Quick takes on Thursday's Illinois Supreme Court opinions
By Alyssa M. Reiter, Williams, Montgomery & John Ltd.
This helicopter-crash case provoked two important long-arm-jurisdiction issues: whether due process protection under the Illinois long-arm statute is greater than federal due process protectionsand whether to apply a narrow or broad version of the stream-of-commerce theory.
Defendant SNFA manufactured a custom tail-rotor bearing in France used in a helicopter manufactured by an Italian company. That manufacturer’s wholly-owned subsidiary located in Pennsylvania sells defendant-produced parts and sells helicopters incorporating defendant’s parts. SNFA knew that the manufacturer incorporated its products into its helicopters for sale in America but did not know the final destination.
SNFA does not have any direct United States customers for its custom-made helicopter parts. SNFA does not have any offices, property, assets or employees in Illinois.
Since 1997, SNFA has sold aerospace bearings to a company located in Rockford. Those bearings are a different model and type from those involved in this case.
A helicopter containing an SNFA part crashed in Illinois.
On these (greatly summarized) facts, the trial court dismissed plaintiff’s claims against SNFA for lack of in personam jurisdiction. The Appellate Court reversed and the Supreme Court affirmed that judgment.
The Court questioned its previous decision in Rollins v. Ellwood, 141 Ill.2d 244 (1990), which had suggested that due process protection under the Illinois long-arm statute may be greater than federal due process protections. However, it did not decide that issue because the defendant had not specifically argued that it was entitled to greater protection under the Illinois statute.
Having found no general jurisdiction, the Court decided that there was specific jurisdiction under the stream of commerce theory.
The opinion contains a lengthy discussion of the various views of the stream-of-commerce theory (narrow and broad). Ultimately, because of disagreement within the United States Supreme Court’s most recent opinion, J. McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780 (2011), the Court did not adopt either the broad or narrow version. It found that these facts satisfied either version because defendant had engaged in Illinois-specific activity.
Justice Garman dissented, disagreeing with the analysis and contending that the majority had partially mischaracterized the McIntyre case.
By Kerry J. Bryson, Office of the State Appellate Defender
Albert Domagala was the live-in caretaker for 84-year-old Stanley Kugler. Domagala was observed striking Stanley in the face and pressing his forearm against Stanley’s neck multiple times. Stanley was placed in a cervical collar and taken to the hospital and diagnosed with a ligament injury to his neck. A feeding tube was inserted when Stanley was observed having difficulty swallowing. After he was transferred to a nursing home, Stanley pulled out the tube several times, causing an infection and ultimately
death. Domagala was convicted of murder.
In his post-conviction petition, Domagala alleged ineffective assistance of trial counsel based on counsel’s failure to investigate a meritorious intervening cause defense, that being gross medical negligence. The petition was dismissed at the second stage.
The Court first clarified that the appropriate standard for second-stage post-conviction review is whether the petition makes a “substantial showing” of a constitutional violation. The substantial-showing standard measures the legal sufficiency of the petition. A substantial showing will be found where the petition’s well-pled allegations of constitutional violation, if proven at an evidentiary hearing, would entitled petitioner to relief.
On the merits of Domagala’s claim, the Court agreed that the petition set forth a substantial showing of ineffective assistance of counsel for failing to investigate the gross negligence of the medical staff. Domagala’s petition was supported with an affidavit from trial counsel attesting that he had not investigated that issue, as well as an affidavit from a medial expert opining that Domagala’s conduct did not cause swallowing difficulties, that the swallow study was defective where it was performed while Stanley was wearing a cervical collar, and that insertion of a feeding tube premised on that faulty testing constituted gross medical negligence.
While the facts in this case are uncommon, the question of whether a petition makes a “substantial showing” of a constitutional violation is very common. This decision provides needed guidance on what that standard means (specifically, that the petition’s well-pled allegations of constitutional violation, if proven at an evidentiary hearing, would entitled petitioner to relief). This decision also clarifies that it is a question of legal sufficiency which should not include credibility determinations or resolution of evidentiary conflicts.
By Kerry J. Bryson, Office of the State Appellate Defender
Before the Court was the question of whether the State could appeal from an order denying its motion to continue trial and directing a verdict in favor of defendant. In a 6-to-1 decision, the Court held that it could.
Esteban Martinez was charged with aggravated battery and mob action. The case was continued several times over a 3.5 year period. When the case was finally called for trial, the State asked for a short continuance to see whether their witnesses would be arriving. The trial judge suggested that they begin jury selection while they waited. The judge said that once the jury was selected, he would give the State ten minutes to either proceed with trial or move to dismiss the case. A defense request for continuance was also denied (defendant initially was not present in the courtroom, but he did arrive during jury selection).
After the jury was selected, the State indicated that two of its witnesses (the complainants) still had not arrived and requested a continuance. Martinez objected, and the request was denied. The court proceeded with swearing in the jurors, and the State declined to participate in the proceedings. Martinez moved for a directed finding, which the court granted.
The State argued error in denial of its request for a continuance, and Martinez argued that the appellate court lacked jurisdiction because he had been acquitted. Alternatively, Martinez argued that the denial of a continuance was proper. The appellate court found that it had jurisdiction because jeopardy had not attached and went on to remand for the setting of a new trial date, concluding that the court erred in denying a continuance.
The Supreme Court’s consideration of the case was limited to the jurisdictional question. The Court concluded that Martinez was not acquitted of the charges, even though the judge labeled the action that way. Instead, the result was akin to a dismissal of the charges. Martinez was never in jeopardy of being found guilty because the State presented no evidence. Likewise, the State had indicated that it would refuse to participate after the jury was selected but before it was sworn. While the swearing of the jury normally means that jeopardy has attached, that was not the case under the “unique set of facts” here. Thus, the State’s appeal was not precluded by double jeopardy principles.
In a dissenting opinion, Justice Burke concluded that “implicit in the majority’s holding is the motion that impaneling and swearing the jury had no legal significance, which is contrary to well established principles regarding double jeopardy.” Justice Burke would have found that defendant had a right to have his guilt or innocence determined by the jury that the parties had selected and the court had sworn.
The majority’s substance-over-form approach is not likely to find broadapplication in future cases. The Court specifically noted that this case involved a “unique set of facts,” and such unique facts are not likely to occur frequently.
By Jay Wiegman, Office of the State Appellate Defender
While the 4th Amendment protects individuals against unreasonable searches and seizures, it has long been accepted that the police may engage in a brief investigatory stop, even in the absence of probable cause, when a totality of the circumstances reasonably lead the officer to conclude that criminal activity may be afoot and the subject is armed and dangerous. Terry v. Ohio, 392 U.S. 1,30 (1968); see also People v. Close, 238 Ill. 2d 497, 505-06 (2010). The United States Supreme Court in Terry noted that, balanced against an individual's right to be protected against unreasonable police interference, the government possessed a general interest in effective crime prevention and detection, but also had a "more immediate" governmental interest in allowing a police officer to sought to take "steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him.” Terry, 392 U.S. at 23.
These two interests overlapped, some might say collided, in People v. Colyar, 2013 IL 111835, decided today. In Colyar, two officers approached an occupied car parked in the entrance of a motel parking lot at dusk. Colyar, 2013 IL 111835, ¶¶ 5- 6. While speaking with the driver of the car, the officer shined a flashlight into the center console and saw "the largest pistol round," he had ever seen. Colyar, 2013 IL 111835, ¶ 8. The occupants were removed from the car and handcuffed. A search of the car found more bullets and a gun that used such bullets. Colyar, 2013 IL 111835, ¶¶ 9-10.
Before the trial court, defendant filed a motion to suppress. Defendant argued that the police officers lacked probable cause to remove them from the car, handcuff them and then search the car, claiming that possession of a bullet is not per se illegal and the police officers failed to ask defendant whether he possessed a valid Firearm Owner’s Identification (FOID) card. Colyar, 2013 IL 111835, ¶ 10. The State argued that the officers were entitled to remove the car's occupants out of concerns for officer safety, and that once the bullet was observed, the officers could properly search the car for a weapon. Colyar, 2013 IL 111835, ¶ 10. The trial court granted the motion to suppress; because the possession of a bullet is not per se illegal, the trial court concluded that the officers lacked probable cause to believe that defendant was committing a crime. The trial court "presumed" that the State's theory was that the search was valid because it was conducted incident to arrest. The State's written motion to reconsider -- in which the State argued, In pertinent part, that the officers’ discovery of the bullets created justifiable concern for their safety because the bullets could reasonably indicate the presence of a gun, citing Michigan v. Long, 463 U.S. 1032 (1983) -- was never heard because the State filed a certificate of substantial impairment and notice of appeal before the circuit court could rule on the State’s motion to reconsider. Colyar, 2013 IL 111835, ¶ 10.
Because the State filed its certificate of impairment before the trial court could rule on the State's motion to reconsider, a majority of the appellate court concluded that the State forfeited its argument that the search was justified by concerns for officer safety. Colyar, 2013 IL 111835, ¶ 18. The appellate court therefore did not consider whether the officers’ conduct was proper as a search incident to arrest. Limiting its analysis to whether the officers had probable cause to arrest, the majority of the appellate court affirmed the trial court's order suppressing all of the evidence. Colyar, 2013 IL 111835, ¶ 18.
The Illinois Supreme Court reversed both courts below. Writing for the majority, Chief Justice Kilbride quickly dispatched with the appellate court's determination that the State had forfeited a Terry argument. The majority noted that the State argued Terry, including an argument that the searches were justified for officer safety, at the hearings on defendant’s motion to suppress, and had filed a motion to reconsider. Colyar, 2013 IL 111835, ¶ 27.
Substantively, the majority believed that that the bullet provided the officers with reasonable suspicion that a gun was present in the car, thus implicating officer safety. Colyar, 2013 IL 111835, ¶ 43. Simple logic dictated that a gun is often found near bullets, and the Supreme Court noted some appellate court cases that recognized that a bullet observed inside a vehicle may reasonably indicate the presence of a gun inside that vehicle. Colyar, 2013 IL 111835, ¶ 43. The Court therefore concluded that defendant’s fourth amendment constitutional rights were not violated by the officers’ conduct under the circumstances of this case. Colyar, 2013 IL 111835, ¶ 43.
This case highlights that it is truly the circumstances or context of any given situation that informs a determination as to whether an officer possesses reasonable suspicion under Terry. In dissent, Justice Burke posits that a bullet, in and of itself, is insufficient to provide an officer with reasonable suspicion of criminal activity. Colyar, 2013 IL 111835, ¶ 78, 94 (Burke, J., dissenting, joined by Freeman, J.). Justice Thomas, who wrote a special concurrence, in part to amplify the majority opinion, seemingly agreed when he noted that a bullet found in a pickup truck, decked out with a gun rack and driven by a man wearing hunter-safety orange in downstate Illinois might not arouse the same suspicions or concerns as a bullet found in a car at night in Chicago. Colyar, 2013 IL
111835, ¶ 70 (Thomas, J., specially concurring). Thus, the context of the situation confronting the officers in the instant case, plus a concern for officer safety, seems to have compelled the instant result.
One slightly puzzling aspect of this case is that, while forfeiture is frequently found where a party does not both contemporaneously object and then later afford the trial court an opportunity to reconsider, by filing a post-trial motion, the Court today rather summarily rejected a finding of forfeiture even though the State deprived the trial court of an opportunity to consider a post-trial motion. This may well be fodder for appellate practitioners arguing over whether a matter has been properly preserved.