Cook County Public Defenders Blog

As a result of the Illinois Supreme Court’s decision in People v. Wagener, 196 Ill.2d 269, 752 N.E.2d 430 (2001) we thought the attempt to apply Apprendi v New Jersey, 530 U.S. 466 (2000) to consecutive sentences was dead. But maybe not!!!  On March 17, 2008 the U.S. Supreme Court granted certiorari in Oregon v. Ice,  2008 U.S. LEXIS 2387 to decide the issue of whether the Sixth Amendment requires that facts (other than prior convictions) necessary to imposing consecutive sentences be found by the jury or admitted by the defendant. Members involved in cases involving consecutive sentencing situations should raise the issue and check out the Oregon Supreme Court’s decision on which cert was granted at State v Ice, 2007 Ore. LEXIS 815 (2007).

As a reminder, it is reversible error in a DNA case for the judge to permit the prosecution, over the objection of the defense, to introduce any evidence that the defendant’s DNA profile was in a DNA database. People v. Jackson, 865 N.E.2d 195 (1st Dist. 2007).  This situation comes up mostly in cold-hit cases, where the prosecution seeks to inform the jury that a database hit to the defendant’s profile occurred.  According to the First District Appellate Court, it is error to admit reference to the database.

Walter Allen’s conviction for attempt murder and 43 year prison sentence was reversed in a scholarly opinion by Justice Wolfson because he found the trial court “failed to conduct a meaningful inquiry” into the Allen’s proposed testimony by an expert in the field of eye witness identification prior to barring the testimony. Justice Wolfson writes that the trial court’s ”conclusion that the proposed {expert} testimony would confuse the jury had no considered basis.”  This opinion is a must read for anyone with an identification case or even a case in which you are trying to call an expert witness in a field that is not regularly accepted in Illinois courts.  People v. Walter Allen, 2007 Ill App LEXIS 1054 (9/28/2007) .

In a 27 page tour de force, Justice Burke for a unanimous Illinois Supreme Court found that a Frye hearing must be held prior to the admission of the results of a Horizontal Gaze Nystagmus test (HGN) in Illinois.  The defendant’s conviction was reversed and remanded because the question of the reliability of the HGN as evidence of alcohol impairment is in conflict and no Frye hearing has been held in Illinois on the question. (APDs should object to any such testimony until this question is resolved via a Frye hearing and the appeals that will resolve the question)  People v. McGown, No. 102372 9/20/07.

A defendant who is seated in the car from which a shot is fired, who remains in the car as it speeds away from the scene of the crime, and who is arrested later while still in the car, is not accountable for the shooting unless it can be proven that he had the intent to commit the shooting. People v. Washington, No. 2-05-0826.  The Second District recently reversed an attempt murder conviction of a defendant under these ciricumstances.  Addressing accountability, the Washington court stated the following: “our supreme court has made clear that mere presence of a defendant at the scene of a crime, even when joined with flight from the crime and knowledge of its commission, is insufficient to establish accountability.“

A defendant’s right to a fair trial was violated when a juror appeared to sleep during almost the entire trial. People v. Jones, 2006 Ill.App.Lexis 1204 (1st Dist., 12/26/06). In the case, the defendant was charged with burglary and was tried before a jury. During a sidebar, the judge informed the attorneys that he noticed that one of the jurors was “half-asleep during almost the entire proceeding.” The attorneys and the court took no further action, and the defendant was convicted. On appeal, the First District reversed the defendant’s conviction. The Jones court noted that a juror who is inattentive for a substantial portion of the trial is unqualified to remain on the jury.

The First District recently held that the trial court erred in not grant a defendant’s request for an insanity jury instruction. People v. Dwight, 2006 Ill.App.Lexis 1045 (1^st Dist.). In Dwight, the defendant was charged with armed robbery. The victim testified that the defendant approached her while she was seated in her car, originally asked for directions, and then said that he “wanted something” from her. The defendant next asked the victim to be his girlfriend, and then pulled out a gun and took a cell phone charger and a work identification card from the victim.

At trial, the defendant asserted insanity. The defense presented testimony from the defendant’s wife and mother. Both testified that the defendant started exhibiting strange and paranoid behavior prior to the armed robbery, including stating the belief that the FBI and CIA were trying to kill him, stating that he believed he was God, and causing physical harm to himself. Moreover, while no expert testified directly that the defendant was insane at the time of the crime, several experts who examined the defendant diagnosed him with bipolar disorder, manic depression, and paranoid delusional disorder. In rebuttal, the prosecution presented the testimony of a psychiatrist who testified that he believed that the defendant was sane at the time of the crime. Based on this record, the trial court denied the defendant’s request for an insanity instruction.

On appeal, the First District reversed, holding that it was reversible error for the trial court to preclude the insanity jury instruction. The Dwight court held that an expert opinion on the ultimate issue of sanity is not a prerequisite to an insanity instruction. Rather, the defendant need only present enough evidence that, if believed by a reasonable jury, would substantiate an insanity defense.