February2012MonthlyCriminalLawDigest

              Office of the State Appellate Defender
Illinois Criminal Law Digest
February 2012
MICHAEL J. PELLETIER P.O. Box 5240
State Appellate Defender Springfield, IL 62705-5240
Phone: 217/782-7203
DAVID P. BERGSCHNEIDER http://www.state.il.us/defender/
PATRICIA UNSINN
Deputy State Appellate Defenders, Editors
©Copyright 2012 by the Office of the State Appellate Defender. All rights reserved.
TABLE OF CONTENTS
APPEAL.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
COLLATERAL REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
CONFESSIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
DISORDERLY, ESCAPE, RESISTING AND OBSTRUCTING OFFENSES. . . . 56
DOUBLE JEOPARDY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
EVIDENCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
GUILTY PLEAS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
REASONABLE DOUBT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
ROBBERY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SEARCH & SEIZURE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SENTENCING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SEX OFFENSES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SPEEDY TRIAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
TRIAL PROCEDURES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
UNLAWFUL USE OF WEAPONS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
WAIVER – PLAIN ERROR – HARMLESS ERROR. . . . . . . . . . . . . . . . . . . . . 73
WITNESSES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
TABLE OF AUTHORITIES
U.S.S.Ct.
Howes v. Fields. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Illinois Supreme Court
People v. Baskerville. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
People v. Guerrero. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49, 63
People v. Torres. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
People v. Washington.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
People v. Wrice.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 54, 73
Illinois Appellate Court
People v. Brown. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
People v. Cordero. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
People v. Edwards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
People v. Harding. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71, 73
People v. Harris. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
People v. Henderson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
People v. Herron. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
People v. Hunter. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
People v. Hurry. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65, 70
People v. King. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
People v. Moore (No. 1-10-0857).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55, 61
People v. Moore (No. 4-10-0939).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
People v. Spencer.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
People v. Starks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
People v. Wilborn. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
People v. Wilson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 58, 74
Miscellaneous
Caffey v. Atchison. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
APPEAL
§§2-7(a), 2-7(b)
People v. Wilson, 2012 IL App (1st) 092910 (No. 1-09-2910, 2/9/12)
The court concluded that the “abuse of discretion” standard of review
applied to the trial court’s denial of a motion in limine to admit evidence of bias
and motive to falsify. The evidence consisted of an Independent Police Review
Authority investigation of the arresting officers’ conduct during the events
leading to the charges against the defendant.
The Appellate Court viewed the trial court’s ruling as merely denying the
motion in limine concerning the IPRA investigation, but allowing the defense to
cross-examine on all relevant manners, including interest or bias based on
evidence other than the IPRA records. Rulings on motions in limine are generally
left to the trial court’s discretion, as are matters involving the admission of
evidence. Furthermore, the trial court has discretion to limit the scope of cross-examination.
(Defendant was represented by Assistant Defender Scott Main, Chicago.)
COLLATERAL REMEDIES
§§9-1(a), 9-5(a)
Caffey v. Atchison, ___ F.Supp. ___ (U.S. Dist.Ct., Northen Dist., No. 09-C-5458,
2/3/12)
1. A federal court may not consider a federal habeas claim if the state court
declined to address the federal issues on their merits and decided the case on
a state law ground that is independent of the federal question and adequate to
support the judgment. The state law ground may be either substantive or
procedural. The adequacy of the state law ground is a question of federal law; a
state ground is “adequate” only if state courts apply the state rule in a consistent
and principled way.
Furthermore, the state rule must represent a firmly established and
regularly followed practice. In other words, a state rule that is invoked
infrequently, unexpectedly, or freakishly is not an adequate ground to support
the judgement.
2. 725 ILCS 5/122-2 provides that the petitioner must attach to a post-conviction
petition affidavits, records, or other evidence supporting the
allegations, or shall explain why such are not attached. The Appellate Court
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applied §122-2 in declining to consider witness statements relevant to Brady v.
Maryland claims which the defendant raised in his amended post-conviction
petition; the court held that the statements could not be considered because
they were unverified.
The federal district court held that under the circumstances of this case,
§122-2 did not constitute an independent and adequate state ground to preclude
federal review of defendant’s habeas claim. The court noted that the statements
were submitted at the second stage of post-conviction proceedings - Illinois
precedent indicates that §122-2 applies only at first-stage proceedings, when the
trial court determines whether the petition is frivolous and patently without
merit. Thus, the Appellate Court’s ruling requiring defendant to submit sworn
evidence at second-stage proceedings enforced a rule which by its terms did not
apply to defendant’s case.
Second, even if §122-2 applied to second-stage proceedings, it was not
adequate to support the judgement where the Appellate Court applied the rule
in an unpredictable way which was inconsistent with the statute’s language and
prior case law. In numerous cases Illinois courts have considered unsworn
evidence, including statements by witnesses, in post-conviction proceedings.
Furthermore, the case law relied upon by the Appellate Court holds only that
affidavits must be notarized, not that all evidence in a post-conviction proceeding
must be notarized. The court concluded that applying such case law to bar non-affidavit
evidence was an unexpected application of the rule and was inadequate
to support the judgement.
The court acknowledged that a state rule is not rendered inadequate to
support the judgement because state courts may exercise discretion and not
apply the rule in a particular case. Here, however, the Appellate Court did not
exercise discretion, but applied the rule to a situation to which on its face it was
inapplicable.
The court granted an evidentiary hearing on defendant’s Brady v.
Maryland claims.
(Defendant was represented by Supervisor Patricia Mysza, Chicago.)
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§9-1(d)
People v. Wilborn, 2011 IL App (1st) 092802 (No. 1-09-2802, 9/23/11, modified
on denial of rehearing, 2/24/12)
The Post-Conviction Hearing Act provides that a post-conviction petition
“shall have attached thereto affidavits, records, or other evidence supporting its
allegations or shall state why the same are not attached.” 725 ILCS 5/122-2. An
affidavit is a declaration, on oath, in writing, sworn to before some person who
has authority under the law to administer oaths.
A document purporting to be an affidavit that was signed but not notarized
was attached to defendant’s post-conviction petition. The appellate court agreed
with the decision in People v. Henderson, 2011 IL App (1st) 090923, that the
absence of notarization did not qualify as the basis for a first-stage dismissal of
the petition, where the defendant was imprisoned and there was no guarantee
that he would be afforded the services of a notary. The court declined to follow
the contrary decision in People v. Carr, 407 Ill.App.3d 513, 944 N.E.2d 859 (2d
Dist. 2011).
The purposes of the Post-Conviction Hearing Act and 725 ILCS 5/122-2.1
would be hindered by preventing petitions that are neither frivolous nor patently
without merit from proceeding to the second stage due to the technicality of lack
of notarization. At the second stage, the State will have the opportunity to object
to the lack of notarization, and appointed counsel can assist in arranging for
notarization.
(Defendant was represented by Assistant Defender David Harris, Chicago.)
§9-1(e)(1)
People v. King, 2012 IL App (2d) 100801 (No. 2-10-0801, 2/7/12)
Under 725 ILCS 5/122-2.1(a)(2), the trial court may summarily dismiss a
post-conviction petition as frivolous and patently without merit if it enters a
written order within 90 days of the filing of the petition. In People v. Porter, 122
Ill.2d 64, 521 N.E.2d 1158 (1988), the Supreme Court held that a summary
dismissal order need not be in writing. Supreme Court Rule 272 provides that
if the trial court requires submission of a written order, the judgment becomes
final only when the signed order is filed.
The Appellate Court concluded that where the trial court orally dismisses
the petition at the summary dismissal stage, but states that a written order will
be filed, the written order must be filed within 90 days of the filing of the
petition. Otherwise, the petition must be advanced to second stage proceedings.
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The court stated that its holding does not conflict with Porter’s holding
that a dismissal order need not be in writing:
Nothing in Porter prohibits a trial court from orally
dismissing a petition and then filing a written order
consistent with that oral dismissal. However, when the
trial court indicates that a written order is going to be
entered, the written order must be filed within 90 days
after the defendant filed the petition.
The court noted that a contrary ruling would pose a practical problem in
that an ex parte oral dismissal would start the 30-day period for filing a notice of
appeal, but the defendant would have no way of knowing that the time for filing
a notice of appeal had commenced until the trial court entered the written order
and a copy was mailed to the defendant. “Moreover, a defendant’s time to appeal
from a ‘back dated’ written order could have expired by the time the order is filed
with the clerk and a copy sent to the defendant.”
Where the trial court orally dismissed the post-conviction petition within
90 days after the petition was filed and stated that a written order would be filed,
but the written order was filed 109 days after the petition was filed, the court
failed to act within the 90-day period in which summary dismissal is authorized
by §122-2.1(a)(2). The trial court’s order was reversed and the cause remanded
for second stage proceedings.
(Defendant was represented by Assistant Defender Geoffrey Burkhart,
Chicago.)
§§9-1(i)(1), 9-1(i)(2)
People v. Edwards, 2012 IL App (1st ) 091651 (No. 1-09-1651, 2/17/12)
1. The Post-Conviction Hearing Act limits a defendant to the filing of a
single post-conviction petition except where a possible due process violation
compels the filing of a successive petition. 725 ILCS 5/122-1(f). Defendant must
obtain leave of court to file a successive petition and must demonstrate cause
and prejudice before the court can grant leave to file a successive petition.
A defendant demonstrates “cause” by identifying an objective factor
external to the defense that impeded his efforts to raise his claim in the earlier
proceeding. “Prejudice” exists where the defendant can show that the claimed
constitutional error so infected his trial that the resulting conviction violated due
process. Successive petitions are treated differently from initial petitions and the
48
cause-and-prejudice standard is more exacting than the gist-of-a-constitutional-claim
standard applied at the first stage to initial post-conviction petitions.
2. Defendant made a substantial showing of cause for his failure to raise
his constitutional claim in his initial petition. At the time defendant filed his
initial petition, the statute of limitations then in effect required the filing of the
post-conviction petition within three years of the date of defendant’s conviction.
725 ILCS 5/122-1(c) (West 2000). As defendant was forced by this limitations
period to file his initial petition while his direct appeal was pending, he could not
raise a claim of ineffective assistance of appellate counsel in that petition.
3. Defendant failed to make a sufficient showing of prejudice, even applying
the gist standard. Defendant’s claim of ineffective assistance of appellate counsel
was founded on the direct appeal record, but he failed to provide any support
from the record for that claim. The court refused to second-guess counsel’s
decision to pursue certain issues on appeal when nothing more than defendant’s
bare contentions were offered to support his argument that meritorious issues
were left undeveloped or omitted.
(Defendant was represented by Assistant Defender Lauren Bauser,
Chicago.)
§9-1(i)(2)
People v. Guerrero, 2012 IL 112020 (No. 112020, 2/17/12)
1. A successive post-conviction petition may be filed only with leave of the
court. (725 ILCS 5/122-1(f)). Leave to file may be granted only if the petitioner
demonstrates “cause” for failing to bring the claim in the initial post-conviction
petition and “prejudice” resulting from that failure. “Cause” requires a showing
of an objective factor that impeded the petitioner’s ability to raise a specific claim
during the initial post-conviction proceeding. “Prejudice” requires a showing that
the claim which was not raised in the first proceeding so infected the trial that
the conviction or sentence violated due process. Both “cause” and “prejudice”
must be shown for the trial court to grant leave to file a subsequent petition.
2. The Supreme Court concluded that defendant who entered a guilty plea
for an agreed sentence, and who claimed that the trial court had failed to
admonish him of the mandatory supervised release term, could not show “cause”
for failing to raise the issue in his initial post-conviction proceeding. Although
defendant claimed that he first learned of the MSR term several years after the
initial post-conviction proceeding was complete, he testified that he knew he
would be required to serve a parole term when he was transferred to adult DOC.
Because the record showed that defendant was in an adult institution during the
49
initial post-conviction proceeding, the record rebutted his claim that he could not
have raised the trial court’s failure to admonish at that time.
In addition, the trial court’s finding that there was not “cause” for failing
to raise the issue in the initial proceeding was subject to the manifest weight of
the evidence standard of review. The trial court’s finding was not against the
manifest weight of the evidence; the failure of a post-conviction petitioner (or his
counsel) to recognize the factual or legal basis of a claim does not constitute
“cause.”
Finally, although the case law at the time of the initial proceeding was
against defendant on the failure to admonish issue, the claim itself was not new
and had been raised unsuccessfully for several years. A lack of precedent for a
particular position does not constitute “cause” for failing to raise the issue; even
where the law is unfavorable, an issue must be raised to preserve it for review.
(Defendant was represented by Assistant Defender Kerry Bryson, Ottawa.)
§9-1(i)(2)
People v. Wrice, 2012 IL 111860 (No. 111860, 2/2/12)
1. Under People v. Wilson, 116 Ill.2d 29, 506 N.E.2d 571 (1987), use of a
coerced confession as substantive evidence of guilt cannot be harmless error.
Here, the court modified the rule to hold that use of a physically coerced
confession as substantive evidence of guilt cannot be harmless error.
2. The court rejected the State’s argument that the Wilson rule will allow
petitioners to easily establish “prejudice” for purposes of the “cause” and
“prejudice” test, and will therefore invite frivolous claims of coerced confessions
in successive post-conviction petitions. First, a post-conviction petitioner must
show both “cause” and “prejudice” in order to obtain leave to file a subsequent
post-conviction petition. Here, the State conceded that the defendant had
established “cause” for failing to raise the issue in his earlier petitions.
Second, meeting the “cause” and “prejudice” test does not entitle the
petitioner to relief. Instead, the petition merely proceeds to adjudication, with the
petitioner required to carry the burden to establish the truth of his allegations.
Because defendant alleged that newly discovered evidence showed that his
confession was the product of police torture, and the State conceded that
defendant had shown “cause” for failing to raise the issue in prior post-conviction
50
proceedings, the trial court’s order denying leave to file a subsequent post-conviction
petition was reversed and the cause remanded for the appointment
of post-conviction counsel and second stage proceedings.
(Defendant was represented by Assistant Defender Heidi Lambros,
Chicago.)
§9-2(a)
People v. Moore, 2012 IL App (4th) 100939 (No. 4-10-0939, 2/17/12)
1. 735 ILCS 5/2-1401 creates a procedure by which a defendant may seek
to vacate a final judgment where an error of fact, if known at the time of trial,
would have prevented the judgment from being entered. To obtain relief under
§2-1401, the defendant must show by a preponderance of the evidence that: (1)
a defense or claim would have precluded entry of the judgment in the original
action, and (2) the defendant acted diligently both in discovering the defense or
claim and in presenting the petition. A criminal conviction obtained through the
knowing use of false testimony violates due process; a claim that a conviction
was based on the knowing use of false testimony may be raised by a §2-1401
petition.
To obtain relief on such a claim, the defendant need not establish that the
prosecution knowingly used false testimony. However, he must do more than
merely allege that State's witnesses committed perjury; the petition must
present clear, factual allegations of perjury which, if known at the time of the
trial, would have prevented a conviction from being entered. Furthermore, to
obtain a new trial under §2-1401, newly discovered evidence must be more than
merely cumulative to the trial evidence, must be material to the issues, and must
be so conclusive that it would probably change the result of a new trial.
2. Defendant failed to carry his burden to show by a preponderance of the
evidence that his convictions for criminal drug conspiracy and controlled
substance offenses were obtained by the State’s knowing use of perjury. A police
officer testified at defendant’s trial that the money used to make a controlled
drug buy was found on defendant’s person at the time of the arrest, but testified
at the co-defendant’s subsequent juvenile hearing that the buy money was in the
possession of the co-defendant at the time of the arrest. However, at the second
hearing the officer stated that he had made a mistake in his original report and
that the money had in fact been found on the co-defendant.
A person commits perjury when, under oath or affirmation in a matter
where an oath or affirmation is required, he makes a false statement which is
51
material to the issue and which he does not believe to be true. (See 720 ILCS
5/32-2(a)). Mere inconsistencies in testimony do not equate to perjury.
Furthermore, due process is violated only if the State knowingly used
perjured testimony to obtain a conviction. Here, there was no evidence that the
State’s use of the incorrect testimony was knowing.
3. Finally, the new testimony would not satisfy the standard to obtain a
new trial in §2-1401 proceedings. In view of the overwhelming evidence of guilt,
the fact that buy money given to defendant had been found on the person of the
codefendant would not have changed the result of the trial, and would in fact
have solidified the evidence of a conspiracy.
The trial court’s denial of defendant’s §2-1401 petition was affirmed.
(Defendant was represented by Assistant Appellate Defender Allen
Andrews, Springfield.)
CONFESSIONS
§10-3(c)
Howes v. Fields, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (2012) (No. 10-680,
2/21/12)
1. Under Miranda v. Arizona, a suspect who is subjected to custodial
interrogation must be informed before the interrogation that he has the right to
remain silent, that any statement he makes may be used as evidence, and that
he has the right to retained or appointed counsel. Under existing precedent, a
person is in “custody” for Miranda purposes where, under all of the
circumstances, a reasonable person would have felt that he or she was not at
liberty to terminate the interrogation and leave. Relevant factors in determining
whether a suspect is in “custody” include the location and duration of the
questioning, “statements made during the interview,” the presence or absence
of physical restraints, and whether the suspect is released at the end of the
questioning.
2. The court rejected the rule adopted by the Sixth Circuit Court of Appeals
– that removing a prisoner from the general prison population and questioning
him about criminal conduct which occurred outside the prison is necessarily
custodial for Miranda purposes. The court stressed that whether questioning of
a prisoner constitutes “custody” is determined under all of the circumstances,
not merely by the fact that the prisoner is incarcerated on an unrelated
conviction and is questioned in private. A prisoner is not in “custody” for
52
Miranda purposes if he is free to terminate the interrogation and return to
general population.
The court stressed that the relevant question in applying Miranda in
contexts other than station house questioning is whether the environment
creates an inherently coercive atmosphere similar to that which led to the rule
in Miranda. The court noted three reasons that the mere fact of imprisonment
does not create an inherently coercive atmosphere: (1) questioning an inmate
does not usually create the type of shock which often accompanies an arrest; (2)
a person who is already serving a sentence is unlikely to speak to officers out of
a desire to obtain a prompt release; and (3) a prisoner likely knows that law
enforcement officers who question him on unrelated charges lack authority to
affect the duration of his current sentence. The court also noted that
questioning a prisoner in private does not have the same coercive effect as
questioning a suspect outside the presence of supportive friends or family;
“[f]ellow inmates are by no means necessarily friends.”
3. Considering all of the circumstances here, the defendant was not in
“custody” for Miranda purposes when he was questioned concerning alleged
criminal activity which occurred before he was incarcerated. The court
acknowledged that several factors favored a finding that defendant was in
custody. First, defendant did not invite or consent to the questioning, and was
not told that he was free to decline to speak with the deputies. Second, the
interview lasted between five and seven hours and continued past the hour
when defendant usually went to bed. Third, the deputies who questioned the
respondent were armed. Fourth, one of the deputies used a sharp tone and
profanity.
The court concluded, however, that the above factors were offset by several
others - defendant was told several times that he could go back to his cell
whenever he wanted, he was not threatened or physically restrained, the
interview occurred in a well-lighted, averaged-sized room where the door was left
open some of the time, and defendant was offered food and water. The court
concluded that under these circumstances, a reasonable person would have felt
free to terminate the interview and ask to be returned to his cell.
The court acknowledged that defendant could not return to his cell on his
own, but would have to await an escort. This fact did not make the interrogation
custodial, however, because prisoners are not free to roam about the prison for
any reason and would have no reasonable expectation of doing so.
Because the defendant was not in custody for Miranda purposes, the
officers who questioned him did not err by failing to give Miranda warnings
before interrogating him about alleged criminal behavior which occurred before
his incarceration.
53
§10-5(a)
People v. Wrice, 2012 IL 111860 (No. 111860, 2/2/12)
1. Under People v. Wilson, 116 Ill.2d 29, 506 N.E.2d 571 (1987), use of a
coerced confession as substantive evidence of guilt cannot be harmless error.
Here, the court noted that Wilson was based on United States Supreme Court
precedent, and that in Arizona v. Fulminante, 499 U.S. 279 (1991), a plurality
of the court concluded that admission of a coerced confession was subject to the
harmless error rule.
In view of the factual situation and divided opinion in Fulminante, the
court declined to abandon Wilson entirely. Instead, the court modified the rule
to hold that use of a physically coerced confession as substantive evidence of
guilt cannot be harmless error. The court found that, as reflected by Justice
White’s concurring opinion in Fulminante, use of a physically coerced confession
is inconsistent with the thesis that the American justice system is accusatory
rather than inquisitorial. The court also noted that it was not required to decide
whether the Wilson rule could stand as a matter of State constitutional law,
because defendant claimed only that his rights had been violated under the
federal constitution.
2. The court rejected the State’s argument that in People v. Mahaffey, 194
Ill.2d 154, 794 N.E.2d 251 (2000), it held that use of a coerced confession is
subject to the harmless error rule. First, whether harmless error review applied
was not before the court in Mahaffey. Second, Mahaffey is overruled to the
extent that it can be read as implicitly adopting harmless error review for the
admission of coerced confessions.
3. The court rejected the State’s argument that defendant was barred from
arguing that his confession should have been suppressed as the product of
police violence where he has consistently maintained that he did not confess.
Under Illinois law, a defendant may argue, as an alternative, that his confession
should be suppressed, even if he also asserts that he did not confess at all.
Evidence of coercion is not rendered irrelevant merely because the defendant
denies confessing.
Because defendant alleged that newly discovered evidence showed that his
confession was the product of police torture, and the State conceded that
defendant had shown “cause” for failing to raise the issue in prior post-conviction
proceedings, the trial court’s order denying leave to file a subsequent post-
54
conviction petition was reversed and the cause remanded for the appointment
of post-conviction counsel and second stage proceedings.
(Defendant was represented by Assistant Defender Heidi Lambros,
Chicago.)
COUNSEL
§13-4(b)(4)
People v. Moore, 2012 IL App (1st) 100857 (No. 1-10-0857, 2/1/12)
To demonstrate ineffective assistance of counsel, defendant must show
that counsel’s representation of defendant fell below an objective standard of
reasonableness, and that counsel’s alleged deficient performance prejudiced the
defense. Defense counsel is not required to make losing motions or objections
in order to provide effective legal assistance. A judicial error is necessary to a
showing that counsel’s performance prejudiced the defense.
1. Counsel’s performance was deficient where she failed to object to
allowing the jury the opportunity to view a complete recording of the police
interrogation of defendant during its deliberations. Had an objection been made,
it would have been successful. The recording included references to other
offenses relevant only to defendant’s propensity to commit crimes. No sound trial
strategy explained counsel’s failure to object.
2. The court rejected the argument that it was unlikely that the jury
viewed the recording because it deliberated for only 5½ hours and the recording
was over 12 hours in length. The prejudicial material appeared in the first hours
of the recording, while most of the recording depicted defendant alone in a room
sleeping. Both parties emphasized to the jury in argument that it would be able
to watch the entire recording, and the court told the jury that it could watch as
much of the recording as it wanted.
3. There is a reasonable probability that the result of the trial would have
been different had the recording not been admitted. The State’s evidence proved
only that defendant had a relationship with the murder victim, received the final
telephone call placed from her telephone, had sexual intercourse with her within
three days of her death, and lied to the police about these facts. It could not be
determined whether or not a sexual assault had occurred. There was no
55
evidence directly linking defendant to a murder weapon or placing him on the
scene. While the evidence was sufficient to convict, it was not overwhelming.
(Defendant was represented by Assistant Defender Jonathan Yeasting,
Chicago.)
DISORDERLY, ESCAPE, RESISTING AND OBSTRUCTING OFFENSES
§16-2
People v. Baskerville, 2012 IL 111056 (No. 111056, 2/17/12)
1. 720 ILCS 5/31-1(a) creates the offense of resisting or obstructing a
peace officer where a person knowingly resists or obstructs the performance by
a peace officer of any authorized act within the officer’s official capacity. The
court concluded that a physical act is not a required element of the offense of
obstruction of an officer. Instead, §31-1(a) focuses on conduct which interposes
an obstacle that impedes or hinders an officer in the performance of an
authorized act. While a physical act may impede or hinder an officer in
performing an authorized act, conduct which falls short of a physical act, such
as furnishing false information or refusing to obey a lawful order to leave, may
also constitute obstruction if it impedes an authorized act.
The court also noted that §31-1(a) prohibits both “obstructing” and
“resisting” an officer. Because “resisting” implies some sort of physical exertion,
the term “obstructing” would be superfluous if limited to the same meaning.
The court acknowledged that in People v. Raby, 40 Ill.2d 392, 240 N.E.2d
595 (1968), the Supreme Court found that obstructing an officer requires a
physical act. The court limited Raby, however, noting that the conduct in
question was going limp when officers attempted an arrest during a protest, and
that First Amendment concerns were presented because the phrase “resists or
obstructs” could be defined so broadly as to place citizens in jeopardy of arrest
for disagreeing with an officer verbally or for expressing political speech.
Here, the alleged conduct was furnishing an officer with false information,
an activity that is not protected by the First Amendment. Thus, this case does
not present the First Amendment concerns which informed Raby.
2. The court concluded, however, that the evidence was insufficient to
prove beyond a reasonable doubt that defendant obstructed an officer. To
establish the offense of obstructing an officer, the State was required to show
that: (1) defendant knowingly obstructed an officer, (2) the officer was performing
an authorized act in his official capacity, and (3) defendant knew the officer was
56
a peace officer. Here, the officer pursued defendant’s wife for driving with a
suspended license, and attempted to effect a traffic stop before defendant’s wife
walked in the house. When defendant came out of the house, he was asked to
get his wife. He responded that his wife was not home. He then went back in the
house, but returned a few minutes later and said he did not know what was
going on but that the officer was free to search the house.
The officer was performing an authorized act in attempting to effect a
traffic stop, and defendant knew that he was dealing with a police officer.
However, the court found that defendant’s statement concerning his wife’s
whereabouts did not impede the officer in light of the defendant’s invitation to
the officer to search the house:
Even if [the officer] had probable cause to arrest
[defendant’s wife], and [the wife] thwarted his ability to
arrest her in a public place, defendant consented to a
search and [the officer] chose not to enter the home.
Therefore, there was no evidence that defendant’s
statement hampered or impeded the officer’s progress
in any way.
The court noted the trial judge’s finding that the wife could have been
hiding in the home, making a search futile. Defendant was charged only with
providing false information, however, and not with concealing his wife.
Furthermore, there was absolutely no evidence that defendant did anything to
conceal his wife’s whereabouts from the officer.
The conviction for obstructing a peace officer was reversed.
(Defendant was represented by Assistant Defender Jay Wiegman, Ottawa.)
DOUBLE JEOPARDY
§§17-1, 17-6
People v. Cordero, 2012 IL App (2d) 101113 (No. 2-10-1113, 2/10/12)
The double jeopardy clause prohibits a second prosecution for the same
offense after an acquittal, a second prosecution for the same offense after a
conviction, and multiple prosecutions for the same offense. However, double
jeopardy protection is triggered only if there has been an event which terminates
the original jeopardy from the first proceeding. The original jeopardy is not
terminated where the jury fails to reach a verdict at the first trial, or the
defendant is convicted but the trial court grants a new trial due to trial error:
57
[W[here the trial court sets aside a conviction, based on
trial error, double jeopardy does not bar retrying the
defendant – regardless of whether the evidence at the
first trial was legally sufficient. Whatever the strength
of the evidence at the original trial, the new trial cannot
put the defendant in jeopardy for a second time – for
the simple reason that he is still in jeopardy for the first
time.
Where the defendant was convicted of aggravated sexual assault, but the
trial court granted defendant’s post-trial motion and ordered a new trial, the
original jeopardy was not terminated. Therefore, a new trial would not subject
the defendant to double jeopardy even if the evidence at the first trial was legally
insufficient. Therefore, the trial court properly denied defendant’s motion to
dismiss the charge on the ground that the evidence presented at the first trial
was insufficient to satisfy the reasonable doubt standard.
EVIDENCE
§19-2(a)
People v. Wilson, 2012 IL App (1st) 092910 (No. 1-09-2910, 2/9/12)
1. The constitutional right to confront witnesses includes the right to
inquire into a witness’s bias, interest, or motive to testify falsely. On cross-examination,
the defense is entitled to wide latitude to attempt to establish bias
or motive. To be admissible, evidence used to establish bias or motive must give
rise to an inference that the witness has something to lose or gain by testifying.
Such evidence must not be remote or uncertain.
2. At defendant’s trial for aggravated unlawful use of a weapon and
unlawful use of a weapon, the trial court erred by precluding the defendant from
introducing records of an Independent Police Review Authority investigation of
the arresting officers’ conduct during the events leading to the charges against
the defendant. The defense theory was that after a police officer shot the
unarmed defendant and planted a gun near him, officers mishandled the gun to
account for the fact that it did not contain defendant’s fingerprints. In his motion
in limine, defendant presented evidence that the IPRA investigation concerned
whether the first officer improperly fired at defendant and whether two other
officers improperly handled the gun found next to the defendant.
The Appellate Court concluded that the IPRA investigation gave rise to an
inference that the witnesses had something to lose or gain by testifying, because
the investigation involved the same incident for which the defendant was charged
58
and the outcome of both the investigation and the trial depended in large part
on the testifying officers’ portrayal of the events. “For obvious reasons, if an
officer subjected to an IPRA investigation provides a statement to an investigator,
the same officer could be motivated to testify consistently at a trial regarding the
same incident to maintain his or her credibility.”
The court concluded that evidence of the IPRA investigation was not
remote or uncertain and directly affected the defendant’s case. Therefore, the
evidence should have been admitted on the issue of the motive and bias of the
arresting officers.
3. The court concluded that the “abuse of discretion” standard of review
applied to the above question. The court viewed the trial court’s ruling as
denying the motion in limine concerning the IPRA investigation, but allowing the
defense to cross-examine on all relevant manners including interest or bias
based on evidence other than the IPRA records. Rulings on motions in limine are
generally left to the trial court’s discretion, as are matters involving the
admission of evidence. Furthermore, the trial court has discretion to limit the
scope of cross-examination.
Defendant’s convictions were reversed and the cause remanded for
resentencing.
(Defendant was represented by Assistant Defender Scott Main, Chicago.)
§§19-10(b), 19-18
People v. Torres, 2012 IL 111302 (No. 111302, 2/2/12)
1. Evidentiary and constitutional requirements for the admission of former
testimony are the unavailability of the witness at trial and an adequate
opportunity to effectively cross-examine the witness at the prior hearing. The
proponent of the evidence bears the burden of proving the necessary elements
for admissibility.
Unavailability is a narrow concept, subject to a rigorous standard. A
witness is not unavailable unless the prosecutorial authorities have made a good-faith
effort to obtain his presence at trial. The law does not require the doing of
a futile act. But if there is a possibility, albeit remote, that affirmative measures
might produce the witness, the obligation of good faith may demand their
effectuation. The lengths to which the prosecution must go to produce a witness
is a question of reasonableness.
59
In considering whether there was a prior adequate opportunity to cross-examine
the witness, a court should look to whether the motive and focus of the
examination conducted at the prior hearing was the same or similar to that which
would have been conducted at trial. The motive-and-focus test is not the sole
guide to resolution of the question of the adequacy of the prior opportunity to
cross-examine, however.
Two other factors are also relevant. Defendant must be afforded the
freedom to fully question the witness regarding critical areas of observation and
recall, to test him for any bias and prejudice, and to otherwise probe for matters
affecting his credibility. What counsel knows while conducting the cross-examination
may also impact counsel’s ability and opportunity to effectively
cross-examine the witness at the prior hearing. Counsel’s opportunity to cross-examine
may not have been adequate if the hearing was conducted without the
benefit of discovery.
2. The State sought to admit at defendant’s trial the preliminary hearing
testimony of an occurrence witness. The State alleged that the witness was
unavailable because he had been deported to Mexico more than 20 years prior.
Simply establishing the fact of deportation may not be enough to establish the
witness’s unavailability. But since the parties agreed that the witness had been
deported, and the defense conceded that the requirement of unavailability had
been met, the court concluded that the defense forfeited any challenge to the
unavailability of the declarant.
Defendant had not been afforded an adequate opportunity to cross-examine
the witness at the preliminary hearing, however, and therefore the
former testimony was inadmissible. At that hearing, counsel was not privy to
inconsistent statements that the witness had given to the police that might have
been used to confront the witness and induce further changes in the witness’s
version of the events. Counsel also was unaware of the status of the witness as
an alien, or the circumstances of his departure from the United States, all of
which might have been relevant to a motive of the witness to curry favor with the
State.
The preliminary hearing court also placed restrictions—overt and
covert—on defense counsel’s cross-examination. Remarks that the court made
at the start of the hearing evinced that the court was not enthusiastic about
proceeding immediately with the hearing. Two objections that the court
sustained when defense counsel attempted to probe for possible bias and
prejudice of the witness also appeared to send “the message to counsel to wrap
it up, and counsel did just that. We think it clear from the record that counsel
would have done more with the witness at the preliminary hearing if he had felt
free to do so.”
60
The error in the admission of the preliminary hearing testimony of the
witness was not harmless as his testimony was the only trial evidence placing
defendant inside the bar where the shooting occurred at or near the time of the
shooting.
§§19-10(e), 19-24(a), 19-24(b)(1)
People v. Moore, 2012 IL App (1st) 100857 (No. 1-10-0857, 2/1/12)
1. Evidence of crimes for which a defendant is not on trial is inadmissible
if relevant merely to establish the defendant’s disposition or propensity to
commit crime. Evidence of other crimes is objectionable not because it has little
probative value, but because it has too much. Such evidence overpersuades the
jury, which might convict the defendant only because it feels that defendant is
a bad person who deserves punishment. The erroneous admission of evidence
of other crimes carries a high risk of prejudice and ordinarily calls for reversal.
Given these concerns, when evidence of unrelated offenses is contained
in an otherwise competent statement or confession, it must be deleted when the
statement or confession is read to the jury, unless to do so would seriously
impair its evidentiary value.
2. The completeness doctrine provides that where one party introduces
part of an utterance or a writing the opposing party may introduce the remainder
or so much thereof as is required to place that part originally offered in proper
context so that a correct and true meaning is conveyed to the jury. The right to
introduce an entire conversation or writing is not absolute, but depends on the
relevancy of the additional parts that the party seeks to introduce. Otherwise
inadmissible evidence may be admitted only where a defendant opens the door
to such material and its exclusion would mislead the jury.
3. A videotape of a police interrogation of defendant contained references
to: (1) a prior incident of domestic violence in which defendant punched a woman
and broke her jaw after finding her with another man; defendant apparently pled
guilty to this charge; (2) defendant’s prior history of robberies; and (3)
defendant’s prior history as a drug dealer and membership in a street gang. This
other-crime evidence was irrelevant and unfairly prejudicial. Had defense counsel
objected to this evidence, it would have been excluded.
(Defendant was represented by Assistant Defender Jonathan Yeasting,
Chicago.)
61
§19-18
People v. Starks, 2012 IL App (2d) 110273 (No. 2-11-0273, 2/14/12)
The trial court did not abuse its discretion by excluding the prior
testimony of a deceased complainant. The Appellate Court held that the prior
testimony did not meet the requirements of 725 ILCS 5/115-10.4, which creates
an exception to the hearsay rule for the admission of the certain prior
statements of a deceased witness if the statements were made under oath and
were “subject to cross-examination by the adverse party,” or Illinois Rule of
Evidence 804(b)(1), which provides that prior testimony may be admitted if the
opposing party “had an opportunity and similar motive to develop the testimony
by direct, cross, or redirect examination.”
Illinois precedent provides that in determining whether to admit the prior
testimony of a deceased witness under §115-10.4, the court must consider
materiality, probative value, trustworthiness, the interests of justice, and the
prior opportunity for cross-examination. Furthermore, under Rule of Evidence
804(b)(1), a prior opportunity to cross-examine permits the admission of prior
testimony if the motive and focus of the cross-examination at the initial
proceeding were the same or similar to that which guides cross-examination
during the subsequent proceedings.
At the original trial for aggravated criminal sexual assault, aggravated
battery, and unlawful restraint, the complainant testified that she had been
raped by the defendant. Serology testing on the complainant’s underwear and
vaginal swab disclosed the presence of semen, and the State’s expert testified
that defendant could not be excluded as the source. However, two witnesses
stated that the complainant had told them that defendant did not rape her; one
of the witnesses quoted the complainant as stating that she claimed to have
been sexually assaulted because defendant was “going to pay for beating her
up.”
Defendant was convicted and sentenced to terms totaling 60 years. During
post-conviction proceedings, new DNA testing excluded defendant as the source
of the semen. In addition, the new testing showed that despite the State expert’s
testimony at the original trial, the earlier testing excluded defendant as the
source of the semen. A new trial was ordered as a result of the post-conviction
proceedings.
At the new trial, the State moved to admit the prior testimony of the
complainant, who had died since the first trial. The trial court denied the motion.
1. The Appellate Court held that defendant did not have an adequate
opportunity and motive to cross-examine the complainant at the original trial. Not
only was defendant falsely informed that he could not be excluded as the source
of the semen, but due to the erroneous application of the rape shield statute he
62
was not permitted to ask the complainant whether she had sexual intercourse
with anyone else around the time of the alleged offense. The court concluded
that the inability to question the complainant about her prior sexual contacts and
the exculpatory scientific evidence “precluded defendant from exposing facts from
which the fact finder could have drawn inferences about complainant’s reliability
and credibility.”
2. The court rejected the State’s argument that if the jury found that
defendant did not have sexual intercourse with the complainant, the prior
testimony would be relevant to whether the defendant committed attempted
aggravated criminal sexual assault. The court found that the inability to cross-examine
the complainant about evidence concerning her credibility affected all
of the charges, not merely those relating to sexual intercourse.
The court found that the absence of an adequate opportunity and motive
to cross-examine the complainant precludes the admission of the prior testimony
under either §115-10.4 or Illinois Rule of Evidence 804(b)(1). The trial court’s
order barring the admission of the prior testimony was affirmed.
GUILTY PLEAS
§24-6(d)
People v. Guerrero, 2012 IL 112020 (No. 112020, 2/17/12)
Defendant pleaded guilty to first degree murder in return for a negotiated
50-year prison sentence. The trial court failed to advise defendant that he would
be required to serve three years of mandatory supervised release after the
imprisonment ended. Furthermore, the written judgment order did not include
any reference to mandatory supervised release. Defendant failed to raise the
admonishment issue in his first post-conviction petition, but 12 years later filed
for leave to file a successive post-conviction petition raising the issue.
Defendant claimed that he first learned that he would have to serve an
MSR period in 2005 or 2006, when he spoke to Ronald Whitfield, the defendant
in People v. Whitfield, 217 Ill.2d 177, 840 N.E.2d 658 (2005). In Whitfield, the
court found that a reduction of a negotiated prison term was justified where the
trial court failed to admonish a guilty plea defendant of the MSR requirement. In
People v. Morris, 236 Ill.2d 345, 925 N.E.2d 1069 (2010), however, the court
held that the Whitfield rule applies prospectively only to convictions which were
not yet finalized on December 20, 2005, the day on which Whitfield was
announced.
63
At a hearing on the motion for leave to file a successive petition, defendant
testified that he knew that he would have to serve parole after his prison term
was finished. Defendant testified that he first learned about parole when he was
transferred from juvenile to adult DOC, which he estimated was one or two years
after he filed his initial post-conviction petition. The trial court denied leave to file
a subsequent post-conviction petition.
1. A successive post-conviction petition may be filed only with leave of the
court. (725 ILCS 5/122-1(f)). Leave to file may be granted only if the petitioner
demonstrates “cause” for failing to bring the claim in the initial post-conviction
petition and “prejudice” resulting from that failure.
2. The Supreme Court concluded that defendant could not show “cause”
for failing to raise the trial court’s failure to admonish in his initial post-conviction
petition. The court noted that according to defendant’s testimony, he
knew about parole when he arrived in adult DOC. Although defendant claimed
that this was after his first post-conviction proceeding, the record showed that
he was an inmate at an adult institution when he filed a motion to extend the
time for filing his first post-conviction petition.
Furthermore, the trial court’s finding that there was not “cause” for failing
to raise the issue in the initial proceeding was subject to the “manifest weight
of the evidence” standard of review. The trial court’s finding was not against the
manifest weight of the evidence; the failure of a post-conviction petitioner (or his
counsel) to recognize the factual or legal basis of a claim does not constitute
“cause.”
Second, although Whitfield granted relief on the failure to admonish issue,
the claim was not a new one. Instead, similar claims had been raised
unsuccessfully for some 30 years before Whitfield was decided. A lack of
precedent for a particular position does not constitute “cause” for failing to raise
the issue; even where the law is unfavorable, an issue must be raised to
preserve it for review.
3. The court also noted that even had defendant shown “cause” and
“prejudice” and been allowed to file a subsequent petition, a reduction in
sentence would have been inappropriate where the defendant claimed that his
plea was not entered knowingly and voluntarily. A reduction in sentence was
ordered in Whitfield because, once the MSR term was added to the imposed
sentence, the defendant did not receive the benefit of his bargain. Where a plea
was not entered voluntarily, however, the appropriate remedy is to allow the
defendant to withdraw his plea rather than to reduce the sentence.
(Defendant was represented by Assistant Defender Kerry Bryson, Ottawa.)
64
REASONABLE DOUBT
§42-1
People v. Harris, 2012 IL App (1st) 100077 (No. 1-10-0077, 2/28/12)
1. Proof of an offense requires evidence of two distinct propositions beyond
a reasonable doubt: (1) that a crime occurred (i.e., the corpus delicti); and (2) that
the crime was committed by the person charged. Proof of the corpus delicti may
not rest solely on a defendant’s statement or confession. If a defendant’s
statement is part of the corpus delicti, the State must also present independent
evidence which corroborates the statement. Such evidence itself need not prove
the crime beyond a reasonable doubt, but must tend to confirm the elements of
the defendant’s statement.
2. The court concluded that there was insufficient evidence to corroborate
defendant’s statement concerning the corpus delicti of aggravated unlawful use
of a weapon. Defendant was charged with having a loaded, uncased firearm “on
or about his person” while on a public street. Defendant told police that after a
friend was struck by gunshots, defendant retrieved his weapon from his car and
returned fire. The only evidence to corroborate that statement was testimony by
a police officer that an anonymous eyewitness reported that he saw the
defendant run to his car, get a black object, and then return the black object to
the car after the shooting.
The Appellate Court concluded that an anonymous eyewitness’s hearsay
statement is insufficient to corroborate a defendant’s statement for the purposes
of proving corpus delicti. Although the hearsay statement was produced without
objection, “the probative effect of a statement given to police by an anonymous
witness is minimal without evidence corroborating the witness’s information.”
The court distinguished People v. Anderson, 42 Ill.App.3d 1040, 356
N.E.2d 1076 (1st Dist. 1976), where the corroborating evidence consisted of
hearsay concerning statements which the victim made in the defendant’s
presence at the time of the arrest. Here, the corroboration came from an
unnamed witness rather than a known victim, and the accusations were not
made in the defendant’s presence.
Defendant’s conviction for aggravated unlawful use of a weapon was
reversed.
(Defendant was represented by Assistant Defender Darrel Oman, Chicago.)
65
§42-1
People v. Hurry, 2012 IL App (3d) 100150 (No. 3-10-0150, 2/1/12)
Illinois law requires proof of two distinct propositions beyond a reasonable
doubt to convict: (1) that a crime occurred, i.e. the corpus delicti; and (2) that the
crime was committed by the person charged. While defendant’s confession may
be integral to proving the corpus delicti, proof of the corpus delicti may not rest
exclusively on the defendant’s extrajudicial statement.
The corpus delicti is not required to be proved beyond a reasonable doubt
by evidence independent of the statement. If there is evidence of corroborating
circumstances tending to prove the corpus delicti and corresponding with the
circumstances related in the statement, both the circumstances and the
statement may be considered in determining whether the corpus delicti is
sufficiently proved.
The independent corroborating evidence, however, must relate to the
specific events on which the prosecution is predicated. Where defendant
confesses to multiple offenses, the corroboration rule requires that there be
independent evidence tending to show that defendant committed each of the
offenses for which he was convicted.
1. Defendant was convicted of predatory criminal sexual assault for placing
his finger in the vagina of a child. Defendant admitted committing that act of
penetration. The child’s testimony that defendant touched her on the outside of
her vagina provided corroborating circumstances that tended to prove
defendant’s statement was accurate because it placed defendant’s fingers
directly on her vagina.
2. Other counts charged defendant with predatory criminal sexual assault
by placing his penis in the mouth of the child. Although defendant admitted
committing this act on multiple occasions, the child’s testimony established only
one instance of such conduct. Therefore, only one conviction based on that
conduct could stand.
3. The child did testify, however, that on two occasions defendant made
her touch his penis with her hand. Based on that evidence, the court reduced
two of defendant’s predatory criminal sexual assault convictions to aggravated
criminal sexual abuse. 720 ILCS 5/12-16.
(Defendant was represented by Assistant Defender Glenn Sroka, Ottawa.)
ROBBERY
66
§§43-1, 43-3
People v. Washington, 2012 IL 107993 (No. 107993, 2/17/12)
1. Prior to 2000, the Criminal Code provided that the offense of armed
robbery is committed while armed with a dangerous weapon. Effective January
1, 2000, the statute was amended to create substantively distinct offenses based
on whether the offender is armed with a dangerous weapon other than a firearm,
or with a firearm. The sentencing enhancements of the amended version were
held unconstitutional prior to the commission of the offenses in 2004 with which
defendant was charged. People v. Walden, 199 Ill.2d 392, 769 N.E.2d 928
(2002); People v. Moss, 206 Ill.2d 503, 795 N.E.2d 208 (2003). That holding was
overturned prior to defendant’s trial in 2006. People v. Sharpe, 216 Ill.2d 261,
839 N.E.2d 492 (2005).
Based on its belief that the pre-amended version of the statute had come
back into force with the decisions in Walden and Moss, the State charged
defendant with armed robbery under the pre-amended version of the statute
with having committed the offense while “armed with a dangerous weapon, to
wit: a firearm.” Defendant made no objection to the indictment.
The court found that there was no variance, fatal or otherwise, between
the proof at trial that defendant was armed with a gun and the charge that he
was armed with a dangerous weapon. The State charged that defendant
committed the offense with a dangerous weapon and was required to proved that
he committed the offense with a dangerous weapon. The jury was instructed that
it had to find that defendant was armed with a dangerous weapon to convict.
The State proved that defendant committed the offense with a dangerous
weapon—a gun.
2. The State charged defendant with the offense of armed robbery while
armed with a “dangerous weapon, to wit: a firearm.” It sustained its burden of
proving that defendant used a gun as a dangerous weapon during the
commission of the offense. A witness who had an unobstructed view of the
weapon defendant had in his possession testified that it was a gun and also
testified that defendant held the gun to his head. The jury could reasonably infer
from this evidence that the defendant possessed a real gun.
The court distinguished People v. Ross, 229 Ill.2d 255, 891 N.E.2d 865
(2008). There, the evidence at trial was that defendant was armed with a small
BB gun and there was no evidence of its weight or composition. As it could not
be inferred from this evidence that the BB gun could have been used as a
bludgeon, the evidence precluded a finding that the BB gun was a dangerous
weapon.
3. Kilbride, C.J., dissented and Theis, J., joined the dissent. Only the
sentencing enhancements of the amended statute were struck as
67
unconstitutional. The substantive provision of the amended statute defining the
elements of the offense remained intact. Defendant could not be prosecuted
under the pre-amended version of the statute. Defendant could be convicted only
of being armed with a dangerous weapon other than a firearm, or with a firearm.
Because the State limited its argument on appeal to the dangerous-weapon
prong of the statute, the issue was whether the State proved that defendant was
armed with a dangerous weapon other than a firearm. There was no evidence at
trial that defendant was armed with a non-firearm dangerous weapon.
(Defendant was represented by Assistant Defender Laura Weiler, Chicago.)
SEARCH & SEIZURE
§§44-1(a), 44-18
People v. Henderson, 2012 IL App (1st) 101494 (No. 1-10-1494, 2/15/12)
1. Under the Fourth Amendment and Illinois law, an individual is “seized”
where: (1) a reasonable person would believe that under the circumstances he
was not free to leave, (2) the person who is being “seized” actually submits to the
police. A “seizure” can occur only where the citizen submits to either physical
force or a show of authority by an officer.
2. Although police lacked a reasonable basis to make a traffic stop where
the anonymous tip which led to the stop was not sufficiently reliable to provide
a reasonable suspicion of criminal activity, no “seizure” occurred where the
defendant exited the car at the direction of the officers but ran rather than
submit to the officer’s authority. Under these circumstances, no “seizure”
occurred until the defendant was pursued and subdued by officers.
3. Because no “seizure” occurred until defendant was captured, the Fourth
Amendment was not implicated when police recovered a handgun which fell to
the ground as defendant was running. Thus, the handgun was not the fruit of
an illegal arrest and was not required to be suppressed although the police
lacked a reasonable suspicion to make the traffic stop in the first place.
(Defendant was represented by Assistant Defender Brian Koch, Chicago.)
SENTENCING
§45-1(b)(2)
68
People v. Brown, 2012 IL App (5th) 100452 (No. 5-10-0452, 2/29/12)
In People v. Hauschild, 226 Ill.2d 63, 871 N.E.2d 1 (2007), the court held
that the 15-year enhancement for armed robbery while armed with a firearm was
unconstitutionally disproportionate to the sentence for the offense of armed
violence predicated on robbery with a category I or II weapon, as the elements
of the offenses were identical but the penalty for armed robbery was more severe
than the penalty for armed violence.
Thereafter, the legislature amended the armed violence statute by Public
Act 95-688, effective October 23, 2007, to except from its application “any offense
that makes the possession or use of a dangerous weapon either an element of
the base offense, an aggravated of enhanced version of the offense, or a
mandatory sentencing factor that increases the sentencing range.” Public Act 95-
866 cured the proportionate-penalties violation by making it impossible to
generate an armed-violence conviction predicated on robbery, even though the
amendment did not alter the 15-year enhancement for armed robbery committed
with a firearm.
Because the armed robbery for which defendant was convicted was
committed on May 26, 2009, defendant could not rely on Hauschild to claim his
15-year sentencing enhancement was unconstitutional. The court rejected
defendant’s argument that the armed-robbery statute was void ab initio as an
unconstitutional law. Public Act 95-866 revived the sentencing scheme in the
armed-robbery statute by fixing the proportionate-penalties violation.
(Defendant was represented by Assistant Defender Ed Anderson, Mt.
Vernon.)
§45-1(b)(2)
People v. Herron, 2012 IL App (1st) 090663 (No. 1-09-0663, 2/14/12)
1. The proportionate penalties clause requires that penalties be
determined according to the seriousness of the offense and with the objective of
restoring the offender to useful citizenship. A sentence violates the proportionate
penalties clause if it is cruel, degrading, or so wholly disproportionate to the
offense as to shock the moral sense of the community, or if it is greater than the
sentence for an offense which consists of identical elements.
2. The State conceded that the 15-year sentence enhancement for
aggravated kidnaping while armed with a firearm (720 ILCS 5/10-2(a)(6)) violates
the proportionate penalties clause because aggravated kidnaping with the 15-
year enhancement carries a sentence of 21 to 45 years, while armed violence
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predicated on kidnaping, which consists of the same elements, carries a
sentence of 15 to 30 years. The parties disagreed on the appropriate remedy,
however. Defendant argued that the improper sentence should be vacated and
his concurrent sentences of five years for intimidation, nine years for home
invasion, nine years for armed robbery, and nine years for aggravated kidnaping
left intact. The State argued that because the trial court was unaware of the
invalidity of the 15-year enhancement and did not state that it would have
imposed a nine-year-sentence had it known that the 15-year-enhancement was
invalid, the cause should be remanded to allow the trial court to impose an
appropriate sentence.
The Appellate Court agreed with the State, stressing that trial court did
not indicate whether its sentence for the remaining charges had been affected
by its belief that defendant would serve an additional 15 years under §10-2(a)(6).
The cause was remanded for resentencing.
(Defendant was represented by Assistant Defender Ginger Odom, Chicago.)
SEX OFFENSES
§46-2(c)
People v. Hurry, 2012 IL App (3d) 100150 (No. 3-10-0150, 2/1/12)
Defendant was convicted of two counts of predatory criminal sexual assault
based on the act of placing his penis in the mouth of the child. Because the
child’s testimony was that defendant placed her hand on his penis, the court
reduced the convictions from predatory criminal sexual assault to aggravated
criminal sexual abuse. 720 ILCS 5/12-16.
(Defendant was represented by Assistant Defender Glenn Sroka, Ottawa.)
SPEEDY TRIAL
§47-1(b)
People v. Hunter, 2012 IL App (1st) 092681 (No. 1-09-2681, 2/24/12)
1. When an original charge and subsequently-added charges are subject
to compulsory joinder under 720 ILCS 5/3-3(b), the speedy-trial term applicable
to the original charge also applies to the subsequently-added charges. Any
delays occasioned by the defendant in the running of the speedy-trial term on
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the original charge are not attributable to the defendant on the subsequently-added
charges, because the additional charges were not before the court when
the continuances were obtained.
The compulsory-joinder rule applies where: (1) the offenses are known to
the proper prosecuting officer at the time that the prosecution is commenced; (2)
the offenses are within the jurisdiction of a single court; and (3) the offenses are
based on the same act.
2. Defendant was originally charged with possession of cannabis with
intent to deliver. As defendant was released on bond, that applicable speedy-trial
term was 160 days. 725 ILCS 5/103-4(b). After more than 160 days had elapsed,
the State added charges of unlawful use of a weapon by a felon and armed
habitual criminal.
The court rejected the State’s argument that the offenses were not subject
to compulsory joinder because they were not based on the same act. The
criminal act consisted of defendant constructively and simultaneously possessing
the cannabis and the handguns, which cannot be artificially divided into multiple
distinct and overt acts. It is immaterial that the cannabis charge and the gun
charges have different elements as a single criminal act may violate multiple
statutes.
Because the State filed the additional charges after more than 160 days
had elapsed from the date of defendant’s arrest, and none of the delay
occasioned by defendant on the cannabis charge could be attributed to
defendant on the weapons charges, the court affirmed the circuit court’s order
dismissing the weapons charges due to the statutory speedy-trial violation.
(Defendant was represented by Assistant Defender Amanda Ingram,
Chicago.)
TRIAL PROCEDURES
§52-3
People v. Harding, 2012 IL App (2d) 101011 (No. 2-10-1011, 2/21/12)
1. Shackling the defendant during trial tends to prejudice the jury against
the accused, restrict the defendant’s ability to assist counsel, and offend the
dignity of the judicial process. Thus, shackling is to be avoided unless there is
a manifest need for restraint. Among the factors to be considered in determining
whether there is such a manifest need are: (1) the seriousness of the offense;
(2) the defendant’s temperament and character; (3) the defendant’s age and
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physical characteristics; (4) the defendant’s past record; (5) any prior escapes or
attempted escapes; (6) any evidence of a present plan to escape; (7) any threats
by the defendant to harm others or create a disturbance; (8) any evidence of self-destructive
tendencies; (9) any risk of mob violence or attempted revenge by
others; (10) the possibility of rescue attempts by co-offenders who are still at
large; (11) the size and mood of the audience; (12) the layout and physical
security of the courtroom; and (13) the availability of alternative remedies. The
above principles have been codified in Illinois Supreme Court Rule 430, which
provides that restraints may be used only if specific evidence considered on a
case-by-case basis shows a manifest need to prevent escape or protect the
security of the court or the proceedings.
2. The trial judge erred by failing to place on the record specific reasons
for requiring the defendant to appear in prison attire and shackling defendant’s
legs and one hand. However, the plain error rule was inapplicable where defense
counsel invited the error by stating that defendant’s leg shackles could remain,
asking that the hand shackles be removed to allow defendant to participate in
trial by holding a pen, and accepting an arrangement by which only one of
defendant’s hands was unshackled. “By not asking for more, such as the
removal of all shackles and prison attire, and in light of the deficiencies in the
record [which did not show whether the hand which remained shackled was
physically attached to anything], we view counsel’s request as specifically limited
to a request to remove enough items so that defendant could meaningfully
participate in the trial.” Under the invited error doctrine, a party may not ask to
proceed in a certain manner and then contend on appeal that the course of
action to which he agreed was erroneous.
Defendant’s conviction for domestic battery was affirmed.
(Defendant was represented by Panel Attorney Carol Anfinson, Aurora.)
UNLAWFUL USE OF WEAPONS
§53-1
People v. Spencer, 2012 IL App (1st) 102094 (No. 1-10-2094, 2/6/12)
Reiterating recent precedent, the Appellate Court rejected the argument
that the unlawful use of a weapon by a felon statute (720 ILCS 5/24-1.1(a))
violates the Second Amendment. The court noted that U.S. Supreme Court
precedent provides that States do not act unconstitutionally by prohibiting the
possession of firearms by felons.
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The court also rejected the argument that 720 ILCS 5/24-1.1(a) is
unconstitutional because the prohibition against felons possessing weapons
applies even where the convictions were for nonviolent felonies. Defendant failed
to litigate the issue in the trial court; furthermore, the U.S. Supreme Court has
not limited the States’ ability to prohibit possession of firearms by felons to
persons with convictions for violent felonies.
WAIVER – PLAIN ERROR – HARMLESS ERROR
§§56-1(b)(7)(a), 56-1(b)(7)(b)
People v. Harding, 2012 IL App (2d) 101011 (No. 2-10-1011, 2/21/12)
1. Under the invited error doctrine, a party may not request to proceed in
a certain manner and then contend on appeal that the course of action to which
he agreed was erroneous. When the invited error doctrine applies, the plain error
doctrine is inapplicable.
2. Although the trial judge erred by failing to place on the record specific
reasons for requiring the defendant to appear in prison attire and shackling
defendant’s legs and one hand, defense counsel invited the error by stating that
defendant’s leg shackles could remain, asking that the hand shackles be
removed to allow defendant to participate in trial by holding a pen, and accepting
an arrangement by which only one of defendant’s hands was unshackled. “By
not asking for more, such as the removal of all shackles and prison attire, and
in light of the deficiencies in the record [which did not show whether the hand
which remained shackled was physically attached to anything], we view counsel’s
request as specifically limited to a request to remove enough items so that
defendant could meaningfully participate in the trial.”
Defendant’s conviction for domestic battery was affirmed.
(Defendant was represented by Panel Attorney Carol Anfinson, Aurora.)
§56-3(b)
People v. Wrice, 2012 IL 111860 (No. 111860, 2/2/12)
Under People v. Wilson, 116 Ill.2d 29, 506 N.E.2d 571 (1987), use of a
coerced confession as substantive evidence of guilt cannot be harmless error.
Here, the court noted that Wilson was based on United States Supreme Court
precedent, and that in Arizona v. Fulminante, 499 U.S. 279 (1991), a plurality
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of the court concluded that admission of a coerced confession was subject to the
harmless error rule.
In view of the factual situation and divided opinion in Fulminante, the
court declined to abandon Wilson entirely. Instead, the court modified the rule
to hold that use of a physically coerced confession as substantive evidence of
guilt cannot be harmless error. The court noted that it was not required to
decide whether the Wilson rule could stand as a matter of State constitutional
law, because defendant claimed only that his rights had been violated under the
federal constitution.
(Defendant was represented by Assistant Defender Heidi Lambros,
Chicago.)
§§56-3(c)(1)(b), 56-3(c)(2)(b)
People v. Wilson, 2012 IL App (1st) 092910 (No. 1-09-2910, 2/9/12)
The trial court’s erroneous denial of evidence to show bias and motive of
the State’s witnesses was not harmless beyond a reasonable doubt. The court
rejected the State’s argument that the jury was made aware of the evidence
through cross-examination; defendant was only allowed to use isolated
statements as impeachment, and was not allowed to explain that the statements
were made as part of a separate investigation of the propriety of the witnesses’
conduct. The court also noted that there was a lack of physical evidence in the
case and that the jury elected to acquit defendant of a third charge.
(Defendant was represented by Assistant Defender Scott Main, Chicago.)
WITNESSES
§57-6(b)(4)(b)
People v. Wilson, 2012 IL App (1st) 092910 (No. 1-09-2910, 2/9/12)
1. The constitutional right to confront witnesses includes the right to
inquire into a witness’s bias, interest, or motive to testify falsely. On cross-examination,
the defense is entitled to wide latitude to attempt to establish bias
or motive. To be admissible, evidence used to establish bias or motive must give
rise to an inference that the witness has something to lose or gain by testifying.
Such evidence must not be remote or uncertain.
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2. At defendant’s trial for aggravated unlawful use of a weapon and
unlawful use of a weapon, the trial court erred by precluding the defendant from
introducing records of an Independent Police Review Authority investigation of
the arresting officers’ conduct during the events leading to the charges against
the defendant. The defense theory was that after a police officer shot the
unarmed defendant and planted a gun near him, officers mishandled the gun to
account for the fact that it did not contain defendant’s fingerprints. In his motion
in limine, defendant presented evidence that the IPRA investigation concerned
whether the first officer improperly fired at defendant and whether two other
officers improperly handled the gun found next to the defendant.
The Appellate Court concluded that the IPRA investigation gave rise to an
inference that the witnesses had something to lose or gain by testifying, because
the investigation involved the same incident for which the defendant was charged
and the outcome of both the investigation and the trial depended in large part
on the testifying officers’ portrayal of the events. “For obvious reasons, if an
officer subjected to an IPRA investigation provides a statement to an investigator,
the same officer could be motivated to testify consistently at a trial regarding the
same incident to maintain his or her credibility.”
The court concluded that evidence of the IPRA investigation was not
remote or uncertain and directly affected the defendant’s case. Therefore, the
evidence should have been admitted on the issue of the motive and bias of the
arresting officers.
3. The court concluded that the “abuse of discretion” standard of review
applied to the above question. The court viewed the trial court’s ruling as
denying the motion in limine concerning the IPRA investigation, but allowing the
defense to cross-examine on all relevant manners including interest or bias
based on evidence other than the IPRA records. Rulings on motions in limine are
generally left to the trial court’s discretion, as are matters involving the
admission of evidence. Furthermore, the trial court has discretion to limit the
scope of cross-examination.
Defendant’s convictions were reversed and the cause remanded for
resentencing.
(Defendant was represented by Assistant Defender Scott Main, Chicago.)
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