The Bar News

Quick takes on Friday's Illinois Supreme Court Criminal opinions

Our panel of leading appellate attorneys review Friday's top Illinois Supreme Court Criminal opinions in People v. Cummings, People v. Tolbert, People v. Chambers, People v. Sanders, People. v. Williams, People v. Lerma, People v. Thompson and People v. Salem.

People v. Cummings

By Kerry J. Bryson, Office of the State Appellate Defender

Derrick Cummings was driving a van registered to Pearlene Chattic when an officer initiated a traffic stop because Chattic was the subject of an arrest warrant. The officer could not see the driver before initiating the stop. Upon approaching, he saw Cummings was a man and thus, clearly, was not Chattic. The officer asked Cummings for his license, and defendant responded he did not have one. Cummings was then cited for driving while license suspended.

The circuit court granted suppression, and the appellate court affirmed. Initially, the Illinois Supreme Court followed suit. On remand from the United States Supreme Court to reconsider its earlier opinion in light of Rodriguez v. U.S., 135 S. Ct. 1609, however, the Court reversed.

In Rodriguez, the US Supreme Court held that a traffic stop may not be prolonged by inquiries outside of the “mission” of the stop without reasonable suspicion for those inquiries.  Discussing Rodriguez, the Illinois Supreme Court concluded that a traffic stop’s “mission” consists the purpose of the stop and “related safety concerns.”  The Court found that requesting a driver’s license and running warrant and criminal history checks fit within the related safety concerns of the “mission,” regardless of the underlying reason for the initial stop.

Whether any inquiry beyond a license request and a warrant and criminal history check will fit within the “mission” remains to be seen.  For any inquiry outside of the mission, an officer still must have reasonable suspicion to justify prolonging the duration of the stop.

People v. Tolbert

By Jay Wiegman, Office of the State Appellate Defender

As some of us are still adjusting to seeing the picture of a gun with a red slash through it that greets us at various offices and buildings, the Supreme Court today considered whether the invitee requirement contained in the statute that proscribes the possession of a handgun by a person under the age of 21 (720 ILCS 5/24-1.6(a)(1), is an element of the offense that the State must prove, or whether it is an exemption that the defendant must raise and prove. 

People v. Tolbert, 2016 IL 117846.  The Court unanimously held that the invitee requirement is not an element of the offense of aggravated unlawful use of a weapon.  A criminal defendant under the age of 21 who is charged with aggravated unlawful use of a weapon must therefore raise and prove the invitee exemption.

In Tolbert, the then 17-year-old defendant was arrested after police responded to a report of a person with a gun at a residence in Chicago. The police found the defendant and several other people standing outside; a search of the area uncovered a gun, which the defendant ultimately admitted was his.  Following a bench trial, the defendant was convicted of violating sections 24-1.6(a)(1), (a)(3)(A), and (a)(3)(I) of the aggravated unlawful use of a weapon statute.

On direct appeal, the State conceded that section (a)(3)(A) was unconstitutional, and that conviction was vacated.  The appellate court also reversed the defendant's conviction for violating section (a)(3)(I), after concluding that the State's charging instrument was fatally defective because it did not allege that the defendant was not an invitee, a fact that the appellate court found was an element of the offense.

A unanimous Supreme Curt reversed.  Writing for the Court, Justice Burke stated that, rather than looking solely to where an exception is positioned in a statute when determining whether an exception is an element that must be proved by the State, the Court determines generally whether whether the Legislature intended the exception to be "descriptive" of the offense, or whether the Legislature intended only to exempt certain acts or persons from the operation of the statute.  Section 24-2 of the Criminal Code, titled "Exemptions" clearly signaled the Legislature's intent to withdraw, or exempt, invitees from the reach of the provision under which the defendant was charged.   Moreover, subsection (h) clearly places the burden or proving the exemption on the defendant.  720 ILCS 5/24-2(h) (West 2012). Justice Burke stated that the Court was not free to ignore the plain language of section 24-2. Because it was the defendant's burden to prove the application of the exemption, the appellate court erred when it concluded that the State was obligated to include the invitee requirement in the charging instrument, a conclusion the appellate court reached by relying on cases that did not discuss section 24-2.

The appellate court’s judgment was vacated, but because it had not addressed all of the issues raised in the defendant’s appeal, the cause was remanded to it so that it could do so.

People v. Chambers

By Kerry J. Bryson, Office of the State Appellate Defender

Terrill Chambers’s residence was searched pursuant to a warrant and large quantities of cocaine, weapons, ammunition, and cash were discovered.  The complaint for the warrant was signed by a confidential informant (CI) and an officer, both of whom appeared before the issuing judge and swore to the truth of its content.

On more than one occasion, Chambers requested a Franks hearing contending that the complaint contained multiple false allegations.  One of those requests was supported by an affidavit from an individual claiming to be the CI at issue and stating that he had signed a false affidavit in support of the warrant because the police had threatened him with a lengthy prison sentence if he refused.

Defendant’s requests were denied, with the circuit court following People v. Gorosteata, 374 Ill. App. 3d 203 (2007) (no Franks hearing required where CI appeared in court at the warrant proceedings).

The Supreme Court expressly overruled Gorosteata. While the CI’s appearance at the warrant hearing is a factor to consider in deciding whether to grant a Franks hearing, it is not determinative. The court should look at the substance of the Franks motion and supporting documents to determine whether to hold a hearing.

The court went on to clarify that a ruling on whether to hold a Franks hearing is subject to de novo review, while the ultimate ruling on the merits after a Franks hearing is reviewed under the manifest-weight-of-the-evidence standard.  Affording de novo review to the question here, the Court held that the trial court erred in refusing to hold a Franks hearing where the CI has stated that he perjured himself in support of the warrant and where defendant provided alibi affidavits for the time of alleged drug sale that was the basis for the warrant.

People v. Sanders

Click here to read the Case Summary

People v. Williams

Click here to read the Case Summary

People v. Lerma

By Kerry J. Bryson, Office of the State Appellate Defender

The defendant was convicted of a murder based on an excited utterance by the victim and the testimony of his female friend who was present at the time of the shooting.  The woman testified that she was familiar with defendant, having seen him on the porch across the street from the victim’s house approximately 10 times during the prior six months to a year.  The woman was impeached with evidence that she had told the grand jury she had only seen him once or twice previously.

Prior to trial, the defendant sought to admit expert eyewitness identification testimony, which was denied.  He unsuccessfully renewed the request during trial, as well.  The appellate court reversed.

The Supreme Court agreed with the appellate court. The Court first noted that in the 25 years since it had decided People v. Enis, 139 Ill. 2d 264 (1990), there had a been a “dramatic shift in the legal landscape;” expert testimony on the reliability of eyewitness identification was once considered novel and uncertain but is now settled and widely accepted.

The Court went on to hold that the trial court abused its discretion in refusing to allow the defense to present expert testimony concerning eyewitness identification.  The only evidence of the defendant’s guilt was the eyewitness identification.  There was no physical evidence, and defendant had not made any incriminating statements.  Further, most of the factors that the experts identified as potentially contributing to the unreliability of eyewitness testimony were present (or at least possibly present) in this case, specifically stress of the event, presence of a weapon, partial disguise, exposure to post-event information, nighttime viewing, and cross-racial identification.  Likewise, only one of the identifications was subject to cross-examination because the other was admitted though the testimony of other witnesses through the excited utterance exception to the hearsay rule.  Finally, the record was far from clear about whether the woman was actually familiar with the defendant before the incident.

People v. Thompson

By Jay Wiegman, Office of the State Appellate Defender

A picture may be worth a thousand words, but what it means or depicts in a criminal case should be the domain of the jury.  In People v. Thompson, 2016 IL 118667, the Court considered the admissibility of lay opinion identification testimony.  Prior to Thompson's jury trial, the defendant filed a motion in limine seeking to exclude the testimony of witnesses, including several officers, as to the identity of a person shown on a surveillance video stealing anhydrous ammonia.  The circuit court, relying upon People v. Starks, 119 Ill. App. 3d 21 (4th Dist. 1983) concluded that the witnesses could provide identification testimony, as long as it was based upon their personal knowledge of the defendant.  On appeal from his convictions for procurement of anhydrous ammonia with the intent to manufacture methamphetamine and tampering with anhydrous ammonia equipment, the Appellate Court reversed, finding that the layperson identification testimony encroached upon the jury's function.

In a unanimous opinion, the Supreme Court reversed.  Writing for the Court, Justice   Burke   stated  that  lay  opinion  identification  testimony  is admissible  if  (a)  the testimony is rationally based on the perception of the  witness  and  (b) the testimony is helpful to a clear understanding of the witness’s testimony or a determination of a fact in issue.  Considering cases  from  other  jurisdictions,  the  Court  stated  that  a  showing of sustained   contact  or  special  knowledge  of  the  defendant  is  not  a prerequisite  to  a lay witness giving identification testimony.  The Court provided  five factors relevant to a determination of whether a lay witness is  more  likely  than the jury to identify the defendant correctly: 1) the witness’s  general level of familiarity with the defendant’s appearance; 2) the  witness’s  familiarity with the defendant’s appearance at the time the surveillance photograph was taken or whether the defendant was dressed in a manner similar to the individual depicted; 3) whether the defendant disguised his appearance at the time of the offense; 4) whether the defendant had altered his appearance prior to trial; and 5) the degree of clarity of the surveillance recording and the quality and completeness of the subject’s depiction in the recording.  Notably, the Court set forth special procedures for the trial court to employ when the lay opinion identification testimony the State seeks to introduce comes from law enforcement officers.

Applying these factors, the Supreme Court found that the testimony of some of the witnesses was admissible and some was not.  However, any error was harmless, particularly given the defendant's confession and other incriminating statements made by him.  Moreover, the jury was told that it was up to the jury to make the ultimate identification, and the jury saw the video twice during deliberations.

People v. Salem

By Jay Wiegman, Office of the State Appellate Defender

As track and field fans know, the trickiest aspect of a relay race is the transfer of the baton.  Similarly, in law, one of the trickier areas can be the hand-off from trial counsel to appellate counsel, as each tends to concentrate on his or her own area of expertise. For an appeal to be successful, however, it is important that trial counsel lay the appropriate groundwork.

In People v. Salem, 2016 IL 118693, the Supreme Court considered the interrelationship between a trial court's jurisdiction and that of the Appellate Court.  In Salem, trial counsel failed, in two separate trials that were consolidated on appeal, to file a motion for new trial within 30 days of the juries' verdicts, in violation of 725 ILCS 5/116-1(b)(West 2014), which provides that a "written motion for a new trial shall be filed by the defendant within 30 days following the entry of a finding or the return of a verdict."  Instead, in each case, Salem's motions for new trial were filed after he was sentenced.  Because the trial court heard the motion for a new trial more than 30 days after sentence was imposed, the defendant's notices of appeal were filed more than 30 days after sentencing.  On appeal, the State argued that the appellate court lacked jurisdiction because the notices of appeal were not filed within 30 days of the entry of final judgment (the sentence), as required by Supreme Court Rule 606(b), which requires that an appeal be filed within 30 days of an entry of final judgment or, if a timely motion is filed attacking a judgment, within 30 days of the order disposing of such motion.  Ill. S. Ct. R. 606(b).  The Appellate Court, Third District, concluded that it did not have jurisdiction because the notices of appeal were not filed within 30 days of sentencing nor within 30 days of orders disposing of timely filed motions against the judgments.

A unanimous Supreme Court agreed that the Appellate Court was without jurisdiction to hear the defendant's appeals.  Writing for the Court, Chief Justice Garman noted that Rule 606 does not define the term "timely," but determined that under the Code of Criminal Procedure, a motion for new trial is timely if it is filed within 30 days of the entry of finding or the return of a verdict.  725 ILCS 5/116-1(b).  Recognizing that section 116-1(b) does not prevent a trial judge from exercising the discretion to hear untimely motions, the Court held that "compliance with Rule 606, including the requirement that a motion be timely filed, is required for the appellate court to have jurisdiction."  People v. Salem, 2016 IL 118693, ¶15.  Thus, the Supreme Court determined that, "for the appellate court to have jurisdiction in a criminal case, a notice of appeal must be filed either 30 days from entry of final judgment [the sentence] or, if a timely motion is filed challenging a judgment, within 30 days of the entry of an order disposing of such motion. In this case, defendant's appeals would have been timely only if his motions for new trial had been timely."

People v. Salem, 2016 IL 118693, ¶25.  Thus, the Appellate Court correctly dismissed the defendant's appeals for lack of jurisdiction. However, given the unique facts of the case (including that the trial court and counsel demonstrated confusion regarding the time to file a motion for new trial, as well as the finding of the dissenting appellate court justice that the defendant presented compelling arguments in one of his appeals), and the importance of allowing the defendant to appeal his criminal conviction, the appellate court judgment was ordered vacated and the appeal reinstated. People v. Salem, 2016 IL 118693, ¶25.

Another "unique" fact in Salem is that the defendant did not file any motions to reconsider his sentences.  Had he done so, the Supreme Court's language in Salem suggests that the deadline for filing the notice of appeal would have been extended to 30 days after resolution of the timely motions to reconsider sentence.  Nonetheless, trial counsel would be well-advised to file motions for new trial within 30 days of a jury's verdict (or the entry of findings in a bench trial), or run the risk both that the trial court will find the arguments waived, and the appellate court will be without jurisdiction, unless the notice of appeal is filed within 30 days of the sentencing hearing.  Similarly, appellate counsel would be well-advised to file motions for leave to file a late notice of appeal (pursuant to SCR 606(c)) in situations where the post-trial motion is filed more than 30 days after the verdict or finding of guilt.

Posted on January 22, 2016 by Chris Bonjean
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