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Office of the State Appellate Defender
Illinois Criminal Law Digest
June 2019
JAMES E. CHADD
State Appellate Defender
KERRY J. BRYSON
SHAWN O’TOOLE
Deputy State Appellate Defenders, Editors
©Copyright 2019 by the Office of the State Appellate Defender. All rights reserved.
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TABLE OF CONTENTS
APPEAL................................................................................................................................... 1
People v. Orahim, 2019 IL App (2d) 170257 (6/19/19) ............................................................................ 1
People v. Williams, 2019 IL App (5th) 180024 (6/25/19) ......................................................................... 1
People v. Conway, 2019 IL App (2d) 170196 (6/17/19) ........................................................................... 1
People v. Knapp, 2019 IL App (2d) 160162 (6/13/19) .............................................................................. 2
People v. Miller, 2019 IL App (1st) 161687 (6/27/19) .............................................................................. 2
Gamble v. United States, 139 S. Ct. 1960 (2019) ..................................................................................... 3
BATTERY, ASSAULT AND STALKING OFFENSES ....................................................... 3
People v. Mortensen, 2019 IL App (2d) 170020 (6/2519) ........................................................................ 3
People v. Morocho, 2019 IL App (1st) 153232 (6/10/19)......................................................................... 3
COLLATERAL REMEDIES ................................................................................................. 4
People v. Shaw, 2019 IL App (1st) 152994 (6/20/19) ............................................................................... 4
People v. Morales, 2019 IL App (1st) 160225 (6/11/19) .......................................................................... 5
People v. Dixon, 2019 IL App (1st) 160443 (6/11/19) .............................................................................. 5
People v. Galvan, 2019 IL App (1st) 170150 (6/14/19) ............................................................................ 6
People v. Conway, 2019 IL App (2d) 170196 (6/17/19) ........................................................................... 6
CONFESSIONS ...................................................................................................................... 7
People v. Galvan, 2019 IL App (1st) 170150 (6/14/19) ............................................................................ 7
People v. Taylor, 2019 IL App (3d) 160708 (6/18/19) .............................................................................. 7
CONTROLLED SUBSTANCES ........................................................................................... 7
People v. Starks, 2019 IL App (2d) 160871 (6/28/19) .............................................................................. 7
People v. Holliday, 2019 IL App (3d) 160315 (6/20/19) ........................................................................... 8
COUNSEL ............................................................................................................................... 8
People v. Knapp, 2019 IL App (2d) 160162 (6/13/19) .............................................................................. 8
People v. Massey, 2019 IL App (1st) 162407 (6/4/19) ............................................................................. 9
DISCOVERY ........................................................................................................................... 9
People v. Morales, 2019 IL App (1st) 160225 (6/11/19) .......................................................................... 9
People v. Sanders, 2019 IL App (1st) 160718 (6/20/19)......................................................................... 10
DISORDLY, ESCAPE, RESISTING AND OBSTRUCTING OFFENSES .................... 10
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People v. Clark, 2019 IL 122891 (6/6/19) ............................................................................................... 10
DOUBLE JEOPARDY - COLLATERAL ESTOPPEL ..................................................... 11
Gamble v. United States, 139 S. Ct. 1960 (2019) ................................................................................... 11
EVIDENCE ............................................................................................................................ 12
People v. Jaimes, 2019 IL App (1st) 142736 (6/6/19) ............................................................................. 12
People v. Riggs, 2019 IL App (2d) 160991 (6/19/19) .............................................................................. 12
GUILTY PLEA ...................................................................................................................... 13
People v. Williams, 2019 IL App (3d) 160412 (6/25/19) ........................................................................ 13
People v. Williams, 2019 IL App (3d) 160412 (6/25/19) ........................................................................ 13
People v. Orahim, 2019 IL App (2d) 170257 (6/19/19) .......................................................................... 14
JUDGE 14
People v. Massey, 2019 IL App (1st) 162407 (6/4/19) ....................................................................... 14
JURY 15
Flowers v. Mississippi, ___ U.S. ___ (No. 17-9572, 6/21/19) ................................................................ 15
People v. Hollahan, 2019 IL App (3d) 150556 (6/20/19) ........................................................................ 15
People v. Jaimes, 2019 IL App (1st) 142736 (6/6/19) ............................................................................. 16
People v. Strickland, 2019 IL App (1st) 161098 (6/28/19) ..................................................................... 17
JUVENILE PROCEEDINGS .............................................................................................. 17
People v. Hoover, 2019 IL App (2d) 170070 (6/12/19) .......................................................................... 17
PROSECUTOR ..................................................................................................................... 18
People v. Taylor, 2019 IL App (3d) 160708 (6/18/19) ............................................................................ 18
REASONABLE DOUBT ...................................................................................................... 18
Rehaif v. United States, _____ U.S. _____ (No. 17-9560, 6/21/19) ....................................................... 18
SEARCH & SEIZURE .......................................................................................................... 19
People v. Pruitte, 2019 IL App (3d) 180366 (6/24/19) ........................................................................... 19
People v. Strickland, 2019 IL App (1st) 161098 (6/28/19) ..................................................................... 20
People v. Musgrave, 2019 IL App (4th) 170106 (6/10/19) ..................................................................... 20
Mitchell v. Wisconsin, ____ U.S. ____ (No. 18-6210, 6/27/19) ............................................................. 20
People v. McGregory, 2019 IL App (1st) 173101 (6/25/19) ................................................................... 22
People v. Cassino, 2019 IL App (1st) 181510 (6/7/19) ........................................................................... 22
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SENTENCING ...................................................................................................................... 23
United States v. Haymond, ____ U.S. ____, 2019 WL 2605552 (2019) ................................................. 23
People v. Hoover, 2019 IL App (2d) 170070 (6/12/19) .......................................................................... 23
People v. Musgrave, 2019 IL App (4th) 170106 (6/10/19) ..................................................................... 24
People v. Hibbler, 2019 IL App (4th) 160897 ......................................................................................... 24
People v. Maas, 2019 IL App (2d) 160766 (6/5/19) ............................................................................... 25
People v. Miller, 2019 IL App (1st) 161687 (6/27/19) ............................................................................ 25
People v. Holliday, 2019 IL App (3d) 160315 (6/20/19) ......................................................................... 25
People v. Washington, 2019 IL App (1st) 172372 (6/10/19) .................................................................. 26
STATUTES ............................................................................................................................ 27
Gamble v. United States, 139 S. Ct. 1960 (2019) ................................................................................... 27
People v. Williams, 2019 IL App (3d) 160412 (6/25/19) ........................................................................ 27
TRAFFIC OFFENSES ......................................................................................................... 27
People v. Castino, 2019 IL App (2d) 170298 (6/14/19) .......................................................................... 27
People v. Maas, 2019 IL App (2d) 160766 (6/5/19) ............................................................................... 28
Mitchell v. Wisconsin, ____ U.S. ____ (No. 18-6210, 6/27/19) ............................................................. 28
People v. Maas, 2019 IL App (2d) 160766 (6/5/19) ............................................................................... 29
WAIVER - PLAIN ERROR - HARMLESS ERROR ......................................................... 30
People v. Hollahan, 2019 IL App (3d) 150556 (6/20/19) ........................................................................ 30
WEAPONS ............................................................................................................................. 31
Rehaif v. United States, ____ U.S. ____ (No. 17-9560, 6/21/19)........................................................... 31
People v. Beck, 2019 IL App (1st) 161626 (6/18/19) .............................................................................. 31
People v. Starks, 2019 IL App (2d) 160871 (6/28/19) ............................................................................ 32
WITNESSES.......................................................................................................................... 32
People v. Riggs, 2019 IL App (2d) 160991 (6/19/19) .............................................................................. 32
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APPEAL
§2-2(b)
People v. Orahim, 2019 IL App (2d) 170257 (6/19/19)
A timely post-plea motion extends both the trial court’s jurisdiction over the
case, as well as the time for filing a notice of appeal. However, a successive post-plea
motion filed more than 30 days after sentencing does not extend the trial court’s
jurisdiction or the time to file notice of appeal, even if the successive motion is filed
within 30 days of the court’s ruling on the initial, timely-filed, post-plea motion.
Here, where defendant filed a motion to withdraw plea the day after his motion
to reconsider sentence was denied, but more than 30 days after sentencing, the trial
court lacked jurisdiction to rule on the motion to withdraw plea. Because defendant
did not file a notice of appeal within 30 days of the denial of his motion to reconsider
sentence, the Appellate Court lacked jurisdiction to review the merits of his appeal.
Instead, the court vacated the trial court’s denial of the motion to withdraw plea and
dismissed that motion.
§2-4(b)
People v. Williams, 2019 IL App (5th) 180024 (6/25/19)
To exercise its right to appeal a suppression order under Rule 604(a), the State
must file either a notice of appeal or motion directed against the judgment within 30
days. Here, the State’s motion to reconsider was filed months after the suppression
order. Therefore, the circuit court lacked jurisdiction to reconsider the suppression
order, and the Appellate Court lacked jurisdiction over the appeal from the ruling on
the motion to reconsider. Although the State did file a motion for findings within 30
days of the suppression order, in which it asked the court to clarify the basis for its
decision, this motion is not a “motion directed against the judgment” under Rule
606(b).
(Defendant was represented by Assistant Defender Levi Harris, Mt. Vernon.)
§2-6(a)
People v. Conway, 2019 IL App (2d) 170196 (6/17/19)
Defendant attempted to file a successive PC petition. At an ex parte hearing,
the ASA offered his opinion that leave to appeal should be denied because the petition
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restated matters already dismissed in the previous petition, and that the claims
lacked merit. Citing People v. Bailey, 2017 IL App (1st) 150070, the Appellate Court
held that the circuit court erred when it allowed the State to participate at the leave-
to-file stage. It rejected the State’s argument that there is a de minimis exception to
this rule.
The court further held that, as in Bailey, it could decide the issue of cause and
prejudice based on the record below, rather than remand for a new hearing. It rejected
the notion that a ruling on the merits depended on the Supreme Court’s supervisory
authority, finding People v. Munson, 2018 IL App (3d) 150544, which declined such
power, to be wrongly decided. The court reviewed the petition and found that it failed
to satisfy the cause-and-prejudice test.
(Defendant was represented by Assistant Defender Roxanna Mason, Chicago.)
§2-6(c)
People v. Knapp, 2019 IL App (2d) 160162 (6/13/19)
The statutory State’s Attorney’s appeal fee [55 ILCS 5/4-2002(a)] is properly
assessed in a post-conviction appeal. The plain language of the statute does not limit
its imposition to direct appeals.
(Defendant was represented by Assistant Defender Andrew Boyd, Ottawa.)
§2-6(e)(2)
People v. Miller, 2019 IL App (1st) 161687 (6/27/19)
Where defendant’s case had been remanded under Arna for imposition of
mandatory 15-year firearm enhancement, but then Castleberry was decided after
the Appellate Court’s mandate issued but prior to resentencing, Castleberry applied
to preclude resentencing. The law-of-the-case doctrine did not obligate the Appellate
Court to maintain its prior decision ordering resentencing because the prior appeal
did not involve the impact of Castleberry since Castleberry had not yet been
decided. And, while trial courts are bound to follow the mandate from the Appellate
Court, here, the impact of Castleberry presented a new question which the trial
court could have, and should have, considered.
(Defendant was represented by Assistant Defender Jessica Ware, Chicago.)
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§2-6(e)(3)
Gamble v. United States, 139 S. Ct. 1960 (2019)
The Supreme Court rejected the defendant’s invitation to repeal the dual-
sovereignty doctrine, an aspect of double jeopardy jurisprudence which states that
prosecution for the same conduct by different governments is not barred by the
Double Jeopardy Clause. Defendant’s argument relied on scattered decisions and
other commentary from English common law, and on inferences from rejected
proposals at the constitutional convention. A departure from precedent, however,
“demands special justification,” and this historical evidence was too feeble to break
the chain of precedent linking dozens of cases over 170 years.
BATTERY, ASSAULT AND STALKING OFFENSES
§7-2(a)
People v. Mortensen, 2019 IL App (2d) 170020 (6/2519)
Defendant was proved guilty beyond a reasonable doubt of violating a condition
of an order of protection which prohibited him from coming within 1,000 feet of the
protected party’s residence. The evidence showed that defendant left cupcakes on the
doorstep of the residence but did not establish whether the protected party was
present at the time. By the condition’s plain language, the State was not required to
prove that the protected party was home, only that defendant came within 1,000 feet
of the residence. And, although the numbering of the conditions (also called remedies)
in the order of protection did not correspond with the numbering of permissible
remedies set out by statute (750 ILCS 60/214(b)), the statutory provision requiring
consistent numbering (750 ILCS 60/221) was directory, not mandatory, and therefore
failure to comply did not render the condition invalid.
(Defendant was represented by Assistant Defender Darren Miller, Elgin.)
§7-2(b)
People v. Morocho, 2019 IL App (1st) 153232 (6/10/19)
Aggravated stalking under section 12-7.3(a)(2) is facially unconstitutional.
Under subsection (a)(2), a person commits stalking when he or she knowingly
threatens another two or more times and knows or should know that the threats
would cause a reasonable person to suffer emotional distress. The offense is complete
without any accompanying criminal act. Defendant alleged that the statute is
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overbroad under the first amendment, because it allows for prosecution of language
that would not fall under the “true threat” exception to the right to free speech. The
Appellate Court agreed that under the plain language of (a)(2), a person who
threatens to commit a lawful act may be prosecuted. Because a substantial number
of applications of the law would be unconstitutional, including coaches threatening
players with benching, parents threatening children with no desert, or lenders
threatening homeowners with foreclosure, the statute was overbroad and facially
unconstitutional.
(Defendant was represented by Assistant Defender Brian Josias, Chicago.)
COLLATERAL REMEDIES
§9-1(c)(2)
People v. Shaw, 2019 IL App (1st) 152994 (6/20/19)
A guilty plea does not categorically preclude a post-conviction claim of actual
innocence. Rejecting the holding in People v. Reed, 2019 IL App (4th) 170090, the
Appellate Court found no reason to prevent those who decide to plead guilty – a
decision not always compelled by actual guilt – from presenting persuasive evidence
of innocence. The standard for judging an actual innocence claim following a guilty
plea, however, must be higher than for an actual innocence claim following trial, due
to the greater finality interests inherent in the guilty plea context. The Supreme
Court would have to set that standard at a later date, as it would not be appropriate
for the Appellate Court to do so.
Here, the Appellate Court found that even employing the traditional standard,
defendant’s actual innocence claim failed to make a substantial showing of actual
innocence. The claim was based on an affidavit recounting the hearsay statement of
the deceased victim in which she admitted to falsely identifying defendant as her
attacker. This is not the type of compelling or persuasive evidence required for an
actual innocence claim, particularly when measured against the record: a factual
basis describing an eyewitness identification of defendant, plus defendant’s
confession, and defendant’s agreement to that factual basis during his plea of guilty.
(Defendant was represented by Assistant Defender Miriam Sierig, Chicago.)
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§9-1(e)(1)
People v. Morales, 2019 IL App (1st) 160225 (6/11/19)
Defendant’s post-conviction petition stated an arguable claim of a Brady
violation where defendant alleged that the prosecution failed to disclose evidence of
a deal with an eyewitness, Garcia, in exchange for his testimony against defendant.
The petition was supported by a letter from the State’s Attorney to INS on Garcia’s
behalf and a voicemail from Garcia to the State’s Attorney threatening to “deny
everything” if the State did not assist with his immigration. While neither
conclusively established the existence of a deal, both made it at least “arguable” that
such a deal existed, which is all that is required to satisfy the first-stage post-
conviction standard.
Likewise, it was arguable that an undisclosed agreement with Garcia would
have been material to the defense. The materiality standard is similar to the
prejudice standard for claims of ineffective assistance of counsel. A defendant need
not show that it is more likely than not that he would have received a different verdict
with the undisclosed evidence, but rather that it its absence he did not receive a fair
trial. Garcia’s credibility was critical to the State’s case against defendant, so it was
at least arguable that evidence of an agreement with the prosecution was material to
the defense.
(Defendant was represented by Assistant Defender Jonathan Yeasting,
Chicago.)
§9-1(f)
People v. Dixon, 2019 IL App (1st) 160443 (6/11/19)
During the second-stage of PC proceedings, the circuit court erred when it
deprived the pro se petitioner of his trial attorney’s case file. The court rejected the
State’s argument that the file constituted “discovery” or “work product.” Documents
in the case file were either created by, or turned over to, the defense, so petitioner
was not requesting an opposing party’s documents. The post-conviction attorney who
had previously worked on the case had stated that review of the case file was essential
to an amended petition. The Appellate Court remanded for further stage-two
proceedings.
(Defendant was represented by Assistant Defender Darrel Oman, Chicago.)
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§9-1(g)
People v. Galvan, 2019 IL App (1st) 170150 (6/14/19)
Defendant was convicted of committing arson and two counts of first-degree
murder in 1986, at the age of 18. His conviction was based on his confession, which
he had tried to suppress by alleging coercion by interrogating detectives, including
Detective Switski. Defendant filed a successive post-conviction petition alleging
actual innocence, and the circuit court granted an evidentiary hearing. At the
hearing, several witnesses testified that Switski coerced their confessions around the
same time. The circuit court denied the petition, stating that it did not believe any of
the witnesses.
The Appellate Court reversed, finding that the question is not whether the
witnesses were credible, but whether they would have impeached Switski by showing
a pattern of abuse, such that the outcome of the suppression hearing may have been
different. Here, the new evidence was conclusive enough to impeach Switski and
potentially alter the outcome of the suppression hearing.
§9-1(i)(1), 9-1(o)(1)
People v. Conway, 2019 IL App (2d) 170196 (6/17/19)
Defendant attempted to file a successive PC petition. At an ex parte hearing,
the ASA offered his opinion that leave to appeal should be denied because the petition
restated matters already dismissed in the previous petition, and that the claims
lacked merit. Citing People v. Bailey, 2017 IL App (1st) 150070, the Appellate Court
held that the circuit court erred when it allowed the State to participate at the leave-
to-file stage. It rejected the State’s argument that there is a de minimis exception to
this rule.
The court further held that, as in Bailey, it could decide the issue of cause and
prejudice based on the record below, rather than remand for a new hearing. It rejected
the notion that a ruling on the merits depended on the Supreme Court’s supervisory
authority, finding People v. Munson, 2018 IL App (3d) 150544, which declined such
power, to be wrongly decided. The court reviewed the petition and found that it failed
to satisfy the cause-and-prejudice test.
(Defendant was represented by Assistant Defender Roxanna Mason, Chicago.)
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CONFESSIONS
§10-5(a)
People v. Galvan, 2019 IL App (1st) 170150 (6/14/19)
Defendant was convicted of committing arson and two counts of first-degree
murder in 1986, at the age of 18. His conviction was based on his confession, which
he had tried to suppress by alleging coercion by interrogating detectives, including
Detective Switski. Defendant filed a successive post-conviction petition alleging
actual innocence, and the circuit court granted an evidentiary hearing. At the
hearing, several witnesses testified that Switski coerced their confessions around the
same time. The circuit court denied the petition, stating that it did not believe any of
the witnesses.
The Appellate Court reversed, finding that the question is not whether the
witnesses were credible, but whether they would have impeached Switski by showing
a pattern of abuse, such that the outcome of the suppression hearing may have been
different. Here, the new evidence was conclusive enough to impeach Switski and
potentially alter the outcome of the suppression hearing.
§10-8(a)
People v. Taylor, 2019 IL App (3d) 160708 (6/18/19)
Arresting officer’s mere mention of Miranda warnings during his trial
testimony did not violate defendant’s right to remain silent or the prohibition on
evidence of post-arrest silence. There was no evidence that defendant exercised his
right to remain silent, and no argument that the jury could infer anything from such
silence.
(Defendant was represented by former Assistant Defender Matthew Lemke,
Ottawa.)
CONTROLLED SUBSTANCES
§13-3(c)
People v. Starks, 2019 IL App (2d) 160871 (6/28/19)
Where the quantity of a seized substance could be consistent with personal use,
additional evidence of intent to deliver is required to convict of possession with intent
to deliver a controlled substance. Here, the substance was packaged in 20 individual
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baggies, defendant also possessed a box of sandwich bags and a weapon (a collapsible,
metal baton), and defendant did not possess any paraphernalia for drug use. Taking
that evidence in the light most favorable to the prosecution, a rational trier of fact
could have found the essential elements of possession of a controlled substance with
intent to deliver had been proved beyond a reasonable doubt.
(Defendant was represented by Assistant Defender R. Christopher White,
Elgin.)
§13-4(b)
People v. Holliday, 2019 IL App (3d) 160315 (6/20/19)
Upon recovering three separate bags of a plant substance, an officer combined
them into a single bag. Subsequent lab testing determined that the commingled
substance weighed 1048 grams and was positive for the presence of cannabis.
When separate substances are commingled before testing, there is no way to
know how many of the separate substances contained an illegal substance. And, in
the absence of evidence that the entirety of the substance was homogenous, the trier
of fact cannot infer that all of the bags contained the same substance. Accordingly,
the State’s evidence established only that defendant possessed an unspecified amount
of cannabis. His conviction of possession with intent to deliver more than 500 but less
than 2000 grams of a substances containing cannabis was reduced to the civil law
violation of possession of not more than 10 grams of a substance containing cannabis.
(Defendant was represented by former Assistant Defender Matthew Lemke,
Ottawa.)
COUNSEL
§14-4(b)(6)(b)
People v. Knapp, 2019 IL App (2d) 160162 (6/13/19)
Where defendant’s pro se post-conviction petition did not include an allegation
that he was prevented from testifying at trial after informing counsel of his desire to
do so, defendant failed to state the gist of a claim of ineffective assistance of counsel
for inducing him not to testify. The Court declined to infer that defendant made such
a request because the trial record showed that defendant was admonished by the
court of his right to testify, and defendant waived that right without mentioning any
pressure from counsel.
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(Defendant was represented by Assistant Defender Andrew Boyd, Ottawa.)
§14-4(b)(6)(b)
People v. Massey, 2019 IL App (1st) 162407 (6/4/19)
At defendant’s trial for murder, defense counsel was not ineffective for not
“more vigorously” arguing that the co-defendant (Ealy) was the sole shooter and that
defendant was not accountable for the shooting. It was reasonable for counsel not to
seek a trial severance as a matter of strategy because evidence pointed to a single
shooter and counsel could have determined defendant was more likely to get an
acquittal by giving the jury the option of convicting Ealy at a joint trial. While Ealy’s
hearsay statements were admitted at the joint trial, those statements did not
implicate defendant so there was no need for counsel to object to them. Likewise,
there was no basis to object to Ealy’s closing argument which focused on the absence
of any witness testimony that Ealy was the shooter. Defense counsel’s closing
argument, which challenged the credibility of the State’s witnesses rather than
focusing on Ealy as the shooter, was a matter of trial strategy and was not deficient.
(Defendant was represented by Assistant Defender Jennifer Bontrager,
Chicago.)
DISCOVERY
§15-5(a)
People v. Morales, 2019 IL App (1st) 160225 (6/11/19)
Defendant’s post-conviction petition stated an arguable claim of a Brady
violation where defendant alleged that the prosecution failed to disclose evidence of
a deal with an eyewitness, Garcia, in exchange for his testimony against defendant.
The petition was supported by a letter from the State’s Attorney to INS on Garcia’s
behalf and a voicemail from Garcia to the State’s Attorney threatening to “deny
everything” if the State did not assist with his immigration. While neither
conclusively established the existence of a deal, both made it at least “arguable” that
such a deal existed, which is all that is required to satisfy the first-stage post-
conviction standard.
Likewise, it was arguable that an undisclosed agreement with Garcia would
have been material to the defense. The materiality standard is similar to the
10
prejudice standard for claims of ineffective assistance of counsel. A defendant need
not show that it is more likely than not that he would have received a different verdict
with the undisclosed evidence, but rather that it its absence he did not receive a fair
trial. Garcia’s credibility was critical to the State’s case against defendant, so it was
at least arguable that evidence of an agreement with the prosecution was material to
the defense.
(Defendant was represented by Assistant Defender Jonathan Yeasting,
Chicago.)
§15-6
People v. Sanders, 2019 IL App (1st) 160718 (6/20/19)
The disclosure of a surveillance location must almost always be ordered when
the State’s case depends exclusively on the uncorroborated surveillance testimony of
a police officer. This is not such a case. The defendant was arrested and found in
possession of the drugs the officer observed him pick up. This possession corroborated
the officer’s account. Procedurally, the trial court did not err when it excluded
defendant from the in camera proceeding, because the court excluded the State as
well, and the court has discretion to include either both or neither party.
Substantively, the decision was correct in light of the sufficient detail defendant
elicited about the site, including its distance, elevation, direction from defendant’s
position, and the lack of obstruction.
(Defendant was represented by Assistant Defender Tiffany Green, Chicago.)
DISORDLY, ESCAPE, RESISTING AND OBSTRUCTING OFFENSES
§16-3
People v. Clark, 2019 IL 122891 (6/6/19)
There is no “custody” requirement in the “failure to report to a penal
institution” subsection of the escape statute. While on bond, defendant failed to report
to jail as required following her stay in a drug treatment facility. Alleging she “failed
to report to a penal institution” in violation of 720 ILCS 5/31-6(a), the State charged
her with escape, and she was found guilty. The Appellate Court reversed, relying on
prior Illinois Supreme Court decisions which have held that one cannot commit
escape unless in custody, and in this case defendant was on bond when she failed to
report, not in custody.
11
Section 31-6(a) is divided into two independent clauses separated by a
semicolon. The first clause contains an escape from custody provision, and the second
clause contains the knowing failure to report provision at issue here. The word
“custody” appears only in the first provision. Strictly construing the plain language
of section 31-6(a), a 4-3 majority of the Supreme Court upheld the conviction, finding
the “failure to report to a penal institution” language says nothing about custody.
Rather, the language makes clear that the statute is violated when two elements are
proved: (1) “[a] person is convicted of a felony,” and (2) the person “knowingly fails to
report to a penal institution or to report for periodic imprisonment.” 720 ILCS 5/31-
6(a) (West 2014). Here, the State proved both elements regardless of whether
defendant was in custody or out on bond at the time she failed to report.
The dissent would have read the plain language in the context of the other
provisions of the escape statute, all of which require some sort of custody, and would
have held, consistent with its prior decisions, that one cannot escape by failing to
report to a penal institution unless in custody.
(Defendant was represented by Assistant Defender Pamela Rubeo, Chicago.)
DOUBLE JEOPARDY - COLLATERAL ESTOPPEL
§17-7
Gamble v. United States, 139 S. Ct. 1960 (2019)
The Double Jeopardy Clause bars multiple prosecutions for the same “offence.”
An “offence” is not the same as “conduct.” Rather than describing the acts committed,
“offence” describes the laws broken. Thus, if the state and federal governments each
have a law prohibiting the same conduct, a defendant may be prosecuted by both
governments because defendant has committed multiple offenses, and the second
prosecution is not for the “same offence.” This “dual-sovereignty doctrine” has been
incorporated into the Court’s understanding of the Double Jeopardy Clause since
before the Civil War, and a reevaluation of the common law, framers’ intent, and
policies behind the Double Jeopardy Clause was not sufficient to overcome stare
decisis. In his concurrence, Justice Thomas argued that traditional stare decisis
analysis is too deferential, and that the court should be able to overturn prior
precedent whenever it is “demonstrably erroneous,” irrespective of such
considerations as reliance and consistency.
12
EVIDENCE
§19-12
People v. Jaimes, 2019 IL App (1st) 142736 (6/6/19)
Illinois Rule of Evidence 801(d)(2)(E) provides that when offered against a
party, a statement made by a coconspirator “during the course and in furtherance of
the conspiracy” is not hearsay. While statements which merely describe past events
do not fit within this category, statements made as part of an ongoing conspiracy do.
Here, the court admitted coconspirator statements which included descriptions of the
shooting and subsequent flight from the scene, a statement that the group had
started a gang war, and a statement that defendant told a coconspirator that he was
the shooter. Because there was evidence of an ongoing conspiracy, specifically a gang
conflict, and because the statements had the effect of advising other gang members
about the status of that conspiracy and encouraging future acts of violence against
the rival gang, the trial court did not abuse its discretion in admitting them.
(Defendant was represented by Assistant Defender Daniel Mallon, Chicago.)
§19-14(c)
People v. Riggs, 2019 IL App (2d) 160991 (6/19/19)
Following conviction on multiple counts of predatory criminal sexual assault,
defendant contended that he was deprived of his constitutional right to confront the
child victim because, although the court admitted her hearsay statements accusing
him of numerous offenses, she testified on direct examination about only three such
incidents. Thus, defendant argued, she was not available to “defend or explain” her
out-of-court statements about the other offenses.
The Appellate Court affirmed. As long as the witness takes the stand and
willingly answers questions, defendant is afforded his right to confront the witness.
There is no rule that the witness’ direct examination must mirror the hearsay
statements, or include every allegation contained in them. The court distinguished
People v. Learn, 396 Ill. App. 3d 891 (2009), because in that case the victim could
not offer any testimony about any of the alleged offenses.
(Defendant was represented by Assistant Defender Darren Miller, Elgin.)
13
§19-28(b)
People v. Maas, 2019 IL App (2d) 160766 (6/5/19)
Defendant led police on a high-speed chase before the officers shot him in the
face and he crashed into oncoming traffic, injuring other drivers. He fled the car and
hid, but was eventually arrested and transported to the hospital for treatment. The
jury found him guilty of, inter alia, failure to report a car accident involving
personal injury under 625 ILCS 5/11-401(b).
The Appellate Court affirmed, rejecting defendant’s argument that his injury
and hospitalization extended the statute’s 30-minute reporting time. The evidence
showed that more than 30 minutes passed between the accident and the arrest, and,
viewed in the light most favorable to the State, the evidence did not support the
defendant’s argument that his gunshot wound to the face prevented him from
reporting. Defendant’s failure to report within those 30 minutes constituted a
violation of section 11-401(b).
GUILTY PLEA
§24-6(d)
People v. Williams, 2019 IL App (3d) 160412 (6/25/19)
Because the Illinois Supreme Court’s most recent analysis of SORA concluded
that it is not punitive, it remains a “collateral consequence” of the plea and its absence
from admonishments does not render a guilty plea unknowing or involuntary. While
the Appellate Court agreed that current SORA laws are punitive, defendant pled
guilty in 2015, prior to the current version of SORA.
(Defendant was represented by Assistant Defender Matthew Lemke, Ottawa.)
§24-8(b)(1)
People v. Williams, 2019 IL App (3d) 160412 (6/25/19)
A trial court does not abuse its discretion when, as justification for denying a
motion to withdraw a guilty plea, it considers the purported weaknesses in a
defendant’s proffered defense. Here, defendant alleged that his attorney failed to
obtain exculpatory evidence prior to the guilty plea, but the trial court disbelieved
the defendant’s description of this evidence. The Appellate Court affirmed, finding
the court’s rationale appropriate under Illinois Supreme Court precedent, which
14
requires a defendant to propose a “meritorious defense” when weighing a claim of
ineffective assistance of counsel prior to a guilty plea. The circuit court therefore acted
appropriately in analyzing whether defendant’s proposed defense had merit.
(Defendant was represented by Assistant Defender Matthew Lemke, Ottawa.)
§24-8(a)
People v. Orahim, 2019 IL App (2d) 170257 (6/19/19)
A timely post-plea motion extends both the trial court’s jurisdiction over the
case, as well as the time for filing a notice of appeal. However, a successive post-plea
motion filed more than 30 days after sentencing does not extend the trial court’s
jurisdiction or the time to file notice of appeal, even if the successive motion is filed
within 30 days of the court’s ruling on the initial, timely-filed, post-plea motion.
Here, where defendant filed a motion to withdraw plea the day after his motion
to reconsider sentence was denied, but more than 30 days after sentencing, the trial
court lacked jurisdiction to rule on the motion to withdraw plea. Because defendant
did not file a notice of appeal within 30 days of the denial of his motion to reconsider
sentence, the Appellate Court lacked jurisdiction to review the merits of his appeal.
Instead, the court vacated the trial court’s denial of the motion to withdraw plea and
dismissed that motion.
JUDGE
§31-1(a)
People v. Massey, 2019 IL App (1st) 162407 (6/4/19)
The trial judge did not err in denying a request for a mistrial based upon the
fact that the victim’s family ran out of the courtroom during the playing of a video
recording which showed the victim’s murder. The court instructed the jury to
disregard the outburst, and it was an isolated incident during a three-day trial.
(Defendant was represented by Assistant Defender Jennifer Bontrager,
Chicago.)
15
JURY
§§32-4(b), 32-4(c)(3)
Flowers v. Mississippi, ___ U.S. ___ (No. 17-9572, 6/21/19)
In evaluating a Batson claim, a prosecutor’s disparate questioning of black
and white prospective jurors can be probative of discriminatory intent. Here, the
prosecutor struck five of six black prospective jurors. During voir dire, the prosecutor
asked a total of 145 questions of the five stricken black prospective jurors but only 12
questions of the 11 white seated jurors. Coupled with the State’s history of
discriminatory jury selection during defendant’s prior trials in this matter (over the
course of six trials, the State struck 41 of 42 black potential jurors), the drastic
difference in questioning strongly suggested discriminatory intent.
Likewise, comparing prospective jurors who were struck with those who were
not can provide compelling evidence in a Batson analysis. Here, the State said it
struck a black juror because she knew several defense witnesses and worked at Wal-
Mart where defendant’s father also worked, but the State did not strike three white
jurors who also knew many of the individuals involved in the case and had
relationships with defendant’s family. The State also gave factually inaccurate
explanations for some of its strikes of black jurors, another factor demonstrating
discriminatory intent.
Considering all of these facts and circumstances together, the Court concluded
that the trial court erred in denying defendant’s Batson challenge. The Court
reversed defendant’s conviction and remanded for further proceedings.
§32-6(a)
People v. Hollahan, 2019 IL App (3d) 150556 (6/20/19)
During deliberations after a DUI trial, the jury asked to see the videotape of
defendant’s field sobriety test. Due to equipment limitations, the video was shown in
the courtroom with the judge, parties, alternates, and jurors all present. The trial
court admonished everyone not to speak during the video, and did not offer to allow
the jury to re-watch or rewind the video.
The Appellate Court reversed. Defense counsel’s acquiescence in the procedure
was not an affirmative waiver but rather simple forfeiture. As such, the error could
be analyzed for plain error. The Appellate Court held that jury deliberations must be
private and unfettered. Requiring the jury to review the videotape in the courtroom
16
without being able to talk or re-watch or rewind the video impeded deliberations. The
presence of the parties was inherently inhibiting. Because the error had a potential
chilling effect on jury deliberations, rendering the trial an unreliable means of
determining guilt or innocence, it was structural error and reversible as second-prong
plain error.
The court expressed strong disagreement with the Fourth District’s opinion in
People v. Lewis, 2019 IL App (4th) 150637-B, which held that the parties must be
present when jurors review an exhibit in the courtroom. The court also found that
two decisions similar to Lewis, People v. Rouse, 2014 IL App (1st) 121462 and
People v. Johnson, 2015 IL App (3d) 130610, were wrongly decided.
(Defendant was represented by Assistant Defender Santiago Durango,
Ottawa.)
§32-6(a)
People v. Jaimes, 2019 IL App (1st) 142736 (6/6/19)
Defendant was charged with first degree murder, including an allegation that
he personally discharged a firearm, as well as aggravated discharge of a firearm.
During deliberations the jury asked whether it could find defendant guilty of murder
but not guilty of aggravated discharge and also not find the personal-discharge
firearm enhancement. The jury also asked the court to “define what is intended as an
‘act’ in first degree murder.” The court responded to both questions that the jury had
received the evidence and instructions and should continue deliberating.
The trial court’s response was not an abuse of discretion. Defendant wanted
the court to respond that he could not be found guilty of murder if the State did not
prove he was the shooter because the State had not asserted an accountability theory.
The Appellate Court concluded, however, that the jury’s questions did not necessarily
refer to accountability; the jury could also have been wondering about giving leniency
to defendant. By directing the jury back to the original instructions, the court did not
inject an accountability theory into the case. And, there was no legal obligation to
respond in the negative because personal discharge of a firearm is not an element of
first degree murder, even where the victim died of a gunshot wound. The original jury
instructions provided an accurate statement of the law, and it was proper to direct
the jury to refer back to them.
(Defendant was represented by Assistant Defender Daniel Mallon, Chicago.)
17
§32-8(j)
People v. Strickland, 2019 IL App (1st) 161098 (6/28/19)
Trial court did not abuse its discretion in refusing accomplice witness
instruction, IPI 3.17, with regard to defendant’s girlfriend and the man defendant
originally had asked to commit the murder in question. Defendant’s girlfriend did not
actively participate in the murder or agree to assist defendant. While she did drive
defendant away from the scene, there was no evidence that she actually knew what
defendant had done and she did not directly share in the proceeds of the crime.
Likewise, the man defendant solicited did not participate in the offense. While the
man initially agreed to participate, he testified that he thought defendant was joking.
Even if the court did err in denying the accomplice witness instruction, any
error was harmless. The jury was given IPI 1.02, the general witness credibility
instruction, and the Court concluded that IPI 1.02 “negated any effect that the failure
to issue IPI 3.17 may have had.”
(Defendant was represented by Assistant Defender David Harris, Chicago.)
JUVENILE PROCEEDINGS
§33-6(g)(5)
People v. Hoover, 2019 IL App (2d) 170070 (6/12/19)
The trial court properly denied leave to file a successive post-conviction
petition raising a proportionate penalties challenge to defendant’s natural life
sentence for first degree murder committed when he was 22 years old. Following
People v. LaPointe, 2018 IL App (2d) 160903, the Appellate Court found that
defendant could not establish cause because he could have raised the claim in a prior
post-conviction petition. The claim was not dependent on Miller and its progeny
because youth has always been a pertinent factor in sentencing. Defendant also could
not show prejudice because a claim that the court failed to consider youth at
sentencing is not a claim of constitutional deprivation under the proportionate
penalties clause. A proportionate penalties claim requires that the sentence be wholly
disproportionate to the offense, and on the facts here such a claim would fail on its
merits.
(Defendant was represented by Assistant Defender Jay Wiegman, Ottawa.)
18
PROSECUTOR
§40-1
People v. Taylor, 2019 IL App (3d) 160708 (6/18/19)
When evaluating a preserved claim of prosecutorial error in closing argument,
the reviewing court considers whether the argument was improper and whether
defendant was prejudiced. Whether an argument was improper is evaluated using an
abuse-of-discretion standard of review. But, the consideration of whether improper
argument was so egregious that it warrants a new trial is a legal question to which
de novo review is applied.
Here, the prosecutor argued in closing that “Defendant needs you to believe
[his] story. The State needs to prove this case beyond a reasonable doubt.” Whether
that argument was improper depended on the prosecutor’s emphasis and delivery,
particularly with regard to the word “needs.” Thus, the Appellate Court would defer
to the trial court’s first-person observations in overruling defense counsel’s objection
to that argument. Because the trial court’s decision was not arbitrary or
unreasonable, the Appellate Court found no abuse of discretion.
(Defendant was represented by former Assistant Defender Matthew Lemke,
Ottawa.)
REASONABLE DOUBT
§41-10
Rehaif v. United States, _____ U.S. _____ (No. 17-9560, 6/21/19)
Defendant came from the United Arab Emirates to the United States on a
student visa but was later dismissed from school and was informed at that time that
his “immigration status” would be terminated. Subsequently, he engaged in shooting
firearms at a gun range. That conduct led to defendant’s prosecution and conviction
under federal statutes making it illegal for felons and illegal aliens to possess
firearms [18 USC §922(g)] and providing for imprisonment up to 10 years for anyone
who “knowingly violates” section 922(g). 18 USC §924(a)(2).
The Supreme Court concluded that the “knowingly” requirement applies both
to defendant’s conduct and status; that is, the government must show that defendant
knew that he possessed a firearm and that he knew he was a person barred from
possessing a firearm. There is a longstanding presumption that Congress intends a
19
culpable mental state regarding each statutory element of an offense, especially
where the statute includes a general mental state provision as it does here. Because
section 924(a)(2) speaks in terms of “knowingly violat[ing]” section 922(g), and
because a violation of 922(g) requires both a conduct and a status element, knowingly
applies to both elements.
The Court rejected the State’s argument that ignorance of the law is no excuse,
a maxim which generally applies where a defendant claims he did not know his
conduct was illegal but not where an individual has a mistaken belief about
something which negates an element of the offense.
Because the jury was erroneously instructed that the government was not
required to prove that defendant knew he was illegally in the United States, the Court
reversed and remanded the matter for further proceedings.
SEARCH & SEIZURE
§§43-1(d)(2), 43-4(e), 43-5(a)(4)
People v. Pruitte, 2019 IL App (3d) 180366 (6/24/19)
Trial court’s decision quashing search warrant and suppressing items seized
was affirmed. Confidential source’s reliability was not established where there was
no evidence that the police had any experience with the source and surveillance was
not conducted to confirm the source’s information. The fact that the source appeared
personally before the judge was of little value where the judge specifically relied on
the written application in issuing the warrant. The source provided no additional
information during his appearance, affording the judge little opportunity to evaluate
his reliability. While the warrant application described the place to be searched and
the source’s observation of a single incident of criminal activity in that apartment,
probable cause was lacking in the absence of evidence of the source’s reliability. The
good faith exception did not apply because the warrant application provided only
generic information and was lacking any indicia of reliability.
The dissenting judge would have deferred to the issuing judge’s determination
that the warrant was supported by probable cause and the confidential source was
credible and reliable because he appeared in court, had experience with controlled
substances, and was providing information in an effort to work off his own legal
troubles.
20
(Co-defendant Dionnie Neal was represented by Assistant Defender Andrew
Boyd, Ottawa.)
§§43-1(d)(2), 43-2(c)(4)(b)
People v. Strickland, 2019 IL App (1st) 161098 (6/28/19)
Warrantless acquisition of defendant’s cell site location information (CSLI)
violated the Fourth Amendment as established in Carpenter v. United States, 138
S. Ct. 2206 (2018). Even though Carpenter was decided nearly five years after the
CSLI was obtained here, the Court rejected the State’s argument that the good-faith
exception to the exclusionary rule should apply. Prior to Carpenter there were no
Illinois statutes or decisions and no Seventh Circuit decisions to support the
warrantless acquisition of CSLI, and therefore no basis to support a claim of good
faith. However, the error was harmless beyond a reasonable doubt where the
evidence against defendant was overwhelming and the CSLI evidence was largely
insignificant to the case.
(Defendant was represented by Assistant Defender David Harris, Chicago.)
§§43-2(d)(6)(a), 43-6(c)
People v. Musgrave, 2019 IL App (4th) 170106 (6/10/19)
Defendant’s consent to search was not tainted by the duration of the traffic
stop. While the officer who initiated the stop was completing paperwork related to
the stop, another officer arrived and defendant consented to be searched by the second
officer. The first officer continued “diligently working on matters related to the traffic
stop.” The stop was not prolonged where tasks tied to the traffic infraction were not
complete at the time of the consent to search, and the search was conducted within
the time reasonably required to complete the mission of the initial traffic stop.
(Defendant was represented by Assistant Defender Maria Harrigan, Chicago.)
§43-2(d)(7)
Mitchell v. Wisconsin, ____ U.S. ____ (No. 18-6210, 6/27/19)
A four-justice plurality held that as a general rule, the exigent circumstances
exception to the Fourth Amendment’s warrant requirement will almost always allow
a warrantless blood test of an unconscious motorist who cannot be given a breath test.
21
Here, a portable breath test at the scene indicated defendant’s BAC was three times
the legal limit. He was transported to the police station for a more sophisticated
breath test but was too lethargic to perform the test on arrival. Defendant was then
transported to the hospital and was unconscious by the time he got there. An officer
requested that the hospital draw blood, and testing revealed that defendant’s BAC
was 0.222%.
The exigent circumstances exception applies where there is a “compelling need
for official action and no time to secure a warrant.” With regard to drunk driving,
compelling circumstances include that highway safety is an important public
interest, BAC limits help to advance that interest, enforcement of BAC limits requires
testing which will be admissible in court, such testing must be prompt because alcohol
naturally metabolizes in the human body, and blood testing is essential where breath
testing is not an available option. As to whether there is enough time to secure a
warrant, it is not enough that BAC evidence naturally dissipates; there must also be
some other factor creating a “pressing health, safety, or law enforcement need” that
would take priority over a warrant application. Where a drunk driving suspect is
unconscious, thereby necessitating urgent medical care, both of these conditions are
met.
While the Supreme Court upheld the validity of warrantless blood testing
where exigent circumstances are shown, it remanded defendant’s case to provide him
the opportunity to show that a blood draw would not have been conducted if the officer
hadn’t requested it and that the police acted unreasonably in concluding that
applying for a warrant would have interfered with more pressing duties.
Concurring in the judgment, Justice Thomas noted that he would adopt a per
se rule that dissipation of alcohol in the blood stream, alone, satisfies the exigent
circumstances exception where there is probable cause to believe an individual was
driving under the influence.
In dissent, Justice Sotomayor, joined by Justices Ginsburg and Kagan, opined
that police must get a warrant where there is time to do so. Because the State
conceded below that the police had time to get a warrant and did not, there was no
exigency and the results of the blood test should have been suppressed. Justice
Gorsuch dissented because the Court decided the case on a ground which had not
been the basis for the lower court’s ruling or for the Court’s granting of certiorari.
22
§43-5(a)(1)
People v. McGregory, 2019 IL App (1st) 173101 (6/25/19)
Based on an eight-month delay between the State’s seizure of defendant’s
computer and the State’s obtaining a warrant to search that computer, the trial court
suppressed information obtained from the search. The State appealed, and the
Appellate Court affirmed.
While it was undisputed that the initial seizure of defendant’s computer was
valid, a seizure can become unreasonable based on its duration. To determine
whether a delay is reasonable, courts balance the nature of the Fourth Amendment
intrusion against the importance of the government interest justifying the intrusion.
Here, the eight-month delay was inordinately long. Defendant had exercised
his possessory interest in the computer by requesting that the police not seize it
during their execution of a warrant seeking evidence of drug and weapons offenses.
While the seizure was based on probable cause, the State failed to show the necessary
urgency in obtaining a warrant to search the computer. Although multiple agencies
were involved in investigating defendant, portions of the delay cannot be ignored
simply because they were attributable to a different agency than the one who
ultimately obtained the warrant to search the computer.
§43-6(c)
People v. Cassino, 2019 IL App (1st) 181510 (6/7/19)
The trial court properly suppressed drugs found during the inventory search
of a vehicle following a traffic stop. The search came about when, after the trooper
pulled defendant over for speeding, he contacted the rental car company who owned
the car and determined that defendant’s name was not on the rental agreement. The
trooper complied with the company’s request to impound the car, and at that time
conducted the inventory search that revealed the drugs.
The Appellate Court affirmed the suppression of the drugs. The search
occurred following an improper seizure absent reasonable suspicion. The stopping of
the vehicle for speeding allowed the officer to seize the vehicle long enough to write a
ticket and attend to any safety concerns. Rodriguez v. United States, 575 U.S. ___,
135 S. Ct. 1609 (2015). Here, the trooper improperly prolonged the stop when he took
the time to call the rental car company, an inquiry not related to the speeding ticket
or to road safety
23
SENTENCING
§44-1(b)(3)
United States v. Haymond, ____ U.S. ____, 2019 WL 2605552 (2019)
Under federal law governing supervised release (“SR”), a violation can be found
by the judge upon a preponderance of evidence, and a typical violation results in the
defendant’s return to prison for a period of time no greater than the original term of
SR. However, if a judge finds by a preponderance of the evidence that a defendant on
SR committed one of several enumerated offenses, including the possession of child
pornography, the judge must impose an additional prison term of at least five years
and up to life without regard to the length of the prison term authorized for the
defendant’s initial conviction.
According to four justices, this statutory scheme violated the Fifth and Sixth
Amendments because, as in Apprendi, it authorized a judge to increase a sentence
beyond the statutory maximum without requiring a jury finding of proof beyond a
reasonable doubt. And as in Alleyne, it authorized a higher minimum based solely
on a judicial finding of facts by a preponderance of the evidence. A fifth justice, Justice
Breyer, generally agreed, viewing the provision as a new criminal proceeding to which
the jury right attaches rather than a typical SR revocation proceeding. But Justice
Breyer would not apply Apprendi principles to SR revocation in other contexts –
only in those cases where the proceeding is more like a new criminal proceeding
rather than a straightforward revocation.
Although the dissent suggested this ruling could effectively end the SR system
by requiring many more juries than the system can handle, the plurality pointed out
that a new sentence following a revocation hearing will only violate the defendant’s
due process and jury trial rights in small number of cases where the original sentence
is at or near the maximum (and if Justice Breyer’s concurrence is considered the
narrowest, official holding, only in a subset of those cases where the proceeding more
closely resembles a new criminal proceeding rather than a revocation proceeding.)
The Court remanded to determine whether the appropriate remedy is to strike
the whole provision as unenforceable, or, as the government argued, to keep the
provision in tact while adding a jury right.
§44-1(c)(5)
People v. Hoover, 2019 IL App (2d) 170070 (6/12/19)
24
The trial court properly denied leave to file a successive post-conviction
petition raising a proportionate penalties challenge to defendant’s natural life
sentence for first degree murder committed when he was 22 years old. Following
People v. LaPointe, 2018 IL App (2d) 160903, the Appellate Court found that
defendant could not establish cause because he could have raised the claim in a prior
post-conviction petition. The claim was not dependent on Miller and its progeny
because youth has always been a pertinent factor in sentencing. Defendant also could
not show prejudice because a claim that the court failed to consider youth at
sentencing is not a claim of constitutional deprivation under the proportionate
penalties clause. A proportionate penalties claim requires that the sentence be wholly
disproportionate to the offense, and on the facts here such a claim would fail on its
merits.
(Defendant was represented by Assistant Defender Jay Wiegman, Ottawa.)
§44-4(f)
People v. Musgrave, 2019 IL App (4th) 170106 (6/10/19)
Defendant’s 16-year sentence, after rejecting a 13-year plea offer for a greater
felony, was not the result of the court’s imposing a “trial tax.” It was not a large
increase over the offer, and nothing on the record suggested the increase was
punishment for rejecting the plea. Likewise, the State did not act improperly by
requesting 20 years at the sentencing hearing even though it had offered 13 years
during plea negotiations. As in civil settlement negotiations, during plea negotiations
both parties are trying to get the best deal possible given their views of the case.
(Defendant was represented by Assistant Defender Maria Harrigan, Chicago.)
§§44-4(k), 44-5, 44-7(a)
People v. Hibbler, 2019 IL App (4th) 160897
It is not a double enhancement to consider the threat of harm as aggravating
evidence in sentencing defendant for armed robbery and resisting arrest. The State
argued the degree of threat of harm based on the specific facts of the case, and
defendant’s conduct was more than the minimum required to establish the offenses.
Where defendant did not object to information in the PSI regarding his
misconduct while in pretrial custody, the court could properly consider that
information at sentencing. Where defendant had the opportunity to challenge the
25
accuracy of the information in the PSI, a court may rely on all information in an
unobjected-to PSI to the extent it is relevant and reliable.
The restitution order was deficient where the court failed to indicate the date
by which defendant was to pay and whether defendant was to pay a lump sum or
installments as required by 730 ILCS 5/5-5-6(f). The matter was remanded for the
limited purpose of complying with the statute.
(Defendant was represented by Assistant Defender Salome Kiwara-Wilson,
Springfield.)
§§44-5, 44-9(c)(3)
People v. Maas, 2019 IL App (2d) 160766 (6/5/19)
Consecutive sentences for two Class 1 offenses, PSMV and DUI, based on the
same infliction of severe bodily injury, were permissible. The Appellate Court rejected
defendant’s “double enhancement” argument. A double enhancement occurs where
the same element is used as both proof of the underlying offense, and to trigger an
enhanced sentencing range. A consecutive sentence is not an enhancement, but
rather a manner of serving multiple sentences.
§§44-10(e), 44-13
People v. Miller, 2019 IL App (1st) 161687 (6/27/19)
Where defendant’s case had been remanded under Arna for imposition of
mandatory 15-year firearm enhancement, but then Castleberry was decided after
the Appellate Court’s mandate issued but prior to resentencing, Castleberry applied
to preclude resentencing. The law-of-the-case doctrine did not obligate the Appellate
Court to maintain its prior decision ordering resentencing because the prior appeal
did not involve the impact of Castleberry since Castleberry had not yet been
decided. And, while trial courts are bound to follow the mandate from the Appellate
Court, here, the impact of Castleberry presented a new question which the trial
court could have, and should have, considered.
(Defendant was represented by Assistant Defender Jessica Ware, Chicago.)
§44-16(c)
People v. Holliday, 2019 IL App (3d) 160315 (6/20/19)
26
Where defendant’s sentence was vacated on appeal and the matter remanded
for resentencing, under Section 4 of the Statute on Statutes he was entitled to elect
to be sentenced under a more lenient law that had taken effect since the date of his
original sentencing. Here, defendant made such an election on appeal, and the
Appellate Court resentenced him to the minimum penalty available, a $100 fine.
(Defendant was represented by former Assistant Defender Matthew Lemke,
Ottawa.)
§44-17
People v. Washington, 2019 IL App (1st) 172372 (6/10/19)
Defendant, who was sentenced to consecutive terms of imprisonment for
second degree murder (Class 1) and aggravated battery with a firearm (Class X) was
entitled to receive enhanced credit against the Class 1 sentence. Specifically, under
section 3-6-3 of the Code of Corrections, defendant could receive 1.5 days of credit for
time in pretrial custody spent participating in qualifying educational or vocational
programs.
While section 3-6-3 specifically precludes such credit for an individual
“convicted of...a Class X felony,” the Court concluded that this language was
ambiguous. Nothing in the legislative history suggested an intent to deprive program
credits to an individual in this situation. And, under the rule of lenity, the statute
had to be construed in favor of awarding the enhanced credit to defendant against his
Class 1 sentence.
In reaching this conclusion, the Court rejected the application of People v.
Duke, 305 Ill. App. 3d 169 (4th Dist. 1999) (holding that individuals serving
consecutive sentences for both Class X and non-Class X felonies are ineligible for
IDOC programming credit during the entire sentence). Duke’s holding was based on
language in 730 ILCS 5/5-8-4 stating that consecutive sentences of imprisonment are
treated as a single term. Here, the Appellate Court held that such language does not
preclude awarding credit at different rates against the consecutive sentences that
make up that single term.
27
STATUTES
§47-1(c)(1)
Gamble v. United States, 139 S. Ct. 1960 (2019)
While analyzing the Double Jeopardy Clause, the Supreme Court rejected
defendant’s assertion that the framers intended to bar successive State and federal
prosecutions for the same conduct. Defendant pointed out that the framers considered
and rejected a constitutional amendment that would have permitted the federal
government from re-prosecuting a defendant initially tried in state court. The court
rejected this type of inference as a tool of statutory construction. “The private intent
behind a drafter’s rejection of one version of a text is shoddy evidence of the public
meaning of an altogether different text.” But see Cook v. Gralike, 531 U. S. 510, 521
(2001) and INS v. Cardoza-Fonseca, 480 U. S. 421, 442– 443 (1987) (a “compelling”
principle of statutory interpretation is “the proposition that Congress does not intend
sub silentio to enact statutory language that it has earlier discarded in favor of other
language.”)
§47-2(c)
People v. Williams, 2019 IL App (3d) 160412 (6/25/19)
Although the new guilty plea admonishments contained in Section 113-4(c) of
the Code of Criminal Procedure are procedural, and therefore retroactive, the
Appellate Court refused to remand for new admonishments. Following People v.
Hunter, 2017 IL 121306, the court held that retroactive rules apply only to ongoing
proceedings, and here, there were no ongoing proceedings in the trial court at the
time of the amendment, as defendant had already been admonished and pled guilty.
When there are no new proceedings to which retroactive new rules can be applied,
remand simply for the sake of compliance is unnecessary.
(Defendant was represented by Assistant Defender Matthew Lemke, Ottawa.)
TRAFFIC OFFENSES
§49-2(b)
People v. Castino, 2019 IL App (2d) 170298 (6/14/19)
Circumstantial evidence may be used to prove the presence of a substance in
defendant’s blood, breath, or urine for purposes of establishing a DUI charge for
driving with any amount of an unlawful substance in one’s system under 625 ILCS
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5/11-501(a)(4). Where defendant had fresh track marks on his arms, exhibited
physical signs of drug use, and admitted recent use of heroin, the court could
reasonably infer that he had heroin in his blood, breath, or urine. The inference was
further supported by his impaired driving and the recovery of heroin and other drug
paraphernalia from defendant and his passenger. Defendant’s refusal to submit a
blood or urine sample did not prevent a finding of guilt beyond a reasonable doubt.
And, the fact that the arresting officer was not a drug recognition expert did not
prevent the officer from testifying to his observations where he was experienced with
the signs of drug use.
(Defendant was represented by Assistant Defender Bryan Lesser, Elgin.)
§49-2(c)
People v. Maas, 2019 IL App (2d) 160766 (6/5/19)
Defendant’s BAC and toxicology test results, conducted as part of routine
emergency room care, were admissible at his trial for aggravated DUI, pursuant to
625 ILCS 5/11-501.4. Section 11-501.4 creates a business record exception to the
hearsay rule which authorizes the admission of lab results in DUI prosecutions
where: (1) the tests were ordered in the regular course of providing emergency
medical treatment and not at the request of law enforcement authorities, and (2) the
analysis was performed by the laboratory routinely used by the hospital. The
Appellate Court rejected the defendant’s argument that the results were inadmissible
under section 11-501.2. That provision, requiring proof the testing procedures
complied with certain state police guidelines, applies only when the testing is done at
the behest of the State or police.
§49-2(c)
Mitchell v. Wisconsin, ____ U.S. ____ (No. 18-6210, 6/27/19)
A four-justice plurality held that as a general rule, the exigent circumstances
exception to the Fourth Amendment’s warrant requirement will almost always allow
a warrantless blood test of an unconscious motorist who cannot be given a breath test.
Here, a portable breath test at the scene indicated defendant’s BAC was three times
the legal limit. He was transported to the police station for a more sophisticated
breath test but was too lethargic to perform the test on arrival. Defendant was then
transported to the hospital and was unconscious by the time he got there. An officer
requested that the hospital draw blood, and testing revealed that defendant’s BAC
was 0.222%.
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The exigent circumstances exception applies where there is a “compelling need
for official action and no time to secure a warrant.” With regard to drunk driving,
compelling circumstances include that highway safety is an important public
interest, BAC limits help to advance that interest, enforcement of BAC limits requires
testing which will be admissible in court, such testing must be prompt because alcohol
naturally metabolizes in the human body, and blood testing is essential where breath
testing is not an available option. As to whether there is enough time to secure a
warrant, it is not enough that BAC evidence naturally dissipates; there must also be
some other factor creating a “pressing health, safety, or law enforcement need” that
would take priority over a warrant application. Where a drunk driving suspect is
unconscious, thereby necessitating urgent medical care, both of these conditions are
met.
While the Supreme Court upheld the validity of warrantless blood testing
where exigent circumstances are shown, it remanded defendant’s case to provide him
the opportunity to show that a blood draw would not have been conducted if the officer
hadn’t requested it and that the police acted unreasonably in concluding that
applying for a warrant would have interfered with more pressing duties.
Concurring in the judgment, Justice Thomas noted that he would adopt a per
se rule that dissipation of alcohol in the blood stream, alone, satisfies the exigent
circumstances exception where there is probable cause to believe an individual was
driving under the influence.
In dissent, Justice Sotomayor, joined by Justices Ginsburg and Kagan, opined
that police must get a warrant where there is time to do so. Because the State
conceded below that the police had time to get a warrant and did not, there was no
exigency and the results of the blood test should have been suppressed. Justice
Gorsuch dissented because the Court decided the case on a ground which had not
been the basis for the lower court’s ruling or for the Court’s granting of certiorari.
§49-5
People v. Maas, 2019 IL App (2d) 160766 (6/5/19)
Defendant led police on a high-speed chase before the officers shot him in the
face and he crashed into oncoming traffic, injuring other drivers. He fled the car and
hid, but was eventually arrested and transported to the hospital for treatment. The
jury found him guilty of, inter alia, failure to report a car accident involving personal
injury under 625 ILCS 5/11-401(b).
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The Appellate Court affirmed, rejecting defendant’s argument that his injury
and hospitalization extended the statute’s 30-minute reporting time. The evidence
showed that more than 30 minutes passed between the accident and the arrest, and,
viewed in the light most favorable to the State, the evidence did not support the
defendant’s argument that his gunshot wound to the face prevented him from
reporting. Defendant’s failure to report within those 30 minutes constituted a
violation of section 11-401(b).
WAIVER - PLAIN ERROR - HARMLESS ERROR
§§54-1(b)(7)(a), 54-2(e)(7)(a)
People v. Hollahan, 2019 IL App (3d) 150556 (6/20/19)
During deliberations after a DUI trial, the jury asked to see the videotape of
defendant’s field sobriety test. Due to equipment limitations, the video was shown in
the courtroom with the judge, parties, alternates, and jurors all present. The trial
court admonished everyone not to speak during the video, and did not offer to allow
the jury to re-watch or rewind the video.
The Appellate Court reversed. Defense counsel’s acquiescence in the procedure
was not an affirmative waiver but rather simple forfeiture. As such, the error could
be analyzed for plain error. The Appellate Court held that jury deliberations must be
private and unfettered. Requiring the jury to review the videotape in the courtroom
without being able to talk or re-watch or rewind the video impeded deliberations. The
presence of the parties was inherently inhibiting. Because the error had a potential
chilling effect on jury deliberations, rendering the trial an unreliable means of
determining guilt or innocence, it was structural error and reversible as second-prong
plain error.
The court expressed strong disagreement with the Fourth District’s opinion in
People v. Lewis, 2019 IL App (4th) 150637-B, which held that the parties must be
present when jurors review an exhibit in the courtroom. The court also found that
two decisions similar to Lewis, People v. Rouse, 2014 IL App (1st) 121462 and
People v. Johnson, 2015 IL App (3d) 130610, were wrongly decided.
(Defendant was represented by Assistant Defender Santiago Durango,
Ottawa.)
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WEAPONS
§55-1(a)
Rehaif v. United States, ____ U.S. ____ (No. 17-9560, 6/21/19)
Defendant came from the United Arab Emirates to the United States on a
student visa but was later dismissed from school and was informed at that time that
his “immigration status” would be terminated. Subsequently, he engaged in shooting
firearms at a gun range. That conduct led to defendant’s prosecution and conviction
under federal statutes making it illegal for felons and illegal aliens to possess
firearms [18 USC §922(g)] and providing for imprisonment up to 10 years for anyone
who “knowingly violates” section 922(g). 18 USC §924(a)(2).
The Supreme Court concluded that the “knowingly” requirement applies both
to defendant’s conduct and status; that is, the government must show that defendant
knew that he possessed a firearm and that he knew he was a person barred from
possessing a firearm. There is a longstanding presumption that Congress intends a
culpable mental state regarding each statutory element of an offense, especially
where the statute includes a general mental state provision as it does here. Because
section 924(a)(2) speaks in terms of “knowingly violat[ing]” section 922(g), and
because a violation of 922(g) requires both a conduct and a status element, knowingly
applies to both elements.
The Court rejected the State’s argument that ignorance of the law is no excuse,
a maxim which generally applies where a defendant claims he did not know his
conduct was illegal but not where an individual has a mistaken belief about
something which negates an element of the offense.
Because the jury was erroneously instructed that the government was not
required to prove that defendant knew he was illegally in the United States, the Court
reversed and remanded the matter for further proceedings.
§55-4
People v. Beck, 2019 IL App (1st) 161626 (6/18/19)
The Appellate Court reversed defendant’s conviction for possession of a firearm by a
street gang member, but upheld convictions for aggravated UUW.
To prove defendant was a street gang member, the State must provide evidence
consistent with the statute’s definition of “street gang.” Thus, the State must prove
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defendant is a member of a group that engaged in a pattern of criminal activity as
defined by the statute, including proving two or more offenses within a prescribed
date range, defined as “gang-related.” Here, the State offered testimony about the
defendant’s purported gang, the Black P. Stones, generally describing their
involvement in violence and narcotics. But the testimony did not describe two specific
offenses as required by statute. Thus, the State failed to show that defendant was a
member of a street gang. Although the officer in this case did testify that the Black
P. Stones were a street gang, this opinion could not satisfy the statutory requirement
because he was not qualified as an expert.
(Defendant was represented by Assistant Defender Jessica Ware, Chicago.)
§55-4
People v. Starks, 2019 IL App (2d) 160871 (6/28/19)
Collapsible, metal baton, which was weighted at one end and could be opened
with the flick of the wrist, constituted a “bludgeon” within the plain meaning of 720
ILCS 5/24-1(a)(1). The metal baton was not the same as a nightstick or “billy,” which
are covered under section 5/24-1(a)(2) and require the State to prove the additional
element that defendant intended to use the nightstick or billy against another.
(Defendant was represented by Assistant Defender R. Christopher White,
Elgin.)
WITNESSES
§56-6(b)(1)(b)
People v. Riggs, 2019 IL App (2d) 160991 (6/19/19)
Following conviction on multiple counts of predatory criminal sexual assault,
defendant contended that he was deprived of his constitutional right to confront the
child victim because, although the court admitted her hearsay statements accusing
him of numerous offenses, she testified on direct examination about only three such
incidents. Thus, defendant argued, she was not available to “defend or explain” her
out-of-court statements about the other offenses.
The Appellate Court affirmed. As long as the witness takes the stand and
willingly answers questions, defendant is afforded his right to confront the witness.
There is no rule that the witness’ direct examination must mirror the hearsay
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statements, or include every allegation contained in them. The court distinguished
People v. Learn, 396 Ill. App. 3d 891 (2009), because in that case the victim could
not offer any testimony about any of the alleged offenses.
(Defendant was represented by Assistant Defender Darren Miller, Elgin.)