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Criminal Nuggets


Oct 31, 2016

Illinois Case Law Updates for January 2015. Here are the top Illinois criminal law decisions. Fast and convenient summary of recent Illinois criminal court cases. The Appellate Courts and Illinois Supreme Court had a busy-busy January. Click Here to Download a One-Page PDF of January's Top Cases!    Get Case List Now!

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Sentencing

[caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. Sup. Ct.[/caption]

Remanded for resentencing on an old gun conviction before he gun add-ons were fixed.

Public Act 95-688, enacted shortly after Hauschild, amended the armed violence statute so that robbery can no longer serve as a predicate offense for armed violence. But this law did not apply retroactively to cover Defendant's charges. Case was remanded for resentencing so that the parties' expectations can be met as much as possible. People v. Taylor

Search & Seizure

[caption id="attachment_1466" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 4th Dist.[/caption]

 

Police need a warrant to bring a drug dog to an apartment front door.

The State argued that Florida v. Harris did not require reversal because that case involved a single story residential home. This court said a home also includes an apartment and Harris is directly on point. People v. Burns

 

[caption id="attachment_1466" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 1st Dist .[/caption]

 

DUI arrest was improper when the officer could not explain why he pulled his gun out and aimed it at the lady.

Defendant was seized without probable cause or reasonable suspicion when the officer approached the driver’s door with his gun drawn. Subsequent field sobriety tests and officer’s observations were suppressed. People v. Bozarth  

Sexual Assault

[caption id="attachment_1466" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 1st Dist .[/caption]

 

Remember to check the date of offense on sexual assault cases; the gun add-on may have been void at the time of the crime.

The 15 year additional sentence for the firearm enhancement is stricken because this crime occurred in 2006 when that penalty violated the proportionate penalties clause of the Illinois Constitution. Defendant will do 12 years not 12 plus 15. People v. Lampkins  

[caption id="attachment_1466" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 1st Dist .[/caption]

 

Conviction for aggravated kidnapping does not have to be vacated because the kidnapping was not incidental to the aggravated criminal sexual assault that occurred.

The Levy-Lombardi doctrine says a defendant cannot be convicted of kidnapping where the asportation (carries from one place to another) or confinement of the victim was merely incidental to anothe crime such as robbery, rapr or murder. A court must consider the following factors to determine whether the asportation amounts to the independent crime of kidnapping: "(1) the duration of the asportation or detention; (2) whether the asportation or detention occurred during the commission of a separate offense; (3) whether the asportation or detention is inherent in the separate offense; and (4) whether the asportation or detention created a significant danger to the victim independent of that posed by the separate offense." People v. Johnson  

Evidence

[caption id="attachment_1466" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 1st Dist .[/caption]

 

Defendant answered questions in Spanish during his confession. Are the tranlsated transcripts substantive evidence?

Generally, when transcripts of an audio recording are provided the transcripts are not substantive evidence. The recording itself is the evidence and the transcripts are only provided as an aid. However, when the transcripts also translate a foreign language into English then the transcripts do become substantive evidence if it has been established that the translation is a fair and accurate. The defense is always free to challenge any translation with their own translator in court when they see fit. People v. Betance-Lopez

[caption id="attachment_1466" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Sup. Ct.[/caption]

 

Trial counsel was ineffective for failing to object to hearsay evidence that Defendant used a bat to hit the murder victim.

Testifying witness said he could not remember what the defendant told him about the murder. The witness’s recorded interview with police is then played. Witness tells police Defendant told him he hit the victim with a bat 30 times. Section 115-10.1 requires that witness have personal knowledge of the crime being described and not just personal knowledge of the conversation about the crime. Supreme Court settled this issue apparently already settled by the appellate courts. Note: the inconsistent statement could not have been impeached by the State either because his testimony did not affirmatively damage the State’s case. See People v. Cruz, 162 Ill. 2d 314, 359-60 (1994). People v. Simpson    

[caption id="attachment_1466" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 1st Dist.[/caption]

 

Trial court erred in admitting highly prejudicial evidence of other crimes and failing to comply with Illinois Supreme Court Rule 431(b), conviction for stalking is reversed.

Other-crimes evidence is objectionable because a jury, upon hearing this evidence, might convict the defendant merely because it feels that the defendant is a bad person who deserves punishment. Even where other-crimes evidence is relevant for a permissible purpose, the circuit court must weigh the prejudicial effect of admitting the other-crimes evidence against its probative value. When facts concerning the uncharged criminal conduct are part of a continuing narrative of the charged criminal conduct, they do not concern separate, distinct, and unconnected crimes. The fight with the victim’s boyfriend was not connected to the stalking charge. The fight occurred 2 hours later and no contact with the stalking victim occurred. People v. McGee   

[caption id="attachment_1466" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 4th Dist.[/caption]

 

Does the silent witness theory of video evidence prevent a narration of what has been recorded including the identity of the defendant?

A casino security employee testified that Defendant and a co-defendant were following the victim in the casino and followed him outside where the victim was robbed at gun-point. The video evidence was properly authenticated under the silent witness theory. Even though the security employee did not personally observe the video that was captured, he could still narrate what was recorded (including the identity of Defendant) because the security employee had some basis for concluding the witness is more likely to correctly identify the defendant from the videotape than the jury. In other words, a lay witness may testify regarding the identity of a person depicted in a surveillance video if there is some basis for concluding the witness is more likely to correctly identify the individual from the videotape than is the jury. The Fifth District has gone another way on this issue. They require a witness's appearance to be different at trial or if the image was unclear. People v. Mister  

[caption id="attachment_1466" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 3rd Dist.[/caption]

 

Trial juidge errored in admitting photographs of drug messages found near the drugs as other crimes evidence against the defendant; drug conviction reversed. 

Drugs, drug paraphernalia and several phones with drug messages are recovered after a search warrant is executed. Defendant and five other adults were present. For the purpose of establishing a proper foundation for admissibility, text messages are treated like any other form of documentary evidence. Here, the only evidence presented by the State to authenticate the text messages was the fact that the cell phone was found in the same house as defendant, albeit in a drawer in a common area, and the fact that some of the messages referred to, or were directed at, a person named "Charles." This was not sufficiet authentication. There were no cell phone records to indicate that the cell phone belonged to or had been used by defendant or anyone else at the residence; there was no eyewitness testimony to indicate that the cell phone belonged to or had been used by defendant or that the messages were being sent to defendant; and there were no identifying marks on the cell phone itself or on the cell phone's display screen to indicate that cell phone belonged to or had been used by defendant (other than possibly the references to "Charles" in the text messages).  People v. Watkins   

[caption id="attachment_1466" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 4th Dist.[/caption]

 

Police mixes all the drugs in one bag and send it to the lab that way.

Trial counsel is ineffective for not figuring out how the testing was done before trial and before he agreed to stipulate to the weight and testing of the drugs. When counsel stipulated he threw away a huge issue for the defendant. When the drugs were mixed it became impossible for the state to prove how much cocaine there really was. People v. Coleman  

Juvenile

[caption id="attachment_1466" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 1st Dist .[/caption]

 

Minor cannot appeal his order of supervision because it is not a final judgement.

Illinois Supreme Court rules governing juvenile delinquency proceedings do not provide for appellate review of an interlocutory order in a case that has been continued under supervision. Appeal dismissed. In re Henry B.  

 

[caption id="attachment_1466" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 3rd Dist.[/caption]

 

Unlawful consumption of alcohol by a minor conviction is reversed because the burden that the kid is not drinking under the supervision of a parent is on the State

Officer responds to complaints of a party. She walks around back and onto a deck where there is some drinking going on. Defendant immediately tells her to “Get off my property. You don’t have a warrant to be here.” Ouch. Police established that the defendant was drinking while his mother was present. They did not establish that the mother was not supervising the drinking. People v. Cannon  

Statute of Limitations

[caption id="attachment_1466" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Sup. Ct.[/caption]

 

Discovery of a financial crimes involves more than just being told by the police that Defendant wrote some checks out; at best this merely raised a suspicion that a crime occurred.

Extended statute of limitations period authorizes a charge one year after a victim discovers the crime or within a year of the prosecutor becoming aware. See 720 ILCS 5/3-6(a)(2). However, section 3-6(a)(2) requires more than mere suspicion of a crime, or even awareness of a loss. Rather, activation of section 3-6(a)(2) requires awareness or knowledge that there has been a violation of a penal statute. The victim in this case did not discover the offense prior to the Adams County State’s Attorney becoming aware of it. People v. Chenoweth  

Sentencing

[caption id="attachment_1466" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 1st Dist.[/caption]

 

Convictions for armed robbery and aggravated unlawful restraint do violate one-act, one-crime principles in this case.

This is nice little example demonstrating the King concepts. The robbers order to lie down on the ground and give up their money was one inherent act. It all was one thing. State unsuccessful tried to argue that ordering them to count to 50 after they got the money was a separate act. No it wasn’t. People v. McWilliams  

Prosecutorial Misconduct

[caption id="attachment_1466" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 3rd Dist.[/caption]

 

There may be something here.

Defendant has an affidavit from the then 11 year old witness who now is saying (a) that he was related to one of the prosecutors on the case he testified in and (b) someone told him to lie about seeing the victim with a gun. This is proceeding to a second stage post conviction. People v. Haynes  

DUI

[caption id="attachment_1466" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 1st Dist.[/caption]

 

The granting of this petition to rescind statutory summary suspension is reversed, suspension is back in effect.

Defendant filed the petition because he did not receive notice of the suspension from the SOS until after the suspension was in effect. He argued this denied him a chance to contest it in court. The trial court agreed saying this was a violation of 625 ILCS 5/11-501.1(g). The appellate court said Defendant received proper notice from the police on the day of his arrest and had more than ample opportunity to challenge the suspension in court before it became active. People v. Morales  

Jury Instructions

[caption id="attachment_1466" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 1st Dist.[/caption]

 

Defendant won his self defense case in his murder and attempted murder trial; but the self defense instruction was not given on one count!

Defendant shot and killed one man and wounded another. It was ineffective assistance of counsel for the trial attorney to allow this missing self-defense instruction on the aggravated discharge count. Here, three of the four charged offenses included a self-defense instruction, but the remaining aggravated discharge instructions did not, a rational juror employing elementary rules of logic could—in fact, should—find that omission to be meaningful. This was also plain error. Remanded for new trial. People v. Getter