Kane County Nuggets

eople v. Anderson, 2017 IL App (1st) 122640 (January). Episode 293 (Duration  10:22)

Trial court distinguishes Lerma to deny the use of an eyewitness expert in this case.

Facts

The victims were shot to death as they sat in a vehicle in the parking lot behind Leader Liquors.

Officers just happen to be going to that area when they heard multiple gunshots and saw a man standing near a car shooting at the occupants. A chase ensues.

The officers have moments to observe the shooters face and make a general description. The call it in as they are chasing. A few moments later another officer sees defendant.

He has thrown some gloves on the ground but is arrested.

The officers who witnessed the shooting are able to identify defendant as the shooter. It also turned out they had arrested defendant one year earlier.

Police retrace the steps of the shooter and find the murder weapon on a roof. The gloves had gunshot residue on them. Turns our the defendant used to be friends with the victims.

Identification

Defendant challenged the identification made by the officers and challenged the fact he was denied the use of an eyewitness identification expert witness.

Both officers testified that as defendant was running, his hood fell back, allowing them to see an unobstructed view of his face from a distance of 10 to 12 feet away in a well-lit alley.

They positively identified him only 15 to 20 minutes later.

They testified to a degree of detail that would allow the jury to make a determination as to the appropriate weight to be given their identification testimony. The description of the fleeing offender given over the radio was accurate to the extent that it matched the defendant running through the neighborhood gangways within four minutes of the shooting in close proximity to the scene.

The court also considered the level of certainty the witness demonstrated in identifying defendant as the offender. Both officers identified defendant without hesitation shortly after seeing his face in the alley.

Finally, it considers the amount of time between the commission of the crime and the identification. Here, the officers identified defendant about 15 to 20 minutes after the shooting.

Why The Identification Was Denied

In addressing the admission of expert testimony, the trial judge should balance the probative value of the evidence against its prejudicial effect to determine the reliability of the testimony.

Furthermore, the necessity and relevance of the expert testimony should be carefully considered in light of the facts of the case.

The reviewing court noted that in People v. Lerma, 2016 IL 118496, the court began its analysis by stating that “this is the type of case for which eyewitness testimony is both relevant and appropriate” given that the only evidence of the defendant’s guilt was the eyewitness identifications made by two witnesses.

Lerma Distinguished

There was no physical evidence and no confession or other incriminating statements.

Arrested Nearby &
Quick Identification

Here, defendant’s conviction does not rest solely on the identification made by the two officers. Not only did the officers see defendant shoot the victims, they chased him through an alley. After they lost sight of him, another officer saw the defendant who was wearing clothes that matched a radio broadcast that described the shooter, running through a gangway and alley near the shooting, and defendant was detained four blocks from the shooting only four minutes after it had occurred.

The Gloves

In addition, defendant was seen throwing down a pair of black gloves that later tested positive for gunshot residue.

The Murder Weapon

Additionally, the murder weapon was found on the route between where they chased defendant and where a third officer later observed him running.

2 Witnesses

Defendant was then identified separately by both officers who gave chase and saw the shooting.

The trial court weighed the facts and circumstances of this case and correctly concluded that the conclusion to be reached would not “rise or fall on the identification of two police officers alone.”

Unlike Lerma, there was physical and circumstantial evidence outside of the identification testimony that supported defendant’s conviction.

No Report

Furthermore, unlike Lerma, there was no report submitted by an expert in this case, nor did the defense submit a detailed motion containing the proposed testimony of the expert or a summary of the relevance of that testimony to the issues in this case.

Generalized Motion

Instead, the defense submitted a generalized motion indicating that the expert would testify to common misconceptions regarding eyewitness identifications, the accuracy of eyewitness identifications and the effect of suggestivity or bias, how memory affects eyewitness identification, “factors associated with verified cases of misidentification and as observed in this particular case,” and that “the eyewitnesses in the present case are not reliable based on the factors in this case.”

The trial court conducted a meaningful inquiry of the expert witness and the content to which he would testify at a hearing on defendant’s motion and, in its discretion, denied the motion.

There was no abuse of discretion.

Holding

The record shows that the trial court balanced the probative value against the possible prejudice that may arise from allowing this expert to testify. In addition, the jury was given an instruction on how to weigh eyewitness identification testimony. Even if this was the type of case for which expert eyewitness testimony was relevant and appropriate, which it is not, the trial court’s denial of defendant’s request is a harmless error.

People v. Felton, 2019 IL App (3d) 150595 (January). Episode 590 (Duration 11:02)

Other crimes evidence was excessive here but it was a bench trial and the evidence was overwhelming against defendant.

Gist

The State charged defendant with attempted first degree murder (720 ILCS 5/8-4(a), 9­ 1(a)(1)) and aggravated battery (id. § 12-3.05(e)(1)), alleging defendant shot Jeremy Wade in the face, causing great bodily harm. The State also charged defendant with home invasion (id. § 19-6(a)(2)) and residential burglary (id. § 19-3(a)).

The Home Invasion

Defendant participated in the home invasion and burglary of a 93 year old victim.

They tied her up and for 45 minutes took things from her home. The home invasion trial went without a hitch and defendant was convicted.

Admitted In The Murder Trial

In the bench trial for the attempted murder the state was allowed to get into some aspects of the home invasion to prove the motive for the attempt murder. The first 30 pages of the victim's trial testimony consisted of his detailing the planning and execution of the home invasion. This testimony was largely identical to his testimony at defendant’s home invasion trial.

The State once again played the surveillance footage from the Joliet Walmart.

Victim Arrested

Two Ottawa police officers also testified solely regarding the details of the home invasion. The victim testified that he was taken into custody following a drug raid. He was questioned about the home invasion but did not cooperate and was eventually released.

Defendant Worried

Immediately after his release, defendant contacted him wanting to know what he disclosed to the police.

Defendant didn't show up but sent someone to give the victim a phone. They talked on a phone after the victim was searched for a wire. 

Later the victim is called again by the defendant. Again defendant asked him about his interaction with the police three days earlier. The victim told him for the first time that the police had shown him a photograph of a codefendant. Defendant “kind of freaked out and called an F’ing idiot.”

Finally, defendant wanted to meet to talk.

The Live "Meeting"

The victim and another man remained in a truck, waiting for defendant.

When a red car passed them, they followed it. The red car led them to the Streator area. There were two people in the car, defendant and another man. Both vehicles stopped on a bridge, and the victim and defendant each alighted from their respective vehicles.

Victim observed a rubber glove on defendant’s hand.

Defendant instructed him to stand against the railing and then told the victim's companion to leave. At defendant’s direction, the victim took his shirt off so defendant could check for a wire. Defendant had a plastic bag around his other hand and was holding a firearm in it.

He told the victim to open his mouth. Victim testified: “I refused to open my mouth, and he kind of like grinned and giggled at me a little bit and said something about don’t cry.”

The Shot

The victim recalled seeing a white flash.

His next memory was of waking up in the water underneath the bridge. He had pain in his face and pelvis. He heard tires squealing and believed defendant had left. He thought his pelvis was broken and described his teeth as “dangling by threads of my gum line.”

The victim walked to a house where he could see lights. He yelled for help. He entered the house and called 911.

The Injury

He testified that he eventually received surgery on his mouth and had his pelvis reset. The State played two 911 calls made by the victim in court.

911 Call

In the first call, he immediately tells the operator “I just got shot in the face.”

When the operator asks where the firearm was, he replied, “he’s got it.” When the operator asked who had the firearm, victim replied, “his name is Merch. *** He shot me in the face.”

In the second 911 call, the operator asked him who shot him. Victim replied: “His nickname is Merch. M-E-R-C-H. *** He shot me on the bridge and I fell off the bridge in the water. I made my way to these guys’ house and they’re standing here with me.”

The Home Owners

The home owners testified that testified that the victim could not talk very well because “his mouth or his teeth were shattered.”

He was on the telephone with a 911 operator but was becoming frustrated when the operator could not understand what he was saying. The home owner testified: “The only thing that he really said to me was Merch did it.”

Police Get There

When police got there they saw a bullet hole through his upper lip.

Victim was also shirtless and complaining of pain in his hip.

Victim told police that Merch had shot him and Merch was “trying to eliminate him.” He was able to explain that Merch had been driven to the bridge, pulled a firearm out of a bag, and shot him in the face.

Sentencing Hearing

In a letter written to the court, defendant maintained his innocence for home invasion and attempted first degree murder. In his statement of allocution, defendant referred to the proceedings as a “modern-day lynching, castration, beheading in relation to due process of law.”

He blamed the unfair proceedings on “shape-shifting humanoids,” Satan, “energy vampires among the political elite,” and “the Children of the Greys.”

The circuit court noted defendant had no remorse and found he was a danger to the public. The court sentenced defendant to a term of 45 years’ imprisonment for home invasion. For attempted first degree murder, the court sentenced defendant to a concurrent term of 30 years’ imprisonment. The court added a firearm enhancement of natural life in prison to the attempted murder sentence.

Issue

Defendant contends that an excessive amount of other-crimes evidence was introduced at his attempted first degree murder bench trial. Specifically, he maintains that the evidence regarding the home invasion created a home invasion trial within the attempted murder trial.

He argues the amount and detail of that evidence rendered his trial unfair.

Other Crimes Evidence

Evidence of other crimes, wrongs, or bad acts is not admissible for the purpose of demonstrating a defendant’s propensity to commit a crime. Ill. R. Evid. 404(b) (eff. Jan. 1, 2011); People v. Donoho, 204 Ill. 2d 159, 170 (2003).

Such evidence is generally inadmissible because it carries an extreme risk of prejudice in that it can lead to “the jury convicting a defendant because he or she is a bad person deserving punishment.” Donoho, 204 Ill. 2d at 170; see also People v. Lindgren, 79 Ill. 2d 129, 137 (1980) (noting that other-crimes evidence tends to “overpersuade[ ] the jury, which might convict the defendant only because it feels he or she is a bad person deserving punishment”).

As the United States Supreme Court has explained: “The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.” Michelson v. United States, 335 U.S. 469, 475-76 (1948).

Other Purpose Admissibility

Other-crimes evidence is admissible, however, for other purposes, “such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Ill. R. Evid. 404(b) (eff. Jan. 1, 2011).

When introduced for such purposes, othercrimes evidence is directly probative of a defendant’s guilt of the charged offense, rather than merely his character.

Still, while the evidence can be admissible, it remains subject to the overarching rule that its probative value must not be substantially outweighed by the risk of undue prejudice. Ill. R. Evid. 403 (eff. Jan. 1, 2011); People v. Robinson, 167 Ill. 2d 53, 63 (1995) (“Even where relevant for a permissible purpose, the trial judge must weigh the prejudicial effect of admitting the other-crimes evidence against its probative value.”).

In addressing the danger of undue prejudice in the context of otherwise admissible othercrimes evidence, courts have consistently found that the amount and accumulation of such evidence will increase that danger. As this court has explained: “as the probative value of each subsequent piece of cumulative evidence diminishes, the prejudicial effect, if there is any, remains the same, increasing the chances that the danger of undue prejudice will come to outweigh the probative value.” Maya, 2017 IL App (3d) 150079, ¶ 70.

Thus, reviewing courts have instructed that “[w]hen weighing the prejudicial effect of admission, a court should consider whether the other-crimes evidence will become the focus of the trial, or whether it might otherwise be misleading or confusing to the jury.” People v. Perez, 2012 IL App (2d) 100865, ¶ 47.  Further, “[c]ourts have warned against the dangers of putting on a ‘trial within a trial,’ with detail and repetition greatly exceeding what is necessary to establish the particular purpose for the evidence.” People v. Boyd, 366 Ill. App. 3d 84, 94 (2006) (quoting People v. Bartall, 98 Ill. 2d 294, 315 (1983)).

This Case

In the present case, the home invasion was unquestionably probative of defendant’s motive and intent to shoot and kill the victim. The evidence of defendant’s commission of the home invasion had significant probative value. It demonstrated a clear motive for defendant to attempt to murder the victim, out of fear that his accomplice would implicate him in the home invasion. 

We also note the evidence presented by the State regarding the home invasion was highly detailed, featuring the testimony of the victim and a codefendant, testimony from authorities who investigated that offense, and video evidence.

In short, the evidence was akin to what one would expect to see in an actual home invasion trial. The risk of undue prejudice normally accompanying the admission of large amounts of other-crimes evidence is significantly diminished where the trier of fact is not a jury but a judge. The prejudicial effect of other-crimes evidence is almost exclusively discussed in terms of impact on a jury.

This Was A Bench Trial

In this context then, it is presumed the trial judge considered the evidence of other crimes only for its proper, limited purpose. The law thus presumes that a judge, unlike a jury, is not likely to find a defendant guilty simply because he or she is a bad person deserving punishment.

Similarly, the admission of large or detailed amounts of other-crimes evidence that is properly admissible is not likely to mislead or confuse a trial judge. The law presumes that that evidence is not likely to lure the judge into declaring guilt on a ground different from proof specific to the offense charged.

Judge Knew The Law

The logic surrounding a rebuttable presumption that the trial judge knows and correctly applies the law is demonstrated by this case. When ruling on the State’s motion to introduce evidence of other crimes, the trial judge correctly noted the law holding that the consideration of other crimes evidence for improper purposes by a jury is a great concern.

It is relevant that the trial judge in defendant’s attempted murder bench trial also presided over his home invasion jury trial. This judge, of course, had already heard all of the State’s evidence relating to the home invasion. We would be remiss if we did not point out that, optimally, the State would have tried defendant for attempted murder before a different judge.

Practically speaking, this would not have been a burdensome course, as there was surely not shortage of available judges in La Salle County. Nevertheless, defendant chose to proceed with a bench trial, even knowing the bench trial would be before the same judge. There was no motion for substitution, and defendant does not raise any contentions of error on appeal relating to these circumstances. Defendant apparently accepted the judge’s ability to consider the home invasion evidence only for its proper purpose heading into the attempted murder trial.

Analysis

His argument on appeal, essentially, is that the judge’s hearing that evidence for a second time created an unacceptable risk of undue prejudice. This position strains credulity. If anything, the trial judge’s prior knowledge of the home invasion evidence would serve to soften the impact of that evidence the second time around. It is highly unlikely the result would have been different absent the introduction of other-crimes evidence.

The flip side of that coin, however, is there was absolutely no need for the State to introduce such detailed evidence regarding the home invasion. Defendant’s motive for shooting the victim could have simply been established by a brief summary of the earlier events from the victim himself. Indeed, defendant would have been found guilty even if the State had produced no evidence of motive.

While we do not find reversible error on the facts of this case, this should not be read as a general endorsement of the introduction of the massive amount of other-crimes evidence.

While the evidence of defendant’s home invasion was of clear probative value at his attempted murder trial, that probative value continued to diminish as further detailed evidence of the home invasion was introduced.

Holding

However, the risk of unfair or undue prejudice attendant to that evidence was low where the finder of fact was a judge rather than a jury and a judge who was already aware of the home invasion evidence. Accordingly, the probative value of the evidence was not substantially outweighed by the risk of unfair prejudice, and the circuit court did not err in admitting that evidence.

The judgment of the circuit court of La Salle County is affirmed with respect to defendant’s convictions and sentences.

See Also

Episode 587 - People v. Kelley, 2019 IL App (4th) 160598 (January) (Propensity To Commit Sex Crimes Liberally Admitted Into Evidence) 

People v. Davison, 2019 IL App (1st) 161094 (February). Episode 589 (Duration 15:22)

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

Issue

Defendant contends the detective should not have been allowed to testify to the names the witness provided because it went beyond what was necessary to explain the detective’s subsequent conduct.

Defendant further contends the admission of names violated his right under the sixth amendment because he did not have an opportunity to cross-examine the witness.

Facts

This was an execution of sorts.

Guy gets a flat. We’ll call him the witness. The victim walks up and offers to help fix the flat. Witness agrees. Eventually, defendant and some other men walk up to scene. They have a beef with the victim. They eventually shoot and kill him. At one point the men are standing around the victim in a semi circle unloading their gun into him.

The main shooter looks at the witness before the men flee.

Course of Conduct Evidence

After leaving the scene, investigations went to the police station, where he spoke with the witness again and obtained a description of the shooters. After speaking with the witness and his partners, the investigator had three names:

“Dee, Little Fred, and Terell Davis.”

Defendant Arrested

The witness remembered that the victim called the shooter Terell.

6 months later defendant was arrested. The victim identified the defendant from the line-up and some photo arrays. The victim did not identify anyone else.

Was It Hearsay?

The detective testified that as a result of a conversation he had with Magana and a conversation his partner had with non-testifying witness Howard Taylor, he began looking for three individuals: Dee, Little Fred, and Terell Davis.

Hearsay & Course of Conduct Evidence

“Hearsay evidence is an out-of-court statement offered to prove the truth of the matter asserted, and it is generally inadmissible due to its lack of reliability unless it falls within an exception to the hearsay rule.” People v. Olinger, 176 Ill. 2d 326, 357 (1997). While hearsay is prohibited, Illinois courts have repeatedly recognized that a police officer may testify to the steps he took during the course of a criminal investigation, and such testimony is not considered hearsay. People v. Johnson, 116 Ill. 2d 13, 24 (1987); People v. Gacho, 122 Ill. 2d 221, 248 (1988).

It is not considered hearsay because the testimony is within the personal knowledge of the officer and not used to prove the truth of the matter asserted. People v. Sample, 326 Ill. App. 3d 914, 920 (2001). However, an officer’s testimony becomes inadmissible hearsay if the testimony recounts “the substance of a conversation.” Gacho, 122 Ill. 2d at 248.

The Relevant Testimony

The relevant portion of Detective’s testimony states:

“[STATE’S ATTORNEY]: Did you learn that there was someone else on the scene by the name of Howard Taylor.

[WITNESS]: I did.[STATE’S ATTORNEY]:

Did you speak with that individual?

[WITNESS]: No, I did not.

[STATE’S ATTORNEY]: Who did?

[WITNESS]: Detectives Otto and Hall.

[STATE’S ATTORNEY]: Did you ultimately after being at the scene relocate back to Area South?

[WITNESS]: Yes.

[STATE’S ATTORNEY]: When you went back to Area South, did you have contact with your partners?

[WITNESS]: Yes.

[STATE’S ATTORNEY]: Did you also have contact once again with Magana?

[WITNESS]: Yes.

[STATE’S ATTORNEY]: At this point who are you looking for?

[DEFENSE ATTORNEY]: Objection. THE COURT: Overruled.

[WITNESS]: I had three names, a nickname of Dee, Little Fred, and Terell Davis.

[STATE’S ATTORNEY]: And did you then make efforts to identify someone by the nickname of Dee, Terell Davis, or Little Fred

[WITNESS]: I did.

[STATE’S ATTORNEY]: Did you—what efforts did you make?

[WITNESS]: I utilized the computer that was available to me. I attempted to locate through demographics and people fitting that description that had connections back to that area.

[STATE’S ATTORNEY]: Were you able to locate anyone?

[WITNESS]: I was.

[STATE’S ATTORNEY]: And when you located that person, were you able to get that photo of them?

[WITNESS]: I did.

[STATE’S ATTORNEY]: Do you see that person in court today?

[DEFENSE ATTORNEY]: Objection.

THE COURT: Basis?

[DEFENSE ATTORNEY]: That it’s hearsay.

THE COURT: Okay, overruled. The person he got the photograph of?

[DEFENSE ATTORNEY]: How he got the photograph.

THE COURT: That’s not what the question was.

[STATE’S ATTORNEY]: Do you see the person you got the photograph of during your procedure in court today?

[WITNESS]: I do.

[STATE’S ATTORNEY]: Can you point to him and describe an item of clothing that he’s wearing?

[WITNESS]: He’s the male black to my left wearing the white shirt.

[STATE’S ATTORNEY]: Your Honor, may the record reflect an in-court identification of the defendant. THE COURT: It may.”

Analysis

The relevant portion of the testimony above demonstrates that at no point did the detective testify to the substance of statements made by either Taylor or any other officer who may have talked with Taylor. While the implication of his testimony is that Taylor provided the names of defendant and two others as individuals connected to the murder, this implication does not render the testimony hearsay or inadmissible. Johnson, 116 Ill. 2d at 24.

Detective’s testimony was correctly limited to the conduct of his own investigation and did not contain the substance of any non-testifying witnesses’ statements.

In Johnson, the supreme court found the detective’s testimony crossed the line into hearsay because “the detective went on to explain that codefendant, after his arrest, implicated the defendant in the scheme and said that the defendant was the gunman.” Similarly, in People v. Singletary, 273 Ill. App. 3d 1076, 1084 (1995), this court found an officer’s testimony crossed into hearsay when he testified “regarding his conversation with the confidential informant that ‘he was going to go to 2971 South Dearborn and pick up a package of cocaine’ ” from the defendant.

Unlike the officers’ testimony in Johnson and Singletary, this detective did not testify as to any statements made by Taylor to his partner or from his partner to himself. While defendant is adamant that the testimony at issue is hearsay, the fault in his argument is exposed by the fact that he never identifies any substantive statements made by Taylor or another nontestifying individual contained within the detective’s testimony.

Detective’s testimony was correctly limited to the investigatory steps he took leading up to the identification of defendant and demonstrated defendant’s arrest was not purely coincidental.

Holding

After reviewing the testimony of the detective, we conclude the trial court did not err in admitting the testimony at issue, because he never disclosed the substance of what Taylor told his partner or what his partner told him.

Detective’s testimony regarding the three individuals he began looking for did not constitute hearsay, and the trial court did not err in admitting it. Given that the testimony at issue did not constitute hearsay, it follows that defendant’s right under the confrontation clause of the sixth amendment was not violated.

For the foregoing reasons, we affirm the defendant’s conviction for first degree murder.

See Also

Episode 057 – People v. Boling, 2014 IL App (4th) 120634 (March)(prosecutorial favorite “other purpose” is to explain steps in a police investigation.)

Episode 315 – People v. Ochoa, 2017 IL App (1st) 140204 (February) (murder conviction reversed twice because of the exact same “steps in the police investigation” error)

Episode 448 – People v. Horine, 2017 IL App (4th) 170128 (December)(hearsay evidence during this SSS hearing not admitted to demonstrate the police course of conduct in the investigation)

Episode 339 – People v. French, 2017 IL App (1st) 141815 (March) (Hearsay Involves Implied Information And Watch Out For “Course of Conduct” Exceptions)

Episode 588 – People v. Day, 2019 IL App (4th) 160217 (January) (police allowed to explain why they brought defendant to the scene)

People v. Gacho, 522 N.E.2d 1146, 122 Ill.2d 221, 119 Ill.Dec. 287 (Ill., 1988) (testimony is not hearsay when based on the officers’ own personal knowledge, and is admissible although the inference logically to be drawn therefrom is that the information received motivated the officers’ subsequent conduct)

In re Manuel M., 2017 IL App (1st) 162381 (January). Episode 292 (Duration 8:55)

Accused minor was not allowed to cross the officer on the location he said he made his observations.

Facts

The respondent was arrested for reckless conduct after he was seen flashing gang signs at passing cars near Throop Park in Chicago.

When the respondent was searched following his arrest, a pistol was found in his pants.

The State alleged in a petition for adjudication of wardship that the 16-year-old respondent committed two counts of AUUW and one count of UPF.

What Cop Said He Saw

Using binoculars, the office observed the respondent and two other individuals near the park entrance flashing gang signs at passing vehicles, causing the vehicles to swerve toward oncoming traffic or parked cars.

The officer said the group was endangering drivers and pedestrians.

After observing the respondent and his companions for 15 to 20 minutes, he drove to the park with other officers. Upon arriving at the park, he arrested the respondent for reckless conduct, patted him down, and recovered a pistol from his pants.

Officer Refused To Disclose Location

On cross-examination, defense counsel asked the officer to disclose the exact location from which he observed the respondent and his two companions flashing gang signs at passing vehicles.

The officer stated that disclosing the location would endanger his life and the lives of every officer that uses the location. The prosecutor objected to defense counsel’s question on the grounds that revealing the location would endanger officer safety.

Following arguments on the objection, the trial court elected to conduct an in camera examination.

The trial judge ruled that she would not compel disclosure to his "exact location" from which he conducted his surveillance of the park but would permit the defense to inquire regarding "distance, lighting, and everything else."

Issue On Appeal

The reviewing court agreed with the minor that his constitutional right of confrontation was violated when his attorney was prevented from questioning the officer as to the exact location from which he conducted his surveillance and that his constitutional rights to confrontation and to a public trial were violated when, during the in camera examination both he and his attorney were excluded, the prosecutor was, nonetheless, permitted to question the officer and argue in support of the State’s objection to disclosure of the surveillance location.

Surveillance Privilege

Illinois recognizes a qualified privilege from disclosing secret surveillance locations in a criminal proceeding against the target of the surveillance.

When, as in this case, the State invokes the surveillance location privilege at trial, it bears the initial burden of demonstrating that the privilege should apply.

The State can satisfy its initial burden by establishing that the surveillance location was located on private property with the permission of the owner or in a useful location which would be compromised by disclosure.

Once the State has carried its burden, the defense can overcome the privilege by showing that the surveillance location is relevant to the defense or essential to the fair determination of the case.

In Camera Examination

In making its determination of whether to apply the privilege and prevent the defense from inquiring into the exact location from which the surveillance was conducted, the trial court may conduct an in camera examination of the surveillance officer out of the presence of the defendant and his attorney.

Following such a hearing, the court should weigh the defendant’s need for the information against the public’s interest in nondisclosure.

Analysis

The reviewing court said that, the trial court failed to give adequate consideration to the respondent’s need to ascertain the exact location from which the officer conducted his surveillance of Throop Park.

Cross-examination is the principal means by which the credibility of a witness is tested.

The officer was the only witness to testify for the State, and its case against the respondent rested entirely upon his testimony. The defense challenged the credibility of the officer’s testimony that he observed the respondent and his companions flashing gang signs at passing cars from a location more than one block away.

Clearly, the ability to see Throop Park from his point of observation is relevant to the credibility of his testimony; and it was the officer’s observations from that point which supplied the probable cause for the respondent’s arrest and subsequent search leading to the discovery of the pistol underlying the AUUW and UPF charges for which he was on trial.

By sustaining the State’s objection to defense counsel’s inquiry as to the exact surveillance location, the trial court severely hampered the respondent’s ability to test the credibility of the only witness against him on a material issue.

As this court held in Knight, when the case against a defendant turns almost exclusively upon the uncorroborated testimony of the police officer who conducted the surveillance, “disclosure must almost always be ordered."

Holding

The trial court abused its discretion by sustaining the State’s objection to the cross-examination of on that issue.

Defendant’s confrontation and public trial rights were violated.

Also

This panel said the the in camera examination should be conducted by the trial court outside the presence of both the State and the defense. It said that the trial court’s in camera examination of the surveillance officer should be limited to a disclosure of the exact location from which the surveillance was conducted, nothing more.

Any testimony or argument addressing the public interest to be protected by nondisclosure of the location should be made in open court.

Allowing the State to examine a witness in a proceeding outside the presence of the defendant and his attorney, as occurred in this case, violates both the defendant’s right of confrontation and his right to a public trial as guaranteed by the United States Constitution and the Constitution of Illinois.

Permitting the State to make an ex parte argument in support of an objection, as also occurred in this case, violates a defendant’s constitutional right to a public trial.

Reversed and remanded.

See also https://illinoiscaselaw.com/clecourses/defendant-had-a-right-to-know-the-surveillance-location/

People v. Kelley, 2019 IL App (4th) 160598 (January). Episode 587 (Duration9:58)

Here's a better way to look at how court's are interpreting sexual propensity evidence.

Gist

A 23 year old female victim was found murdered. Her body was in a river and her bones were cut like she was attempted to be dismembered. Defendant admitted to killing her and the state admitted 3 other victims who he was violent with.

Defendant was convicted and got 60 years.

Other Crimes Evidence Domestic Violence

Subsections (a) and (b) of section 115-7 of the Code (725 ILCS 5/115-7.4(a), (b)) provide as follows:

“(a) In a criminal prosecution in which the defendant is accused of an offense of domestic violence as defined in paragraphs (1) and (3) of section 103 of the Illinois Domestic Violence Act of 1986, or first degree murder or second degree murder when the commission of the offense involves domestic violence, evidence of the defendant’s commission of another offense or offenses of domestic violence is admissible, and may be considered for its bearing on any matter to which it is relevant.

(b) In weighing the probative value of the evidence against undue prejudice to the defendant, the court may consider:

(1) the proximity in time to the charged or predicate offense;
(2) the degree of factual similarity to the charged or predicate offense; or
(3) other relevant facts and circumstances.”

Other Crimes Evidence Sex Crimes

Subsection (c) of section 115-7.3 (725 ILCS 5/115-7.3(c)) was identical in its wording to subsection (b) of section 115-7.4 (725 ILCS 5/115-7.4(b)), the propensity statute in the present case.

Section 115-7.3(c) provided:

“(c) In weighing the probative value of the evidence against undue prejudice to the defendant, the court may consider:

(1) the proximity in time to the charged or predicate offense;
(2) the degree of factual similarity to the charged or predicate offense; or
(3) other relevant facts and circumstances.”

725 ILCS 5/115-7.3(c).

Thus, in an analysis under section 115-7.3(c), as in an analysis under the identically worded section 115-7.4(b) (725 ILCS 5/115-7.4(b)), the account of the propensity witness had to be compared to the account of the present alleged victim.

Undue Prejudice

“Undue prejudice” within the meaning of section 115-7.4(b) necessarily is prejudice other than that resulting from proof of the defendant’s propensity to commit domestic violence, because the very purpose of section 115-7.4 is to lift the common-law ban on that particular kind of propensity evidence. See People v. Dabbs, 239 Ill. 2d 277, 288 (2010); People v. Walston, 386 Ill. App. 3d 598, 619-20 (2008) (not only is other-crimes evidence offered to show propensity no longer per se unfairly prejudicial, it is actually proper).

Other-crimes evidence admitted pursuant to section 115-7.4 may be considered by the jury for any relevant matter, including the defendant’s propensity to commit the charged crime even though, at common law, such propensity evidence would have been inadmissible. Heller, 2017 IL App (4th) 140658, ¶ 65),  (Dabbs, 239 Ill. 2d at 288).

Issue

In defendant’s view, the degree of factual dissimilarities between the other crimes victim testimony and the charged offense rendered the evidence more prejudicial than probative.

According to defendant, two provisions of section 115-7.4 stood in the way of admitting her testimony: (1) the events to which she testified had little “factual similarity to the charged *** offense” (725 ILCS 5/115­ 7.4(b)(2)) since the nature of defendant’s relationship with this victim was “entirely different” from the nature of his relationship with the other crimes victim, and (2) there was no evidence that defendant committed an “offense *** of domestic violence” against White (id. § 115-7.4(a)).

Regardless of whether defendant was more romantically involved with one women more than the other, both women took money from him after spending time with him, and he responded with extreme violence. Thus, we are unable to say it was arbitrary, fanciful, or unreasonable to draw a parallel between defendant’s violence against this victim and his violence against the other crimes victim.

Legislative Intent

The legislature intended to make it permissible, in cases of alleged sexual offenses, for the State to adduce evidence that the defendant had a propensity to commit sexual offenses—but the admissibility of such propensity evidence depends on the fulfillment of the conditions set forth in section 115-7.3. Donoho, 204 Ill. 2d at 176.

One of those conditions is that the trial court “[weigh] the probative value of the evidence against undue prejudice to the defendant.” 725 ILCS 5/115-7.3(c). The qualifier “undue” is crucial because prosecuting the defendant necessarily entails adducing evidence prejudicial to the defendant.

All propensity evidence aims to be prejudicial to the defendant.

The prejudice, however, is undue if the propensity evidence is calculated to persuade the jury to return a guilty verdict only because the defendant supposedly is a bad person who, in any event, deserves to be punished. People v. Smith, 406 Ill. App. 3d 747, 751 (2010).

Propensity Evidence

If that were the use to which the so-called “propensity evidence” were put, it really would not even be propensity evidence; the strategy would be to obtain a guilty verdict not on the reasoning that the defendant’s badness predisposed him to commit the charged offense but, rather, on the quite different reasoning that because the defendant is bad, he deserves whatever punishment can be heaped upon him—regardless of whether he committed the charged offense.

To be admissible under section 115-7.3, the evidence has to be, genuinely, propensity evidence—and not only that, but a particular kind of propensity evidence. Section 115-7.3 only partly lifts the ban on propensity evidence. If all the propensity evidence does is prove the defendant’s propensity to do bad things in general, it remains inadmissible (see Ill. R. Evid. 404(b) (eff. Jan. 1, 2011)); the propensity evidence must more narrowly tend to prove the defendant’s propensity to commit sexual offenses (see 725 ILCS 5/115-7.3(b) (West 2014)).

There are, of course, different sexual offenses, and just because a defendant has, for example, a history of exposing himself, it would not necessarily follow that he has a propensity to commit sexual assault. Thus, the trial court must consider “the degree of factual similarity to the charged or predicate offense” (id. § 115-7.3(c)(2)) to determine the extent to which the testimony offered as propensity evidence really tends to prove a propensity to commit the charged sexual offense.

Propensity To Commit Sex Crimes

The foregoing exposition of section 115-7.3—which is applicable, by analogy, to section 115-7.4—leads us to our point of disagreement with People v. Johnson, 406 Ill. App. 3d 805 (2010) (existence of significant dissimilarities between the two assaults lead reviewing court to say the trial court erred in admitting the other-crimes evidence).   

We do not see how the factual dissimilarities that the Second District identified in Johnson have any logical relevance to the question of whether the defendant in that case did or did not have a propensity to commit­ sexual assault.

If on one occasion he committed sexual assault with the assistance of someone else and on the next occasion he committed sexual assault unassisted, the previous occasion still would be evidence that he had a propensity to commit sexual assault. The same would be true if on the previous occasion the defendant used a car and on the next occasion he did not do so or if on the previous occasion he blew cocaine into the victim’s face and on the next occasion he did not do so.

Such factual differences are incidental and meaningless unless the identity of the perpetrator is at issue and the State pursues a theory of modus operandi, the proof of which always requires “a high degree of identity between the facts of the crime charged and [those of] the other offense.” People v. Cruz, 162 Ill. 2d 314, 349 (1994). But “[w]here such evidence is not being offered under the modus operandi exception, more general areas of similarity will suffice to support admissibility.” Donoho, 204 Ill. 2d at 184.

Similarity Of The Crimes

Arguably, defendant had a propensity to become violent toward female sexual partners who took his property. Therefore, we find no abuse of discretion in the trial court’s evaluation of factual similarities between the victim’s testimony and the charged offense.

In short, the objective under section 115-7.4(b)(2) is not to identify factual differences just for the sake of identifying factual differences. The differences have to logically matter; they have to be relevant, in a commonsensical way, to the probative value of the previous offense as propensity evidence.

In the present case, we are unable to say the trial court abused its discretion—or, in other words, that the court made a decision that was unreasonable or clearly against logic—by deciding that defendant’s acts of violence against the other crimes victim tended to prove his propensity to commit the charged offense against this victim.

Both women were his girlfriends, he brutalized them both, and it especially raised his ire when they attempted to flee from him. He appeared to be on the verge of killing the other crimes victim when he dangled her by one leg over the side of a bridge. Arguably—and we say “arguably” because our standard of review is the most deferential standard of review known to the law—the factual differences do not greatly reduce the probative value of the other crime victim's testimony.

It was all extreme domestic violence.

Factual Finding

Therefore, we find no abuse of discretion in the admission of the other crimes testimony as propensity evidence under section 115-7.4 of the Code. It appears from her testimony that defendant was possessive and controlling toward his girlfriends and that he tended to become violent toward them when they did anything that challenged his assumed right of possession and control.

One might infer that he murdered this victim not only because she stole his wallet but also because she ran away from him and tried to free herself from his domination. Defendant’s violent rage at being defied and evaded by his girlfriends arguably is a significant point of similarity between the other crime victim's testimony and the charged offense.

Holding

We affirm the trial court’s judgment.

This is the January 2019 Illinois criminal case law audio round-up (the fast case law summary). Episode 585 (Duration 14:21)

The January 2019 Top Illinois Criminal Law Cases (The Monthly Round-Up)

Here's a quick snapshot of the top cases:

1. People v. Shoevlin

Serious double jeopardy concerns are raised when the judge declares a mistrial in this domestic battery case.

2. People v. Releani

Defendant needed to say something about the private nature of the Walgreen's Parking Lot

3. People v. Day

He wasn't behind the wheel but state still proved he was driving.

4. People v. Hill

Officer sees passenger riding low in the seat and he thinks it may be a guy wanted on warrant, turns out it wasn't him.

5. People v. Witherspoon

Defendant said he had authority to be in the nome because the victim invited him in notwithstanding the bail condition which prohibited him from being there.

6. In re Appointment of Special Prosecutor

Press not allowed to get grand jury documents through FOIA.

7. People v. Johnson

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.

8. People v. Cisco

Defendant was given an extended term even though he received second chance for one of his prior felonies.

9. People v. Campos

In a sex case you have to be careful with exactly what the allegations are and how it comes out at trial.

10. People v. Felton

Other crimes evidence was excessive here but it was a bench trial and the evidence was overwhelming against defendant.

11. People v. Kelley

Here's a better way to look at how court's are interpreting sexual propensity evidence.

12. People v. Monroy-Jaimes

Interesting use of an informant, how much of it was legal?

13. People v. Moore

Dude got hit in the head with a metal bearing and defendant said the 3 1/2 inch cut was not great bodily harm.

People v. Woods, 2018 IL App (1st) 153323 (December). Episode 581 (Duration 8:55)

Defendant was ordered to cooperate with the PSI and the judge turned around and used what he said against him.

Charges & Sentence

Courtney Woods was found guilty after a bench trial of two counts of armed robbery (720 ILCS 5/18-2(a)(2), (3) (West 2012)) and sentenced to concurrent terms of 34 years’ imprisonment.

Facts

In response to Mr. Woods’s motion for a new trial, the trial court reconsidered its ruling and found Mr. Woods not guilty of the three counts of attempted murder. Mr. Woods was sentenced on two counts of armed robbery, one premised on Mr. Woods’s possession of a firearm and the other on his personal discharge of a firearm.

The trial court then ordered a PSI report.

The initial PSI report contained no information beyond a recitation of Mr. Woods’s criminal history and the official version of the offense. The “Summary” section stated that defendant “respectfully declined to answer any questions pertaining to his investigation.”

Issue

Defendant argues his fifth amendment right against self-incrimination was violated when the trial court ordered him to participate in a presentence investigation (PSI) and then used the information that he provided about his prior gang affiliation and educational background against him in aggravation at sentencing.

Get The PSI Done

The trial court ordered him to participate by speaking with the investigator. The information that he told the investigator was then used against him to increase his sentence.

At a hearing after the return of the PSI report, the following exchange occurred:

“THE COURT: We received information that defendant did not talk to probation for the PSI; is that correct?

[DEFENSE ATTORNEY]: Yes, your Honor.

THE COURT: You need to speak with them. I’ve ordered you to speak with them. You need to speak with them. Understood?

[MR. WOODS]: (No verbal response.)

THE COURT: We need to continue to get the presentence investigative report.”

The PSI

Defendant then completed an interview for a PSI, and a new PSI report was filed with the trial court. This revised PSI report included Defendant’s statements regarding his social and educational background.

The investigator reported that defendant “admitted” he was a former member of the Mafia Insane Vice Lords street gang. He joined the gang at age 13 but left at age 24 because he wanted to be a positive role model for his younger half-brothers.

Defendant told the investigator he had a good childhood and that his “whole world literally collapsed” when his mother, who was his “best friend,” died of breast cancer in 2006. That is when defendant started “running the streets” and getting into trouble.

Defendant completed eighth grade but then dropped out because “his heart wasn’t in it.”

Questions About The Crime

In the section of the report titled “Defendant’s Version of the Offense,” the investigator noted that Defendant “did not wish to comment on the facts of this case upon the advice of his attorney.”

His Criminal History

The report set forth his criminal history, including that he received probation for a 2006 AUUW conviction, which was terminated unsatisfactorily, and consecutive three-year terms of imprisonment in 2007 for robbery and AUUW.

How It Was Used Against Him

With respect to school, the trial court noted:

“You said your heart wasn’t into it. What does that mean? You’re supposed to go to school. You need the school to be a better person, to get a job, to be able to support yourself and your family, instead of going to the games and sticking up people and taking their money and taking what they’ve worked hard for.”

The trial court went on to note, from the PSI report, that defendant had “more than other students do, and you just dropped out,” that he

“could have had the, you know, help of the teammates and the basketball team and your coach, but instead, you go to the streets and hang out with the gang members.”

It reiterated that “gangs and guns” was his repeated choice.

For example, Defendant reported that he was a former gang member who had quit because he “wanted to be a positive role model for his younger half-brothers.” The trial court did not mention this, but instead referred repeatedly to his membership in “gangs.”

The Fifth Amendment

The fifth amendment commands that “[n]o person *** shall be compelled in any criminal case to be a witness against himself.” U.S. Const., amend. V.

The fifth amendment applies to the states by virtue of the fourteenth amendment (People v. Hunt, 2012 IL 111089, ¶ 23; U.S. Const., amend. XIV), and its protection against self-incrimination applies to sentencing proceedings (Mitchell v. United States, 526 U.S. 314, 328-29 (1999); People v. Maggio, 2017 IL App (4th) 150287, ¶ 48). There is no dispute that defendant had a fifth amendment right not to be compelled to provide information during the PSI that could be used against him at sentencing.

State's Argument

The State relies on our supreme court’s decisions in People v. Hampton, 149 Ill. 2d 71 (1992), and People v. Hillier, 237 Ill. 2d 539 (2010) to argue that his failure to raise this issue with the trial court results in a forfeiture that precludes review. See also People v. Ashford, 121 Ill. 2d 55, 80 (1988).

The issue in Hampton and Hillier was whether the court should consider a claim that a defendant was not given Miranda warnings, where no objection had been made and the record was unclear as to whether the defendant had, in fact, been given Miranda warnings. 

Judge Made Error

In contrast to those cases, this case represents a direct assault on Mr. Woods’s fifth amendment rights, rather than a possible failure to invoke a “prophylactic” warning.

The error here was made more difficult to correct because of the direct role played by the trial court. A less rigid application of the rule of forfeiture should prevail where the basis for the objection is the conduct of the trial judge.  Sprinkle, 27 Ill. 2d at 401.

Here, defendant was specifically told by the judge that he had to talk to pretrial services and then the judge used that information to increase his sentence. In our view, this error should be reviewed both because it is a direct infringement of a constitutional right, and because that infringement came from the court.

We are sympathetic to the trial court’s premise that, generally speaking, it is helpful to a defendant, as well as to the court, to have some understanding of the defendant’s background at the time of sentencing. This context can often help mitigate the trial court’s view of the criminal conduct for which the defendant has been convicted.

Unfortunately in this case, the trial court appears to have viewed as only negative, some of the information that could have been used as mitigation.

No Doubt It Was Used Against Him

The State does not dispute that defendant had a fifth amendment right not to be compelled to provide information that was used against him at sentencing. Nor does the State dispute that the information he provided was, in fact, used against him.

The first PSI report said nothing about gang involvement or when defendant stopped attending school. There was also no testimony at trial about the offense being gang-related. The PSI report that was provided to the trial court after he was required to participate reflects that defendant told the PSI investigator that he had been affiliated with the Mafia Insane Vice Lords and that he dropped out of school after the 10th grade.

The State emphasized these facts and the trial court made multiple references to his gang involvement, concluding that defendant kept returning to “gangs and guns” throughout his life. The trial court also chastised Mr. Woods for dropping out of school.

The sentence imposed was eight years longer than the lengthy minimum sentence that this conviction required.

Findings

We find that the trial court plainly erred by insisting that defendant cooperate with the PSI and then using this information against him as reflected in the repeated reference to his past gang participation and educational history.

This error deprived defendant of a fair sentencing hearing and therefore requires us to vacate the sentence.

There is no dispute that the record shows that he initially refused to participate in the PSI, then was ordered to do so by the trial court, and then provided information that was used against him at sentencing.

What Normally Happens

The fact that defendant may have been advised by counsel that he did not have to provide information about the specifics of the charged crime or that a probation officer may have “Mirandized” him, in no way diminishes the fact that defendant was ordered by the trial court to surrender his fifth amendment rights.

Holding

We agree that the remedy here is to remand for resentencing to the presiding judge of the criminal division so that defendant can be resentenced before a new judge with a new PSI. People v. Heider, 231 Ill 2d 1, 25 (2008) (the best way to remove any suggestion of unfairness is to have the case assigned to a new judge).

People v. Boston, 2018 IL App (1st) 140369 (December). Episode 580 (Duration 9:54)

Long complicated murder case, here is some information on commenting on pre-arrest silence.

Rebuttal Closing

These statements were made by the ASA during rebuttal closing argument:

“The defendant doesn’t say to her, I mean, you know, in his lie, but in reality, he never says I need help, and, in fact, the police told you that when Curry comes with McPherson, the defendant says nothing. If you’re killing someone in self-defense, aren’t you shouting it from the toppist [sic], highest mountain you can find. Wait a minute, thank God you’re here...Drop the knife, police, I was attacked, it’s not what it looks like, I have blood on me, it’s not—I’m cut, I was defending myself, I was attacked, he attacked me. He said nothing to the police. He runs in the back, and then Lieutenant Bankhead comes, and he comes out, and he’s got his hands up, does he say then, listen, it’s a mistake, I am not the one, I am a victim, I was attacked, I had to do it, or to granny, call an ambulance, this is a horrible event. Yeah, if you were truly justified, if you were truly not guilty, that’s what you would do, and that’s not what he did, and that’s how you know.”

A Little History On Pre-Arrest Silence

Here's a historical overview of the law in Illinois regarding the prohibition of the use of pre-Miranda silence, including the silence following a defendant’s arrest but before receiving Miranda warnings, as stated in this court’s opinion People v. Quinonez:

“The United States Supreme Court held in Doyle v. Ohio, 426 U.S. 610, 617-20 (1976), that it was a violation of the due process clause of the fourteenth amendment for the State to impeach a defendant using evidence that defendant was silent following his arrest, after he was advised of his Miranda rights. The Court reasoned that since Miranda warnings carry the implicit assurance that his silence will carry no penalty, it would be fundamentally unfair to allow a defendant’s post-Miranda silence to impeach his trial testimony. Doyle, 426 U.S. at 612. However, the Supreme Court later held that the prohibition applies only to a defendant’s silence after being advised of his Miranda rights. Fletcher v. Weir, 455 U.S. 603, 607 (1982) (per curiam). In doing so, it found that states were free to formulate their own rules with respect to defendant’s silence before arrest, as well as after arrest but before receiving Miranda warnings.”

Quinonez, 2011 IL App (1st) 092333, ¶ 25 (citing Jenkins v. Anderson, 447 U.S. 231, 238 (1980); Fletcher, 455 U.S. at 607).

Issue

What is at issue are the comments made by the prosecutor prior to defendant receiving his Miranda warnings.

Illinois Law

Illinois evidence law prohibits impeachment of a criminal defendant with his or her postarrest silence, regardless of whether the silence occurred before or after the defendant was given Miranda warnings.

As set forth by our supreme court, “an accused is within his rights when he refuses to make a statement at the time of his arrest, and the fact that he exercised such a right has no tendency to prove or disprove the charge against him, thus making evidence of his refusal neither material or relevant to the issue being tried.” Lewerenz, 24 Ill. 2d 295, 299 (1962) (citing People v. Rothe, 358 Ill. 52, 57 (1934)).

The Illinois rule with it's language of relevancy and materiality is based on evidentiary principles, rather than constitutional law.

The Illinois evidentiary rule generally prohibits impeachment of a criminal defendant with his postarrest silence, regardless of whether it occurred before or after he was given Miranda warnings, because under those circumstances, that silence is not considered relevant or material. 

What About Pre-Arrest Silence?

A prosecutor’s comments on prearrest silence, however, are proper. See People v. Manley, 222 Ill. App. 3d 896, 909 (1991); People v. Graves, 142 Ill. App. 3d 885, 890 (1986).

An Arrest

In order to determine whether the prosecutor’s comments were improper, we must first determine at what point defendant was arrested.

“An arrest occurs when a person’s freedom of movement is restrained by physical force or a show of authority.” People v. Surles, 2011 IL App (1st) 100068, ¶ 23.

Factors that may be indicative of an arrest include

“(1) the threatening presence of several officers;
(2) the display of a weapon by an officer;
(3) some physical touching of the person of the citizen; and
(4) the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.”

People v. Luedemann, 222 Ill. 2d 530, 553 (2006).

We determine whether a person is under arrest based on whether an objective reasonable person, innocent of any crime, would conclude that he is not free to leave under the circumstances.

The Arrest In This Case

The record here demonstrates that defendant was not arrested until an officer pointed his weapon at defendant, commanded defendant to ascend the staircase, and guided defendant up the staircase while continuing to point his weapon at defendant.

Although this officer was the only officer on the stairs at that time, defendant was aware of the presence of at least three officers on the scene. In addition, this officer approached defendant with his weapon drawn, gave defendant an order to come with him up the stairs, and continued to point his weapon in defendant’s direction as they ascended the stairs.

Under the totality of these circumstances, we conclude that any interaction defendant had with police officers from that point forward is considered postarrest.

Thus it follows that the prosecutor’s comments regarding the points in time prior to defendant’s arrest were proper.

The Illinois "Exception"

Illinois courts have held that there are two exceptions to the general rule, where postarrest silence will be considered relevant. People v. McMullin, 138 Ill. App. 3d 872, 877 (1985). A defendant’s postarrest silence may be used to impeach his trial testimony when:

(1) the defendant testifies at trial that he made an exculpatory statement to the police at the time of his arrest; or
(2) the defendant makes a postarrest (but still pretrial) statement that is inconsistent with his exculpatory trial testimony.

Quinonez, 2011 IL App (1st) 092333, ¶ 27.

Despite the State’s request, we decline to consider whether defendant’s postarrest silence falls within one of the exceptions to the general rule. First, the facts of this case are nuanced and the State cites no case wherein it was allowed to impeach a defendant with his or her silence where the State itself elicited the testimony it purports to impeach. See Ill. S. Ct. R. 341(i), (h)(7).

Second, even if it did not fall within one of the exceptions, defendant cannot demonstrate plain error. Here, the evidence defendant committed first degree murder was overwhelming.

Holding

We do not believe that any alleged error was “so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial process.” We conclude defendant has not met his burden to demonstrate the error was so serious it affected the fairness of the trial and challenged the integrity of the judicial process.

What is happening in Illinois with the mistake of law doctrine?

Episode 579 (Duration 16:25) [

In Re Maurice J. 

In re Maurice J., 2018 IL App (1st) 172123 (June). Episode 506 (Duration 8:18)

Officer not knowing the traffic law he says he was enforcing is not the same as being reasonably confused about the law.

Gun Case

The minor respondent was charged in juvenile court and adjudicated for UUW under 21. The minor was sent to JIDOC

Facts

Police see a car “go around a speed bump.” 

Specifically, the driver went toward the curb so that one set of tires was on the speed bump and the other set was level. Although the driver steered around the bump, he did not swerve.

The Stop & The Gun

After the traffic violation, the officer  activated the emergency equipment in order to curb the vehicle.

From 12 to 15 feet away, he “observed the front passenger pass a handgun to the rear passenger.”

The officer could see the gun because the police car was an elevated SUV and illuminated the inside of the car.

Everyone Removed

The driver and respondent, who was in the front passenger seat, were immediately removed form the car and handcuffed. The officer testified that he knew to look for the firearm “[i]n the direction [that] the offender gave it to the co-offender.”

Moreover, the officers searched the occupants and found a firearm in a purse. 

Wells was released with a traffic citation for driving around the speed bump.

Issue

On appeal, respondent first asserts that the trial court erred in denying his motion to suppress evidence because it was not reasonable for an officer to believe that the driver committed a traffic violation.

Specifically, the testimony failed to show that the car drove upon or through private property to avoid a traffic control device.

Fourth Amendment

Under the fourth amendment and the Illinois Constitution of 1970, individuals have the right to be free from unreasonable searches and seizures. U.S. Const., amend. IV, and Ill. Const. 1970, art. I, § 6.

In addition, the stop of a vehicle for a suspected violation of law constitutes a seizure, regardless of whether the seizure is brief and is made for a limited purpose. People v. Gaytan, 2015 IL 116223, ¶ 20. Pursuant to Terry v. Ohio, 392 U.S. 1 (1968), police officers may conduct a brief, investigatory stop if the officer reasonably believes that the individual in question committed or is about to commit a crime.

Mistakes Of Law

In Heien v. North Carolina, 574 U.S. ___, ___, 135 S. Ct. 530, 536 (2014), the United States Supreme Court held that a reasonable suspicion can be supported by an officer’s misunderstanding of the scope of a law.

Consequently, a police officer does not violate the fourth amendment when he stops a vehicle based on an objectively reasonable, albeit mistaken, belief that the driver’s conduct leading to the stop violated traffic laws. 

This reflects that the fourth amendment permits government officials to make some mistakes.

…but

The Court stated in Heien, “an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce.” Heien, 574 U.S. at ___, 135 S. Ct. at 539.

It’s An Objective Standard

That being said, courts apply an objective standard in determining whether a police officer made a reasonable mistake of law, without examining the particular officer’s subjective understanding.

Respondent essentially contends that, even taking the officer’s account as true, the traffic stop lacked a reasonable articulable basis.

The Traffic Code On Avoiding Traffic Control Devices

Section 11-305 of the Illinois Vehicle Code states, in pertinent part, that

“[i]t is unlawful for any person to leave the roadway and travel across private property to avoid an official traffic control device.”

625 ILCS 5/11-305(b).

Thus, section 11-305 clearly applies only where a driver enters private property.

Accordingly, the ordinance unambiguously applies only where the driver enters private property or an alley, or drives on a traffic island.

This Is Pretty Clear

We find the distinction between the street itself and private property, alleys, or traffic islands to be obvious.

The State nonetheless argues that the officer could have reasonably, albeit mistakenly, believed that this was a violation of the ordinance because maneuvering around a speed bump while remaining in the roadway is similar to driving onto a traffic island. While vehicles are permitted to be driven on a public street in most instances, they should almost never be driven on a raised traffic island.

We categorically disagree.

No Mistake Of Law Here

 The case before us does not present an officer’s misunderstanding of the law. Instead, it presents an officer’s failure to know the law.

Here the officer’s mistaken belief that the driver committed a traffic violation was unreasonable where Wells never left the street to avoid a speed bump.

Holding

It follows that the seizure of respondent as an occupant in Wells’s car, which occurred when the police activated their lights and siren, was also unreasonable. Consequently, respondent was entitled to the suppression of such evidence. 

Accordingly, we reverse the adjudication of delinquency outright. 

People v. Mueller

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People v. Mueller, 2018 IL App (2d) 170863 (December). Episode 572 (Duration 8:47)

Jeep touches he traffic lines 3 times and gets stopped, reasonable?

Charges

Defendant, Amy Lynn Mueller, was charged with driving under the influence of alcohol (625 ILCS 5/11-501(a)(1), (a)(2)) and improper lane usage (ILU) (625 ILCS 5/11-709(a)).

Innocent Left Turn

Defendant’s Jeep was stopped in the left-turn lane at a light at the intersection at 1:40 am on a rural rode. When the light turned green, she turned left onto Route 31. There was nothing unusual in the turn.

The sheriff’s deputy followed defendant. She was not speeding.

First Touch

Then Jeep’s driver’s-side tires rolled onto the yellow center line and touched it for a few seconds. The vehicle did not cross the line but returned to its lane.

Did It A Second Time

Then a second time after traveling some distance, the Jeep’s passenger’s-side tires touched the white fog line but never crossed over it. The Jeep never left the lane. The Jeep moved back toward the center of the lane without doing anything unusual.

Happened A Third Time

Then a third violation was when the Jeep’s passenger’s-side tires again rode on the white fog line. This was “momentary.” The tires never crossed over the line. Other than the three incidents of what he regarded as ILU, the sheriff’s deputy did not see defendant violate any traffic laws.

Jeep Stopped

He acknowledged that the stretch of road on which he followed defendant was not straight and had “some twists and turns.” Also, he acknowledged that the video system in his squad car had been inoperable since October 2016 and that he had not requested any repair.

Based on the three incidents alone, he stopped the Jeep nearly a mile from where he first saw it.

Trial Court Findings

The trial court said the sheriff’s deputy’s testimony had been “problematic. He either didn’t remember important details or was flippant with defendant’s attorney.  The sheriff’s deputy never saw the Jeep’s tires cross over either the yellow center line or the white fog line, nor did he observe any jerky or erratic driving corrections.

The three lane-line touches occurred over a mile-long twisting and turning stretch of road.

The trial court noted that, current law required evidence that defendant’s tires crossed over the lane lines to create a reasonable suspicion of ILU.

That had not occurred.

Issue

She moved to quash her arrest and suppress evidence, contesting the initial stop of her vehicle for ILU. 

Question: Was there sufficient reasonable suspicion justifying the traffic stop? Does a vehicle have to cross the line or does merely touching it register as an improper lane usage?

Illinois Traffic Code on Lane Usage

Section 11-709(a) states that,

“Whenever any roadway has been divided into 2 or more clearly marked lanes for traffic,..vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”

625 ILCS 5/11-709(a).

Crossing The Lane Will Get You Stopped

Although the statute requires a driver to remain entirely within a single lane only as nearly as practicable, it is settled that an officer may stop a vehicle for driving outside its lane for no obvious reason, without further inquiry into practicability. Hackett, 2012 IL 111781, ¶¶ 27-28.

To be clear what we are asking here is if the sheriff’s deputy had a reasonable suspicion that defendant failed to drive “entirely within a single lane” (625 ILCS 5/11-709(a)), when (1) her driver’s-side tires touched, but did not cross, the yellow center line or (2) her passenger’s-side tires touched, but did not cross, the white fo

Trial Court’s Ruling

The trial court relied on

• People v. Hackett, 2012 IL 111781,  ¶ 9
• People v. Smith, 172 Ill. 2d 289, 297 (1996)
• People v. Flint, 2012 IL App (3d) 110165, ¶¶ 8, 17 and
• People v. Leyendecker, 337 Ill. App. 3d 678, 680, 682 (2003)

…which, it stated, all held that a person commits ILU only when his or her vehicle crosses the center line or the fog line.

However, in none of those cases did the defendant merely touch the line without crossing it. Each motorist crossed the line. In each case the court held that crossing the line is ILU, but in no case did it explicitly hold that only crossing the line is ILU.

What Is A Traffic Lane?

The Illinois statute does not define “lane” and does not specify whether either a center line or a fog line is part of the “lane” in which the driver is traveling.

Although the Code does not specifically define “lane,” it defines “laned roadway” as

“a roadway which is divided into two or more clearly marked lanes for vehicular traffic.”

625 ILCS 5/1-136.

As a matter of established usage, a “lane” is “a strip of roadway for a single line of vehicles.” Merriam-Webster’s Collegiate Dictionary 652 (10th ed. 2001). As these definitions suggest, in common practice, a traffic “lane” is one in which vehicles legally and customarily are driven toward their destinations.

Dividing lines or boundary lines, by contrast, are legally and customarily used only to change lanes, turn, or make other maneuvers (see 625 ILCS 5/11-709(a) (vehicle “shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety”)).

If a line’s purpose is to divide two lanes, then a vehicle has not changed lanes until it has crossed the line.

Moreover, this interpretation is consistent with the official rules of the road, in Illinois and elsewhere. “Yellow center lines separate lanes of traffic moving in opposite directions.”  Ill. Sec’y of State, 2018 Illinois Rules of the Road 76 (Mar. 2018)), https://www.cyberdriveillinois .com/publications/pdf_publications/dsd_a112.pdf. [https://perma.cc/3GA7-MJGH].

Not Ambiguous Either

We conclude that the statute is unambiguous. Therefore, Heien and Gaytan do not apply and the stop cannot be validated as based on a reasonable mistake of law.

Analysis

In any event, we note that a stop for ILU is valid when “a police officer observes multiple lane deviations, for no obvious reason.” Hackett, 2012 IL 111781, ¶ 28.

Here, even if defendant’s multiple touches could be considered “lane deviations,” the road’s “twists and turns” provided an innocent (and obvious) explanation for those brief touches.

Holding

Thus, under any construction of section 11-709(a), the trial court correctly granted defendant’s motion to quash and suppress. We affirm the order of the circuit court of McHenry County.

People v. Walker

 

People v. Walker, 2018 IL App (4th) 170877 (September). Episode 536 (Duration 10:58)

Turns out we’ve been misreading the “proper turn” statute all along.

Gist

Defendant was stopped for an improper left turn and received a ticket for driving while his license was revoked (625 ILCS 5/6-303 (West 2016)).

He filed a motion to suppress evidence from the stop, asserting the police officer who stopped him lacked reasonable, articulable suspicion defendant had violated the law.

State Argued

The State argued defendant was required to turn into the nearest westbound lane pursuant to section 11-801 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11­ 801). Because defendant did not do so, the traffic stop was valid.

According to the State, section 11-801(a)(2) unambiguously required defendant to enter the leftmost lane legally available when he executed the left turn in this case. In the alternative, the State argues section 11-801(a)(2) is ambiguous.

The Turn

Around 12:30 a.m. on defendant drove his car out of a gas station by making a right turn onto Hershey Road in Bloomington, Illinois. Defendant then proceeded north on Hershey Road, eventually moving into the left turn lane as he approached the intersection of Hershey Road and Empire Street.

The traffic light was red, and defendant stopped at the intersection.

When the light turned green, defendant made a left turn onto Empire Street, exiting the intersection into the farthest available westbound lane, which was the northernmost lane. After making his left turn, defendant was proceeding in a westerly direction on Empire Street, which had two lanes for westbound traffic.

Immediately after defendant exited the intersection, an officer stopped defendant for making an improper left turn because defendant did not exit the intersection into the nearest westbound lane of traffic on Empire Street.

Required Position And Method Of Turning

Section 11-801(a)(2) provides the following:

“(2) The driver of a vehicle intending to turn left at any intersection shall approach the intersection in the extreme left-hand lane lawfully available to traffic moving in the direction of travel of such vehicle, and after entering the intersection, the left turn shall be made so as to leave the intersection in a lane lawfully available to traffic moving in such direction upon the roadway being entered. Whenever practicable the left turn shall be made in that portion of the intersection to the left of the center of the intersection.”

625 ILCS 5/11-801(a)(2) (West 2016).

The first sentence of section 11-801(a)(2) is a compound sentence and states (1) the law as to what lane—“the extreme left-hand lane”—a driver must be in when approaching an intersection to make a left turn and (2) the law as to what lane—“a lane lawfully available to traffic moving in such direction upon the roadway being entered”—the driver should use when exiting the intersection.

The second sentence of subsection (a)(2), which is the focus of the State’s argument, states the law as to what the driver should do within the intersection: “Whenever practicable the left turn shall be made in that portion of the intersection to the left of the center of the intersection.”

Analysis

Pursuant to a plain reading of section 11-801(a)(2), which we do not find to be ambiguous, defendant did not violate the law by exiting the intersection into the farthest westbound lane of traffic on Empire Street. For this court to agree with the State’s interpretation of this subsection, we would have to depart from the plain language of the statute by reading into the statute exceptions, limitations, or conditions the legislature did not express, and we would have to deem other parts of the statute superfluous.

This court would have to determine the legislature intended (1) for the last sentence of subsection (a)(2) to be read to restrict what lane a driver could exit an intersection—without any language in the sentence to that effect—and (2) for language in the first sentence—“the left turn should be made so as to leave the intersection in a lane lawfully available to traffic moving in such direction” (emphasis added)— to be ignored.

We will not interpret this statute in the manner suggested by the State.

Mistake Of Law

The United States Supreme Court in Heien v. North Carolina, 574 U.S. ___, ___, 135 S. Ct. 530, 536, 539 (2014), did hold reasonable suspicion justifying a traffic stop “can rest on a mistaken understanding of the scope of a legal prohibition” as long as the mistaken understanding of the law was objectively reasonable. With regard to the objective standard, the Court stated, “We do not examine the subjective understanding of the particular officer involved.” Heien, 574 U.S. at ___, 135 S. Ct. at 539.

In addition, the Court declared, “[A]n officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is dutybound to enforce.” Heien, 574 U.S. at ___, 135 S. Ct. at 539. According to Justice Kagan: “A court tasked with deciding whether an officer’s mistake of law can support a seizure thus faces a straightforward question of statutory construction. If the statute is genuinely ambiguous, such that overturning the officer’s judgment requires hard interpretive work, then the officer has made a reasonable mistake. But if not, not. As the Solicitor General made the point at oral argument, the statute must pose a ‘really difficult’ or ‘very hard question of statutory interpretation.’ [Citation.] And indeed, both North Carolina and the Solicitor General agreed that such cases will be ‘exceedingly rare.’ ” Heien, 574 U.S. at ___, 135 S. Ct. at 541. 

Holding

Based on the evidence and a plain reading of the unambiguous language of section 11-801(a)(2), defendant did not violate any statute justifying the traffic stop by exiting the intersection in the farthest westbound lane of Empire Street. As we have concluded section 11-801(a)(2) is not ambiguous, the State’s alternative argument “the traffic stop was still lawful due to the ambiguity of the statutory language” also fails.

In this case, the plain language of section 11-801(a)(2) does not present a difficult or hard question of statutory interpretation. The statute clearly allows a driver making a left turn to exit the intersection into any available lane of traffic moving in the proper direction. The officer’s misunderstanding of section 11-801(a)(2) was not objectively reasonable. As a result, the officer’s stop of defendant’s vehicle was not justified. As we have found the stop of defendant’s vehicle was not constitutionally justified, we next turn to the State’s argument the exclusionary rule should not be applied under the circumstances in this case.

For the reasons stated, we affirm the circuit court’s judgment.

See Also

Episode 073 – People v. Gaytan (ball hidge on a license plate blocking the numbers)

Episode 238 – People v. Theus (defendant fails to signal when rodeway jumped from one to two lanes)

Heien v. North Carolina, 135 S. Ct. 530 (2014), (truck stopped because of broken tail light)

Episode 232 – People v. Lubienski, 2016 IL App (3d) 150813 (September) (Crossing The Line One Time Justifies A Traffic Stop)

Episode 434 – People v. Lomeli, 2017 IL App (3d) 150815 (December) (Traffic Stop Based On Dangling Rosary Is Legal)

Episode 142 – People v. Little, 2016 IL App (3d) 130683 (February) (Reasonable Suspicion Does Not Require Ruling Out All Innocent Behavior)

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People v. White, 2015 IL App (1st) 131111 (December 2015). Episode 126 (Duration 3:01)

Domestic battery is not a forcible felony that can support a conviction for armed habitual criminal.

Defendant was convicted of being an armed habitual criminal and committing armed violence when he was stopped, dropped a gun, and had drugs on his person.

Originally published on January 11, 2016.

Forcible Felony

Because domestic battery is not expressly enumerated in subsection (2) or (3) of the armed habitual criminal statute, it must constitute a forcible felony under subsection (1) in order to be a qualifying felony under the statute. See Armed habitual Criminal statute 720 ILCS 5/24-1.7(a).

Section 2-8 of the Criminal Code of 2012 provides that a…

” ‘[f]orcible felony’ means…any other felony which involves the use or threat of physical force or violence against any individual.”

On First Blush

Here, the record must show that the specific circumstances of defendant’s domestic battery conviction fall under the residual clause or domestic battery must inherently be a forcible felony under the residual clause.

The State presented no evidence at trial concerning the circumstances surrounding defendant’s prior conviction. On first blush, a domestic battery where bodily harm has been causes appears to be a forcible felony.

Not All Batteries Are Forcible Felonies

However, in defining forcible felonies, the legislature has specified aggravated battery based on great bodily harm, permanent disability or disfigurement, to the exclusion of aggravated battery where mere “bodily harm” has occurred.

It cannot be said that defendant’s domestic battery conviction constituted a forcible felony. In turn, that conviction did not satisfy an element of the armed habitual criminal offense and defendant’s conviction for that offense must be vacated.

Armed Habitual Criminal Conviction Reversed

Additionally, the ambiguity in the armed violence statutes must be construed in defendant’s favor. The statute, then, does not authorize multiple armed violence convictions for multiple, simultaneous, underlying felonies. Accordingly, one of his armed violence convictions must be vacated.