Perry and Baker: Attorneys and Counselors

CHILD ABDUCTION / NECESSITY

1st Dist. People v. Azizarab No. 1-99-3552 (December 4, 2000) 1st div. (TULLY) Affirmed.

The defense of necessity is defined as: "Conduct which would otherwise be an offense is justifiable by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct." 720 ILCS 5/7-13 (West 1998).

A.N. was born in February 1997 with cocaine in his system. The court determined A.N. to be neglected by his mother and the man then believed to be the natural father, adjudged a ward of the court and placed in the custody of DCFS on July 8, 1997. Defendant pursued his right to obtain legal custody of A.N. During this time, he was granted limited supervised visitation with A.N. During a supervised visit in July 1998, defendant abducted A.N. from a scheduled visit at a McDonald's restaurant. Defendant and A.N. were discovered in Morris, Illinois two days later. Defendant was arrested and charged with child abduction.

The trial court rejected defendant's defense of necessity holding defendant did not meet the requirements of the defense because he was aware that he had other, legal alternatives to enforce his rights to obtain custody of his child. Therefore, abduction was not the sole reasonable remedy available to defendant.

On appeal, defendant framed the issue presented for consideration to this court as follows: "Where a caring father observes the apparent mistreatment of his son during their two year separation in the slow child welfare system with no chance of their reunification in the near future, may he take custody of his son on grounds of necessity?" The answer was a "resounding no". Defendant was properly convicted of child abduction and sentenced to eighteen months despite his claimed defense of necessity. Father's frustration with protracted litigation in which child was placed in custody and guardianship of DCFS does not excuse his running away with child from caseworker; and there was no reasonable imminent threat to the child justifying defendant's conduct.

SEARCH AND SEIZURE/CONFESSIONS/MOTION TO SUPPRESS

1st Dist. People v. Ross (October 17, 2000) MOTION TO SUPPRESS SEARCH AND SEIZURE ARREST 2nd div.: Trial court erred when it granted defendant's motion to quash arrest and suppress evidence based on stop of defendant, within two minutes and one half block of victim placing call to police that he had been assaulted and robbed in his home. It was legitimate Terry stop for police to detain defendant, who met general description given by elderly victim, and transport him to home of victim for positive identification. Upon receiving that identification, police had probable cause to arrest defendant. Arrest did not occur until after positive id.

-1st Dist. People v. Villalobos. CONFESSIONS (September 21, 2000, 1st Dist. Affirmed) Trial court did not err in refusing to suppress confession given while defendant was in custody despite written entry of appearance signed by defendant containing statement that permission was refused for any interrogation of defendant while case pending without attorney present. At issue in this appeal is whether the defendant invoked his fifth amendment right to counsel pursuant to Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), by filing a form at a bond hearing that stated defendant would not participate in "any questioning, identification process or other procedures on any case or matter" without his counsel present. The appellate court concluded that he did not. The Illinois Supreme Court allowed defendant's petition for leave to appeal (177 Ill. 2d R. 315) and affirmed the judgment of the appellate court. (MCMORROW) HEIPLE, dissent, Appeal, 1st Dist. Affirmed.

1st Dist. People V. Gonzalez, (1st District, August 29, 2000) where affidavit supporting search warrant of defendant and his apartment is based on informant's knowledge of defendant's actions personally, it was proper to search defendant's person when stopping and arresting defendant away from his apartment. Therefore, cocaine obtained from search of defendant and subsequent search of defendant's car was properly admitted. However, it was plain error for court to assess street value fine without any testimony from law enforcement personnel with regards to amount of drugs seized or value thereof. Court can't base fine on arresting report alone.

-1st Dist. People v. Williams, FELONY MURDER (June 30, 20001st div.)(GALLAGHER) (FROSSARD, special concurrence) Affirmed in part, reversed in part. In this multiple defendant case for felony murder, the court erred when it denied motion to suppress confessions of defendants who were illegally arrested. The police lacked probable cause, and there were no exigent circumstances. In order to attenuate the illegal arrest, by intervening confession of codefendant, the police would have been required to tell the defendant the details of the confession. Confession of juvenile defendant, who was detained without probable cause was attenuated by presence of his mother, who was given several minutes to speak with defendant in private and who was present at interrogation. Arrest of last defendant was proper because police entered home with probable cause and exigent circumstance existed. In addition, it was proper for the trial court to allow prosecutor to dismiss counts of complaint charging intentional murder and proceed on remaining felony murder charge. By doing that, prosecutor avoided instruction on manslaughter and evidence did not warrant second degree murder instruction.

-1st Dist. People v. Delaware No. 1-98-2445 (June 12, 2000) 1st div. (FROSSARD) Reversed. The trial court erred when it denied motion to quash arrest and suppress evidence where contraband was found in defendant's car. Police had right to chase and detain defendant seen running away from parking lot in which police thought they heard gunfire. However, once Terry stop revealed no evidence, they lacked probable cause to detain defendant stopped in apartment; and illegal arrest of defendant tainted subsequent consensual search of defendant's vehicle.

-1st Dist. People v. Berry No. 1-98-0359 (May 30, 2000) 1st div. (FROSSARD) Affirmed. Trial court's denial of motion to suppress confessions of defendants and cellular phone seized by police was correct where police were given permission to enter defendants' home by their mother. Once inside, police spotted cell phone on the table; after being informed that witness had seen defendants in victim's apartment prior to murder in proximity to cell phone, which was missing. When officer picked up the cell phone, he was given permission to look at it and pushed button to retrieve phone number of phone; which he recognized as that of victim's phone. When both brothers were arrested, the taint of any illegal arrest of brother not in proximity to phone was cured by subsequent confession of his brother implicating him before he made confession.

-1st Dist. People v. Wimbley No. 1-98-3632 (May 30, 2000) 1st div. (FROSSARD) Reversed. Trial court erred when it denied defendant's motion to suppress evidence obtained after forced, warrantless entry into defendant's dwelling. Statement by witness that he had just obtained cannabis from defendant's dwelling coupled with witness knocking on door at behest of police and defendant answering door holding bag of green leafy material did not provide exigent circumstances in order to justify forced entry and search.

POSSESSION/CONTROLLED SUBSTANCES

People v. Schmalz, No. 88471 (November 22, 2000) Appeal, 3rd Dist. Appellate court reversed, trial court affirmed. Was the State's evidence sufficient to prove the defendant, Jennifer R. Schmalz, guilty beyond a reasonable doubt of unlawful possession of cannabis (720 ILCS 550/4(a) (West 1996)) and drug paraphernalia (720 ILCS 600/3.5(a) (West 1996))? Appellate court erred when it reversed trial court's conviction of defendant for possession of cannabis and drug paraphernalia. Evidence presented at trial revealed that defendant was seated on floor within twelve inches from paraphernalia, there was strong smell of marijuana in the air, and defendant told officer that, "we're having a party." (HARRISON)

"In the instant case, a young man admitted Officer Baize to the single-family residence so that the officer could search for the driver of a parked vehicle. While ascending an interior stairway, he noticed smoke, smelled what he believed was burning marijuana, and noticed that the smell was stronger when he reached the top of the stairs. When he turned into an upstairs bedroom, the door to which was partially open, he knocked and received a response to "come in." In that very small room there was considerable smoke and haze, the smell of burning marijuana, and four persons, one of whom was the defendant, the only person sitting on the floor. The others were seated on a couch and on a bed in the room. On the floor of the bedroom were items of drug paraphernalia, namely, three bongs, i.e., pipes, as well as three clear plastic bags containing crushed green plant. A fourth clear plastic bag was recovered from the couch after one of the two persons sitting on it attempted to conceal something from the police. Elsewhere in the room were other items of drug paraphernalia. Defendant was sitting less than 12 inches from one of the plastic bags, which together with a bong, was within her reach as she sat there. Officer Baize saw no drinks, snacks, or food in the room, but when he asked, "[W]hat are you doing?" defendant responded, "[W]e're having a party." She did not say, "They're having a party."

CRIMINAL SEXUAL ASSAULT

-People v. Maggette. (4th Dist., No. 89057.) Does defendant's finger qualify as "an object" within the meaning of "sexual penetration" under sec. 12-12(f) of Criminal Code (720 ILCS 5/12-12(f))? While defendant was convicted of criminal sexual assault based upon defendant 's contact of his finger on victim's genital area, App. Ct. found that neither defendant's finger or hand is "an object" for purposes of contact required under sec. 12-12(f), and thus mere touching of victim's sex organ with hand or finger did not prove sexual penetration for purposes of criminal sexual assault.

Domestic Cases

1. CRIMINAL PROTECTION ORDER, COLLATERAL ESTOPPEL: Does collateral estoppel prevent the State from prosecuting a domestic battery charge after a hearing judge dismisses an order of protection petition brought and tried by the State? In People v. Wouk the court answered no and affirmed the defendant's conviction.

1st Dist. People v. Wouk No. 1-99-2561 (October 25, 2000) 3rd div. (WOLFSON) Affirmed. In this case, it is unclear whether unfairness to the State would result from application of the collateral estoppel doctrine. For that reason, the court declined to give preclusive effect to the finding made during the prior order of protection hearing. Because the order of protection proceeding is an expedited proceeding with a different purpose than criminal domestic violence statute, conviction for domestic violence based on complaint brought by State after denial of petition for order of protection alleging same facts and brought by State against same defendant was not barred by collateral estoppel.

2. CRIMINAL ORDER OF PROTECTION, TELEPHONE HARASSMENT

People v. Spencer 2nd Dist. Dupage County. No. 2-99-0379 (June 19, 2000) (BOWMAN) Reversed. Trial court erred when it convicted defendant of telephone harassment and violation of an order of protection after bench trial. Testimony of alleged victim that defendant called her only once, and that she hung up immediately upon identifying caller. is insufficient to prove either harassment or violation of order of protection; since purpose of call was never ascertained.

PROSECUTORIAL MISCONDUCT

-1st Dist. People v. Edgecombe No. 1-99-1345 (October 31, 2000) 2nd div. (MCBRIDE) CLOSING ARGUMENT, Reversed and remanded. Conviction of defendant after jury trial of armed robbery must be reversed based on prosecutor's improper argument. Remarks such as "no one ... said ...defendant was just standing there," "nobody told you that," and "no one ... said anything different," were designed to focus the jury's attention upon the defendant's failure to testify. Also, additional comments were an improper attempt to shift the burden of proof to the defendant. On remand, the court should not allow state to present police officer's hearsay testimony of defendant's flight upon being apprehended.

VIENNA CONVENTION

-1st Dist. People v. Mullen No. 1-98-1555 (May 22, 2000) 1st div.

-1st Dist. People v. Madej, No. 87574 (August 10, 2000) Appeal, 1st Dist. Affirmed VIENNA CONVENTION/2-1401 MOTIONS/MANDAMUS . Death penalty defendant, a citizen of Poland, may not claim that state fraudulently concealed from his his rights under the Vienna convention, and 2-1401 petition filed 12 years after limitations period alleging violations of the Vienna convention was properly dismissed as not being timely. Court had jurisdiction over the defendant, and prosecution was not void because of the failure to inform the defendant of his rights under the Vienna convention or its failure to contact the Polish consulate. The Polish consulate alleges no disability or hardship other than its lack of knowledge of the defendant's prosecution as an excuse for failing to act sooner. Mandamus action properly dismissed. (RATHJE) BILANDIC, special concurrence, MCMORROW, partial concurrence, partial dissent, HEIPLE, HARRISON, dissent

DUI AND TRAFFIC:

DUI- HGN Test and Frye standard, People v. Basler, No. 87770 (November 16, 2000) 5th Dist. Appellate court affirmed as modified. Appellate court correctly reversed trial court for denying defendant's motion for continuance without allowing her to present evidence. However, court's suggestion that trial court conduct Frye hearing before allowing police officer to present results of HGN test is error. The State is no longer required to show that the HGN test satisfies the Frye standard before it may introduce the results of an HGN test into evidence; the validity of HGN tests and test results, however, is not beyond challenge. If a defendant has evidence showing that HGN tests are scientifically unsound, then he may interpose the appropriate objection to the HGN test results and present his supporting evidence to the trial court. If the trial court is persuaded by the defendant's evidence, then the court has the right to bar its admission. It is the defendant's obligation to show that the test results are infirm. It is not the responsibility of the State to show that the tests and results are scientifically valid. Absent proof by the defense that the HGN test is unsound, the State need only show that the officer who gave the test was trained in the procedure and that the test was properly administered. Although validity of test is subject to challenge by means of expert testimony, test is valid until shown otherwise and only foundation required is officer's familiarity with test. (HARRISON) HEIPLE, BILANDIC, special concurrence, MCMORROW, FREEMAN, dissent.

-4th Dist Driving without Insurance: People v. O'Brien No. 4-99-0992 (September 12, 2000) Champaign County 4th Dist. (GARMAN) (MYERSCOUGH, dissent) Reversed. The offense of driving vehicle without insurance in violation of section 3-707 of Vehicle Code is not an absolute liability offense. It requires that state prove knowledge. Since no evidence was presented that defendant knew that vehicle he was driving had no insurance, conviction must be reversed.

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