Cook County Public Defenders Blog » Hot Legal Topics

IMPROPER BURDEN SHIFTING REQUIRES REVERSAL & NOTICE OF APPEAL PRACTICE POINT

Kulmeet Galhotra — Sun, 30 May 2010 06:38:18 +0000

Roderick Smith’s conviction for attempt murder of a Chicago Police Officer is reversed and remanded for a new trial in this opinion by JUSTICE NEVILLE because of three comments in the State’s rebuttal argument in a trial before the Hon. Judge Lacy. These comments all questioned the lack of evidence that one would have “expected” to come from the defense…to wit “Have you heard any evidence that he didn’t know they were the police?”

However, the Appellate Court did not reach defendant’s conviction for aggravated battery because the notice of appeal (NOA) “lists only the attempt murder conviction from which he takes this appeal. Therefore, we have no jurisdiction to review the aggravated battery conviction.” [!!!]

Please note that it seems that the State Appellate Defender is aware of this strict jurisdictional issue and regularly is granted leave by the reviewing courts to amend NOAs to reflect all the convictions/judgments on the mittimus. The above appeal was handled by private counsel. Good practice requires listing all counts on the NOA upon which judgment was entered against the defendant. Read all about it here at People v. Roderick Smith, No .1-07-2101, 5/6/2010.

WAS THE DOPE IN A GRILL OR BY A TREE? A PRIMER ON IMPROPER REHABILITATION WITH PRIOR CONSISTENT STATEMENTS

Kulmeet Galhotra — Wed, 07 Apr 2010 13:39:38 +0000

Chicago Police Officer Carey testified that he observed Tony McWhite obtain suspect narcotics on four occasions from a cigarette box inside a ”garbage can type” barbeque grill. But alas, the vice case report makes no mention of the grill and instead notes that Tony “relocated to a large tree…bent down, and picked up a green-white Newport cigarette box.” Over repeated and strenuous and learned defense objections, the State was allowed to “rehabilitate” poor Officer Carey with prior consistent statements concerning the grill from arrest reports and the preliminary hearing. The trial court, Judge Matthew Coghlan,sitting as the trier of fact, then relied on this so called rehabilitation in finding Tony guilty as charged.

Per the Appellate Court’s clear opinion by JUSTICE THEIS, joined by Justices Karnezis and Hoffman, and quoting the oft ignored black letter law set out in Cleary and Graham, [I]f a consistent statement does not disprove, explain,or qualify the failure to speak or the making of the inconsistent statement, the consistent statement is not admissible on redirect examination.” Thus, the trial Court abused his discretion by admitting the prior consistent statements, and Tony will get a new trial. Practice tip: Carry this case with you to trial because this error is common is many Cook County criminal courts. Read the full opinion – People v Tony McWhite, No. 08 CR 1232, 3/30/2010.

“I’M NOT AN IMMIGRATION LAWYER” WILL NO LONGER CUT IT

Kulmeet Galhotra — Mon, 05 Apr 2010 14:35:45 +0000

Juan Padilla, a native of Honduras and a lawful permanent resident of the U.S. for more than 40 years and Vietnam U.S. army veteran, was charged with transporting a large amount of bud in his rig in Kentucky. His attorney told him not to worry about the immigration consequences of his plea because “he had been in the country so long.” But alas, the plea subjected Juan to automatic deportation. In this important case our own JUSTICE STEVENS wrote for five members of the court that ” we now hold that counsel must [correctly] inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.” You can read the opinion and the interesting concurrence and dissent at Jose Padilla, Petitioner v Kentucky, No. 08-651 559 U.S. ____(2010).

JURY GUILTY VERDICT OF MURDER REVERSED ON REASONABLE DOUBT!

Kulmeet Galhotra — Mon, 05 Apr 2010 14:34:06 +0000

In an interesting opinion by recently appointed JUSTICE LAVIN, our Appellate Court finds that defendant’s conviction for murder and 36 years IDOC sentence based on the theory of accontability must be reversed because there was a total absence of evidence against the alleged actual offenders. Justice LAVIN joined by J Toomin and Howse finds that the trial court [J Gaughn] should have granted defendant’s motion for a directed verdict. Read all about it at People v Shawn Garrett, 1-08-3499 3/26/10.

“OTHER CRIMES” EVIDENCE CONTAINED WITHIN DEFENDANT’S STATEMENTS REQUIRES NEW TRIAL

Kulmeet Galhotra — Wed, 24 Mar 2010 13:57:33 +0000

Defandant Lewis Jackson’s disabled aunt, Doris, was found dead in her apartment having been stabbed over 30 times. There was no sign of forced entry. Mr. Jackson lived with Doris in her apartment. During his three days in police custody in Harvey, Mr. Jackson gave six different statements to police and prosecutors. The statements contained facts about defendant’s use of narcotics during the night before and day of the homicide.

Our Appellete Court orders a new trial because the parts of the defendant’s statements regarding narcotics use constituted improper “other crimes” evidence. “[T]he prosecution did not present sufficient preliminary evidence to permit introduction of Jackson’s drug use as proof of his motive to kill Doris.” Although not properly objected to, the evidence constituted plain error as the evidence was closely balanced. People v Lewis Jackson, No.1-04-3660, Third Div 3/10/2010.

PCS/W Intent REDUCED IN TWO WAYS

Kulmeet Galhotra — Mon, 15 Feb 2010 02:00:21 +0000

In a well reasoned opinion by Justice McBride, issued on 2/5/10, a conviction for PCS/W >1 gram <15 grams was reduced to a Class 4 PCS because 1: The forensic chemist testified that he combined multiple packets to determine weight before testing for the presence of a controlled substance thus giving the Court “no way of knowing whether each packet contained heroin or if only one contained heroin.” 2: Testimony that the defendant dropped a package containing 13 packets of suspect heroin while fleeing from the police plus the $40.00 recovered from the defendant was insufficient to prove intent to deliver. Read People v. Clinton No. 1-08-0720 here.

RIGHT TO PUBLIC TRIAL INCLUDES VOIR DIRE

Kulmeet Galhotra — Wed, 20 Jan 2010 15:49:40 +0000

When jury selection began in Eric Presley’s cocaine trafficking trial at the DeKalb County Courthouse in Georgia, the trial court excluded Eric’s uncle from the courtroom saying “[t]here’s no need for the uncle to be present during jury selection.” Defense counsel wisely objected to the exclusion, asking for “some accommodation” but the trial court explained that the courtroom would be full of jurors and that the uncle was welcome back “when the trial starts.” Sound familiar? The public trial issue was preserved in the post trial motion but the conviction was affirmed by the Georgia Supreme Court. However, in a per curium decision by the U.S. Supreme Court on 1/19/10, the Sixth Amendment right to a public trial, including voir doir, was vindicated. Read all about it in Eric Presley v Georgia 558 U.S.____(2010).

EXTENDED TERM VACATED

Kulmeet Galhotra — Fri, 08 Jan 2010 19:44:20 +0000

In an opinion by Justice LAMPKIN, our Appellate Court holds that an extended term sentence based on 730 ILCS 5/5-8-2, imposed by Judge Alonso, must be vacated because the conviction upon which the extended term sentence was imposed did not occur within 10 years of the previous conviction. Below, the State had successfully argued that since the defendant had absconded for six years during the proceedings the 10 years requirement had been tolled. In vacating the extended term Justice LAMPKIN finds that, “the unambiguous plain language of the statute provides no tolling provision when a defendant causes a delay in proceedings thereby preventing a prior conviction from being a qualifying offense.” (Slip Opinion at p. 10). People v. Abraham Garcia, No. 1-08-1090, 12/31/2009.

SO YOU THINK WE HAVE PROBLEMS!

Kulmeet Galhotra — Fri, 08 Jan 2010 17:56:31 +0000

After the State rested at a DUI trial, the defense made a motion for a directed verdict. The trial court in Will County heard arguments on the motion and found the defendant guilty as charged. The Public Defender remained silent until the motion for a new trail at which time he noted in his written motion that defendant had been denied his right to present a defense and closing argument. The Appellate Court in the Third District grants a new trial at which defendant should be allowed the right to present a defense! If you don’t believe this you can read People v Jeffrey Faint, No. 08-0618.

SUMMARY OF NEW ILLINOIS LAWS

Kulmeet Galhotra — Tue, 05 Jan 2010 14:57:47 +0000

The local has obtained a comprehensive summary of new legislation that is now in effect. Please review the lawupdate2010 so you can become familiar with the new laws.