Quick Takes on Illinois Supreme Court Opinions Issued Thursday, October 7, 2021
Our panel of leading appellate attorneys reviews the two Illinois Supreme Court opinions handed down Thursday, October 7.
The People of the State of Illinois v. Steven A. Taliani, 2021 IL 125891
By Kerry J. Bryson, Office of the State Appellate Defender
Steven Taliani, who had been convicted of the murder of his girlfriend and aggravated battery with a firearm to her mother in 1994, sought leave to file a second successive post-conviction petition in 2017. Taliani alleged that he had newly discovered evidence of actual innocence in the form of a previously unavailable defense – specifically, that he suffered involuntary intoxication from the unwarned side effects of prescription medications. Taliani cited People v. Hari, 218 Ill. 2d 275 (2006), to support his contention that this defense was not available in Illinois until long after his trial. The circuit court denied leave to file, and the appellate court affirmed.
The Supreme Court, in a unanimous decision, agreed with the lower courts. To obtain leave to file a successive petition claiming actual innocence, a defendant must support his petition with evidence that is “newly discovered, material and not merely cumulative, and of such conclusive character that it would probably change the outcome on retrial.” Taliani simply could not meet that standard here.
While Taliani knew at the time of trial that he had been taking the prescribed medications – BuSpar and Desyrel – he asserted that it was unknown at that time that these two medications could cause serotonin syndrome, which could lead to mental status changes. And, further, even if the possibility of serotonin syndrome was known at the time of trial, Taliani asserted that the affirmative defense of involuntary intoxication due to unwarned side effects was not available until well after his trial. Taliani argued that the confluence of these facts was the newly discovered evidence of his actual innocence. And, he contended that had he been able to assert the involuntary intoxication defense at trial, the jury likely would have found him not legally responsible for murder and aggravated battery with a firearm.
The State, on the other hand, argued that there was no newly discovered evidence because defendant could have argued the effects of the medications on his mental status where involuntary intoxication had been recognized in other jurisdictions prior to the time of trial. And, the State urged the Court to reject the claim that a newly recognized affirmative defense can transform old evidence into newly discovered evidence.
It was that latter argument that carried the day with the Supreme Court. The Court held that a new defense is a new theory, but it is not new evidence of innocence. Taliani’s claim was not based on any new evidence here. Indeed, in prior filings he had argued trial counsel’s ineffectiveness for failing to present evidence of serotonin syndrom at his trial, thus indicating that such evidence actually was available at that time. Further, the Court noted that even if the possibility of serotonin syndrome could be deemed newly discovered evidence, Taliani had presented no evidence that he was actually suffering from it at the time of the offense. Instead, the evidence showed that it could result from the combination of medications he was taking, but not that it always resulted or more specifically that it had occurred here.
The People of the State of Illinois v. Todd L. Johnson, 2021 IL 126291
By Kerry J. Bryson, Office of the State Appellate Defender
Todd Johnson was charged with, and convicted of, armed robbery and aggravated robbery arising out of the robbery of a Marathon gas station in Peoria. The armed robbery count alleged that Johnson committed the robbery while armed with a firearm, and the aggravated robbery count alleged that he committed the robbery while indicating that he was armed with a firearm. Johnson was arrested a short time after the robbery, and a search of the premises where he was located revealed both a 9-millimeter handgun and a BB gun.
After his jury trial, Johnson argued that his attorney was ineffective for failing to have swabs taken from the 9-millimeter pistol tested for DNA. Johnson argued that counsel labored under the mistaken belief that the gun had not even been swabbed for DNA, but evidence adduced at trial made clear that swabs had been taken but had not been submitted for testing. The trial court denied the motion for new trial.
The appellate court reversed in a 2-to-1 decision. The majority concluded that counsel’s decision constituted deficient performance and not a matter of trial strategy because counsel was not even aware that DNA swabs had been collected and could have been tested. And, the majority held that Johnson was prejudiced because “a negative DNA test would likely have resulted in, at the very least, an acquittal on the armed robbery charge” since it would cast doubt on the notion that defendant carried the actual firearm, rather than the BB gun. Indeed, a negative DNA result could have led the jury to conclude that defendant was not the perpetrator at all. The dissent would have affirmed, noting that because no DNA testing had yet been performed, prejudice could not be established.
In a unanimous decision, the Supreme Court reversed the appellate court and affirmed the trial court. The Court looked to the familiar analysis for ineffective assistance of counsel established in Strickland v. Washington, 466 U.S. 668 (1984), and noted that a court may proceed directly to the prejudice prong of the analysis where it is easier to dispose of a claim on that ground. That is because even an unprofessional error by counsel will not warrant setting aside a criminal judgment if the error had no effect on the outcome of the proceedings. Also, here the State did not argue in the appellate court that counsel’s performance was not deficient, and therefore it forfeited any argument as to that prong of the analysis.
On the question of prejudice, the Supreme Court affirmed that it is not enough to speculate that an alleged error had a conceivable effect on the outcome. Instead, a defendant must affirmatively prove that there is a reasonable probability that the outcome of the trial would have been different absent the error. Johnson could not meet that burden here. As the Court noted, the pistol was swabbed for potential DNA, but because no testing had been performed it was unknown whether those swabs actually contained any DNA sufficient for testing, let alone whether the results would have been exculpatory. Prejudice cannot be based on mere conjecture as to the possible results of DNA testing. Accordingly, the appellate court erred in reversing and remanding for a new trial.