Created with Sketch.
7 minutes | 5 years ago
Episode 1: Prior Inconsistent Statement Mini-Course Introduction
People v. Evans, 2016 IL App (3d) 140120 (July). Episode 223 (Duration 6:52) Prosecutor gets a little aggressive with a codefendant who improperly took the fifth. Background In this murder trial, the defendant was accused of felony murder in the shooting of a gas station clerk. Defendant's codefendant had already been convicted and was put on the stand even though counsel knew he would plead the fifth. The prosecutor granted use immunity and the witness was admonished he had to answer. Nonetheless, he continued to plead the fifth. The prosecutor kept him up there and kept going at him. 20 times he said he was pleading the fifth. Defendant filed a motion for a new trial, in which he argued, among other things, that the trial court erred by allowing the State to continue to examine the codefendant in the presence of the jury where the examination amounted to testimony by the prosecutor and assumed facts not in evidence. Here, leading questions tracked his testimony in his own trial. Issue Defendant argued that he is entitled to a new trial because the manner in which the prosecutor questioned the codefendant deprived him of his constitutional right to confront witnesses against him. (Even the issue as presented by the defense was technically inaccurate.) Defendant claimed prejudice because of the inferences that could have been made from the refusal to answer added “critical weight” to the State's case in a form not subject to cross-examination. Namely, that the codefendant ran away from the gas station with Defendant, that Defendant was the shooter, and that they hid the gun at his sister's house. State's Position The prosecutor had argued that her questioning was proper for impeaching the response that the witness did not remember being with defendant on the day of the murder. The continued questioning was not error because he had answered some questions, which created an inference he might be willing to answer additional questions. Reviewing Court The reviewing court is wrong in holding that had the prosecutor laid a proper foundation she would have been entitled to impeach the witness with his prior inconsistent statement from his own trial. The court said the witnesses testimony that he did not remember was inconsistent per Rule 801(d)(1)(A)(1). This is just wrong. The error, said the court, was that the prosecutor never attempted to lay a proper foundation regarding the prior statement made by, and she failed to offer any substantiating proof of the statement to complete the so-called impeachment. The Gist of the Error The gist of the error was that the prosecutor improperly disclosed the substance of the codefendant's alleged prior statement to the jury through leading or suggestive questions, which presumed facts not in evidence. This is actually correct (plus the resulting prejudice). Then Right Back to Shaky Reasoning This conclusion is shaky though: “Consequently, without the admission of the prior statement, the prosecutor's leading questions that placed [the witnesses] alleged prior inconsistent statement before the jury constituted improper impeachment under applicable evidentiary rules.” I don't see this as a confrontation clause issue. The court made no attempt to justify this holding with case law. Arguably, since the witness was on the stand “answering questions” he was sufficiently confronted. The trail court again reiterated that the witness responded, “I plead the Fifth” to 20 questions. As a result of the leading questions, the State's theory of the case regarding the circumstances of the murder was placed before the jury. Again, with no attempt to put into evidence the witness's prior statement, the testimonial aspects of the examination of the witness regarding the circumstances of the crime came from the prosecutor's questions and not from the witness. Final Holding The court's final holding was that that regardless of the grant of immunity to and regardless of whether he actually had the right to assert the fifth amendment, without the admission of the prior statement, defendant's right to confrontation was violated where, over defendant's objection, in the presence of the jury, the witness refused to answer 20 of the prosecutor's leading and suggestive questions about the alleged crime. Murder conviction was reversed because this was not harmless error. Here, the prosecutor improperly brought every detail of the codefendant's prior testimony to the attention of the jury, and it could be argued that it had a prejudicial influence in the minds of the jury due to the indication that the defendant committed the crime for which he was being tried.
8 minutes | 5 years ago
Can Jury Hear of the Civil Consequence for Refusing to Blow?
People v. Romanowski, 2016 IL App (1st) 142360 (August). Episode 222 (Duration 8:07) Is it prejudicial to tell the jury that defendant was told if he refused to blow that his DL would be suspended?
9 minutes | 5 years ago
Warrantless Search of Hotel Room Exceeds The Scope of Search Incident to Arrest
People v. Franklin, 2016 IL App (1st) 140059 (August). Episode 221 (Duration 9:15) Police find weed in this hotel room, but the warrantless search of the room exceeded the scope of a search incident to arrest.
31 minutes | 5 years ago
August 2016 Criminal Case List
The August 2016 Illinois criminal case list weighed in 30 published cases. Don't worry if you didn't get to them. Listen to audio round-up and download your copy of the case list. This is Episode 220 (Duration 31:14). [powerpress] Subscribe: iTunes | Android | RSS iTunes Android RSS All you have to do is three things to know you've mastered the August cases: (1) listen to episode 220 which is about 30 minutes long, (2) download the case list and pursue at your own leisure, and (3) join the Premium Nuggets and stop messing around. Here are the... Top 10 from the August 2016 Illinois Criminal Case List 1. People v. Franklin Police overstepped this consent search of a hotel room. They find weed for sure and arrest defendant for that, but a search incident to arrest is no longer a free pass to search everything. Go to case. 2. People v. Williams Police say to defendant, "Come over here?" What do you think? Was he seized at that moment? Go to case. 3. People v. Tates The single most frequent error trial judges are making with search warrant cases. It has to to do with constructive possession. Go to case. 4. People v. Carey This has to be what can only be described as the world's worst armed robbery of an armored car. Short of getting himself killed it couldn't get any worse for this defendant. Go to case. 5. People v. Olivieri The SNSR defense was invented by police who found themselves in a little trouble. This defendant is able to beautifully apply it to his own criminal defense...and he wins! Go to case. 6. People v. Garner The most frequently overlooked and forgotten rule of evidence that can be employed by the defense just can't get any respect. Are litigators astutely staying clear of this thing or do they just don't know about it? Go to case. 7. People v. Fountain The reason why this defendant was convicted even though there was shaky DNA evidence, unreliable cell phone evidence, and a less than perfect 4 second observation by an eyewitness probably has to do with a lottery ticket. Go to case. 8. People v. Jones What issue should never be appealed in a criminal law case. Knowing a little latin would have saved this defendant a whole bunch of anguish. Go to case. 9. People v. Arbuckle The secret to avoiding a double enhancement in aggravated battery sentences. This won't work in a murder sentencing. Go to case. 10. People v. Romanowski WARNING - "The Warning To Motorist" cannot be discussed in front of the jury in one appellate district...seems to be cool in the rest of them. Go to case. Download Don't waste your time sifting through cases, I've already done all the work for you. To get your hands on the August 2016 Illinois criminal case list just click the image below.
8 minutes | 5 years ago
15 minutes | 5 years ago
July 2016 Illinois Criminal Case List
July was the month that pro se defendant, Steven Geiler, lost his case. He gave us all quite a ride. What are you gonna do? Welcome to the club Geiler. You work your butt off in a case and just like that you go right back to where you started. This is Episode 214 (Duration 14:39) [powerpress] Subscribe: iTunes | Android | RSS iTunes Android RSS There were, of course, other cases. Here's what the courts were up to in July: Illinois Supreme Court 1. People v. Geiler Pro se guy who was able to convince the trial judge to dismiss his speeding ticket because of a Rule 552 violation. He then wins at the appellate level. Then he takes it to the Illinois Supreme Court. He argues his own case, and there the court tells him a little police incompetence ain't so bad. Where's your prejudice? Go to case. Other Lower Reviewing Courts 2. People v. Taylor This case involved a nonconsensual PBT (preliminary breath test). You ever wonder what a nonconsensual PBT looks like? Man, it ain't pretty. Hit play to find out what happened. Go to case. 3. In re L.W. This case involves the type of super niche knowledge few prosecutors keep track of. A defense attorney who has this principle in mind can really benefit their client. Hint: It has to do with receiving a good chunk of credit for time served. Go to case. 4. People v. Zambrano Trial counsel was found to be ineffective here for not ensuring a certain jury instruction was given. Now, the rest of know to look for this and won't miss it in our cases. Go to case. 5. People v. Burhans This involved an expert forensic nurse testifying for the state. Anytime an expert gets up they pretty much can say anything they want right? WRONG! Trial courts are really reining in some opinions. Go to case. 6. People v. Evans The number one source of trial error popped up again. This time it was bad. Everyone, I mean everyone just trips over themselves trying to explain the error or lack of error. Go to case. Download Don't waste your precious summer evenings sifting through cases that may never even help you. I've done all the work for you. To get your hands on the July Illinois criminal case List just click the image.
7 minutes | 5 years ago
No Double Enhancement Problem When Injury Is Really Bad
People v. Arbuckle, 2016 IL App (3d) 121014-B (August). Episode 218 (Duration 7:08) Bodily harm may be considered an aggravating factor without employing a double enhancement if the injury is above a threshold level. Well known that a death cannot be considered a factor in aggravation in a murder. Facts This guy wacks his girlfriend with a golf club breaking her arm. Then he jabbed her with the broken end. Her arm was pretty much shattered, a “Grade I open left ulna shaft fracture with comminution involving greater than 5 pieces.” She couldn't use it anymore. Extended Term Issue Defendant argued the judge improperly thought he was extended term eligible on the class 3 aggravated battery. He was only extended term eligible on the class 2 aggravated domestic battery. Defendant is right that he was not extended term eligible on the class 3 but there is no evidence the judge thought he was. See 730 ILCS 5/5-8-4(a). Double Enhancement Issue Also, the defendant argued he was subjected to a double enhancement because the trial judge considered the victim's harm as an aggravating factor. We have some good language on this issue. In People v. Saldivar, 113 Ill. 2d 256 (1986), our supreme court stated: “Certain criminal conduct may warrant a harsher penalty than other conduct, even though both are technically punishable under the same statute. Likewise, the commission of any offense, regardless of whether the offense itself deals with harm, can have varying degrees of harm or threatened harm. The legislature clearly and unequivocally intended that this varying quantum of harm may constitute an aggravating factor…[T]he severity of the sentence depends upon the degree of harm caused to the victim and as such may be considered as an aggravating factor in determining the exact length of a particular sentence, even in cases where serious bodily harm is arguably implicit in the offense for which a defendant is convicted.” Death is Different Death is different because it does not come in various degrees. The degree of great bodily harm must still rise above a baseline level before a court may consider the harm as an aggravating factor. We were clearly above that baseline level in this case. The bone had failed to mend despite extensive treatment and therapy. The victim suffered from continued pain that affected her on a day-to-day basis, and the injury still required further surgery.
7 minutes | 5 years ago
What The Hell Does “Nunc Pro Tunc” Mean?
People v. Jones, 2016 IL App (1st) 142582 (August). Episode 217 (Duration 7:23) A nunc pro tunc order is not a way to predate a court order. Facts Defendant was arrested and released on crime A. Later, he was arrested anew for crime B. Defendant asked the court to exonerate his bond nunc pro tunc to the arrest date on crime B so that he could get credit on crime A for the time he was in custody for crime B. The State did not object and presumably intended that the defendant would be considered in custody on charge as well. Nunc Pro Tunc Order Nonetheless, the reviewing court said the trial court was in error when it entered the nunc pro tunc for the simple reason that there was no order ever entered that omitted something the court previously did or that needed correction or clarification. You see, the use of “nunc pro tunc” orders or judgments is limited to incorporating into the record something which was actually previously done by the court but inadvertently omitted by clerical error. See People v. Melchor, 226 Ill. 2d 24, 32 (2007); see also Harreld v. Butler, 2014 IL App (2d) 131065, ¶ 13. A “nunc pro tunc” order is an entry now for something previously done, made to make the record speak now for what was actually done then. Because a “nunc pro tunc” amendment may reflect only what the trial court actually did, it must be based on some note, memorandum, or other memorial in the court record. No Pretense Here is the big one: An order entered nunc pro tunc may not supply omitted judicial action or correct judicial errors under the pretext of correcting clerical orders. While defendant was on bond in this case he decided to surrender on another unrelated charge. He was never brought before any court on this charge nor did he make any attempt to exonerate his bond until after he was arrested on the other charge. Defendant wants credit against this sentence for the time he was in custody on the unrelated charge, claiming a nunc pro tunc order entitles him to the credit even though he did not surrender his bond in this case until he appeared before the trial judge in this case. (Revoking bond is being used the same way as exonerating his bond.) A defendant who is out on bond on one charge, and who is subsequently rearrested and returned to custody on another charge, is not returned to custody on the first charge until his bond is withdrawn or revoked. A defendant arrested while on bond remains on bond until the bond is exonerated, at which point the defendant will be considered to be in simultaneous custody on both charges. Giving effect to the “non pro tunc” order would effectively give the circuit court, the defendant and the State the power to increase the in custody credit beyond the parameters set by the legislature under 730 ILCS 5/5-4.5-100(b). The mittimus was ordered to be corrected to reflect the loss of the credit defendant was seeking. The only reason it was before the court is because he was fighting for three additional days, instead he ended up losing 50.
7 minutes | 5 years ago
Defendant’s Character Is Proper Admissible Evidence
People v. Garner, 2016 IL App (1st) 141583 (August). Episode 216 (Duration 7:21) Expert witness may testify as to the defendant's character to commit the crime.
8 minutes | 5 years ago
Sympathetic Nervous System Reaction Wins The Day In This Gun Case
People v. Olivieri, 2016 IL App (1st) 152137 (August). Episode 215 (Duration 8:18) Insufficient evidence to prove reckless discharge of a firearm by this conceal and carry permit holder; SNSR wins the day.
6 minutes | 5 years ago
Expert Witnesses Under Higher Scrutiny
People v. Burhans, 2016 IL App (3d) 140462 (July). Episode 213 (Duration 5:38) Harmless error to allow this sex case expert to testify about unsupported opinion testimony. This was a predatory criminal sexual assault conviction with an expert nurse. The expert was in pediatric nursing, advanced forensic nursing, and in evaluating children of suspected sexual abuse. Expert Testimony She testified that numerous research studies show that frequent physical and anogenital exams result in normal findings even in cases of abuse. She also referenced other studies that analyzed injury to the anogenital area and concluded that the area healed “very rapidly and often without any residual injury.” She further testified that “95 percent of the time outside of 72 hours the exam is perfectly normal.” Holding Experts may premise their testimony on information and opinions obtained from the reading of standard publications on which their opinions are based. However, while an expert does not have to name the publication upon which she relied, the expert must show that the general consensus of the medical and forensic community recognizes the study upon which the expert relies. In this case, the nurse neither identified any publication nor testified that the general consensus of the medical and forensic science community recognize the studies she cited, thus it was error for the trial court to overrule the defense objection to the nurses references to the conclusions of unidentified research studies. Court talked about laying a proper foundation for experts but this is basically a 403 argument. See http://illinoiscaselaw.com/expert-witness-new-foundational-element/
11 minutes | 5 years ago
Dirty Rat Accomplice Trial Leads To Ineffective Assistance
People v. Zambrano, 2016 IL App (3d) 140178 (July). Episode 212 (Duration 10:30) Ineffective assistance of counsel for not giving the accomplice instruction leads to murder reversal. Facts This was a murder involving at least 4 known culprits. The victim was shot in the head after opening his apartment door. This was a dispute over a girl. The defendant was seen and recorded in the presence of the other suspects. One of those individuals testified in an early trial then testified again against defendant. However, this time he invoked his 5th Amendment right to not incriminate himself and only testified after the State granted him use immunity. Defense Argument Defense counsel argued defendant was not present for the killing and that a codefendant alone murdered the victim. The State's Witness Further the state’s witness was the only witness to identify his client as participating in the murder. Counsel recited jury instructions regarding witness credibility and argued that the sole eyewitness was not a credible witness. He suggested that this witness received leniency on his prior charges and hoped to do so for his pending charge in exchange for his testimony. Illinois Pattern Jury Instruction 3.17 IPI 3.17 says that… “When a witness says he was involved in the commission of a crime with the defendant, the testimony of that witness is subject to suspicion and should be considered by you with caution. It should be carefully examined in light of the other evidence in the case.” The instruction should be given when there is probable cause to believe the witness, not the defendant, was responsible for the crime as a principal or as an accessory under an accountability theory, despite his denial of involvement. Indeed, testimony of accomplices should be viewed with suspicion and accepted only with great caution, especially where the witnesses were promised leniency or where the testimony was induced with a grant of immunity. Where the accomplice testifies, strategic reasons for not requesting the accomplice-witness instruction typically have eluded the courts. Was There Any Reason To Not Give It? During cross-examination of the state’s witness, defense counsel impeached him with his prior inconsistent statements to the police during his initial interview. He was also examined about bias regarding the criminal DWLR charges he faced after the murder, and their disposition, including dismissal and reduction of charges, which took place after his testimony at the first codefendant’s trial. Defense counsel also used the general jury instructions regarding witness credibility to portray the state’s witness as a noncredible witness. Throughout the proceedings, the defense asserted that he was a liar, whose testimony was impeached by his prior inconsistent statements and the videos from the apartment complex, that his pending cases were resolved favorably after his prior testimony and that he was not a believable witness. Definitely An Accomplice There is no doubt that the evidence at trial and the reasonable inferences that can be drawn from the evidence establish probable cause that the state’s witness acted as an accomplice. He entered the building with defendant and the first codefendant and left with them. This witness testified under a grant of use immunity, the jury should have been instructed that it should carefully scrutinize his testimony in light of his role as an accomplice. The testimony was detrimental to defendant in that it created the inference that defendant was the shooter, or at least acted in concert with the shooter. This was the only evidence establishing defendant’s participation. Holding These circumstances, coupled with the fact that defense counsel embraced the strategy that the witness could not be trusted, reinforce the need for the accomplice witness instruction. There is no reasonable purpose for leaving out the instruction. Counsel’s failure to submit an instruction on accomplice testimony prejudiced defendant by depriving the jury of critical information it needed to evaluate the witnesses testimony. Reversed and remanded. I can totally see another panel going the other way with this with a holding that there was prejudice.
9 minutes | 5 years ago
DUI Reversed After Nonconsensual PBT
Forced PBT leads to suppression of DUI evidence and DUI reversal. Facts Defendant parks his car to ask the officer following him for directions. The officer conducts FSTS, but he munks them all up. FST Results The trial judge said that in light of the instructional errors, defendant’s performance was “satisfactory,” he had “no difficulties performing the tests, no problems with swaying or balance or other issues as to that.” The trial court found that defendant did not consent to the PBT and therefore it was suppressed. The officer never asks the defendant if he would take test, instead he essentially just jams the thing in his mouth. Issue The creates the question the state wanted the reviewing court to answer on appeal: Does a PBT have to be consensual or can it be forced? The Statute 625 ILCS 5/11-501.5(a) says that if there is reasonable suspicion, an officer “may request” a PBT, and the suspect “may refuse.” The Interpretation The “request” and “refuse” elements of the PBT statute together the statutory use of the phrase “may refuse” denotes a choice, and the phrase would have no meaning if it did not signal that the suspect had the choice to take, or to refuse, the “requested” PBT. Thus, some level of consent or choice is implicit in the statutory language. Clearly, this has to mean that per the PBT statute an officer cannot command a suspect to take the PBT and that a suspect will not be penalized for refusing the PBT. Big Picture Indeed, the purpose of the PBT is to aid in determining probable cause; the PBT results may be used by the State only to establish that the arresting officer had probable cause to arrest, not as evidence at a DUI trial. In the absence of probable cause, the statute affords protection against unreasonable searches by requiring the request-and-refuse protocol to be conducted under reasonable suspicion. The court read this protocol as requiring some form of consent before a PBT may be administered. This is an important distinction between PBT and normal breathalyzer procedures. What About Informed Consent? The police do not necessarily have to inform the driver that he has the option of refusal. The legislature’s purposeful decision not to require an officer to inform a suspect of his or her right to refuse evidenced the legislature’s intent that the officer need not obtain “informed consent” prior to administering the PBT. Granted the consent does not need to be “informed consent”. The Rule So to sum it all up: the “may refuse” language does not oblige an officer to inform a suspect that he or she may refuse, but it does require that the suspect have a reasonable opportunity to refuse. Where a suspect voluntarily submits to the PBT upon request, the statute’s request-and-refuse requirements have been met. In other words, so long as the officer requests the PBT without commanding submission, and so long as the suspect is given an opportunity to refuse, the PBT is voluntary. The PBT does not become involuntary because the suspect is not told that he or she may refuse or because the suspect ultimately was motivated by collateral pressures. Where an officer “requests” that a suspect take the PBT, the suspect is presented with the choice as to whether to take or refuse the PBT (even if the suspect is not informed of the consequences of taking or refusing the PBT). Holding Here, the officer did not present that choice, and thus he affected defendant’s opportunity to refuse the PBT.
12 minutes | 5 years ago
This Voluntary Confession is Suppressed, Minor With IQ 70
In re S.W.N., 2016 IL App (3d) 160080 (July). Episode 210 (Duration 11:57) Minor had an IQ of 70, otherwise voluntary confession suppressed. Great example of the court relying a little too much on a recorded interrogation. Facts This was an investigation of a forcful rape that occurred the night before. Minor immediately interrogate. The minor ended up confessing to a forcible sexual assault. The officer only knew that defendant played on his school's special olympic basketball team. The officer did nothing else to gathering information on the minor's mental and cognitive abilities. Proof of Mental Ability In court, the forensic psychologist testified that the minor had numerous cognitive deficiencies, had an IQ of 70 and would not have understood his Miranda waiver. Now here is a fine point. The expert was not saying the minor didn't understand the interrogation questions nor saying that the minor provided an involuntary statement; she was only saying that he likely did not understand the waiver. He was not retarded, but had extreme impaired functioning. Teachers Testified The minor presented 3 school officials who all said the minor has a good vocabulary of individual words, but the words put together to describe intangible rights would have been a big cognitive hurdle for the minor. They all said he often seeks to please to get past the questioning or testing, but later reveals that he didn't understand the original question. Trial Court Unconvinced The trial court denied the motion to suppress on two points: First the minor was not in custody so Miranda was not required. Second, the officer took great care in advising respondent of his rights. The court commented that the officer went considerably farther than just a mere ritualistic recital of the Miranda warnings. The court also put great emphasis on the video recording of the interview, finding the suggestion that respondent did not understand his rights was belied by the video. Respondent appeared relatively calm, appeared to understand the situation, and was able to provide clear answers to the questions. The court found that respondent's repeated nods constituted a full acknowledgment of his rights in context. On that point, the court noted: “[H]e is nodding emphatically, as he always does when it's clear that he understands what is going on.” Further, the court stated: “I saw a kid in that video that was very focused. He was with [the officer] every step of the way.” The minor was sentenced to JIDOC. Reversed & Remanded The reviewing court saw it differently. Custody Issue On the custody issue the court said our supreme court clarified that the reasonable person standard for custody inquiries must take into account the age and mental capabilities of the person being questioned. The Braggs court reasoned that the factors of age, intelligence, and mental makeup are “analytically intertwined” with the reasonable person standard. See People v. Braggs, 209 Ill. 2d 492, 506 (2003). The established legal principle is that juvenile defendants are generally more susceptible to police coercion, and that this susceptibility must be taken into account when establishing procedural safeguards attendant to custodial interrogation. If a juvenile is more susceptible to police coercion during a custodial interrogation, then the same juvenile is also more susceptible to the impression that he is, in fact, in custody in the first instance. This reasoning extends with equal force to defendants with mental impairments. Simply stated, just as the mentally impaired are more susceptible to police coercion, they are more susceptible to the impression that they are in custody. Considering respondent's intellectual limitations along with the other appropriate factors the reviewing court said this respondent was subjected to a custodial interrogation, and that the Miranda warnings were therefore required. Was It A Knowing Waiver? The reviewing court held that the overwhelming weight of the evidence in the present case warrants a finding that respondent did not knowingly and intelligently waive his Miranda rights. The trial court's finding that the officer had taken great care and gone beyond a ritualistic recitation, was against the manifest weight of the evidence. Indeed, the officer himself testified that he had delivered the warnings in the same fashion he would to an adult of average intelligence. He said that he had read the Miranda warnings to respondent “with very little explanation of what they mean,” falling short of the “special care” required in taking confessions from juveniles and intellectually impaired individuals. The totality of the circumstances indicate that respondent did not understand his Miranda rights, nor did he comprehend what their waiver would entail. No special care was taken to ensure that respondent, an intellectually impaired juvenile, understood the nature of the rights or the consequences of waiving them. Accordingly, respondent could not have knowingly and intelligently waived those rights, and the incriminating statements he made while in custodial interrogation are inadmissible.
8 minutes | 5 years ago
Warning: State Has Some Control Over Available Credit For Time Served
In re L.W., 2016 IL App (3d) 160092 (July). Episode 209 (Duration 8:21) Sentencing on petition to revoke probation entitles you to more credit than a sentence on contempt of court. Facts Minor was going in and out of detention based on an original petition of adjudication. However, the minor ended up doing over 260 days of detention based on several petitions to revoke his probation and several contempt of court petitions all filed in the original case. No new charges with different case numbers were ever filed. His one file just kept getting fatter. Issue When he was sentenced to another 179 days on a fourth contempt of court petition the minor said he had over 260 days of credit built up from all the time he served on the prior PTRs and contempt petitions. Holding Reviewing court said, “no”, not really. The fourth contempt sentence was the result of an independent proceeding, and therefore, he was only entitled to sentencing credit for the time he spent in custody in connection with the contempt proceeding. Analysis First, the Illinois Supreme Court has held that the contempt power is a means to enforce the terms of a juvenile's probation as an alternative to the statutorily provided enforcement mechanisms. 705 ILCS 405/5-710(1)(a)(v) entitles a minor to custody “credit on the sentencing order of detention for time spent in detention.” However, prior case law has held that, because a contempt proceeding “is an original special proceeding, collateral to and independent of, the case in which the contempt arises,” the custody credit is limited to the time the minor spent in custody in connection with the contempt petition. People ex rel. Scott v. Silverstein, 87 Ill. 2d 167, 172 (1981). What If He Was Sentenced On A PTR? This would have been a different situation had he been sentenced on a PTR. See People v. Hutchcraft, 215 Ill. App. 3d 533 (1991), where defendant was resentenced on a PTR but was properly given credit for time he served on a prior contempt of court finding. This is because a PTR sentence is a sentence on the original charge, which is the same as the underlying sentence. But custody credit incurred for serving time on another contempt proceeding, even if derived from the same sentence of probation, cannot be applied as a custody credit to a subsequent contempt sentence. The Gist & Rule To allow contempt custody credits to be applied to a subsequent contempt sentence would dilute the court's contempt power which is recognized as being completely independant. If sentenced to a PTR you are entitled to credit for time served for all the days you have served on that file. If your sentenced on a contempt petition you only get credit for time served on that petition.
8 minutes | 5 years ago
Supreme Court Sides With Ignorant Police Over Smart Pro Se Guy
People v. Geiler, 2016 IL 119095 (July). (Episode 208 Duration 8:00) Pro Se speeding ticket guy loses at the Supreme Court; Rule 552 Violations probably will never lead to dismissal.
24 minutes | 5 years ago
New Illinois Marijuana Law : A Ken Wang Debriefing
15 minutes | 5 years ago
Sotomayor Told A Big Fat Lie
This little line in Sotomayor’s dissent in Utah v. Strieff (the big improper stop & attenuation case) has been stuck in my mind.See also Podcast Episode 185 of the Premium Nuggets. At the beginning of section IV in her dissent she wrote: “Writing only for myself, and drawing on my professional experiences, I would add that unlawful “stops” have severe consequences much greater than the inconvenience suggested by the name.” It’s the line about “drawing on my professional experiences” that really stuck out. Why did she have to write that down? What did she think we would have assumed she was basing her opinion on? In that fourth part of her decision she goes into all the crap police are allowed to legally put people through. She explains how this may affect a person. Obviously, she was worried she would be criticized for abandoning her legal training and basing her opinion on just her personal beliefs. She was trying to cut off the criticism that her opinion was based on her experiences growing up as a Latina in the urban landscape of New York, where encounters with the police were probably pretty frequent. No, she was explicitly telling us that her opinion did not rely on her personal experience and was solely rooted in constitutional law. …and that was the big fat lie. Now, to be fair to the Justice, this is a lie that all the high court judges are telling. They all had to be confirmed and swear and promise that their own personal beliefs and bias would not interfere with their ability to remain impartial and to rule on decisions. They all make the promise, we all know they can’t live up to. Do we think that Thomas, Alito, and Scalia (when he was around) kept their personal views and opinions on the proper role of government out of their interpretations of the constitution? Hell no. This is how the game is played. You have to get up there raise your right hand and say: “I am a legal robot, I will not let my humanity enter into my decisions, I can do this. I promise.” But we all know better. This is the kind of stuff we go back and forth over at the Premium Nuggets Podcast. Talking about the cases doesn’t always mean just learning the rules and the doctrines being applied. We really get in there and look at the motivations behind decisions. This is how we remember the cases and really nail down the ideas. Afterall, we too are just people. It’s the people stories that make all this legal mumbo-jumbo really stick. If you think this kind of legal learning is for you then the Premium Nuggets is where you wanna be. We’re getting ready to wrap-up the Q2 cases (April-June) and gonna plow right into July. The courts don’t slow down so we can’t either. Hit the link below, and I’ll see you on the other side. http://www.PremiumNuggets.com Take care, Sam.
7 minutes | 5 years ago
Speedy Trial Violation Occurs Here Where Defendant Was “Held” For Multiple Offenses
People v. Smith, 2016 IL App (3d) 140235 (June). Episode 205 (Duration 7:12) Conviction for aggravated criminal sexual abuse is reversed to speedy trial violation. Speedy Trial Right Both the United States Constitution and the Illinois Constitution guarantee the right to a speedy trial for anyone accused of a crime. U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8. The Illinois speedy trial statute enforces this constitutional right, and its protections are to be liberally construed in favor of the defendant. Issue Defendant contends that he was denied his statutory right to a speedy trial as: (1) he was served with a Peoria County arrest warrant in this case while he was awaiting trial in Sangamon County on another charge (he was convicted of this different aggravated criminal sexual abuse case) (2) he was held in the Sangamon County jail for 31 days after he was sentenced on the Sangamon County case (7 years IDOC); and (3) over 120 days passed from the termination of proceedings in Sangamon County to the date he filed his motion to dismiss. The court had to analyze if defendant was “in custody” on the Peoria charge while he was sitting in jail in Sangamon County on a different charge? Illinois Speedy Trial Statute 725 ILCS 5/103-5(a) of the speedy trial statute states, “Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant ***.” The IDA (Illinois Detainer Act -730 ILCS 5/3-8-10) further applies the 160-day time period and trial demand requirement to “persons committed to any institution or facility or program of the [DOC] who have untried complaints, charges or indictments pending in any county of this State.” Analysis The terms custody and commitment are both terms which have commonly been used interchangeably to characterize actual imprisonment, or incarceration, or confinement. See People v. Mikrut, 117 Ill. App. 2d 444, 448 (1969). As defendant was not actually imprisoned, incarcerated, or confined by the DOC at the time that the proceedings in Sangamon County were terminated, defendant was not in the custody of the DOC, and the IDA does not apply. Defendant was, thus, always under a 120-day speedy trial clock. Further, this clock does not begin to run until the proceedings in the first county end and defendant is held in custody by or for the second county on the subject charges. Rule A defendant is not in the custody of the second county until the first proceedings have ended, even where a defendant is served with a warrant while incarcerated in the first county, where a hold or detainer is lodged against him while incarcerated in the first county, or where defendant is brought before the court in the second county, but then is returned again to the custody of the first county. In order for a defendant to be in the custody of the second county upon termination of proceedings in the first county, defendant must be served with a warrant while incarcerated in the first county. Holding The service of the Peoria County warrant on defendant effectuated his custody by Peoria County upon the termination of the Sangamon County proceedings. Stated another way, defendant was legally transferred to the custody of Peoria County once he was sentenced on the Sangamon County conviction. Accordingly, defendant was in custody of Peoria County after he was sentenced on June 11, 2013, and therefore, section 103-5(a) of the speedy trial statute applies, giving the State 120 days to bring defendant to trial. Over 120 days passed from the time defendant was taken into custody by Peoria County to the time his motion to dismiss was filed on October 24, 2013, and even more time passed before his trial ultimately took place on December 11, 2013. Defendant's speedy trial rights were violated so long as the delay was not attributable to him. Before the trial date, the State asked for a continuance. Defendant objected and told the court he was prepared for trial. The continuance was granted over defendant's objection. The new trial date that was set was outside of the 120-day speedy trial window.
6 minutes | 5 years ago
In A Compulsion Defense The Potential Harm Has To Be Imminent
People v. Collins, 2016 IL App (1st) 143422 (June). Episode 204 (Duration 5:31) Assuming the codefendant (who was the shooter) was a really bad dude and did threaten the defendant, exactly how imminent does the potential harm have to be? Compulsion Defense Compulsion is an affirmative defense whereby a defendant is not guilty of an offense “by reason of conduct that he or she performs under the compulsion of threat or menace of the imminent infliction of death or great bodily harm, if he or she reasonably believes death or great bodily harm will be inflicted upon him or her, if he or she does not perform that conduct.” 720 ILCS 5/7-11(a). Threat of Death or Great Bodily Harm To warrant an instruction on compulsion, defendant must present “some evidence” sufficient to raise an issue of fact for the jury and create reasonable doubt as to defendant’s guilt. However, this defense is not available if defendant had an ample opportunity to withdraw from participation in the offense but failed to do so. For the compulsion defense to apply, the threat of death or great bodily harm must be imminent. A threat of future injury “is not sufficient to excuse criminal conduct.” Facts In this robbery of a gas station the clerk gets shot by one of the men involved. Defendant admitted his job was to go in first to get the attendant to open the glass door. Defendant accomplished this by asking for a cigarette and then not letting the attendant close the door. Defendant testified that the codefendant, the one witht the gun, reached into his hoodie pouch and pulled out a black gun. He told defendant that “all I need you to do is go into the gas station and get him to open up the gas station window” so they could commit the robbery. The codefendant pointed the gun toward defendant’s chest. Defendant testified he felt threatened. Holding The judge refused to give the compulsion instruction. Finding that the threat subsided when defendant walked out. He could have gone out–he had two phones. He could have called anybody. But he didn’t. Simply, the threat of future injury in this case was not sufficient to excuse criminal conduct and that defendant had a number of ample opportunities to withdraw from the criminal enterprise and he failed to take steps in that direction. That is the key. He failed to withdraw. Defendant was convicted of attempted armed robbery and aggravated battery with a firearm, but not guilty of attempted first degree murder. The actual robbery and shooting did not occur until around 8:20 p.m., hours after the incident in Allen’s garage.
Terms of Service
Do Not Sell My Personal Information
© Stitcher 2021