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Office of the State Appellate Defender

Illinois Criminal Law Digest

March 2020

JAMES E. CHADD

State Appellate Defender

KERRY J. BRYSON

SHAWN O’TOOLE

Deputy State Appellate Defenders, Editors

©Copyright 2020 by the Office of the State Appellate Defender. All rights reserved.

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TABLE OF CONTENTS

ACCOUNTABILITY .................................................................................................... 1

People v. Ramos, 2020 IL App (1st) 170929 (3/27/20) ............................................................................ 1

People v. Wilson, 2020 IL App (1st) 162430 (3/26/20) ............................................................................ 2

APPEAL ........................................................................................................................ 3

People v. Parada, 2020 IL App (1st) 161987 (3/5/20) .............................................................................. 3

ARMED VIOLENCE ................................................................................................... 3

People v. Cady, 2020 IL App (3d) 190199 (3/3/20) .................................................................................. 3

BATTERY, ASSAULT & STALKING OFFENSES ................................................. 4

People v. Wallace, 2020 IL App (1st) 172388 (3/27/20) .......................................................................... 4

COLLATERAL REMEDIES ...................................................................................... 4

People v. Brown, 2020 IL App (1st) 170980 (3/27/20) ............................................................................. 4

People v. Carrasquillo, 2020 IL App (1st) 180534 (3/31/20) .................................................................... 5

People v. Quickle, 2020 IL App (3d) 170281 (3/5/20) .............................................................................. 5

People v. Taliani, 2020 IL App (3d) 170546 (3/17/20) ............................................................................. 6

People v. Whalen, 2020 IL App (4th) 190171 (3/3/20) ............................................................................ 6

CONFESSIONS ........................................................................................................... 7

People v. Wilson, 2020 IL App (1st) 162430 (3/26/20) ............................................................................ 7

CONTEMPT OF COURT ........................................................................................... 8

People v. Hoffman, 2020 IL App (2d) 180853 (3/17/20) .......................................................................... 8

COUNSEL ..................................................................................................................... 9

People v. Holliday, 2020 IL App (5th) 160547 (3/3/20) ........................................................................... 9

People v. Pratt, 2020 IL App (1st) 161085 (3/20/20) ............................................................................... 9

People v. Parada, 2020 IL App (1st) 161987 (3/5/20) .............................................................................. 9

People v. Jackson, 2020 IL 124112 (3/19/20) ........................................................................................ 10

People v. Custer, 2020 IL App (3d) 160202-B (3/11/20) ........................................................................ 10

EVIDENCE ................................................................................................................. 11

People v. Holliday, 2020 IL App (5th) 160547 (3/3/20) ......................................................................... 11

People v. Himber, 2020 IL App (1st) 162182 (3/17/20) ......................................................................... 11

People v. Brand, 2020 IL App (1st) 171728 (3/13/20) ............................................................................ 12

People v. Cline, 2020 IL App (1st) 172631 (3/2/20) ............................................................................... 12


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GUILTY PLEA ........................................................................................................... 13

People v. Cady, 2020 IL App (3d) 190199 (3/3/20) ................................................................................ 13

People v. Burns, 2020 IL App (3d) 170103 (3/27/20) ............................................................................. 13

HOMICIDE ................................................................................................................. 14

People v. Nelson, 2020 IL App (1st) 151960 (3/31/20) .......................................................................... 14

People v. Himber, 2020 IL App (1st) 162182 (3/17/20) ......................................................................... 15

IDENTIFICATIONS.................................................................................................. 15

In re T.B., 2020 IL App (1st) 191041 (3/18/20) ....................................................................................... 15

People v. Bahena, 2020 IL App (1st) 180197 (3/31/20) ......................................................................... 16

INDICTMENTS, INFORMATIONS AND COMPLAINTS .................................. 16

People v. Banks, 2020 IL App (2d) 180509 (3/12/20) ............................................................................. 16

INSANITY - MENTALLY ILL - INTOXICATION ................................................ 17

Kahler v. Kansas, 589 U.S. ____ (2020) (3/23/20) .................................................................................. 17

JUDGE ........................................................................................................................ 17

People v. Carrasquillo, 2020 IL App (1st) 180534 (3/31/20) .................................................................. 17

JURY ........................................................................................................................... 18


People v. Donlow, 2020 IL App (4th) 170374 (3/24/20) ........................................................................ 19

People v. Moon, 2020 IL App (1st) 170675 (3/31/20) ............................................................................ 19

People v. Wallace, 2020 IL App (1st) 172388 (3/27/20) ........................................................................ 19


People v. Moon, 2020 IL App (1st) 170675 (3/31/20) ............................................................................ 20

JUVENILE PROCEEDINGS ................................................................................... 21

In re T.B., 2020 IL App (1st) 191041 (3/18/20) ....................................................................................... 21

People v. Paige, 2020 IL App (1st) 161563 (3/20/20) ............................................................................. 21


People v. Suggs, 2020 IL App (2d) 170632 (3/17/20) ............................................................................. 22

PROBATION, PERIODIC IMPRISONMENT, CONDITIONAL DISCHARGE

& SUPERVISION ...................................................................................................... 23

In re T.B., 2020 IL App (1st) 191041 (3/18/20) ....................................................................................... 23

REASONABLE DOUBT ........................................................................................... 23

People v. Cline, 2020 IL App (1st) 172631 (3/2/20) ............................................................................... 23

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People v. McLaurin, 2020 IL 124563 (3/19/20) ...................................................................................... 24

People v. Ramos, 2020 IL App (1st) 170929 (3/27/20) .......................................................................... 24

People v. Walker, 2020 IL App (1st) 162305 (3/20/20) .......................................................................... 25

SEARCH AND SEIZURE ......................................................................................... 25


People v. Thornton, 2020 IL App (1st) 170753 (3/31/20) ...................................................................... 26

People v. Cherry, 2020 IL App (3d) 170622 (3/31/20) ........................................................................... 27

People v. Craine, 2020 IL App (1st) 163403 (3/26/20) ........................................................................... 27

People v. White, 2020 IL App (1st) 171814 (3/31/20) ........................................................................... 28


People v. Hill, 2020 IL 124595 (3/19/20) ................................................................................................ 29

SENTENCING ........................................................................................................... 29

People v. Paige, 2020 IL App (1st) 161563 (3/20/20) ............................................................................. 29


People v. Suggs, 2020 IL App (2d) 170632 (3/17/20) ............................................................................. 30

People v. Bridges, 2020 IL App (1st) 170129 (3/27/20) ......................................................................... 30



THEFT AND OTHER PROPERTY OFFENSES .................................................. 31


TRAFFIC OFFENSES .............................................................................................. 32

People v. Petty, 2020 IL App (3d) 180011 (1/8/20) ................................................................................ 32

TRIAL PROCEDURES ............................................................................................. 32

People v. Parada, 2020 IL App (1st) 161987 (3/5/20) ............................................................................ 32

People v. Pizarro, 2020 IL App (1st) 170651 (3/30/20) .......................................................................... 33

People v. Edwards, 2020 IL App (1st) 170843 (3/27/20) ....................................................................... 33

People v. Williams, 2020 IL App (1st) 172118 (3/20/20) ....................................................................... 34

WAIVER - PLAIN ERROR - HARMLESS ERROR .............................................. 34



In re T.B., 2020 IL App (1st) 191041 (3/18/20) ....................................................................................... 35


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People v. Nelson, 2020 IL App (1st) 151960 (3/31/20) .......................................................................... 37


People v. Wilson, 2020 IL App (1st) 162430 (3/26/20) .......................................................................... 38

People v. Jackson, 2020 IL 124112 (3/19/20) ........................................................................................ 39

WEAPONS .................................................................................................................. 40


People v. McLaurin, 2020 IL 124563 (3/19/20) ...................................................................................... 40

People v. Walker, 2020 IL App (1st) 162305 (3/20/20) .......................................................................... 41

WITNESSES ............................................................................................................... 41

People v. Brown, 2020 IL App (1st) 170980 (3/27/20) ........................................................................... 41

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ACCOUNTABILITY

§1-1(b)

People v. Ramos, 2020 IL App (1st) 170929 (3/27/20)

The State failed to prove defendant guilty of first-degree murder. The State

alleged that defendant acted as the principal in a shooting. However, at trial it

became apparent that its identification testimony was unreliable; its first witness

identified different people at different time, defendant no longer fit the description of

the shooter at the time of key line-up identifications, the witnesses noted another

suspect looked like the shooter, and the line-ups occurred over a year after the

incident. The judge still convicted defendant, however, because it believed that

defendant’s custodial statement suggested he provided both the van and the gun used

by the shooter, with knowledge of his intent to commit the offense.

The Appellate Court reversed, holding that the portion of the statement relied

upon by the trial court did not establish defendant’s accountability for the offense.

Although defendant admitted to providing the shooter with the gun and the van, and

knew rival gang members were in the area at the time he did so, nothing in the

statement suggested that the shooter told defendant of his plans or that defendant

otherwise knew of an intent to commit an offense. Defendant did state that he

“figured it was a drive-by,” but, contrary to the trial court’s belief, this did not

establish foreknowledge, as defendant was clearly referencing his belief as to what

occurred after he heard gunshots and after he was told by gang members that he

should not drive his van for several hours.

And while defendant admitted that he refused the shooter’s request to

participate in “something like that” at the time he handed over the gun, “that” could

have simply been a gang confrontation, not necessarily a shooting. The court refused

to accept the State’s invitation to infer from this language that defendant must have

known the offender’s purpose in retrieving a van and his gun; as the defense noted,

defendant may have simply believed the offender sought self-protection. Finally, the

court noted that while it’s permissible for the State to secure a conviction on

accountability even if the original theory and charge alleges defendant acted as the

principal, it was notable in this case that the State switched its theory only after it

presented its case, by which time it was clear that the original theory was falling

apart.

(Defendant was represented by Assistant Defender Kate Miller, Chicago.)

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§§1-1(c), 1-2(b), 1-4(a)

People v. Wilson, 2020 IL App (1st) 162430 (3/26/20)

The 16-year-old, intellectually-disabled defendant lacked the ability to

understand his Miranda warnings, and therefore did not knowingly and intelligently

waive his rights before giving his custodial statement. The trial court should have

suppressed his statements to the police. The remaining evidence was insufficient to

convict him of being accountable for the murder, so the Appellate Court reversed

defendant’s conviction outright.

The suppression hearing revealed that defendant had an IQ around 70, and

learning disabilities, but that he responded in the affirmative after a detective asked

if he understood each Miranda warning. When told of his right to free counsel,

defendant indicated he did not understand, but after the detective repeated the

warning, defendant agreed. After each sides’ expert provided contradictory opinions

on whether defendant could understand the warnings, the trial court based its ruling

on its own interpretation of the videotaped statement. The court concluded that

because defendant expressed confusion over one warning, he was willing to seek

clarification if he did not understand his rights. Thus, the trial court found the

statement admissible.

In finding the trial court’s ruling was against the manifest weight of the

evidence, the Appellate Court considered the “double whammy” of defendant’s youth

and intellectual disability. In such cases, courts must review the circumstances of the

waiver with the “utmost scrutiny.” Here, a review of the relevant factors showed the

ruling could not survive this scrutiny. For example, although defendant had prior

contact with the police, there was no specific evidence that he heard Miranda

warnings before. And while defendant indicated he understood each warning, the

Appellate Court deemed his answers perfunctory and mechanical. Defendant

indicated that he did not understand one right until clarified by the officer, but

contrary to the trial court’s finding, this equivocation was insufficient to establish full

understanding. The court noted that subsequent to this interrogation, the legislature

altered the Miranda procedure for juveniles to simplify the warnings, precisely

because juveniles frequently waive their rights without understanding them. Based

on these factors, the court could not find evidence of defendant’s understanding, and

thus it held there was not a knowing and voluntary waiver.

The Court then rejected the State’s argument that the error was harmless.

Defendant was convicted for participating in the principal’s plan to rob the driver of

a car. A witness placed defendant in the car, but this witness also said defendant

appeared to be “shocked” when he exited the car. Defendant’s statement indicated

that he knew the third-party wanted to rob the victim. But no other evidence

supported the notion that he aided and abetted with the intent to promote the crime.

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Nor was there sufficient evidence of a common design, even taking into consideration

the fact that defendant fled the scene and did not tell the police.

(Defendant was represented by Assistant Defender Adrienne Sloan, Chicago.)

APPEAL

§2-1(b)

People v. Parada, 2020 IL App (1st) 161987 (3/5/20)

Defendant could not make a substantial showing of appellate counsel’s

ineffectiveness where, after defendant fled during trial and was sentenced in

absentia, counsel filed a notice of appeal but took no further steps to litigate the

appeal, and the appeal was dismissed.

Defendant was convicted and sentenced in absentia because he fled to

California before the end of his trial. His attorney filed a notice of appeal, but after

eight months, noting that defendant was a fugitive and that no docketing statement,

record, or brief had been filed, the Appellate Court dismissed his appeal. Years later,

in a post-conviction petition, defendant alleged ineffective assistance of counsel for

failure to complete his appeal. The circuit court dismissed at the second stage and the

Appellate Court affirmed. Under the “presumption of prejudice plus” test, counsel is

ineffective if the failure to perfect an appeal actually causes the loss of appellate

rights. Here, due to the century-old “fugitive dismissal rule,” defendant’s appeal

would have been dismissed whether counsel pursued it or not. Defendant tried to

reinstate his appeal upon his return, but it was in the Appellate Court’s and Supreme

Court’s discretion to deny reinstatement, and that denial had nothing to do with

counsel’s performance.

(Defendant was represented by Assistant Defender Drew Wallenstein,

Chicago.)

ARMED VIOLENCE

§3-3

People v. Cady, 2020 IL App (3d) 190199 (3/3/20)

Defendant’s conviction for armed violence predicated on the underlying offense

of possession of a stolen firearm could not stand, and defendant should have been

allowed to withdraw his guilty plea to that offense. The indictment alleged, and the

factual basis confirmed, that defendant, while armed with one firearm, was engaged

in the sale of a separate, stolen firearm to an undercover police officer. The armed

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violence statute specifically excludes any offense that makes possession or use of a

dangerous weapon an element. Under a plain reading of the armed violence statute,

possession of a stolen firearm is not a proper predicate offense. Defendant’s guilty

plea was due to a misapprehension of the law, and therefore the trial court abused

its discretion in denying his motion to withdraw guilty plea. The matter was reversed

and remanded for further proceedings.

BATTERY, ASSAULT & STALKING OFFENSES

§7-1(e)(2)

People v. Wallace, 2020 IL App (1st) 172388 (3/27/20)

For purposes of domestic battery, the statutory definition of “family or

household members” includes “persons who have or have had a dating or engagement

relationship” but does not include casual acquaintanceships. Case law has

established that a dating relationship is a serious courtship, at a minimum an

established relationship with a significant romantic focus. Here, the State proved the

“dating relationship” element beyond a reasonable doubt where the victim testified

that she had been dating defendant for several months, they spoke daily and spent

time together shopping, in addition to having a sexual relationship, despite

defendant’s claim that they were merely “bed buddies.”

The trial court did not abuse its discretion in refusing to provide the jury with

a non-IPI instruction in response to the jury’s request for clarification on what

constitutes a “relationship” under the law. The jury had been instructed with the

appropriate pattern instructions, and “relationship” has a commonly understood

meaning and does not require further explanation.

(Defendant was represented by Assistant Defender Christofer Bendik,

Chicago.)

COLLATERAL REMEDIES

§9-1(f)

People v. Brown, 2020 IL App (1st) 170980 (3/27/20)

Trial court did not err in granting State’s motion to dismiss defendant’s post-

conviction petition at the second stage. On appeal, defendant alleged that he had

made a substantial showing of ineffective assistance of counsel based on counsel’s

failure to alert the court during trial that defendant observed the prosecutor telling

a witness the content of a prior witness’s testimony, thereby violating a court order

excluding witnesses. The violation of an exclusion order is reversible error only if the

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affected party can establish prejudice. The Appellate Court concluded that even

assuming defendant’s allegation was true, and even assuming the witness’s

testimony would have been excluded, defendant failed to make a substantial showing

of prejudice because the outcome would not have been different where the evidence

against defendant was overwhelming.

(Defendant was represented by Assistant Defender Michael Gentithes,

Chicago.)

§9-1(i)(2)

People v. Carrasquillo, 2020 IL App (1st) 180534 (3/31/20)

The circuit court erred when it denied defendant leave to file his successive

post-conviction petition alleging a de facto life sentence imposed on an 18 year-old

violated the proportionate penalties clause of the Illinois Constitution.

In 1978, defendant was sentenced to 200 to 600 years in prison, with

opportunity for parole after 20 years. Because defendant could not have anticipated

the Miller line of cases at the time of his first post-conviction petition in 1987, he

established cause. Defendant also established prejudice. He has already served a de

facto life sentence under Buffer. There was no evidence the trial court considered his

youth. Nor was there recourse for defendant to challenge the parole board’s repeated

denials, and defendant presented sufficient evidence – including the intimidating

presence of police officers at his parole hearings – that he would never be paroled.

For these reasons, defendant deserved a chance to develop his claim through post-

conviction proceedings.

§9-1(i)(3)

People v. Quickle, 2020 IL App (3d) 170281 (3/5/20)

In a prosecution for multiple theories of murder, the trial court’s rejection of a

defendant’s request for separate jury instructions for each theory is an error that

results in the defendant’s acquittal of intentional and knowing murder. This error,

however, does not make a defendant “actually innocent” of intentional or knowing

murder. A post-conviction claim of actual innocence depends on new evidence of

factual innocence. The failure to give separate murder instructions does not create

factual innocence and will not support an actual innocence claim.

(Defendant was represented by Assistant Defender Santiago Durango,

Ottawa.)

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§9-1(i)(3)

People v. Taliani, 2020 IL App (3d) 170546 (3/17/20)

The trial court did not err in denying defendant leave to file a successive post-

conviction petition claiming actual innocence. Defendant claimed involuntary

intoxication from the unwarned side effects of prescribed medications, a defense that

was not available at the time of trial but was later recognized in People v. Hari, 218

Ill. 2d 275 (2006). The Appellate Court questioned the propriety of treating a claim of

a newly available affirmative defense as a claim of actual innocence, but ultimately

concluded that even if it was a proper claim, the evidence here did not warrant leave

to file.

Under Hari, a claim of involuntary intoxication requires a showing that the

condition was involuntarily produced and that it deprived defendant of the

substantial capacity to conform his conduct to the requirements of law. While

defendant’s petition was sufficient on the question of whether his condition was

involuntarily produced, it was inadequate on the question of whether his condition

rendered him involuntarily intoxicated to the degree that he lacked substantial

capacity to conform his conduct to the requirements of the law. Accordingly, the

successive petition failed to raise the probability that it is more likely than not that

no reasonable juror would have convicted defendant in light of the new evidence.

(Defendant was represented by Assistant Defender Lucas Walker, Elgin.)

§§9-2(a), 9-2(c)

People v. Whalen, 2020 IL App (4th) 190171 (3/3/20)

Defendant was convicted of murdering his father in his tavern. The evidence

against him consisted primarily of a bloody palm print on a pool cue, circumstantial

evidence of motive, and a potential footprint. In a petition for relief from judgment,

defendant alleged actual innocence based on new results of DNA testing of various

pieces of evidence from the crime scene, all of which excluded defendant, as well as

new evidence undermining the palm print testimony (notes of a call log indicating the

print expert’s opinion was far more equivocal than revealed at trial). The circuit court

granted a new trial, finding “this evidence was more likely than not to have affected

the jury’s determination, and. . . the likelihood of a different result is great enough to

undermine the confidence in the outcome of the original trial.”

On appeal, the State first argued that the evidence relating to the palm prints

was not newly discovered because it was discovered over two years prior to the filing

of the 2-1401 petition. The Appellate Court disagreed, holding that defendant was

entitled to rely on this evidence as part of the instant actual innocence claim, even if

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it was not timely on its own. The claim in the current petition is based largely on the

new DNA evidence, and the call notes are relevant to that claim.

The State also argued that the circuit court erred in granting a new trial

because the new evidence was insufficient. It noted that defendant’s conviction never

rested on DNA evidence, and the absence of his DNA from the crime scene did not

exonerate him, particularly where no other suspect’s DNA was found. The State also

argued that the trial court used an incorrect standard when granting relief, where it

equated the phrase “probably change the result” on retrial with a “reasonable

probability” the result of a new trial would be different. After finding fault with

several of the trial court’s factual findings, the Appellate Court ultimately remanded

for a new ruling, instructing the trial court to determine whether “it is ‘probable’ or

‘more likely than not’ a jury would acquit defendant after a new trial where the new

evidence in this case is considered alongside the original trial evidence.”

CONFESSIONS

§§10-4(a), 10-5(c)(2)
























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CONTEMPT OF COURT

§12-6

People v. Hoffman, 2020 IL App (2d) 180853 (3/17/20)

The trial court did not abuse its discretion when it ordered the sentence for

contempt to run consecutively to the sentence for domestic battery. The contempt

conviction stemmed from the defendant’s violation of a no-contact order prior to trial.

Although consecutive sentences were not mandatory under section 5-8-4(d)(8),

because contempt is not a felony, the court did have discretion to order consecutive

sentences under section 5-8-4(c)(1). And while defendant’s contempt conviction was

based on a short phone call, the sentencing court could base its decision on the totality

of the facts that came out at aggravation. Defendant’s conduct extended far beyond

the one phone call in the charge, such that consecutive sentences was clearly

warranted to protect the public. Finally, both the length of the sentence and the

consecutive sentencing order comported with the factors applicable to contempt

sentences as outlined in People v. Geiger, 2012 IL 113181.

(Defendant was represented by Assistant Defender Kerry Goettsch, Elgin.)

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COUNSEL

§14-4(b)(6)(b)

People v. Holliday, 2020 IL App (5th) 160547 (3/3/20)

Where the defense stipulated to the admission of Facebook photos, the doctrine

of invited error applied and defendant could not obtain plain error review on the

question of whether the photos had been properly authenticated. Defendant’s

argument that counsel was ineffective for stipulating to the photos failed, as well,

because the record demonstrated that the decision to stipulate was a strategic choice

and because defendant was not prejudiced where there was ample additional

evidence to support his conviction.

(Defendant was represented by Assistant Defender Larry O’Neill, Mt. Vernon.)

§14-4(b)(7)

People v. Pratt, 2020 IL App (1st) 161085 (3/20/20)

Defense counsel was not ineffective for failing to give a closing argument at the

conclusion of defendant’s jury trial. Waiver of closing argument is generally a matter

of trial strategy, as waiver denies the prosecution the opportunity to present an

“impassioned’ rebuttal. Here, the record showed defendant was afforded excellent

representation by counsel, and the waiver of closing argument was a tactical decision.

While counsel told jurors during opening statements that they would “hear” from

defendant, but defendant did not testify, jurors still heard defendant’s statements

made during police interviews, so there was no need to make a closing argument to

explain defendant’s failure to testify. Even if counsel’s performance was deficient,

defendant was not prejudiced because the evidence against him was overwhelming.

The concurrence, though agreeing with the outcome due to the overwhelming

evidence, did not agree that counsel performed reasonably; it expressed “strong

disapproval and disbelief” regarding counsel's decision, and stated that skipping

summation would be sound trial strategy in 'very few cases.

(Defendant was represented by Assistant Defender Emily Hartman, Chicago.)

§14-4(b)(10)




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Chicago.)

§§14-7(a)(1), 14-7(a)(3)

People v. Jackson, 2020 IL 124112 (3/19/20)

The trial court erred in allowing the State’s adversarial participation at the

Krankel hearing. Such error is not structural, however, and therefore automatic

reversal is not required. Instead, the error can be found harmless. Here, despite the

State’s participation, the Krankel hearing still produced a neutral and objective

record which demonstrated that defendant’s ineffective assistance claim lacked

merit. Thus, the error was harmless, and remand for the appointment of new counsel

was not required.

(Defendant was represented by Assistant Defender Susan Wilham,

Springfield.)

§14-7(a)(3)

People v. Custer, 2020 IL App (3d) 160202-B (3/11/20)

After declining to extend the Krankel procedure to claims of unreasonable

assistance of post-conviction counsel, the Supreme Court remanded to the Appellate

Court for consideration of defendant’s remaining issues. On remand, the Appellate

Court concluded that defendant could not succeed on his claims that post-conviction

counsel had a conflict of interest and failed to zealously argue defendant’s petition.

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Post-conviction counsel’s decision not to call a certain witness at the evidentiary

hearing was a matter of strategy. Because the underlying claim of unreasonable

assistance lacked merit, there was no need to remand the matter to inquire into

whether post-conviction counsel had a conflict of interest. Even if counsel had a

conflict, petitioner would not be able to demonstrate prejudice because the underlying

claim of unreasonable assistance lacked merit.

(Defendant was represented by Assistant Defender Steve Varel, Ottawa.)

EVIDENCE

§§19-16, 19-17


Victim testified at defendant’s trial that after hearing defendant’s name, he

located defendant’s picture on Facebook, recognized defendant, and recognized the

gun in the picture as the one used to shoot him. Similarly, a police officer testified

that the victim had provided this same information at the time he identified

defendant in a photo lineup. This testimony was not improper prior consistent

statement evidence. Under 725 ILCS 5/115-12, a statement is not inadmissible

hearsay if (a) the declarant testifies at trial, (b) the declarant is subject to cross

examination regarding the statement, and (c) the statement is one of identification of

a person made after perceiving him.

The victim’s testimony met the requirements of Section 115-12. That section is

not limited to formal identification procedures like lineups, but includes all

identification evidence. And, because the victim’s testimony was admissible under

115-12, the officer’s testimony about the victim’s statements was also admissible.


§19-23(b)

People v. Himber, 2020 IL App (1st) 162182 (3/17/20)

It was not error to bar a defense expert from testifying that defendant suffered

an alcohol-related blackout and did not recall shooting the victim. Voluntary

intoxication is not a defense in Illinois, and the expert’s opinion was not relevant to

any fact at issue in the case.

(Defendant was represented by Assistant Defender Alison Shah, Chicago.)


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§19-25

People v. Brand, 2020 IL App (1st) 171728 (3/13/20)

The trial court erred when it admitted a photograph of complainant’s car keys

and allowed a police officer to testify that he took the photograph after the keys were

recovered from defendant. The officer had no firsthand knowledge of the recovery of

the keys, and his testimony that they were recovered during a custodial search was

not corroborated by anyone actually present for the search. Thus, the chain of custody

was deficient. However, the error was harmless because the complainant’s testimony

was sufficient to convict the defendant, and the keys were not necessary to

corroborate her claim that defendant took the keys from her person, stole her car, and

later contacted her to let her know where he left the car.

(Defendant was represented by Assistant Defender Joseph Benak, Chicago.)

§19-27(b)

People v. Cline, 2020 IL App (1st) 172631 (3/2/20)

A partial print on a portable object at the crime scene was insufficient to prove

defendant guilty beyond a reasonable doubt of residential burglary. The fingerprint

examiner did not follow standard analytical procedure where there was no evidence

of verification of his findings. This was particularly problematic where there were

only nine points of comparison between the partial latent print and the known print.

And, the print was the only evidence potentially connecting defendant to the offense.

The court reversed defendant’s conviction of residential burglary.

(Defendant was represented by Assistant Defender Jennifer Bontrager,

Chicago.)

§19-28(b)


Defendant did not forfeit his argument that incriminating Facebook messages

were insufficiently authenticated for admission at trial. The defense objected to the

evidence on relevance and foundation grounds, and included the issue in a post-trial

motion. This sufficiently alerted the trial court to the potential problem of insufficient

authentication.

Substantively, however, the evidence was admissible. Social media content

should be treated as documentary evidence and therefore must be authenticated for

admission at trial. Authentication occurs when the State establishes the source of the

message or post, which can be accomplished in a variety of ways. Here, the

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complainant testified that she received threats from a Facebook account that used a

name other than defendant’s, but she also testified that she knew the account to be

defendant’s, because defendant had previously used the account to contact

complainant. Moreover, the message contained information only the defendant would

have known. This testimony was sufficient to authenticate the messages.


GUILTY PLEA

§24-8(a)

People v. Cady, 2020 IL App (3d) 190199 (3/3/20)

Defendant’s conviction for armed violence predicated on the underlying offense

of possession of a stolen firearm could not stand, and defendant should have been

allowed to withdraw his guilty plea to that offense. The indictment alleged, and the

factual basis confirmed, that defendant, while armed with one firearm, was engaged

in the sale of a separate, stolen firearm to an undercover police officer. The armed

violence statute specifically excludes any offense that makes possession or use of a

dangerous weapon an element. Under a plain reading of the armed violence statute,

possession of a stolen firearm is not a proper predicate offense. Defendant’s guilty

plea was due to a misapprehension of the law, and therefore the trial court abused

its discretion in denying his motion to withdraw guilty plea. The matter was reversed

and remanded for further proceedings.

§24-10

People v. Burns, 2020 IL App (3d) 170103 (3/27/20)

Defendant’s stipulated bench trial was tantamount to a guilty plea where

defense counsel explicitly stipulated to the sufficiency of the evidence, even though

counsel’s stipulation was made prior to the court’s lunch break and the formal

stipulated bench trial proceedings were not held until after that break. While

defendant was not admonished of the right to plead not guilty or the right to a jury

trial, there was substantial compliance with Rule 402's admonishment requirement

here because defendant did plead not guilty by proceeding to a stipulated bench trial

and defendant previously entered a valid jury waiver.

(Defendant was represented by Assistant Defender Peter Sgro, Chicago.)

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HOMICIDE

§26-1

People v. Nelson, 2020 IL App (1st) 151960 (3/31/20)

Defendant admitted to shaking his seven month-old baby and was convicted of

aggravated battery. The shaking led to cerebral palsy, resulting in a lack of mobility

and motor control. As of five years after the event, the child could still not crawl, sit

up, or walk on his own. One night her mother put the child to sleep on his back in his

bed. Sixteen hours later, she discovered the child he had fallen off the bed, face-first,

into a body pillow, and had died. An expert testified the cause of death was suffocation

from being unable to move off the pillow, which in turn was caused by the brain

trauma suffered five years earlier. Defendant was thus found guilty of first-degree

murder, 14 years after the incident, and received a 25-year sentence.

The Appellate Court remanded for a new trial. It agreed with the defendant’s

argument that the trial court misunderstood or simply failed to decide the issue of

supervening causation. The causation element of any offense is composed of both

cause-in-fact and proximate cause. To establish cause-in-fact in a murder case, the

State must prove defendant’s conduct contributed to the death, even if it was not the

sole or immediate cause. As for proximate cause, the issue is fairness: the causal link

between the conduct and the death must be sufficiently close “that the defendant may

fairly be held responsible for the actual result.” As such, a defendant is culpable for

the foreseeable results of his conduct. On the other hand, if a superceding factor

“completely unrelated to” or, as IPI Criminal No. 7.15 puts it, “unconnected with the

defendant,” intervenes and brings about the victim’s death, that new factor will

“relieve the defendant of criminal responsibility” for the death, notwithstanding the

defendant’s original infliction of potentially fatal injuries. An example of one such

factor is gross negligence.

The State retains the burden of proof in establishing proximate cause,

including the burden to prove beyond a reasonable doubt that a supervening cause

did not cause the death.

Here, the defense argued that a supervening cause caused the child’s death,

implying the possibility of foul play, and specifically mentioning gross negligence in

his care. The defense had support in the evidence: the child was placed on his back

and could not roll over, he was left unattended for 16 hours, his mother used a body

pillow instead of a bed rail, and the child no longer suffered from the type of intense

seizures that may have propelled him onto his front. Yet neither the State’s rebuttal

nor the trial court’s findings of fact grappled with or even acknowledged these facts,

let alone the legal theory of superceding causation.

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The court’s misunderstanding of an element of the offense violated due process

by depriving defendant of a fair trial. Because constitutional error occurred, reversal

is required unless the State can establish the error to be harmless beyond a

reasonable doubt. The State in this case cannot show there was overwhelming

evidence of guilt such that the error did not affect the verdict. Notably, the State

offered no evidence to support the inference that the child rolled over on his own.

A new trial was ordered. On retrial, the State must prove that the cause of

death was sufficiently foreseeable in the natural sequence of events put into motion

by defendant’s conduct, such that it would not be unfair to hold the defendant

criminally liable for the death.


§26-5(b)

People v. Himber, 2020 IL App (1st) 162182 (3/17/20)

The trial court did not err in refusing an involuntary manslaughter instruction

based on an eyewitness’s testimony that he believed defendant was aiming over the

victim’s head when he shot her. Generally, it is not reckless to point a gun in the

general direction of an intended victim and shoot it.

(Defendant was represented by Assistant Defender Alison Shah, Chicago.)

IDENTIFICATIONS

§27-3

In re T.B., 2020 IL App (1st) 191041 (3/18/20)

The defendant did not forfeit his arguments about the suggestiveness of the

show-up identification, made as part of his attack on the sufficiency of the evidence.

A defendant does not have to file a motion to suppress a show-up in the trial court

before arguing on appeal that it was too suggestive to support the conviction. And

here, the show-up was particularly suggestive where the complainants viewed the

defendant together as he was surrounded by police officers. Nevertheless, the

evidence was sufficient where the complainants had ample opportunity to observe the

offender, and made their identification within minutes of the offense.

(Defendant was represented by Assistant Defender Erin Sostock, Chicago.)

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§27-5

People v. Bahena, 2020 IL App (1st) 180197 (3/31/20)

The photo lineup resulting in defendant’s identification was not unduly

suggestive. While there were differences amongst the photos in terms of background,

clothing, or framing, the differences were not so significant as to render the lineup

improper. Further, while the lineup contained only five photos instead of six, the

lineup was conducted before the law requiring “at least 5 fillers” and that law did not

invalidate prior photo arrays that contained fewer fillers.

Similarly, the in-person lineup was not rendered improper by the fact that

defendant was the only person who had also been in the photo lineup or by differences

between defendant’s clothing and the clothing of other participants, all of whom were

in police custody at the time but were dressed in street clothes.

INDICTMENTS, INFORMATIONS AND COMPLAINTS

§29-3

People v. Banks, 2020 IL App (2d) 180509 (3/12/20)

Defendant moved to dismiss his indictment for possession of a controlled

substance, arguing that the State had violated a cooperation agreement. The State

objected, arguing that while defendant worked with the police, he didn’t do enough to

warrant dismissal of the charges. At a hearing on the motion, the evidence

established that the police told defendant he could “work off” the charges by helping

them arrest two or three heroin dealers and recover amounts equal or greater than

the amount involved in his own case. Accordingly, defendant tried to set up one deal

that resulted in no arrests, then engaged in a second deal that did result in an arrest

and a conviction, and recovery of a similar amount of heroin as in defendant’s case.

When police approached defendant for additional work, defendant declined, stating

that his contacts all suspected him of being a “snitch.” A week later, he was arrested

and charged for the original crime, without notice. The trial judge denied the motion

to dismiss, finding that there was no explicit agreement to drop the charges, and that

defendant did not provide sufficient assistance to the police.

The Appellate Court reversed, holding that the trial court’s findings were

against the manifest weight of the evidence and that under People v. Stapinski,

2015 IL 118278, the State violated due process by breaking off the cooperation

agreement. Cooperation agreements need not be in writing, and when they include

ambiguous language, they should be construed against the government, “especially

when those words are relied upon to persuade a defendant to act in exchange for

dismissal of pending charges.” Here, the police offered to let defendant “work off” the

charges and specifically mentioned helping in cases with equal or greater amounts of

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heroin than in his own case. Defendant’s cooperation resulted in an arrest and

recovery of the requisite amount of heroin. While he did not further assist the police,

they gave him only one week before arresting him without notice. This constituted a

breach of the agreement on the part of the police, and accordingly the charges should

have been dismissed.

INSANITY - MENTALLY ILL - INTOXICATION

§30-1(a)

Kahler v. Kansas, 589 U.S. ____ (2020) (3/23/20)

Historically, two types of insanity defenses have been recognized, those based

on moral incapacity and those based on cognitive incapacity. Moral incapacity is the

inability to distinguish between right and wrong; cognitive incapacity is a person’s

inability to understand what he or she is doing is wrong.

Here, defendant was convicted of the murders of four family members. Kansas

provides only a cognitive incapacity insanity defense, specifically that the defendant

lacked the requisite mental state for the charged offense. Kansas also allows a

defendant to raise mental illness after conviction, in an effort to obtain a reduced

sentence of imprisonment or commitment to a mental health facility.

Defendant challenged Kansas’s failure to provide a moral incapacity insanity

defense as a denial of due process. The Supreme Court, consistent with its prior

decision in Clark v. Arizona, 548 U.S. 735 (2006), held that insanity rules are a

matter of State choice. Due process does not require that a State provide any specific

test of legal insanity, and therefore upheld Kansas’s insanity statute here.

The dissent would have concluded that by not providing a moral incapacity

defense, Kansas had eliminated “the core” of the insanity defense. Insanity is

premised on a defendant’s mental illness. The dissent would have found that moral

incapacity was firmly entrenched in the common law insanity defense precisely

because mental illness more often affects a person’s moral judgment, not their ability

to form intent.

JUDGE

§31-1(a)


In 1978, the 18-year-old defendant received a 200 to 600 year sentence from

Judge Frank Wilson after a bench trial for the first-degree murder of a police officer.

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In a 2-1401 petition, defendant raised a claim of “compensatory bias” by Judge Wilson

and argued his conviction and sentence were void. Defendant alleged that in the

months before his trial, Wilson acquitted a mobster accused of murder in exchange

for a bribe. Although Wilson was not caught until several years afterward, the

acquittal caused a big stir in the media. Defendant argued that his case offered

Wilson a chance to rehabilitate his image before a courtroom packed with police

officers.

The Appellate Court affirmed the dismissal of defendant’s petition. Aside from

the fact that it did not appear his claim formed the basis for a finding of voidness,

defendant offered insufficient evidence of compensatory bias. The mere fact that a

judge took a bribe in another case does not render a defendant’s conviction invalid.

Rather, defendant must establish (1) “a nexus between the activities being

investigated and the trial judge’s conduct at trial” and (2) “actual bias resulting from

the trial judge’s extrajudicial conduct.”

Defendant could not show a sufficient nexus between the bribe and his case,

which occurred seven months later, before Wilson came under investigation and five

months after the last critical news story about the mob acquittal. Nor could defendant

point to any actual behavior by the court, such as trial errors or rulings that

contradicted the evidence, that would suggest bias. While the harsh sentence

presented a “closer question” of bias, given that it was equal to the harshest sentence

Wilson ever handed down, and there was little evidence of intent to kill an officer, the

Appellate Court could not find an abuse of discretion in the decision to dismiss the

petition given the deferential standard of review.

JURY

§§32-4(a), 32-5(a)


The trial court did not err in refusing to discharge defendant’s jury where there

had been a disturbance in the courthouse on the morning of jury selection. The

relatively minor disturbance involved the shooting victim and two other men and

happened in the hallway, not in the courtroom, while the jury was still being selected.

After the jury was impaneled, the court asked whether any of the jurors had

witnessed anything that would cause them concern or difficulty, and none responded

in the affirmative. On this record, there was no evidence that any selected juror

actually witnessed the incident. Therefore, discharge of the jury was not required.



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§32-4(d)

People v. Donlow, 2020 IL App (4th) 170374 (3/24/20)

The trial court complied with Rule 431(b) where it asked the venire whether it

“understood and accepted” the four principles, even though one of the jurors

responded “I understand” and did not indicate acceptance. Absent evidence that the

juror failed to accept the principal, the court did not abuse its discretion in failing to

follow up.


Chicago.)

§32-5(a)

People v. Moon, 2020 IL App (1st) 170675 (3/31/20)

The trial court’s failure to administer an oath to the jury before trial was clear

error. However, the defense did not object, and because the case was not closely

balanced, and the error not serious enough to require automatic reversal, defendant

could not show plain error.

Illinois does not have a rule or statute requiring a specific jury oath, but the

United State Supreme Court has held an oath is an essential part of a jury trial. Thus,

a trial court must not only administer an oath to the venire, swearing to provide

accurate information at voir dire, it must also administer an oath to the jury,

swearing to review the evidence free from bias.

Here, the jury never took a trial oath. But the Appellate Court sided with other

jurisdictions that require a showing of prejudice. The court found no prejudice where

the jury was not “completely unsworn,” as they received the oath during voir dire,

and received pretrial admonishments and instructions, sufficient to ensure a fair and

impartial jury.

(Defendant was represented by Assistant Defender Eric Castaneda, Chicago.)

§32-6(a)

People v. Wallace, 2020 IL App (1st) 172388 (3/27/20)

For purposes of domestic battery, the statutory definition of “family or

household members” includes “persons who have or have had a dating or engagement

relationship” but does not include casual acquaintanceships. Case law has

established that a dating relationship is a serious courtship, at a minimum an

established relationship with a significant romantic focus. Here, the State proved the

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“dating relationship” element beyond a reasonable doubt where the victim testified

that she had been dating defendant for several months, they spoke daily and spent

time together shopping, in addition to having a sexual relationship, despite

defendant’s claim that they were merely “bed buddies.”

The trial court did not abuse its discretion in refusing to provide the jury with

a non-IPI instruction in response to the jury’s request for clarification on what

constitutes a “relationship” under the law. The jury had been instructed with the

appropriate pattern instructions, and “relationship” has a commonly understood

meaning and does not require further explanation.


Chicago.)

§32-8(h)


Defendant argued that the trial court erred when it tendered IPI Criminal No.

3.11 without including the language containing the “personal knowledge”

requirement of section 115-10.1. The State agreed but argued the error was harmless

where the prior statement introduced at trial was based on personal knowledge.

The Appellate Court refused to accept the State’s concession of error, reasoning

that the pattern instruction is incorrect to include the personal knowledge

requirement. According to the court, the personal knowledge requirement is a

consideration for the trial court when ruling on the admissibility of the evidence and

is not something the jury need resolve. Once the evidence is admitted, the

requirement has been met and the jury should be able to consider the evidence

substantively. Moreover, in this case no prior statements were admitted for a limited

purpose; everything came in substantively. Thus, there was no need to give No. 3.11

at all.


Chicago.)

§32-8(j)

People v. Moon, 2020 IL App (1st) 170675 (3/31/20)

In a case involving statements admitted pursuant to section 115-10, the trial

court commits clear error if it fails to provide the jury with IPI Criminal No. 11.66.

However, this error does not rise to the level of second-prong plain error as long as


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the jury receives the general instruction on witness credibility, No. 1.02. See People

v. Sargent, 239 Ill. 2d 166, 190 (2010).

(Defendant was represented by Assistant Defender Eric Castaneda, Chicago.)

JUVENILE PROCEEDINGS

§33-6(f)(2)

In re T.B., 2020 IL App (1st) 191041 (3/18/20)

The condition of respondent’s probation prohibiting gang activity, or social

media posts furthering gang activity, were neither unreasonable nor

unconstitutional. Respondent argued that a gang-focused condition was

unreasonable where nothing in his background showed gang involvement. But

defendant was a teenager who committed the robbery with a group of peers, and

regardless, it is no more unreasonable to restrict gang activity without proof of gang

membership than it would be to require school attendance without proof of truancy.

Nor was the condition unconstitutional. Respondent failed to specify how the

condition was vague, and unlike probation conditions that limit contact with gang

members, there is no overbreadth concerns when the condition specifically targets

actual gang activity. Finally, a condition restricting social media use by prohibiting

the advancement of gang activity or display of gang signs did not violate freedom of

speech, as it was reasonably related to rehabilitation.


§33-6(g)(2)

People v. Paige, 2020 IL App (1st) 161563 (3/20/20)

Trial court erred in denying leave to file successive post-conviction petition

raising Miller claim. Defendant was 16 years old in 1999 when he committed a

murder and received a 50-year sentence, which is a de facto life term under Buffer.

While the sentencing judge had considered defendant’s age, the court focused its

sentencing decision on the severity of the crime and the need to protect the public,

without considering defendant’s prospects for rehabilitation. Because the court had

not determined whether defendant was one of the rarest of juvenile offenders whose

crime reflected permanently incorrigibility, his sentence was imposed in violation of

Miller. The Appellate Court vacated defendant’s sentence and remanded for a new

sentencing hearing.

(Defendant was represented by Assistant Defender Therese Bissell, Chicago.)

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§§33-6(g)(4), 33-6(g)(5)















§33-6(g)(4)

People v. Suggs, 2020 IL App (2d) 170632 (3/17/20)

The Appellate Court declined to extend the protections of the Miller line of

cases to a defendant who was convicted of murder, attempt murder, and attempt

armed robbery, and sentenced to a total of 110 years of imprisonment, for offenses

committed when he was 23 years old. While acknowledging that there is support for

extending Miller to young adults, the court was not willing to do so here. Society

draws lines at 18 and 21 for various purposes, and the legislature has endorsed

special considerations up to age 21 when it enacted Public Act 100-1182 providing for

parole review for certain offenses committed by persons under 21, but the court was

not willing to extend those considerations even further.

(Defendant was represented by Assistant Defender Arianne Stein, Chicago.)


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PROBATION, PERIODIC IMPRISONMENT, CONDITIONAL DISCHARGE

& SUPERVISION

§39-4(b)

In re T.B., 2020 IL App (1st) 191041 (3/18/20)

The condition of respondent’s probation prohibiting gang activity, or social

media posts furthering gang activity, were neither unreasonable nor

unconstitutional. Respondent argued that a gang-focused condition was

unreasonable where nothing in his background showed gang involvement. But

defendant was a teenager who committed the robbery with a group of peers, and

regardless, it is no more unreasonable to restrict gang activity without proof of gang

membership than it would be to require school attendance without proof of truancy.

Nor was the condition unconstitutional. Respondent failed to specify how the

condition was vague, and unlike probation conditions that limit contact with gang

members, there is no overbreadth concerns when the condition specifically targets

actual gang activity. Finally, a condition restricting social media use by prohibiting

the advancement of gang activity or display of gang signs did not violate freedom of

speech, as it was reasonably related to rehabilitation.


REASONABLE DOUBT

§41-4

People v. Cline, 2020 IL App (1st) 172631 (3/2/20)

A partial print on a portable object at the crime scene was insufficient to prove

defendant guilty beyond a reasonable doubt of residential burglary. The fingerprint

examiner did not follow standard analytical procedure where there was no evidence

of verification of his findings. This was particularly problematic where there were

only nine points of comparison between the partial latent print and the known print.

And, the print was the only evidence potentially connecting defendant to the offense.

The court reversed defendant’s conviction of residential burglary.

(Defendant was represented by Assistant Defender Jennifer Bontrager,

Chicago.)


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§41-4

People v. McLaurin, 2020 IL 124563 (3/19/20)

An officer observed defendant carrying a chrome object she believed to be a

gun. Defendant entered a van, the officer followed, and the van was stopped by other

officers. These officers patted down defendant and the other occupants but found no

gun. Shortly thereafter, officers recovered a gun under the van. While no officers saw

the defendant place the gun there, the initial officer testified that it looked like the

object she saw defendant carrying. However, the gun was not introduced into

evidence at trial. The Appellate Court reversed the conviction, finding an insufficient

nexus between the object defendant was seen carrying and the gun under the van.

The Supreme Court reversed the Appellate Court and upheld the conviction.

Although not overwhelming, and although the State “took a risk” by not introducing

the gun at trial, the State did provide sufficient circumstantial evidence to withstand

a reasonable doubt challenge on appeal. The officers’ descriptions, which were based

on clear observations and were not impeached, as well as the proximity of the gun to

the van, satisfied the standards enunciated in similar cases such as People v.

Washington, 2012 IL 107993 and People v. Wright, 2017 IL 119561.

§§41-5, 41-6, 41-10

People v. Ramos, 2020 IL App (1st) 170929 (3/27/20)

The State failed to prove defendant guilty of first-degree murder. The State

alleged that defendant acted as the principal in a shooting. However, at trial it

became apparent that its identification testimony was unreliable; its first witness

identified different people at different time, defendant no longer fit the description of

the shooter at the time of key line-up identifications, the witnesses noted another

suspect looked like the shooter, and the line-ups occurred over a year after the

incident. The judge still convicted defendant, however, because it believed that

defendant’s custodial statement suggested he provided both the van and the gun used

by the shooter, with knowledge of his intent to commit the offense.

The Appellate Court reversed, holding that the portion of the statement relied

upon by the trial court did not establish defendant’s accountability for the offense.

Although defendant admitted to providing the shooter with the gun and the van, and

knew rival gang members were in the area at the time he did so, nothing in the

statement suggested that the shooter told defendant of his plans or that defendant

otherwise knew of an intent to commit an offense. Defendant did state that he

“figured it was a drive-by,” but, contrary to the trial court’s belief, this did not

establish foreknowledge, as defendant was clearly referencing his belief as to what

occurred after he heard gunshots and after he was told by gang members that he

should not drive his van for several hours.

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And while defendant admitted that he refused the shooter’s request to

participate in “something like that” at the time he handed over the gun, “that” could

have simply been a gang confrontation, not necessarily a shooting. The court refused

to accept the State’s invitation to infer from this language that defendant must have

known the offender’s purpose in retrieving a van and his gun; as the defense noted,

defendant may have simply believed the offender sought self-protection. Finally, the

court noted that while it’s permissible for the State to secure a conviction on

accountability even if the original theory and charge alleges defendant acted as the

principal, it was notable in this case that the State switched its theory only after it

presented its case, by which time it was clear that the original theory was falling

apart.

(Defendant was represented by Assistant Defender Kate Miller, Chicago.)

§41-9

People v. Walker, 2020 IL App (1st) 162305 (3/20/20)

The State failed to prove defendant’s constructive possession of ammunition

beyond a reasonable doubt. The ammo was found in a dresser in his family’s house,

at which he sometimes slept and where he was discovered by police. Although

defendant made statements suggesting ownership of the ammo, the Appellate Court

found insufficient corroborating evidence in violation of the corpus delicti rule.

The only connection that the defendant had to the bullets was that he was

sleeping in the apartment where they were found. The State could not establish

defendant had constructive possession – knowledge or immediate and exclusive

control – where he was in a different room, the bullets were inside a dresser drawer

in the bedroom and not in plain view, two other individuals were in the room where

the bullets were found when the police entered, there was nothing linking the

defendant to the residence, such as bills, clothing, or personal belongings, and

defendant introduced evidence that he lived at a different residence.


SEARCH AND SEIZURE

§§43-1(b), 43-3(c)(2), 43-3(c)(3)(b)


Eight months after being shot in a liquor store parking lot, the victim identified

defendant as the shooter from a photo lineup. Based on that identification, an officer

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created an investigative alert. Relying on that investigative alert, two officers went

to defendant’s home and placed him under arrest. Defendant challenged his arrest,

arguing that an investigative alert is an improper basis for a warrantless arrest, even

if the alert is supported by probable cause. The Appellate Court disagreed, declining

to follow People v. Bass, 2019 IL App (1st) 160640, and instead following its own

prior decision in People v. Braswell, 2019 IL App (1st) 172810. An arrest based on

an investigative alert supported by probable cause does not violate the Illinois

Constitution.

§§43-1(b), 43-3(b)(2), 43-3(c)(2), 43-3(c)(3)(b)

People v. Thornton, 2020 IL App (1st) 170753 (3/31/20)

The police received a 911 call stating that a person wanted for two sexual

assaults was sitting on the porch at a specific address; the caller also described

defendant’s clothing. Police patrolling in the area found defendant, walking down the

street near the address provided by the caller, wearing clothing which matched that

described. The officers approached and asked defendant his name. Upon checking his

identity in their system, the officer discovered an investigative alert.

The initial Terry stop of defendant was valid based on the 911 call because

defendant was quickly located in the general area and matched the description

provided. While an anonymous tip requires corroboration of its assertion of illegality,

not just identity, a 911 call is not viewed with the same skepticism as an anonymous

tip. Further, the tip here was not of a crime in progress, but rather provided the

location of a known suspect, merely allowing the officers to investigate further.

Handcuffing defendant during this initial encounter did not transform the

Terry stop into an arrest where an officer testified that he cuffed defendant for safety

reasons. The court found this reasonable in light of defendant’s status as a sexual

assault suspect.

The subsequent arrest of defendant based on the investigative alert was also

proper. The investigative alert was supported by probable cause where one of the two

victims identified defendant from a photo array, and defendant lived near the other

victim’s house where the assaults of both women occurred. Further, defendant had

physical characteristics described by both women, including tattoos on his upper

arms and a chipped front tooth from having been shot in the mouth previously.

The Appellate Court declined to follow People v. Bass, 2019 IL App (1st)

160640, which concluded that investigative alerts are unconstitutional. Instead, the

court followed People v. Braswell, 2019 IL App (1st) 172810, and concluded that

investigative alerts supported by probable cause are constitutional.

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The concurring justice would have found that the Terry stop was converted

into an arrest almost immediately when he was handcuffed and placed into a police

car. She would have found that arrest proper on the basis of the same facts which

supported the Terry stop, specifically the 911 call and the fact that defendant

matched the description of a man wanted for two felonies.

(Defendant was represented by Assistant Defender Maggie Heim, Chicago.)

§§43-2(d)(5)(a), 43-3(a), 43-3(b)(2), 43-3(b)(3), 43-3(d)(1)

People v. Cherry, 2020 IL App (3d) 170622 (3/31/20)

Where an officer attempts to effectuate a stop or seizure, but defendant

immediately flees, there has been no submission to authority and therefore no

seizure. If defendant first submitted to authority, however, and then fled, the fourth

amendment is implicated at the time of the initial submission, and there must have

been reasonable articulable suspicion for the seizure at that point in time, otherwise

any evidence found after the initial encounter is subject to exclusion.

Here, the police ordered defendant and his friends to “stop,” defendant took

steps backward and away from the police as they exited their vehicle, and defendant

ran off as an officer approached him. The Appellate Court concluded that defendant

had not submitted to the officer’s authority “in any meaningful way.” Accordingly, the

officer’s lack of reasonable articulable suspicion at the time of this initial encounter

did not render the encounter unconstitutional.

Defendant was ultimately seized when the police caught up with him

approximately ten feet away, tackled him, and recovered a gun from defendant’s

waistband. At that point, defendant’s flight, the officer’s previous observation of

defendant’s holding his waistband, and the original tip that a group of men had been

seen pointing a gun from defendant’s now-parked vehicle, provided the police with

reasonable, articulable suspicion to support his seizure. Finally, the gun was

recovered under the plain-touch doctrine, where the officer felt it upon tackling

defendant, thus there was no Terry frisk at issue.

§§43-3(b)(1), 43-4(e), 43-7(a)

People v. Craine, 2020 IL App (1st) 163403 (3/26/20)

Police lacked probable cause and exigent circumstances to follow defendant

into his home and effectuate an arrest and subsequent search of the home. An officer

on patrol in an unmarked car heard gunshots in the vicinity, observed defendant and

another man on defendant’s porch a block or two from the location where he thought

the shots originated, and saw defendant holding his hip as if he might have a gun

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when defendant entered his home. These observations were insufficient to suggest

defendant had committed a crime. The officer did not see defendant with a gun, and

there was nothing to indicate defendant had recently fired a gun. Even if defendant’s

entry to his home was construed as “flight,” it would not even amount to reasonable

suspicion, much less probable cause.

(Defendant was represented by Assistant Defender David Harris, Chicago.)

§§43-3(b)(2), 43-3(b)(3)

People v. White, 2020 IL App (1st) 171814 (3/31/20)

The trial court erred in denying defendant’s motion to quash arrest and

suppress evidence because defendant was stopped and frisked without reasonable

suspicion of criminal activity. Officers on bike patrol near a CTA platform heard

someone yell “f*** you, mother f***er,” and looked up and saw defendant and a friend

on the platform looking in the officers’ direction. Defendant also spit over the side of

the platform. When defendant exited the platform, one of the officers conducted a

Terry stop and frisk and recovered a pill bottle containing morphine pills from

defendant’s jacket pocket.

Based on these facts, the Appellate Court concluded that the officer lacked

reasonable suspicion to conduct a Terry stop, as he put it, to “see what was going

on.” The officer admitted that he did not observe defendant commit any crime or

reasonably believe he was about to commit a crime. And, while it may have been

reasonable for the officer to conduct a protective pat down where defendant refused

commands to remove his hands from his pockets, it was unreasonable to continue the

search once the officer felt the pill bottle in defendant’s pocket because it could not be

mistaken for any sort of weapon.

(Defendant was represented by Assistant Defender Tomas Gonzalez, Chicago.)

§§43-3(d)(2), 43-6(d)


Odor of cannabis in a vehicle justified search of defendant who was the

vehicle’s passenger. Whether odor is of raw or burnt cannabis does not matter; under

People v. Stout, 106 Ill. 2d 77 (1985), and subsequent cases, the smell of cannabis

allows the search of a vehicle and its occupants.

The investigatory stop was not converted into an arrest when the officers

handcuffed defendant prior to searching him. When defendant exited the vehicle,

officers observed a gun in his back pocket. The fact that officers did not first ascertain

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whether defendant had a concealed carry permit for the gun did not render the

handcuffing improper. Handcuffing a defendant is permissible if it is reasonable and

necessary for officer safety, as it was under the totality of the circumstances here.

(Defendant was represented by Assistant Defender Peter Sgro, Chicago.)

§§43-4(d), 43-6(b)

People v. Hill, 2020 IL 124595 (3/19/20)

The search of defendant’s vehicle, based primarily on the odor of raw cannabis,

was reasonable under the totality of the circumstances. Defendant argued that recent

decriminalization of small amounts of cannabis and legalization of medical cannabis

should alter the analysis of People v. Stout, 106 Ill. 2d 77, 87 (1985), which held the

odor of cannabis alone provides an officer probable cause to search a vehicle. The

Supreme Court declined to reach this argument because the search in this case was

supported by more than the mere odor of cannabis. The court did hold that the odor

of cannabis remains one factor in the analysis, noting that despite decriminalization,

cannabis remained (at the time of the stop) contraband for non-medical users and

that even medical users must abide by strict storage restrictions in vehicles. Here,

taking the odor into consideration, along with the visual detection of a loose “bud” in

the back seat, and the driver’s delay in pulling the car over, the search was reasonable

under the totality of the circumstances.

(Defendant was represented by Assistant Defender Zachary Rosen,

Springfield.)

SENTENCING

§44-1(c)(2)

People v. Paige, 2020 IL App (1st) 161563 (3/20/20)

Trial court erred in denying leave to file successive post-conviction petition

raising Miller claim. Defendant was 16 years old in 1999 when he committed a

murder and received a 50-year sentence, which is a de facto life term under Buffer.

While the sentencing judge had considered defendant’s age, the court focused its

sentencing decision on the severity of the crime and the need to protect the public,

without considering defendant’s prospects for rehabilitation. Because the court had

not determined whether defendant was one of the rarest of juvenile offenders whose

crime reflected permanently incorrigibility, his sentence was imposed in violation of

Miller. The Appellate Court vacated defendant’s sentence and remanded for a new

sentencing hearing.

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(Defendant was represented by Assistant Defender Therese Bissell, Chicago.)

§§44-1(c)(4), 44-1(c)(5)















§44-1(c)(4)

People v. Suggs, 2020 IL App (2d) 170632 (3/17/20)

The Appellate Court declined to extend the protections of the Miller line of

cases to a defendant who was convicted of murder, attempt murder, and attempt

armed robbery, and sentenced to a total of 110 years of imprisonment, for offenses

committed when he was 23 years old. While acknowledging that there is support for

extending Miller to young adults, the court was not willing to do so here. Society

draws lines at 18 and 21 for various purposes, and the legislature has endorsed

special considerations up to age 21 when it enacted Public Act 100-1182 providing for

parole review for certain offenses committed by persons under 21, but the court was

not willing to extend those considerations even further.

(Defendant was represented by Assistant Defender Arianne Stein, Chicago.)

§44-4(c)

People v. Bridges, 2020 IL App (1st) 170129 (3/27/20)

The Appellate Court agreed with the parties that defendant’s prior AUUW

conviction was unconstitutional and should be vacated in the instant appeal in

accordance with In re N.G., 2018 IL 121939. The court declined to remand for


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resentencing on the instant armed robbery conviction, however, because the record

clearly established that it did not affect the sentencing decision where the trial court

explained it was crafting defendant’s sentence for armed robbery to be roughly

equivalent to the concurrent term it was imposing for aggravated kidnaping, which

was also the mandatory minimum for that offense.

(Defendant was represented by Assistant Defender Adrienne River, Chicago.)

§44-4(e)


Defendant maintained his innocence in allocution, and the sentencing court

repeatedly relied on defendant’s refusal to “accept responsibility” in finding

defendant likely to re-offend and in imposing a 20-year term for aggravated battery

with a firearm. The Appellate Court found no error, holding that while a sentencing

court may not punish a defendant for continuing to maintain his innocence, it may

consider lack of remorse in considering rehabilitative potential. Here, in addition to

noting defendant’s refusal to accept responsibility in the context of rehabilitation, the

court also explicitly stated that it would not punish defendant for maintaining his

innocence.


Chicago.)

§44-17


Where there was no great bodily harm, the trial court erroneously ordered that

defendant serve 85% of his sentence for armed violence. This is second-prong plain

error because it affects defendant’s fundamental right to liberty.

THEFT AND OTHER PROPERTY OFFENSES

§48-1


Section 4-103(a)(1) of the Illinois Vehicle Code states that it is a felony for a

person not entitled to the possession of a vehicle to possess it, knowing it to have been

“stolen or converted.” If the charging instrument includes only the “stolen” language,

the State must prove the initial taker had an intent to permanently deprive. Here,

however, the State included the “converted” language, so it did not matter if the State




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proved an intent to permanently deprive. Conversion requires only wrongful

deprivation of property, which was established here when the complainant testified

that defendant took her car keys and drove her car without her permission.


TRAFFIC OFFENSES

§§49-2(b), 49-2(d)

People v. Petty, 2020 IL App (3d) 180011 (1/8/20)

Defendant was not proved guilty beyond a reasonable doubt of aggravated

driving under the influence of methamphetamine despite stipulated evidence that

amphetamine and benzodiazepine were present in his urine after he was involved in

a car accident. As relevant here, section 11-501(a)(6) prohibits driving with any

amount of a substance in the urine “resulting from the unlawful use or consumption”

of methamphetamine. Evidence that amphetamine and benzodiazepine in a person’s

urine was the result of “unlawful use or consumption” of methamphetamine requires

testimony from a person with specialized knowledge, even though methamphetamine

was recovered from defendant’s vehicle. That sort of scientific knowledge is beyond

the understanding of an ordinary person.

The court also rejected the State’s request to reduce defendant’s conviction to

driving under the influence of amphetamine. The State chose to charge the specific

offense of aggravated driving under the influence of methamphetamine, making that

the only charge of which defendant had notice. Substituting a different drug as the

basis for conviction was beyond the court’s authority under Rule 615(b)(3).

TRIAL PROCEDURES

§51-2(b)










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Chicago.)

§51-2(b)

People v. Pizarro, 2020 IL App (1st) 170651 (3/30/20)

The Appellate Court had jurisdiction to review trial and sentencing claims on

appeal from a post-trial motion filed under 115-4.1(e) of the Code of Criminal

Procedure. Section 115-4.1(e) motions are filed following a trial in absentia, and

present the issue of whether defendant’s absence was willful. Section 115-4.1(g)

allows a defendant to file a notice of appeal from the ruling, and during that appeal,

the defendant “may also” challenge the underlying conviction and sentence.

Here, defendant’s notice of appeal and appellate brief did not mention the 115-

4.1(e) motion. He simply stated that he was appealing his convictions and sentences,

though he included the motion date as the judgment date. This was sufficient to

confer jurisdiction on the court to review the conviction and sentence.

(Defendant was represented by Assistant Defender Jonathan Krieger,

Chicago.)

§51-4

People v. Edwards, 2020 IL App (1st) 170843 (3/27/20)

The State charged defendant with unlawful use of a weapon by a felon after he

was seen in a car with a gun, and the gun was tossed from the car during police

pursuit. During deliberations, the jury asked for a definition of “possession.” The trial

court decided to give the jury the definitional instructions for both actual and

constructive possession. Defense counsel objected, arguing that the case had never

been about constructive possession and therefore the defense did not have the

opportunity to rebut the claim in closing argument. The objection was overruled,

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defendant was convicted, and defense counsel did not include the issue in a post-trial

motion.

Citing People v. Alexander, 2019 IL App (3d) 160709, the Appellate Court

held that the trial court erred by instructing the jury on a theory of guilt not advanced

at trial. The court held that this error violated defendant’s constitutional right to

closing argument. The error was not forfeited despite it not being raised in a post-

trial motion, because under People v. Cregin, 2014 IL 113600, a reviewing court

should review constitutional errors raised at trial even if not included in a post-trial

motion. The error was harmless, however, because there was sufficient evidence of

actual possession, such that the jury did not need to consider constructive possession.

(Defendant was represented by Assistant Defender Mike Orenstein, Chicago.)

§51-7

People v. Williams, 2020 IL App (1st) 172118 (3/20/20)

A trial court may dispose of a motion for new trial based upon newly discovered

evidence, so long as the court’s decision is not an abuse of discretion. Under People

v. Steidl, 177 Ill. 2d 260 (1997), newly discovered recantation testimony warrants an

evidentiary hearing where there was no physical evidence linking the defendant to

the crime, the trial evidence was comprised solely of witness testimony, and all of the

key witnesses have recanted. All of those circumstances were present here, and the

circuit court abused its discretion in denying defendant’s motion without first holding

an evidentiary hearing. The Appellate Court reversed and remanded for such a

hearing.

(Defendant was represented by Assistant Defender Katherine Donahue,

Chicago.)

WAIVER - PLAIN ERROR - HARMLESS ERROR

§§54-1(b)(2), 54-1(b)(3)(b), 54-1(b)(11)(a)


Defendant filed a pretrial motion challenging his warrantless arrest, which

was denied. He did not renew the warrantless-arrest issue in his post-trial motion.

The Appellate Court declined to find forfeiture, however, because the State did not

raise a forfeiture concern. The rules of forfeiture apply equally to the State.

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§§54-1(b)(3)(b), 54-3(c)










motion.










§54-1(b)(4)(b)

In re T.B., 2020 IL App (1st) 191041 (3/18/20)

The defendant did not forfeit his arguments about the suggestiveness of the

show-up identification, made as part of his attack on the sufficiency of the evidence.

A defendant does not have to file a motion to suppress a show-up in the trial court

before arguing on appeal that it was too suggestive to support the conviction. And

here, the show-up was particularly suggestive where the complainants viewed the

defendant together as he was surrounded by police officers. Nevertheless, the

evidence was sufficient where the complainants had ample opportunity to observe the

offender, and made their identification within minutes of the offense.






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§54-1(b)(5)(c)


Defendant did not forfeit his argument that incriminating Facebook messages

were insufficiently authenticated for admission at trial. The defense objected to the

evidence on relevance and foundation grounds, and included the issue in a post-trial

motion. This sufficiently alerted the trial court to the potential problem of insufficient

authentication.

Substantively, however, the evidence was admissible. Social media content

should be treated as documentary evidence and therefore must be authenticated for

admission at trial. Authentication occurs when the State establishes the source of the

message or post, which can be accomplished in a variety of ways. Here, the

complainant testified that she received threats from a Facebook account that used a

name other than defendant’s, but she also testified that she knew the account to be

defendant’s, because defendant had previously used the account to contact

complainant. Moreover, the message contained information only the defendant would

have known. This testimony was sufficient to authenticate the messages.


§54-1(b)(7)(b)


Where the defense stipulated to the admission of Facebook photos, the doctrine

of invited error applied and defendant could not obtain plain error review on the

question of whether the photos had been properly authenticated. Defendant’s

argument that counsel was ineffective for stipulating to the photos failed, as well,

because the record demonstrated that the decision to stipulate was a strategic choice

and because defendant was not prejudiced where there was ample additional

evidence to support his conviction.


§54-2(e)(6)(a)


Where there was no great bodily harm, the trial court erroneously ordered that

defendant serve 85% of his sentence for armed violence. This is second-prong plain

error because it affects defendant’s fundamental right to liberty.




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§54-3(c)

People v. Nelson, 2020 IL App (1st) 151960 (3/31/20)

Defendant admitted to shaking his seven month-old baby and was convicted of

aggravated battery. The shaking led to cerebral palsy, resulting in a lack of mobility

and motor control. As of five years after the event, the child could still not crawl, sit

up, or walk on his own. One night her mother put the child to sleep on his back in his

bed. Sixteen hours later, she discovered the child he had fallen off the bed, face-first,

into a body pillow, and had died. An expert testified the cause of death was suffocation

from being unable to move off the pillow, which in turn was caused by the brain

trauma suffered five years earlier. Defendant was thus found guilty of first-degree

murder, 14 years after the incident, and received a 25-year sentence.

The Appellate Court remanded for a new trial. It agreed with the defendant’s

argument that the trial court misunderstood or simply failed to decide the issue of

supervening causation. The causation element of any offense is composed of both

cause-in-fact and proximate cause. To establish cause-in-fact in a murder case, the

State must prove defendant’s conduct contributed to the death, even if it was not the

sole or immediate cause. As for proximate cause, the issue is fairness: the causal link

between the conduct and the death must be sufficiently close “that the defendant may

fairly be held responsible for the actual result.” As such, a defendant is culpable for

the foreseeable results of his conduct. On the other hand, if a superceding factor

“completely unrelated to” or, as IPI Criminal No. 7.15 puts it, “unconnected with the

defendant,” intervenes and brings about the victim’s death, that new factor will

“relieve the defendant of criminal responsibility” for the death, notwithstanding the

defendant’s original infliction of potentially fatal injuries. An example of one such

factor is gross negligence.

The State retains the burden of proof in establishing proximate cause,

including the burden to prove beyond a reasonable doubt that a supervening cause

did not cause the death.

Here, the defense argued that a supervening cause caused the child’s death,

implying the possibility of foul play, and specifically mentioning gross negligence in

his care. The defense had support in the evidence: the child was placed on his back

and could not roll over, he was left unattended for 16 hours, his mother used a body

pillow instead of a bed rail, and the child no longer suffered from the type of intense

seizures that may have propelled him onto his front. Yet neither the State’s rebuttal

nor the trial court’s findings of fact grappled with or even acknowledged these facts,

let alone the legal theory of superceding causation.

The court’s misunderstanding of an element of the offense violated due process

by depriving defendant of a fair trial. Because constitutional error occurred, reversal

is required unless the State can establish the error to be harmless beyond a

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reasonable doubt. The State in this case cannot show there was overwhelming

evidence of guilt such that the error did not affect the verdict. Notably, the State

offered no evidence to support the inference that the child rolled over on his own.

A new trial was ordered. On retrial, the State must prove that the cause of

death was sufficiently foreseeable in the natural sequence of events put into motion

by defendant’s conduct, such that it would not be unfair to hold the defendant

criminally liable for the death.


§54-3(d)(1)(a)


The trial court erred when it admitted a photograph of complainant’s car keys

and allowed a police officer to testify that he took the photograph after the keys were

recovered from defendant. The officer had no firsthand knowledge of the recovery of

the keys, and his testimony that they were recovered during a custodial search was

not corroborated by anyone actually present for the search. Thus, the chain of custody

was deficient. However, the error was harmless because the complainant’s testimony

was sufficient to convict the defendant, and the keys were not necessary to

corroborate her claim that defendant took the keys from her person, stole her car, and

later contacted her to let her know where he left the car.


§54-3(d)(1)(b)
















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§54-3(d)(9)(a)

People v. Jackson, 2020 IL 124112 (3/19/20)

The trial court erred in allowing the State’s adversarial participation at the

Krankel hearing. Such error is not structural, however, and therefore automatic

reversal is not required. Instead, the error can be found harmless. Here, despite the

State’s participation, the Krankel hearing still produced a neutral and objective

record which demonstrated that defendant’s ineffective assistance claim lacked

merit. Thus, the error was harmless, and remand for the appointment of new counsel

was not required.

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(Defendant was represented by Assistant Defender Susan Wilham,

Springfield.)

WEAPONS

§55-5










motion.










§55-5

People v. McLaurin, 2020 IL 124563 (3/19/20)

An officer observed defendant carrying a chrome object she believed to be a

gun. Defendant entered a van, the officer followed, and the van was stopped by other

officers. These officers patted down defendant and the other occupants but found no

gun. Shortly thereafter, officers recovered a gun under the van. While no officers saw

the defendant place the gun there, the initial officer testified that it looked like the

object she saw defendant carrying. However, the gun was not introduced into

evidence at trial. The Appellate Court reversed the conviction, finding an insufficient

nexus between the object defendant was seen carrying and the gun under the van.




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The Supreme Court reversed the Appellate Court and upheld the conviction.

Although not overwhelming, and although the State “took a risk” by not introducing

the gun at trial, the State did provide sufficient circumstantial evidence to withstand

a reasonable doubt challenge on appeal. The officers’ descriptions, which were based

on clear observations and were not impeached, as well as the proximity of the gun to

the van, satisfied the standards enunciated in similar cases such as People v.

Washington, 2012 IL 107993 and People v. Wright, 2017 IL 119561.

§55-5

People v. Walker, 2020 IL App (1st) 162305 (3/20/20)

The State failed to prove defendant’s constructive possession of ammunition

beyond a reasonable doubt. The ammo was found in a dresser in his family’s house,

at which he sometimes slept and where he was discovered by police. Although

defendant made statements suggesting ownership of the ammo, the Appellate Court

found insufficient corroborating evidence in violation of the corpus delicti rule.

The only connection that the defendant had to the bullets was that he was

sleeping in the apartment where they were found. The State could not establish

defendant had constructive possession – knowledge or immediate and exclusive

control – where he was in a different room, the bullets were inside a dresser drawer

in the bedroom and not in plain view, two other individuals were in the room where

the bullets were found when the police entered, there was nothing linking the

defendant to the residence, such as bills, clothing, or personal belongings, and

defendant introduced evidence that he lived at a different residence.


WITNESSES

§56-2(a)

People v. Brown, 2020 IL App (1st) 170980 (3/27/20)

Trial court did not err in granting State’s motion to dismiss defendant’s post-

conviction petition at the second stage. On appeal, defendant alleged that he had

made a substantial showing of ineffective assistance of counsel based on counsel’s

failure to alert the court during trial that defendant observed the prosecutor telling

a witness the content of a prior witness’s testimony, thereby violating a court order

excluding witnesses. The violation of an exclusion order is reversible error only if the

affected party can establish prejudice. The Appellate Court concluded that even

assuming defendant’s allegation was true, and even assuming the witness’s

testimony would have been excluded, defendant failed to make a substantial showing



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of prejudice because the outcome would not have been different where the evidence

against defendant was overwhelming.

(Defendant was represented by Assistant Defender Michael Gentithes,

Chicago.)

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