Kane County Nuggets

People v. Macklin, 2019 IL App (1st) 161165 (March). Episode 604 (Duration 9:02)

Was defense counsel ineffective for not calling an eyewitness expert witness?

Issue

Macklin argues that his trial counsel rendered ineffective assistance by not presenting an expert witness to support his defense that the eyewitness identifications were unreliable.

Charges

Macklin was charged with six counts of attempt first degree murder, five counts of armed robbery, one count of aggravated battery, one count of armed habitual criminal, two counts of aggravated discharge of a firearm, and four counts of aggravated unlawful restraint, all arising out of an incident involving two victims.

Facts

All three men wore dark sweatshirts and baseball caps with the hoods pulled up over the caps. Their faces were not covered. The man in the middle of the three men, later identified as Macklin, was taller than the others, and the victims were able to see his face.

When he was about 12 feet away, defendant pulled out a gun and said, “your money or you die” and fired a single shot toward them. The gunshot struck one of the victim’s in the right hand and he fell to the ground facedown. The other two men took over $150 in cash and identification cards from their pockets, as Macklin pointed the gun at them.

They also took the other victim’s wallet.

The three men fled on foot.

Injuries

The victim’s right hand was bleeding from a through and through gunshot wound.

He recovered but loss feeling in one of his fingers.

The Lineup

Defendant got arrested on another matter.

The victims separately viewed the lineup and both identified defendant as the person who had robbed them and shot him. Macklin sat in a different position in each lineup.

One victim was “70 percent sure” of his identification. The second victim then viewed the lineup, and identified Macklin. This witness was “100 percent sure” of his identification. The witnessess did not talk. The victim said he recognized Macklin from the incident. While only Macklin wore braids in the lineup, that did not affect the identification because it was based on “[h]is eyes and mouth,” which the victim recognized.

Convicted

Macklin elected not to testify and did not present any evidence.

Following closing arguments, the court found Macklin guilty of all charges but attempted first degree murder. Since it was undisputed that a man had been shot, the court found that the only issue was the reliability of the victims’ identification of Macklin. The court found the victim’s credible, consistent, and unimpeached.

The court stated that while there was evidence that one victim had been only 70% certain in his identification, the other victim was “100 percent sure. He never wavered.” In other words, they “were both sure of one thing, that [Macklin] was the guy that shot” Garcia.

The court sentenced Macklin to 40 years’ imprisonment for the armed robbery involving the personal discharge of a firearm proximately causing great bodily harm. The convictions on all other counts merged into the armed robbery conviction.

Unreliable Eyewitness Identification

Context is critical when referencing authorities referring to the identification of strangers as “ ‘proverbially untrustworthy.’ ” United States v. Wade, 388 U.S. 218, 228 (1967) (quoting Felix Frankfurter, The Case of Sacco and Vanzetti: A Critical Analysis for Lawyers and Laymen 30 (1927)). Many courts questioning the reliability of eyewitness identifications have done so in cases where the identifications were made under suggestive conditions.

For example, State v. Lawson, 291 P.3d 673 (Or. 2012), and State v. Henderson, 27 A.3d 872 (N.J. 2011) are not wholesale indictments of the reliability of eyewitness identifications. Rather, both Lawson and Henderson dealt with suggestive identification and lineup procedures and the effect such suggestiveness has on a witness’s identification of the defendant.

See Lawson, 291 P.3d at 679- 80 (victim was unable to pick defendant out of photo array at hospital shortly after she was shot and again one month later, but despite her lack of recollection of the hospital interview, five weeks after the incident she believed defendant was the assailant; victim later shown newspaper reports of the crime with photographs of the defendant as well as other photographs of the defendant and was taken to court before trial so she could observe him in person).

See also Henderson, 27 A.3d at 879-81 (when interviewed by police immediately after murder, eyewitness told police a false story and later changed his story when confronted by police; in viewing photo array, witness did not initially pick out defendant’s photograph, claiming to be unsure, but when shown the photo array again after police told him not to be afraid and that they would take care of him, selected defendant’s photo).

This Lineup

Here, Defendant’s lineup was not suggestive, and he does not pursue his contention on appeal that it was.

Leaving aside whether a Spanish-speaking officer translated the advisory form for one of the victims or whether that officer should have been present in the room when the victim viewed the lineup, the record does not reveal that suggestive procedures contributed to this identification.

And there is absolutely no basis to contend that there was anything suggestive about the other victim’s identification. As recognized in Lawson, “the scientific research is ‘probabilistic’—meaning that it cannot demonstrate that any specific witness is right or wrong, reliable or unreliable, in his or her identification.” 291 P.3d at 685.

Single Witness Rule Still Applies

While we respect our dissenting colleague’s views, we do not share his approach to evaluating the eyewitness testimony in this case. It is well-settled that a valid conviction may be based on a positive identification by a single eyewitness who had ample opportunity to observe. In re M.W., 232 Ill. 2d 408, 435 (2009).

The Biggers Factors

A trier of fact assesses the reliability of identification testimony in light of all the facts and circumstances including

(1) the witness’s opportunity to view the offender at the time of the offense
(2) the witness’s degree of attention at the time of the offense
(3) the accuracy of any previous description of the offender by the witness
(4) the degree of certainty shown by the witness in identifying the defendant and
(5) the length of time between the offense and the identification.

These are often referred to as the Biggers factors. Joiner, 2018 IL App (1st) 150343, ¶ 47 (citing Neil v. Biggers, 409 U.S. 188 (1972)). No single Biggers factor by itself conclusively establishes the reliability of identification testimony; instead, the trier of fact must consider all the factors.

The Witnesses Were Consistent

The testimony of both Gomez and Garcia was largely consistent.

Although Macklin points to certain discrepancies between their accounts of the robbery (one victime testified that the two other men took his money and identification, while the other victim said Macklin did; he estimated that he was able to see Macklin for “three to five minutes” while the man who was shot estimated he saw him for “three seconds” and while he was facedown on the ground), both consistently testified that the area was well lit, they were able to see Macklin, whose face was not covered, as he approached them, and that Macklin shot the victim in the hand from about 12 feet away.

A witness’ positive identification can be sufficient even though the witness gives only a general description based on the total impression the accused’s appearance made.” People v. Slim, 127 Ill. 2d 302, 308-09 (1989); see also Lawson, 291 P.3d at 687-88 (recognizing, based on eyewitness identification research, that “[c]ontrary to a common misconception, there is little correlation between a witness’s ability to describe a person and the witness’s ability to later identify that person”).

The man who got shot’s trial testimony that he identified Macklin in the lineup with “100 percent” certainty based on his eyes, mouth and facial hair, which he was able to observe during the robbery, is sufficient even if there was nothing particularly distinctive about those facial features that would have prompted him to separately describe them to police. Remarkable Coincidence

Indeed, if all they “really” saw was three men in dark hoodies and baseball caps, it is a remarkable coincidence that they both separately picked Macklin out of lineups in which he sat in different positions.

To paraphrase a theme prosecutors often invoke in closing arguments, Macklin must be the unluckiest man on the face of the earth to have not one, but two eyewitnesses mistakenly, separately, and independently identify him as the perpetrator.

The lineups were promptly conducted 10 days after the robbery.

100% Certainty Is Not Possible

The dissent dismisses the shot victim’s certainty in his identification of Macklin as this factor has been “roundly criticized,” citing another opinion this writer authored. Infra ¶ 77; see People v. Starks, 2014 IL App (1st) 121169, ¶ 72.

But, of course, context is everything.

Starks involved a jury trial and a defendant’s claim that the trial court erroneously refused to permit him to present expert testimony on the issue of the reliability of eyewitness identification. Given the developing body of law regarding the fallibility of eyewitness testimony and the recognition that, in appropriate cases, expert testimony may assist a jury in evaluating such testimony, we found that the trial court abused its discretion in dismissing out of hand defendant’s proffered eyewitness expert.

We neither directed the trial court to admit expert testimony nor did we reject a witness’s expression of certainty as an appropriate factor in the reliability analysis. The cited comments in Starks have no application here in a case involving a bench trial and where no expert witness testimony was proffered.

Moreover, the dissent conflates an eyewitness’s degree of certainty at the time of initial identification with certainty at the time of trial, disregarding any distinction. Here, Macklin’s trial took place four years after the robbery, so it stands to reason that the victims’ in-court identification of Macklin at trial is correspondingly less relevant.

But recent research has recognized a distinction between the reliability of lineup and in-court identifications and concluded that expressions of certainty at the time of initial identification are a relevant indicator of accuracy. See John T. Wixted & Gary L. Wells, The Relationship Between Eyewitness Confidence and Identification Accuracy: A New Synthesis, 18 Psychological Sci. in the Pub. Interest 10, 55 (2017) (concluding that “According to the available data, the relationship between confidence and accuracy for an initial ID from an appropriately administered lineup is sufficiently impressive that it calls into question the very notion that eyewitness memory is generally unreliable. *** [W]hen pristine testing procedures[2] are used, an initial ID made with high confidence is highly indicative of accuracy.”).

Accordingly, there is no basis to dismiss out of hand the witness’s 100% certainty in identifying Macklin.

See id. at 13 (noting that most wrongfully convicted defendants exonerated by DNA who were misidentified by an eyewitness were, at the outset of the investigation, identified with low confidence (citing Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong (2011))).

Lerma Shermerma

Sure there were minor discrepancies in the testimony but they were merely collateral and not fatal to the reliability of their identifications of Macklin. We acknowledge studies and decisions cited by Macklin that have called into question the reliability of eyewitness identifications. See, e.g., People v. Lerma, 2016 IL 118496, ¶ 24. That said, each case must be judged on its own facts, and nothing in this case compels us to reject the identifications that formed the basis of Macklin’s conviction.

We note first that Lerma had not been decided at the time of Macklin’s trial; it was decided shortly after the trial concluded.

No Expert Called In This Case

The Lerma court acknowledged that expert witnesses on the reliability of eyewitness testimony were being routinely excluded at the time, at least partly due to skepticism expressed by the supreme court and repudiated in Lerma itself. Id. ¶ 24 (citing People v. Enis, 139 Ill. 2d 264, 286-87, 289 (1990)).

Lerma recognized “the dramatic shift in the legal landscape concerning the use of identification expert testimony.” (Emphasis added.) People v. Ortiz, 2017 IL App (1st) 142559, ¶ 42. Representation based on the law prevailing at the time of trial is adequate, and counsel is not incompetent for failing to correctly predict that the law will change. People v. English, 2013 IL 112890, ¶ 34.

Further, the issue in Lerma—whether the trial court abused its discretion in rejecting proffered expert testimony—is manifestly different than the issue presented here, i.e., whether defense counsel’s performance fell below an objectively reasonable standard based on the failure to call an expert witness at trial.

The finding that “research concerning eyewitness identification*** is well settled, well supported, and in appropriate cases a perfectly proper subject for expert testimony” (Lerma, 2016 IL 118496, ¶ 24) does not, standing alone, support the conclusion that trial counsel here was per se ineffective for not presenting such expert testimony or that expert testimony is required in every case.

Trial Strategy Not To Call The Witness

For example, counsel is entitled to consider as a matter of trial strategy that the designation of an eyewitness expert by the defense will likely be met with a counterdesignation by the State, which would highlight and bolster the accuracy of the eyewitness identification.

In any event, the argument that trial counsel failed to conduct meaningful adversarial testing of the State’s case is refuted by counsel’s pretrial motion to suppress identification testimony and extensive cross-examination and argument at trial.

Finally, Lerma involved a jury trial while Macklin elected a bench trial.

As the Lerma court stated, “expert testimony is only necessary when the subject is both particularly within the witness’s experience and qualifications and beyond that of the average juror’s, and when it will aid the jury in reaching its conclusion.” (Emphases added.) Id. ¶ 23.

We do not find a reasonable probability that the presentation of an expert witness on the reliability of eyewitness testimony in this bench trial would have had any impact on the outcome of the proceedings.

Accordingly, the judgment of the circuit court is affirmed.

Strong Dissent

See the dissent which said the majority looks to the lineup and trial identifications and assures itself that any infirmities in those identifications have been ameliorated.

I look to the fleeting nature of the offense coupled with the inherent distraction caused by being shot and witnessing a relative being shot and find no assurances about the reliability of the identifications. I remain faithful, as I must, to the standard of review and reach a different conclusion—that Macklin’s conviction, based exclusively on problematic eyewitness testimony, is unreasonable.

The victims had a few seconds to view the men who robbed them.

In that instant, one of the men pulled a gun and shot one of them. At the end of it all, the only description they could give police was of three black men wearing black hoodies and baseball caps. Given this cursory and generic description, the fleeting nature of the offense, and the inherent distraction caused by the firing of a weapon, one might ask: How then can we rely solely on the victim’s assurance that they were certain, by the time of trial, of Macklin as the shooter?

I am unwilling to place substantial reliance on inherently malleable testimony. See People v. Fountain, 2016 IL App (1st) 131474, ¶ 159 (Hyman, J., dissenting).

Whenever I am called on to review the issue of reasonable doubt, I take heed of the cautionary words of U.S. Supreme Court Justice John Marshall Harlan, II:

“I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.”

In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring).

This case presents just the sort of situation that Harlan’s admonition evokes. We need a continued conversation, from the bench and elsewhere, to explore the utility of the Biggers factors as our understanding about eyewitness identifications continues to evolve. But, I must emphasize again that my disagreement with the majority is primarily connected to the facts here, not academic disagreements about Biggers.

A reviewing court may use common sense and engage in a searching evaluation of the record. Cunningham, 212 Ill. 2d at 280. The two witnesses viewed their attackers for mere seconds: traumatic and tense seconds. One of the offenders pulled a gun and shot one of the victims.

Immediately after the offense, the only description the two victims could offer was of three men in black hoodies and baseball caps. Ten days later, relying on fleeting glimpses of the offenders, the victims identified Macklin in a lineup muddled by cross language confusion.

The court must consider all of the Biggers factors together along with the surrounding circumstances. Simmons, 2016 IL App (1st) 131300, ¶ 89.

Not one Biggers factor weighs in favor of finding these identifications reliable. I conclude that a reasonable fact finder could not find Macklin guilty based on the identification before us and would reverse.

People v. Wise, 2019 IL App (2d) 160611 (February). Episode 600 (Duration 5:57)

Drugs are found upstairs when defendant was downstairs, is this still armed violence?

 

Charges

Defendant was tried before a jury on two counts of armed violence (counts I and II), seven counts of UUW by a felon (counts VII to XIII), and one count of possession with intent to deliver heroin, a controlled substance (count V). The jury found defendant guilty of all counts.

Sentence

The court merged some of the convictions and sentenced defendant to 23 years’ imprisonment for one count of armed violence and to concurrent 14-year prison terms for the six counts of UUW by a felon.

A Search Warrant

A search warrant was executed and police encountered defendant in Frank’s Lounge, with a loaded, semiautomatic firearm in his waistband. The officers found a large rock of heroin, drug paraphernalia, small packages of a substance believed to be cocaine, and additional firearms in the apartment upstairs. 

Armed Violence

A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois law, with certain exceptions that are not relevant here. 720 ILCS 5/33A-2(a).

A person is considered “armed with a dangerous weapon” when he or she carries on or about his person or is otherwise armed with a Category I weapon, such as a handgun. 720 ILCS 5/33A-1(c)(1), (c)(2).

In count I, defendant was charged with armed violence, in that, while armed with a dangerous weapon, a semiautomatic firearm, defendant committed the offense of unlawful possession of a controlled substance, heroin, a felony. See 720 ILCS 5/33A-2(a); 720 ILCS 570/402(c). This is a Class X felony that is punishable by a minimum of 15 years’ imprisonment. 720 ILCS 5/33A-3(a).

Issue

Defendant says the state failed to prove beyond a reasonable doubt that he committed the Class X offense of armed violence by concomitantly committing possession of a controlled substance while armed with a dangerous weapon, as a single, continuous offense. Defendant’s theory is that

(1) the State was required to prove a nexus between the firearm in his waistband and the heroin in the apartment and
(2) the State failed to establish that nexus.

Defendant contends, in other words, that a person does not commit armed violence unless he is armed with a dangerous weapon in furtherance of the predicate felony. Defendant contends that the statute contemplates “some degree of continuance” between being armed and the predicate felony and therefore requires proof that the accused was armed in furtherance of the predicate felony.

Defendant’s Argument

He relies upon section 33A-1(a), which sets forth the legislative findings as follows:

“(1) The use of a dangerous weapon in the commission of a felony offense poses a much greater threat to the public health, safety, and general welfare, than when a weapon is not used in the commission of the offense. (2) Further, the use of a firearm greatly facilitates the commission of a criminal offense because of the more lethal nature of a firearm and the greater perceived threat produced in those confronted by a person wielding a firearm. Unlike other dangerous weapons such as knives and clubs, the use of a firearm in the commission of a criminal felony offense significantly escalates the threat and the potential for bodily harm, and the greater range of the firearm increases the potential for harm to more persons. Not only are the victims and bystanders at greater risk when a firearm is used, but also the law enforcement officers whose duty is to confront and apprehend the armed suspect. (3) Current law does contain offenses involving the use or discharge of a gun toward or against a person, such as aggravated battery with a firearm, aggravated discharge of a firearm, and reckless discharge of a firearm; however, the General Assembly has legislated greater penalties for the commission of a felony while in possession of a firearm because it deems such acts as more serious.”

720 ILCS 5/33A1(a).

Defendant argues that section 33A-1(a) manifests the legislature’s intent to “punish more severely those felonies in which a defendant concomitantly uses or possesses a deadly weapon proximate to an underlying felony’s commission.”

We disagree.

Analysis

A person commits armed violence if he commits a felony “while” armed with a dangerous weapon. 720 ILCS 5/33A-2(a).

 

The plain and ordinary meaning of “while” confirms that the only “nexus” needed to sustain a conviction under section 33A-2(a) is temporal: the commission of the predicate felony must occur at the same time that the accused is armed with a dangerous weapon. The armed violence statute does not require, in the context of a drug transaction, that the weapon and the drugs be in the same place at the same time. People v. Thomas, 242 Ill. App. 3d 266, 276 (1993).

 

 Defendant argues that section 33A-1(a) manifests the legislature’s intent to “punish more severely those felonies in which a defendant concomitantly uses or possesses a deadly weapon proximate to an underlying felony’s commission.” Not true.

The legislative findings in section 33A-1(a) set forth the goals and general reasons for the enactment of the armed violence statute but do not constitute elements of the offense. The legislature expressed in section 33A-1(a) its concern that a firearm, by its lethality and long range, facilitates the commission of the predicate felony and poses a much greater threat to victims, bystanders, and law enforcement than when a dangerous weapon is not used in the commission of the predicate felony. But the legislature did not articulate that concern as elements of armed violence as set forth in section 33A-2(a).

 

The plain and ordinary meaning of the statutory language does not require the State to prove beyond a reasonable doubt that the dangerous weapon facilitated or was used or possessed “in furtherance of” the predicate felony.

 

The Case Law

Where the armed violence statute has been applied to various fact patterns, courts have concluded that a person is guilty of the offense when his immediate access to a firearm increases the threat of violence related to the predicate felony. See, e.g., People v. Anderson, 364 Ill. App. 3d 528, 542 (2006); see also People v. Brown, 277 Ill. App. 3d 989, 992 (1996) (defendant hiding in crawl space where drugs and weapon were found); People v. Hernandez, 229 Ill. App. 3d 546, 551-52 (1992) (firearm and drugs found under and near mattress where defendant was sleeping); People v. King, 155 Ill. App. 3d 363, 365 (1987)); People v. Lenoir, 125 Ill. App. 3d 260, 261 (1984) (defendant alone in a bedroom lying on a bed next to controlled substances and a revolver).

But none of those cases stand for the proposition that the State must prove beyond a reasonable doubt that the firearm facilitated the predicate felony.

To the extent that the State must show the potential for immediate violence to victims, bystanders, or law enforcement, the threat is proved simply by the defendant’s “immediate access” to the dangerous weapon, not by the dangerous weapon facilitating the predicate felony. Even where the predicate felony is not the reason for being armed, the temporal link expressed in the armed violence statute serves the legislative purpose: “to deter felons from using dangerous weapons so as to avoid the deadly consequences which might result if the felony victim resists.” People v. Condon, 148 Ill. 2d 96, 109 (1992).

A felon with a weapon at his or her disposal is forced to make a spontaneous and often instantaneous decision to kill without time to reflect on the use of such deadly force. Without a weapon at hand, the felon is not faced with such a deadly decision.

Gun Close Drugs Far

To serve this deterrent purpose of the armed violence statute, the State must prove that the accused had some type of immediate access to or timely control over the weapon.

Defendant’s immediate access to the firearm in his waistband distinguishes this case from Condon. The police were executing a search warrant at defendant’s residence when they encountered him in the same building. While armed with the firearm, defendant could have resorted to gun violence to thwart the discovery of the firearms and the drugs upstairs in his apartment. From this evidence, the jury could reasonably infer that defendant posed a greater threat to the public and law enforcement than if he had not possessed the weapon at the time of his arrest.

Holding

 

We hold that the “while armed” element is satisfied when the accused is “armed with a dangerous weapon” in that he or she carries on or about his or her person or is otherwise armed with, i.e. has “immediate access to” or “timely control over,” a Category I weapon, such as a handgun. 720 ILCS 5/33A-1(c)(1), (c)(2); Condon, 148 Ill. 2d at 110.

 

The legislature could have articulated a closer connection between being armed and the predicate felony but did not. We decline to read into the statute conditions that the legislature did not express. Besides the concurrent timing and “immediate access to” or “timely control over” the dangerous weapon, the plain and ordinary meaning of the statutory language does not require a further nexus between being armed with a dangerous weapon and the predicate felony. A rational trier of fact could have found the essential elements of armed violence beyond a reasonable doubt.

See Also

Episode 499 – People v. Norwood, 2018 IL App (4th) 150883 (May) (What does it mean for a firearm to be immediately accessible?)

People v. Sanchez, 2019 IL App (3d) 160643  (March).

Episode 608 (Duration 9:08).

The corpus delicti definition is a Latin term that literally translates to “body of the crime.”

Corpus Delicti Definition

In criminal cases a court describes the commission of a crime as the corpus delicti. See People v. Lara, 2012 IL 112370, ¶ 17. That just means a court acknowledges that something happened that was criminal in nature.

In order to obtain a valid conviction, the State must prove both the corpus delicti and the identity of the person who committed the offense.

In other words, in all criminal prosecutions the state must prove two things. They must establish that a crime happened (the corpus delicti). Then they must prove-up the accused is the person who did it.

The Corpus Delicti Rule In Criminal Cases

 

The corpus delicti rule provides that the corpus delicti cannot be proven by a defendant’s admission, confession, or out-of-court statement alone.

 

Rather, where a defendant’s confession is part of the proof of the corpus delicti, the State must also provide independent corroborating evidence.

Another way to think about the corpus delicti rule is that it is saying that a defendant cannot be convicted based entirely on a confession.

Corpus Delicti Example

Say a defendant walks into a police station and tells police he has just committed a murder.

That person’s conviction in court would require much more than just their word that they killed somebody. The police would have had to confirm that a murder happened with independent corroborative evidence.

Say, for example finding the body.

Corpus Delicti Rule Requires Independent Evidence

Under the corpus delicti rule, the independent evidence need only tend to show the commission of a crime. It need not be so strong that it alone proves the commission of the charged offense beyond a reasonable doubt.

The corpus delicti rule requires only that the corroborating evidence correspond with the circumstances recited in the confession and tend to connect the defendant with the crime. 

The independent evidence need not precisely align with the details of the confession on each element of the charged offense, or indeed to any particular element of the charged offense.

Corpus Delict Example From The Case Law

Defendant is arrested at his home where he was found intoxicated and driven back to the crash scene by police.

Accident Scene

Police found a vehicle had been driven up a raised median separating the roadway from the sidewalk.

The officer looked up the vehicle’s registration number and learned that the vehicle was registered to defendant who resided approximately 3½ blocks from the site of the collision.

The officer proceeded to the residence and made contact with defendant.

Defendant Located

The officer testified that defendant’s eyes were glassy, his speech was slurred, he staggered and stumbled when he walked, and a strong odor of an alcoholic beverage emanated from his breath.

Defendant told The officer that he was driving the vehicle involved in the collision. Defendant said that he went home after the collision.

No Field Sobriety Tests

The officer asked defendant to take field sobriety tests.

Defendant refused.

Corpus Delicti Issue

Defendant argues that his conviction for DUI should be reversed because the State failed to prove that he was under the influence of alcohol at the time of the motor vehicle collision under the corpus delicti rule.

While defendant admits that there was sufficient corroborating evidence that he drove the vehicle involved in the collision, he contends that the only evidence that he consumed alcohol before driving the vehicle were his own uncorroborated statements on the squad car video recording.

Analysis

Here, the squad car video recording showed that defendant admitted that he drove onto the raised median while driving home from Puerto, where he had been drinking.

The evidence, independent of defendant’s statements, showed that:

 

(1) A vehicle registered to defendant was discovered driven onto a raised median on a bridge
(2) The officer located defendant at his residence, which was 3½ blocks from the site of the collision
(3) When the officer located defendant, defendant displayed signs of intoxication, including glassy eyes, slurred speech, stumbling while walking, and a strong odor of an alcoholic beverage on his breath and
(4) defendant was in possession of the keys to the vehicle involved in the collision.

 

The court said there was independent corroborating evidence was sufficient to satisfy the corpus delicti rule.

 

While the independent evidence did not prove beyond a reasonable doubt that defendant committed the offense of DUI, the evidence corresponded with the circumstances of defendant’s out-of-court statements and tended to connect defendant to the commission of the offense of DUI.

 

Holding

Because there was sufficient independent corroborating evidence to satisfy the corpus delicti rule, defendant’s admissions were properly considered by the circuit court along with the independent evidence.

When viewed in the light most favorable to the State, a reasonable trier of fact could find that this evidence was sufficient to prove beyond a reasonable doubt that defendant drove a motor vehicle while under the influence of alcohol.

The State presented sufficient independent evidence to corroborate defendant’s out-of-court statements such that the admission of these statements did not violate the corpus delicti rule.

DUI conviction affirmed.

See Also

Episode 588 – People v. Day, 2019 IL App (4th) 160217 (January) (defendant is arrested miles away walking in the street and he made up a story that his friend was driving)

People v. Swenson, 2019 IL App (2d) 160960 (February). Episode 597 (Duration 9:00)

Defendant called up a private school to ask about their live shooter safety, then got himself promptly arrested.

Gist

Defendant was convicted of disorderly-conduct. He called the Keith Country Day School and spoke with the admissions director about their “live shooter” protocols.

Facts

He said was interested in enrolling his second-grade son at the school, and he “immediately went into a battery of questions about the protocol at [the] school for handling things that were related to guns and shooting.”

Didn’t help that he said he had been kicked out of the school.

What He Said

“He basically wanted to know how prepared I would be if he or anyone who arrived on our campus with guns? And do we have bullet proof windows at our secretary’s desk? Are our doors bullet proof? Where do our faculty members stand when we do a lockdown when there is an intruder in our building? Where do they stand in position in a classroom? Do we arm our faculty? How would our faculty defend themselves against an armed intruder? There were multiple questions.”

Defendant also mentioned that “the United States was full of socialists and KGB members.”

He also asked if she

“knew the number of *** school shootings that had taken place in the United States and if she knew the success rate of shooters once they were on campus.”

Defendant brought up the San Bernardino shooting, which had happened one week earlier. He further asked:

“Is the school prepared if that would happen in your campus today?”

The administrator testified:

“He asked me if I was prepared to have the sacrificial blood of the lambs of our school on our, on my hands, if this were to happen and what would I do? What would I do if he were to show up at the campus with a gun what would be the protocol of the school?”

Defendant also asked if the students were given “PEZ dispensers to defend themselves.” He asked if the teachers carried guns, and he talked about “a number of guns and their success rate in kill.” He asked how long it would take police to get to the school in the event of a shooting.

Then He Really Got Crazy

At one point, defendant “was talking about when you shoot and kill children and you’re looking them in the eye and their innocence and the pillows of laying their heads down at night and then you have a shooter who shoots them in the face, you know, what does that do for her as a school?”

He asked her if she would “sniff the pillow.”

She stated that she thought he wanted to know “if she would sniff the pillow of their innocence after they’ve been dead.”

The school official testified that, based on her conversation with defendant, she believed that defendant was on the school campus. He had stated that he was familiar with the woods around the school campus because he had gone to school there.

The school official testified that the conversation left her “very shook up.”

Charged With Disorderly Conduct

Defendant was charged with violating section 26-1(a)(1) of the Criminal Code of 2012 (Criminal Code) (720 ILCS 5/26-1(a)(1)), which provides as follows:

“(a) A person commits disorderly conduct when he or she knowingly: (1) Does any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace[.]”

To prove defendant guilty beyond a reasonable doubt of disorderly conduct, the State had to prove that defendant “knowingly” committed an act in an unreasonable manner that he “knew or should have known” would tend to alarm or disturb another so as to cause a breach of the peace. People v. Raby, 40 Ill. 2d 392, 397 (1968).

Interestingly, he was also charged with attempted disorderly conduct, in that defendant attempted to convey a threat, the court found defendant not guilty of that charge.

Section 26-1(a) is a general provision intended to encompass all of the usual types of “disorderly conduct” and “disturbing the peace.” Activity of this sort is so varied and contingent upon surrounding circumstances as to almost defy definition. These considerations have led the Committee to abandon any attempt to enumerate “types” of disorderly conduct. Instead, another approach has been taken.

Requires Knowing Conduct

As defined by the Code, the gist of the offense is not so much that a certain overt type of behavior was accomplished, as it is that the offender knowingly engaged in some activity in an unreasonable manner which he knew or should have known would tend to disturb, alarm or provoke others.

The emphasis is on the unreasonableness of his conduct and its tendency to disturb. Raby, 40 Ill. 2d at 396-97 (quoting Ill. Ann. Stat., ch. 38, ¶ 26-1, Committee Comments (SmithHurd 1964)). Thus, although the scienter requirement for the doing of the act in an unreasonable manner is one of knowingness, the scienter requirement for “tend to disturb, alarm or provoke” is “knew or should have known.” Id. at 397; see People v. Albert, 243 Ill. App. 3d 23, 27 (1993) (because the defendant “performed her shouting knowingly and also knew or should have known that such noise likely would disturb people such as the complainant,” she could properly be found guilty of disorderly conduct).

Given the supreme court’s clear statement, the question is whether the evidence was sufficient to establish beyond a reasonable doubt that defendant knowingly committed an unreasonable act that he knew or should have known would tend to alarm or disturb another so as to provoke a breach of the peace.

Defendant Says

Defendant testified that his intent in making the call was to enroll his son in the school. When police arrested him there were no guns at his place. Defendant testified that he never threatened anyone at the school. He never said that he was bringing a weapon to the school. He did not have a firearm owner’s identification card, nor did he own any weapons.

Convicted By The Trial Court

In finding him guilty the court stated:

“Would you as a parent have the right to know some things about the school? Yes, but not in this fashion. The hallmark of this ruling here is reasonableness. We try to look at things reasonably and this was just an unreasonable act. Would a reasonable person be alarmed and disturbed? Yes. A reasonable person would be alarmed and disturbed. And I so find. I find that the act was done knowingly. Even if it wasn’t done knowingly in the sense of making a threat to the school but if the act was done knowingly and was the act an unreasonable act? Yes. The conversation is outlined by a credible witness and was unreasonable. It went too far for that. So it is disorderly conduct.”

Analysis – Alarm & Disturb

Here, viewed in the light most favorable to the State, the evidence allowed the trial court to infer that defendant had the requisite mental state.

Although inquiring generally about a school’s security protocol is not unreasonable in itself, the nature of defendant’s questions and comments, considered in their totality, clearly exceeded the bounds of reasonableness.

For instance, although defendant never stated that he was on the campus, he let her know that he was familiar with the campus. Defendant conveyed a detailed knowledge of guns and school shootings, and he asked what would happen “if he were to show up at the campus with a gun.” Defendant reminded the school official about the recent San Bernardino shooting and asked, “Is the school prepared if that would happen in your campus today?”

Although defendant claims that he “was only inquiring about the security at the school in relation to his concerns for his son’s safety,” his comments as a whole were broader, morbid, and clearly inappropriate to his purported objective.

Viewing the evidence in the light most favorable to the State, we find that a rational trier of fact could have found that defendant knowingly acted unreasonably and knew or should have known that his act would alarm or disturb the school official so as to breach the peace.

Analysis – Free Speech

Defendant next argues that, because his words were not lewd, profane, obscene, libelous, “fighting words,” or “true threats,” they were protected by the first amendment, such that the disorderly-conduct statute cannot be read as criminalizing them.

We disagree.

Words that are expressed “in such an unreasonable manner as to provoke, make or aid in making a breach of peace [do] not come within the protections of the first amendment.” City of Chicago v. Morris, 47 Ill. 2d 226, 230-31 (1970). Here, defendant, argues that his conduct was protected by the first amendment in that he merely “had a conversation with the school official about the security at Keith School.”

This is flagrantly disingenuous.

As noted, defendant did not merely engage in a civil conversation concerning a matter of public interest. Nor was he “peacefully expressing unpopular views.” Raby, 40 Ill. 2d at 397. Rather, he subjected the school official to a lengthy interrogation that was disturbing, morbid, and well beyond a reasonable concern for school security, causing a police response and a school lockdown.

Holding

Although defendant’s concern might have been reasonable, his manner of expressing it was not, and he provoked a breach of the peace. See Pence, 2018 IL App (2d) 151102, ¶ 17 (“a breach of the peace can occur without overt threats or profane and abusive language” (internal quotation marks omitted)). It thus was not constitutionally protected.

Affirmed.

See Also

• Episode 425 – People v. Relerford, 2017 IL 121094 (November) (anti-stalking statute remains unconstitutional)
• Episode 543 – People v. Goodwin, 2018 IL App (1st) 152045 (September) (threatening a public official requires intentionality from defendant – this defendant yelled at a prosecutor)
• Episode 426 – People v. Wood, 2017 IL App (1st) 143135 (November) (defendant left a crazy, ranting voicemail and really let the judge have it but it didn’t constitute threatening a public official)
• Episode 089 – People v. Dye, 2015 IL App (4th) 130799 (August)(defendant snaps at his public defender and she lashed back but he didn’t threaten a public official)
• Episode 561 – People v. Khan, 2018 IL App (2d) 160724 (October) (Dude posted a message on facebook that he carries a gun on the college campus and people gonna end up in a body bag if they don’t stop messing with him.)
• People v. Pence,2018 IL App (2d) 151102 (April) (freaking idiot sends a fb message to his previous victim)

In re Appointment of Special Prosecutor, 2019 IL 122949 (January). Episode 596 (Duration 8:25)

Press not allowed to get grand jury documents through FOIA.

Gist

Mayor Richard M. Daley’s nephew got in a fight the victim. Victim dies and nothing happens.

7 years later a special prosecutor is appointed and a special grand jury indicts the nephew on involuntary manslaughter. There were no obstruction-type charges on any police or prosecutorial officials.

Eventually the nephew plead guilty.

The Report

The special prosecutor released a report to the court outlining the investigation and the reasons for the charges and non charges in the case.

The court unsealed the report and released it to the public.

Press Wants More

The Sun Times and the Better Government Association (BGA) then sought FOIA’s for the grand jury information. These were denied and the denial was upheld by the appellate court.

In its FOIA request, the BGA sought disclosure of the following material from the OSP:

“Documents sufficient to show the names of everyone interviewed by Dan Webb’s special prosecutors in relation to the David Koschman/Richard Vanecko case,” “[c]opies of any and all statements by and communications with Daley family members and their attorneys” and “the same information for Mara Georges [(the City’s Corporation Counsel)],” and “[c]opies of any and all itemized invoices and billing records for the special prosecutor’s team.”

Illinois FOIA

FOIA expressly declares its underlying public policy and legislative intent.

Section 1 provides that “all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of this Act.” 5 ILCS 140/1 .

Section 1 explains that…

“[s]uch access is necessary to enable the people to fulfill their duties of discussing public issues fully and freely, making informed political judgments and monitoring government to ensure that it is being conducted in the public interest.”

Consequently, section 1 provides that “[i]t is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with this Act.”

FOIA is to be liberally construed to achieve the goal of providing the public with easy access to government information. Southern Illinoisan, 218 Ill. 2d at 416.

Exceptions To FOIA

Consequently, FOIA’s exceptions to disclosure are to be construed narrowly so as not to defeat the intended statutory purpose. Thus, when a public body receives a proper request for information, it must comply with that request unless one of FOIA’s narrow statutory exemptions applies. 5 ILCS 140/3(a).

Section 7(1) of FOIA provides that certain categories of records “shall be exempt from inspection and copying.” 5 ILCS 140/7(1). This includes: “Information specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law.” Id. § 7(1)(a).

Tradition of Grand Jury Secrecy

“The grand jury is an English institution, brought to this country by the early colonists and incorporated in the Constitution by the Founders.” People v. Jones, 19 Ill. 2d 37, 42 (1960). The function of a grand jury is not to determine the sufficiency of evidence to convict but rather to determine whether there is probable cause to believe a crime has been committed and, in the process, exonerate innocent individuals accused of crimes.

The rule of secrecy surrounding grand jury proceedings is a common-law concept recognized as a fundamental component of both federal and state criminal procedural law. See, e.g., Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211, 218 n.9 (1979) (“Since the 17th century, grand jury proceedings have been closed to the public, and records of such proceedings have been kept from the public eye.”); People v. Boston, 2016 IL 118661, ¶ 49 (Burke, J., dissenting) (“Grand jury proceedings are secret [citation], and this secrecy is fundamental to our criminal procedure.”

The policy reasons given for maintaining grand jury secrecy are preventing the flight of persons under indictment or investigation, protecting grand jurors from possible undue influence or intimidation, preventing subornation of perjury, encouraging prospective witnesses to testify freely and truthfully, and protecting the innocent from unwarranted exposure.

Statutory Reasons For Grand Jury Secrecy

Section 112-6 of the Code addresses the secrecy of grand jury proceedings in the Illinois state criminal justice system. Subsection (b) of section 112-6 provides that “[m]atters other than the deliberations and vote of any grand juror shall not be disclosed by the State’s Attorney, except as otherwise provided for in subsection (c).” 725 ILCS 5/112-6(b).

Subsection (c)(1), subject to certain exceptions not relevant here, prohibits the disclosure of “matters occurring before the Grand Jury.” Id. § 112-6(c)(1).

Issue

The BGA contends the appellate court erred in finding that the materials it sought constituted “matters occurring before the grand jury.” It argues the court applied an “unduly broad interpretation” of the phrase. According to the BGA, the phrase should be construed narrowly when it serves as a basis for an exemption under FOIA. The BGA further contends its application should be limited to exempting material actually presented to the grand jury and to documents showing what transpired in the grand jury room.

We disagree.

Analysis

 The appellate court determined that all of the requested material, except for the itemized invoices and billing records, constituted “matters occurring before the grand jury” protected from public disclosure by section 112-6 of the Code because their disclosure would reveal the identity of the witnesses and the strategy or direction of the grand jury investigation. 2017 IL App (1st) 161376, ¶¶ 64-67.

We agree with the appellate court’s analysis.

The BGA’s first FOIA request would reveal the identities of the witnesses, which are matters occurring before the grand jury. Matters occurring before the grand jury include the identities of witnesses, and the government is not free to “publish lists of prospective or former grand jury witnesses. And in regard to the BGA’s second FOIA request, it cannot seriously be contended that the disclosure of such statements and communications would not be reflective of statements made before the grand jury revealing the strategy or direction of the grand jury investigation.

Doesn’t FOIA Itself Authorize These Disclosures?

The BGA alternatively argues that, even if the requested materials constitute “matters occurring before the grand jury,” they should still be disclosed pursuant to subsection (c)(3) of section 112-6 of the Code. This subsection allows disclosure of grand jury materials “when a law so directs.” 725 ILCS 5/112-6(c)(3).

The BGA contends that section 3(a) of FOIA is such a law.

Section 3(a) of FOIA provides in relevant part that “[e]ach public body shall make available to any person for inspection or copying all public records.” 5 ILCS 140/3(a) (West 2014). The BGA argues that, under subsection (c)(3) of section 112-6 of the Code, section 3(a) of FOIA is a law that directs the disclosure of the grand jury materials at issue The BGA made the same argument in the appellate court, and it was rejected.

The appellate court reasoned: “We believe that the clause ‘when a law so directs’ in section 112-6(c)(3) addresses situations of particularized necessity, such as disclosure to a court clerk or to confront a witness in a criminal trial with his prior contrary testimony. Despite exhaustive briefing, no party has cited a case where section 112-6 of the Code was held not to trigger a section 7(1)(a) exemption.

We agree with the OSP that adopting the BGA’s expansive interpretation of ‘when a law so directs’ would render the secrecy provisions in section 112-6 of the Code ‘a dead letter,’ because FOIA would effectively nullify them.”

We agree with the appellate court’s reasoning.

If we adopted the BGA’s position, documents could be disclosed through a FOIA request, even if they pertained to matters occurring before the grand jury. As a result, there would be few if any grand jury matters that could not be obtained through a FOIA request. Such a rule would effectively nullify the grand jury secrecy protections provided by section 112-6.

Holding

In sum, section 112-6 of the Code prohibited disclosure of the requested material, triggering the exemption provided by section 7(1)(a) of FOIA. Therefore, we affirm that portion of the appellate court’s judgment that affirmed the chancery court’s order dismissing count I of the BGA’s complaint.

We likewise leave undisturbed that portion of the appellate court’s judgment reversing the chancery court’s order in part and remanding for in camera review of the OSP’s invoices and billing records.

Guided by GTE Sylvania and its progeny, and established Illinois law, we conclude that the City was required to obey the protective orders out of respect for the judicial process. Consequently, based on the facts of this case, the protective orders took precedence over the disclosure requirements of FOIA.

Therefore, we hold that the City did not “improperly withhold” the requested documents within the meaning of section 11(d) of FOIA. 

See Also

Episode 553 – People v. Zimmerman, 2018 IL 122261 (October) (You can hide lascivious pretrial motions from the press.)

Episode 320 – Interview With Evan Parke (Evan made extensive use of Illinois FOIA requests in the defense of Curtis Lovelace.)

Timbs v. Indiana, 2019 SCOTUS (February). Episode 594 (Duration 24:32)

Eight Amendment ban on excessive fines and forfeitures extends to the states.

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"Often when the defense wins one, you know, we get excited and we want to apply it to everything." -- Anthony Cameron.

About Anthony Cameron

Anthony Cameron is a lawyer in Quincy, Illinois. Anthony was Adams County state's attorney from 1980 to 1984. Now, his practice does it's fare share of criminal defense.

However, Anthony does not limit his practice to only criminal justice cases.

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"Can't Miss" Moments:

✓ What does Timbs v. Indiana have to say about Illinois DUI vehicle forfeiture? Do innocent owners now have a stronger claim? (Go to 8:41)

✓ Illinois already had a built in Eight Amendment protection clause into its Article 36 Forfeiture statute. To their credit they actually mention the Eight Amendment, but... (Go to 9:41)

✓ Here's a solid example of how Timbs v. Indiana could effect the outcome of a current Illinois based asset forfeiture. (Go to 10:54)

Links & Resources

• Illinois Crime Related Forfeiture of Vehicles
• Illinois Crime Related Forfeiture of Property
• Eight Amendment of The United States Constitution
• Illinois Innocent Owner Hearing
• Article 36 Eight Amendment Statement on Proportionality

Issue

The question presented: Is the Eighth Amendment’s Excessive Fines Clause an “incorporated” protection applicable to the States under the Fourteenth Amendment’s Due Process Clause?

Facts

Tyson Timbs pleaded guilty in Indiana state court to dealing in a controlled substance and conspiracy to commit theft.

The trial court sentenced him to one year of home detention and five years of probation, which included a court-supervised addiction-treatment program. The sentence also required Timbs to pay fees and costs totaling $1,203. At the time of Timbs’s arrest, the police seized his vehicle, a Land Rover SUV Timbs had purchased for about $42,000.

Timbs paid for the vehicle with money he received from an insurance policy when his father died. Timbs had recently purchased the vehicle for $42,000, more than four times the maximum $10,000 monetary fine assessable against him for his drug conviction.

The Bill of Rights

“The constitutional Amendments adopted in the aftermath of the Civil War,” however, “fundamentally altered our country’s federal system.” McDonald, 561 U. S., at 754.

With only “a handful” of exceptions, this Court has held that the Fourteenth Amendment’s Due Process Clause incorporates the protections contained in the Bill of Rights, rendering them applicable to the States. Id., at 764–765.

A Bill of Rights protection is incorporated, we have explained, if it is “fundamental to our scheme of ordered liberty,” or “deeply rooted in this Nation’s history and tradition.”

The Eighth Amendment

Under the Eighth Amendment, “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Part Of Our History

For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties. Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies, as the Stuarts’ critics learned several centuries ago.

Even absent a political motive, fines may be employed “in a measure out of accord with the penal goals of retribution and deterrence,” for “fines are a source of revenue,” while other forms of punishment “cost a State money.” In short, the historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is overwhelming.

Protection against excessive punitive economic sanctions secured by the Clause is, to repeat, both “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.” McDonald, 561 U. S., at 767.

This Includes Asset Forfeitures

In Austin v. United States, 509 U. S. 602 (1993), however, this Court held that civil in rem forfeitures fall within the Clause’s protection when they are at least partially punitive. We thus decline the State’s invitation to reconsider our unanimous judgment in Austin that civil in rem forfeitures are fines for purposes of the Eighth Amendment when they are at least partially punitive.

As a fallback, Indiana argues that the Excessive Fines Clause cannot be incorporated if it applies to civil in rem forfeitures. We disagree.

Broad Rights Are Protected

In considering whether the Fourteenth Amendment incorporates a protection contained in the Bill of Rights, we ask whether the right guaranteed—not each and every particular application of that right—is fundamental or deeply rooted. Indiana’s suggestion to the contrary is inconsistent with the approach we have taken in cases concerning novel applications of rights already deemed incorporated.

Look At These Recent SCOTUS Cases

For example, in Packingham v. North Carolina, 582 U. S. ___ (2017), we held that a North Carolina statute prohibiting registered sex offenders from accessing certain commonplace social media websites violated the First Amendment right to freedom of speech. In reaching this conclusion, we noted that the First Amendment’s Free Speech Clause was “applicable to the States under the Due Process Clause of the Fourteenth Amendment.” Id. We did not, however, inquire whether the Free Speech Clause’s application specifically to social media websites was fundamental or deeply rooted.

See also, e.g., Riley v. California, 573 U. S. 373 (2014) (holding, without separately considering incorporation, that States’ warrantless search of digital information stored on cell phones ordinarily violates the Fourth Amendment).

Similarly here, regardless of whether application of the Excessive Fines Clause to civil in rem forfeitures is itself fundamental or deeply rooted, our conclusion that the Clause is incorporated remains unchanged. * * * For the reasons stated, the judgment of the Indiana Supreme Court is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

Holding

The Fourteenth Amendment, we hold, incorporates this protection..

Like the Eighth Amendment’s proscriptions of “cruel and unusual punishment” and “[e]xcessive bail,” the protection against excessive fines guards against abuses of government’s punitive or criminal law-enforcement authority. This safeguard, we hold, is “fundamental to our scheme of ordered liberty,” with “dee[p] root[s] in [our] history and tradition.” McDonald v. Chicago, 561 U. S. 742, 767 (2010) (internal quotation marks omitted; emphasis deleted). The Excessive Fines Clause is therefore incorporated by the Due Process Clause of the Fourteenth Amendment.

Before You Go...

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People v. Johnson, 2019 IL 122956 (January). Episode 593 (Duration 10:10)

Defendant has to move to withdraw his plea if he wants to challenge a sentence that was within the agreed cap but where the judge relied on improper factors.

Gist

The sole issue before this court is whether the appellate court erroneously reached the merits of defendant’s sentencing challenge. That determination turns on the proper application of Rule 604(d), which is a question of law, reviewed de novo.

Facts

Defendant plead guilty to 2 charges.

The state dismissed more serous counts and agreed to a 13 year sentencing cap. Defendant was given 11 years. He then sought to vacate the plea because he said the trial court relied on improper sentencing factors. After examining the applicable rules and the relevant case law, the appellate court held that a defendant who enters into a partially negotiated plea agreement need not withdraw his plea in order to challenge his sentence on the basis that the trial court relied on improper sentencing factors.

The Old Illinois Supreme Court Rule 604(d)

Rule 604(d) provides that

“[n]o appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant *** files in the trial court a motion to reconsider the sentence, if only the sentence is being challenged, or, if the plea is being challenged, a motion to withdraw his plea of guilty and vacate the judgment.”

Rule 604(d) (eff. Aug. 1, 1992).

But What If There Is An Agreement?

In People v. Evans, 174 Ill. 2d 320, 332 (1996), we held that a defendant may not unilaterally seek to reduce his sentence by filing a motion for sentence reconsideration under Rule 604(d) where he pleads guilty to certain charges in exchange for an agreement to dismiss charges and recommend a specific sentence—a plea arrangement characterized as “negotiated.”

In that situation, a defendant must move to withdraw the plea and vacate the judgment and show that the granting of the motion is necessary to correct a manifest injustice. 

Our rationale for this conclusion was dictated by the nature of the plea agreement and the application of contract law principles. We explained that a defendant who seeks to reduce the agreed-upon sentence seeks “to hold the State to its part of the bargain while unilaterally modifying the sentence to which they had earlier agreed.” Id. at 327.

What If It’s Just A Sentencing Cap?

Thereafter, in People v. Linder, 186 Ill. 2d 67 (1999), we applied the same contract law principles with equal force where a defendant agreed to plead guilty in exchange for a recommended sentencing cap. Again, we highlighted the significance of the plea bargaining process.

Under this type of negotiated plea, we reasoned that, “by agreeing to plead guilty in exchange for a recommended sentencing cap, a defendant is, in effect, agreeing not to challenge any sentence imposed below that cap on the grounds that it is excessive.” Id. at 74.

We explained that under these circumstances, allowing a defendant to move to reconsider his sentence without withdrawing his plea “unfairly binds the State to the terms of the plea agreement while giving the defendant the opportunity to avoid or modify those terms.” Id. Thus, we held these types of negotiated agreements raised the same concerns that were present in Evans.

If There Is No Agreement What-So-Ever?

In People v. Lumzy, 191 Ill. 2d 182, 187 (2000), we held that, where absolutely no agreement existed between the parties as to the defendant’s sentence, a defendant is not required to withdraw his plea in order to challenge his sentence. Under this type of plea, no contract principles were violated, and the sentence did not go “hand in hand” with the plea because the State “did not make any facet of sentencing an element of its bargain with defendant.” Id. at 189.

Thereafter, in People v. Diaz, 192 Ill. 2d 211, 225 (2000), we summarized that under Rule 604(d) a defendant is not required to move to withdraw his guilty plea in order to challenge his sentence where the plea bargain is silent as to sentencing. However, we reiterated that, where the plea agreement between a defendant and the State concerns both the charging and sentencing aspects of the defendant’s case, the defendant must move to withdraw the plea.

The General Rule

Our rationale is again animated by the nature of the plea and contract principles because the sentence is premised upon the plea.

“The existence of a sentencing concession by the State activates the application of the Evans rule, as the sentence is thereby made a part of the bargain between the parties. Therefore, if a plea agreement limits or forecloses the State from arguing for a sentence from the full range of penalties available under law, in order to challenge his sentence, a defendant must first move to withdraw his plea in the trial court. If the court grants the motion, both parties are then returned to the status quo as it existed prior to the acceptance of the plea.”

The New Illinois Supreme Court Rule 604(d)

In 2000, consistent with the development of our case law, this court amended Rule 604(d). The rule now includes the following pertinent language:

“No appeal shall be taken upon a negotiated plea of guilty challenging the sentence as excessive unless the defendant, within 30 days of the imposition of sentence, files a motion to withdraw the plea of guilty and vacate the judgment. For purposes of this rule, a negotiated plea of guilty is one in which the prosecution has bound itself to recommend a specific sentence, or a specific range of sentence, or where the prosecution has made concessions relating to the sentence to be imposed and not merely to the charge or charges then pending.”

Ill. S. Ct. R. 604(d) (eff. Nov. 1, 2000).

Some Limited 604(d) Exceptions

The State notes that this court has exempted the application of Rule 604(d) to negotiated pleas in two narrow instances:

(1) where a defendant challenged his sentence as not authorized by statute (People v. Williams, 179 Ill. 2d 331 (1997); People v. Wilson, 181 Ill. 2d 409 (1998)) and
(2) where a defendant challenged the statute under which he was sentenced as facially unconstitutional and void ab initio (People v. Guevara, 216 Ill. 2d 533 (2005)).

The State asserts that defendant’s sentencing challenge does not fall within either instance.

A Conflict In The Districts

Defendant acknowledges that he does not wish to withdraw his “favorable” plea. Rather, in an attempt to preclude the application of the rule to his claim on appeal, defendant maintains there is a distinction between a challenge to a sentence as being “excessive” and the challenge he now makes—a challenge to a sentence because the court improperly relied on certain statutory aggravating factors.

He maintains that the distinction lies in the fact that his challenge is one of constitutional dimension that implicates due process and fundamental fairness.

The Second and Fourth Districts have drawn a distinction between an “excessive” sentencing challenge and an “improper” sentencing challenge, finding the latter challenge not barred by Rule 604(d). The Third District rejected this argument, finding it would reduce the withdrawal requirement of Rule 604(d) to “nothingness” and would deny the State the benefit of its bargain in negotiated pleas. People v. Rademacher, 2016 IL App (3d) 130881, ¶¶ 58-60.

Thus, to resolve this split in authority, we consider the nature of defendant’s challenge.

Issue

The State maintains that Rule 604(d) precludes a defendant who entered into a negotiated guilty plea from challenging a sentence that was statutorily authorized and within the terms of the plea agreement.

The State argues that pursuant to Rule 604(d) defendant’s recourse is to seek to withdraw the plea and vacate the judgment.

 Defendant contends that the circuit court considered improper aggravating factors in sentencing that were inherent in the offense. The prohibition against dual use of an aggravating factor, referred to as “double enhancement,” is “based on the assumption that, in designating the appropriate range of punishment for a criminal offense, the legislature necessarily considered the factors inherent in the offense.” People v. Phelps, 211 Ill. 2d 1, 12 (2004).

Analysis

Thus, when a defendant contends the court improperly considered a statutory aggravating factor that was implicit in the offense, the defendant is asserting that the court imposed a “harsher sentence than might otherwise have been imposed” had the court not considered the improper statutory factor. Thus, defendant’s argument is essentially that, had the trial court not erred in its application of the statute and had it not erroneously considered those statutory factors, he would have gotten a lower sentence than the 11-year sentence that was imposed.

Stated another way, defendant contends the court imposed an excessive sentence.

 

Ultimately, we find the nature of defendant’s challenge to be a distinction without a difference for purposes of Rule 604(d). To find otherwise would allow almost every sentencing challenge in a criminal case to be restated in a constitutional due process framework as a way to avoid the rule. This type of exception would result in making Rule 604(d)’s requirements superfluous.

 

Diaz Had It Right All Along

Rather, we find Diaz to be ample support for our conclusion that the nature of the plea agreement and contract principles bar defendant from moving to reconsider his sentence.

In Diaz, the defendant entered into a negotiated plea in which he agreed to plead guilty to certain charges in exchange for the State’s agreement to certain sentencing concessions, which resulted in a recommendation to cap his sentence at 30 years. The defendant received a sentence of 20 years, well within the bargain, but sought to challenge his sentence on appeal because the trial court improperly allowed certain evidence to be introduced during the sentencing proceedings. As a result of the evidentiary errors committed by the circuit court, defendant argued he was entitled to a new sentencing hearing. The State contended that the plea agreement was analogous to the agreement in Linder and, therefore, defendant’s recourse was to move to withdraw his plea.

We agreed.

Similarly, in this case, defendant entered into a negotiated plea in which he pleaded guilty in exchange for not only dismissal of certain charges, including a Class X offense, but also sentencing concessions by the State. Defendant’s plea was entered with the full knowledge that he could receive a sentence within the cap—that is, any sentence within the 4- to 13-year range.

Defendant received a sentence two years below the maximum sentence of 13 years to which he knew he could be sentenced. Under the agreement, defendant avoided a potential punishment beyond that which he deemed to be fair and received the certainty of a lower sentencing range. The sentence imposed was within the terms of the bargain and was well within the permissible sentencing range for that offense.

Like the defendant in Diaz, defendant now seeks to retain the State’s concession while freely challenging his sentence. The sentence cap and plea went together as material elements of the plea bargain. Defendant has received a sentencing benefit from the agreement not to seek a sentence above the cap and has received the certainty of a lower sentencing range. To “allow defendant to unilaterally modify his agreement under these circumstances while holding the State to its end of the bargain” would violate contract principles.

No Hobson’s Choice

Consistent with our precedent, defendant’s recourse under Rule 604(d) is to seek to withdraw the plea and return the parties to the status quo as it existed prior to the acceptance of the plea. Defendant followed that course of action but failed to show the plea was not voluntary or knowing or that the granting of his motion was necessary to correct a manifest injustice.

He has now chosen to abandon any argument on appeal with respect to the withdrawal of his plea. Despite the nature of the plea agreement and the contract principles at issue, defendant maintains that his challenge is distinct because it implicates the integrity of the judicial system. He also contends that he is otherwise left with a Hobson’s choice to accept the court’s erroneous sentence or withdraw a favorable plea.

Again, we find the nature of defendant’s challenge no different than the challenge in Diaz for purposes of applying Rule 604(d), where the defendant similarly argued he was denied a fair sentencing hearing because the trial court allowed improper evidence to be introduced at the hearing. Despite that fact, the defendant entered into a negotiated plea agreement to a sentence that was authorized by statute and was within the terms of the agreement.

Holding

We hold that under these circumstances a defendant’s recourse is to seek to withdraw the plea and return the parties to the status quo does not undermine judicial integrity. In sum, after considering the language of the rule and this court’s precedent, we hold that a defendant who enters into a negotiated plea agreement may not challenge his sentence on the basis that the court relied on improper statutory sentencing factors.

This type of sentencing challenge is an excessive sentence challenge. Under Rule 604(d), a defendant’s recourse is to seek to withdraw the guilty plea and return the parties to the status quo before the plea.

Accordingly, the appellate court erred in addressing the merits of defendant’s sentencing challenge. 

Ultimate Illinois Sentencing Guide Check out the Illinois Sentencing Resource Page to discover more on this topic.

 

Prior Consistent Statement

Generally, a prior consistent statement of a witness is inadmissible for the purpose of corroborating the witness’s trial testimony. People v. Donegan, 2012 IL App (1st) 102325, ¶ 52. That is so because it is likely to unfairly enhance the witness’s credibility solely because the statement has been repeated.

Illinois Rule Of Evidence 613(c)

Rule 613(c), as amended in 2015, states, in pertinent part, that a prior consistent statement is admissible “for rehabilitation purposes only and not substantively as a hearsay exception or exclusion.” Ill. R. Evid. 613(c) (eff. Oct. 15, 2015).

The plain language of Rule 613(c) precludes the admission of a prior consistent statement as a hearsay exception, including as an excited utterance.

Accordingly, as the State concedes, the protective services testimony about the victim’s prior consistent statement was improperly admitted as an excited utterance.

People v. Baker, 2019 IL App (2d) 160791 (February). Episode 592 (Duration 15:26)

 

Inadmissibility of prior consistent statement trumps hearsay exceptions.

Gist

The victim was defendant’s step sister, who lived with defendant. He chocked and beat her. She was developmentally disabled and worked at Malcolm Eaton Enterprises. ME provided developmental training for disabled adults.

Facts

Her work day was from 8:30 a.m. to 3 p.m.

As the victim packed her lunch and prepared for work, defendant began to tease her about her former boyfriend. Defendant’s persistent remarks angered the victim. When the victim told defendant to stop, defendant grabbed her by the throat with his left hand and pushed her against the refrigerator.

As he did so, he squeezed the victim’s throat. When the victim told him to leave her alone, he released his grasp. the victim then went into her bedroom. As she exited the bedroom, defendant grabbed her by the arm.

The victim then entered the bathroom. After she did, defendant slammed the bathroom door so hard he damaged it. Because the door was damaged, defendant obtained some tools, including a pry bar, to repair it. As the victim exited the bathroom, she saw defendant holding the bar and thought he might hit her with it.

Told Them What Happened

She testified that when she arrived at ME she told a nurse and other employees about “what happened.”

She later told a police officer about “what had happened.” The victim never specified what she said about the incident. 

On cross-examination, the victim admitted that she told a police officer that defendant had grabbed her throat twice as opposed to once. She further admitted that she told the officer that defendant pushed her in the chest, causing her to fall into the basement door.

More Details From The Protective Services Guy

When the state asked the adult protective services supervisor and case worker what the victim told him about the incident, defendant objected based on hearsay.

When the trial court overruled the objection, defendant asked for an explanation. The court explained that it was admitting the testimony about what the victim told him as an excited utterance or spontaneous declaration.

Defendant did not object on any other basis.

According to the protective services witness, the victim told him that defendant had lost his temper, screamed at her, and called her names. Defendant then grabbed her throat and shoved her into the refrigerator. She added that when she went into the bathroom and looked in the mirror she could see marks on her throat. When she told defendant about the marks, he responded that the next time he would throw her through a wall.

The victim told him that, when she told defendant that she was going to report the incident at ME, he told her that if she did he would put her belongings on the porch and lock her out.

The Text Message

While the protective services witness was speaking with the victim, she received a text message. She became upset, showed the message to him, and said that it was from defendant.

According to the witness, the message stated that if the victim told the police about defendant she should not return home, because she no longer lived there. 

Issue

On appeal, defendant contends that the trial court plainly erred in admitting the victim’s prior consistent statements through her testimony and that of the protective services witness.

The State responds that (1) the victim’s testimony that she related what happened to third parties did not constitute prior consistent statements, and (2) because the victim’s statement to protective services was an excited utterance, his testimony was admissible, irrespective of whether the victim’s statement was a prior consistent statement.

This Case

Here, defendant asserts that the victim testified that she told the “same story” to others and thus testified to prior consistent statements. However, the victim never testified that she told the “same story.” Rather, she testified that she told others about “what happened.”

She never specified what she said about the incident.

Accordingly, there was no prior statement that was consistent with her testimony. Because there was no prior consistent statement, the victim’s credibility was not unfairly enhanced. Thus, the admission of the victim’s testimony was not error.

Statement To Protective Services Was Admissible Hearsay

We first address whether that testimony may be challenged as a prior consistent statement when it was admissible under an exception to the hearsay rule.

Thus, the State asserted that, because the testimony was properly admitted as an excited utterance, it did not matter whether it was inadmissible as a prior consistent statement. However, at oral argument, the State withdrew its argument. In doing so, the State pointed to Illinois Rule of Evidence 613(c) (eff. Oct. 15, 2015), which it contended now prohibits the admission of a prior consistent statement as substantive evidence under any hearsay exception.

We agree.

Holding

To the extent that People v. Watt held that a prior consistent statement could be admitted as an excited utterance, it is no longer efficacious in light of the subsequent amendment to Rule 613(c). Because the evidence was not closely balanced, it was not plain error.

Illinois Rules Of Evidence Check out the Illinois Rules of Evidence Resource Page to learn more about Illinois Evidence. See Also

Original Version of Rule 613 in January 2011

Amended Version of Rule 613 in October 2015

Illinois Rules of Evidence A Color-Coded Guide

People v. Davison, 2019 IL App (1st) 161094 (February). Episode 589 (Duration 15:22) (police course of conduct evidence is kind of fishy)

People v. Felton, 2019 IL App (3d) 150595 (January). Episode 590 (Duration 11:02) (excited utterance evidence was properly admitted in this case with crazy facts)

People v. Hayden, 2018 IL App (4th) 160035 (December). Episode 577 (Duration 7:14) (all kinds of 115-10 statements were admitted against defendant in this case)

People v. Bowden, 2019 IL App (3d) 170654 (February). Episode 591 (Duration 11:29)

Another example of evidence that was admitted to demonstrate the course of the police investigation.

Facts

The officer was following defendant’s vehicle, in Carthage, Illinois, in the westbound lane of Highway 136.

The westbound lane was defined with a solid white fog line on the right and two solid yellow lines on the left. The officer testified that the single westbound lane of Highway 136 became two lanes that were divided by a white dashed line.

He observed that defendant had continued to follow along the right-hand white fog line and crossed over the white dashed line that originated from the right-hand fog line without using a turn signal.

The officer stated, “I think he continued a little bit with the left lane before moving back towards the fog line if I remember correctly.” He initiated a traffic stop, discovered defendant’s driver’s license had been suspended, placed defendant under arrest, and found methamphetamine when searching defendant’s person incident to the arrest. Defendant’s vehicle was subsequently towed.

During an inventory search of defendant’s vehicle, additional methamphetamine was found.

Highway 136

The juncture of Highway 136 at issue was “a white dashed line that starts at the white fog line on the right-hand side of the westbound lanes that moves out into the center of the roadway as the lane—the single lane splits into two lanes.”

There were essentially two fog lines where the single lane splits into two lanes, one solid and one dashed line. Defendant crossed over the white dashed line and proceeded in the right-hand lane without signaling a lane change. By doing so, the officer believed that defendant violated section 11-804(d) of the Vehicle Code (id. § 11-804(d)). The officer pulled defendant over for failure to signal the lane change because he believed defendant had moved from the left lane into the right lane.

Trial Judge Ruling

After viewing the video the trial judge stated:

“The Court can honestly say that it has probably driven this roadway a thousand times over the course of living in this area. And I don’t think any of those times, not only have I traveled the exact same way that the defendant traveled, staying next to the fog line, the Court has never considered that to be a lane change. It’s not a lane change until such time that you would actually be in a lane and then if you go either way, that becomes a lane change. This is confusing at best. But I don’t believe that a signal was required by defendant.”

The trial court also found that the traffic stop was not objectively reasonable because defendant did not commit any traffic violation.

The trial judge stated, “I did not see any violation that the defendant made.”

When Turn Signal Required

Section 11-804(d) of the Illinois Vehicle Code, in pertinent part, provides:

“(d) The electric turn signal device must be used to indicate an intention to turn, change lanes or start from a parallel parked position...” 

Illinois Vehicle Code (625 ILCS 5/11-804(d)).

Analysis

Our review of the video shows that defendant did not move from the left lane into the right lane.

Rather, the video shows that defendant continued to proceed alongside the right-hand white fog line, when a white dashed line abruptly appeared from the right-side white fog line and continued toward the middle of the westbound lane, eventually dividing the single lane into two separate lanes. Defendant crossed the white dashed line as the dashed line appeared on the road in front of him, with the single lane eventually becoming two lanes that were separated by the white dashed line.

At the point defendant crossed over the white dashed line, however, he was continuing along the right-side fog line and did not make any abrupt movements in either direction. Thus, there was no evidence presented indicating that defendant had changed from one lane to another lane.

Instead, the evidence showed that two separate lanes had not yet been formed at the point defendant crossed over the white dashed line. See 625 ILCS 5/1-136 (West 2016) (defining a “[l]aned roadway” as a “roadway which is divided into two or more clearly marked lanes for vehicular traffic”). Therefore, the trial court’s finding that defendant did not execute a lane change was not against the manifest weight of the evidence.

Decline To Follow Theus

We decline the State’s request for this court to follow Theus.

First, we hold that section 11-804(d) is not ambiguous. Section 11-804(d) is clear in its requirement that a turn signal “must be used to indicate an intention to *** change lanes.” 625 ILCS 5/11-804(d).

Despite its eventual holding that section 11-804(d) was ambiguous in its requirement of turn signal when a single lane divides into two separate lanes, the Theus court acknowledged that the signal requirement of 11-804(d) when changing lanes was unambiguous. See Theus, 2016 IL App (4th) 160139, ¶ 34.

Second, we believe that the issue of whether a lane change occurred is a factual determination. The trial court in Theus found that “there was no movement made from one marked lane to another” to require a lane change. ¶¶ 9, 18. Based on that factual determination in Theus, the trial court had found there was no violation of section 11-804(d) of the Vehicle Code.

Third, the facts in Theus are distinguishable from this case. In Theus, the single lane widened with white dashed markings appearing, almost without warning, “in front of” the driver’s vehicle, forming two separate lanes, and the officer testified that the driver had made an abrupt lane change without activating a turn signal. In this case, the single westbound lane of Highway 136 widened, with the white dashed marking originating from the right side of the road toward the center of the road and those white markings abruptly crossing in front of defendant’s vehicle.

The officer said defendant had continued in the newly forming left lane before moving back toward the right-hand fog line, the video showed that defendant continuously followed along the right-hand fog line with no abrupt movement in either direction.

Holding

Therefore, the officer’s belief that defendant committed a traffic violation for failing to signal a lane change was not objectively reasonable where no lane change had occurred. Defendant crossed the white dashed lines as he continued traveling in the single westbound lane, prior to the dash marks establishing two separate lanes. Given these circumstances, Officer Glenn’s belief that defendant had changed lanes was not objectively reasonable.

Accordingly, the officer's belief that a lane change occurred to require a turn signal was not objectively reasonable where the evidence showed that defendant continued following along the right-side fog line and could not have changed lanes at that particular juncture of the road because the white dashed road markings had not yet divided the single lane into two separate lanes.

Therefore, the trial court did not err in granting defendant’s motion to quash arrest and suppress evidence.

See Also 

Episode 579 - An Update On The Barney Fife Traffic Stop

People v. Oelerich, 2017 IL App (2d) 141281 (February). Episode 295 (Duration 13:05)

Defendant had severe mental delusions and issues when he drove his car head on into a lady's mini van.

Facts

Defendant was either trying to kill himself or test to see if he was invisible when he drove his mother's Cadillac into a minivan with a mother and her two children.

The mother died.

Defendant was convicted of murder.

Mentally Ill

He had been on Haldol, an antipsychotic drug.

He was suffering from schizophrenia and was demonstrating very unusual behavior before the crash, immediately after the crash and all throughout the investigation.

One expert concluded in part that, although defendant “over-reported” symptoms of psychosis, he was not feigning mental illness.

Rather, his elevated scores on the scales for persecutory ideation and paranoia showed that, long after the crash, he continued to have delusional thinking about being persecuted or followed and still had paranoid thinking.

Another expert disclosed “elevated levels of impairment in reality testing,” i.e., “someone who really has a difficult time evaluating objective reality, really had a break with reality.”

Defendant continued to have paranoia and feelings of persecution.

Yea, But What Did He Know?

The State argued that, even had defendant believed that crashing his car into the Nissan was some sort of divine calling, the evidence still proved that he knew that the probable result was death or great bodily harm to another person.

He Wanted The Lesser Included

Defendant argued that his state of mind negated a finding beyond a reasonable doubt that he had had the mens rea for murder. He had had no idea what he was doing.

The main defensive strategy was to ask for the lesser included of reckless homicide.

Defendant never sought nor plead an insanity defense.

His Main Argument

Defendant contends that the evidence, even when viewed most favorably to the State, did not prove beyond a reasonable doubt that, when he drove the Cadillac into the Nissan, he knew that there was a strong probability that the result would be death or great bodily harm to another.

Defendant contends, however, that the evidence left a reasonable doubt of whether he knew that his act created a strong probability of death or great bodily harm. Defendant relies primarily on the evidence that his mind was severely disordered on the evening of the crash.

First Degree Murder v. Reckless Homicide

Defendant notes that, to obtain a conviction of first-degree murder, the State had to prove that he knew that his act created a strong probability of death or great bodily harm. 720 ILCS 5/9-1(a)(2).

By contrast, to obtain a conviction of reckless homicide, the State had to prove only that defendant’s act was likely to cause death or great bodily harm and that he performed it recklessly. 720 ILCS 5/9-3(a).

A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that circumstances exist, or that a result will follow, and that disregard grossly deviates from the standard of care that a reasonable person would exercise in the situation. 720 ILCS 5/4-6.

Analysis

Both his mental state and the character of his act are pertinent; the difference between the offenses is what he knew.

“Knowing” murder requires proof of (1) knowledge of (2) a strong probability. 720 ILCS 5/9­ 1(a)(2).

Reckless homicide requires proof of (1) “conscious disregard” of (2) a substantial (and unjustifiable) risk. 720 ILCS 5/4-6.

The respective criteria numbered (1), which address a defendant’s mental state directly, do not explain the difference between the offenses.

The reviewing court saw no meaningful distinction between “knowledge” and “conscious disregard,” at least not one that aids the defendant.

The Mental States

To consciously disregard something, one must know it.

Therefore, the distinction between the two offenses must lie in the difference between the respective criteria numbered (2).

A “strong probability” is more than a “substantial risk.” This does not mean that defendant’s mental state is irrelevant. Even if he knew that there was a “substantial risk” that his act would cause death or great bodily harm, he might not have known that it created a “strong probability” of this result.

What Did He Know?

The issue is not whether the evidence proved that the act, considered objectively, created a strong probability of death or great bodily harm but whether the evidence proved that the act, considered objectively, created a strong probability of death or great bodily harm and that defendant was aware of that strong probability—and not merely of the substantial risk of death or great bodily harm.

This, indeed, appears to be the nub of defendant’s argument on appeal and the reason that he emphasizes his impaired mental state as negating his guilt of murder.

What Do The Mentally Ill Know?

A person whose perception of reality is compromised might know that he faces a risk of causing a given result but not that he faces a strong probability of causing it.

Defendant contends that the evidence required the jury in his case to so conclude.

The reviewing court said it saw no serious argument that defendant’s act itself did not create a strong probability of causing death or great bodily harm.

The Act

Viewed most favorably to the State, the evidence showed that defendant crossed the median while driving his car at no less than 65 miles per hour, approximately twice the posted speed limit, and rammed it directly into the front of a moving vehicle. That this act created a strong probability of death or great bodily harm cannot be disputed.

State's Burden

The State’s burden was to show guilty knowledge, not to prove that defendant was legally sane at the time of the crash.

The State did not need to prove that defendant intended to kill or cause great bodily harm to another person. It needed to prove only that he knew of the strong probability that he would cause at least one of those results.

As noted, had defendant suffered no psychosis, the evidence would not have been close.

Ordinarily, it is a perfectly reasonable inference that a driver who proceeds at twice the posted speed limit, crosses the median into oncoming traffic, and swerves sharply into the front of a vehicle going the other way, hitting it head-on, knows that he is creating a strong probability of killing or severely harming another person. It would be difficult to imagine a reasonable jury not finding guilty knowledge under this scenario.

How His Illness Affected His Mental State

The evidence of defendant’s psychosis, its severity, and its close relationship to his conduct did not create a reasonable doubt of his guilty knowledge.

A schizophrenic does not lose all contact with reality or all ability to absorb and retain information. And defendant’s apparent delusions did not necessarily cast doubt on whether he knew that his conduct could easily kill or severely injure another person.

Acting On A "Calling"

His belief that he was acting on a “calling” to test his immortality was not inconsistent with a recognition that he would probably get another person killed or severely injured.

Orders From Demons

Defendant’s delusion that he was acting under orders from demons did not negate his recognition that he was causing an automobile collision that would probably be fatal or greatly harmful to another.

Delusional Motive

It is important to note affirmative evidence, beyond the nature of defendant’s conduct itself, that he was aware of reality to a great degree and did perceive the consequences of his act.

His delusional motive itself provides some such evidence.

The jury reasonably inferred that, in believing that he had to test whether he was immortal by crashing his car into another vehicle, defendant recognized that such crashes ordinarily carry a strong probability that someone will be killed (and, a fortiori, severely injured). Otherwise, he would not have considered his act a test of his invincibility.

And if he knew that his conduct could kill him, at least were he not protected by his “calling,” it was fair to infer that he knew that it could kill someone else.

His Words

Other aspects of defendant’s conduct also helped the jury to conclude that his contact with reality had not been so attenuated that he could not have recognized what otherwise was an obvious probability.

Defendant drove to his parents’ home, picked up his mother’s car, and managed to drive it on Cedar Lake Road until he deliberately steered it into the Nissan.

He told the OnStar operator that he had just driven into another vehicle; he was not so deluded that he did not realize what had just happened.

It was a fair inference that, having recognized the reality of the crash just after it occurred, he had also recognized the probability of the crash and its consequences just before it occurred.

Defendant also recognized these consequences later, when he talked to police.

Holding

Here, as we have explained, the circumstantial evidence was extremely strong, based on the character of defendant’s act and its surrounding circumstances. Moreover, the expert psychiatric testimony did not negate the inference that defendant knew the natural and probable consequences of his act, despite the distorted thinking that accompanied it.

Murder conviction affirmed.