Office of the State Appellate Defender

Illinois Criminal Law Digest

October 2019

JAMES E. CHADD

State Appellate Defender

KERRY J. BRYSON

SHAWN O’TOOLE

Deputy State Appellate Defenders, Editors

©Copyright 2019 by the Office of the State Appellate Defender. All rights reserved.

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TABLE OF CONTENTS

APPEAL ........................................................................................................................ 1

People v. Carter, 2019 IL App (1st) 170803 (10/22/19) ........................................................................... 1

BAIL .............................................................................................................................. 1

People v. Johnson, 2019 IL App (3d) 190582 (10/28/19) ......................................................................... 1

COLLATERAL REMEDIES ...................................................................................... 2

People v. Cathey, 2019 IL App (1st) 153118 (10/11/19) .......................................................................... 2

People v. Cathey, 2019 IL App (1st) 153118 (10/11/19) .......................................................................... 2

COUNSEL ..................................................................................................................... 3

People v. Gold-Smith, 2019 IL App (3d) 160665 (10/22/19) .................................................................... 3

People v. Ross, 2019 IL App (1st) 162341 (10/18/19) .............................................................................. 3

EVIDENCE ................................................................................................................... 3

People v. Hinthorn, 2019 IL App (4th) 160818 (10/1/19) ........................................................................ 3

People v. Cruz, 2019 IL App (1st) 170886 (10/25/19) .............................................................................. 4

People v. Tondini, 2019 IL App (3d) 170370 (10/9/19) ............................................................................ 4

People v. Mitchem, 2019 IL App (1st) 162257 (10/11/19) ....................................................................... 5

JUDGE .......................................................................................................................... 5

People v. Knowles, 2019 IL App (3d) 180190 (10/8/19) .......................................................................... 5

People v. Hinthorn, 2019 IL App (4th) 160818 (10/1/19) ........................................................................ 5

People v. Gold-Smith, 2019 IL App (3d) 160665 (10/22/19) .................................................................... 6

JURY ............................................................................................................................. 7

People v. Tondini, 2019 IL App (3d) 170370 (10/9/19) ............................................................................ 7

People v. Brown, 2019 IL App (5th) 160329 (10/25/19) .......................................................................... 7

JUVENILE PROCEEDINGS ..................................................................................... 7

In re J.R., 2019 IL App (1st) 190661 (10/17/19) ........................................................................................ 7

PROBATION, PERIODIC IMPRISONMENT, CONDITIONAL DISCHARGE

& SUPERVISION ........................................................................................................ 8

In re J.R., 2019 IL App (1st) 190661 (10/17/19) ........................................................................................ 8

PROSECUTOR ............................................................................................................ 8

People v. Blom, 2019 IL App (5th) 180260 (10/4/19) .............................................................................. 8

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REASONABLE DOUBT ............................................................................................. 9

People v. Murray, 2019 IL 123289 (10/18/19) ......................................................................................... 9

SEARCH AND SEIZURE ........................................................................................... 9

People v. Teague, 2019 IL App (3d) 170017 (10/24/19) .......................................................................... 9

People v. Carter, 2019 IL App (1st) 170803 (10/22/19) ......................................................................... 10

People v. Turman, 2019 IL App (4th) 170815 (10/23/19) ...................................................................... 10

People v. McMichaels, 2019 IL App (1st) 163053 (10/29/19) ................................................................ 11

SENTENCING ........................................................................................................... 12

People v. Alexander, 2019 IL App (3d) 170168 (10/1/19)...................................................................... 12

People v. Brown, 2019 IL App (5th) 160329 (10/25/19) ........................................................................ 12

SEX OFFENSES ........................................................................................................ 12

People v. Blom, 2019 IL App (5th) 180260 (10/4/19) ............................................................................ 12

People v. Austin, 2019 IL 123910 (10/18/19) ......................................................................................... 13

STATUTES ................................................................................................................. 14

People v. Austin, 2019 IL 123910 (10/18/19) ......................................................................................... 14

WAIVER - PLAIN ERROR - HARMLESS ERROR .............................................. 15

People v. Tondini, 2019 IL App (3d) 170370 (10/9/19) .......................................................................... 15

People v. Cathey, 2019 IL App (1st) 153118 (10/11/19) ........................................................................ 15

WEAPONS .................................................................................................................. 16

People v. Carter, 2019 IL App (1st) 170803 (10/22/19) ......................................................................... 16

People v. Murray, 2019 IL 123289 (10/18/19) ....................................................................................... 16

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APPEAL

§§2-5(b), 2-6(d)

People v. Carter, 2019 IL App (1st) 170803 (10/22/19)

The Appellate Court affirmed defendant’s conviction for armed habitual

criminal predicated on armed robbery and aggravated battery. While the court agreed

that aggravated battery is not a proper qualifying offense unless it results in great

bodily harm or permanent disability or disfigurement, defendant had the burden of

providing a sufficient record to overturn the circuit court’s legal conclusion that the

State offered sufficient evidence at trial. Here, defendant included his aggravated

battery indictment in the appendix of his brief and asked the Appellate Court to take

judicial notice of the fact that he was alleged to have committed “insulting or

provoking” aggravated battery. The Appellate Court refused, finding an appendix is

an improper method of supplementing the record, particularly where the appended

material is an essential component to the argument. The court also noted that the

indictment did not necessarily establish the absence of great bodily harm, as it did

note that defendant punched and stabbed the complainant.

(Defendant was represented by Assistant Defender Sean Collins-Stapleton,

Chicago.)

BAIL

§6-1

People v. Johnson, 2019 IL App (3d) 190582 (10/28/19)

Over a dissent, the Appellate Court affirmed the denial of defendant’s motion

to reduce his $2 million bond. Although the legislature recently amended the bail

provisions of the Code of Criminal Procedure in order to shift the focus of bail

decisions from the wealth of the accused to the threat to safety and the risk of failure

to appear, the court here considered appropriate factors when arriving at the $2

million figure, including the seriousness of the offenses (possessing nearly 300 grams

of heroin with intent to deliver), the likelihood of conviction, and defendant’s criminal

history. The dissent would have found that a $2 million bond is a functional denial of

bond in contravention of the clear intent of the legislature, which recently passed

section 110-5(a-5), wherein the legislature mandated a “presumption that any

conditions of release imposed shall be non-monetary in nature and the court shall

impose the least restrictive conditions” to ensure defendant’s appearance.

(Defendant was represented by Assistant Defender Dimitri Golfis, Ottawa.)

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COLLATERAL REMEDIES

§§9-1(c)(2), 9-2(a)

People v. Cathey, 2019 IL App (1st) 153118 (10/11/19)

Defendant filed a petition for relief from judgment alleging that new evidence

of police misconduct exonerated him in his drug possession case. The press accounts

of Officer Guerrero’s and Officer Martinez’s misconduct were not available to

defendant at the time of his direct appeal, and were therefore “newly discovered.” But

they were not so conclusive as to warrant a new trial. Defendant had alleged at trial

that the officers planted drugs on him. But the misconduct detailed in the new

evidence involved gang involvement, robbery, and drug dealing. This misconduct was

not sufficiently similar to the misconduct alleged by defendant, and therefore would

not likely change the result on retrial.

(Defendant was represented by Assistant Defender Ginger Odom, Chicago.)

§9-2(c)

People v. Cathey, 2019 IL App (1st) 153118 (10/11/19)

The trial court cannot sua sponte dismiss a section 2-1401 petition based on

untimeliness. Here, defendant filed a petition alleging a one-act/one-crime violation

20 years after the end of the limitations period. The State did not answer the petition

and therefore did not raise the affirmative defense of untimeliness. The State’s failure

to respond constitutes an admission of all well-pleaded facts and that no triable issue

of fact exists. Thus, the trial court can sua sponte dismiss a section 2-1401 petition

where the only issue before the court is whether defendant is entitled to relief as a

matter of law. Application of the limitations period, however, requires a court to make

fact determinations because exceptions are allowed for delays attributable to

disability, duress, or fraudulent concealment.

While the Appellate Court found the defendant’s petition set forth a

meritorious one-act/one-crime claim under Crespo (convictions for both attempt

murder and aggravated discharge where State did not apportion gun shots in the

indictment), it could not determine whether the claim was forfeited and/or untimely.

Defendant alleged that he did not know of the one-act/one-crime rule until just before

filing his petition. Because the State did not answer the petition, the trial court made

no finding on whether this explanation showed due diligence. The Appellate Court

remanded for an evidentiary hearing on the issue of defendant’s diligence.

(Defendant was represented by Assistant Defender Ginger Odom, Chicago.)

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COUNSEL

§14-1(e)

People v. Gold-Smith, 2019 IL App (3d) 160665 (10/22/19)

On the date defendant’s case was assigned to a judge, defendant appeared in

court with counsel and requested to proceed pro se because his appointed counsel was

refusing to file a motion to substitute judge. The judge denied the request citing his

concern that defendant was asking to represent himself solely to file the substitution

motion and would then request that the public defender be re-appointed. The

Appellate Court held that defendant had an absolute right to seek substitution and

that he was not engaging in serious and obstructionist conduct by requesting to

proceed pro se in order to do so. The judge and defense counsel had “placed themselves

squarely between defendant and his unconditional statutory right to obtain” a

substitution of judge. Thus, the trial court abused its discretion in refusing to permit

defendant to proceed pro se, and the matter was reversed and remanded for a new

trial.

(Defendant was represented by Assistant Defender Emily Brandon, Ottawa.)

§14-4(b)(4)

People v. Ross, 2019 IL App (1st) 162341 (10/18/19)

Counsel did not provide ineffective assistance by failing to seek suppression of

defendant’s statement that he “did not know anything about” the guns that were

recovered from the vehicle in which he had been riding. Police officer’s statement to

defendant that officer knew why defendant and his co-defendant had run from the

vehicle was an informational comment and did not constitute interrogation. So, the

failure to provide Miranda warnings did not render defendant’s statement

inadmissible. Further, even if defendant’s statement was suppressed, the State had

ample evidence to convict so there was no likelihood that the outcome of the

proceedings would have been different.

(Defendant was represented by Assistant Defender Ashlee Johnson, Chicago.)

EVIDENCE

§§19-3, 19-10(e), 19-24(a)

People v. Hinthorn, 2019 IL App (4th) 160818 (10/1/19)

Defendant’s wife testified against him in a trial for the predatory criminal

sexual assault of their daughter. Some of the counts alleged that defendant acted as

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an accomplice to his wife during one of the assaults. The State’s pre-trial request to

admit other crimes evidence of prior sexual assaults by defendant against his wife

had been denied.

Defendant’s wife testified that she was forced to engage in a sex act with her

daughter out of fear that defendant would beat her. Defendant’s cross-examination

attacked this testimony by highlighting prior inconsistent statements. The trial court

allowed the State to then admit the other crimes evidence because the cross-

examination opened the door. The Appellate Court agreed, holding that under the

doctrine of curative admissibility the other crimes evidence was necessary to give the

jury the complete picture of the wife’s state of mind. The Appellate Court rejected,

however, the State’s assertion that the evidence was admissible under the

completeness doctrine, which applies to communications, not acts.

(Defendant was represented by Assistant Defender Michael Gentithes,

Chicago.)

§§19-22(b), 19-27(g)

People v. Cruz, 2019 IL App (1st) 170886 (10/25/19)

In a DUI case, the trial court agreed to the State’s request to take judicial

notice of and instruct the jury pursuant to section 1286.40 of Title 20 of the

Administrative Code, which states that the concentration of alcohol in a person’s

blood serum should be divided by 1.18 to calculate BAC. A doctor testified that

defendant’s blood test revealed a blood serum alcohol concentration of 190 milligrams

per deciliter. In closing, the State completed the calculation and informed the jury

that defendant’s BAC was 0.16, twice the legal limit.

The Appellate Court rejected the defendant’s argument that the State’s closing

introduced facts outside of the record and that an expert witness was required to

provide evidence of defendant’s BAC. The court properly took judicial notice of the

formula found in the Administrative Code, and using that information, the State

properly extrapolated defendant’s BAC. An expert is unnecessary where the jury

could easily determine BAC for themselves by simply dividing two numbers.

(Defendant was represented by Assistant Defender Elizabeth Botti, Chicago.)

§19-23(b)

People v. Tondini, 2019 IL App (3d) 170370 (10/9/19)

The Court did not err in refusing to allow defendant to present an “expert”

witness on the subject of “violence dynamics.” While an individual’s proposed

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testimony does not have to be scientific in nature for the witness to qualify as an

expert, an expert cannot give general “profile” testimony related to common practices,

habits, or characteristics which are not connected to defendant or the circumstances

of the specific case at issue. Here, the proposed expert would have testified about

“how violence works,” but could not opine on whether defendant acted in self-defense

because he had no firsthand knowledge of the altercation between defendant and the

complaining witness. This would have been the equivalent of “profile” testimony and

was properly excluded by the court.

§19-24(b)(5)

People v. Mitchem, 2019 IL App (1st) 162257 (10/11/19)

At defendant’s trial for aggravated vehicular hijacking and aggravated

kidnaping, the trial court did not abuse its discretion in allowing the State to

introduce evidence that defendant had kidnaped the complainant for ransom just a

few months prior to the incident on trial. The prior kidnaping was “highly relevant”

to show defendant’s motive for targeting the complainant, who was a longtime friend

of defendant. Specifically, in the prior kidnaping, defendant had obtained $100,000

in ransom, and the motive was to once again kidnap defendant for ransom.

JUDGE

§31-1(a)

People v. Knowles, 2019 IL App (3d) 180190 (10/8/19)

The post-conviction judge did not err in recusing himself at the second-stage of

proceedings. As an attorney, the judge had prior dealings with the expert in

defendant’s case and believed he might be not be able to remain impartial in

considering defendant’s petition because of that prior contact. A judge is in the best

position to determine whether he or she is prejudiced against defendant. And, even

though a defendant feels he may be better off with the judge remaining on the case,

a judge need only consider whether defendant might be prejudiced by his remaining

on the case; he is not required to consider whether a defendant will suffer prejudice

as a result of recusal.

§31-3(a)

People v. Hinthorn, 2019 IL App (4th) 160818 (10/1/19)

Defendant, facing accusations of sexual assault against his daughter, including

some allegations that his wife participated, requested that the trial judge recuse

himself pursuant to Rule 63(C), because 20 years prior the judge was the prosecutor

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in a case where defendant was alleged to have assaulted his wife. After asserting he

had no memory of the prior case, the judge denied the request.

A request for recusal under Rule 63(C) is different than a motion to substitute

judge pursuant to section 114-5. The latter requires a new judge to make an

independent ruling, while the former leaves the decision to the judge in question. A

judge should recuse himself under Rule 63(C) if, inter alia, he has “personal

knowledge of disputed evidentiary facts concerning the proceeding,” has “served as a

lawyer in the matter in controversy,” or where his “impartiality might reasonably be

questioned.” Here, the judge did not abuse his discretion. The judge had no personal

knowledge of any facts material to the case, as he did not remember the prior case.

Nor was he a lawyer in the matter in controversy, as “controversy” is limited to the

present case, not a prior case. Finally, the court refused to find any partiality

stemming solely from the judge’s former role as a prosecutor, holding that defendant

had the burden of overcoming a presumption of impartiality.

(Defendant was represented by Assistant Defender Michael Gentithes,

Chicago.)

§31-3(c)

People v. Gold-Smith, 2019 IL App (3d) 160665 (10/22/19)

On the date defendant’s case was assigned to a judge, defendant appeared in

court with counsel and requested to proceed pro se because his appointed counsel was

refusing to file a motion to substitute judge. The judge denied the request citing his

concern that defendant was asking to represent himself solely to file the substitution

motion and would then request that the public defender be re-appointed. The

Appellate Court held that defendant had an absolute right to seek substitution and

that he was not engaging in serious and obstructionist conduct by requesting to

proceed pro se in order to do so. The judge and defense counsel had “placed themselves

squarely between defendant and his unconditional statutory right to obtain” a

substitution of judge. Thus, the trial court abused its discretion in refusing to permit

defendant to proceed pro se, and the matter was reversed and remanded for a new

trial.

(Defendant was represented by Assistant Defender Emily Brandon, Ottawa.)

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JURY

§32-4(a)

People v. Tondini, 2019 IL App (3d) 170370 (10/9/19)

Where a juror is challenged for cause, it is the burden of the challenging party

to show that the juror is biased. Where a potential juror is related to a party to the

case, bias may be presumed. Here, the court rejected defendant’s challenge-for-cause

to a juror whose wife was employed as a victim witness coordinator for the State’s

Attorney’s office. As a “non-prosecutorial” employee, the juror’s wife was not a party

to the case because she had no ability to control the proceedings, question witnesses,

or appeal the verdict. Further, defendant failed to properly preserve his challenge to

the court’s refusal to excuse for cause because he had not exercised all of his

peremptory challenges at the time of the ruling and, when he later did exhaust his

peremptory challenges, he did not seek reconsideration of the for-cause ruling, did

not indicate that he was forced to accept an objectionable juror, and did not request

additional peremptory challenges.

§32-4(d)

People v. Brown, 2019 IL App (5th) 160329 (10/25/19)

The trial court’s questioning of the jury venire whether they understood the

Zehr principles and whether they could follow and/or apply those principles was not

plain error. While Rule 431(b) requires that the court ask potential jurors whether

they understand and “accept” the principles, asking whether jurors “can” follow

and/or apply the principles was adequate.

(Defendant was represented by Assistant Defender Daniel Janowski, Mt.

Vernon.)

JUVENILE PROCEEDINGS

§33-6(f)(2)

In re J.R., 2019 IL App (1st) 190661 (10/17/19)

Probation conditions restricting social media use were not vague or overbroad.

The judge clearly explained that the restrictions applied only to gang-related posts.

The court had no obligation to specify exceptions for innocuous contact. The

restrictions were also reasonably related to the nature of the offense and to the

juvenile’s rehabilitation, where the record showed he was at least influenced by gangs

and used a gun to commit an armed robbery. The restrictions also furthered a

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compelling state interest of value to the public, and the court had no alternative, less

subversive means to accomplish these goals.

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

PROBATION, PERIODIC IMPRISONMENT, CONDITIONAL DISCHARGE

& SUPERVISION

§39-4(b)

In re J.R., 2019 IL App (1st) 190661 (10/17/19)

Probation conditions restricting social media use were not vague or overbroad.

The judge clearly explained that the restrictions applied only to gang-related posts.

The court had no obligation to specify exceptions for innocuous contact. The

restrictions were also reasonably related to the nature of the offense and to the

juvenile’s rehabilitation, where the record showed he was at least influenced by gangs

and used a gun to commit an armed robbery. The restrictions also furthered a

compelling state interest of value to the public, and the court had no alternative, less

subversive means to accomplish these goals.

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

PROSECUTOR

§40-3

People v. Blom, 2019 IL App (5th) 180260 (10/4/19)

Defendant, a massage therapist, committed an act of sexual penetration

without consent, but argued that the State failed to prove the “use or threat of force”

element of criminal sexual assault. The victim testified that during her massage, the

defendant inserted his fingers into her vagina, and, frozen with fear, she did not move

or object. The Appellate Court affirmed, holding that “a woman locked in a dark room,

alone, naked, with a man, where she thought no one could hear her yell, while he

digitally penetrated her without her consent, constituted a threat of force beyond a

reasonable doubt.”

The Appellate Court also rejected defendant’s argument that the State

committed plain error in closing argument when it told the jury that “an act of sexual

penetration is in its nature an act of force.” The Appellate Court did find the State

misstated the law, but found no plain error where the State elsewhere provided the

correct definition, the jury was instructed as to the correct definition and also

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instructed that the arguments were not evidence, and in context the comments did

not undermine the defendant’s right to a fair trial.

REASONABLE DOUBT

§41-1

People v. Murray, 2019 IL 123289 (10/18/19)

To prove a defendant guilty of possession of a firearm by a street gang member,

the State must produce specific evidence in accordance with the statute’s definition

of a street gang; namely, that defendant belonged to a group of 3 or more persons

with an established hierarchy that . . . engages in a course or pattern of criminal

activity.” 740 ILCS 147/10 (West 2012). “Course or pattern of criminal activity” is

defined, in part, as (1) two or more gang-related criminal offenses committed in whole

or in part within this State; (2) that at least one such offense was committed after

January 1, 1993, the effective date of the Act; (3) that both offenses were committed

within five years of each other; and (4) that at least one offense involved the

solicitation to commit, conspiracy to commit, attempt to commit, or commission of any

offense defined as a felony or forcible felony under the Criminal Code of 2012.

Here, the parties agreed that defendant identified as a member of the Latin

Kings, and a police gang expert testified that the Latin Kings met the statutory

definition of a “street gang.” But the Illinois Supreme Court majority held that

without evidence of two qualifying offenses under section 147/10, the State failed to

prove defendant guilty of being a street gang member beyond a reasonable doubt. The

legislature clearly insisted on proof of specific crimes, and the State’s approach of

allowing an expert opinion to stand in for that proof violated defendant’s right to due

process.

(Defendant was represented by Assistant Defender Jennifer Bontrager,

Chicago.)

SEARCH AND SEIZURE

§§43-2(a), 43-5(a)(1)

People v. Teague, 2019 IL App (3d) 170017 (10/24/19)

Where a defendant is seen leaving his residence and proceeds directly to a drug

deal, police generally have established a sufficient nexus between the illegal activity

and the residence such that a magistrate could find probable cause to issue a search

warrant for the residence.

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Here, police used an informant to set up a controlled buy. Surveillance officers

observed defendant leave his residence and drive directly to the location of the buy,

where he sold narcotics to the informant. The officers obtained a warrant to search

defendant’s person, car, and residence. Inside the residence, officers discovered

narcotics, and defendant was charged with possession of a controlled substance with

intent to deliver. Unlike People v. Manzo, 2018 IL 122761, where the court on

similar facts struck down a warrant issued for a third-party’s residence from which

defendant proceeded to a drug deal, the defendant here left his own residence before

immediately proceeding to the drug deal. Moreover, the warrant affidavit here

included additional details not present in Manzo, including descriptions of the

officer’s experience with drug investigations and drug dealers.

§§43-3(b)(2), 43-4(c)(3)

People v. Carter, 2019 IL App (1st) 170803 (10/22/19)

The police had reasonable suspicion to conduct a Terry stop where a 911 caller

described a man with a gun, and the officer, upon spotting someone who matched the

description at the same location, corroborated the tip by noticing the suspect holding

his waistband. Although a 911 caller isn’t a truly anonymous informant, as 911 calls

are traceable, police must still corroborate a 911 caller’s tip in order to have

reasonable suspicion. The corroboration must be more than innocent details, such as

a description, and must instead support the caller’s assertion of illegality. Here, the

observation of hand placement indicative of concealing a firearm was sufficient to

corroborate the tip’s assertion of illegality and provided reasonable suspicion.

(Defendant was represented by Assistant Defender Sean Collins-Stapleton,

Chicago.)

§43-3(b)(2)

People v. Turman, 2019 IL App (4th) 170815 (10/23/19)

Police responded to an armed robbery call where the victim, who said her

assailant had fled on foot, described him as a black male, approximately 5'6" tall,

medium build, wearing blue jeans and a black hooded sweatshirt. A short time later,

officers observed defendant on a bicycle approximately a block-and-a-half from the

scene. Defendant was wearing jeans, a black jacket, a black hooded sweatshirt, and

a black hat, and was about the same size as the suspect. Although a show-up revealed

that defendant was not the armed robbery assailant, the police learned from their

encounter with defendant that he was in violation of his requirement to register as a

sex offender, and defendant was prosecuted for, and convicted of, that offense.

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On these facts, the trial court did not err in denying defendant’s motion to

suppress evidence. Although defendant was on a bike rather than on foot, his build,

clothing, and proximity to the scene warranted a brief investigatory detention when

considering the totality of the circumstances. There was no Fourth Amendment

violation, and defendant’s motion to suppress was properly denied.

(Defendant was represented by Assistant Defender Joshua Scanlon,

Springfield.)

§§43-3(b)(2), 43-3(d)(1), 43-4(c)(3)

People v. McMichaels, 2019 IL App (1st) 163053 (10/29/19)

Acting on a tip, police stopped defendant on the street and recovered a weapon.

Defendant unsuccessfully challenged the stop and seizure and was convicted of armed

habitual criminal. The Appellate Court held that the officers had reasonable

suspicion at the time of the seizure. Defendant was not seized when officers initially

approached and ordered him to show his hands because defendant did not submit,

instead placing his hands in his pocket and turning away. The police did seize

defendant when an officer grabbed defendant in an attempt to see his hands. At that

point, however, the officers had reasonable suspicion. Defendant was found at the

location described in the tip and matched the description of the man said to be in

possession of a gun. This, coupled with defendant’s refusal to show the officers his

hands and to instead conceal them in his pocket, amounted to reasonable suspicion.

Once the officers saw the gun, they had probable cause to arrest despite

Aguilar. Under the totality of the circumstances, the officers could reasonably

conclude that defendant was not licensed to carry the gun based on his noncompliance

with the officers’ request and his furtive movements. Moreover, section 108-1.01 of

the Code of Criminal Procedure allows officers to take a weapon during a Terry stop

if there is a reasonable suspicion of danger. And while the Firearm Concealed Carry

Act only requires disclosure of a license at the request of the officer, and here the

officers did not first ask if defendant had a license, defendant could have volunteered

the license rather than act suspiciously.

(Defendant was represented by Assistant Defender Lauren Bauser, Chicago.)

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SENTENCING

§44-4(c)

People v. Alexander, 2019 IL App (3d) 170168 (10/1/19)

Defendant was convicted of murder, aggravated battery with a firearm, and

unlawful use of a weapon by a felon. He received 56 years for murder, consecutive to

12 for aggravated battery and three for UUWF.

The Appellate Court agreed to vacate the UUWF pursuant to N.G. The record

established that defendant’s only prior felony was an AUUW conviction under the

provision found unconstitutional in Aguilar. The court remanded for a new

sentencing hearing on the murder and aggravated battery convictions because it was

unclear from the record how much weight the sentencing court accorded the

unconstitutional convictions.

(Defendant was represented by Assistant Defender Bryan Kohut, Ottawa.)

§44-5

People v. Brown, 2019 IL App (5th) 160329 (10/25/19)

In sentencing defendant for murder, the trial court did not err in citing in

aggravation that defendant’s conduct threatened or caused harm. The State argued

the existence of harm separate and apart from the victim’s death. The victim impact

statement described the devastating impact of the victim’s death on his mother and

his four children. And, the death was the result of defendant’s shooting the victim in

a housing area during the daytime, creating the risk that other people could have

been caught in the crossfire. The statutory aggravating factor that “defendant’s

conduct caused or threatened serious harm” is not restricted to harm to the victim.

(Defendant was represented by Assistant Defender Daniel Janowski, Mt.

Vernon.)

SEX OFFENSES

§45-2(a)

People v. Blom, 2019 IL App (5th) 180260 (10/4/19)

Defendant, a massage therapist, committed an act of sexual penetration

without consent, but argued that the State failed to prove the “use or threat of force”

element of criminal sexual assault. The victim testified that during her massage, the

defendant inserted his fingers into her vagina, and, frozen with fear, she did not move

13

or object. The Appellate Court affirmed, holding that “a woman locked in a dark room,

alone, naked, with a man, where she thought no one could hear her yell, while he

digitally penetrated her without her consent, constituted a threat of force beyond a

reasonable doubt.”

The Appellate Court also rejected defendant’s argument that the State

committed plain error in closing argument when it told the jury that “an act of sexual

penetration is in its nature an act of force.” The Appellate Court did find the State

misstated the law, but found no plain error where the State elsewhere provided the

correct definition, the jury was instructed as to the correct definition and also

instructed that the arguments were not evidence, and in context the comments did

not undermine the defendant’s right to a fair trial.

§45-4

People v. Austin, 2019 IL 123910 (10/18/19)

Nonconsensual dissemination of private sexual images statute [720 ILCS 5/11-

23.5(b)] was upheld against constitutional challenges. The statute criminalizes the

intentional dissemination of an image of another who is at least 18 years old,

identifiable from the image or accompanying information, engaged in a sexual act or

whose intimate parts are exposed, if the disseminator obtained the image under

circumstances in which a reasonable person would know or understand that it was to

remain private, and knew or should have known that the person in the image had not

consented to its distribution.

The Supreme Court upheld the statute against a first amendment challenge.

Sexual images do not fall within an established categorical exception to first

amendment protection, and the court declined to recognize a new category of speech

– that which invades privacy – as falling outside of first amendment protection. Thus,

Section 11-23.5(b) implicates freedom of speech and first amendment scrutiny was

warranted.

Intermediate scrutiny applies because the statute is a content-neutral

restriction that regulates only private matters. While the statute restricts a specific

category of speech (sexual images), it is content neutral because it is concerned not

with the content of the image, but with whether the disseminator obtained it under

circumstances which would lead a reasonable person to conclude that it was intended

to remain private and that the person in the image had not consented to its

dissemination. And, because the statute involves private images rather than public

speech, first amendment protections are less rigorous.

The statute withstands intermediate scrutiny because it protects individual

privacy rights and is designed to prevent significant harm to victims. And, the

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restriction is narrowly tailored to serve the interest in protecting privacy without

burdening substantially more speech than necessary. The statute is targeted at

private sexual images, and requires that the disseminator act intentionally and have

reasonable awareness that the image was intended to remain private. For these same

reasons, the statute is not facially overbroad.

STATUTES

§§47-3(b)(1)(a)(3), 47-3(b)(5)

People v. Austin, 2019 IL 123910 (10/18/19)

Nonconsensual dissemination of private sexual images statute [720 ILCS 5/11-

23.5(b)] was upheld against constitutional challenges. The statute criminalizes the

intentional dissemination of an image of another who is at least 18 years old,

identifiable from the image or accompanying information, engaged in a sexual act or

whose intimate parts are exposed, if the disseminator obtained the image under

circumstances in which a reasonable person would know or understand that it was to

remain private, and knew or should have known that the person in the image had not

consented to its distribution.

The Supreme Court upheld the statute against a first amendment challenge.

Sexual images do not fall within an established categorical exception to first

amendment protection, and the court declined to recognize a new category of speech

– that which invades privacy – as falling outside of first amendment protection. Thus,

Section 11-23.5(b) implicates freedom of speech and first amendment scrutiny was

warranted.

Intermediate scrutiny applies because the statute is a content-neutral

restriction that regulates only private matters. While the statute restricts a specific

category of speech (sexual images), it is content neutral because it is concerned not

with the content of the image, but with whether the disseminator obtained it under

circumstances which would lead a reasonable person to conclude that it was intended

to remain private and that the person in the image had not consented to its

dissemination. And, because the statute involves private images rather than public

speech, first amendment protections are less rigorous.

The statute withstands intermediate scrutiny because it protects individual

privacy rights and is designed to prevent significant harm to victims. And, the

restriction is narrowly tailored to serve the interest in protecting privacy without

burdening substantially more speech than necessary. The statute is targeted at

private sexual images, and requires that the disseminator act intentionally and have

reasonable awareness that the image was intended to remain private. For these same

reasons, the statute is not facially overbroad.

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WAIVER - PLAIN ERROR - HARMLESS ERROR

§54-1(b)(1)(a)

People v. Tondini, 2019 IL App (3d) 170370 (10/9/19)

Where a juror is challenged for cause, it is the burden of the challenging party

to show that the juror is biased. Where a potential juror is related to a party to the

case, bias may be presumed. Here, the court rejected defendant’s challenge-for-cause

to a juror whose wife was employed as a victim witness coordinator for the State’s

Attorney’s office. As a “non-prosecutorial” employee, the juror’s wife was not a party

to the case because she had no ability to control the proceedings, question witnesses,

or appeal the verdict. Further, defendant failed to properly preserve his challenge to

the court’s refusal to excuse for cause because he had not exercised all of his

peremptory challenges at the time of the ruling and, when he later did exhaust his

peremptory challenges, he did not seek reconsideration of the for-cause ruling, did

not indicate that he was forced to accept an objectionable juror, and did not request

additional peremptory challenges.

§54-1(b)(10)(b)

People v. Cathey, 2019 IL App (1st) 153118 (10/11/19)

The trial court cannot sua sponte dismiss a section 2-1401 petition based on

untimeliness. Here, defendant filed a petition alleging a one-act/one-crime violation

20 years after the end of the limitations period. The State did not answer the petition

and therefore did not raise the affirmative defense of untimeliness. The State’s failure

to respond constitutes an admission of all well-pleaded facts and that no triable issue

of fact exists. Thus, the trial court can sua sponte dismiss a section 2-1401 petition

where the only issue before the court is whether defendant is entitled to relief as a

matter of law. Application of the limitations period, however, requires a court to make

fact determinations because exceptions are allowed for delays attributable to

disability, duress, or fraudulent concealment.

While the Appellate Court found the defendant’s petition set forth a

meritorious one-act/one-crime claim under Crespo (convictions for both attempt

murder and aggravated discharge where State did not apportion gun shots in the

indictment), it could not determine whether the claim was forfeited and/or untimely.

Defendant alleged that he did not know of the one-act/one-crime rule until just before

filing his petition. Because the State did not answer the petition, the trial court made

no finding on whether this explanation showed due diligence. The Appellate Court

remanded for an evidentiary hearing on the issue of defendant’s diligence.

(Defendant was represented by Assistant Defender Ginger Odom, Chicago.)

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WEAPONS

§55-3

People v. Carter, 2019 IL App (1st) 170803 (10/22/19)

The Appellate Court affirmed defendant’s conviction for armed habitual

criminal predicated on armed robbery and aggravated battery. While the court agreed

that aggravated battery is not a proper qualifying offense unless it results in great

bodily harm or permanent disability or disfigurement, defendant had the burden of

providing a sufficient record to overturn the circuit court’s legal conclusion that the

State offered sufficient evidence at trial. Here, defendant included his aggravated

battery indictment in the appendix of his brief and asked the Appellate Court to take

judicial notice of the fact that he was alleged to have committed “insulting or

provoking” aggravated battery. The Appellate Court refused, finding an appendix is

an improper method of supplementing the record, particularly where the appended

material is an essential component to the argument. The court also noted that the

indictment did not necessarily establish the absence of great bodily harm, as it did

note that defendant punched and stabbed the complainant.

(Defendant was represented by Assistant Defender Sean Collins-Stapleton,

Chicago.)

§55-4

People v. Murray, 2019 IL 123289 (10/18/19)

To prove a defendant guilty of possession of a firearm by a street gang member,

the State must produce specific evidence in accordance with the statute’s definition

of a street gang; namely, that defendant belonged to a group of 3 or more persons

with an established hierarchy that . . . engages in a course or pattern of criminal

activity.” 740 ILCS 147/10 (West 2012). “Course or pattern of criminal activity” is

defined, in part, as (1) two or more gang-related criminal offenses committed in whole

or in part within this State; (2) that at least one such offense was committed after

January 1, 1993, the effective date of the Act; (3) that both offenses were committed

within five years of each other; and (4) that at least one offense involved the

solicitation to commit, conspiracy to commit, attempt to commit, or commission of any

offense defined as a felony or forcible felony under the Criminal Code of 2012.

Here, the parties agreed that defendant identified as a member of the Latin

Kings, and a police gang expert testified that the Latin Kings met the statutory

definition of a “street gang.” But the Illinois Supreme Court majority held that

without evidence of two qualifying offenses under section 147/10, the State failed to

prove defendant guilty of being a street gang member beyond a reasonable doubt. The

legislature clearly insisted on proof of specific crimes, and the State’s approach of

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allowing an expert opinion to stand in for that proof violated defendant’s right to due

process.

(Defendant was represented by Assistant Defender Jennifer Bontrager,

Chicago.)