Quick takes on Thursday's Illinois Supreme Court criminal opinions
Our panel of leading appellate attorneys review Thursday's Illinois Supreme Court criminal opinions in People v. Leach, People v. Tate, People v. Hughes, People v. Giraud and People v. Meerman.
By Melissa A. Maye, Office of the State Appellate Defender
Following a bench trial, the defendant was convicted of the first degree murder of his wife, Latyonia Cook-Leach. In his recorded statement, the defendant told police that after he and his wife began arguing, she began hitting him. He tried to restrain her, and then he choked her until she stopped moving.
Defense counsel filed a motion in limine, seeking to exclude the testimony of Dr. Arangelovich, a deputy medical examiner who did not perform the autopsy on Latyonia. Dr. Choi, who had performed the autopsy, had since retired. Defense counsel did not seek to exclude Dr. Choi’s autopsy report. The motion was denied and counsel stipulated to Dr. Arangelovic as an expert witness. She stated her opinion that the cause of Latyonia’s death was strangulation and the manner was homicide. She relied upon the autopsy protocol, the toxicology reports, the investigator’s report and photographs taken by Dr. Choi. The autopsy report was admitted into evidence without objection.
On appeal, the reviewing court affirmed the defendant’s conviction, concluding that the autopsy report did not implicate Crawford v. Washington because it was not testimonial and because it was used by the expert as the basis for her opinion. The Court also found the evidence sufficient to affirm the verdict for first degree murder rather than a lesser offense.
The Supreme Court noted that the defendant failed to preserve the issue of excluding the autopsy report and deemed the issue procedurally forfeited; nevertheless it considered the issue because it implicated a fundamental constitutional right. The Court conducted an extensive analysis of post-Crawford U. S. Supreme Court cases and determined that the autopsy report was not testimonial because its primary purpose was not to accuse a specific individual, nor to provide evidence in a criminal case. The purpose of the autopsy report was to determine how the victim had died, not who killed her.
The Court noted possible future exceptions and acknowledged that its analysis might “eventually be shown to be incorrect,” but concluded that autopsy tests prepared by a medical examiner’s office during the normal course of business are non-testimonial, and are not rendered testimonial because the examiner is aware that the police suspect homicide and are investigating a specific individual. The Court also determined that admission of the report was harmless error.
In a spirited dissent, Chief Justice Kilbride took issue with the majority “bootstrapping” the position of the justices in post Crawford cases to justify the use of Justice Alito’s“primary purpose” test found in Williams. (whether expert testimony referring to a DNA profile implicated Crawford). Kilbride disagreed that the autopsy report here was prepared for any purpose other than to prosecute this defendant and he found the Court’s harmless error analysis to be “purely advisory.”
By Bryon Kohut, Office of the State Appellate Defender
Following a bench trial, the defendant was convicted of first degree murder based solely on evidence indicating that four witnesses saw him fatally shoot the victim, and his conviction was affirmed on direct appeal.
Through privately-retained counsel, the defendant filed a post-conviction petition alleging ineffective assistance of trial counsel for failing to call two alibi witnesses, Tina Louise Tate (Tina), his girlfriend at the time of the shooting, and Marilyn Pass (Pass), Tina’s cousin and roommate, and two eyewitnesses, Charles Hebron and Shevell Wilson. The defendant, Tina, and Pass averred that defendant was with Tina and Pass at the time of the shooting. Hebron averred that he knew the defendant, and defendant was not the shooter. Wilson averred that he did not see the defendant anywhere near the shooting. The defendant’s petition also alleged that the affidavits provided newly discovered evidence of actual innocence.
The appellate court affirmed the summary dismissal of the petition holding that the allegations were barred by principles of waiver and res judicata. People v. Tate, No. 1-09-2379 (2011) (unpublished order under Supreme Court Rule 23). It further held that defendant could not establish ineffective assistance of counsel.
The supreme court reversed. Initially, the court held that, even where a petitioner is represented by counsel when filing a post-conviction petition, the petitioner is only required to satisfy the “frivolous or patently without merit” standard applicable to first-stage proceedings under the Post-Conviction Hearing Act. Additionally, the court that the defendant’s claims were not barred by forfeiture or res judicata because his ineffective assistance of counsel claim was based on what counsel should have done, not on what had actually occurred at trial. The court reasoned that none of the four witnesses were called to testify, and as a result of counsel’s allegedly deficient representation, the contents of their affidavits could not have been included in the record. Finally, the court held that the defendant’s petition was improperly dismissed and stated that the affidavits attached to defendant’s petition met the “arguable” Strickland test applicable to first-stage proceedings. In light of the court’s remand for second-stage proceedings on the defendant’s ineffective assistance of counsel claim, it declined to address his actual innocence claim.
By Bryon Kohut, Office of the State Appellate Defender
In 1999, the defendant was charged with 10 counts relating to various sex offenses. The State also filed a petition seeking to declare the defendant a sexually dangerous person. The State nolle prosequied five of the counts, including Count VI, and the remaining five counts formed the basis for an SVP petition. In 2000, a jury found defendant to be a sexually dangerous person, and he was committed to the Department of Corrections. While defendant appealed the finding of commitment, the clerk entered an order “administratively dismissing” the criminal matter. The appellate court reversed the commitment and remanded for further proceedings. On remand, the State chose to proceed with the criminal prosecution, and the parties entered into plea negotiations. As a result, the circuit court vacated its prior order that “administratively dismissed” the criminal matter. Defendant entered into a fully negotiated plea agreement to Count VI of the indictment. In exchange, the State withdrew the SDP petition and recommended a 14-year-term of imprisonment.
After an apparent mental health evaluation, the Attorney General’s Office filed a petition seeking to declare defendant a sexually violent person. Defendant filed a motion to withdraw his plea alleging that it was not knowing and voluntary where neither the court nor counsel told him that the State could file a petition to seek to have him declared a sexually violent person. At a hearing on the petition, counsel testified that he had not informed defendant of the possibility that the State would file an SVP petition. The defendant testified that he believed he would be released given his good conduct credit. He said that he talked with counsel about an SVP petition, but he did not expound on the conversation. The defendant said that he would not have pled guilty if he would have thought it would not have disposed of the criminal matter completely. The circuit court denied defendant’s motion, and the appellate court affirmed.
The supreme court initially held that the circuit court had jurisdiction over the case because it was a justiciable matter of an offense that could be prosecuted under the Criminal Code. It also said that the circuit court had the authority to vacate a previous nolle prosequi order and reinstate a charge so long as jeopardy had not attached. Consequently, the plea was not void. The court further stated that, although the reinstated indictment did not include Count VI, defendant had failed to challenge the sufficiency of the indictment.
Additionally, the court stated that involuntary commitment under the Sexually Violent Persons Commitment Act is a collateral consequence of a guilty plea. Therefore, the trial court is not obligated to advise a defendant of this possibility. However, following Padilla v. Kentucky, 559 U.S. __, 130 S.Ct.1473 (2010), the court held that where a collateral consequence of a guilty plea is severe, certain, and sufficiently enmeshed in the criminal process, an attorney’s failure to advise a defendant about such a consequence may give rise to a basis to withdraw the plea. It held that counsel has a minimal duty to advise a client who pleads guilty to a triggering offense about the possibility of involuntary commitment under the Act.
Nevertheless, the court held that the instant defendant had failed to show that counsel’s performance was deficient where he answered “yes” when he was asked if he spoke to counsel about an SVP petition. The court also held that defendant could not show that he was prejudiced by counsel’s allegedly deficient performance where he did not assert a claim of actual innocence or put forth a plausible defense that could have been raised at trial. The court finally held that the State had not breached the plea agreement by filing the SVP petition because the State had not promised to not file such a petition.
Justice Freeman, joined by Justice Burke, dissented arguing that the plea was void because there was no criminal charge before the court.
By Jay Wiegman, Office of the State Appellate Defender
Pursuant to 720 ILCS 5/12-14(a)(3) (West 2008), an accused commits aggravated criminal sexual assault if he commits sexual assault and during the commission of the offense, "the accused acted in such a manner as to threaten or endanger the life of the victim or any other person." In People v. Giraud, 2012 IL 113116, the Illinois Supreme Court considered whether Section 5/12-14(a)(3) requires that the threat or endangerment must occur during the offense, or whether a threat or endangerment can result from something that could occur later, such as the transmission of a disease. In a unanimous opinion, the Supreme Court held that as a matter of law, mere exposure of the victim to HIV during the commission of the offense did not threaten or endanger her life.
The defendant, Ernesto Giraud was charged with numerous counts stemming from allegations that he engaged in sexual intercourse with his teenage daughter on multiple occasions while he was infected with human immunodeficiency virus (HIV). Following a jury trial, he was sentenced to 30 years for aggravated criminal sexual assault, 15 years for each of two counts of criminal sexual assault, and seven years for criminal transmission of HIV.
On direct appeal, Giraud argued, inter alia, that the State failed to prove him guilty of aggravated criminal sexual assault because it failed to prove that he threatened or endangered the victim's life during the course of the offense by exposing her to HIV. In a published opinion, the First District Appellate Court agreed with Giraud, finding that his daughter's life was not “threatened or endangered during the course of the assault.” People v. Giraud, 2011 IL App (1st) 091261, ¶ 23 [emphasis in original]. The court reviewed cases addressing Section 12-14(a)(3) of the criminal code (720 ILCS 5/12-14(a)(3)) and found that “it is evident that those acts that have constituted threatening or endangering a person’s life are overt acts that must threaten or endanger the person’s life during the commission of the offense.” Giraud, ¶ 30. The court found that the separate offense of criminal transmission of HIV demonstrated that the “legislature intended to make HIV exposure its own separate crime, and not as an aggravating factor to elevate criminal sexual assault to aggravated criminal sexual assault.” Giraud, ¶ 33. The First District Appellate Court reduced the conviction for aggravated criminal sexual assault to criminal sexual assault and remanded for resentencing based on the reduced conviction. Giraud, ¶ 35.
The State filed a petition for leave to appeal, in which it noted that, in the context of the offense of reckless discharge of a firearm, the Illinois Supreme Court had rejected the argument that the term "endanger" required the State to show "actual endangerment;" instead, the Supreme Court in People v. Collins, 214 Ill.2d 206 (2005), found that the statute governing reckless endangerment with a firearm neither limited the term "endanger" nor contained qualifying language such as "might or actually" Collins, 214 Ill.2d at 214 [emphasis in original]. The Illinois Supreme Court granted the State leave to appeal.
A unanimous Supreme Court affirmed. The Supreme Court found Collins to be inapposite because, in that case, the word “endangerment” was interpreted in the context of a statute requiring a different mental state, recklessness, and because the statute required "that the accused endanger others as a result of his act, not that he endanger others during the commission of the act." Giraud, 2012 IL 113116, ¶ 25. Because the Supreme Court was interpreting the statute in its entirety, it considered the meaning of the phrase “during . . . the commission of the offense” in conjunction with the phrase “acted in such a manner as to threaten or endanger the life of the victim.” Giraud, 2012 IL 113116, ¶ 7. Writing for the Court, Justice Garman noted the express statutory requirement that the aggravating circumstance exist “during” the commission of the offense. "If the circumstance alleged by the State to be a threat or endangerment of the victim did not exist during the commission of the offense, it cannot, as a matter of law, be used to elevate the crime from criminal sexual assault to aggravated criminal sexual assault." Giraud, 2012 IL 113116, ¶ 11. The Supreme Court further noted that, where the legislature found it appropriate to extend the time horizon for an aggravating circumstance, it did so expressly, as when it referred to the giving of a drug, something that would likely occur before a sexual assault. Giraud, 2012 IL 113116, ¶ 12. The Court also noted that while the State concentrated on the element of endangerment, the statute also proscribed threats which, by their nature, must be communicated to the victim. Giraud, 2012 IL 113116, ¶ 14.
By Jay Wiegman, Office of the State Appellate Defender
Every criminal defense attorney representing a client who faces multiple charges must keep in mind whether, if the defendant is convicted, those sentences will be served concurrently with one another or consecutively to one another. Section 5/5-8-4 of the Code of Corrections provides the framework for the determination of when concurrent sentences are to be imposed and those situations in which consecutive sentences either may or must be imposed. 730 ILCS 5/5-8-4 (West 2010). More specifically, subsection 5/5-8-4(d) sets forth those situations in which consecutive sentences are mandatory. In People ex rel. Senko v. Meersman, 2012 IL 114163, the Supreme Court considered a case in which the trial judge, over objection by the Rock Island State's Attorney, imposed concurrent sentences.
In 2010, Adrian Morrison pled guilty to failing to register as a sex offender and was sentenced to a six-month term of conditional discharge, during which he was charged with unlawful failure to register a change of address as required by the Sex Offender Registration Act. Shortly thereafter, Morrison was charged with three counts of criminal sexual assault and two counts of aggravated criminal sexual abuse, which prompted the State to file a petition to revoke or modify the earlier sentence of conditional discharge. In proceedings provided over by Respondent, Morrison pled guilty to unlawful failure to register a change of address and admitted the allegations in the petition to revoke conditional discharge. Respondent then pled guilty to one count of criminal sexual assault before a different judge, and was sentenced to 12 years' imprisonment. Respondent then sentenced Morrison for his earlier convictions to concurrent sentences of three years and two years, to be served concurrently with the 12-year sentence imposed on the sexual assault conviction. Contending that the sentences were mandatorily consecutive under Section5-8-4(d)(2) of the Code, the State objected. Respondent denied a motion to reconsider, stating that the sentences need not run consecutively because the registration crimes did not arise “out of the same set of facts” or “same course of conduct” as the criminal sexual assault.
The State was granted a writ of mandamus. Before the Supreme Court, Respondent abandoned the reasoning offered in the circuit court and instead argued that section 5-8-4(d)(2), when compared to other subsections of paragraph (d), does not require consecutive sentences. People ex rel. Senko v. Meersman, 2012 IL 114163, ¶ 12. The Supreme Court discussed the differing subsections of Section 5-8-4 in light of People v. Curry, 178 Ill.2d 509 (1997), and concluded that those sections address different concerns. The section at issue in the instant case pertains to "triggering offenses:" if a defendant is convicted of one of the offenses listed in subsection (d)(2), then the sentence for the triggering offense must be served first, and the other convictions must be served consecutively to the triggering offense. Some of the other provisions, specifically (d)(7) [which relates to escape] and (d)(11) [which relates to a bond violation], are unique in that they, unlike subsection (d)(2), "do not simply require any violation of a triggering offense to be served consecutively to any term, but specify that the target sentence must be served consecutively to the sentence that predates the escape or the bail violation, ensuring that the defendant will serve extra time for failing to serve those prior sentences as required." People ex rel. Senko v. Meersman, 2012 IL 114163, ¶ 18. The differing language that Respondent argued suggests that consecutive sentences are not required is thus not superfluous but is related to a different legislative concern. The Supreme Court thus issued a writ of mandamus, ordering respondent to vacate his sentencing order and resentence defendant in accordance with section 5-8-4(d)(2) of the Unified Code of Corrections.