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Office of the State Appellate Defender
Illinois Criminal Law Digest
December 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
ARMED VIOLENCE ................................................................................................... 1
People v. West, 2019 IL App (1st) 162400 (12/31/19) ............................................................................. 1
BAIL .............................................................................................................................. 1
People v. Gil, 2019 IL App (1st) 192419 (12/13/19) ................................................................................. 1
BURGLARY & RESIDENTIAL BURGLARY ......................................................... 1
People v. Holt, 2019 IL App (3d) 160504-B (12/11/19) ............................................................................ 1
COLLATERAL REMEDIES ...................................................................................... 2
People v. Johnson, 2019 IL App (1st) 163169 (12/31/19) ........................................................................ 2
People v. Pabello, 2019 IL App (2d) 170867 (12/9/19) ............................................................................ 2
People v. Moore, 2019 IL App (3d) 170485 (12/9/19) ............................................................................. 3
CONFESSIONS ........................................................................................................... 3
People v. Wilson, 2019 IL App (1st) 181486 (12/10/19) .......................................................................... 3
People v. Maron, 2019 IL App (2d) 170268 (12/31/19) ........................................................................... 4
COUNSEL ..................................................................................................................... 4
People v. Holt, 2019 IL App (3d) 160504-B (12/11/19) ............................................................................ 4
People v. Hamilton, 2019 IL App (1st) 170019 (12/13/19) ...................................................................... 5
People v. McCallum, 2019 IL App (5th) 160279 (12/6/19) ...................................................................... 5
People v. Alexander, 2019 IL App (4th) 170425 (12/17/19) .................................................................... 6
EVIDENCE ................................................................................................................... 6
People v. McCallum, 2019 IL App (5th) 160279 (12/6/19) ...................................................................... 6
People v. Moffett, 2019 IL App (2d) 180964 (12/18/19) ......................................................................... 7
People v. Hamilton, 2019 IL App (1st) 170019 (12/13/19) ...................................................................... 8
People v. Holloway, 2019 IL App (2d) 170551 (12/6/19) ......................................................................... 8
In re T.R., 2019 IL App (4th) 190529 (12/24/19) ...................................................................................... 9
GUILTY PLEAS ........................................................................................................... 9
People v. Burge, 2019 IL App (4th) 170399 (12/13/19) ........................................................................... 9
HOMICIDE ................................................................................................................... 9
People v. Eubanks, 2019 IL 123525 (12/5/19) ......................................................................................... 9
JUDGE ........................................................................................................................ 10
People v. Johnson, 2019 IL App (3d) 150352-B (12/5/19) ..................................................................... 10
People v. Wilson, 2019 IL App (1st) 181486 (12/10/19) ........................................................................ 10
ii
People v. West, 2019 IL App (1st) 162400 (12/31/19) ........................................................................... 11
JURY ........................................................................................................................... 11
People v. Johnson, 2019 IL App (3d) 150352-B (12/5/19) ..................................................................... 11
People v. Clayton, 2019 IL App (3d) 170315 (12/18/19) ........................................................................ 12
JUVENILE PROCEEDINGS ................................................................................... 12
In re J.M.A., 2019 IL App (3d) 190346 (12/31/19) .................................................................................. 12
People v. Handy, 2019 IL App (1st) 170213 (12/26/19) ......................................................................... 12
KIDNAPING, UNLAWFUL RESTRAINT AND RELATED OFFENSES ......... 13
People v. West, 2019 IL App (1st) 162400 (12/31/19) ........................................................................... 13
PERJURY ................................................................................................................... 13
People v. Torres, 2019 IL App (1st) 151276 (12/20/19) ......................................................................... 13
PROSECUTOR .......................................................................................................... 14
People v. Holt, 2019 IL App (3d) 160504-B (12/11/19) .......................................................................... 14
REASONABLE DOUBT ........................................................................................... 14
People v. Underwood, 2019 IL App (3d) 170623 (12/18/19) ................................................................. 14
SEARCH & SEIZURE ............................................................................................... 15
People v. Braswell, 2019 IL App (1st) 172810 (12/26/19) ..................................................................... 15
People v. Eubanks, 2019 IL 123525 (12/5/19) ....................................................................................... 16
People v. Hood, 2019 IL App (1st) 162194 (12/31/19) ........................................................................... 16
People v. Spain, 2019 IL App (1st) 163184 (12/27/19) .......................................................................... 17
People v. Flunder, 2019 IL App (1st) 171635 (12/26/19) ....................................................................... 18
People v. Jordan, 2019 IL App (4th) 190223 (12/12/19) ........................................................................ 18
People v. Dunmire, 2019 IL App (4th) 190316 (12/20/19) ..................................................................... 19
SENTENCING ........................................................................................................... 20
People v. Handy, 2019 IL App (1st) 170213 (12/26/19) ......................................................................... 20
People v. Maron, 2019 IL App (2d) 170268 (12/31/19) ......................................................................... 20
People v. Cross, 2019 IL App (1st) 162108 (12/26/19) ........................................................................... 21
SPEEDY TRIAL ......................................................................................................... 21
People v. Moffett, 2019 IL App (2d) 180964 (12/18/19) ....................................................................... 21
STATUTES ................................................................................................................. 22
People v. Eubanks, 2019 IL 123525 (12/5/19) ....................................................................................... 22
THEFT AND OTHER PROPERTY OFFENSES .................................................. 23
iii
People v. Holt, 2019 IL App (3d) 160504-B (12/11/19) .......................................................................... 23
TRAFFIC OFFENSES .............................................................................................. 23
People v. Eubanks, 2019 IL 123525 (12/5/19) ....................................................................................... 23
People v. Eubanks, 2019 IL 123525 (12/5/19) ....................................................................................... 24
TRIAL PROCEDURES ............................................................................................. 24
People v. Clayton, 2019 IL App (3d) 170315 (12/18/19) ........................................................................ 24
WAIVER - PLAIN ERROR - HARMLESS ERROR .............................................. 25
People v. Torres, 2019 IL App (1st) 151276 (12/20/19) ......................................................................... 25
People v. Holloway, 2019 IL App (2d) 170551 (12/6/19) ....................................................................... 26
People v. Holt, 2019 IL App (3d) 160504-B (12/11/19) .......................................................................... 26
WEAPONS .................................................................................................................. 26
People v. Cross, 2019 IL App (1st) 162108 (12/26/19) ........................................................................... 26
WITNESSES ............................................................................................................... 27
In re T.R., 2019 IL App (4th) 190529 (12/24/19) .................................................................................... 27
1
ARMED VIOLENCE
§3-2
People v. West, 2019 IL App (1st) 162400 (12/31/19)
The State failed to prove armed violence involving a blade measuring three or
more inches in length. The State introduced no evidence of the blade’s length, but the
trial court stated that the blade measured “exactly three inches long.” In limited
circumstances, the trier of fact may infer that a measurement exceeds the statutory
requirement without hearing testimony of a precise length or weight. Here the court
erred by taking judicial notice of the blade's length, as the court could not establish
the precise length as a matter of common knowledge or as a matter of a measurement
of indisputable accuracy, and if its measurement was off even a millimeter the State
would have failed to prove its case. In such cases, actual evidence must be submitted
to adversarial testing.
(Defendant was represented by Assistant Defender Joshua Bernstein,
Chicago.)
BAIL
§6-1
People v. Gil, 2019 IL App (1st) 192419 (12/13/19)
A court has discretion to deny bail under circumstances as set forth in 725
ILCS 5/110-4(a). And, the procedures and requirements for denying bail in non-
probationable felony cases are set forth in 725 ILCS 5/110-6.1. Here, the court erred
in denying bail without the filing of a verified petition and without making the
specific finding required by Section 110-6.1. Accordingly, the no-bail order was
reversed and the matter was remanded to the circuit court for determining monetary
bond and other conditions of release on bail.
BURGLARY & RESIDENTIAL BURGLARY
§8-1(a)
People v. Holt, 2019 IL App (3d) 160504-B (12/11/19)
Evidence was sufficient to sustain defendant’s conviction of burglary of
Walmart based upon entry “without authority” when he entered during regular
business hours, concealed a backpack behind a coin machine in the vestibule, and
removed merchandise from the store without paying for it and hid it in the backpack.
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The evidence showed defendant had the intent to commit retail theft when he entered
the premises, which is all that is required to sustain a burglary conviction.
Likewise, defendant’s retail theft conviction was upheld. While the State did
not introduce evidence that the specific items were missing from Walmart’s
inventory, defendant was seen concealing the items in the backpack in the Walmart
vestibule, the items had Walmart tags on them, and a manager scanned the items
and determined they were items offered for sale at that Walmart.
(Defendant was represented by Assistant Defender James Wozniak, Ottawa.)
COLLATERAL REMEDIES
§§9-1(b)(1), 9-1(e)(1)
People v. Johnson, 2019 IL App (1st) 163169 (12/31/19)
The trial court did not err in summarily dismissing defendant’s post-conviction
petition at the first stage of proceedings on the basis that defendant lacked standing
to proceed under the Post-Conviction Hearing Act. The Appellate Court held that
standing is a proper basis for first-stage dismissal because it is more like waiver and
res judicata than timeliness. Standing is a matter of substantive merit, not
procedural compliance, since a petition filed without standing is necessarily without
merit.
Here, defendant lacked standing to file his petition where his current
incarceration was not a direct result of the 2007 conviction he sought to challenge in
the petition. While defendant was presently serving a term of imprisonment for
failing to meet a violent-offender registration requirement that was triggered by the
2007 conviction, registration requirements are not part of the sentence for a
conviction. Defendant had completed both his prison sentence and MSR for the 2007
conviction and therefore lacked standing to challenge that conviction in proceedings
under the Act.
(Defendant was represented by Assistant Defender Maggie Heim, Chicago.)
§§9-1(g), 9-1(j)(2)
People v. Pabello, 2019 IL App (2d) 170867 (12/9/19)
Defendant’s post-conviction petition alleging an involuntary Miranda waiver
was denied after a third-stage evidentiary hearing. Defendant alleged on appeal that
he received unreasonable assistance of PC counsel. The Appellate Court affirmed.
First, defendant’s allegation that counsel violated of 651(c) by failing to present
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additional evidence of defendant’s lack of education is misplaced. Counsel here
complied with Rule 651(c) at the second stage when he consulted with defendant,
examined the trial record, and amended the pro se petition as necessary to adequately
present defendant’s claims. Once the petition was advanced to the third stage, Rule
651(c) no longer applied. Nor was counsel’s performance otherwise unreasonable,
where additional information about defendant’s lack of education would not likely
have resulted in a finding that defendant did not knowingly and intelligently waive
his Miranda rights.
(Defendant was represented by Assistant Defender Amber Hopkins-Reed,
Ottawa.)
§§9-1(i)(1), 9-1(j)(2)
People v. Moore, 2019 IL App (3d) 170485 (12/9/19)
The Post-Conviction Hearing Act does not provide for the appointment of
counsel on a motion for leave to file a successive post-conviction petition. Even where
the court appoints counsel on a motion for leave to file, defendant cannot complain
that such counsel provided unreasonable assistance. The court rejected defendant’s
reliance on People v. Walker, 2018 IL App (3d) 150527, because that case involved
the discretionary appointment of counsel on a 2-1401 petition, not a successive post-
conviction petition. The Act “clearly provides that defendant only has the right to the
assistance of counsel at the second stage of post-conviction proceedings,” so the
appointment of counsel here was premature and unsupported by the Act.
(Defendant was represented by Assistant Defender Sean Conley, Ottawa.)
CONFESSIONS
§10-5(c)(1)
People v. Wilson, 2019 IL App (1st) 181486 (12/10/19)
The trial court did not err in suppressing defendant’s statement following an
evidentiary hearing held pursuant to the Illinois Torture Inquiry and Relief
Commission. The Appellate Court first rejected the State’s argument that the trial
court applied an incorrect burden. The trial court correctly found that defendant met
his initial burden of showing new evidence – here, corroborated allegations of physical
abuse while in custody – would likely result in suppression, and that the State then
made a prima facie case of voluntariness. Defendant rebutted the State’s case with
sufficient evidence to show coercion, and the State was unable to rebut that evidence.
As such, the trial court applied the correct burden in arriving at its decision to
suppress.
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Nor did the trial court commit any substantive errors in suppressing the
statements. First, contrary to the State’s claim on appeal, the trial court did not
prevent the State from arguing that defendant’s statement, which mitigated his role
in the offense, undermined his allegations of coercion. Second, the ruling was not
against the manifest weight of the evidence where a “plethora of evidence”
corroborated the allegations of torture, while many of the accused officers took the
fifth, giving rise to an inference of wrongdoing.
§10-7
People v. Maron, 2019 IL App (2d) 170268 (12/31/19)
The trial court had discretion to consider defendant’s illegally obtained
confession at his sentencing hearing. Defendant pled guilty to three offenses. While
he was in custody for these offenses, and represented by counsel, detectives asked
him about a fourth uncharged offense, then continued to elicit statements concerning
the charged offenses. Counsel was not present and not notified.
At sentencing, the State conceded that the statements would not have been
admissible had the case proceeded to trial. Nevertheless, the State argued and the
sentencing court agreed that the statements could be used at sentencing. The
Appellate Court affirmed. It rejected defendant’s contention that a statement taken
in violation of the Sixth Amendment must always be suppressed at a sentencing
hearing, and it found that the trial court properly applied the exclusionary-rule
balancing test applicable to the use of such statements at a sentencing hearing. Given
the lax evidentiary standards at sentencing, the overriding goal of crafting an
appropriate sentence with as much relevant and reliable information as possible, and
the minimal deterrent value in excluding the video at sentencing, the trial court did
not abuse its discretion in admitting the statements.
(Defendant was represented by Assistant Defender Steven Walker, Elgin.)
COUNSEL
§14-4(a)(1)
People v. Holt, 2019 IL App (3d) 160504-B (12/11/19)
Prosecutor committed misconduct by noting in closing argument that
defendant had not offered the police an explanation for why he had stolen goods and
arguing that “if I didn’t commit a crime, I would say something to the officers.” This
invited the jurors to use defendant’s post-arrest silence as evidence against him.
Defense counsel did not object, however, and the error did not rise to the level of first
prong plain error where the evidence was not closely balanced. Similarly, because the
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ineffective-assistance-of-counsel prejudice analysis is similar to the first-prong plain-
error analysis, defense counsel did not render ineffective assistance by failing to
object.
(Defendant was represented by Assistant Defender James Wozniak, Ottawa.)
§14-4(b)(3)
People v. Hamilton, 2019 IL App (1st) 170019 (12/13/19)
Trial counsel was ineffective for failing to assert the proper ground for the
admission of evidence. The defense theory at defendant’s murder trial was that
defendant saw the victim reach into his waistband before he shot him. Both the
victim’s girlfriend and defendant attempted to testify that they had known the victim
to carry a gun in the past. The trial court barred the testimony, finding it “conjecture”
and not admissible as Lynch evidence because it did not go to the victim’s propensity
for violence.
The Appellate Court majority held that counsel was ineffective for failing to
argue that the evidence goes to state of mind, for which the evidence was clearly
relevant and admissible. The trial court was correct that this evidence is not covered
by Lynch, but it was incumbent upon counsel to identify and argue the correct basis
for the admission of the evidence. “The defendant had a right to expect defense
counsel to understand, explain, and apply the rules of evidence to the facts of his case
in support of his theory of defense, no matter how nuanced that interpretation may
be.” Despite the fact that no gun was actually found on the victim, there was sufficient
evidence of defendant’s belief in the need to act in self-defense such that exclusion of
state-of-mind evidence denied defendant a fair trial.
(Defendant was represented by Assistant Defender Daniel Regenscheit,
Chicago.)
§14-4(b)(4)
People v. McCallum, 2019 IL App (5th) 160279 (12/6/19)
Trial judge did not abuse his discretion in denying defendant’s motion to bar
admission of a redacted recording of his second police interview. Statements of
investigators during questioning are generally admissible to demonstrate defendant’s
responses or the effect of the investigator’s statements on defendant. Here, admission
of the second interview was necessary to place the first interview in context. While
defendant did not make an admission during the interview, his responses were
relevant in that he did change his story during the second interview, and he showed
a lack of remorse about the deaths of his friends. Further, the interview was not an
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integral part of the State’s case against defendant, and defense counsel actually used
the interview to show that defendant had consistently maintained his innocence. In
reaching this conclusion, the court distinguished People v. Hardimon, 2017 IL App
(3d) 120772, where the majority of the recorded interview that was admitted at trial
contained irrelevant and highly prejudicial comments, the police were overly
aggressive, and defendant had not changed his version of events in response to
ongoing questioning.
(Defendant was represented by former Deputy Defender John McCarthy,
Springfield.)
§§14-6(d)(2)(d), 14-6(g)
People v. Alexander, 2019 IL App (4th) 170425 (12/17/19)
Defendant’s public defender was formerly an Assistant State’s Attorney and
had previously prosecuted defendant in an unrelated case. In People v. Fields, 2012
IL 112438, the Supreme Court defined a per se conflict to include situations where
defense counsel (1) has a prior or contemporaneous association with the victim,
prosecution, or an entity assisting the prosecution, (2) contemporaneously represents
a prosecution witness, and (3) was a former prosecutor who had been personally
involved with the prosecution of defendant.
The Appellate Court construed the third category of per se conflict - a former
prosecutor who had been personally involved with the prosecution of defendant - as
meaning counsel was involved in prosecuting defendant in the same criminal
proceeding. Accordingly, the Court declined to find a per se conflict here because
defense counsel’s prior prosecution of defendant was in an unrelated case and had
occurred more than 10 years prior.
(Defendant was represented by Assistant Defender Christopher Evers,
Chicago.)
EVIDENCE
§§19-2(b)(2), 19-11
People v. McCallum, 2019 IL App (5th) 160279 (12/6/19)
Trial judge did not abuse his discretion in denying defendant’s motion to bar
admission of a redacted recording of his second police interview. Statements of
investigators during questioning are generally admissible to demonstrate defendant’s
responses or the effect of the investigator’s statements on defendant. Here, admission
of the second interview was necessary to place the first interview in context. While
7
defendant did not make an admission during the interview, his responses were
relevant in that he did change his story during the second interview, and he showed
a lack of remorse about the deaths of his friends. Further, the interview was not an
integral part of the State’s case against defendant, and defense counsel actually used
the interview to show that defendant had consistently maintained his innocence. In
reaching this conclusion, the court distinguished People v. Hardimon, 2017 IL App
(3d) 120772, where the majority of the recorded interview that was admitted at trial
contained irrelevant and highly prejudicial comments, the police were overly
aggressive, and defendant had not changed his version of events in response to
ongoing questioning.
(Defendant was represented by former Deputy Defender John McCarthy,
Springfield.)
§19-14(a)
People v. Moffett, 2019 IL App (2d) 180964 (12/18/19)
Defendant was charged with aggravated battery based on an allegation that
she bit a correctional officer. A recording of the incident in question showed
correctional officers restraining defendant, at which time one officer said “ow!”
another officer asked, “Did she bite you?,” and the first officer responded “yes.” The
Appellate Court held that trial court erred in granting defendant’s motion in limine
to exclude the question and answer regarding whether defendant bit the officer.
Citing People v. Georgakapolous, 303 Ill. App. 3d 1001 (1999), the Court
held that the statement confirming that defendant bit the officer was an excited
utterance, even though it was made in response to a question from another officer.
Questioning is a factor to consider in determining reliability of the statement, but it
does not automatically negate its spontaneity.
And, because the statement was an excited utterance, it was substantively
admissible even though it was also a prior consistent statement. Illinois Rule of
Evidence 613(c) provides that prior consistent statements are not limited to
rehabilitating a witness if the statement’s substantive admission is otherwise
authorized. While that provision was added to Rule 613 during the course of the
appeal, the amended version applies because a ruling on a motion in limine is an
interlocutory order subject to reconsideration at any time prior to or during trial.
(Defendant was represented by Assistant Defender Sade Edwards, Elgin.)
8
§19-20
People v. Hamilton, 2019 IL App (1st) 170019 (12/13/19)
Trial counsel was ineffective for failing to assert the proper ground for the
admission of evidence. The defense theory at defendant’s murder trial was that
defendant saw the victim reach into his waistband before he shot him. Both the
victim’s girlfriend and defendant attempted to testify that they had known the victim
to carry a gun in the past. The trial court barred the testimony, finding it “conjecture”
and not admissible as Lynch evidence because it did not go to the victim’s propensity
for violence.
The Appellate Court majority held that counsel was ineffective for failing to
argue that the evidence goes to state of mind, for which the evidence was clearly
relevant and admissible. The trial court was correct that this evidence is not covered
by Lynch, but it was incumbent upon counsel to identify and argue the correct basis
for the admission of the evidence. “The defendant had a right to expect defense
counsel to understand, explain, and apply the rules of evidence to the facts of his case
in support of his theory of defense, no matter how nuanced that interpretation may
be.” Despite the fact that no gun was actually found on the victim, there was sufficient
evidence of defendant’s belief in the need to act in self-defense such that exclusion of
state-of-mind evidence denied defendant a fair trial.
(Defendant was represented by Assistant Defender Daniel Regenscheit,
Chicago.)
§19-26(b)
People v. Holloway, 2019 IL App (2d) 170551 (12/6/19)
In a prosecution for violation of bail bond, attorney-client privilege was not
violated by allowing State to ask defendant’s prior counsel about a phone
conversation he had with defendant on the date defendant failed to appear for trial.
The call did not involve legal advice or strategy, and it was made by counsel from the
courtroom when others were present, so defendant could not reasonably expect it
would remain secret. Further, defendant both forfeited and invited the error by not
objecting to use of the specific statement in question and by attempting to use the
statement to discredit his prior counsel and advance his theory of defense that
counsel deliberately did not remind him about upcoming court dates. Finally, even if
there was error, it was harmless because there was no reason to think the statement
had any impact on the sole contested question at trial, that being whether defendant’s
absence from the proceedings was willful.
9
§19-27(c)
In re T.R., 2019 IL App (4th) 190529 (12/24/19)
During cross-examination of respondent, the State, over defense objection,
introduced prior inconsistent statements made during a polygraph examination. The
trial court overruled the objection, and the Appellate Court affirmed. As a matter of
first impression in Illinois, the Appellate Court held that prior inconsistent
statements made during a polygraph examination are admissible to the same extent
as any other prior inconsistent statement, provided that all references to the
polygraph examination are removed.
(Respondent was represented by Assistant Defender Salome Kiwara-Wilson,
Springfield.)
GUILTY PLEAS
§24-6(a)
People v. Burge, 2019 IL App (4th) 170399 (12/13/19)
The trial court did not err in failing to admonish defendant that her guilty plea
to theft may impact her ability to maintain or retain employment. That
admonishment requirement is contained in 725 ILCS 5/113-4. Over a dissent, the
majority held that by its plain language, section 113-4 requires certain
admonishments when a guilty plea is entered at the time of arraignment. When a
defendant pleads guilty at any later court date, the only requirement is substantial
compliance with the requirements of Supreme Court Rule 402. Even if section 113-4
did apply, it is directory, not mandatory. And, given that defendant’s theft conviction
was premised on her stealing money from a client in the course of her employment as
a home health worker, it was common sense that her job could be negatively impacted
by her guilty plea.
(Defendant was represented by Assistant Defender Mariah Shaver,
Springfield.)
HOMICIDE
§26-5(b)
People v. Eubanks, 2019 IL 123525 (12/5/19)
The trial court abused its discretion in denying defendant’s request for a
reckless homicide instruction. There need only be some evidence in the record that
would justify giving a lesser-included offense instruction. When the distinction
10
between the charged offense and a lesser-included offense is mental state, the
distinction will often turn on circumstantial evidence. The task of discerning a
defendant’s mental state from surrounding circumstances is particularly suited to the
jury.
Here, defendant killed the victim by striking her with a speeding vehicle at 9
p.m. on “a quiet residential street.” The jury may have inferred that, given the paucity
of pedestrians and late hour, defendant acted recklessly rather than knowingly under
these circumstances. Although the State highlighted the severity of the injuries here,
and in some cases the severity of the victim’s injury might negate a recklessness
instruction, those cases involve beatings, not automobile accidents, where a
defendant who acts recklessly is just as likely to cause severe injury as one who acts
intentionally or knowingly.
(Defendant was represented by Assistant Defender Deepa Punjabi, Chicago.)
JUDGE
§31-1(a)
People v. Johnson, 2019 IL App (3d) 150352-B (12/5/19)
The trial judge erred by not allowing jurors to take notes during trial. 725 ILCS
5/115-4(n), which provides that jurors “shall be entitled to take notes during the trial,”
protects a defendant’s right to a fair trial. The statute is mandatory; the trial court
has no discretion to ignore it. The error in forbidding note-taking was not harmless
beyond a reasonable doubt where the jury sent out four requests to review evidence
during deliberations, including one note which described the jury as “deadlocked” if
they could not review certain evidence.
(Defendant was represented by Assistant Defender Gilbert Lenz, Chicago.)
§31-1(a)
People v. Wilson, 2019 IL App (1st) 181486 (12/10/19)
The trial judge did not show undue bias against the State (here, the Office of
the Special Prosecutor) and the police in the course of finding defendant was tortured.
Fleeting references to other examples of torture during its 100 pages of detailed
findings were not improper, and were warranted given the special prosecutor’s
“stunning level of denial” about Area 2 torture during the proceedings. Moreover, the
judge was entitled to criticize the police for costing the taxpayer millions of dollars.
The judge, contrary to the OSP’s claim on appeal, did in fact overrule many of
defendant’s objections. Finally, despite the State’s claim that the judge impugned the
11
ethics of the OSP, the Appellate Court found that the judge was appropriately
troubled when it learned that a member of the OSP left to become John Burge’s
criminal defense attorney. Notably, the judge eventually cleared the OSP of any
conflicts, showing his ability to fair.
§31-2(c)
People v. West, 2019 IL App (1st) 162400 (12/31/19)
The State failed to prove armed violence involving a blade measuring three or
more inches in length. The State introduced no evidence of the blade’s length, but the
trial court stated that the blade measured “exactly three inches long.” In limited
circumstances, the trier of fact may infer that a measurement exceeds the statutory
requirement without hearing testimony of a precise length or weight. Here the court
erred by taking judicial notice of the blade's length, as the court could not establish
the precise length as a matter of common knowledge or as a matter of a measurement
of indisputable accuracy, and if its measurement was off even a millimeter the State
would have failed to prove its case. In such cases, actual evidence must be submitted
to adversarial testing.
(Defendant was represented by Assistant Defender Joshua Bernstein,
Chicago.)
JURY
§§32-1, 32-6(a)
People v. Johnson, 2019 IL App (3d) 150352-B (12/5/19)
The trial judge erred by not allowing jurors to take notes during trial. 725 ILCS
5/115-4(n), which provides that jurors “shall be entitled to take notes during the trial,”
protects a defendant’s right to a fair trial. The statute is mandatory; the trial court
has no discretion to ignore it. The error in forbidding note-taking was not harmless
beyond a reasonable doubt where the jury sent out four requests to review evidence
during deliberations, including one note which described the jury as “deadlocked” if
they could not review certain evidence.
(Defendant was represented by Assistant Defender Gilbert Lenz, Chicago.)
12
§32-4(a)
People v. Clayton, 2019 IL App (3d) 170315 (12/18/19)
Trial court did not abuse its discretion in replacing juror who it believed had
been sleeping during portions of the trial. While the judge should have acted on his
suspicions about the juror’s inattentiveness earlier in the process, it was not error to
excuse the juror after he revealed his dismissive views of the evidence that had been
presented. Juror’s assessment of the evidence was attributable to his inattentiveness.
Further, defense counsel’s waiver of defendant’s presence for the in
camera questioning and replacement of the excused juror, even if error, did not result
in a constitutional denial of defendant’s right to be present where defendant did not
allege he was denied an impartial jury.
(Defendant was represented by Assistant Defender James Wozniak, Ottawa.)
JUVENILE PROCEEDINGS
§33-6(b)
In re J.M.A., 2019 IL App (3d) 190346 (12/31/19)
Section 5-750 of the Juvenile Court Act provides that a court may sentence a
minor to the Department of Juvenile Justice if it finds that commitment to DOJJ is
the “least restrictive alternative” and that secure confinement is necessary after a
review of specific statutory factors.
Here, the court did not specifically state that DOJJ commitment was the “least
restrictive alternative,” but the statutory requirement was satisfied by the court’s
comments as a whole. The court discussed less restrictive alternatives and explained
why they were inappropriate for the minor. The Appellate Court concluded that such
a discussion is actually preferable to simply reciting the “magic words” from the
statute. The dissenting justice would have required the court to make an express
finding that confinement was the least restrictive alternative, noting that requiring
such a finding would not be an onerous burden.
(Respondent was represented by Assistant Defender Dimitri Golfis, Ottawa.)
§§33-6(g)(4), 33-6(g)(5)
People v. Handy, 2019 IL App (1st) 170213 (12/26/19)
The trial court did not err in denying defendant leave to file successive post-
conviction petition. Defendant could not demonstrate prejudice where his petition
alleged that his 120-year aggregate sentence for crimes committed when he was 18.5
13
years old was unconstitutional as applied. Defendant was an adult and therefore was
not entitled the same Eighth Amendment protections afforded to juveniles under
Miller. And, defendant could not make out a proportionate penalties claim because
he was an active participant in the armed robbery, home invasion, kidnaping and
sexual assault, rather than a lookout, and because the sentence here was
discretionary and not mandatory, both factors which distinguished the case from
People v. House, 2019 IL App (1st) 110580-B. The appellate court concluded that
although defendant’s sentence was “harsh,” the trial court properly denied leave to
file his successive post-conviction petition.
KIDNAPING, UNLAWFUL RESTRAINT AND RELATED OFFENSES
§34-1
People v. West, 2019 IL App (1st) 162400 (12/31/19)
The State failed to prove kidnaping as an independent offense from armed
robbery beyond a reasonable doubt. Kidnaping under 720 ILCS 5/10-1(a)(2) requires
proof of asportation, or that defendant carried another “from one place to another.”
Where the asportation is ancillary to another offense, courts must apply the factors
spelled out by the Illinois Supreme Court in People v. Siguenza-Brito, 235 Ill. 2d
213 (2009) before carving out a separate offense of kidnaping. Here, defendant pushed
the victim a few feet into the rear of a currency exchange during the course of an
armed robbery. Because the movement took little time and did not significantly
increase the dangers faced by the victim, the kidnaping conviction was vacated.
(Defendant was represented by Assistant Defender Joshua Bernstein,
Chicago.)
PERJURY
§37
People v. Torres, 2019 IL App (1st) 151276 (12/20/19)
In a shooting case where the question was whether defendant had the intent
to kill, and should be convicted of attempt murder, or whether he merely had the
intent to frighten, and should be convicted of a lesser offense, the State elicited false
testimony from defendant’s accomplice that he had pled guilty to attempt murder for
his role in the incident. The accomplice did not plead guilty to attempt murder, as
that charge had been reduced to a lesser offense. Defendant alleged this false
testimony violated his right to due process.
14
The Appellate Court first rejected the State’s forfeiture argument, finding that
a party does not forfeit an error involving the false, uncorrected testimony elicited by
the opponent. Also, whether the prosecutor actually knew the statement to be false
does not matter, as the prosecutor’s office knew the accomplice did not plead to
attempted murder, and that knowledge is imputed to the prosecutor at trial. Finally,
the Court held that if there is any reasonable likelihood that the false testimony could
have affected the jury’s verdict, the defendant is entitled to a new trial, regardless of
the lack of an objection. Because the jury was falsely told that the accomplice pled
guilty to attempted murder, the jury could have concluded that defendant must also
be guilty of this offense. While the dissent would have found the error harmless, the
majority pointed out that even if evidence of defendant’s participation in the offense
was overwhelming, evidence of his state of mind at the time of the shooting was close.
As such, the false statement was material and required a new trial.
(Defendant was represented by Assistant Defender Stephanie Puente,
Chicago.)
PROSECUTOR
§40-9
People v. Holt, 2019 IL App (3d) 160504-B (12/11/19)
Prosecutor committed misconduct by noting in closing argument that
defendant had not offered the police an explanation for why he had stolen goods and
arguing that “if I didn’t commit a crime, I would say something to the officers.” This
invited the jurors to use defendant’s post-arrest silence as evidence against him.
Defense counsel did not object, however, and the error did not rise to the level of first
prong plain error where the evidence was not closely balanced. Similarly, because the
ineffective-assistance-of-counsel prejudice analysis is similar to the first-prong plain-
error analysis, defense counsel did not render ineffective assistance by failing to
object.
(Defendant was represented by Assistant Defender James Wozniak, Ottawa.)
REASONABLE DOUBT
§41-9
People v. Underwood, 2019 IL App (3d) 170623 (12/18/19)
The State’s evidence satisfied the corpus delicti rule and established driving
on a suspended license beyond a reasonable doubt. A police officer testified that he
arrived at the scene of an accident at which time defendant described how she was
15
driving her car when another vehicle struck her. The Appellate Court rejected
defendant’s contention that this statement provided the only evidence that she was
actually driving the car. The court found that defendant’s description of the accident
matched the damage to the vehicle, and that defendant was the only person in the
area. Thus, the confession was sufficiently corroborated to satisfy the corpus delicti
rule.
(Defendant was represented by Assistant Defender Demetri Golfis, Ottawa.)
SEARCH & SEIZURE
§§43-1(b), 43-3(c)(2), 43-3(c)(3)(b)
People v. Braswell, 2019 IL App (1st) 172810 (12/26/19)
Police responding to a complaint that subjects inside a grocery store were
passing counterfeit bills had probable cause to believe defendant was accountable for
their conduct, even though defendant was in a vehicle in the parking lot. While mere
presence near a crime scene is insufficient to support an arrest, an individual’s
location prior to and after commission of a crime may be considered in determining
probable cause. Here, defendant was not simply present in the parking lot, but rather
had arrived at the location with the offenders and remained in the vehicle that
presumably was meant to be used to leave the scene, as well.
After he was taken into custody, the suburban officers discovered an
investigative alert for defendant and notified the Chicago detective who had entered
the alert. Defendant then was turned over to Chicago police, who conducted a lineup
at which defendant was identified as the offender in the armed robbery which was
the subject of the investigative alert. The Appellate Court declined to follow People
v. Bass, 2019 IL App (1st) 160640, which held that an arrest based on an
investigative alert, rather than a warrant, was unconstitutional under the Illinois
Constitution. Instead, the Appellate Court here concluded that an arrest requires
only probable cause, not a warrant, and that an arrest is proper where the police have
reasonable grounds to believe defendant has committed an offense regardless of
whether an investigative alert has been issued.
(Defendant was represented by Assistant Defender Jonathan Pilsner,
Chicago.)
16
§43-2(d)(7)
People v. Eubanks, 2019 IL 123525 (12/5/19)
Section 11-501.1 of the Vehicle Code, which allows police officers to forcibly
withdraw defendant’s blood or urine when there is probable cause of intoxication in
a case involving an auto accident with death or injury to another, violated the Fourth
Amendment in this case. Defendant made a facial challenge to the statute. While
facial challenges under the Fourth Amendment are permissible, and are not
foreclosed merely because the statute would not apply in cases where the officer has
a warrant, exigent circumstances, or consent, this statute comports with the “general
rule” that exigent circumstances exist when BAC evidence is dissipating, and some
other factor, such as a death or injury, creates a pressing concern that takes priority
over a warrant application.
After Schmerber v. California, 384 U.S. 757 (1966), Missouri v. McNeely,
569 U.S. 141 (2013), and Mitchell v. Wisconsin, 588 U.S. ___, 139 S. Ct. 2525 (2019),
the courts must employ a totality-of-the-circumstances test when analyzing the
constitutionality of warrantless blood or urine draws in DUI cases, but this test is
guided by the “general rule” that, due to BAC dissipation, exigent circumstances will
exist when there is a traffic accident causing personal injury or when the suspect is
unconscious. Nevertheless, defendant can rebut application of the general rule by
showing that the blood/urine draw was solely for law enforcement purposes, and that
the “police could not have reasonably judged that a warrant application would
interfere with other needs or duties.”
Here, defendant established that no reasonable officer could have believed a
warrant application would interfere with the investigation. The defendant was
arrested around 9 p.m. and taken to the station where he was not interviewed until
10:30 p.m. The interviewing officer claimed defendant smelled like alcohol, and
defendant refused a breath test, but he was not taken to the hospital for blood/urine
samples until 3 a.m. The blood draw occurred at 4:10 a.m., and the urine sample was
given at 5:20 a.m. Given that seven hours passed between the arrest and the blood
draw, a warrant application would not have increased the delay. Thus, the general
rule of exigent circumstances does not exist here, and the statute is unconstitutional
as applied to defendant’s case.
(Defendant was represented by Assistant Defender Deepa Punjabi, Chicago.)
§§43-3(b)(2), 43-3(b)(3), 43-3(c)(2), 43-3(d)(1)
People v. Hood, 2019 IL App (1st) 162194 (12/31/19)
Police officers patrolling in a high-crime area encountered a parked car
occupied by defendant and two other people. Standing outside of the car was a man
17
who had money in his hand. No transaction was witnessed, but one of the officers
observed defendant make movements toward the floor as if he was retrieving
something. The police stopped their car facing defendant’s, exited, and approached.
On approach, one of the officers saw defendant place a handgun into a plastic bag and
toss it into the back seat. At that point, an officer removed defendant from the car
while another recovered the gun. When asked if he had a concealed carry license,
defendant said he did not.
The Appellate Court concluded that the initial stop and approach by the police
officers was not a seizure. The removal of defendant from the vehicle and recovery of
the gun was a Terry stop and protective sweep justified by the totality of the
circumstances, including the presence in a high crime area, defendant’s movements
toward the floorboard, and defendant’s possession of a gun. Defendant’s subsequent
arrest was justified by his possession of the handgun, which he tried to conceal and
for which he admitted not having a concealed carry license.
The dissent criticized the use of a “high-crime area” as a basis for upholding
the Terry stop and protective sweep here, noting that constitutional protections are
not suspended simply by virtue of being present in such an area. The dissent would
have found the initial approach of the police to have been a seizure that was not
justified by reasonable suspicion.
(Defendant was represented by Assistant Defender Rachel Kindstrand,
Chicago.)
§§43-3(b)(2), 43-3(c)(2)
People v. Spain, 2019 IL App (1st) 163184 (12/27/19)
The police received an anonymous call about a man with a gun at a specific
location. When they arrived, the officers observed a group of men, including
defendant who was stuffing a black object into his pants which appeared to be the
handle of a gun. The officers approached, conducted a pat down of defendant,
recovered a gun, and placed defendant under arrest.
The initial Terry stop was justified by the anonymous tip along with the fact
that there was a “safety alert” for the area. The safety alert was based on a tip that
one gang was planning to shoot up the address of a rival gang member. That address
was adjacent to the address where defendant was found. And, defendant was seen
with what appeared to be a gun handle sticking out of his waistband.
Defendant also argued that police did not have probable cause to arrest him
for unlawful possession of a weapon because they did not ask whether he had a valid
concealed carry license prior to placing him under arrest. The Appellate Court
18
disagreed, concluding that an individual’s failure to voluntarily produce such a
license is a factor to be considered in determining whether there is probable cause to
arrest. Other factors here included that defendant attempted to fully conceal the
weapon when the officers approached and was acting nervously. While the better
course would be to ask whether a suspect has a concealed carry license before arrest,
the failure to ask that question was not fatal here.
(Defendant was represented by Assistant Defender Maggie Heim, Chicago.)
§§43-3(b)(3), 43-3(d)(2)
People v. Flunder, 2019 IL App (1st) 171635 (12/26/19)
The police do not have the right to conduct a protective pat-down based on
safety concerns during a consensual police-citizen encounter. Here, the officer
approached defendant as he stood near a car parked in a gas station. He asked
defendant for his license, and as the defendant nervously probed his pocket, the
officer, fearing for his safety, conducted a pat-down, during which he discovered a
gun.
While the officer knew there had been shootings in the area, he had no
articulable reason to suspect defendant had been involved. The lack of reasonable
suspicion for a Terry stop precludes a Terry frisk. Thus, the gun was suppressed.
The court went on to hold that regardless, the officer failed to articulate reasonable
grounds to fear for his safety. Any reasonable person would be nervous when
randomly approached and questioned by the police, and it was not unusual for
defendant to reach into his pocket given that the officer requested his driver’s license.
(Defendant was represented by Assistant Defender Lauren Bauser, Chicago.)
§§43-3(d)(2), 43-6(a)
People v. Jordan, 2019 IL App (4th) 190223 (12/12/19)
Police officers received a tip of a “suspicious vehicle” parked in a “high crime”
area. Officers approached, and while one officer asked defendant questions, the other
saw in plain view a small plastic baggie on the floorboard. In the officer’s experience,
it was the type of baggie used for drugs. The officers ordered defendant out of the car
and called for a dog sniff, which five minutes later resulted in the discovery of
methamphetamine. The trial court suppressed the meth, finding that while the initial
encounter was not a seizure, defendant was seized when he was removed from the
vehicle, and that this seizure and the subsequent search were not justified by the
observation of a baggie that may have had an innocent use.
19
The Appellate Court reversed. It agreed, contrary to defendant’s contention,
that the initial encounter was not a seizure, but rather a consensual encounter under
the Mendenhall factors. Only two officers approached the vehicle, they did not
display their weapons, they did not command defendant to comply with their orders,
and they did not block defendant from leaving. Next, the court held that the officers
had reasonable suspicion at the time they did seize defendant by pulling him from
the car and holding him until the drug dog arrived. The small baggie, which in the
officers’ experience tended to be associated with drug dealing, gave the officers
reasonable suspicion. While the trial court found, and the Appellate Court did not
dispute, that such baggies are not exclusively used for drugs, and the observation of
such a baggie would not lead to probable cause, here, given the circumstances – found
on a floorboard in a suspicious vehicle in a high crime area – it did justify further
investigation.
(Defendant was represented by Assistant Defender Edward Wittrig,
Springfield.)
§43-6(a)
People v. Dunmire, 2019 IL App (4th) 190316 (12/20/19)
At defendant’s DUI trial, the trial court erred in suppressing evidence of
defendant’s intoxication due to an illegal traffic stop. The officer testified at the
suppression hearing that he stopped defendant’s vehicle based on a suspicion of
illegally tinted windows. The officer admitted he did not have the instrument
necessary to measure window tint, and in fact misstated the legal tint level (section
12-503 sets the legal tint level at 35%, while the officer testified it was 30%). However,
based on his experience, a window tint is illegally dark if he cannot see the outline of
the driver through the window, and here he could not see through the window at all.
The trial court suppressed, finding the officer had no way to confirm whether the tint
was too dark.
The Appellate Court reversed. In reviewing a motion to suppress based on an
improper stop, the only question is whether the officer had reasonable suspicion of
criminal activity. Here, regardless of whether the officer could prove his suspicion
without the necessary tint-measuring instrument, the officer provided sufficient
articulable facts to justify the stop, namely, his inability to see through the window
at all. It is reasonable for an officer to conclude that if the window completely blocks
out all light, then it surpasses the 35% tint level set by the statute. The court
remanded for trial on the DUI charges.
20
SENTENCING
§§44-1(c)(4), 44-1(c)(5)
People v. Handy, 2019 IL App (1st) 170213 (12/26/19)
The trial court did not err in denying defendant leave to file successive post-
conviction petition. Defendant could not demonstrate prejudice where his petition
alleged that his 120-year aggregate sentence for crimes committed when he was 18.5
years old was unconstitutional as applied. Defendant was an adult and therefore was
not entitled the same Eighth Amendment protections afforded to juveniles under
Miller. And, defendant could not make out a proportionate penalties claim because
he was an active participant in the armed robbery, home invasion, kidnaping and
sexual assault, rather than a lookout, and because the sentence here was
discretionary and not mandatory, both factors which distinguished the case from
People v. House, 2019 IL App (1st) 110580-B. The appellate court concluded that
although defendant’s sentence was “harsh,” the trial court properly denied leave to
file his successive post-conviction petition.
§44-3(b)
People v. Maron, 2019 IL App (2d) 170268 (12/31/19)
The trial court had discretion to consider defendant’s illegally obtained
confession at his sentencing hearing. Defendant pled guilty to three offenses. While
he was in custody for these offenses, and represented by counsel, detectives asked
him about a fourth uncharged offense, then continued to elicit statements concerning
the charged offenses. Counsel was not present and not notified.
At sentencing, the State conceded that the statements would not have been
admissible had the case proceeded to trial. Nevertheless, the State argued and the
sentencing court agreed that the statements could be used at sentencing. The
Appellate Court affirmed. It rejected defendant’s contention that a statement taken
in violation of the Sixth Amendment must always be suppressed at a sentencing
hearing, and it found that the trial court properly applied the exclusionary-rule
balancing test applicable to the use of such statements at a sentencing hearing. Given
the lax evidentiary standards at sentencing, the overriding goal of crafting an
appropriate sentence with as much relevant and reliable information as possible, and
the minimal deterrent value in excluding the video at sentencing, the trial court did
not abuse its discretion in admitting the statements.
(Defendant was represented by Assistant Defender Steven Walker, Elgin.)
21
§44-4(c)
People v. Cross, 2019 IL App (1st) 162108 (12/26/19)
At sentencing for convictions of sexual assault and aggravated kidnaping, the
State cited in aggravation defendant’s prior convictions of aggravated unlawful use
of a weapon and unlawful use of a weapon by a felon. The Appellate Court vacated
those prior convictions under In re N.G., 2018 IL 121939, and remanded the matter
for resentencing. While the court had conducted a thorough sentencing hearing, the
court found it “more prudent” to remand the matter for a new sentencing hearing
“where the trial court may impose the same sentence or a different one.”
(Defendant was represented by Assistant Appellate Defender Michael
Orenstein, Chicago.)
SPEEDY TRIAL
§46-9
People v. Moffett, 2019 IL App (2d) 180964 (12/18/19)
State appealed the trial court’s dismissal of insulting-or-provoking aggravated
battery charge on speedy trial grounds where that charge was added after defendant
had agreed to continuances while only the original bodily-harm aggravated battery
charge was pending.
Whether delay attributable to defendant on an original charge is also
attributable to defendant on a subsequent charge depends on whether the subsequent
charge is a “new and additional charge” under the rule set out in People v. Williams,
204 Ill. 2d 191 (2003). Here, while the subsequent charge added the element of
insulting or provoking contact, it was not a new and additional charge because the
underlying conduct was the same, the potential penalty is the same, and the original
charge gave adequate notice to allow defendant to prepare for trial on both counts.
Accordingly, the delay attributable to defendant on the original charge was also
attributable on the subsequent charge, and there was no speedy trial violation.
(Defendant was represented by Assistant Defender Sade Edwards, Elgin.)
22
STATUTES
§§47-3(a)(3), 47-3(b)(8)
People v. Eubanks, 2019 IL 123525 (12/5/19)
Section 11-501.1 of the Vehicle Code, which allows police officers to forcibly
withdraw defendant’s blood or urine when there is probable cause of intoxication in
a case involving an auto accident with death or injury to another, violated the Fourth
Amendment in this case. Defendant made a facial challenge to the statute. While
facial challenges under the Fourth Amendment are permissible, and are not
foreclosed merely because the statute would not apply in cases where the officer has
a warrant, exigent circumstances, or consent, this statute comports with the “general
rule” that exigent circumstances exist when BAC evidence is dissipating, and some
other factor, such as a death or injury, creates a pressing concern that takes priority
over a warrant application.
After Schmerber v. California, 384 U.S. 757 (1966), Missouri v. McNeely,
569 U.S. 141 (2013), and Mitchell v. Wisconsin, 588 U.S. ___, 139 S. Ct. 2525 (2019),
the courts must employ a totality-of-the-circumstances test when analyzing the
constitutionality of warrantless blood or urine draws in DUI cases, but this test is
guided by the “general rule” that, due to BAC dissipation, exigent circumstances will
exist when there is a traffic accident causing personal injury or when the suspect is
unconscious. Nevertheless, defendant can rebut application of the general rule by
showing that the blood/urine draw was solely for law enforcement purposes, and that
the “police could not have reasonably judged that a warrant application would
interfere with other needs or duties.”
Here, defendant established that no reasonable officer could have believed a
warrant application would interfere with the investigation. The defendant was
arrested around 9 p.m. and taken to the station where he was not interviewed until
10:30 p.m. The interviewing officer claimed defendant smelled like alcohol, and
defendant refused a breath test, but he was not taken to the hospital for blood/urine
samples until 3 a.m. The blood draw occurred at 4:10 a.m., and the urine sample was
given at 5:20 a.m. Given that seven hours passed between the arrest and the blood
draw, a warrant application would not have increased the delay. Thus, the general
rule of exigent circumstances does not exist here, and the statute is unconstitutional
as applied to defendant’s case.
(Defendant was represented by Assistant Defender Deepa Punjabi, Chicago.)
23
THEFT AND OTHER PROPERTY OFFENSES
§48-8
People v. Holt, 2019 IL App (3d) 160504-B (12/11/19)
Evidence was sufficient to sustain defendant’s conviction of burglary of
Walmart based upon entry “without authority” when he entered during regular
business hours, concealed a backpack behind a coin machine in the vestibule, and
removed merchandise from the store without paying for it and hid it in the backpack.
The evidence showed defendant had the intent to commit retail theft when he entered
the premises, which is all that is required to sustain a burglary conviction.
Likewise, defendant’s retail theft conviction was upheld. While the State did
not introduce evidence that the specific items were missing from Walmart’s
inventory, defendant was seen concealing the items in the backpack in the Walmart
vestibule, the items had Walmart tags on them, and a manager scanned the items
and determined they were items offered for sale at that Walmart.
(Defendant was represented by Assistant Defender James Wozniak, Ottawa.)
TRAFFIC OFFENSES
§49-2(c)
People v. Eubanks, 2019 IL 123525 (12/5/19)
Section 11-501.1 of the Vehicle Code, which allows police officers to forcibly
withdraw defendant’s blood or urine when there is probable cause of intoxication in
a case involving an auto accident with death or injury to another, violated the Fourth
Amendment in this case. Defendant made a facial challenge to the statute. While
facial challenges under the Fourth Amendment are permissible, and are not
foreclosed merely because the statute would not apply in cases where the officer has
a warrant, exigent circumstances, or consent, this statute comports with the “general
rule” that exigent circumstances exist when BAC evidence is dissipating, and some
other factor, such as a death or injury, creates a pressing concern that takes priority
over a warrant application.
After Schmerber v. California, 384 U.S. 757 (1966), Missouri v. McNeely,
569 U.S. 141 (2013), and Mitchell v. Wisconsin, 588 U.S. ___, 139 S. Ct. 2525 (2019),
the courts must employ a totality-of-the-circumstances test when analyzing the
constitutionality of warrantless blood or urine draws in DUI cases, but this test is
guided by the “general rule” that, due to BAC dissipation, exigent circumstances will
exist when there is a traffic accident causing personal injury or when the suspect is
unconscious. Nevertheless, defendant can rebut application of the general rule by
24
showing that the blood/urine draw was solely for law enforcement purposes, and that
the “police could not have reasonably judged that a warrant application would
interfere with other needs or duties.”
Here, defendant established that no reasonable officer could have believed a
warrant application would interfere with the investigation. The defendant was
arrested around 9 p.m. and taken to the station where he was not interviewed until
10:30 p.m. The interviewing officer claimed defendant smelled like alcohol, and
defendant refused a breath test, but he was not taken to the hospital for blood/urine
samples until 3 a.m. The blood draw occurred at 4:10 a.m., and the urine sample was
given at 5:20 a.m. Given that seven hours passed between the arrest and the blood
draw, a warrant application would not have increased the delay. Thus, the general
rule of exigent circumstances does not exist here, and the statute is unconstitutional
as applied to defendant’s case.
(Defendant was represented by Assistant Defender Deepa Punjabi, Chicago.)
§49-5
People v. Eubanks, 2019 IL 123525 (12/5/19)
Section 11-401 of the Illinois Vehicle Code requires the driver of a vehicle
involved in an accident resulting in injury or death to remain at the scene and if the
driver does not remain at the scene, report, within 30 minutes, the details of the
incident to the police. Here, defendant did not remain at the scene, but was
apprehended within 10 minutes of the accident. He was convicted of leaving the scene
and failing to report the incident within 30 minutes. The Supreme Court affirmed,
finding the evidence sufficient where defendant was subjected to police questioning
upon his arrest and denied any involvement in the accident. While the Appellate
Court held that such a holding would burden defendant’s right against self-
incrimination, defendant did not advance this argument before the Supreme Court.
The Supreme Court noted that the evidence of defendant’s fail to report stemmed
from his post-arrest statements, not his silence.
(Defendant was represented by Assistant Defender Deepa Punjabi, Chicago.)
TRIAL PROCEDURES
§51-2(a)
People v. Clayton, 2019 IL App (3d) 170315 (12/18/19)
Trial court did not abuse its discretion in replacing juror who it believed had
been sleeping during portions of the trial. While the judge should have acted on his
25
suspicions about the juror’s inattentiveness earlier in the process, it was not error to
excuse the juror after he revealed his dismissive views of the evidence that had been
presented. Juror’s assessment of the evidence was attributable to his inattentiveness.
Further, defense counsel’s waiver of defendant’s presence for the in
camera questioning and replacement of the excused juror, even if error, did not result
in a constitutional denial of defendant’s right to be present where defendant did not
allege he was denied an impartial jury.
(Defendant was represented by Assistant Defender James Wozniak, Ottawa.)
WAIVER - PLAIN ERROR - HARMLESS ERROR
§§54-1(a), 54-3(d)(1)(b)
People v. Torres, 2019 IL App (1st) 151276 (12/20/19)
In a shooting case where the question was whether defendant had the intent
to kill, and should be convicted of attempt murder, or whether he merely had the
intent to frighten, and should be convicted of a lesser offense, the State elicited false
testimony from defendant’s accomplice that he had pled guilty to attempt murder for
his role in the incident. The accomplice did not plead guilty to attempt murder, as
that charge had been reduced to a lesser offense. Defendant alleged this false
testimony violated his right to due process.
The Appellate Court first rejected the State’s forfeiture argument, finding that
a party does not forfeit an error involving the false, uncorrected testimony elicited by
the opponent. Also, whether the prosecutor actually knew the statement to be false
does not matter, as the prosecutor’s office knew the accomplice did not plead to
attempted murder, and that knowledge is imputed to the prosecutor at trial. Finally,
the Court held that if there is any reasonable likelihood that the false testimony could
have affected the jury’s verdict, the defendant is entitled to a new trial, regardless of
the lack of an objection. Because the jury was falsely told that the accomplice pled
guilty to attempted murder, the jury could have concluded that defendant must also
be guilty of this offense. While the dissent would have found the error harmless, the
majority pointed out that even if evidence of defendant’s participation in the offense
was overwhelming, evidence of his state of mind at the time of the shooting was close.
As such, the false statement was material and required a new trial.
(Defendant was represented by Assistant Defender Stephanie Puente,
Chicago.)
26
§§54-1(b)(7)(b), 54-3(d)(1)(a)
People v. Holloway, 2019 IL App (2d) 170551 (12/6/19)
In a prosecution for violation of bail bond, attorney-client privilege was not
violated by allowing State to ask defendant’s prior counsel about a phone
conversation he had with defendant on the date defendant failed to appear for trial.
The call did not involve legal advice or strategy, and it was made by counsel from the
courtroom when others were present, so defendant could not reasonably expect it
would remain secret. Further, defendant both forfeited and invited the error by not
objecting to use of the specific statement in question and by attempting to use the
statement to discredit his prior counsel and advance his theory of defense that
counsel deliberately did not remind him about upcoming court dates. Finally, even if
there was error, it was harmless because there was no reason to think the statement
had any impact on the sole contested question at trial, that being whether defendant’s
absence from the proceedings was willful.
§54-2(e)(2)(b)
People v. Holt, 2019 IL App (3d) 160504-B (12/11/19)
Prosecutor committed misconduct by noting in closing argument that
defendant had not offered the police an explanation for why he had stolen goods and
arguing that “if I didn’t commit a crime, I would say something to the officers.” This
invited the jurors to use defendant’s post-arrest silence as evidence against him.
Defense counsel did not object, however, and the error did not rise to the level of first
prong plain error where the evidence was not closely balanced. Similarly, because the
ineffective-assistance-of-counsel prejudice analysis is similar to the first-prong plain-
error analysis, defense counsel did not render ineffective assistance by failing to
object.
(Defendant was represented by Assistant Defender James Wozniak, Ottawa.)
WEAPONS
§55-1(a)
People v. Cross, 2019 IL App (1st) 162108 (12/26/19)
At sentencing for convictions of sexual assault and aggravated kidnaping, the
State cited in aggravation defendant’s prior convictions of aggravated unlawful use
of a weapon and unlawful use of a weapon by a felon. The Appellate Court vacated
those prior convictions under In re N.G., 2018 IL 121939, and remanded the matter
for resentencing. While the court had conducted a thorough sentencing hearing, the
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court found it “more prudent” to remand the matter for a new sentencing hearing
“where the trial court may impose the same sentence or a different one.”
(Defendant was represented by Assistant Appellate Defender Michael
Orenstein, Chicago.)
WITNESSES
§56-6(b)(4)(c)
In re T.R., 2019 IL App (4th) 190529 (12/24/19)
During cross-examination of respondent, the State, over defense objection,
introduced prior inconsistent statements made during a polygraph examination. The
trial court overruled the objection, and the Appellate Court affirmed. As a matter of
first impression in Illinois, the Appellate Court held that prior inconsistent
statements made during a polygraph examination are admissible to the same extent
as any other prior inconsistent statement, provided that all references to the
polygraph examination are removed.
(Respondent was represented by Assistant Defender Salome Kiwara-Wilson,
Springfield.)
