Kane County Nuggets

http://IllinoisCaseLaw.com/how-to-properly-preserve-an-issue-for-criminal-appeal

The Illinois Supreme Court once and for all explains how to properly preserve an issue for criminal appeal. Criminal trial attorneys must keep in mind that the civil rules are different and that some trial error is unforeseeable. 

Important points pertaining to the proper way to preserve and issue for appeal in criminal cases have been raised and highlighted by the Illinois Supreme Court in People v. Denson, 2014 IL 116231 (11/20/2014).

Criminal trial attorneys have been reading different cases and rules about the proper way to preserve an issue for appeal. The procedures have not always been the same.

The Illinois Supreme Court has finally cleared up some of the confusion out there on this issue. The Court pointed out that we have to remember that -

If we keep these ideas front and center together with the criminal golden rule of perfecting an appeal then everything actually makes sense.

What is the Criminal Golden Rule of Perfecting a Criminal Appeal?

You always have to file a post trial motion. 

All these points were recently discussed in Denson.

The issue there was weather or not the defendant forfeited an issue for appeal because he did not file his own motion in limine to exclude the evidence nor object contemporaneously to the evidence?

The Illinois Supreme Court declared that a defendant preserves an issue for criminal appeal by

(1) Raising it in either a motion in limine or a contemporaneous trial objection,
and
(2) Including it in the post trial motion.

See People v. Cox, 195 Ill. 2d 378, 382 (2001); People v. Hudson, 157 Ill. 2d 401, 434-35 (1993); People v. Boclair, 129 Ill. 2d 458, 476 (1989).

Forfeiture rules exist to encourage defendants to raise issues in the trial court before an appeal. This ensures that the trial court has an opportunity to correct any errors prior to appeal and that the defendant does not obtain a reversal through his or her own inaction. See, e.g., People v. Herron, 215 Ill. 2d 167, 175 (2005); People v. Reid, 136 Ill. 2d 27, 38 (1990).

Also, the system doesn't want a Defendant to invent appeal issues that were not real issues at the trial level.

Here, the state filed the motion in limine to admit conspirator statements.

This was a 6 page motion by the state followed by a 5 page written motion in response by the defense.

The court then had a formal hearing on the admissibility of the conspirator's statements. In this hearing, the defense argued against admissibility.

In his motion for a new trial, defense counsel argued that the trial court erred in admitting the statements.

The Court said that we can't get formalist about this. What matters is that the trial judge has at least two chances to rule on an issue.

One of those ways has to be in a post trial motion and the other way can be accomplished in one of two manners.

Here, it did not matter that it was the State that “started” the litigation on the issue of the admissibility of the conspirator statement.

Defendant took a position against their admissibility and filed an appropriate post trial motion, thus, defendant preserved that issue for appeal.

“The critical consideration in a case such as this is not which party initiated the in limine litigation, but rather whether the issue being raised was litigated in limine.” ¶ 13

It doesn't matter who raises the issues. The interests served are exactly the same.

Requiring the Defendant to file his own motion would have accomplished absolutely nothing.

The facts, issues, and arguments would have been the same if defense counsel filed his own motion.

“The purpose of Cox, Hudson, and Boclair is not to ensure that pretrial evidentiary issues are litigated twice. Rather, the point of these cases is to ensure that, whether by contemporaneous trial objection or in limine litigation, the trial court is given a full and fair opportunity to consider and rule upon the issue. That is exactly what happened here, and as defendant also raised the issue in a timely filed post trial motion, nothing more than that was required.” ¶ 13.

Since, the issues were litigated in the motion in limine, defense counsel was not required to make a contemporaneous objection at trial.

“In criminal cases, this court has held consistently that, to preserve an issue for review, a defendant must raise it in either a motion in limine or an objection at trial, and in a post trial motion." Cox, 195 Ill. 2d at 382; Hudson, 157 Ill. 2d at 434-35; Boclair, 129 Ill. 2d at 476.

That is exactly what defendant did here.

The Illinois Supreme Court will not require anything more. 

State tried to make this messy because there are some cases where defendants were required to make a contemporaneous objection at trial in order to preserve their issue.

The Supreme Court did a great job clarify all of this by pointing out that some objections can’t be raised by a  motion in limine because they are unknown or unforeseeable. Obviously, these types of issues have to be objected to contemporaneously because the motion in limine is impossible.

Trial things happen at trial.  Things like:

-only come up in a trial. Thus, defendant must raise the objection contemporaneously in those situation because a motion in limine won’t have converted them.

This, however, does not establish a blanket rule that every criminal issue must be objected to contemporaneously.

Additionally, the Court points out that the State confused the civil rule with the criminal rule.

In civil cases it is the rule that a party is required to raise an issue contemporaneously at trial in order to preserve the issue. That is because in civil cases post trial motions are not necessarily required.

Remember, the general rule is that a party must bring up an issue at least twice at the trial level to ensure that the trial court has been given a chance to review the issue.

In a criminal case that will happen once at the required post trial motion and before that during a motion in limine or a contemporaneous objection.

http://illinoiscaselaw.com/dui-checkpoints-questions-answered

The season for DUI Checkpoints is approaching fast. In The Criminal Nuggets Podcast episode 036, the foundations in the law authorizing DUI checkpoints is logically laid out. Once, this roadmap is established common questions about DUI checkpoints are answered and knocked out of the park.

[powerpress]

I created a PDF which lists all the relevant DUI checkpoints cases, including examples of DUI checkpoints that were done wrong.

There are cases in the record of DUI’s getting dismissed because of improperly conducted DUI checkpoints! I also created a chart featuring the main bullet points on a proper DUI checkpoint. To download this PDF click here.

People v. Ray, 327 Ill.App.3d 904, 764 N.E.2d 173 (5th Dist. 2002), citing City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447 (2000).

The defendant in People v. Ray was stopped in a drug interdiction checkpoint.

The law enforcement purpose for the traffic stop was to specifically search for and detect illegal drugs. After police dogs “indicated” (positively sniffed) on Ray’s car, he was further detained. His car was searched. Drugs were discovered.

The court said that the police cannot use a traffic checkpoint for this type of generalized crime control.

Generalized crime control, in this context, was defined as situations that specifically target the drivers. The driver’s themselves were being investigated and scrutinized. Yes, controlling drugs in society is an important state interest. However, the privacy interests of each individual driver was weighed more heavily. If this kind of traffic checkpoint were allowed, their would be no practical restraint on the police. Police would be to create any number of traffic roadblocks for any reason. Giving police unfettered control over when and where they could set up roadblocks against individual liberty is itself unreasonable.

Illinois v. Lidster, 540 U.S. 419, 124 S.Ct. 885 (2004).

This case reminds us that not every traffic checkpoint is illegal. In this case, the United States Supreme Court held that a traffic checkpoint set up to gather information on a homicide was permissible. In this type of a situation, the balancing of the interests falls on the side of law enforcement. The state interest was in seeking information on a death after a hit-and-run that occurred the day before the checkpoint was set up. Investigating a death is a compelling state interest. The individual privacy interest that was being impeded was weighed as being less significant. This side of the scale was affected by the fact that the drivers, themselves, were not the targets of a criminal investigation.  The drivers were merely being asked to provide information. This was something they were likely glad to do. It is reasonable to infringe on individual privacy concerns when the police are conducting a separate high level investigation.

People v. Bartley, 109 Ill. 2d 273, 486 N.E.2d 880 (1985).

DUI checkpoints combine factors of both permissible and impermissible traffic roadblocks. In a DUI checkpoint, the driver is the target. The driver is under investigation. The driver is the focus of police scrutiny. Courts have said this a huge factor for illegality. On the other hand, the State declares their interest as nothing short of saving lives. They have statistics and examples of the tragedy created by drunk driving. Furthermore, the police can point to spikes in traffic deaths around certain dates on the calendar. We all know what those dates. Reasonableness is ultimately found by weighing the competing interests against each other. The conclusion was that when a DUI checkpoint process is executed correctly by well known guidelines then it is legal. The guidelines must clearly establish a police hierarchy at the DUI checkpoint. The process must limit the amount of discretion the police have during the checkpoint. It must be done safely. It must be widely publicized. It must be brief in nature. (download my PDF summary)

When a DUI checkpoint is organized and executed correctly by law enforcement this outweighs the individual restraints on liberty that occur.

I always think its important to understand the foundations in the law for authorized police activity. When I want to probe the limits of any particularly police action, I start at this foundation.

DUI checkpoints give certain amount of power and authority to the police. This power is not unlimited. There are certain things that can and cannot happen in a DUI checkpoint.

1) Do I have to cooperate at all?

2) Do I have to them my driver’s license?

3) Do I have to roll my window down?

4) Can I pull out of the line or avoid the checkpoint?

5) What if the police put a fake or misleading signs?

6) Do I have to answer the police officer’s questions?

7) Do I have to get out of my car?

8) Do I have to do field sobriety tests?

9) Do I have to blow into a portable breath device?

10) Can they have police drug dogs there?

11) Can I still exercise my rights?

This question is not answered in the podcast. However, it is by no means less relevant or important.

12) Can I record my experience with a camera and microphone (to put it on youtube)?

In Illinois, the answer is “yes”. Podcast, 010 Police Misconduct-Let The Eavesdropping Begin, discusses how in Illinois eavesdropping is no longer illegal. You can download that episode here.

Eavesdropping is the ability to audio record a conversation with a person without that person’s permission. Video recording an act in public has always been legal. Therefore, in Illinois you may run a video recorder, with audio, in your car to capture your experience through the roadblock.

Eavesdropping is still illegal in some states.  Make sure you know the law in your state before you do something crazy like setting up a video/audio recorder in the car before you enter a DUI checkpoint.

Make sure you download this podcast. Have a fun and safe DUI Checkpoint season. Remember police are people too!

Download a comprehensive list of DUI checkpoint cases and a chart with bullet points featuring the correct elements of a DUI checkpoint.

http://illinoiscaselaw.com/dui-breathalyzer-machine-william-pelarenos

Its all about the DUI breathalyzer machine and BAC procedures this time. We are back talking with DUI Expert witness William Pelarenos. He breaks it down and lays it all out for us. You’ll find out what type of breathalyzer William liked best and why.

[powerpress]

William Pelarenos has nearly 30 years in law enforcement.

He was part of a Cook County Sheriff’s Department unit that focused on DUI enforcement. William was also an Illinois State certified standard field sobriety test instructor. He taught other police how to properly conduct field sobriety tests.

Today, William is a DUI expert witness. He educates attorneys, judges, juries and anyone else who is interested in the complicated subject of modern DUI criminal litigation.

He has also obtained thousands of breathalyzers samples. He was a state certified breathalyzer operator.

William has experience with

• Preliminary Breath Test Tests (PBTs)
• Recording Breath Tester (RBTs) (this one is portable)
• ECIR Breathalyzer

William not only does live presentations for the eager to learn, he also wrote a book. “DUIs Decoded” can be found on Amazon and Barnes and Noble.

There are three types of DUI breathalyzer machine used by law enforcement. In Podcast Episode 035 of the Criminal Nuggets Podcast, our guest tells us all about the variety of DUI breathalyzer machine.

The preliminary breath test breathalyzer (PBT) is typically used before the arrest. It is part of the probable cause that an officer uses to make a formal arrest.

These devices also happen to be extremely portable. They are hand held units often carried in a squad car.

The PBT is non-evidentiary in nature. That just means, that although the measurement from a PBT can be used to establish probable cause for a DUI arrest, the results are not admissible in evidence in the DUI trial of the person arrested.

PBTs are less reliable than the other machine. That is why they are non-evidentiary in nature.

The PBT must be certified every 92 days by the Illinois State Police.

The recording breath tester (RBT) is also a portable breathalyzer. This machine is larger than the PBT discussed above.

This machine, however, is evidentiary in nature. This means, unlike the the PBT, the recording breath tester will yield a BAC result that can be admitted in court.

The RBT must be certified every 62 days by the Illinois State Police.

This is the standard breathalyzer that we generally are thinking of when we imagine a police breathalyzer.

This unit is generally not portable. It is larger than the other machines described above. It is permanently located in the police station, in or near the lock-up or booking area.

The ECIR is evidentiary in nature.

The ECIR must be certified every 62 days by the Illinois State Police. Improper or non-existent certification may lead to inadmissibility of any BAC results obtained from an incorrectly calibrated or certified machine.

Click to Tweet the following from the podcast!

• Click Here - “The recording breath tester is mobile...and its evidentiary” - William Pelarenos
• Click Here - “New Years eve intoxicated motorist crashes his car...BAC obtained in the hospital.” - William Pelarenos.
• Click Here - “.3 or above you can die from alcohol poisoning.” - William Pelarenos

When he was on the job, William’s favorite breathalyzer was the RBT. This machine provided him with mobility and an admissible result.

This was the breathalyzer that he would have with him at roadside roadblocks and safety checkpoints.

On one occasion, William even took his RBT to a hospital. An injured motorist was ticketed for DUI. However, William was able to obtain a BAC result without the driver ever having to leave his hospital room.

Breathalyzers like all machines are not perfect.

An experienced defense attorney guided by the knowledgeable hand of a DUI expert may be able to identify problems in a breathalyzer sample. For example, there may be problems with the -

• Notice to Motorist
• Frequently Serviced/Broken Machines
• Late or Stale Calibration Results

One of the biggest mistakes an officer commits during a breathalyzer sample is an improper reading of the Notice to Motorist.

Now this may not sound earth shattering, but serious driver’s license implications are at play when a police officer is asking for a breath sample.

The Illinois rules and regulations require that a motorist be informed of their rights and the serious consequences that may result.

Improperly summarizing, paraphrasing, or no reading at all of the Notice to Motorist may result in the exclusion of a BAC result.

One technique that a defense attorney can use to identify a problem with the Notice to Motorist is to subpoena and obtain the lock-up video.

If this can be done, problems will be apparent because the process can be timed. Rushed jobs will be blatantly obvious.

Williams advice on spotting breathalyzer sample issues: “Check the logs.”

Also, you have to subpoena the repair logs. They won’t just give them to you. You have to specifically subpoena them. This may be the only way to discover a “problem” machine.

In regards to proper calibration of these machines, William lets us know the make sure and check that the gas samples used in these calibrations are not expired.

If canisters of gas in the machine are not changed out regularly or on time improper calibration will lead to unreliable results.

This DUI expert witness explains that a defense attorney will have to be proactive in obtaining all the appropriate DUI reports, videos, and logs. They don’t just give you this stuff. A healthy combination of subpoenas and discovery requests are often required to push the the State towards full disclosure.

Once an attorney can round up all the paper, William is great at sitting down with an attorney and decoding it all.

William Pelarenos can be reached by the following:

on Twitter at @policeproject1

by email at [email protected]

by phone at (708) 793-3980

http://policeproject1.com

http://williampelarenos.com

http://illinoiscaselaw.com/dui-expert-witness-william-pelarenos

DUI expert witness, William Pelarenos, sat down with me to chat about DUIs. Any defense attorney who handles DUI cases needs to sit down with an expert. I learned so much in so little time with William. Listen to Podcast Episode 034 of the Criminal Nuggets Podcast to drop in our conversation.

William Pelarenos is a retired police officer from the Cook County Sheriff’s Department. He had over 30 years of law enforcement experience. His last assignment was part of a DUI unit that primarily focused on DUI arrests.

William was also an Illinois State certified standard field sobriety test instructor. He taught other police how to properly conduct field sobriety tests.

William has obtained thousands of breathalyzers samples. He was a state certified breathalyzer operator.

William has experience with

• Preliminary Breath Test Tests (PBTs)
• Recording Breath Tester (RBTs) (this one is portable)
• ECIR Breathalyzer

William’s Book, “DUIs Decoded” can be found on Amazon and Barnes and Noble.

Click to tweet the following:

Click here - “I charge you nothing to come to your office and look at the case real briefly.
Click here -  “I was teaching police officer classes, when I retired I opened it up to everybody.”
Click here - “Everything is based on errors and omissions.”

In one of Williams’s last consultations, he didn’t even have to testify as an expert. He was able to help prepare the defense attorney for cross examination of the arresting officer during a motion to suppress.

With William’s guidance, the attorney was able to demonstrate to the court that the results of the field sobriety tests in that case were so unreliable that in essence no probable cause existed for the arrest. Defense counsel one that motion. The case was dismissed. William never had the chance to take the stand as a DUI expert witness.

In other cases, much of the consultation can focus on the errors, omissions or problems with the case. For example -

• Improperly Administered Field Sobriety Tests
• Incorrect or Missing FST Directions
• Directions Out of Order
• Rushed HGN
• No FSTs At All

One of the most important ways a DUI expert witness can be helpful is to provide an opinion to counter the other opinion the judge or jury will hear in the case.

That’s the cop telling the court that in their opinion your client was wasted the night he was arrested.

Sometimes, a DUI expert can sift through case file and formulate an opposite opinion,

Additionally, a DUI expert witness may be able to educate a jury. Lets face it some DUI cases can get complicated and technical. Why wouldn’t you want an experienced expert in your corner helping you explain complicated issues to the jury (and sometimes a judge)?

One big takeaway I developed after spending some time talking to William was that the very officers making all these DUI arrests, themselve, are not in any meaningful way experts in the DUI field.

 “A DUI investigation is a scientific investigation.” - William Parenos

Part of a defense attorney's job is to stop and critically analyze whether the arresting officer performed these field sobriety tests in a careful, systematic, standardized manner. This very much the same type of behavior that a scientist looking for reliable results would follow.

William can help you get down to the bottom of it.

William Pelarenos can be reached at

on Twitter at @policeproject1

by email at [email protected]

by phone at (708) 793-3980

http://policeproject1.com

http://williampelarenos.com 

http://illinoiscaselaw.com/fitness-hearing-fiasco

In this fitness hearing fiasco, a public defender paved the way for a finding of unfitness. This was completely opposite of what the client wanted. Defendant believed and wanted her attorney to argue that she was fit to stand trial. After she got treatment, got medicated, and regained fitness she didn’t thank her counsel. Instead, she appealed and claimed her attorney provided ineffective assistance of counsel for going against her.

People v. Holt, 2014 IL 116989 (11/20/2014). Listen to Podcast Episode 033 of the Criminal Nuggets podcast to discover this twist in criminal Illinois case law.

Was trial counsel being ineffective when she did not follow her client’s directive and argue for her fitness even though trial counsel personally believed her client was unfit to stand trial?

Defendant faced discorderly conduct charges and resisting arrest charges. She threw some eggs on a driveway and got out of line with the police who responded.

The record revealed a plethora of erratic, confusing, and unexplainable conduct by the defendant.

The court ordered fitness evaluation found her unfit to stand trial.

Defendant requested a jury on the issue of her fitness. That was a big fiasco, but it ended in a finding that she was unfit to stand trial.

Defense counsel argued forcibly for outpatient treatment. However, the court ordered inpatient treatment. The court was influenced by the doctor's opinion that Defendant would not comply with or cooperate with her treatment providers.

Defendant appealed and argued her trial counsel was ineffective. This was her argument:

“[D]efendant claims that when the People raise a bona fide doubt about a defendant’s fitness before trial and the defendant asserts that she is fit, defense counsel is constitutionally obliged to fight for a finding of fitness—even if the evidence tells counsel his client is unfit.” ¶ 49.

This case presented an opportunity to address the responsibilities of a criminal defense attorney with an unfit client. 

This case finally establishes a body of law that addresses the responsibilities of a defense attorney charged with representing an unfit client.  The court wisely concluded that this case cannot be the only instance where a troubled defendant and her defense counsel are at odds over the question of defendant’s fitness to stand trial.

The Illinois Supreme Court came down squarely in support of a defense attorney who does strictly advocate her client's demands. 

“No plausible interpretation of the right to counsel would require defendant’s lawyers to fight for an outcome that, in counsel’s estimation—and in fact—would violate due process. The due process clause of the fourteenth amendment bars prosecution of a defendant unfit to stand trial. See People v. Shum, 207 Ill. 2d 47, 57 (2003).” ¶ 51

A defendant may not be put to trial unless he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and a rational as well as factual understanding of the proceedings against him. See Cooper v. Oklahoma, 517 U.S. 348, 354 (1996).

It is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently waive his right to have the court determine his capacity to stand trial. It is a corollary principle that such a defendant may not direct defense counsel to do so.

What about adversarial testing?

“Defendant’s theory of adversarial testing would require defense counsel to oppose the State no matter what position it takes—if an incompetent defendant so desires—regardless of the evidence, even though the defendant is unable to appreciate the nature of the proceedings against her or assist in her defense.” ¶ 52.

“That position is simply absurd.” ¶ 52

The Illinois Supreme Court believes that the first responsibility of any criminal defense attorney, should be to independently assess whether the client is fit to stand trial. “In fulfilling that preliminary responsibility, and taking appropriate action thereon, irrespective of the State’s position, a defense attorney has afforded his client appropriate representation.” ¶ 52.

“Where, as here, the evidence clearly indicates that defendant is unfit to stand trial, but a defendant contends that he or she is fit, defense counsel is not obligated to adopt the defendant’s position and argue for a finding of fitness. In fact, in doing so, defense counsel would be violating his duty to the client and suborning a violation of due process.” ¶ 56

This case is probably broader than the specific scenario this public defender found herself in. This defendant was only appealing the fact that counsel did not advocate for her fitness. But the court was quite clear that an unfit Defendant cannot take any meaningful positions in her case.

Thus, Defendant could not provide meaning advice on

or other litigation decisions.

Also, I think we should acknowledge the great stress these public defenders found themselves in. We have them to thank for this decision.

Arizona v. Gant was the landmark decision by the Supreme Court which prevented police officers from searching the contents of a car after the arrest of the driver. The Illinois Supreme Court Decision, People v. Creagon, released on February 21, 2014 has now altered the landscape on searches incident to arrest.

• Samuel Partida, Jr. discusses the facts of this case,

• reviews the body of case law leading to this case,

• summarizes the defense argument,

• summarizes the prosecution argument,

• discusses the court ruling, and

• leaves practicing attorneys with a final take away for their practice.

Busy criminal law litigators have got to take the less than 25 minutes necessary to get up to speed on this development! Anyone else who just wants to educate themselves, will certainly find interesting knowledge in this podcast.

These are the cases discussed:

• Arizona v. Gant, 556 U.S. 332 (2009)
• People v. Cregan, 2014 IL 113600 (2014)
• New York v. Belton, 453 U.S. 454 (1981)
• Chimel v. California, 395 U.S. 752 (1969)
• People v. Hoskins, 101 Ill.2d 209 (1984)
• United States v. Chadwick, 433 U.S. 1 (1977)
• United States v. Robinson, 414 U.S. 218 (1973)

Tweet This!

http://illinoiscaselaw.com/drug-trafficking-evidence-proving-knowledge

Drug trafficking evidence has shifted to more liberal interpretation of suspicious behavior around drugs delivered through the mail.Drug trafficking evidence has shifted to more liberal interpretation of suspicious behavior around drugs delivered through the mail.

People v. Jones, 2014 IL App (3d) 121016 (11/17/2014) changes the rules, and is discussed in Podcast Episode 031 of the Criminal Nuggets Podcast.

http://youtu.be/yLpLNbsHMho

The State charged defendant with unlawful cannabis trafficking (720 ILCS 550/5.1(a)) and unlawful possession of cannabis with intent to deliver (720 ILCS 550/5(f).)

FedEx security specialist noted this package was -

• Shipped from southern state
• Paid for by cash
• No signature was required
• Phone number for shipper and receiver was the same
• All the seams taped

They notified the police. Police brought in the sniff dogs. After the dog alerted, a warrant was obtained, and the package was opened.

Class X amount of cannabis was inside. A tracking device was placed in the package. It was delivered by agents.

The package was left by the front door after no one answered. A female retrieved it. 13 minutes later a Defendant arrived at the residence. Defendant is then driven away from the home.

The car is then stopped by police. Defendant was in the passenger’s seat holding the closed package.

Defendant denied knowing what was in the package and stated he thought it was some shoes that he had ordered.

Defendant was charged under Illinois Compiled Statutes Section 5.1 of the Cannabis Control Act (Act) for cannabis trafficking which provides that

"any person who knowingly brings or causes to be brought into this State *** with the intent to manufacture or deliver 2,500 grams or more of cannabis in this State or any other state or country is guilty of cannabis trafficking."

720 ILCS 550/5.1(a).

Similarly, the Cannabis Control Act also provides that it is unlawful for any person to knowingly possess with intent to deliver cannabis. 720 ILCS 550/5.

The charges require the State to prove that a defendant had knowledge of the cannabis. See People v. Schmalz, 194 Ill. 2d 75, 81 (2000).

Did the State prove beyond a reasonable doubt that Defendant knew there was Cannabis in the package?

A body of case law existed essentially stating that suspicious behavior around receiving a drug package could not be used to establish if the receiver was aware that drugs were in the package.

"The element of knowledge is rarely susceptible of direct proof and may be established by evidence of acts, declarations or conduct of the defendant which support the inference that he knew of the existence of narcotics ***." People v. Nwosu, 289 Ill. App. 3d 487, 494 (1997). “While a trier of fact may infer knowledge from suspicious behavior, mere possession of an unopened package containing drugs is insufficient to sustain a conviction for which knowledge is an element.” ¶  28. See also People v. Hodogbey, 306 Ill. App. 3d 555 (1999).

The reviewing court departed from the idea that —"suspicious behavior in the vicinity of narcotics will not suffice as proof of knowledge as to their presence"—  People v. Hodogbey, 306 Ill. App. 3d 555 (1999).

The court found numerous suspicious circumstances allow a rational trier of fact to infer that defendant had knowledge of the contents of the package.

For example -

• Package delivered to another house
• He took it even though it did not have his name
• He took it even though it didn't have his address
• Within 18 minutes of delivery he is picking it up
• He doesn’t drive there even though he has a car
• Leaves the residence immediately after receiving the package
• Says he is returning it to FedEx but driving the wrong way
• He lied to police in the interview

“Due to defendant's suspicious behavior immediately before and after picking up the package, as well as his inconsistent and false statements to police, a rational trier of fact could easily infer that defendant knew that the package contained cannabis.” ¶ 33

The court made it a point to highlight the following cases and to depart from their rulings -

• People v. Hodogbey, 306 Ill. App. 3d 555 (1999)
• People v. Boswell, 19 Ill. App. 3d 619, 621 (1974)
• People v. Brown, 2012 IL App (2d) 110640
• People v. Ackerman, 2 Ill. App. 3d 903 (1971)
• People v. Jackson, 23 Ill. 2d 360 (1961)
• People v. Mack, 12 Ill. 2d 151 (1957)

“A trier of fact is, indeed, entitled to draw a commonsense inference that a defendant's suspicious behavior resulted from his knowledge that he was committing a crime.” ¶ 26.

The State did provide evidence to prove beyond a reasonable doubt that defendant knew there was something illegal in that package.

Minimal amounts of suspicious behavior may be taken into account in the calculus of determining if the defendant knew there were drugs in the package.  Typically, the Hodogbey, line of cases featured the barest amounts of suspicious behaviour. 

Rather than thinking of those cases being overruled it may be more useful to think of them as being limited to the facts in those cases.

Thus, any future case that still compares to Hodogbey and its progeny is in a good situation for a "not guilty" or a victory on appeal.

Keep an eye on how soon the accused is arrested after the package is open and tally up any "inconsistencies" in the interrogation.

Murder and attempted murder conviction are reversed and case remanded for new trial. The recorded interrogation differed from police testimony. Police did not honor Defendant’s invocation of his right to remain silent and his right to an attorney.

People v. Flores, 2014 IL App (1st) 121786 (11/14/2014). http://www.illinoiscourts.gov/Opinions/AppellateCourt/2014/1stDistrict/1121786.pdf

Defendant was arrested for a shooting that occurred in Chicago.  A van was being driven around. It was hunting for rival gang members. The passenger engaged in at least two shootings. One victim died.

No strong eyewitness identifications were made.

Defendant was 17 years old. He was arrested in May and held for 50 hours in an interrogation room. Eventually, he gave statements that he was the shooter.

In July, Defendant was arrested again. He also gave statements that he was the shooter in the July statement.

The May statement was flatly declared inadmissible by the trial judge. The trial court found that in the May interrogations, Defendant asked for counsel and the detectives reinitiated questioning of Defendant 14 to 15 hours later. Also, the officers used an excessive amount of profanity with Defendant, and they misinformed him about the evidence they had on him.

Defendant was released after the May arrest because the State declined to proceed with charges.

Trial counsel ruled that the July statements were admissible because any invocation in May was no longer in effect by July.

Defendant was arrested July after the devier of the van implicated Defendant as the shooter.

In the July interview Defendant was read read his rights.

This is partly what transpired -

DETECTIVE: Okay, Uh–[co defendant] has been in here.

[he] has been saying some things about you—

DEFENDANT: Um-huh.

DETECTIVE: -- and we wanted to talk to you about them.

You want to talk to us about that?

DEFENDANT: Not really. No.

DETECTIVE: Well, I mean, he's, you know, he's saying

thing that aren't good about you. That's why we And basically he's saying that you were the one who produced the gun

for that shooting.

DEFENDANT: Um--"

See ¶ 31.

Later, Defendant tells them that he “aint gonna say nothing about nothing.” ¶ 33.

It goes on. Eventually, defendant confesses to being the shooter. He makes a tape statement to that effect.

At the hearing on the motions to suppress, the trial judge viewed the tapes and no live witnesses testified.

“The trial court found that defendant did not invoke his right to remain silent because even though defendant responded, ‘Not really. No.’ when asked if he wanted to speak with the detectives, defendant "still [kept] engaging the detectives." The court concluded that defendant's Miranda rights were not violated. The court further found that the statement was voluntary and defendant's will was not overborne.” ¶ 4.  

[quote box] "Where a defendant challenges the admissibility of his confession through a motion to suppress, the State has the burden of proving the confession was voluntary by a preponderance of the evidence." People v. Braggs, 209 Ill. 2d 492, 505 (2003) (citing 725 ILCS 5/114-11(d).

"The concept of voluntariness includes proof that the defendant made a knowing and

intelligent waiver of his privilege against self-incrimination and his right to counsel." Id.

An interrogation must cease once the individual indicates in any manner and at any time prior to or during a custodial interrogation that he wishes to remain silent.  See People v. Hernandez, 362 Ill. App. 3d 779, 785 (2005). " '[A]ny statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.' " Id. (quoting Miranda v. Arizona, 384 U.S. 436, 474 (1966)).

A defendant may invoke his or her right to silence either verbally or through nonverbal conduct that clearly indicates a desire to end questioning. Id. (citing People v. Nielsen, 187 Ill. 2d 271, 287 (1999) (finding that the defendant placing his hands over his ears, turning his head, and saying, " 'nah nah nah,' " was sufficient to invoke right to remain silent)). See ¶ 37.

"If verbal, the individual's demand to end the interrogation must be specific." Id.

“The United States Supreme Court in Smith v. Illinois, 469 U.S. 91 (1984), considered

whether a defendant's statements subsequent to his request for an attorney rendered the

invocation ambiguous and equivocal.” ¶ 38.

"[a]n accused's post request responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself. Such subsequent statements are relevant only to the distinct question of waiver."  Id. at 100.

"With respect to the waiver inquiry, we accordingly have emphasized that a valid waiver 'cannot be established by showing only that [the accused] responded to further police-initiated custodial interrogation.' " Id. at 98 (quoting Edwards v. Arizona, 451 U.S. 477, 484 (1981)).

“While Smith considered subsequent statements in the context of request for counsel, this reasoning is equally applicable to a defendant's invocation of his right to remain silent.” ¶ 38.

Additionally, "Statements made after the invocation of the right to silence are admissible only if the interrogators scrupulously honored the defendant's right to cut off questioning." People v. Hernandez, 362 Ill. App. 3d 779, 786 (2005)

In determining if an accused’s rights have been honored courts will look at and see if -

[indent](1) The interrogator immediately halted the initial interrogation after the defendant invoked

(2) There was a significant amount of time elapsed between the interrogations;

(3) The defendant was 're-Mirandized' before the second interrogation; and

(4) The second interrogation addressed a crime different from that of the first interrogation (though the fact that the same crime was discussed during both interrogations does

not preclude a finding that the defendant's right to silence was

scrupulously honored)."

Hernandez, 362 Ill. App. 3d at 786 (citing Nielsen, 187 Ill. 2d at 287).

Here, defendant's invocation of his right to remain silent was not scrupulously honored.  ¶ 59.

The video in this case revealed that after Defendant was read his rights the Defendant was asked if he wanted to make a statement. The answer was pretty clearly in the negative.

The detective, nonetheless, went on with the questioning.

Defendant continued to express his desire to remain silent. He shook his head in the negative when asked if he wanted to say something about the gun. He told them he was not going to say nothing about nothing.

Detectives went on.

The reviewing court said that the invocation of a right to remain silent should not be based on how an interrogator phrases his or her questions to the defendant.

Defendant’s “No” could not have been more clear. He did not have to elaborate any more on what he meant by “no” nor did he have to make any other physical manifestation of his intent.

Any attempt to try to limit Defendant’s denials to specific topics rather than a general denial to talk to detectives is futile. Also, the video did not  support the notion that Defendant was "engaging in the conversation with the detectives.” ¶ 56.

The videotaped interrogation disclosed in excess of 30 pauses between questions asked by the detective and any response from defendant.

Defendant’s incriminating statements came two hours later after all his denials and hesitations were ignored.

The reviewing court cited all these cases which involved a defendant declining to talk to interrogators -

[bullet points]Smith v. Illinois, 469 U.S. 91 (1984)

People v. Hernandez, 362 Ill. App. 3d 779, 785 (2005)

Edwards v. Arizona, 451 U.S. 477, 484 (1981)

People v. Brown, 171 Ill. App. 3d 993 (1988)

People v. R.C., 108 Ill. 2d 349 (1985)

And provided examples (unlike this case) of cases with ambiguous innovations -

[bullet points]People v. Milner, 123 Ill. App. 3d 656, 658 (1984)

People v. Aldridge, 68 Ill. App. 3d 181, 186-87 (1979)

People v. Troutman, 51 Ill. App. 3d 342, 344 (1977)

People v. Pierce, 223 Ill. App. 3d 423, 430-31 (1991)

People v. Kronenberger, 2014 IL App (1st) 110231

Michigan v. Mosley, 423 U.S. 96, 103-04 (1975)

The reviewing court said that the invocation of a right to remain silent should not be based on how an interrogator phrases his or her questions to the defendant.

While it is true that the passage of time and fresh Miranda warnings were given before the

ASA interviewed Defendant, this was not found to be sufficient to show that defendant's

invocation of his right to remain silent was scrupulously honored.

All of the statements are out.

The appellate court found that Defendant invoked his right to remain silent and the detectives should have ceased all questioning after asking defendant if he wanted to talk to them and defendant responded, "Not really. No."

This response was a clear and unequivocal response that defendant did not wish to waive his right to remain silent. The invocation was not just limited to his desire to comment on the driver’s  statements.

http://IllinoisCaseLaw.com/conditions-of-probation-challenged-by-this-convicted-police-officer

The conditions of probation imposed in this probation case included an order that Defendant pay his child support. The Defendant objected to this. He argued that the court did not have authority to make child support one of the conditions of probation. Oh yea, Defendant was a cop.

People v. Goossens, 2014 IL App (3d) 120680 (09/30/2014) is described in Podcast Episode 029 of the Criminal Nuggets Podcast.

This police sergeant was convicted and placed on probation for felony intimidation. The judge ordered him to get current with his child support. Sergeant only appealed the child support thing.

Everyone wants to know what he did, right? Well, he apparently threatened not to respond to 911 calls from a particular dragway while two former police officers worked there.

Intimidation falls under the Illinois Criminal Code section 720 ILCS 5/12-6(a)(6). This is a class 3 Felony with a term of probation being no more than 30 months per 730 ILCS 5/5-4.5-40(d).

Was the child support order unauthorized because it did not reasonably relate to his crime?

Illinois Compiled statutes Unified Code of Corrections section 730 ILCS 5/5-6-3(a), entitled Conditions of Probation,” lists several mandatory conditions of probation. While section 5-6-3(b) lists some conditions that the court may impose at its discretion.

Specifically the code says:

“(b) The Court may in addition to other reasonable conditions relating to
the nature of the offense or the rehabilitation of the defendant as determined for
each defendant in the proper discretion of the Court require that the person:
* * *(6) support his dependents[.]”

See  730 ILCS 5/5-6-3(b)(6).

So what does this Conditions of Probation section mean?

One interpretation is that the enumerated conditions may be ordered at the court’s discretion without any other type of limitation. If the court wishes to order unlisted conditions, it may do so if the unlisted conditions reasonably relate to the charged offense.

The other interpretation has been adopted by the the Fourth Appellate District.

This reading of the statute says that the court may only order the enumerated “discretionary” conditions if and only if those conditions relate -

“to the nature of the offense or the rehabilitation of the defendant”.  730 ILCS 5/5-6-3(b)(6).

Unfortunately, Defendant was not in the Fourth District. His case was in the Third District.

The sergeant has to pay his child support as a condition of probation.

The court said that -

“In so holding, we acknowledge our disagreement with the Fourth District’s holding in People v. Campbell, 325 Ill. App. 3d 569, 571 (2001), that the plain meaning of section 5-6-3(b) of the Code is that all conditions of a sentence of probation or conditional discharge must be related to the specific offense for which the defendant is sentenced. Thus, we hold that since the condition that the defendant support his dependents is specifically enumerated in section 5-6-3(b) of the Code, the trial court’s imposition of the condition that the defendant become current on his child support was authorized by statute, without a finding that the condition was reasonably related to the underlying offense.” ¶ 9.

This case gives us a place to start if we ever find ourselves in a situation where a judge has ordered some “unorthodox” conditions of Probation.

For example, there may be a statutory challenge to a sentencing order requiring Defendant to:

http://IllinoisCaseLaw.com/example-of-second-degree-murder-discover-of-adultery

An example of second degree murder is the issue in Podcast Episode 028 of the Criminal Nuggets Podcast. It involves a horrific case of domestic violence. Defendant beat his wife into a coma that eventually killed her. At trial Defendant was not contesting that he did it. Instead, he was asking the court for a lesser punishment under second degree murder rather than first degree murder. What do you think the court did?

People v. Viramontes, 2014 IL App (1st) 130075 (09/24/2014).

Defendant and his wife were married a few months but had been together for 16 years and had 2 children. The night of the killing -

Defendant confronted his wife that night. She confirmed the affair. He slapped her. She locked herself in the bathroom. When she existed, Defendant brutally beat her into a coma. She later died of her injuries.

The injuries included severe bruising, including severe bleeding of the brain, and bilateral subdural hematomas (an accumulation of blood on the brain’s surface).

We have discussed in other podcasts the difference between first degree and second degree murder. See:

As a quick recap, I’ll note that all second degree murder cases begin as first degree murder cases. That is to “win” a second degree murder conviction you first must commit first degree murder.

The concept behind second degree murder is that the law “mitigates” or punished less severely certain types of first degree murder. Those that qualify are called second degree murder.

The law says that First degree murder may be reduced to second degree murder when, at the time of the killing, the defendant...

"is acting under a sudden and intense passion resulting from serious provocation by the individual killed or another whom the offender endeavors to kill, but he or she negligently or accidentally causes the death of the individual killed."

720 ILCS 5/9-2(a)(1).

Serious provocation is defined as "conduct sufficient to excite an intense passion in a reasonable person." 720 ILCS 5/9-2(b). Illinois courts recognize four categories of serious provocation:

(1) substantial physical injury or assault;
(2) mutual quarrel or combat;
(3) illegal arrest; and
(4) adultery with the offender's spouse.

See People v. Garcia, 165 Ill. 2d 409, 429 (1995).

A defendant is entitled to a second degree jury instruction when there is some evidence, even if the evidence is "slight," to support a claim of serious provocation. People v. Campbell, 2012 IL App (1st) 101249, ¶ 49 (citing People v. Davis, 213 Ill. 2d 459, 478 (2004)).

The first two prongs mentioned above turne into the “unreasonable self defense” I have previously written about.

The last prong, up there is the one of interest in this case.

Before there was an Illinois Criminal Code, in the common law there was a rule that said anytime a man (it was always a man) discovers his wife in bed with another man then any resulting killing shall be punished as second degree murder rather than first degree murder.

The killer basically got a break.

The idea was that any otherwise law abiding man in that situation was likely to enter into a murderous rage it didn’t seem quite fair to punish them as “normal” murders. Who wouldn’t react that way if they came across a naked man in his bedroom?

Also, probably there was probably a little bit of “the victims had it coming” kind of thinking.

Anyways, that was the basic idea.

Here, the Defendant did not actually walk in on his wife and her boyfriend “in the act.” He discovered the affair through text messages and photos on her phone remember.

The argument to the court was that in today’s modern era the discovery of the affair in the phone has no meaningful difference than if Defendant had actually walked in on his wife.

Its not a bad argument. The Supreme Court has just found that cell phones are more than just phones. The contain our lives and our life story.

Defendant may have learned much more from the texts and photos than he would have learned from merely walking in on them. He could gage the amount of time it has been going on, where the rhondavous have  taken place, and all kinds of other details that may just destroy a person.

When you walk in on a couple, you know the observations from that instant but nothing more.

So, the defense had a point. The actual rage, anger and violence erupting from Defendant probably was no different than what he would have experienced had he seen the act with his own eyes.

Court said, “Nice try, but No.”

Specifically the court held that -

"...in Illinois, a spouse’s adultery as provocation is limited to situations in which “the parties are discovered in the act of adultery or immediately before or after such an act, and the killing immediately follows such discovery.” Quoting People v. Chevalier, 131 Ill. 2d 66, 72 (1989).

This was plain old murder and not an example of second degree murder. The court was not going to “mitigate” this crime that easily.

The court was not about to expand the four statutory factors defining second degree murder without a clear directive from lawmakers.

Just so you know where the court was coming from they noted that - 

“In considering the provocation argument, we note, although not at issue here, questions regarding the continued availability of the defense of serious provocation based on adultery with the offender's spouse. Some commentators have noted that treating sexual jealousy by a married offender as a justification for reduced second degree murder charges is a throwback to an earlier era when courts condoned violence in the name of infidelity and that it reflects both gender and marriage bias. See Bureau of Justice Statistics, United States Department of Justice, Intimate Partner Violence, 1993-2001 (2003) (men three times more likely to kill intimate partner than women); People v Strange, 81 Ill. App. 3d 81, 88 (1980) (provocation by adultery unavailable as defense when defendant and victim not married at time of murder); Carolyn B. Ramsey, Provoking Change: Comparative Insights on Feminist Homicide Law Reform, 100 J. Crim. L. & Criminology 33 (2010) (discussing abolition of adultery as provocation defense in three Australian jurisdictions and prospects for reform in United States).” ¶ 46.