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People v. Tolbert, 2016 IL 117846 (January 2016). Episode 137 (Duration 3:45)

AUUW liability by a person under 21 can be avoided if the minor is “on the land or in the legal dwelling of another person as an invitee with that person’s permission.”

The exact language of the statute is…

A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly:

“Carries on or about his or her person or in any vehicle or concealed on or about his or her person except when on his or her land or in his or her abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person's permission, any pistol, revolver, stun gun or taser or other firearm…and the person possessing the weapon was under 21 years of age and in possession of a handgun unless the person under 21 is engaged in lawful activities under the Wildlife Code or described in subsection 24-2(b)(1), (b)(3), or 24-2(f).”

See 720 ILCS 5/24-1.6(a)(1), (a)(3)(I).

The case dealt with the “invitee” section of the code.

The Illinois Supreme Court said this section of the aggravated unlawful use of a weapon statute is NOT an element of the offense.

Where an act is made criminal, with exceptions embraced in the enacting clause creating the offense, so as to be descriptive of it, the People must allege and prove that the defendant is not within the exceptions so as to show that the precise crime has been committed.

In other words, where the exception is descriptive of the offense it must be negatived in order to charge the defendant with the offense. The plain language of section 24-2 establishes that the invitee requirement of section 24-1.6 was intended by the General Assembly to be an exemption to the offense of aggravated unlawful use of a weapon and not an element of the offense.

Therefore, this Defendant needed to plead this defense just like any other affirmative defense.

This is considered an exemption to the charge and must, therefore, an affirmative defense.

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People v. Chambers, 2016 IL 117911 (January 2016). Episode 134 (Duration 8:58)

Defendant should have been granted a Franks Hearing, People v. Gorosteata, 374 Ill. App. 3d 203 (2007) is overruled.

This was a “John Doe” warrant, meaning the CI was brought before the judge and swore to the judge in person that he had bought drugs from Defendant in his home.

Defendant filed a motion for a Franks hearing alleging that the officer either knew that the allegations in the complaint were false or that he made the statements with reckless disregard for the truth.

Defendant had affidavit saying he was not at the house when the CI said he bought the drugs. The alleged CI also signed an affidavit saying the police coerced him into identifying the Defendant. The trial court denied Defendant's motion because the trial court the case law said that a Franks motion cannot be granted under “John Doe” circumstances.

However, the Illinois Supreme Court refused to adopt this rule. This rule only shields police misconduct such as conspiring with an informant or coercing an informant into making false statements in an affidavit or in testimony to the court.

Such a rule would undermine the purpose of Franks. The purpose of Franks is to provide meaningful, albeit limited, deterrence of and protection against perjurious warrant applications.

What is required is that the defendant’s preliminary showing be more than a mere request and more than an unsubstantiated denial and certainly something less than proof by a preponderance.

The rule is that when a defendant claims intentional, knowing, or reckless conduct by the affiant officer resulting in the presentation of false information to the issuing judge, the presence of the informant who allegedly provided that information is merely a factor to be considered when deciding whether a substantial preliminary showing has been made.

So here are the steps to getting a Franks hearing:

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.

Additionally, if the informant has self identified and the defendant has otherwise sufficiently alleged intentional, knowing, or reckless falsehoods in his Franks motion, whether this individual was the actual informant can be ascertained at an evidentiary hearing and the court does not need to depend on the State's disclosure of the informant. 

People v. Williams, 2016 IL 118375 (January 2016). Episode 133 (Duration 5:07)

The drug enhancement under 720 ILCS 570/408(a) remains “valid” but it doesn't apply when other sentencing enhancements kick in.

See my review of the lower court's opinion in this case.

The lower level reviewing court essentially invalidated the drug enhancement under 720 ILCS 570/408(a).

The lower court argued that 730 ILCS 5/5-8-2(a) (the “Extended Term” provision) of the Code provided “the exclusive authority for sentencing an offender to a term of imprisonment greater than the base level prescribed by statute.”

As such, the drug enhancement could never be used to go beyond the normal sentencing range.

The Illinois Supreme Court now says that 720 ILCS 570/408(a) is ambiguous and doesn't clearly articulate exactly when this “double enhancement” would kick in.

Thus, the rule of lenity prevented its application against the defendant in this case.

Defendant was convicted of a drug offense and had priors that made him eligible for mandatory X sentencing under 730 ILCS 5/5-4.5-95(b). Because he also had a prior drug conviction he was admonished that his range was 6-60 years (Mandatory X + Drug Enhancement).

The Illinois Supreme Court confirmed this was a mistake.

However, the rule now is that the Drug Enhancement is not dead but cannot be used in conjunction with another sentencing enhancement provision.

Apparently, it would only apply when a defendant has no other sentencing extensions applicable to him and, of course, has a current and a prior drug conviction.

People v. Williams, 2016 IL 118375 (January 2016). Episode 133 (Duration 5:07)

The drug enhancement under 720 ILCS 570/408(a) remains “valid” but it doesn't apply when other sentencing enhancements kick in.

See my review of the lower court's opinion in this case.

The lower level reviewing court essentially invalidated the drug enhancement under 720 ILCS 570/408(a).

The lower court argued that 730 ILCS 5/5-8-2(a) (the “Extended Term” provision) of the Code provided “the exclusive authority for sentencing an offender to a term of imprisonment greater than the base level prescribed by statute.”

As such, the drug enhancement could never be used to go beyond the normal sentencing range.

The Illinois Supreme Court now says that 720 ILCS 570/408(a) is ambiguous and doesn't clearly articulate exactly when this “double enhancement” would kick in.

Thus, the rule of lenity prevented its application against the defendant in this case.

Defendant was convicted of a drug offense and had priors that made him eligible for mandatory X sentencing under 730 ILCS 5/5-4.5-95(b). Because he also had a prior drug conviction he was admonished that his range was 6-60 years (Mandatory X + Drug Enhancement).

The Illinois Supreme Court confirmed this was a mistake.

However, the rule now is that the Drug Enhancement is not dead but cannot be used in conjunction with another sentencing enhancement provision.

Apparently, it would only apply when a defendant has no other sentencing extensions applicable to him and, of course, has a current and a prior drug conviction.

People v. Lerma, 2016 IL 118496 (January 2016). Episode 132 (Duration 5:16)

Illinois Supreme Court acknowledges that the legal landscape for eyewitness expert testimony has dramatically shifted from novel and uncertain to settled and widely accepted.

See also Podcast 027 summarizing the lower court on this eyewitness expert testimony issue.

Eyewitness misidentification is now the single greatest source of wrongful convictions in the United States, and responsible for more wrongful convictions than all other causes combined.

We not only have seen that eyewitness identifications are not always as reliable as they appear, but we also have learned, from a scientific standpoint, why this is often the case.

Today we are able to recognize that such research is well settled, well supported, and in appropriate cases a perfectly proper subject for expert testimony.

This trial judge abused his discretion in not allowing the defense to present an eyewitness expert witness.

The judge denied this expert because the judge felt that persons are less likely to misidentify someone they have met or know or seen before than a stranger. The judge's bias against this type of expert lead him to conclude that the expert testimony would generate a referendum on the efficacy of identification testimony generally and operate as an opinion on the credibility of the eyewitnesses themselves.

The IL Sup. Ct. concluded that there is no question that this is the type of case for which expert eyewitness testimony is both relevant and appropriate.

Especially in this case where the expert’s report directly addressed both of these points and stated the very opposite of what the trial court had previously assumed.

The report clearly stated that the factors impacting the reliability of eyewitness identifications can operate even when the witness is previously acquainted with the accused, and the expert would be careful to not include any opinion as to the credibility of any specific witness or any specific identification.

Thus, in relying on its own personal beliefs about how eyewitness identifications function as the primary basis for denying the admission of the expert’s testimony, the trial court in this case not only ignored the explicit contents the expert’s report but also effectively substituted its own opinion on a matter of uncommon knowledge for that of a respected and qualified expert.

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