Kane County Nuggets

Podcast Episode 007 is a journey into the difference between insanity defense and GBMI finding. I discuss the recent case of People v. Wood. 

http://illinoiscaselaw.com/difference-bet…d-gbmi-finding/ ‎

There is a clear and distinct difference between insanity defense and GBMI finding.

This case features the defendant who has to be in the lead for this years “Least Helpful to His Defense” award.

This defendant:

First of all, the insanity defense is a complete affirmative defense. Like all other affirmative defenses it acts as a complete acquittal if it can be won.

The defense (or prosecution) has to present some evidence of insanity.

The Illinois Compiled Statutes Criminal Code states that:

“A person is insane and not criminally responsible for his conduct if he lacks substantial capacity to appreciate the criminality of that conduct due to a mental disease or defect.”

720 ILCS 5/6-2(a).

The guilty but mentally ill (GBMI) finding, on the other hand is no defense at all. A defendant found guilty but mentally ill is going to prison. That is why they use the word “guilty.”

What a person achieves by “winning” the GBMI finding is assured mental treatment while in prison. Maybe, not much but you take what you can get. This may be very valuable and beneficial to a guilty person and society.

The Criminal Code says that:

"... mental illness is not an affirmative defense, but an alternative plea or finding that may be accepted, under appropriate evidence, when the affirmative defense of insanity is raised or the plea of guilty but mentally ill is made.”

720 ILCS 5/6-4.

The law provides only two avenues to a finding of GBMI. (1) A defendant can plead it. If for some reason a defendant chooses to not plead guilty, and (2) proceeds to trial, a court may make a finding of GBMI if the insanity defense is lost.

This, of course, presumes that a defendant initially raises the insanity defense at trial.

If the insanity defense is not raised at trial, by pleading, then a defendant may not be awarded the GBMI finding even though there is evidence presented of mental illness.

This was the problem described in this case.

The defendant had a long history of paranoid schizophrenia. His elderly mother had an active order of protection out against him. Defendant testified that he bound his mother with an extension cord because he was worried she would call the police on him.

When he thought she was making too much noise, he gagged her! Within minutes after she was gagged she died, in part, because her tongue was forced to the back of her throat blocking her airway. She also had severe injuries to her head that contributed to her death.

Defendant testified, against advice from counsel, because he wanted to tell him that he had no idea a person could die from “just being tied up.” His entire life, Defendant had never heard of anyone dying from being tied up. He testified he did not kill his mother and that all he had done was unlawfully restrain her.

There went the “holding the state to their burden” defense.

The defense attorney did not plead the insanity defense because there were not any facts there that would have supported the pleading. The only psychological evaluation that defendant agreed to undergo flat out said he was sane at the time of the murder.

The only motivation explaining his conduct was that he did not want his mother to call the police. His paranoid schizophrenia did not contribute to his behavior. Did I mention that he he also refused to undergo any other evaluations?

All defense counsel could do is argue for a GBMI finding that the law did not support. Remember, there are only two ways to a GBMI finding. Defendant has to plead it. Or the judge awards it after a trial where insanity defense is plead.

Defendant certainly, was not going to plead in this case. In his mind, the law applied to the facts on the ground was irrelevant. In his grossly mistaken mind he only committed manslaughter because he had never heard of anyone dying from being tied up. Apparently, schizophrenic Defendants can be just like other non-ill defendants who are unwilling to see the real mess they are in.

Then, counsel could not in good faith make a pleading of the affirmative defense of insanity. So nothing was left. GBMI was not on the table because insanity was never plead.

What was wrong here is that everyone involved knew that this defendant was GBMI. But he did not get the finding.

The defense attorney was in a tough spot because he had no good options. He could have plead the insanity defense knowing he had no good faith basis with which to do so, only for the chance to ask for the GBMI finding. Or he could have asked for the GBMI finding at the end of a trial where he did not make a claim for the insanity defense, knowing that the law would not allow a judge to give it to him.

Throw, in the fact the we have a client who is untethered from reality in that he is demanding that his attorney make an insanity defense and/ or ask for a manslaughter instruction when the law supported neither. He testified at trial and completely undermined the main defense of the state not being able to prove their case beyond a reasonable doubt.

Now you see why I say he may very well the “Least Helpful to His Defense” award for 2014?

A life sentence for a nonviolent drug offender is discussed in Podcast Episode 006 of the Criminal Nuggets Podcast discusses. Is this an example of run-a-muck sentencing or is this justice?

http://illinoiscaselaw.com/life-sentence-…-drug-offender/

Regardless of your personal opinion on life sentences for nonviolent offenses, we should at least be aware that a life sentence for nonviolent drug offender is possible in Illinois for individuals with horrific criminal records. In fact, the law says three class X felonies and you are out.

It is not only murder cases where a life sentence is possible.

See People v. Fernandez, 2014 IL App (1st) 120508 (07/27/2014).

The defendant in this case had a pretty average drug case:

Under the Habitual Criminal Act, Defendant had to be sentenced to life in prison. That law says that

"Every person who has been twice convicted in any state or federal court of an offense that contains the same elements as an offense now *** classified in Illinois as a Class X felony *** and who is thereafter convicted of a Class X felony *** committed after the 2 prior convictions, shall be adjudged an habitual criminal...Except when the death penalty is imposed, anyone adjudged an habitual criminal shall be sentenced to a term of natural life imprisonment."

730 ILCS 5/5-4.5-95.

Like, I said he had a horrific criminal history:

Tell me what you think. Did he get what he deserved? or Is a life sentence too harsh?

Ineffective assistance of counsel from cross examination results after defense attorney asks one little question. This was a classic example of asking one too many questions. Should have sat down before damage was done.

http://illinoiscaselaw.com/ineffective-as…ss-examination

This podcast episode describes what happened in People v. Dupree, 2014 IL App (1st) 111872. 

The question that did the damage was likely one of those "after thought" questions. The kind that are not scripted and come out of your mouth on your way to sit down.

This was a drive by shooting with three people in the car. Two people in the car turned state's evidence and were testifying against Defendant who they say was the shooter. 

There was no other physical evidence in the case. The independent witness where inconsistent. Thus, the appellate judges thought the testimony of the "flippers" was crucial to the conviction in the case. 

Also, the appellate court pointed out that the motive for the shooting laid with the flippers and not so much with Defendant. 

For the sake of understanding, it is easier to boil down the case down to two different statements by one of the flippers. These were statements made to the police during interrogations. 

We will call the first statement, "Statement A."  This was a complete denial of any involvement in the shooting. It was probably one of those,"I don't know what you talking about, man" kind of statements.

Lets call the second statement, "Statement B." This statement was about a month later. Here, the statement is an acknowledgment of involvement with the small detail that Defendant was the shooter. At Defendant's trial the flipper repeats Statement B for the jury.

Just to be clear, I mean that the flipper testified at trial consistent with Statement B. That is normally how it would work. Ordinarily, the prosecutor would not be allowed to admit the actual statement the witness made to police or even acknowledge that there was a statement. The prosecution would not ask the witness, "Didn't you tell the police that the Defendant was the shooter." The prosecutor would just ask, "What happened in the car?"

Of course, defense counsel has to go after the witness for the inconsistent statements to the police. Statement A is different from Statement B. This is the kind of impeachment of the witness we would expect and jump on at trial.

But before counsel sits down...

He asks that one little question that the appellate court jumped on to reverse and make a finding of ineffective assistance of counsel from cross examination.

The exact quote is not in the decision. But it was something along the lines of:

“Did your 'enhanced memory' just come to you last week?”

That was all it took! Sounds innocent doesn't it? The appellate court said it was anything but.

This one little question opened up a door that was big enough for a Mac truck to plough through carrying nothing but a load of trial error.

That one question allowed the State to introduce Statement B to the jury. They then did it multiple times. They argued it substantively. No limiting instruction was given.

The evidentiary rule of evidence that is at play here is the Prior Consistent Statement under Federal Rule 801(d)(1)(B). Illinois has no comparable companion provision in its Rules of Evidence. 

However, you can find a comment about a prior consistent statement within the Illinois Rules that says:

Note that FRE 801(d)(1)(B), which makes prior consistent statements of witnesses substantively  admissible when "offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive," has not been adopted. That is so because, as stated supra, Illinois allows such statements to be admitted, but only for rebuttal or rehabilitate purposes,not substantively.

See The Illinois Rules of Evidence, A Color-Coded Guide Containing the Codified Rules...page 117.

 Thus, the rule in Illinois can be stated like this:

"A prior consistent statement may not be used on direct examination to enhance the credibility of a witness’s testimony, except to rebut an allegation of recent fabrication.”

 The court said that prior consistent statements are so bad because they are likely to unfairly enhance the witness's credibility with the trier of fact simply because the statement has been repeated.

“The danger in prior consistent statements is that a jury is likely to attach disproportionate significance to them. People tend to believe that which is repeated most often, regardless of its intrinsic merit, and repetition lends credibility to testimony that it might not otherwise deserve.” See People v. Dupree, ¶ 52.

 Look, it is an adversarial system. The prosecution is always lurking around trying to find something to pounce on. They can't be faulted for that. 

Unfortunately, they had an opportunity and they may have exploited it a bit too much. The appellate court had a close case and they hung their hat on this most subtle of errors.

Subtle indeed. Defense counsel's argument was still that the witness was testifying on fabricated evidence. The problem was that he inferred that the fabrication was only recently created. His argument all along was that the fabrication indeed was there but that it started loner ago. That was the difference in the case. 

The crime of obstructing Identificatin is a fluid beast. This case illustrates how this can be so.

Was there sufficient evidence for obstructing identification?

Initial caretaking contact turned into an investigative seizure for DUI, thus, Defendant was obligated to give her real name to avoid a conviction for obstructing identification.  

People v. Schronski, 3rd Dist., 07/09/2014.

Defendant was charged with obstructing identification under 720 ILCS 5/31-4.5(a)(2).

Defendant was in car parked at a gas station for 30 minutes. Clerk calls the police. When police get there. Defendant is alone in the car. She gives the cops another person’s I.D. card when they ask for her identification. She was intoxicated.

To sustain a conviction of obstructing identification, the prosecution must prove that a person:

(1) intentionally or knowingly provided a false or fictitious name, residence address, or date of birth to a peace officer; and
(2) was either:

• (a) lawfully arrested or detained, or
• (b) the information was requested from an individual that was reasonably believed to have witnessed a crime.

Defendant challenged the sufficiency of the evidence. Was she detained as is required by the law?

Police-citizen encounters are generally limited to three circumstances:

1. an arrest supported by probable cause;
2.  a brief investigatory stop based on a reasonable and articulable suspicion of criminal activity; and
3. an interaction for purposes of community caretaking or public safety.

Community caretaking encounters do not involve coercion or detention and therefore do not rise to the level of a seizure under the fourth amendment. A detention occurs when a reasonable, innocent person in the circumstances would believe that he or she would not be free to leave.

Defendant’s submission to the field sobriety test indicated that the stop had transformed into an investigatory stop based on suspicion that defendant was driving under the influence. At that point, defendant was not free to leave.  

Defendant’s refusal to provide her name and her representation that another person’s identification belonged to her completed the offense. 

Remember, she could have merely refused to give her name. But lying made it an offense.

Defendant should not have been stopped because of a U-turn to avoid a traffic safety checkpoint. Defendant’s driving while license suspended conviction and 90 days in jail is reversed. 

People v. Timmsen, 3rd Dist., 07/25/2014.

Defendant was stopped by police after making a U-turn before entering a roadside safety checkpoint. Defendant was then cited and arrested for driving while his license was suspended, in violation of  the Illinois Vehicle Code (the Code) (625 ILCS 5/6-303(a)) and for driving left of center at a railroad crossing (625 ILCS 5/11-706(a)) .  

Defendant argues that he did not violate any traffic laws, and the act of making a U-turn to avoid a traffic safety checkpoint, by itself, could not give police articulable suspicion to conduct a traffic stop. 

The State conceded no other traffic violation was committed and that avoiding a safety checkpoint itself provides a reasonable articulable suspicion justifying a traffic stop.  U-turns are legal in Illinois, as long as the turn can be made safely and without interfering with other traffic. See 625 ILCS 5/11-802.

The question is whether the defendant’s act of making a U-turn to avoid a traffic safety checkpoint, without more, was sufficient to give the police officers reasonable suspicion to stop the defendant.

The mere act of avoiding a roadblock is generally not sufficient to constitute reasonable suspicion by itself, and must be coupled with other articulable facts.

There are three examples of when a turn before a safety checkpoint reaches a reasonable suspicion of criminal activity justifying a traffic stop:

(1) when a vehicle fails to stop at the 
roadblock;
(2) when a vehicle stops just before the roadblock and the driver and passenger change places; or 
(3) when a vehicle avoids the roadblock in a suspicious manner (what is considered suspicious has been subject to much debate, with results varying by jurisdiction)

It is not a crime to avoid an encounter with the police. When an individual is approached by a police officer without reasonable suspicion or probable cause, the person “has a right to ignore the police and go about his business,” and his “refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.”

Looking at the totality of the circumstances, we find there were no factors to suggest that the defendant was doing any more than going about his business. Although the legality of the defendant’s traffic maneuver was but one factor to consider, there were no other facts suggesting that it was a high-crime area, nor facts suggesting flight, such as speeding, squealing tires, or spraying gravel.

We find that, absent any other suspicious activity, before, during, or after, the U-turn itself did not provide specific, articulable facts that a criminal offense had been or was about to be committed sufficient to warrant the intrusion.

Sleeping behind the wheel leads to DUI and 8 years.

State proved beyond a reasonable doubt that Defendant was in “actual physical control” of his car. The car was poorly parked and had  an open door.

People v. Morris, 1st Dist., 07/23/2014.

Chicago police found Defendant passed out in the front seat of a parked car, the ignition off, the driver’s side door open, and keys in his right hand. It was 2 a.m.

Police did not see defendant drive. A bag of groceries sat on the curb. Police woke him up and he reeked of alcohol. He failed field sobriety tests and the police believed he was highly intoxicated.

Defendant’s witness said that she drove the car to the store. She could not carry the groceries because she was carrying beer and whiskey. She said she gave the keys to defendant so he could go get the groceries which she left in the front passenger seat. She went to bed and didn’t realize defendant had not come back.

Defendant was convicted of aggravated DUI (625 ILCS 5/11-501(a)(2)) and felony driving while license suspended ((625 ILCS 5/6-303(a)). 8 years in prison was the sentence because defendant was sentenced as a class X Felony! This was not his first time at the rodeo. He had two prior felony DUIs, a class 1 delivery of a controlled substance, a Class 2 burglary and 18 prior driving while license suspended charges.

Yea, thats a lot.

Defendant claims that the State did not prove he was in was in “actual physical control” of the car.

The DUI section 11-501(a) (2) of the Illinois Criminal Code provides that an individual “shall not drive or be in actual physical control of any vehicle within this State while under the influence of alcohol.” 625 ILCS 5/11-501(a)(2).

It is well settled that “a person need not drive to be in actual physical control of a vehicle, nor is the person’s intent to put the car in motion relevant to the determination of actual physical control.”

The issue of actual physical control is determined on a case-by-case basis, giving consideration to whether the defendant:

(1) possessed the ignition key; 
(2) had the physical capability to operate the vehicle;
(3) was sitting in the driver’s seat; and
(4) was alone with the doors locked.

These factors provide a guideline to determine whether the defendant had actual physical control of the vehicle; the list is neither exhaustive, nor is the absence of one individual factor controlling.

Who knows if he was driving, but he was in actual physical control. The judge did not believe his witness. But even the witness was telling the truth, Defendant would have still been guilty.

We don’t know if  Defendant was alone in the car. Yet, it was the driver’s side door that was open. Under these circumstances, Defendant could have easily woken up, closed the door, and driven away because the keys were in his hand.

A rational trier of fact could find that Defendant, alone in the driver’s seat with keys in his right hand, was in actual physical control of the car.

Other cases have lead to convictions with far less “control”.  See People v. Davis, 205 Ill. App. 3d 431, 435 (1990) (defendant found sleeping in backseat with keys in ignition).

Defendant argued that he could not reasonably know that he could be committing a DUI just for being passed out in the driver’s seat with the keys in his hand and the driver’s side door open.

The court disagreed. Although he may have not actually have known that his conduct constituted actual physical control, ignorance of the law has long been rejected as a defense.

The case law establishes that to prevent someone from making the decision to drive a vehicle while lacking clarity of thought due to alcohol consumption, a defendant will be deemed to be in actual physical control when he or she “is behind the steering wheel in the driver’s seat with the ignition key and physically capable of starting the engine and moving the vehicle.”

Although Morris may not have been aware that his conduct might be illegal, that alone does not render the statute unconstitutionally vague. He was guilty.

Defendant was charged by way of indictment with first degree murder, attempted first degree murder, aggravated discharge of a firearm, and unlawful use of a weapon by a felon. 

Following deliberations, the jury returned a verdict of guilty of second degree murder, attempted first degree murder, aggravated discharge of a firearm, and unlawful use of a weapon by a felon. Defendant was sentenced to more years on the attempt murder than he received on second degree murder where someone actually died.

People v. Guyton, 5th Dist., 07/15/2014.

 There is a traffic accident and an argument. Defendant comes back with a gun and kills the driver of the other car and injures the passenger.

The jury found that defendant had personally discharged a firearm during the attempted murder. Defendant was sentenced to a total of 54 years’ imprisonment.

Defendant argues that the jury verdicts in this case reflect that defendant thought he was acting in self-defense when he committed the shooting. Therefore, he could not have the requisite intent to be convicted of both attempted first degree murder and second degree murder and his attempted first degree murder conviction must be vacated.

The jury agreed with Defendant that the first degree murder of one victim should be mitigated to second degree murder because he acted in unreasonable self-defense.

Second degree murder is a “lesser mitigated offense” of first degree murder and is distinguished from self-defense only in terms of the nature of the defendant’s belief at the time of the killing.

But Defendant was also charged with the attempted first degree murder of the passenger.

To be convicted of attempt, the State must prove beyond a reasonable doubt the intent to commit a specific offense, in this case first degree murder under 720 ILCS 5/8-4(a). Defendant claims that no reasonable argument exists that his mental state changed between when he fired the bullet that hit and killed the driver, which resulted in a second degree murder conviction, and when he fired the bullet that hit and injured the passenger, which resulted in an attempted murder conviction.

In short, defendant argues that he cannot have had an unreasonable belief in the need for self-defense as to the passenger, but not as to the driver.

There is no difference between the mental states required to prove attempted first degree murder and second degree murder. First degree murder and second degree murder share the same elements, including the same mental states, but second degree murder requires the presence of a mitigating circumstance.

The presence of a mitigating factor does not negate the mental state of murder because mitigating factors are not elements of the crime.

There is no offense of attempt second degree murder in Illinois because the legislature has not chosen to create a  mitigating factor for an “imperfect” self defense claim for an attempted murder conviction. They did exactly that for an attempted murder that resulted from a sudden and intense passion resulting from serious provocation. See 720 ILCS 5/8-4(c)(1)(E).

The jury’s verdict on second degree murder in this case indeed shows that it found defendant acted under the unreasonable belief in the need for self-defense as to the driver. Because there is no offense of attempted second degree murder, the jury could not be instructed and could not find the defendant guilty of attempted second degree murder of the passenger based on the same unreasonable belief in the need for self-defense.

In other words, because the defendant did not actually kill the passenger, the legislature determined he could not lawfully mitigate his attempt to murder him because he had the same unreasonable belief in the need for self-defense. Defendant’s mental state at the time of performing the act giving rise to the attempted murder of  the passenger and the second degree murder of the driver were the same. The evidence established, and the jury found, the intent required to sustain an attempted first degree murder conviction.

The determination by the jury that mitigating circumstances existed to allow for a conviction of a lesser second degree murder offense because of defendant’s unreasonable belief in the need to defend does not invalidate the attempted murder conviction.

http://www.illinoiscaselaw.com

This podcast will review, summarize and present Illinois criminal court decisions.

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