlarged heart)
• What Is Criminal Accountability? - Episode 054 (Duration 16:17) (I created a simple 2 page accountability cheat-sheet for criminal law attorneys. I keep this towards the front of my trial book. It comes in handy in accountability cases when I need exact language quickly)
• People v. Boston, 2016 IL 118661 (February 2016) (Episode 144 Duration 6:29) (Sloppy grand jury work does not prejudice the defendant.)

People v. Garcia, 2019 IL App (2d) 161112 (March). Episode 615 (Duration 15:28)

Prosecutor used an inartful example to illustrate accountability, but this was not plain error.

Gist

Following a trial in the circuit court of Boone County, a jury found defendant, Ricardo A. Garcia, guilty of first-degree murder in connection with the shooting death of Giovanni Galicia (720 ILCS 5/9-1(a)(1), (a)(2), (a)(3)).

Defendant was also found guilty of mob action (720 ILCS 5/25-1(a)(1)). He was found not guilty, however, of the attempted murders of Jesus Casas and Fermin Estrada.

Sentence

The court sentenced defendant to 35 years in prison for first-degree murder, to be served consecutively to a 2-year sentence for mob action.

Facts

Defendant was the driver of black Navigator.

Two men got out of it and pepperred a rival gang members’ car with bullets. The victim got hit in the head and died.

The men then got back in the care and defendant drove away. A police chase ensued and defendant was caught.

Inartful Closing Argument

Although the State’s examples were inartful, we hold that any error that occurred does not require reversal pursuant to either prong of the plain-error doctrine.

Comment 1

In attempting to explain accountability the proseuctor said:

“Now, we recognize this concept every day and we probably don’t even think about it during lawful activities. For example, if you go to JC Penney’s and you want to buy blue jeans and you go into the store and there’s a sales clerk walking by and you stop her and say, ‘Excuse me. Where are your blue jeans?’ And she says, ‘Oh, they’re on the back wall.’ So you go to the back wall, you pick out your Levis, and you go to the cash register and another woman rings you out. Now, the question is who sold you the jeans? Was it JC Penney, was it Levi Strauss, was it the salesperson who pointed you to the back wall, or the salesperson who took your money? Well, in truth they all are responsible for selling you the jeans because they all facilitated the sale. We also see this that we don’t need to see an expressed agreement to know that there was a plan."

Comment 2

The prosecutor continued:

"Again, if you’re walking along the sidewalk next to a park and you watch a car pull up, there’s a parent in the front seat and two children get out and run and start playing in the park, you know that there was a common plan to go to the park between those three people. You know that it existed before they arrived at the park. They decided sometime to go to the park. They got in the car and drove to the park. That plan existed before they got to that park, and you have no evidence of an expressed agreement to go to the park, but you have no problem with the concept that the parents are responsible for the children being at the park because they facilitated that transaction. You don’t need an expressed agreement. You can tell by the circumstances that there was an agreement to go to the park.”

What Was Wrong With The Statements?

These examples, in and of themselves, failed to provide complete and accurate representations of the law of accountability.

Neither scenario mentioned any sort of criminal activity.

Of course, one cannot be held criminally accountable for another’s actions in the absence of a crime. The examples also failed to illustrate that a defendant is not accountable for another’s conduct unless the defendant acts with the intention of promoting or facilitating the commission of an offense. 720 ILCS 5/5-2(c).

Kids Are Dumb

Moreover, the park example did a poor job of illustrating the supposed common plan among the occupants of the vehicle.

The prosecutor asserted that the children, who were of unspecified ages, must have planned in advance to go to the park simply because their parent ended up taking them there. That is not necessarily the case. What if the parent did not tell the children in advance that they were going to the park? What if the parent did not form any plan to take the children to the park until he or she happened to pass the park on the way to a different destination?

Additionally, as defendant correctly notes, driving a person to a destination does not in itself make the driver legally accountable for the passenger’s acts.

Harmless Error

With that said defendant’s concerns about the prosecutor’s use of the phrase “expressed agreement” in the park example are a bit overstated.

The prosecutor clearly used this phrase as part of his attempt to illustrate, albeit through a questionable example, that the State does not need to prove express words of agreement between codefendants and that the common design may instead be inferred from the surrounding circumstances.

Defense Counter Example

Furthermore, defense counsel in his closing argument specifically informed the jury of some of the problems with the prosecutor’s park example:

“Now, when we talk about—when he talks about his analogies, he talks about, well, when you go to a park and two kids get out of the car and they run to the park, you know there was an agreement to go to the park. Okay. When those kids start getting in a fight with somebody else there, the parents did not agree for that fight. The parents did not intend for that fight. The parents did not plan for that fight. They are not accountable for that fight. Merely getting the kids to the park or merely getting these people to this area is not accountability. It is not guilty and it is not beyond a reasonable doubt.”

Holding

Considering that

    Settings

(1) the two examples at issue constituted a small portion of the State’s closing argument, which otherwise reflected a proper legal theory,
(2) defense counsel took the opportunity to explain to the jury the flaws in one of those examples, and
(3) the judge properly instructed the jury, there is no threat that the jury was under any misapprehensions about the applicable law.

For these reasons, defendant has not demonstrated second-prong plain error. 

Conviction affirmed.

People v. Johnson, 2019 IL App (1st) 162517 (March). Episode 614 (Duration 11:45)

No valid jury waiver in the record even though he apparently signed the waiver form.

Charges

Defendant was charged with armed violence (720 ILCS 5/33A-2(a)), possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(1)(B)), and the unlawful use or possession of a weapon by a felon (720 ILCS 5/24-1.1(a)).

Trial Date Set

After the court discussed defendant’s decision to reject the plea with defendant, the court asked for a trial date and “what kind of trial.”

Defense counsel answered “bench.”

The cause was continued “for bench indicated.”

The file was placed on the bench trial call. On the trial date the case was then passed. When the case was recalled, the court stated that the parties “answered ready for a bench trial in this matter.” Defendant’s signed jury waiver is contained in the record on appeal, and the “Criminal Disposition Sheet” indicates “waiver taken.”

Found Guilty

After a bench trial the court found defendant guilty of armed violence, possession of heroin with the intent to deliver, and the unlawful use or possession of a weapon by a felon.

The trial court merged the unlawful use or possession of a weapon count into the armed violence count and sentenced defendant to 15 years in prison for armed violence. The court also sentenced defendant to a consecutive nine-year sentence for possession of heroin with the intent to deliver.

Issue

On appeal, defendant contends that this cause should be remanded for a new trial because he did not waive his right to a jury in open court.

Right To Jury Trial

The right to a jury trial is protected by the United States Constitution (U.S. Const., amends. VI, XIV) and the Illinois Constitution (Ill. Const. 1970, art. I, § 8) and has been codified by the Illinois legislature.

The right to a jury trial is a fundamental right guaranteed by our federal and state constitutions. People v. Bannister, 232 Ill. 2d 52, 65 (2008). Although the right to a jury trial is fundamental, a defendant remains free to waive that right. Bracey, 213 Ill. 2d at 269.

Any such waiver must be “understandingly” made by the defendant in open court. 725 ILCS 5/103-6. Under section 103-6 of the Code of Criminal Procedure of 1963 (725 ILCS 5/103-6), a bench trial may be held if the right to a jury trial is

“understandingly waived by defendant in open court.”

A written waiver as required by section 115-1 of the Code of Criminal Procedure of 1963, is one means of establishing a defendant’s intent, although not dispositive of a valid waiver. This section provides that

“[a]ll prosecutions except on a plea of guilty or guilty but mentally ill shall be tried by the court and a jury unless the defendant waives a jury trial in writing.”

An Effective Waiver

Generally, a jury waiver is valid if it is made by defense counsel in open court in the defendant’s presence, without objection by the defendant. Id. at 270. “For a waiver to be effective, the court need not impart to defendant any set admonition or advice.” Id. (citing People v. Smith, 106 Ill. 2d 327, 334 (1985)).

Therefore, “the effectiveness of a defendant’s waiver depends on the facts and circumstances of each particular case” and turns on “whether the waiving defendant understood that his case would be decided by a judge and not a jury.” See People v. Reed, 2016 IL App (1st) 140498, ¶ 7 (citing Bannister, 232 Ill. 2d at 66, 69).

A reviewing court can consider a defendant’s silence when his attorney requests a bench trial as well as his “prior interactions with the justice system in determining whether a jury waiver was made knowingly. See also People v. Asselborn, 278 Ill. App. 3d 960 (1996) where the the court found that, despite the absence of a written jury waiver, the record demonstrated that the defendant knowingly waived his right to a jury trial in open court because he was present and failed to object when defense counsel elected to proceed by way of a bench trial. 

Signed Waiver Insufficient

Although the record contains defendant’s signed jury waiver, the record contains nothing that shows defendant was informed he was entitled to choose between a jury or bench trial or that he waived his right to a jury trial on the record. In other words, there is no indication in the record that defendant “understandingly waived” (725 ILCS 5/103-6) his right to a jury trial in open court.

Furthermore, while defense counsel mentioned a bench trial several times on the record, counsel did so only in the context of scheduling and at no point waived the right to a jury trial on defendant’s behalf. See, e.g., People v. Watson, 246 Ill. App. 3d 548, 549 (1993) (“Vague references to a bench trial at the rescheduling conferences were not sufficient to constitute a valid jury waiver, especially in light of the fact that the record is devoid of evidence suggesting that the defendant was ever apprised of his right to a jury trial.”).

See also People v. Ruiz, 367 Ill. App. 3d 236, 239 (2006) where this court has previously held, in a case where there was no discussion in open court of the defendant’s jury waiver but merely a signed jury waiver and discussion of a bench trial in terms of scheduling, that the defendant did not validly waive his right to a jury trial.

In other words, the existence of a written jury waiver is not dispositive of the issue of whether that waiver is valid.

In the case at bar, however, the trial court did not ask whether defendant wanted a bench trial or a jury trial, which would have indicated that defendant could choose how to proceed. There was no indication in the record that defendant knew he had a choice between a bench trial or a jury trial, and there was no discussion of defendant’s signed jury waiver in open court.

Holding

Accordingly, we find that defendant’s right to a jury trial was violated and he has, therefore, met his burden under the plain error doctrine.

Here, defense counsel and the trial court mentioned a bench trial several times on the record in the context of scheduling. This is not a valid jury waiver by, or on behalf of, defendant. Accordingly, we reverse the judgment of the circuit court and remand this cause for a new trial without reaching defendant’s other arguments on appeal. 

Compare This Case To…

People v. Thomas, 2019 IL App (2d) 160767 (March). 

In that case defendant refused to sign the jury waiver but still wanted a bench trial.

However, the failure to file a written jury waiver does not require reversal “so long as the defendant’s waiver was made understandingly in accordance with section 103-6 of the Code of Criminal Procedure.” People v. Tooles, 177 Ill. 2d 462, 468 (1997).

The trial court is not required to provide a defendant with any particular admonishment or information regarding the constitutional right to a jury trial, but it has a duty to ensure that any waiver of that right is made expressly and understandingly. People v. Hernandez, 409 Ill. App. 3d 294, 297 (2011).

“Regardless of whether the defendant executed a written jury waiver, the record must show that the defendant understandingly relinquished the right to a jury trial.”

Here, the trial court discussed defendant’s jury waiver at length in the presence of his attorney, who had also discussed the matter with him. He clearly didn’t want a jury trial.

See Also These Other Examples of Structural Error

• Episode 419 – People v. Sheley, 2017 IL App (3d) 140659 (October) (structural error when judge falls asleep during murder trial but the record didn’t establish that in this case)
• People v. Vargas, 174 Ill. 2d 355 (1996) (structural error when judge leaves the bench during a trial)
• Episode 452 – People v. Henderson, 2017 IL App (3d) 150550 (November) (judge brings the jury out to see a video and leaves them alone in the courtroom with court personnel)
• People v. McKinley, 2017 IL App (3d) 140752 (March) (not plain error when judge played the video in the courtroom)
• Episode – People v. Lewis, 2018 IL App (4th) 150637 (April) (4th District thinks it’s perfectly fine for trial judge to play video for the jury in the courtroom so long as they do it right.)
• Episode 270  – People v. Evans, 2016 IL App (1st) 142190 (December). (structural error when grandma kept out during voir dire)
• Episode 502 – People v. Gore, 2018 IL App (3d) 150627 (April). (not structural error judge locks the doors during a jury question)
• Episode 371 – Weaver v. Massachusetts, SCOTUS, No. 16-240 (June 2017) (petitioner’s mother and minister were excluded from the courtroom for two days during jury selection but no prejudice to petitioner)
• Episode 368 – People v. Thompson, 2017 IL App (5th) 120079-B (May)(failure to instruct the jury on an essential element of the case does not necessarily constitute plain error)
• People v. Belknap, 2014 IL 117094 (December) (failure of the trial court to get the Zehr admonishments right is not strictly plain error). See also People v. Thompson, 238 Ill. 2d 598, 609, 939 N.E.2d 403, 411 (2010); People v. Sebby, 2017 IL 119445 (June) (high court reexplains how plain error works)
• Episode 244 – People v. Buckhanan, 2016 IL App (1st) 131097 (September) (denial of your counsel of choice is structural error)

 

People v. Caraballo, 2019 IL App (1st) 171993 (March). Episode 613 (Duration 10:42)

Officer was not certified at the time of the breathalyzer, but he was substantially certified.

Gist

This is a DUI stop with an arrest.

The jury found defendant guilty of driving with an alcohol concentration of .08 or more and guilty of driving under the influence of alcohol. Defendant was sentenced to 12 months’ conditional discharge.

The Breathalyzer

The Officer testified that at the police station, he read defendant his Miranda warnings, and after the required 20-minute observation period, defendant agreed to submit to a breath test.

After The Officer described the test procedures employed, the State offered defendant’s breathalyzer ticket into evidence.

But...

The officer's certification had expired 5 days before the arrest.

He had 11 year employment with the Hickory Hills police department and had specific training for the administration of breath tests through “a class put on through NEMRT at the Burbank Police Department” in 2006 or 2007. He also took a three-day certification class that required him to take practical and written exams relating to the operation of a breathalyzer machine. After passing these exams, The Officer was certified to operate breath machines, specifically the Intoximeter EC/IR II used by the Hickory Hills police department, and he was recertified in 2010.

The officer was able to get recertified the very next day after this arrest. 

Issue

Defendant's sole argument on appeal is that the State did not lay a proper foundation for admission of the results of the breathalyzer test because the administrator of the test was not licensed at the time the test was given and therefore the court’s ruling on the State’s motion in limine was erroneous.

Admissibility of Breathalyzer

The admissibility of breathalyzer test results is governed by standards promulgated by the State Police as dictated by statute.

625 ILCS 5/11-501.2(a) of the Illinois Vehicle Code (Code) states in relevant part:

"(a) Upon the trial of any civil or criminal action or proceeding arising out of an arrest for an offense as defined in Section 11-501 or a similar local ordinance or proceedings pursuant to Section 2-118.1, evidence of the concentration of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof in a person’s blood or breath at the time alleged, as determined by analysis of the person’s blood, urine, breath or other bodily substance, shall be admissible.

Where such test is made the following provisions shall apply:

1. Chemical analyses of the person’s blood, urine, breath or other bodily substance to be considered valid under the provisions of this Section shall have been performed according to standards promulgated by the Department of State Police by a licensed physician, registered nurse, trained phlebotomist, certified paramedic, or other individual possessing a valid permit issued by that Department for this purpose. The Director of State Police is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, to issue permits which shall be subject to termination or revocation at the discretion of that Department and to certify the accuracy of breath testing equipment. The Department of State Police shall prescribe regulations as necessary to implement this Section.”

The Administrative Code

Section 1286.00 of Title 20 of the Illinois Administrative Code states:

“The Director or his/her designee is authorized to license persons to be BAOs [(Breath Alcohol Operators)] subject to the requirements of this Section. BAOs are licensed to perform all appropriate BAO functions described in this Part. Only licensed BAOs may operate evidential breath testing instruments.

a) To be eligible to be a BAO, the individual must be employed by an agency or an accredited law enforcement training academy. BAO candidates, including those who have previously been licensed as a BAO in another state, must successfully attend the course and pass the written and proficiency examination or successfully complete a computer-based training (CBT) course.

b) Under the direction and control of a BAI [(Breath Alcohol Instructor)], BAO candidates must:

1) Complete a training curriculum approved by the Department that includes a minimum of 16 hours of instruction, which includes the following:

A) Presentation and discussion of the psychological, physiological, and pharmacological effects of alcohol in the human body;

B) Demonstration and discussion of instruments and the analytical processes used to measure BrAC [(Breath Alcohol Concentration)];

C) Practical application and demonstration in the use of an evidentiary instrument; and

D) Discussion of current DUI issues, the administrative rules, and case law.

2) Pass the following:

A) The standardized written examination for Breath Analysis Operator provided by the Department with a minimum score of 70 percent.

B) A proficiency examination in which the candidate operates approved evidentiary instruments.

c) A license shall be valid for a period of three years after the printed date of issuance. If the license is not renewed as provided for in Section 1286.110, it shall expire three years after the printed date of issuance.”

20 Ill. Adm. Code § 1286.100.

The Case Law

The requirements for laying the proper foundation of breath test results were outlined by our supreme court in People v. Orth, 124 Ill. 2d 326, 340 (1988). To lay a proper foundation, the State must establish that the test was performed in accordance with both section 11-501.2(a) of the Illinois Vehicle Code (625 ILCS 5/11–501.2(a) (West 2010)) and the regulations promulgated by the Illinois Department of State Police.

The State must lay a foundation establishing five factors:

(1) evidence that the test was performed in accordance with the uniform standard adopted by the Illinois Department of State Police;
(2) evidence that the operator conducting the test was certified by the Department of State Police;
(3) evidence that the breath test machine used was a model approved by the Department of State Police, was working properly, and was tested regularly for accuracy;
(4) evidence that defendant was observed for 20 minutes prior to the test, and during that time, he did not smoke, drink or regurgitate; and
(5) evidence that the results on the “printout” sheet are properly identified as defendant’s test results.

Failure to comply with section 11-501.2(a) and the regulations renders the results of the test unreliable and, thus, inadmissible. People v. Emrich, 113 Ill. 2d 343, 350 (1986).

Substantial Compliance?

Because the administrator was not licensed at the time the test was administered, the breath test was not conducted in conformity with the regulations promulgated by the Department of State Police.

Both Ebert and Bishop involve challenges to tests that deviated slightly from the standards prescribed for administration of the test. These de minimis deviations did not affect the validity or reliability of the results. Substantial compliance was sufficient in those cases where a defendant was not continuously observed for the required 20-minute period because the defendant testified that he did nothing that, if he was observed, would have affected the test and where the State collected a second urine sample because the first sample was taken at the hospital following defendant’s automobile accident.

In this case we cannot find there was substantial compliance where the officer was not licensed at the time he administered the breath test: there simply was no compliance, as required by the statute and the Department’s standards.

The plain language contained in the Department standards and the finding in Orth specifically requires that, to be admissible in evidence, the breath tests shall be “performed” by a licensed administrator according to the standards. The test was not performed according to the required standards in this case, and the failure to strictly comply was not de minimis.

Holding

Because The Officer was not a licensed breath analysis operator at the time he administered the defendant’s test, the State failed to lay the required foundation for the admission of the breath test results in a section 501(a)(1) prosecution and it was reversible error to admit the results into evidence.

 Accordingly, defendant’s motion in limine should have been granted and the breath test results should not have been admitted. We therefore reverse defendant’s conviction for driving with an alcohol concentration of .08 or more (625 ILCS 5/11-501(a)(1)).

We find that there was overwhelming evidence from which the jury could conclude beyond a reasonable doubt that defendant was under the influence of alcohol while in physical control of the vehicle even without the admission of the breath test evidence.

Reckless Homicide Cases

See People v. Keith, 148 Ill. 2d 32 (1992). It's a reckless homicide case where BAC results that didn't comply with the code were admitted. The court held so long as the results were relyably the normal rules of evidence applied. The regs only applied to prosecutions under the DUI statute.

These cases don't help the state here.

More Interesting Facts

The officer was  originally stopped at a stop sign in his marked patrol vehicle when he observed a vehicle pass him and “the passenger’s side tires strike a curb, go over the curb, travel through the grass, just miss a tree and then come back into the lane of traffic.” As the vehicle came back into the lane of traffic, “the driver’s side tires then crossed the solid yellow line before coming back into the road.”

The Officer then initiated a traffic stop based on his observations.

The Officer observed that defendant had “glassy, bloodshot eyes” and “highly slurred” speech. Defendant also had a strong odor of alcohol coming from his mouth. Defendant told The Officer that he had a little to drink.

Defendant attempted to hand The Officer a bottle of Jack Daniels but he missed The Officer’s hand and the bottle fell to the ground.

The video from The Officer’s squad car was played in open court. It showed defendant complying with The Officer’s request to exit the vehicle. As defendant exited, he tripped and almost fell into moving traffic. The Officer had to stop him from hitting the ground.

The Officer asked defendant to complete some field sobriety tests and read the instructions for these tests from a book of standardized instructions. During the one-legged test, defendant placed his foot down, fell off balance, and raised his hand up. These actions suggested impairment. For the walk-and-turn-test, The Officer noted that defendant’s balance was “horrible,” and that he did not seem to understand the directions or The Officer’s demonstration. The Officer observed four or five clues of impairment, when only two are needed. 

The authenticated breathalyzer ticket showed a test result of .260.

See Also 

• Episode 470 - People v. Robledo, 2018 IL App (2d) 151142 (February). (Defendant blew .082 she argued the margin of error of the machine means the state didn’t prove she was .08.)
• Episode 454 - People v. Ernsting, 2018 IL App (5th) 160330 (January).  (Ronald Henson testified that blood in the mouth produces unreliable breathalyzer results and would tend to produce a disproportionately higher BAC.)
• Episode 271 - People v. Cielak, 2016 IL App (2d) 150944 (December).  (Observation period lasted only 19 minutes rather than 20. Is rescission of SSS proper?)
• Episode 035 - DUI Breathalyzer Machine and Procedure, DUI Expert Witness William Pelarenos Breaks it All Down
• Episode 211 - People v. Taylor, 2016 IL App (2d) 150634 (July) (Forced PBT leads to suppression of DUI evidence and DUI reversal.)