Our panel of leading appellate attorneys reviews the two Illinois Supreme Court opinions handed down Friday, June 24.
People v. Lewis, 2022 IL 126705
By Kerry J. Bryson, Office of the State Appellate Defender
In 2015, Shane Lewis responded to an ad on Backpage.com titled, “young warm and ready.” (A printout of the ad is appended to the Court’s opinion.) The body of the ad indicated that the poster was 18 years old and was a “hot little co ed” who was “young, eager to please and more than willing to meet all your desires.” The ad included a photograph of an adult female in shorts and a midriff-baring top with her face cropped out. What Lewis did not know at the time was that the Backpage ad was part of an undercover sting designed to catch individuals attempting to have sex with minors.
When Lewis texted the number included in the ad, a special agent responded, posing as the mother of two girls, 14 and 15 years old, whom she was offering for sexual services. Initially, Lewis responded, “Not interested in minors.” and that “18 is good,” but nothing younger. He also asked if he could just meet up with the mother. The agent posing as the mother declined, and told Lewis that her girls “want[ed] to do this.” After some additional text messaging, Lewis agreed to meet the girls at a hotel. Once Lewis arrived, another agent posed as the mother of the two minor girls and let him into the room. She and Lewis were the only ones in the hotel room at that time. The agent described defendant as “hesitant” and noted that he expressed concern that he was being set up. Eventually, Lewis put $200 on the hotel room’s nightstand, at which time an arrest team entered and took him into custody.
Lewis was charged with involuntary sexual servitude of a minor, traveling to meet a minor, and grooming. At his jury trial, Lewis presented an entrapment defense. In addition to the aforementioned, there was evidence that Lewis texted three other Backpage ads on the night in question, all of which also advertised adult services. Lewis’ cell phone and other electronic devices contained no inappropriate pictures of minors, no internet searches for child pornography, and no other evidence that he had ever tried to solicit a minor for sex. During deliberations, the jury sent out a note requesting definitions of “incited and induced and predisposed.” The court told the jury they had their instructions and should continue deliberating. A short time later, the jury sent out another note, which stated, “predisposition – what does this mean – please give defini[tion].” The court again responded that the jury had received all of its instructions. Ultimately, the jury found defendant guilty of all three offenses.
Today, the Illinois Supreme Court found multiple errors in the circuit court proceedings. First, the Court held that defense counsel provided ineffective assistance of counsel when he acquiesced to the court’s failure to provide definitions as requested by the jury, and that the court abused its discretion in failing to provide the requested definitions. The jury notes sought legal definitions which were essential for the jury to determine whether the State had incited or induced Lewis to commit the offenses or whether he was predisposed to commit them. The Court noted, in particular, that the legal definition of predisposition is concerned with whether defendant was ready and willing to commit the offense before he had any contact with government agents. It thus was critical that the jury understand the temporal component to properly determine the question of entrapment.
Next, the Court found that defense counsel provided ineffective assistance when he failed to object to the prosecutor’s closing argument which misstated the law on the question of entrapment. Entrapment consists of government inducement and lack of predisposition. Once a defendant presents some evidence that he was induced by the government to commit the offense, the burden shifts to the State to rebut defendant’s entrapment defense with evidence that he was predisposed to commit the offense and that the government merely afforded him the opportunity to do so. Here, the State’s arguments suggested too high a burden on the defense. The prosecutor also misstated the predisposition element when he said, “what we have to prove is that defendant was willing to do this, and opportunity was there.” This argument eliminated the temporal element of predisposition – specifically, as noted above, that defendant was willing to commit the offense before having any contact with the government. The fact that the jury later received proper pattern jury instructions did not cure this error, especially where the court then failed to define critical terms for the jury when requested.
Finally, the Court found that defense counsel was ineffective for not presenting evidence of defendant’s lack of any criminal record in support of the argument that defendant was not predisposed to commit these offenses, which is an essential component of entrapment. A defendant’s criminal history, or lack thereof, is a relevant factor in assessing predisposition.
Because defense counsel’s performance was deficient in numerous respects, and because the Court found that Lewis was prejudiced by counsel’s deficiencies, Lewis’ convictions were reversed and the matter was remanded for a new trial.
Justice Michael Burke authored a dissent, joined by Justices Theis and Carter. The dissent concluded that the prosecutor accurately stated the elements of entrapment and also that the terms the jury asked about had commonly understood meanings that are consistent with their legal definitions such that additional instructions were unnecessary. Further, the dissent would have held that, regardless of whether counsel’s performance was deficient, Lewis was not prejudiced and thus a new trial was not required. Specifically, the dissent concluded that there was overwhelming evidence disproving government inducement, pointing to the tone of some of Lewis’ text messages, as well as the short time line between his initial contact with the government agent and his agreement to meet the minors for the purpose of engaging in sexual activity.
Johnson v. Armstrong, 2022 IL 127942
By Amelia Buragas, J.D.
In a medical malpractice claim premised on specific negligence, the plaintiff must establish the standard of care applicable to each defendant. In Johnson v. Armstrong, the primary question before the Court was whether the same requirement applies where the plaintiff has alleged negligence based on the doctrine of res ipsa loquitur. To answer the question, the Court clarified the nature of res ipsa loquitur and explained that it is not an alternative theory of liability, but rather an evidentiary framework that allows the trier of fact to draw the inference that the defendant was negligent. The Court also considered the extent of its jurisdiction under SCR 304(a) and whether an interlocutory appeal of a count of negligence based on res ipsa loquitur was proper where a count of specific negligence remained pending against the same defendant.
Plaintiff William “Wes” Johnson underwent a total left hip replacement performed by defendant Dr. Lucas Armstrong who was assisted by two surgical technicians. After the surgery plaintiff suffered from severe and permanent nerve damage in his leg. Plaintiff filed a four-count complaint with claims premised on specific negligence against the surgeon and his employer as well as negligence under the doctrine of res ipsa loquitur against the surgeon and the two surgical technicians. (One of the surgical technicians was voluntarily dismissed after her discovery deposition was taken.) The circuit court granted summary judgment to the remaining surgical technician finding that the plaintiff had failed to present an expert witness to establish the standard of care for a surgical technician, had not met the control element of res ipsa loquitur, and that there was no evidence that the surgical technician was negligent. The circuit court also later granted summary judgment in favor of the surgeon on the res ipsa loquitur count, leaving only the count of specific negligence against the surgeon remaining. Plaintiff appealed under SCR 304(a) and the appellate court reversed both judgments. Defendants appealed to the Illinois Supreme Court pursuant to SCR 315 in two separate cases, which were allowed and consolidated because they raised distinct, yet related, issues.
The Illinois Supreme Court first addressed the jurisdictional question. Rule 304(a) provides that “an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both.” In order to be considered final and appealable for the purposes of SCR 304(a) a judgment or order “must terminate the litigation between the parties on the merits of the cause, so that, if affirmed, the trial court only has to proceed with execution of the judgment.” The Court observed that the order granting summary judgment to the surgical technician and his employer was final because it terminated the litigation as to them. However, the order granting summary judgment in favor of the surgeon was not a final judgment because res ipsa loquitur “is not a claim in and of itself; rather, it is an evidentiary doctrine that allows a plaintiff to prove negligence under a unique set of proofs.” The “operative effect” of the summary judgment order in favor of the surgeon was to preclude plaintiff from proving the surgeon was negligent under the theory of res ipsa loquitur, but plaintiff’s claim for specific negligence remained outstanding. As a result, explained the Court, the order granting summary judgment to the surgeon was not a final judgment and the appellate court lacked jurisdiction to review it under SCR 304(a). The Court dismissed the appeal of that order and vacated the portions to the appellate opinion addressing it.
The Court next addressed the summary judgment order dismissing the surgical technician, choosing to exercise its supervisory authority to consider the procedural posture as it existed at the time the order was entered and not to consider the implications of the subsequent dismissal of the res ispsa loquitur claim against the surgeon. To do otherwise, would require the Court to analyze the impact of the subsequent dismissal of the surgeon, an issue “that has not been raised, briefed, or argued before this court.” The Court started by summarizing the probability and control elements of a claim premised on res ipsa loquitur and concluded that the plaintiff presented sufficient evidence at the summary judgment stage to satisfy the probability element through the testimony of his expert witness, a retired orthopedic surgeon. The Court next explained that because plaintiff was committed to the care of and subjected to surgery by the surgeon and surgical technician, he was not required to identify the precise instrumentality that caused the nerve damage, “the fact that he was under defendants’ care during surgery sufficiently establishes, for purposes of res ipsa loquitur, that whatever caused plaintiff’s nerve damage during the surgery was under defendants’ control.” Plaintiff also was not required to identify precisely who caused his nerve damage: “What plaintiff must establish here is that all parties who were responsible for all reasonable causes of plaintiff’s nerve damage are identified.” Plaintiff had done so and, as a result, the Court found that the control element was met.
With regard for the need to present expert testimony to establish the standard of care, the Illinois Supreme Court explained that res ipsa loquitur is not an alternative theory of liability, but rather “it is a species of circumstantial evidence that allows the trier of fact to draw an inference of ‘negligence.’” Thus, the application of res ipsa loquitur relates to the nature of proof required to show a breach of duty. Because in these types of cases the precise course of individual conduct that led to the plaintiff’s injury is unknown, the plaintiff “cannot establish an individual standard of care. . . that is independent of the injury itself” because the plaintiff does not know what individual standard the defendant deviated from. As a result, the Court held that no additional testimony regarding the surgical technician’s standard of care was necessary because plaintiff had established both the probability and control elements of a claim premised on res ipsa loquitur. Thus, the Court affirmed the appellate court’s judgment reversing the circuit court’s order entering summary judgment in favor of the surgical technician and remanded the case to the circuit court with instructions to reconsider its entry of summary judgment in favor of the surgeon in light of its opinion.