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Office of the State Appellate Defender
Illinois Criminal Law Digest
July 2021
JAMES E. CHADD
State Appellate Defender
KERRY J. BRYSON
SHAWN O’TOOLE
Deputy State Appellate Defenders, Editors
©Copyright 2021 by the Office of the State Appellate Defender. All rights reserved.
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TABLE OF CONTENTS
APPEAL ........................................................................................................................ 1
People v. Horton, 2021 IL App (1st) 180551 (7/19/21) ............................................................................ 1
People v. Ward, 2021 IL App (2d) 190243 (7/7/21) ................................................................................. 1
BATTERY, ASSAULT & STALKING OFFENSES ................................................. 2
People v. Ward, 2021 IL App (2d) 190243 (7/7/21) ................................................................................. 2
People v. Lamonica, 2021 IL App (2d) 200136 (7/26/21) ......................................................................... 3
COLLATERAL REMEDIES ...................................................................................... 4
People v. Dorsey, 2021 IL 123010 (7/29/21) ............................................................................................ 4
People v. Horton, 2021 IL App (1st) 180551 (7/19/21) ............................................................................ 6
CONFESSIONS ........................................................................................................... 7
People v. O’Neal, 2021 IL App (4th) 200014 (7/30/21) ............................................................................ 7
EVIDENCE ................................................................................................................... 8
People v. Hardimon, 2021 IL App (3d) 180578 (7/22/21) ........................................................................ 8
People v. Lamonica, 2021 IL App (2d) 200136 (7/26/21) ......................................................................... 9
FITNESS TO STAND TRIAL .................................................................................. 11
People v. Lewis, 2021 IL App (3d) 180259 (7/9/21) ............................................................................... 11
HOMICIDE ................................................................................................................. 11
People v. O’Neal, 2021 IL App (4th) 200014 (7/30/21) .......................................................................... 11
INSANITY – MENTALLY ILL – INTOXICATION ............................................... 12
People v. Ferguson, 2021 IL App (1st) 201013 (7/23/21) ...................................................................... 12
JUVENILE PROCEEDINGS ................................................................................... 12
People v. Dorsey, 2021 IL 123010 (7/29/21) .......................................................................................... 12
SEARCH & SEIZURE ............................................................................................... 14
People v. Mueller, 2021 IL App (2d) 190868 (7/8/21) ........................................................................... 14
People v. Hardimon, 2021 IL App (3d) 180578 (7/22/21) ...................................................................... 14
SENTENCING ........................................................................................................... 15
People v. Dorsey, 2021 IL 123010 (7/29/21) .......................................................................................... 15
People v. O’Neal, 2021 IL App (4th) 200014 (7/30/21) .......................................................................... 17
SEX OFFENSES ........................................................................................................ 17
People v. Lamonica, 2021 IL App (2d) 200136 (7/26/21) ....................................................................... 17
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STATUTES ................................................................................................................. 19
People v. O’Neal, 2021 IL App (4th) 200014 (7/30/21) .......................................................................... 19
WITNESS .................................................................................................................... 20
People v. Lewis, 2021 IL App (3d) 180259 (7/9/21) ............................................................................... 20
People v. Pacheco, 2021 IL App (3d) 150880-B (7/12/21) ..................................................................... 20
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APPEAL
§2-6(e)(1)
People v. Horton, 2021 IL App (1st) 180551 (7/19/21)
The trial court did not err in denying leave to file a successive post-conviction
petition alleging actual innocence. Defendant failed to present noncumulative
evidence in support of his claim, where a witness’s assertion that he gave the shooting
victim a gun prior to the shooting was cumulative of defendant’s trial testimony that
the victim was armed. The witness’s affidavit corroborated defendant’s trial
testimony, which could be a basis to argue reasonable doubt, but that is not the
standard for establishing a claim of actual innocence.
Further, defendant’s proposed new evidence was not conclusive. The
supporting witness averred that he gave the victim a gun on the night of the shooting,
claimed that the victim went to the scene planning to kill defendant, and explained
that the reason no gun was found on the victim’s body was because another individual
took it and concealed it after the shooting. The proposed new witness was not present
at the shooting and did not indicate that the victim displayed or threatened to use
the gun during the confrontation with defendant. Thus, the evidence fell short of
supporting a claim of self-defense necessary to demonstrate actual innocence.
In reaching its conclusion, the Appellate Court majority relied on two recent
unpublished decisions, People v. Jackson, 2021 IL App (1st) 190406-U, and People
v. Smith, 2021 IL App (1st) 181178-U, as persuasive authority under Illinois
Supreme Court Rule 23(e)(1), as amended effective January 1, 2021.
(Defendant was represented by Assistant Defender Rebecca Levy, Chicago.)
§2-6(e)(1)
People v. Ward, 2021 IL App (2d) 190243 (7/7/21)
Defendant, who was well-known as a vocal critic of local law enforcement, was
involved in a verbal altercation with police officers at the scene of a traffic accident
involving defendant’s teenage son. Defendant’s wife stepped between defendant and
an officer in an effort to diffuse the situation. Defendant pushed her to the side and
continued to argue, at which point he was arrested and charged with domestic battery
based on the push to his wife. Defendant’s wife insisted he did nothing wrong, so the
officer signed the complaint against defendant.
At trial, defendant’s wife described the physical contact in question as similar
to passing someone in a hallway; defendant moved her out of the way, but held on to
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her so she would not fall. She stated that she thought the arrest was a “complete
farce” and that she was not insulted or provoked by the contact.
Whether contact is insulting or provoking is dependent on its effect on the
victim. A defendant cannot be found guilty of battery based on insulting or provoking
contact without some proof that the victim was insulted or provoked. While the victim
need not testify directly to being insulted or provoked by the physical contact, there
must be some evidence from which the trier of fact can logically infer as much. Here,
the officers testified (improperly) to their opinions that defendant’s conduct
constituted domestic battery, but there was no evidence - such as a description of the
wife’s subjective reaction to the incident - from which it could be inferred that the
contact was insulting or provoking.
In concluding that the trial court erred in denying defendant’s motion for a
directed verdict, the Appellate Court looked to another domestic battery case
prosecuted by the Kane County State’s Attorney’s office, People v. McDowell, 2015
IL App (2d) 140301-U, with similar facts. While McDowell was an unpublished
decision, the court noted “no language in Rule 23 expressly forbids the Appellate
Court from adopting the reasoning of an unpublished order.” Here, as in McDowell,
the wife intervened while her husband was involved in a heated argument, and the
ensuing contact between the two was not insulting or provoking.
BATTERY, ASSAULT & STALKING OFFENSES
§7-1(c)
People v. Ward, 2021 IL App (2d) 190243 (7/7/21)
Defendant, who was well-known as a vocal critic of local law enforcement, was
involved in a verbal altercation with police officers at the scene of a traffic accident
involving defendant’s teenage son. Defendant’s wife stepped between defendant and
an officer in an effort to diffuse the situation. Defendant pushed her to the side and
continued to argue, at which point he was arrested and charged with domestic battery
based on the push to his wife. Defendant’s wife insisted he did nothing wrong, so the
officer signed the complaint against defendant.
At trial, defendant’s wife described the physical contact in question as similar
to passing someone in a hallway; defendant moved her out of the way, but held on to
her so she would not fall. She stated that she thought the arrest was a “complete
farce” and that she was not insulted or provoked by the contact.
Whether contact is insulting or provoking is dependent on its effect on the
victim. A defendant cannot be found guilty of battery based on insulting or provoking
contact without some proof that the victim was insulted or provoked. While the victim
3
need not testify directly to being insulted or provoked by the physical contact, there
must be some evidence from which the trier of fact can logically infer as much. Here,
the officers testified (improperly) to their opinions that defendant’s conduct
constituted domestic battery, but there was no evidence - such as a description of the
wife’s subjective reaction to the incident - from which it could be inferred that the
contact was insulting or provoking.
In concluding that the trial court erred in denying defendant’s motion for a
directed verdict, the Appellate Court looked to another domestic battery case
prosecuted by the Kane County State’s Attorney’s office, People v. McDowell, 2015
IL App (2d) 140301-U, with similar facts. While McDowell was an unpublished
decision, the court noted “no language in Rule 23 expressly forbids the Appellate
Court from adopting the reasoning of an unpublished order.” Here, as in McDowell,
the wife intervened while her husband was involved in a heated argument, and the
ensuing contact between the two was not insulting or provoking.
§7-1(h)(3)
People v. Lamonica, 2021 IL App (2d) 200136 (7/26/21)
Defendant was found guilty of aggravated criminal sexual assault under
section 11-1.30(a)(2). To prove defendant guilty under this subsection, the State was
required to prove that defendant committed an act of sexual penetration against the
victim by the use of force and caused bodily harm. The Appellate Court found the
evidence of “force” insufficient and reversed the conviction.
The complainant L.L. testified that defendant took her to a restaurant where
she drank several glasses of wine, to the point of severe intoxication. She admitted
that she invited defendant back to her apartment, with the assumption that they
would engage in sexual intercourse. When they arrived at the apartment, L.L. took
her dogs outside and fell down. The next thing she remembered was laying in her bed
naked with defendant on top of her, digitally penetrating her. She told defendant to
stop because it hurt, and after she agreed to oral copulation, they engaged in vaginal
sex. The sex was so painful that L.L. began bawling, and told him it was painful,
although she did not tell him to stop because she thought it would be futile. L.L.
moved away, and told defendant to stop because he was hurting her. They argued,
and she saw a vein pop in his neck, suggesting he was very angry and making her
believe he would force himself on her or worse. At that point L.L. laid down and he
again penetrated her vaginally. L.L. told him it hurt and told him to stop, eventually
shoving him off and ending the encounter.
The Appellate Court rejected the argument that defendant used force during
the digital penetration, or during either act of vaginal intercourse. First, defendant’s
act of forcing his fingers into L.L.’s vagina did not amount to the force necessary to
4
prove criminal sexual assault. Force does not include the force inherent to the act of
physical penetration; instead, there must be some kind of physical compulsion, or
threat thereof, that causes the victim to submit to the penetration against their will.
Regarding the first act of vaginal penetration, L.L. never testified that this act began
due to force or the threat of force, only that it was painful and that she eventually
moved away rather than telling him to stop. With regard to the second act of vaginal
penetration, defendant did not threaten L.L., and her subjective interpretation of
defendant’s neck vein as a threat was insufficient to qualify as an actual threat.
Under the definition provided in section 11-0.1, an actual threat must be followed by
a reasonable belief that the accused will act upon the threat. Here, there was no
evidence that defendant threatened L.L. or that any perceived threat was reasonable.
The State argued that L.L. withdrew her consent when she told defendant,
“stop, it hurts,” near the end of the encounter. But the Appellate Court found that
defendant did not prevent her from disengaging. When a defendant raises the
affirmative defense of consent in an aggravated criminal sexual assault trial, the
State has a burden of proof beyond a reasonable doubt on the issue of consent as well
as on the issue of force. A person can passively force someone to continue with an act
of sexual penetration by using one’s bodily inertia to prevent the victim from
disengaging, but here, defendant’s bodily inertia did not prevent L.L. from
disengaging. Rather, L.L. was able to push defendant off her, ending the penetration.
Despite reversing defendant’s conviction for insufficient evidence, the court
went on to hold that the trial court erred in admitting other-crimes evidence. At trial,
three witnesses testified about a prior sexual assault. The State used this testimony
to prove propensity under section 115-7.3 and as evidence of intent and lack of
mistake. In that assault, E.S. alleged that defendant took her to a restaurant where
she drank too much wine and ended up with defendant in her apartment. She further
alleged that defendant forced himself on her in the morning. The court found E.S.’s
unproven allegation was factually dissimilar to the charged conduct; other than
defendant inviting E.S. and L.L. to wine bars, the two incidents bear little
resemblance to one another in any significant way. Thus, the probative value was low
and no reasonable person could conclude that the probative value outweighed the
prejudicial effect.
COLLATERAL REMEDIES
§9-1(i)(2)
People v. Dorsey, 2021 IL 123010 (7/29/21)
Defendant was sentenced to an aggregate term of 76 years in prison for a
murder and two attempted murders committed at age 14. The sentence was eligible
for day-for-day good conduct credit. Defendant filed a successive post-conviction
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petition, alleging that his sentence violated Miller v. Alabama, 567 U.S. 460 (2012).
The Appellate Court affirmed the denial of leave to file, finding that defendant’s
eligibility for day-for-day sentencing credit meant that he did not receive a de facto
life sentence.
A six member majority of the Supreme Court affirmed. The majority first held
that defendant established cause where he could not have raised his claim earlier.
Defendant’s direct appeal was decided in 2000, and he filed his initial PC in 2005.
The instant successive petition was filed in 2014. The appellate court correctly found
that the “cause” prong was established where Miller set forth a new substantive rule
in 2012 and was not available to defendant in his first petition.
The Supreme Court further held, however, that defendant could not establish
prejudice because the day-for-day sentencing scheme meant that defendant did not
receive a de facto life sentence. Miller precludes a life sentence for most juveniles
without “some meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation.” The day-for-day sentencing scheme gives juveniles that
meaningful opportunity. It is guaranteed by statute as long as the defendant complies
with good conduct rules. By complying with those rules, defendants can earn an
opportunity for early release.
Although defendant argued that the loss of good conduct credit for minor
violations of prison rules did not mean a juvenile was not mature or rehabilitated,
the Supreme Court disagreed. It is in a defendant’s power to shorten his sentence by
earning good-conduct credit, and earning such credit allows a defendant the
opportunity to exhibit maturity and rehabilitation. And while a juvenile may be
stripped of good conduct credit without the approval of courts, the court found no
distinction between this scheme and a discretionary parole system, which was
explicitly endorsed by Miller. The Supreme Court found that several regulations
ensured that good conduct credit would not be lost without due process, making the
system even more favorable to defendants than parole.
The majority further held that even if it accepted defendant’s argument
regarding day-for-day credit, his claim would fail in light of the Supreme Court’s
decision in Jones v. Mississippi, 593 U.S. ___, (2021). Under Jones, a judge who
imposes a discretionary life sentence does not need to make an explicit finding of
incorrigibility. As long as the judge had the discretion to consider youth and its
attendant circumstances, a life sentence was permissible. Here, defendant’s
mandatory minimum was 32 years, and the sentencing court had the discretion to
consider defendant’s youth before it chose to impose the 76-year term.
Finally, the majority refused to reach defendant’s argument that his sentence
violated the proportionate penalties clause of the Illinois Constitution, finding the
claim forfeited and barred by res judicata. Defendant did not raise the proportionate
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penalties argument in his petition for leave to file a successive post-conviction
petition or in the petition itself, nor did he raise it in his petition for leave to appeal.
Although defendant argued he preserved the claim by raising it in the Appellate
Court, the Supreme Court found a mere reference to the proportionate penalties
clause, without further argument, was insufficient. And because defendant raised a
proportionate penalties argument in his direct appeal, the claim was barred by res
judicata despite the evolution of the law in subsequent years. Miller’s unavailability
prior to 2012 at best deprived defendant of “some helpful support” for his state
constitutional law claim, which is insufficient to establish “cause.”
The dissent would have found the issue of good-conduct credit a factual
question inappropriately resolved at the pleading stage. It further would have
adhered to precedents that held sentencing credit controlled by prisons is not a part
of the sentence. The dissent pointed out that the range of infractions – including
“unauthorized movement,” “business ventures,” and “dangerous written materials” –
was so broad and vague that it allowed for arbitrary revocation of credit. Finally, the
dissent would have reached the proportionate penalties clause and found it sufficient
to reach the second stage, citing the importance of the issue and disagreeing with the
majority’s conclusion that the claim was not adequately raised in the Appellate Court.
(Defendant was represented by Assistant Defender Bryon Reina, Chicago.)
§9-1(i)(3)
People v. Horton, 2021 IL App (1st) 180551 (7/19/21)
The trial court did not err in denying leave to file a successive post-conviction
petition alleging actual innocence. Defendant failed to present noncumulative
evidence in support of his claim, where a witness’s assertion that he gave the shooting
victim a gun prior to the shooting was cumulative of defendant’s trial testimony that
the victim was armed. The witness’s affidavit corroborated defendant’s trial
testimony, which could be a basis to argue reasonable doubt, but that is not the
standard for establishing a claim of actual innocence.
Further, defendant’s proposed new evidence was not conclusive. The
supporting witness averred that he gave the victim a gun on the night of the shooting,
claimed that the victim went to the scene planning to kill defendant, and explained
that the reason no gun was found on the victim’s body was because another individual
took it and concealed it after the shooting. The proposed new witness was not present
at the shooting and did not indicate that the victim displayed or threatened to use
the gun during the confrontation with defendant. Thus, the evidence fell short of
supporting a claim of self-defense necessary to demonstrate actual innocence.
7
In reaching its conclusion, the Appellate Court majority relied on two recent
unpublished decisions, People v. Jackson, 2021 IL App (1st) 190406-U, and People
v. Smith, 2021 IL App (1st) 181178-U, as persuasive authority under Illinois
Supreme Court Rule 23(e)(1), as amended effective January 1, 2021.
(Defendant was represented by Assistant Defender Rebecca Levy, Chicago.)
CONFESSIONS
§10-5(c)(2)
People v. O’Neal, 2021 IL App (4th) 200014 (7/30/21)
The 16 year-old defendant voluntarily waived his Miranda rights prior to his
custodial interrogation, and his confession was given voluntarily.
The interrogating officer provided defendant a form entitled “Custodial
Interview Advice Juvenile” which contained the Miranda warnings. He asked
defendant if he could read, then read the rights as defendant followed along. The
officer asked if defendant understood each right, and defendant affirmed that he did.
The Appellate Court found that this procedure ensured a voluntary and knowing
waiver given that the record showed defendant to be intelligent, articulate, and
“almost 17” (defendant was four months shy of his 17th birthday.) Although
defendant cited secondary sources suggesting juveniles had difficulty understanding
Miranda warnings, the court noted that these sources were not presented at the trial
level and regardless, concluded that to apply their reasoning would create a
presumption of involuntariness in every case where a juvenile waived Miranda.
As for the voluntariness of the confession, defendant alleged that his will was
overborne because he did not consult with a concerned adult, he was interrogated
over a period of 13 hours, and the interrogating officer used threats and promises of
leniency. The Appellate Court noted, however, that the trial court properly found that
defendant was interrogated for about 2.5 hours out of the 13 hours of confinement,
and did not find this to be an unreasonable amount of time likely to cause an
involuntary confession.
With regard to the presence of a concerned adult, defendant alleged his mother
was not allowed to confer with him before he made statements to police and his DJO
left after defendant was Mirandized. But the Appellate Court found that the police
immediately contacted defendant’s mother upon taking him into custody, and that
when initially asked if he wanted his mother in the room, defendant declined.
Eventually defendant changed his mind and defendant’s mother was immediately
brought into the room. And while the DJO was not present for the investigation, he
told defendant that he could request his presence if defendant had any questions. The
8
Appellate Court also rejected the notion that the DJO could not be a concerned adult
due to his role in the investigation, distinguishing People v. Griffin, 327 Ill. App.
3d 538 (2002), where the DJO was interrogating witnesses. Here, the DJO merely
obtained a witnesses’ contact info from a cell phone.
Further, the Appellate Court found no improper threats or promises of
leniency. The officer repeatedly exhorted defendant to tell the truth, and suggested
several times that by telling the truth he could be a “witness” rather than a
“defendant” and that he could go home rather than go to jail. But the officer did not
offer a specific benefit, which is required to show an improper promise of leniency.
Taking all other factors into consideration, the Appellate Court found the
confession voluntary despite defendant’s lack of experience with the criminal justice
system. He was legally detained, and had the benefit of a DJO before the
interrogation. By his own choice he did not have his mother present during some of
the questioning, but he did have either his mother or grandmother present during
much of the interview. Defendant was 16 years old, but only four months shy of his
seventeenth birthday. He was educated, intelligent, and a good student. While at the
station, he was allowed to eat, use the restroom, use his mother’s and grandmother’s
cell phones, and take breaks during questioning. He was not restrained during the
interrogation and exhibited sound mental capacity. The court affirmed the denial of
the motion to suppress.
(Defendant was represented by Assistant Defender Salome Kiwara-Wilson,
Springfield.)
EVIDENCE
§§19-2(b)(1), 19-23(a)
People v. Hardimon, 2021 IL App (3d) 180578 (7/22/21)
Defendant was convicted of murder after he was identified as the perpetrator
of a shooting outside a night club. At his trial, one witness, a bouncer, testified that
as he escorted defendant out of a club, he heard defendant say he would “light this
bitch up.” The bouncer testified that based on his familiarity with street slang, he
understood the comment to mean that there would be some “gun play.” Defendant
argued on appeal that this comment constituted improper lay opinion testimony.
Defendant further alleged that aspects of his videotaped statement, in particular the
commentary and accusatory questioning of the officers, was overly prejudicial.
The Appellate Court rejected these claims. Illinois Rule of Evidence 701 states
that “lay witnesses may offer opinions or inferences which are (a) rationally based on
the perception of the witness, and (b) helpful to a clear understanding of the witness’
9
testimony or the determination of a fact in issue, and (c) not based on scientific,
technical, or other specialized knowledge.” The Appellate Court found the bouncer’s
testimony was proper lay opinion. It was rationally based on his familiarity with
street vernacular. The statement was helpful to the determination of the fact of the
defendant’s guilt in that there was, in fact, some “gun play.” The statement was not
based on scientific, technical, or specialized knowledge.
Nor did the court err in admitting certain portions of defendant’s videotaped
interrogation which he alleged to be overly prejudicial. In a prior appeal, the appellate
court deemed the interrogation prejudicial, based on officer comments and
accusations, after approximately 26 minutes. At the second trial, the parties argued
over whether the jury should see beyond the 25:46 mark or the 28:35 mark. In
between, the interrogating officers presented defendant with their theory of the case,
accusing him of shooting the victim after an argument in the bathroom of the
nightclub, and told defendant a witness could identify him entering a Mitsubishi after
the shooting. The Appellate Court found these officer statements admissible as
allowable interrogation techniques, and noted that defendant admitted to being in
the Mitsubishi, making this portion of the interrogation relevant.
§19-24(a)
People v. Lamonica, 2021 IL App (2d) 200136 (7/26/21)
Defendant was found guilty of aggravated criminal sexual assault under
section 11-1.30(a)(2). To prove defendant guilty under this subsection, the State was
required to prove that defendant committed an act of sexual penetration against the
victim by the use of force and caused bodily harm. The Appellate Court found the
evidence of “force” insufficient and reversed the conviction.
The complainant L.L. testified that defendant took her to a restaurant where
she drank several glasses of wine, to the point of severe intoxication. She admitted
that she invited defendant back to her apartment, with the assumption that they
would engage in sexual intercourse. When they arrived at the apartment, L.L. took
her dogs outside and fell down. The next thing she remembered was laying in her bed
naked with defendant on top of her, digitally penetrating her. She told defendant to
stop because it hurt, and after she agreed to oral copulation, they engaged in vaginal
sex. The sex was so painful that L.L. began bawling, and told him it was painful,
although she did not tell him to stop because she thought it would be futile. L.L.
moved away, and told defendant to stop because he was hurting her. They argued,
and she saw a vein pop in his neck, suggesting he was very angry and making her
believe he would force himself on her or worse. At that point L.L. laid down and he
again penetrated her vaginally. L.L. told him it hurt and told him to stop, eventually
shoving him off and ending the encounter.
10
The Appellate Court rejected the argument that defendant used force during
the digital penetration, or during either act of vaginal intercourse. First, defendant’s
act of forcing his fingers into L.L.’s vagina did not amount to the force necessary to
prove criminal sexual assault. Force does not include the force inherent to the act of
physical penetration; instead, there must be some kind of physical compulsion, or
threat thereof, that causes the victim to submit to the penetration against their will.
Regarding the first act of vaginal penetration, L.L. never testified that this act began
due to force or the threat of force, only that it was painful and that she eventually
moved away rather than telling him to stop. With regard to the second act of vaginal
penetration, defendant did not threaten L.L., and her subjective interpretation of
defendant’s neck vein as a threat was insufficient to qualify as an actual threat.
Under the definition provided in section 11-0.1, an actual threat must be followed by
a reasonable belief that the accused will act upon the threat. Here, there was no
evidence that defendant threatened L.L. or that any perceived threat was reasonable.
The State argued that L.L. withdrew her consent when she told defendant,
“stop, it hurts,” near the end of the encounter. But the Appellate Court found that
defendant did not prevent her from disengaging. When a defendant raises the
affirmative defense of consent in an aggravated criminal sexual assault trial, the
State has a burden of proof beyond a reasonable doubt on the issue of consent as well
as on the issue of force. A person can passively force someone to continue with an act
of sexual penetration by using one’s bodily inertia to prevent the victim from
disengaging, but here, defendant’s bodily inertia did not prevent L.L. from
disengaging. Rather, L.L. was able to push defendant off her, ending the penetration.
Despite reversing defendant’s conviction for insufficient evidence, the court
went on to hold that the trial court erred in admitting other-crimes evidence. At trial,
three witnesses testified about a prior sexual assault. The State used this testimony
to prove propensity under section 115-7.3 and as evidence of intent and lack of
mistake. In that assault, E.S. alleged that defendant took her to a restaurant where
she drank too much wine and ended up with defendant in her apartment. She further
alleged that defendant forced himself on her in the morning. The court found E.S.’s
unproven allegation was factually dissimilar to the charged conduct; other than
defendant inviting E.S. and L.L. to wine bars, the two incidents bear little
resemblance to one another in any significant way. Thus, the probative value was low
and no reasonable person could conclude that the probative value outweighed the
prejudicial effect.
11
FITNESS TO STAND TRIAL
§21-4(b)
People v. Lewis, 2021 IL App (3d) 180259 (7/9/21)
The trial court did not err in allowing the State to introduce the deposition of
a witness as substantive evidence at defendant’s discharge hearing which resulted in
a finding of “not not guilty.” The witness was 85 years old and living in a nursing
home at the time the evidence deposition was taken. And, by the time of trial, more
than a year later, she was suffering heart failure and being treated for injuries
sustained during a fall. Her doctor opined that in-court testimony would have a
negative impact on the witness, both physically and psychologically.
Illinois Supreme Court Rule 414 permits the taking of evidence depositions in
criminal cases. Defendant argued that because his case proceeded to a discharge
hearing, rather than a criminal trial, Rule 414 did not apply. The Appellate Court
rejected that argument. While there is a statute specifically providing for the
admission of certain hearsay evidence in discharge hearings [725 ILCS 5/104-25(a)],
that statute does not set forth the full scope of admissible evidence in such proceeding.
Instead, Section 104-25(a) simply describes a specific area in which more evidence is
allowed at a discharge hearing than would be at a criminal trial. The finding of not
not guilty was affirmed.
(Defendant was represented by Assistant Defender James Wozniak, Chicago.)
HOMICIDE
§26-2
People v. O’Neal, 2021 IL App (4th) 200014 (7/30/21)
The Appellate Court rejected a juvenile defendant’s constitutional attack on
the felony murder statute. Defendant alleged that the felony murder statute violated
due process as applied to juveniles because it does not reasonably relate to the state’s
interests of deterring violent crime. Defendant argued a juvenile cannot be deterred
from crime because “[a]s a group, juveniles lack the cognitive and neurological
development to be deterred by the fear of prosecution for first degree murder.”
Defendant relied on Eighth Amendment cases such as Graham, Roper, and
Simmons.
The Appellate Court held that as in People v. Pacheco, 2013 IL App (4th)
110409, it would not adopt Eighth Amendment law as support for defendant’s due
process challenge. While defendant also cited several secondary sources to support
his contention that juveniles do not make the kind of long-term risk considerations
12
that would be required in order for them to be deterred by the felony murder statute,
defendant did not present this argument or these sources to the trial court. Even if
defendant’s sources contain scientific facts, the legislature is in a better position than
the judiciary to gather and evaluate data bearing on complex problems.
(Defendant was represented by Assistant Defender Salome Kiwara-Wilson,
Springfield.)
INSANITY – MENTALLY ILL – INTOXICATION
§30-1(a)
People v. Ferguson, 2021 IL App (1st) 201013 (7/23/21)
When a defendant is found not guilty by reason of insanity, the trial court must
determine his or her maximum period of commitment, also know as the Thiem date.
See People v. Thiem, 82 Ill. App. 3d 956 (1980). Pursuant to 730 ILCS 5/5-2-4(b),
the Thiem date “shall not exceed the maximum length of time the defendant would
have been required to serve, less credit for good behavior as provided in Section 5-4-
1...had he been convicted of and received the maximum sentence for the most serious
crime for which he has been acquitted by reason of insanity.”
Here, defendant argued that his Thiem date should be reduced by the 180
days of discretionary good conduct credit that he may earn under 730 ILCS 5/3-6-
3(a)(3). The Appellate Court disagreed. The discretionary credit is not “credit for good
behavior as provided in Section 5-4-1" and therefore does not apply to advance
defendant’s Thiem date. The court noted, however, that the Director at the
Department of Human Services should be informed that defendant’s commitment
may be reduced by up to 180 days if the Director finds defendant eligible for such
credit.
JUVENILE PROCEEDINGS
§33-6(g)(2)
People v. Dorsey, 2021 IL 123010 (7/29/21)
Defendant was sentenced to an aggregate term of 76 years in prison for a
murder and two attempted murders committed at age 14. The sentence was eligible
for day-for-day good conduct credit. Defendant filed a successive post-conviction
petition, alleging that his sentence violated Miller v. Alabama, 567 U.S. 460 (2012).
The Appellate Court affirmed the denial of leave to file, finding that defendant’s
eligibility for day-for-day sentencing credit meant that he did not receive a de facto
life sentence.
13
A six member majority of the Supreme Court affirmed. The majority first held
that defendant established cause where he could not have raised his claim earlier.
Defendant’s direct appeal was decided in 2000, and he filed his initial PC in 2005.
The instant successive petition was filed in 2014. The appellate court correctly found
that the “cause” prong was established where Miller set forth a new substantive rule
in 2012 and was not available to defendant in his first petition.
The Supreme Court further held, however, that defendant could not establish
prejudice because the day-for-day sentencing scheme meant that defendant did not
receive a de facto life sentence. Miller precludes a life sentence for most juveniles
without “some meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation.” The day-for-day sentencing scheme gives juveniles that
meaningful opportunity. It is guaranteed by statute as long as the defendant complies
with good conduct rules. By complying with those rules, defendants can earn an
opportunity for early release.
Although defendant argued that the loss of good conduct credit for minor
violations of prison rules did not mean a juvenile was not mature or rehabilitated,
the Supreme Court disagreed. It is in a defendant’s power to shorten his sentence by
earning good-conduct credit, and earning such credit allows a defendant the
opportunity to exhibit maturity and rehabilitation. And while a juvenile may be
stripped of good conduct credit without the approval of courts, the court found no
distinction between this scheme and a discretionary parole system, which was
explicitly endorsed by Miller. The Supreme Court found that several regulations
ensured that good conduct credit would not be lost without due process, making the
system even more favorable to defendants than parole.
The majority further held that even if it accepted defendant’s argument
regarding day-for-day credit, his claim would fail in light of the Supreme Court’s
decision in Jones v. Mississippi, 593 U.S. ___, (2021). Under Jones, a judge who
imposes a discretionary life sentence does not need to make an explicit finding of
incorrigibility. As long as the judge had the discretion to consider youth and its
attendant circumstances, a life sentence was permissible. Here, defendant’s
mandatory minimum was 32 years, and the sentencing court had the discretion to
consider defendant’s youth before it chose to impose the 76-year term.
Finally, the majority refused to reach defendant’s argument that his sentence
violated the proportionate penalties clause of the Illinois Constitution, finding the
claim forfeited and barred by res judicata. Defendant did not raise the proportionate
penalties argument in his petition for leave to file a successive post-conviction
petition or in the petition itself, nor did he raise it in his petition for leave to appeal.
Although defendant argued he preserved the claim by raising it in the Appellate
Court, the Supreme Court found a mere reference to the proportionate penalties
14
clause, without further argument, was insufficient. And because defendant raised a
proportionate penalties argument in his direct appeal, the claim was barred by res
judicata despite the evolution of the law in subsequent years. Miller’s unavailability
prior to 2012 at best deprived defendant of “some helpful support” for his state
constitutional law claim, which is insufficient to establish “cause.”
The dissent would have found the issue of good-conduct credit a factual
question inappropriately resolved at the pleading stage. It further would have
adhered to precedents that held sentencing credit controlled by prisons is not a part
of the sentence. The dissent pointed out that the range of infractions – including
“unauthorized movement,” “business ventures,” and “dangerous written materials” –
was so broad and vague that it allowed for arbitrary revocation of credit. Finally, the
dissent would have reached the proportionate penalties clause and found it sufficient
to reach the second stage, citing the importance of the issue and disagreeing with the
majority’s conclusion that the claim was not adequately raised in the Appellate Court.
(Defendant was represented by Assistant Defender Bryon Reina, Chicago.)
SEARCH & SEIZURE
§§43-1(c), 43-2(d)(3)
People v. Mueller, 2021 IL App (2d) 190868 (7/8/21)
A blood draw taken by medical personnel following defendant’s car accident
did not violate the Fourth Amendment. The medical personnel were not State actors,
and took the blood for medical reasons, not at the behest of the police. Section 11-
501.4-1(a) of the Illinois Vehicle Code, which compels the release of the blood test
results to law enforcement, does not create Fourth Amendment implications, because
it does not require the draw or otherwise transform the medical personnel into State
actors.
§§43-2(d)(7), 43-3(c)(2), 43-3(c)(3)(b)
People v. Hardimon, 2021 IL App (3d) 180578 (7/22/21)
The State established that probable cause and exigent circumstances existed
at the time of defendant’s warrantless arrest. In considering whether exigent
circumstances exist, courts consider: (1) whether the offense being investigated was
recently committed; (2) whether the officers deliberately or unjustifiably delayed
during a time they could have obtained a warrant; (3) whether a grave offense,
particularly one of violence, is involved; (4) “whether the suspect is reasonably
believed to be armed”; (5) whether the police were acting upon a clear showing of
probable cause; (6) whether there was a likelihood of escape if the suspect was not
15
swiftly apprehended; (7) whether there was a strong reason to believe the suspect
was at the premises to be searched; and (8) whether the police entry, although
nonconsensual, was made peacefully.
Here, the witness interviews implicating defendant occurred the day of and the
day after the shooting, leading to defendant’s arrest within 48 hours. The Appellate
Court found this to be “recent” and that the police did not delay unjustifiably in their
investigation. The offense – murder – was grave, and defendant was assumed to be
armed as no weapon was found at the scene. Probable cause clearly existed where the
witnesses knew defendant and corroborated each other. Because a witness informed
the police where he dropped off defendant after the crime, there was strong reason to
believe defendant was at the premises. Finally, the entry was peaceful, as police
knocked and were let inside by the homeowner. Where every factor favored exigent
circumstances, the Appellate Court upheld the arrest.
SENTENCING
§44-1(c)(2)
People v. Dorsey, 2021 IL 123010 (7/29/21)
Defendant was sentenced to an aggregate term of 76 years in prison for a
murder and two attempted murders committed at age 14. The sentence was eligible
for day-for-day good conduct credit. Defendant filed a successive post-conviction
petition, alleging that his sentence violated Miller v. Alabama, 567 U.S. 460 (2012).
The Appellate Court affirmed the denial of leave to file, finding that defendant’s
eligibility for day-for-day sentencing credit meant that he did not receive a de facto
life sentence.
A six member majority of the Supreme Court affirmed. The majority first held
that defendant established cause where he could not have raised his claim earlier.
Defendant’s direct appeal was decided in 2000, and he filed his initial PC in 2005.
The instant successive petition was filed in 2014. The appellate court correctly found
that the “cause” prong was established where Miller set forth a new substantive rule
in 2012 and was not available to defendant in his first petition.
The Supreme Court further held, however, that defendant could not establish
prejudice because the day-for-day sentencing scheme meant that defendant did not
receive a de facto life sentence. Miller precludes a life sentence for most juveniles
without “some meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation.” The day-for-day sentencing scheme gives juveniles that
meaningful opportunity. It is guaranteed by statute as long as the defendant complies
with good conduct rules. By complying with those rules, defendants can earn an
opportunity for early release.
16
Although defendant argued that the loss of good conduct credit for minor
violations of prison rules did not mean a juvenile was not mature or rehabilitated,
the Supreme Court disagreed. It is in a defendant’s power to shorten his sentence by
earning good-conduct credit, and earning such credit allows a defendant the
opportunity to exhibit maturity and rehabilitation. And while a juvenile may be
stripped of good conduct credit without the approval of courts, the court found no
distinction between this scheme and a discretionary parole system, which was
explicitly endorsed by Miller. The Supreme Court found that several regulations
ensured that good conduct credit would not be lost without due process, making the
system even more favorable to defendants than parole.
The majority further held that even if it accepted defendant’s argument
regarding day-for-day credit, his claim would fail in light of the Supreme Court’s
decision in Jones v. Mississippi, 593 U.S. ___, (2021). Under Jones, a judge who
imposes a discretionary life sentence does not need to make an explicit finding of
incorrigibility. As long as the judge had the discretion to consider youth and its
attendant circumstances, a life sentence was permissible. Here, defendant’s
mandatory minimum was 32 years, and the sentencing court had the discretion to
consider defendant’s youth before it chose to impose the 76-year term.
Finally, the majority refused to reach defendant’s argument that his sentence
violated the proportionate penalties clause of the Illinois Constitution, finding the
claim forfeited and barred by res judicata. Defendant did not raise the proportionate
penalties argument in his petition for leave to file a successive post-conviction
petition or in the petition itself, nor did he raise it in his petition for leave to appeal.
Although defendant argued he preserved the claim by raising it in the Appellate
Court, the Supreme Court found a mere reference to the proportionate penalties
clause, without further argument, was insufficient. And because defendant raised a
proportionate penalties argument in his direct appeal, the claim was barred by res
judicata despite the evolution of the law in subsequent years. Miller’s unavailability
prior to 2012 at best deprived defendant of “some helpful support” for his state
constitutional law claim, which is insufficient to establish “cause.”
The dissent would have found the issue of good-conduct credit a factual
question inappropriately resolved at the pleading stage. It further would have
adhered to precedents that held sentencing credit controlled by prisons is not a part
of the sentence. The dissent pointed out that the range of infractions – including
“unauthorized movement,” “business ventures,” and “dangerous written materials” –
was so broad and vague that it allowed for arbitrary revocation of credit. Finally, the
dissent would have reached the proportionate penalties clause and found it sufficient
to reach the second stage, citing the importance of the issue and disagreeing with the
majority’s conclusion that the claim was not adequately raised in the Appellate Court.
17
(Defendant was represented by Assistant Defender Bryon Reina, Chicago.)
§44-4(f), 44-15(c)
People v. O’Neal, 2021 IL App (4th) 200014 (7/30/21)
The defendant’s sentence was not improperly disparate to his co-defendant’s,
and defendant was not penalized for choosing to go to trial. Defendant was convicted
of felony murder for participating in a robbery that ended in a shooting. One co-
defendant, whom the sentencing court deemed more culpable, received 20 years as
part of a plea agreement that included an obligation to testify against co-defendant.
Defendant received 24 years.
Generally, a sentence imposed on a codefendant who pleaded guilty as part of
a plea agreement does not provide a valid basis of comparison to a sentence entered
after a trial. The considerations that warrant a lesser sentence for one who pleads
guilty – acknowledgment of guilt, avoidance of a public trial, and cooperation in
another prosecution – all applied to the co-defendant’s plea. These reasons for
leniency defeat any claim that defendant received an arbitrarily or unreasonably
disparate sentence.
Nor did the record support defendant’s claim that the trial court penalized him
for exercising his constitutional right to a trial. A court of review will determine
whether a trial court imposed a trial tax by evaluating the court’s remarks to discern
if the punishment was, at least in part, imposed because the defendant availed
himself of his constitutional right to trial. Here, the sentencing court did note that co-
defendant was more culpable, referenced co-defendant’s plea agreement, and
remarked, “defendant exercised his constitutional right to have a trial.” However, the
trial court immediately stated, “I don’t believe that’s anything I can hold against the
defendant.” The court then provided ample explanation for its decision to impose a
24-year sentence, balancing several proper factors in aggravation and mitigation. The
record therefore established the sentencing court did not impose a trial tax.
(Defendant was represented by Assistant Defender Salome Kiwara-Wilson,
Springfield.)
SEX OFFENSES
§45-2(a)
People v. Lamonica, 2021 IL App (2d) 200136 (7/26/21)
Defendant was found guilty of aggravated criminal sexual assault under
section 11-1.30(a)(2). To prove defendant guilty under this subsection, the State was
18
required to prove that defendant committed an act of sexual penetration against the
victim by the use of force and caused bodily harm. The Appellate Court found the
evidence of “force” insufficient and reversed the conviction.
The complainant L.L. testified that defendant took her to a restaurant where
she drank several glasses of wine, to the point of severe intoxication. She admitted
that she invited defendant back to her apartment, with the assumption that they
would engage in sexual intercourse. When they arrived at the apartment, L.L. took
her dogs outside and fell down. The next thing she remembered was laying in her bed
naked with defendant on top of her, digitally penetrating her. She told defendant to
stop because it hurt, and after she agreed to oral copulation, they engaged in vaginal
sex. The sex was so painful that L.L. began bawling, and told him it was painful,
although she did not tell him to stop because she thought it would be futile. L.L.
moved away, and told defendant to stop because he was hurting her. They argued,
and she saw a vein pop in his neck, suggesting he was very angry and making her
believe he would force himself on her or worse. At that point L.L. laid down and he
again penetrated her vaginally. L.L. told him it hurt and told him to stop, eventually
shoving him off and ending the encounter.
The Appellate Court rejected the argument that defendant used force during
the digital penetration, or during either act of vaginal intercourse. First, defendant’s
act of forcing his fingers into L.L.’s vagina did not amount to the force necessary to
prove criminal sexual assault. Force does not include the force inherent to the act of
physical penetration; instead, there must be some kind of physical compulsion, or
threat thereof, that causes the victim to submit to the penetration against their will.
Regarding the first act of vaginal penetration, L.L. never testified that this act began
due to force or the threat of force, only that it was painful and that she eventually
moved away rather than telling him to stop. With regard to the second act of vaginal
penetration, defendant did not threaten L.L., and her subjective interpretation of
defendant’s neck vein as a threat was insufficient to qualify as an actual threat.
Under the definition provided in section 11-0.1, an actual threat must be followed by
a reasonable belief that the accused will act upon the threat. Here, there was no
evidence that defendant threatened L.L. or that any perceived threat was reasonable.
The State argued that L.L. withdrew her consent when she told defendant,
“stop, it hurts,” near the end of the encounter. But the Appellate Court found that
defendant did not prevent her from disengaging. When a defendant raises the
affirmative defense of consent in an aggravated criminal sexual assault trial, the
State has a burden of proof beyond a reasonable doubt on the issue of consent as well
as on the issue of force. A person can passively force someone to continue with an act
of sexual penetration by using one’s bodily inertia to prevent the victim from
disengaging, but here, defendant’s bodily inertia did not prevent L.L. from
disengaging. Rather, L.L. was able to push defendant off her, ending the penetration.
19
Despite reversing defendant’s conviction for insufficient evidence, the court
went on to hold that the trial court erred in admitting other-crimes evidence. At trial,
three witnesses testified about a prior sexual assault. The State used this testimony
to prove propensity under section 115-7.3 and as evidence of intent and lack of
mistake. In that assault, E.S. alleged that defendant took her to a restaurant where
she drank too much wine and ended up with defendant in her apartment. She further
alleged that defendant forced himself on her in the morning. The court found E.S.’s
unproven allegation was factually dissimilar to the charged conduct; other than
defendant inviting E.S. and L.L. to wine bars, the two incidents bear little
resemblance to one another in any significant way. Thus, the probative value was low
and no reasonable person could conclude that the probative value outweighed the
prejudicial effect.
STATUTES
§47-3(b)(3)(c)
People v. O’Neal, 2021 IL App (4th) 200014 (7/30/21)
The Appellate Court rejected a juvenile defendant’s constitutional attack on
the felony murder statute. Defendant alleged that the felony murder statute violated
due process as applied to juveniles because it does not reasonably relate to the state’s
interests of deterring violent crime. Defendant argued a juvenile cannot be deterred
from crime because “[a]s a group, juveniles lack the cognitive and neurological
development to be deterred by the fear of prosecution for first degree murder.”
Defendant relied on Eighth Amendment cases such as Graham, Roper, and
Simmons.
The Appellate Court held that as in People v. Pacheco, 2013 IL App (4th)
110409, it would not adopt Eighth Amendment law as support for defendant’s due
process challenge. While defendant also cited several secondary sources to support
his contention that juveniles do not make the kind of long-term risk considerations
that would be required in order for them to be deterred by the felony murder statute,
defendant did not present this argument or these sources to the trial court. Even if
defendant’s sources contain scientific facts, the legislature is in a better position than
the judiciary to gather and evaluate data bearing on complex problems.
(Defendant was represented by Assistant Defender Salome Kiwara-Wilson,
Springfield.)
20
WITNESS
§56-6(b)(2)
People v. Lewis, 2021 IL App (3d) 180259 (7/9/21)
The trial court did not err in allowing the State to introduce the deposition of
a witness as substantive evidence at defendant’s discharge hearing which resulted in
a finding of “not not guilty.” The witness was 85 years old and living in a nursing
home at the time the evidence deposition was taken. And, by the time of trial, more
than a year later, she was suffering heart failure and being treated for injuries
sustained during a fall. Her doctor opined that in-court testimony would have a
negative impact on the witness, both physically and psychologically.
Illinois Supreme Court Rule 414 permits the taking of evidence depositions in
criminal cases. Defendant argued that because his case proceeded to a discharge
hearing, rather than a criminal trial, Rule 414 did not apply. The Appellate Court
rejected that argument. While there is a statute specifically providing for the
admission of certain hearsay evidence in discharge hearings [725 ILCS 5/104-25(a)],
that statute does not set forth the full scope of admissible evidence in such proceeding.
Instead, Section 104-25(a) simply describes a specific area in which more evidence is
allowed at a discharge hearing than would be at a criminal trial. The finding of not
not guilty was affirmed.
(Defendant was represented by Assistant Defender James Wozniak, Chicago.)
§§56-6(b)(3), 56-6(b)(4)(b)
People v. Pacheco, 2021 IL App (3d) 150880-B (7/12/21)
The Appellate Court held, over dissent, that defendant’s right to confrontation
was violated when the trial court curtailed his cross-examination of a police officer.
A police officer fired his weapon at defendant during the alleged aggravated assault,
and defense counsel requested permission from the court to ask the officer if improper
discharge of his weapon might cause him to lose his job. The court denied the request.
The Appellate Court, using a de novo standard of review, held that this was a proper
subject of cross-examination going to the officer’s motive to testify falsely. Because
the question went directly to the officer’s credibility relating to a crucial piece of
testimony that was not otherwise corroborated by direct evidence, the error was not
harmless beyond a reasonable doubt.
The court also abused its discretion when it precluded the defense from asking
about the lack of police reports from the responding officers. The officers testified at
a suppression hearing that department policy prevented them from writing a report
because a weapon had been discharged, but the defense showed the court that this
21
was not the policy. The court should have allowed questioning in this area as the
failure to write a report was relevant to the officers’ credibility. In a closely balanced
case, the error could be reviewed as first-prong plain error.
(Defendant was represented by Assistant Defender Emily Brandon, Ottawa.)
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