Jovan Sherrod was stopped in a stolen car and arrested.  At the police station, a custodial search of his person revealed $35 and a plastic bag containing 17 baggies of cocaine weighing 1.8 grams.  A jury convicted defendant of Possession of Controlled Substance with Intent to Deliver.  Our Appellate Court, by Justice Murphy, reversed the intent to deliver element finding insufficient proof of intent to deliver, even in the light most favorable to the State.    Read People v Jovan Sherrod, No. 1-07-0989, 10/7/09.

(B.M. MDD)

In re S.D., No 1-09-0100

Prior to June 1, 2008, section 2-27(l)(d) of the JCA stated that “A minor charged with a criminal offense under the Criminal Code of 1961 or adjudicated delinquent shall not be placed in the custody or committed to the Department of Children and Family Services by any court.”  The language of the statute was amended on June 1, 2008 and added, “…except a minor for whom an independent basis of abuse, neglect or dependency exists.  An independent basis exists when allegations or adjudication of abuse, neglect, or dependency do not arise from the same facts, incident, or circumstances which give rise to a charge or adjudication of delinquency.”

S.D. had recently been returned home after many years in a foster/private guardian home. Living with his mother had not worked out and his mother no longer wanted him in her home.  DCFS appealed the trial court’s decision to place S.D. back into the custody of DCFS after the minor had turned 17 and had been convicted of a criminal offense.  DCFS claimed that no independent basis existed upon which to appoint DCFS as guardian.

Trial court based its decision on the “plain reading of the statute,” and that the amended portion of the statute gave the court wide discretion to do what is in the best interests of S.D.  Judgement affirmed.

(A.F. ,CIV)

People v. Ousley, 9/24/09 -  A trial court must grant a State motion to allow “use immunity” that compels a co-defendant to testify against defendant pursuant to 725 ILCS 5/106-2.5(b).

In this case, the State’s motion stated that if the co-defendant testified inconsistently with his videotaped statement, the State planned to introduce that videotaped statement as substantive evidence against the defendant pursuant to 725 ILCS 5/1115-10.1.  The defendant objected based on procedural and constitutional arguments.  The trial court refused to grant immunity and the Appellate Court affirmed.  The Illinois Supreme Court overturned the lower courts and granted the State’s motion for “use immunity.”

The immunity statute directs that the trial court “shall” order a grant of immunity if the State files such a request.  In an attempt to decide what the word “shall” means, the Illinois Supreme Court engages in a confusing discussion about the “mandatory-directory dichotomy” versus the “mandatory-permissive dichotomy.”  In the end, the Illinois Supreme Court concludes that “shall” is mandatory in this case so that the trial court must approve the request.

The Illinois Supreme Court rejected several procedural arguments by the defendant.  The State’s motion complied with the statute.  The immunity statute does not require the State to make an offer of proof.  Under the immunity statute, co-defendants can be considered witnesses.

The Illinois Supreme Court did not address any constitutional issues.  “To the extent that constitutional issues concerning [the co-defendant’s] testimony remain following the grant of use immunity, the proper time to address those concerns is when those issues actually arise.   Accordingly, we agree with the State that the trial court erred in denying the State’s motion to grant use immunity based upon any potential Bruton and Crawford issues.”

In the past, if one of our clients was sentenced to the Illinios Department of Corrections (IDOC), they would have to wait 61 days to get any good time credit applied to their sentence. No more!  As of August 30th, 2009, good time credit will now come through in about two weeks.  As a result of this change in policy, our clients sentenced to one year IDOC will come home in about two weeks. This information was verified with the IDOC legal staff before being posted but you may wish to confirm this with IDOC before you advise clients.

Martell Clark was stopped by Chicago Police for a minor traffic violation. Asked for his driver’s license, he produced a ticket and an insurance card. The officer took Martell from the car and placed him in the police car for transport to the station per Chicago police procedure when no license is produced. An “inventory search” of Martell’s car was then conducted, anticipating a tow, resulting in the recovery of cocaine. The trial court, Judge Linehan, denied the motion to suppress but the Appellate Court by Justice Gallagher reversed that ruling and the conviction. Regarding the “inventory search” the opinion concludes that the officer’s “testimony here was insufficient to show that he was acting in accordance with a standardized police procedure regarding the decision to tow” and therefore “no cognizable reason for the impoundment was shown to justify the subsequent search conducted pursuant to it.” People v Martell Clark, No. 1-07-3185, 1st District, 4th Division 9/3/09.