Archive for the ‘Crime’ category

January Update

January 28, 2009

People v. Alfaro, No. 2-06-1146 (October 2, 2008)

Defendant enter plea to second degree murder, reduced from first degree, in exchange for testimony against other defendants.

Because defendant breached plea agreement, which allowed defendant to plead guilty to second degree murder and obstructing justice, in exchange with defendant’s cooperation with prosecutors in their prosecution of other defendants, by giving inconsistent and untrue statement, he was not prejudiced by ineffective and unprofessional representation by his counsel. However, trial court erred when it refused to suppress video taped statement given to police, after three hour interrogation; because defendant was in custody, and State deliberately engaged in “ask and then warn” tactic. After first hour, defendant was confronted by accusatory interrogation; defendant was interrogated after getting off from midnight shift; and a reasonable person in defendant’s position would not have believed himself free to leave.

People v. Russell, No. 3-06-0264 (October 2, 2008)

Admission of affidavits and records certifying results and accuracy of breathalyzer machine do not violate right of confrontation as described in Crawford.

People v. Poe, No. 3-06-0461 (October 7, 2008)
Although the Supreme Court has held that theft can qualify as lesser included offense of burglary for purposes of jury instruction, defendant is not entitled to vacate conviction for theft under one act one crime analysis where he was convicted of breaking into a lumber yard with intent to commit a theft, and also of committing theft upon entry.

People v. Petrenko, No. 3-06-0508 (October 2, 2008)

Trial court did not err when it summarily dismissed post conviction petition filed by defendant alleging ineffective assistance of trial and appellate counsel for failure to file motion challenging search warrant of defendant’s home after defendant’s fingerprints were found in murder and robbery victim’s home. Further, defendant’s assertion on appeal of first stage dismissal of his post conviction petition that his consecutive sentences of natural life and 10 years, respectively for murder and robbery, is procedurally defaulted.

People v. Paige, No. 3-07-0869 (October 6, 2008)
Trial court erred when it granted motion to rescind a statutory summary suspension based on evidence that defendant was stopped at a roadblock, where officer smelled cannabis odor coming from defendant’s vehicle and defendant admitted that he had been smoking marijuana. In order to rescind summary suspension, defendant was required to present some evidence that roadblock was unreasonable; which he did not.

People v. Lucas, No. 104558 (October 17, 2008)
Trial and Appellate courts erred when they allowed defendant to be convicted of armed violence based on predicate offense of driving while license revoked, subsequent offense. Although driving while license revoked can be elevated to felony at sentencing, Section 111-3(c) of Procedure Code prohibits prior record from being presented to jury. Therefore, driving while license revoked cannot be predicate offense for armed violence.

People v. Bannister, No. 100983 (October 17, 2008)

In defendant’s trial for single murder, resulting in jury sentencing verdict of death, trial court adequately advised defendant of his right to choose bench trial for guilt phase of trial and jury trial for sentencing phase. In addition, trial court did not err when it denied counsel’s motion for bench trial at sentencing phase; because counsel may not overrule defendant’s selection of jury. In addition, although defense nonpattern jury instruction on verdict form under amended death penalty statute is preferable, trial court did not abuse its discretion when it gave instruction tendered by State. Further, prosecutor’s closing argument in sentencing phase highlighting defendant’s lack of remorse did not undermine defendant’s right to remain silent.


9/25/08 Updates

September 25, 2008

People v. Johnson, No. 1-06-0833 (September 8, 2008)

Defendant was convicted of murder and aggravated battery with a firearm to separate individuals  in one drive by shooting, and given consecutive sentences of 45 and 6 years on those charges.

Defendant made many claims of error but the most interesting were:


1.       At the Defendant’s motion to suppress his confession the State presented evidence that defendant waived his Miranda rights by submitting testimony of the lead detective and the assistant State’s Attorney who were present when he did so.  Defendant asserted that prior to the videotaped confession he had asserted his right to counsel under the Edwards rule (In Edwards v. Arizona, 451 U.S. 477 the Supreme Court held that someone who invokes the right to counsel could not be subject to further questioning, unless an attorney was made available or the suspect initiated the conversation.  The Edwards rule is not of the fifth amendment itself but by common law is part of Miranda’s “prophylactic purpose.” Davis, 512 U.S. 458). 


The only witness who testified to this alleged assertion was defendant’s prior attorney who stated he arrived at the police station, walked straight upstairs to the detective division without first stopping in the downstairs lobby and that a detective copied his ARDC card and sheriff’s id.  He further testified that he told a detective that the defendant was invoking his right to counsel.


The police said this never happened and that no Edward assertion was made either by the defendant or anyone else.  The police produced the sign in book from the station which lacked information about the attorney.


2.      The trial attorney never put forth the IPI 3.06-3.07 about the jury determining the weight to be given to a confession.  The court found that while failure to use appropriate instructions can be reversible for ineffectiveness, the use in this case of instruction 3.11 (general instruction regarding the weight to be given to any prior statement) was curative.  It should be noted that there is only one word difference between 3.06 and 3.11.


3.       The prosecutor in this case argued in closing that a certain witness who had given different testimony in court than he did before the grand jury may have come under outside influences was not reversible because it did not specifically state that the defendant was that outside influence.



People v. Ortiz
Defendant filed his third successive post conviction petition attacking his conviction for murder.  This one was based on actual innocence.  He satisfied the cause and prejudice test by:

          Filing an affidavit of a “newly” discovered eyewitness who stated he saw two  other men shooting the victim; and,

          Explained late discovery of the witness through testimony of that witness stating he was afraid to come forward earlier because of fear of gang recrimination; and,

          Testimony (offer of proof for the record) showed that the witness’ testimony would not be cumulative.


Trial court erred in dismissing the post-conviction petition at this stage without proper hearing on the merits.

People v. Santiago

Trial court suppressed statement of the defendant made directly to State after abuse/neglect petition was filed but before any criminal charges were filed based on no contact rule in SCRPR 4.2.

Appellate Court declared this ruling an error because although the Defendant had the PD in juvenile court, any criminal case of child endangerment (even though the alleged facts were the same ) was a different matter for no contact rule.

People v. Leggions, 4th Dist. No. 4-07-0187

The court found that getting out of one vehicle and in another close to it in a “high crime” area is not sufficient for reasonable suspicion justifying a “Terry” stop 

Giles v. California, US Supreme Court June 08

Supreme Court recognized two exceptions to Crawford V Washington based on tradition of common law:

1.      Dying declaration, and

2.      Statements by declarant unavailable due to actions by the defendant if the defendant intended to prevent the witness from testifying (“forfeiture by wrongdoing”).  Unless action is specifically for the purpose of preventing witness testimony this does not apply.


In a murder case the “forfeiture by wrongdoing” doctrine does not apply under the theory that by murdering the witness the defendant prevented his testimony.


People v. Givens, Illinois 1st District

Where an overnight guest sleeps in a bedroom the guest maintains a 4th Amendment right (expectation of privacy) when he: was using the bedroom at the lessee’s invitation; (2) had even a temporary possessory interest in it, (3) “had the ability to control or exclude others from the use of the bedroom while she was using it (because the lessee allowed defendant to close the bedroom door while sleeping and to lock the apartment door after the lessee left the premises)”, and (4) had a subjective expectation of privacy because she was allowed to use the bedroom, close the bedroom door, and lock the apartment door.

The leaseholder constented to a search by the police who appeared after receiving an anonymous tip about drug sales.  The court held that the extent of the consent was only to the locations in the apartment where the defendant wasn’t sleeping.


Summaries 9/23/08 – Reeves

September 23, 2008

People v. Reeves, No. 1-06-0594


This case was a capital case in front of Judge Urso in the Rolling Meadows Courthouse.  It involved two defendants, Reeves and Chambers.  The defendant’s were both convicted by juries but the sentencing was done by bench, and Judge Urso sentenced them to life in prison and not death.


Reeves raised six issues on appeal:


(1) reasonable doubt as to the  aggravated kidnapping;

(2) discovery violations on the part of the State;

(3) denial of the right to exercise his peremptory challenges “in a meaningful way”;

(4) improper admission of testimony about a three-way sexual encounter with an unrelated woman and codefendant Chambers in the days before the murder;

(5) death eligibility as required for a sentence of natural life; and

(6) improper imposition of sentences consecutive to natural life.

Issues 1 and 5 were affirmed without too much discussion of the matter.  Number 3 was affirmed because the issue was minimal – the defense attorney talked to the jurors about the fact that evidence of a false confession was going to be presented.  The State objected and the Court told the attorney to present the issue in selection as less a fait d’accompli than that.  They never went back to the subject and therefore essentially, but not specifically, waived the issue.


Issue four was affirmed for the following reason:  defendant and co-defendant had engaged in many discussions of going through with this type of crime by email and phone, etc over a long course of time.  Reeves testified that he followed through on the plans because he was scared of Chambers, the co-defendant.  The court allowed testimony of the tryst and the appellate court affirmed that decision because they felt that evidence of group sex with your co-defendant was appropriate rebuttal to the issue of whether you were scared of him.


The discovery issue in number 2 is a cautionary tale to defense lawyers.  The tape was of the defendant sleeping in a holding cell in the Carol Stream Police Department.  It had been disclosed but not tendered – it was made available to the Defendant’s attorney for viewing.  The defense put forth a theory that his confession was not trustworthy because he’d been awake for two days in holding.  Unfortunately the tape showed him sleeping, and  the defense attorney had never viewed it.  Making it available is all they need to do, of course, under the supreme court rules.


And finally, as to number 6, the Appellate court said that the sentences for aggravated kidnapping and could not be consecutive pursuant to prior court rulings, primarily People v. Dixon, 366 Ill. App. 3d 848, 853 N.E.2d 1235.

New law in Illinois 8/29/08

August 29, 2008

A few new things in the land of law this week:


725 ILCS 5/112A-20, which sets the time limits for the duration of an Order of Protection has been amended by Public Act 095-0886.  The amendment
allows that upon a finding of good cause the term of the Plenary Order can, essentially, be forever.  


An extension of a plenary order of protection may be granted, upon good cause shown, to remain in effect until the order of protection is vacated or modified. Extensions may be granted only in open court and not under the provisions of Section 112A-17(c), which applies only when the court is unavailable at the close of business or on a court holiday.


People v. Billups, (1st District, 8/20/08)
This case is not good for a current client, although it can be factually distinguished.  Here the Defendant made a specific threat to blow up city hall, including naming the method he would employ.  The state showed evidence of that call to 911 and evidence of a search of city hall for explosives.  This qualified as disorderly conduct under 26-1(a)(3) because concealment was implied (or the city inferred it) in defendant’s statements.


In re T.C. (1st Dist. 8/22/08)
Requirement that a 14 year old register as a sex offender for life under the Sex Offender Registration Act after conviction for Agg Crim Sex Abuse does not deprive him of “liberty interest without due process.”

Potential lifetime registration does not entitle juvenile to a jury trial.  

Update 8/19/08

August 19, 2008

People v. Thornburg, No. 2-07-0449 (2ND Dist., 8/12/08)

Kane County (Bowman)

Defendant was on probation for a child pornography case.  On a home visit by the police, they searched his home and found pornography in two locations.  There were DVDs in his dresser drawer and images on his PC.

Judge Bowman suppresses both, finding that police lacked reasonable suspicion to search defendant’s bedroom while conducting a home visit because even though he was on specialized porn probation that did not, by itself, give them reasonable suspicion to search his drawers.

However, because the probation agreement specifically gave police permission to search the defendant’s computer the court erred by suppressing its contents.

Charnge to Juvenile Court Act
Public Act 95-846  makes three changes to the procedure in case where detention or shelter-care hearing must currently be held within 40 hours of detention:

-Counsel must be appointed for the minor immediately after the filing of a petition.

-Hearing can not be held until the minor has an opportunity to speak with counsel.

-40-hour time period is tolled to allow counsel to prepare if requested by counsel.

Effective January 1, 2009.

Cases 8/11/08

August 11, 2008

People v. Curry, No. 4-06-0355 (4th Dist. 7/28/08)

Defendant was found guilty of armed robbery by a jury.


At sentencing the court sentenced defendant to natural life under the Habitual Criminal Act.  They based the sentence on certified copies of two prior armed robbery convictions which occurred five years apart separated by imprisonment.


“Because prior convictions for Class X offenses can be conclusively be determined as temporally separate from the records, sentence as habitual offender need not be based on explicit jury finding.”


Therefore, Habitual is not an Apprendi issue where certified convictions can state the dates of offense.

U.S. v. Stewart, No. 06-4323 (7th Cir. 8/4/08)

At a trial on bank robbery and related gun charges the Federal District Court acted appropriately when it admitted the videotaped confession even though it was obtained after defendant made initial statement that prior to Miranda warning.

The court properly found that the officer did not engaged in an improper two-step interrogation process found objectionable in Seibert because the officer held subjective belief that defendant was not in custody at the time he gave the un-Mirandized statement.

This might seem to conflict with the Illinois Supreme Court decision in People v. Lopez, (No. 103768, 6/19/08) which I sent out last week, but the distinction is in the details.  Apparently the court has to determine if the officer is intentionally engaging in the “improper two-step interrogation” based on the facts involved.

What is concerning is that in this case the officer’s state of mind regarding the custodial status of the defendant was used in the determination.  Here, the officer believed the defendant was not in custody for the first statement, so it was ok.

U.S. v. Broadnax, No. 07-1985 (7th Cir.8/4/08)
Defendant waived speedy issue by waiting until after conclusion of the prosecution case in chief to file his motion to dismiss.

Section 3162(a)(2) of the federal Speedy Act says waiting until case begins is a specific waiver of a motion to dismiss issue.

People v. Lemke, No. 5-07-0064 (5th District 7/31/08)

Defendant was engaged in a fight with victim then “went inside” and got a gun, returned and shot the victim.

This was sufficient to sustain a guilty verdict for murder, despite presentation of evidence of combined use of alcohol and Xanax and claim of unanticipated side effects.

This relates to People v. Alberts (4th Dist. 2008) (No. 4-07-0582, 6/26/08) from my last missive, which took the People v. Hari, 218 Ill.2d 275, 843 N.E.2d 349 (2006) decision (which allowed the involuntary intoxication defense to include an unexpected adverse reaction to a drug taken on doctor’s orders) and applied it to cases on collateral review.

U.S. v. Henderson, No. 07-1014 (7th Cir. 8/6/08).

Court erred by granting motion to suppress fruit of warrantless search of defendant’s home where:

1.       Defendant had earlier objected to police presence in home;

2.      Search was conducted when police obtained consent from his wife;

3.      Where that consent came after defendant had been validly arrested on unrelated charge.

This distinguishes the US Supreme Court case that says that in a situation where owner says yes and one says no, there is no proper consent for warrantless search.

August 4 Caselaw Updates.

August 11, 2008

People v. Golden, ___ Ill.2d ___, ___ N.E.2d ___ (2008) (No. 104315, 6/5/08)

After defendant’s direct appeals were denied because the record was “insufficient to allow the Court to consider” the claims, defendants filed post-conviction petitions arguing that appellate counsel was ineffective for failing to file a complete record.

The PCP sought to have the trial court order the Appellate Court to allow the defendants to supplement the record and resubmit their briefs. In addition, defendants made oral motions for leave to file late notices of appeal.  The appellate counsel was found ineffective, but the trial ct had no authority to order the Appellate Court to do anything.

The Appellate Court then agreed the trial court lacked authority to grant leave to file late notices of appeal, but held that the cause should be remanded with instructions to allow petitioners to file successive post-conviction petitions restating their ineffective assistance claims and requesting some other relief than an order binding the APP ct

The Supreme Court then held that once the App Court concluded the trial court correctly denied the post-conviction petitions, it lacked jurisdiction to remand the cause with instructions on possible proceedings.

They did state that the petitioners have the right to file whatever pleadings they wish (for instance – further post conviction petitions, petitions for relief from judgment, and habeas corpus petitions) with or without APP CT “granting leave”.

The cause was ultimately remanded for the trial court to conduct a hearing on the petitioners’ ineffective assistance claims and then to come up with an appropriate remedy.

People v. Ross, ___ Ill.2d ___, ___ N.E.2d ___ (2008) (No. 103972, 6/5/08)

Whether defense counsel is ineffective for failing to file a notice of appeal depends on whether Strickland is satisfied.

Specifically, counsel acts unreasonably by ignoring specific instructions from the defendant to file a notice of appeal. Prejudice exists where the failure to file deprives the defendant of an appeal which he would otherwise have taken.

A criminal defendant whose attorney was ineffective for failing to file a notice of appeal is entitled to a direct appeal with the benefit of the effective assistance of counsel. Because a post-conviction proceeding is not the equivalent of a direct appeal – even if the defendant is allowed to raise issues that would have been proper in a direct appeal – the court concluded that 725 ILCS 5/5-122 authorizes a post-conviction court to grant the petitioner leave to file a late notice of appeal. In these limited circumstances, SCR 606 does not apply.


People v. Lopez, ___ Ill.2d ___, ___ N.E.2d ___ (2008) (No. 103768, 6/19/08)

When police deliberately elect not to give Miranda warnings upfront, until after they obtain a statement, in hopes that statements given after Miranda warnings are administered will be admissible, the second statement is involuntary.

“Curative measures” including a substantial break in time and circumstances between the unwarned and warned statements or an explanation that the unwarned statement is inadmissible can make the SECOND statement admissible.  A reasonable suspect would need to believe that he has an actual choice whether to continue speaking.

Where failure to Mirandize is a “mistake” instead of investigative technique, Oregon v. Elstad, 470 U.S. 298 (1985) holds that the second, post-Miranda statement is admissible (if otherwise voluntary).

Determining deliberate nature in question the consideration is whether “objective evidence and any available subjective evidence such as an officers testimony, support an inference that the two-step interrogation procedure was used to undermine the Miranda warning.” Factors to be considered include timing, setting and completeness of the pre-warning interrogation, continuity of police personnel, and the overlapping conten.

The court concluded that a reasonable 15-year-old would not believe he had a choice about continued cooperation, even though the handwritten statement taken after Miranda was administered at second questioning was by an assistant State’s Attorney rather than the detectives from earlier, and the defendant’s father was present. The first and second statements were taken a short time apart in the same room, one detective was present for both statements, and defendant was not advised that his earlier statement was inadmissible.

The court used all of the standards for assessing the “reasonable person” are you under arrest standard, modified with the juvenile rules.  This led to the court deciding an innocent 15-year-old wouldn’t think he was free to leave under these circumstances. Defendant was: questioned by police and then left alone for hours, told to knock on the door if he needed anything, believed he was in a locked room, none of the members of his family or he himself were told he was free to leave.

People v. McCarter, ___ Ill.App.3d ___, ___ N.E.2d ___ (1st Dist. 2008) (No. 1-06-0058, 6/6/08)

Under People v. Krankel, 102 Ill.2d 181, 464 N.E.2d 1045 (1984) a court must examine the factual basis of a pro se claim of ineffective assistance of counsel at trial. If it lacks merit or concerns only trial strategy the court may deny the motion without appointing counsel. If the pro se claim points to possible neglect of the case, new counsel must be appointed.

This case defines that determining whether the trial court met its burden under Krankel, the question is whether the inquiry was adequate. In most cases the court and trial counsel talk on the record, but the court may also rely on its observation of the performance at trial and the adequacy of the pro se allegations.

The trial court’s refusal to appoint new counsel should be overturned on only when the decision is manifestly erroneous.

People v. Delvillar, ___ Ill.App.3d ___, ___ N.E.2d ___ (1st Dist. 2008) (No. 1-06-2449, 6/11/08)

First district declared that 725 ILCS 5/113-8 creates a mandatory duty to admonish a defendant making a guilty plea “that if he or she is not a citizen of the United States, the plea may result in deportation, exclusion from admission to the United States, or denial of naturalization” – not just when the court thinks they might not be citizens.

§113-8 requires the admonishment whether or not the defendant is known to be a non-citizen; it is the fact that a guilty plea is entered – rather than the defendant’s immigration status – which triggers the admonishment requirement.

Since it is required in all cases that go to plea, the defendant’s misrepresentation to the court that he was a U.S. citizen did not excuse the failure to give the admonishment.

People v. Gulley, ___ Ill.App.3d ___, ___ N.E.2d ___ (2d Dist. 2008) (No. 2-06-1077, 6/13/08)

Under People v. Whitfield, 217 Ill.2d 177, 840 N.E.2d 658 (2005) it is a due process violation when a defendant enters an agreed guilty plea and is not advised that a term of MSR will be imposed as an additional punishment, and further the appropriate relief was to reduce the prison term by the length of the MSR, so the two combined equal the sentence agreed to.

Example – agreed plea of three years IDOC on a class 3, not admonished to one year MSR on the back end – actual IDOC sentence becomes 2 years.

In this case the Defendant agreed to a 30 years but received 33 years when MSR term was added – IDOC sentence becomes 27 years.

It doesn’t waive the issue:  to fail to raise it in a post-plea motion, or to voluntarily withdraw an appeal where it was raised when defendant did it on bad advice from his attorney regarding the available relief, or that defendant had previously served MSR on another case.

People v. Alberts, ___ Ill.App.3d ___, ___ N.E.2d ___ (4th Dist. 2008) (No. 4-07-0582, 6/26/08)

People v. Hari, 218 Ill.2d 275, 843 N.E.2d 349 (2006) expanded the Illinois involuntary intoxication defense to include an unexpected adverse reaction to a drug taken on doctor’s orders, is applied to cases on collateral review.

People v. Garstecki, ___ Ill.App.3d ___, ___ N.E.2d ___ (3d Dist. 2008) (No. 3-07-0259, 5/16/08)

Supreme Court Rule 431 (court “shall” permit parties to supplement voir dire by direct questioning “when deemed proper”) affords the right to question prospective jurors, subject only to reasonable limitations of scope and time.

People v. Johnson, ___ Ill.App.3d ___, ___ N.E.2d ___ (3d Dist. 2008) (No. 3-06-0555, 6/10/08)

A defendant has a constitutional right to appear personally and by counsel at all proceedings involving “substantial” rights.

Once the jury deliberations begin, defendant has the right to be present during any communication between the jury and the court. If communication occurs in the defendant’s absence, the State has the burden to show beyond a reasonable doubt that the defendant was not prejudiced.

People v. Wheat, ___ Ill.App.3d ___, ___ N.E.2d ___ (2d Dist. 2008) (No. 2-06-0888, 6/2/08)

A defendant has an absolute right to request jury polling after a verdict and before the jury is discharged. If the jury is not polled despite a timely request the conviction will be reversed.  Both sides have the right to ask for polling.  The Court must provide the opportunity.

This case rejects the State’s argument that a two-second pause between the return of the verdict and discharge of the jury was reasonable opportunity for the defense to request polling using the following hilarious language:

“ A defendant exercising his right to poll the jury is not a quiz show contest who must anticipatorily press the buzzer before the host is finished asking the question or risk losing points. . . . A defendant is not required to impede on the trial’s decorum by interrupting the trial court’s reading of the verdict in order to preserve his request to poll.”

People v. Galmore, ___ Ill.App.3d ___, ___ N.E.2d ___ (4th Dist. 2008) (No. 4-07- 0073, 4/30/08)

It is plain error to impose a street value fine of $10,000 where: testimony indicated that 50 rocks of crack cocaine would have sold on the street for $20-$30 each, (totaling  between $1000 and $1500 for the math impared) and where the prosecutor says the fine should be $10 per one-tenth gram of cocaine, but offered no explanation for where they got that number. As an aside, the APP court noted that under the prosecutor’s method, the fine would amount to only $8,380, not $10,000.

People v. Ross, ___ Ill.2d ___, ___ N.E.2d ___ (2008) (No. 103972, 6/5/08)

          The remedy for counsel’s failure to file a notice of appeal pursuant to 725 ILCS 5/5-122 is for a post-conviction court to grant leave to file a late notice of appeal.

          Illinois armed robbery law does not create a presumption that any weapon is dangerous;  the trier of fact may infer dangerousness from evidence that a firearm is loaded and operable, was used as a bludgeon, or was capable of being used as a bludgeon.

State’s evidence showed that defendant had a small, portable weapon, and an officer testified that police recovered a pellet gun with a 3-inch barrel.  The State presented neither the weapon nor photographs, and no evidence that the gun was loaded or used as a bludgeon or regarding its weight or composition, the evidence failed to show that defendant used a dangerous weapon.

People v. Leggions, ___ Ill.App.3d ___, ___ N.E.2d ___ (4th Dist. 2008) (No. 4-07-0187, 6/13/08)

The court concluded that exiting one vehicle and entering another, even in an area known for drug crimes, does not create a reasonable suspicion of criminal activity sufficient to justify an investigatory stop: 

People v. Brown, ___ Ill.2d ___, ___ N.E.2d ___ (2008) (No. 104375, 6/19/08)

The State proved by preponderance that defendant was eligible for habitual criminal status (third class x, sex asslt, murder, whatever – leading to natural life) by submitting certified records showing that defendant had been convicted of the required prior offenses and they introduced a PSI showing dates on which defendant was arrested. State said that defendant had been on parole when he committed the second and third offenses.

Such evidence creates a rebuttable presumption the defendant was eligible for habitual criminal sentencing. Defendant did not contest the presumption, and in fact admitted that he was eligible.

Defendant waives the right to contest habitual criminal eligibility on appeal if he fails to contradict the rebuttable presumption at trial, unless the State’s evidence clearly shouldn’t have qualified him.

People v. Rodriguez, ___ Ill.2d ___, ___ N.E.2d ___ (2008) (No. 104679, 6/5/08)

730 ILCS 5/5-8-1(a)(1)(d)(i) provides that a person who commits first degree murder “while armed with a firearm” shall receive a 15-year enhancement

This case says: the 15-years applies to a defendant who is not personally armed but who is convicted of first-degree murder based on accountability.

But: the enhanced sentences of 20 and 25 years for personally discharging a firearm or personally discharging a firearm and causing great bodily harm or death require the personal discharge of the weapon.


People v. Sitkowski, ___ Ill.App.3d ___, ___ N.E.2d ___ (2d Dist. 2008) (No. 2-07-0305, 6/9/08)

Under 730 ILCS 5/3-14-2(a), the Department of Corrections retains custody of persons placed on mandatory supervised release so a trial demand filed by a person who is committed to DOC remains effective after he is placed on mandatory supervised release time doesn’t stop like if he were released from county jail after posting bond).

People v. Exson, ___ Ill.App.3d ___, ___ N.E.2d ___ (1st Dist. 2008) (No. 1-06-0924, 6/23/08)

A defendant who is in custody is entitled to be tried within 120 days of the date of custody which can be extended once up to 60 days if the State has been unable to obtain evidence despite due diligence and there are reasonable grounds to believe that the evidence will be available at a later date. The decision to extend the speedy trial period beyond 120 days is at the discretion of the trial court, whose decision will not be disturbed absent a clear abuse of discretion.

In this case the court abused its discretion when granting a 30-day-extension to the testimony of a chemist who performed analysis of a controlled substance. The State should exercise diligence to obtain the evidence, oh, say, like efforting to locate the witness in sufficient time.

Not so here, where the prosecution conceded no attempt to contact the chemist was made until the 119th day because it assumed defendant would waive jury and that the Cook County Public Defender would stipulate to the results. When they learned otherwise they attempted to contact the chemist they found she quit two months earlier.

The court rejected the argument that it was reasonable for the State to rely on the Public Defender’s practice of stipulating to test results.  Ha Ha

Defendant did not waive claim although by failing to raise it in the post-trial motion, because he made objections and filed a motion to dismiss based on the State’s lack of diligence.

People v. Williams, ___ Ill.App.3d ___, ___ N.E.2d ___ (1st Dist. 2008) (No. 1-06-0141, 6/20/08)

-All witnesses are presumed competent to testify unless they are: incapable of expressing themselves or understanding the duty of a witness to tell the truth. The burden of proving incompetence is on challenging party decision by the trial judge is not to be disturbed absent a clear abuse of discretion.

A child (in this case a 9 year old) is not required to give perfect answers to questions to be deemed competent.  After “prodding” by the prosecutor and the trial judge the witness displayed an understanding of the difference between telling the truth and lying.

-When considering a motion to dismiss indictment based upon lack of evidence guilt presented, the court must look at transcripts to determine if the evidence connected the accused to the offense. An indictment will be ok if they reveal “some evidence relative to the charge.  The State need not provide the grand jury with evidence of each element of the offense; the indictment is proper if there is evidence which “tends to connect” defendant to the crime.”