Our panel of leading appellate attorneys reviews the three civil and eight criminal opinions handed down Thursday, May 18, 2023, by the Illinois Supreme Court.

Chapman v. Chicago Dept. of Finance, 2023 IL 128300

By Michael T. Reagan, Law Offices of Michael T. Reagan

The plaintiff submitted a Freedom of Information Act request to the Chicago Dept. of Finance for certain records pertaining to the Citation Administration and Adjudication System (CANVAS), a database that the City uses for the enforcement of parking, red-light, and speed-camera tickets. After a ticket has been issued, the information is loaded into CANVAS and thereafter the system is used to issue notices and deal with payment issues.

The plaintiff requested “an index of the tables and columns within each table of CANVAS” and the “column data type as well.” Seeking to be helpful, the plaintiff suggested an SQL query which would “likely yield the records pursuant to this request.” The defendant denied the request, plaintiff filed a complaint alleging violation of FOIA, a trial was held with experts testifying on both sides, and the circuit court ordered the defendant to produce the records. The appellate court affirmed. Here, the Illinois Supreme Court reversed both the circuit and appellate courts, with Justice Holder White writing for a unanimous court.

Defendant’s denial of the request was grounded upon the exemption from disclosure set out in Section 7(1)(o) of FOIA, 5 ILCS 140/7(1)(o). An understanding of the Court’s reasoning is most efficiently achieved by reading that provision, which exempts the following material from disclosure:

(o) Administrative or technical information associated with automated data processing operations, including but not limited to software, operating protocols, computer program abstracts, file layouts, source listings, object modules, load modules, user guides, documentation pertaining to all logical and physical design of computerized systems, employee manuals, and any other information that, if disclosed, would jeopardize the security of the system or its data or the security of materials exempt under this Section.

A basis of the appellate court’s opinion was the court’s conclusion that the final phrase of that exemption, “if disclosed, would jeopardize,” is to be applied to every specific aspect of a data processing system enumerated in the exemption. The Illinois Supreme Court disagreed with that conclusion, holding that the 10 specific items listed are each expressly exempt. The legislature presumed that harm would follow from disclosure of the listed items. The Illinois Supreme Court expressed its understanding of that concluding phrase. “The catchall phrase simply shows the legislature understood it could not specifically list every item that might fall within the exemption’s scope and allowed for the protection of the system should it be proved that disclosure of a non-listed item…would jeopardize its security.” Thus, file layouts are per se exempt from disclosure.

The Court went on to decide that the requested records constituted exempt “file layouts.”

The Court made use of the McGraw-Hill Dictionary of Scientific & Technical Terms, and provided its URL.

Village of Kirkland v. Kirkland Properties Holdings Co., LLC I, 2023 IL 128612

By Joanne R. Driscoll, Forde & O’Meara LLP

The Village of Kirkland executed and recorded an annexation agreement with the purchaser of a 114-acre plot of land in which the owner agreed, among other things, to “construct all roadways required to be developed on the [s]ubject [p]roperty” and to post an irrevocable letter of credit covering the cost of the public facilities, including the roadways. The annexation agreement expressly stated that it was executed pursuant to article 11, division 15.1, of the Illinois Municipal Code (65 ILCS 5/11-15.1-1 to 11-15.1-5 (West 2002)).

The original owner transferred title to 41 of the 82 lots that comprised the subject property; and that purchaser transferred title to approximately 34 of the 41 lots to defendants. The Village sent demand letters to defendants requesting the deposit of a letter of credit in the proportionate amount of their lots. The defendants refused, and the Village sued. The issue for the court was whether the annexation agreement conferred successor status to any entity that purchased only a portion of the property subject to annexation, as opposed to the whole of the property. The circuit court held that the annexation agreement only applied to the whole of the property and, thus, did not apply to defendants. The appellate court reversed. In a unanimous decision authored by Justice Overstreet, the Illinois Supreme Court affirmed the appellate court.

Section 11-15.1-4 of the Municipal Code provides that “[a]ny annexation agreement executed pursuant to this Division 15.1 *** shall be binding upon the successor owners of record of the land which is the subject of the agreement and upon successor municipal authorities.” 65 ILCS 5/11-15.1-4 (West 2002). Applying the cardinal rule of statutory construction to ascertain legislative intent by reading the statute as a whole and in accordance with its plain and ordinary meaning, the Court concluded that the plain language of division 15.1 of article 11 of the Municipal Code shows an intent to encourage the natural and orderly development of annexed areas among successive owners of land that has been annexed to a municipality. Citing its prior decision in Natural Products Co. v. Dolese & Shepard Co., 309 Ill. 230, 234- 35 (1923), the court concluded that defendants were “successor owners of record of the land which is the subject of the agreement” (see 65 ILCS 5/11-15.1-4 (West 2002)), even though they owned only a portion of the original property.

The Court then turned to the annexation agreement that “[a]ll terms and provisions of this Agreement shall be binding upon, inure to the benefit of, and be enforceable by the parties hereto, their heirs, executors, administrators, successors[,] and assigns” and to cases interpreting similar language. In Doyle v. Village of Tinley Park, 2018 IL App (1st) 170357, a case relied upon by the defendants and the circuit court, the Appellate Court, First District, held that the absence of language defining successor owners to include owners of any portion of the subject property, excluded the annexation agreement’s applicability to those owners. The Illinois Supreme Court distinguished Doyle on its irregular fact pattern but also rejected its holding with respect to successor owners of any portion of the property. The Illinois Supreme Court agreed with United City of Yorkville v. Fidelity & Deposit Co. of Maryland, 2019 IL App (2d) 180230 and City of Elgin v. Arch Insurance Co., 2015 IL App (2d) 150013, in which the applicable annexation agreements bound developers as successors of any part of the land but not residential purchasers of a dwelling unit, the latter of which was at issue in Doyle. 

Another issue briefly addressed by the Court was the matter of jurisdiction. The Village filed a notice of appeal after its third amended complaint was dismissed. That notice became premature after the then-successful defendants sought attorney fees and costs pursuant to the annexation agreement. The Village filed a second notice of appeal after the fee award was made but failed to identify the dismissal order. Citing liberal construction afforded notices of appeal and their purpose, which is to inform the prevailing party that the other party seeks review of the trial court’s decision, the Illinois Supreme Court held that the second notice of appeal conferred appellate jurisdiction over the challenge to the circuit court’s award of attorney fees and the circuit court’s dismissal of the Village’s complaint because the latter was a step in the procedural progression leading to the judgment specified in the second notice of appeal.

Cleeton v. SIU Heathcare, Inc., 2023 IL 128651

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC

In this medical malpractice action, the Illinois Supreme Court addressed whether a plaintiff presented sufficient evidence, under Section 2-402 of the Code of Civil Procedure, to convert a physician from a respondent in discovery to a defendant. Defining the statute’s “probable cause” terminology, the Court determined plaintiff satisfied the standard with evidence similar to what Section 2-622 of the Code requires for a plaintiff to file a medical malpractice action.

Plaintiff Carol Cleeton filed a wrongful death action alleging negligence related to the care of her son, a quadriplegic, who developed medical complications following a routine procedure to refill a device that pumped medication into his spine. Plaintiff sued several medical providers in Sangamon County and, in addition, named respondents in discovery, including Mouhamad Bakir, N.D., a pulmonary critical care specialist who treated the patient after he was admitted to the hospital. Plaintiff sought to extend the time for Dr. Bakir to remain in the case as a respondent; Dr. Bakir opposed plaintiff’s request, and plaintiff moved under the statute, 735 ILCS 5/2-402 (West 2018), to convert Dr. Bakir from respondent to defendant. Ms. Cleeton presented proposed allegations against Dr. Bakir and a certificate of merit by a physician who contended that Dr. Bakir deviated from the standard of care by allegedly failing to timely include in his differential diagnosis the patient’s condition, failing to order treatment consistent with applicable procedures received by the hospital from the pump manufacture, and failing to timely order appropriate medication. In a ruling affirmed by the appellate court, the trial court denied plaintiff’s motion to convert and terminated Dr. Bakir as a respondent in discovery. The appellate court reasoned that the certifying physician failed to establish the proper standard of care, a requirement to prove Ms. Cleeton’s cause of action.

On de novo review, the Illinois Supreme Court reversed the lower courts’ judgments. Focusing on the statute’s language that a respondent in discovery may be added as a defendant “if the evidence discloses the existence of probable cause for such action” and observing that the statute does not clarify the amount of evidence needed to show probable cause, the Illinois Supreme Court traced the phrase through prior precedent of the Court in a malicious prosecution case and of the appellate court in appellate decisions finding probable cause under Section 2-402. The Illinois Supreme Court cited several decisions with approval, including Moscardini v. Neurosurg, S.C., 269 Ill. App. 3d 329 (1994). There, the appellate court held the respondent in a discovery statute should be read to achieve the same goal of Section 2-622, to eliminate frivolous actions at the pleading stage. Section 2-622 requires any medical malpractice plaintiff to attach to the complaint an attorney affidavit pledging that she has consulted with a healthcare professional who finds there is a “reasonable and meritorious” cause for filing an action against the defendant as well as a written report from the healthcare consultant stating his qualifications and explaining the basis for his reasoning. Moscardini, 269 Ill. App. 3d at 334 (citing 735 ILCS 5/2-622(a) (West 1992).

The Illinois Supreme Court defined evidence sufficient to establish probable cause under the statute as evidence that “would cause a person of ordinary caution and prudence to develop an honest and strong suspicion that the purported negligence of the respondent was a proximate cause of plaintiff’s injuries.” In the Illinois Supreme Court’s view, Ms. Cleeton’s pleadings and documentary evidence met this standard. The Court reversed the trial court’s rulings, which appeared to require a higher, “reasonable probability” of liability standard to convert a respondent in discovery to a defendant.

People v. Moore, 2023 IL 126461

By Kerry J. Bryson, Office of the State Appellate Defender

Tory Moore and Marvin Williams were both sentenced to natural life for separate murders committed in the late 1990s, when each was just 19 years old. Both Moore and Williams sought leave to file a successive post-conviction petition, each arguing that their discretionary life sentence violated the eighth amendment and proportionate penalties clause of the Illinois constitution. The respective trial courts denied both motions.

The Fourth District Appellate Court affirmed as to Moore, concluding that he had not alleged facts that could support a finding that his brain development at the time of the crime was sufficiently like that of a juvenile to warrant similar treatment. As to Williams, however, the Second District Appellate Court found that he had met the cause and prejudice test and should have been allowed leave to file his successive petition. The Illinois Supreme Court allowed Moore’s petition for leave to appeal, allowed the State’s petition for leave to appeal in Williams’ case, and consolidated both cases for review.

The Illinois Supreme Court concluded that defendants’ successive post-conviction petitions did not sufficiently plead cause, and therefore upheld the circuit court’s decision to deny leave to file. Both Moore and Williams argued that their brain development was similar to that of a juvenile and that they were therefore entitled to the sentencing considerations discussed in Miller v. Alabama. They argued that, because Miller was decided after their sentencing hearings, they could not have brought their claims earlier.

But, the Court found a lack of cause for both claims. Miller limited eighth amendment claims to juveniles, but both Moore and Williams were 19-year-old young adults. Thus, the holding in Miller had no bearing on whether defendants could bring an eighth amendment claim prior to the instant petition. As for the proportionate penalties claim, the Illinois Supreme Court has already held that “Miller’s announcement of a new substantive rule under the eighth amendment does not provide cause for a [juvenile offender] to raise a claim under the proportionate penalties clause.” People v. Clark, 2023 IL 127273, ¶ 61, quoting People v. Dorsey, 2021 IL 123010, ¶ 74. Thus, “it also does not provide cause for a young adult offender to raise a claim under the proportionate penalties clause.”

The Illinois Supreme Court’s decision in these consolidated cases was unanimous.

People v. Prante, 2023 IL 127241

By Kerry J. Bryson, Office of the State Appellate Defender

John Prante was found guilty of the 1978 murder of Karla Brown. At defendant’s murder trial, the State introduced two forensic experts who testified that bite marks on the victim were “consistent with” defendant’s teeth, and that bite mark analysis is “no different” than fingerprint analysis. Prante subsequently challenged his conviction and sentence via a direct appeal and a series of unsuccessful collateral filings.

In 2018, Prante sought leave to file a successive post-conviction petition, including due process and actual innocence claims based on the introduction of forensic bite mark testimony. Attached to Prante’s petition were affidavits from a forensic odontologist stating that bite mark evidence was a well-accepted forensic technique at the time of Prante’s trial but that it had since been determined to be unreliable. Prante also attached scientific reports concluding that bite mark analysis is not scientifically valid.

The circuit court denied leave to file, but the appellate court reversed. The appellate court held that defendant’s due process claim met the cause-and-prejudice test because the bite mark testimony had not been subjected to a Frye hearing. But, the appellate court denied leave to file the actual innocence claim. The State appealed to the Illinois Supreme Court, and Prante cross-appealed the court’s denial of leave to file his actual innocence claim.

The Illinois Supreme Court accepted as true defendant’s allegation that bite mark forensics have been thoroughly discredited, but it nevertheless reversed the appellate court with regard to the due process claim and affirmed as to the actual innocence claim. First, as to the appellate court’s rationale, the Illinois Supreme Court found that the lack of a Frye hearing is a violation of common law, not the constitution, and is therefore not cognizable in a post-conviction petition. The Court further found the due process claim was not cognizable as presented. While Prante cited the constitutional protection against “conviction based on evidence of questionable reliability,” Perry v. New Hampshire, 565 U.S. 228 (2012), the Illinois Supreme Court held that this guarantee is usually protected through means other than the due process clause, such as the right to effective counsel, or evidentiary rules. The Court conceded that a conviction based on discredited evidence may be raised under the due process clause in cases of “extreme unfairness,” but here, the State’s experts were fully cross-examined and Prante was able to present his own expert.

Moreover, in Illinois, a due process claim premised on the introduction of false testimony must be accompanied by a showing of State knowledge per People v. Brown, 169 Ill. 2d 94 (1995). Here, defendant did not allege that the State knew the bite-mark testimony to be false at the time of his trial. While Prante cited federal cases for the proposition that knowledge is not necessary, the Illinois Supreme Court found that in Illinois, the rule adopted in Brown must apply.

Prante’s actual innocence claim also failed due to the strength of the remaining evidence. “Even absent the bite mark testimony, the State presented considerable evidence that Prante had the motive and opportunity to commit the crime and, most importantly, that he was aware of facts about the crime scene at a time when they could only have been known by someone who participated in the murder.” As such, Prante could not show that his new evidence is not so conclusive so as to change the result on retrial.

Justices Rochford and O’Brien took no part in the consideration or decision of the case, and the Court’s decision was otherwise unanimous.

People v. Wilson, 2023 IL 127666

By Kerry J. Bryson, Office of the State Appellate Defender

Michael Wilson was convicted of first degree murder and attempted armed robbery arising out of an incident which occurred when he was 14 years old. Wilson was prosecuted in adult court after the court granted the State’s motion to transfer the case out of juvenile court. At trial, in response to a special interrogatory, the jury found that Wilson did not personally discharge the firearm which caused the death.

During Wilson’s sentencing proceedings, the court was presented a 200-plus page PSI. The PSI contained information that Wilson was born prematurely and with cocaine and amphetamines in his system. He was placed into DCFS custody and adopted when he was two years old. Wilson had been diagnosed with ADHD, oppositional defiant disorder, intermittent explosive disorder, and disruptive behavior disorder. He was placed in a special education program and suffered speech and language impairment issues. Wilson consumed alcohol and marijuana regularly and was suspended from school several times based on his disruptive behavior. Ultimately, the court sentenced him to 55 years of imprisonment for murder and a consecutive 4-year term for attempted armed robbery. In imposing his sentence, the court noted Wilson’s troubled history and developmental problems but concluded that he was a “very dangerous person.”

In 2020, Wilson filed a motion for leave to file a successive post-conviction petition. In the petition, Wilson alleged that a discretionary, de facto life sentence imposed on a juvenile, without explicit consideration of youth and its attendant characteristics, and without an explicit finding of permanent incorrigibility, violated the eighth amendment and the proportionate penalties clause of the Illinois constitution. The circuit court denied leave to file, but the appellate court reversed and, rather than remand for further post-conviction proceedings, went ahead and granted Wilson a new sentencing hearing with directions that the court consider youth and its attendant characteristics. The appellate court based its decision on Wilson’s eighth amendment claim. The Illinois Supreme Court disagreed with the appellate court’s conclusion and reversed.

Pursuant to Miller v. Alabama, 567 U.S. 460 (2012), a sentencing court must consider youth and its attendant characteristics before sentencing a juvenile to life in prison, and a life sentence is only appropriate for juveniles who are determined to be permanently incorrigible. But Miller “did not impose a formal factfinding requirement.” Jones v. Mississippi, 141 S. Ct. 1307 (2021). As long as the court has the discretion to impose a sentence shorter than life, and does not expressly refuse as a matter of law to consider the defendant’s youth, the sentence is constitutional.

Here, the record showed that the sentencing court had discretion to impose a sentence shorter than de facto life, and that it considered a range of factors, including Wilson’s age, prior to imposing the 59-year sentence. Thus, the sentence comported with the eighth amendment.

Finally, the Illinois Supreme Court agreed that People v. Holman, 2017 IL 120655, must be overruled. Holman required an on-the-record consideration of youth and attendant characteristics before the imposition of a life sentence on a juvenile. In light of Jones, this holding no longer accurately reflects eighth amendment law.

In additional to reversing the appellate court’s grant of eighth amendment relief, the Illinois Supreme Court remanded to the appellate court for consideration of defendant’s proportionate penalties claim.

Justices Rochford and O’Brien took no part in the consideration or decision of the case, and the Court’s decision was otherwise unanimous.

People v. Conway, 2023 IL 127670

By Kerry J. Bryson, Office of the State Appellate Defender

In November 2015, Officer Donald Story was conducting narcotics surveillance in Chicago when he heard a series of gunshots. When he turned his attention to the direction of the shooting, Story saw someone firing a handgun at a moving vehicle. The individual was approximately 150 feet away. The shooting happened shortly before noon, so it was daylight. Story saw the shooter approach a parked vehicle, open the door and reach inside, and then walk away and enter a house. When backup arrived, officers entered that house and found Jason Conway near a blue hoodie that the shooter had been wearing. There were several other people inside the house, but Story identified Conway as the shooter. During a pat down, officers found keys in Conway’s pocket that fit the parked vehicle the shooter had reached into after the shooting.

On the above evidence, the trial court found Conway guilty of armed habitual criminal. In support of its guilty finding, the court credited Officer Story’s testimony, stating that he was “trained,” “a professional,” “not a civilian,” and a “law enforcement official.” Conway challenged the verdict on appeal. The appellate court reversed and remanded for a new trial, finding the trial court exhibited a “pronounced bias in favor of police testimony.” But, the Illinois Supreme Court reversed the appellate court and affirmed the conviction.

Citing People v. Jackson, 205 Ill. 2d 247 (2001), the Court held that trial judges are presumed to be impartial, and “only the most extreme circumstances warrant disqualifying a trial judge due to judicial bias.” Here, viewed in context, the trial court’s comments about the officer concerned the court’s assessment of his credibility, not an extreme bias. The trial court could rationally conclude that a surveillance officer would have a heightened degree of attention and therefore be better able to make a reliable identification. Additionally, opinions formed by a judge that are based on the evidence introduced at trial “do not constitute a basis for a bias or partiality motion unless they display a deep seated favoritism or antagonism that would make fair judgment impossible.” No such favoritism occurred here.

The Court also rejected Conway’s assertion that an identification from 150 feet away was unreliable as a matter of law. The trial court found Officer Story to be a credible witness. The identification was made in broad daylight and the officer was focused on the shooter with no obstructions in his line of sight. Under these circumstances, the Court could not say that the distance alone undermined the identification.

Regardless, the remaining evidence aside from the identification would have been sufficient even if the identification were not reliable. The shooter wore a blue hoodie, and Conway was found immediately after the shooting standing near a blue hoodie with gunshot residue on it. The shooter reached inside a car after the shooting, and Conway was in possession of the keys to that car. Given this strong circumstantial evidence, a rational trier of fact could have found the evidence sufficient even if the identification were excluded. Thus, the Court unanimously affirmed Conway’s conviction. (Justice Neville took no part in the consideration or decision of the case.)

People v. Prince, 2023 IL 127828

By Kerry J. Bryson, Office of the State Appellate Defender

Shaquille Prince appealed his conviction of obstruction of justice by furnishing false information, arguing that the State had failed to establish the “material impediment” element of that offense at trial. The charge was predicated on Prince’s giving of a false name and incorrect birth date at the police station following his arrest. To establish his guilt, the State needed to prove that Prince’s conduct materially impeded the administration of justice. On appeal, the State conceded that it had offered no evidence of any material impediment at Prince’s trial.

But, the State argued that there had been an intervening change in law as to whether evidence of “material impediment” was required (see People v. Casler, 2020 IL 125117) and therefore, it should have the opportunity to retry defendant and present such evidence. The appellate court agreed, reversed Prince’s conviction, and remanded the matter for a new trial.

In a unanimous opinion, the Illinois Supreme Court disagreed with the appellate court as to whether a retrial was permissible. Specifically, the Court held that a retrial would violate double jeopardy. The Court observed that, prior to Casler, there were cases requiring that the State establish the “material impediment” element to prove obstruction – People v. Comage, 241 Ill. 2d 139 (2011), People v. Baskerville, 2012 IL 111056, and People v. Taylor, 2012 IL App (2d) 110222 – and thus Casler was not a change in the law warranting an exception to general double jeopardy principles.

Further, Casler itself was distinguishable. In Casler, the Court noted that existing case law “firmly establish[ed]” the requirement of proving a material impediment in order to prove a defendant guilty beyond a reasonable doubt of obstructing justice. But, the State had been prevented by the court from presenting “material impediment” evidence at Casler’s trial. This was deemed to be the equivalent of a trial error, allowing retrial without violating double jeopardy. No such trial error barred introduction of “material impediment” evidence here, however, and thus there was no reason to depart from well-established double jeopardy principles. In reversing Prince’s conviction outright, the Court clarified that “the remedy portion of Casler should be read narrowly to apply to its facts.”

People v. Ramirez, 2023 IL 128123

By Kerry J. Bryson, Office of the State Appellate Defender

In 2018, police executed a search warrant at the home that Andrew Ramirez shared with his mother. In Ramirez’s bedroom, they found two shotguns (a Benelli and a Mossberg), a handgun, and ammunition. Subsequently, Ramirez was charged with possession of a defaced firearm under 720 ILCS 5/24-5(b). At trial, one of the officers who executed the warrant testified that the serial number on the Benelli shotgun had been “scratched off.” Ramirez told the police that he had purchased the Benelli shotgun from a coworker. The shotgun was not introduced at trial, and the State did not present any evidence that Ramirez knew that the serial number was defaced. In finding Ramirez guilty, the trial judge held that the State did not have to prove knowledge of the defacement but rather only that Ramirez knowingly possessed the firearm.

On appeal, Ramirez argued that knowledge of defacement is an element of the offense of possession of a defaced firearm and that the State had failed to prove that element beyond a reasonable doubt. The appellate court rejected that argument and affirmed Ramirez’s conviction. But, the Illinois Supreme Court reversed in a unanimous opinion.

In order to prove a defendant guilty beyond a reasonable doubt of possession of a defaced firearm under Section 24-5(b), the State must prove knowing possession and also that the defendant knew that the firearm was defaced. Section 24-5(b) provides, “a person who possesses any firearm upon which any such importer’s or manufacturer’s serial number has been changed, altered, removed or obliterated commits a Class 3 felony.” While this section contains no specific mens rea requirement, the Court observed that when a possessory offense does not include a particular mental state and the legislature has not indicated an intent to treat the offense as an absolute liability offense, knowledge is the appropriate mental state.

Further, defacement is an essential element of possession of a defaced firearm. It is what makes possession of the firearm a crime. It also ensures that the statute comports with the second amendment. Accordingly, the implied mental state of knowledge must apply to both elements, possession and defacement.

Ramirez’s conviction of possession of a defaced firearm was reversed and the matter remanded for a new trial. Retrial was not barred by double jeopardy because existing precedent at the time of Ramirez’s trial held that the State did not have to prove defendant’s knowledge of the defacement. Thus, the State should be afforded the opportunity to prove defendant knew that the firearm was defaced in accordance with the Court’s construction of Section 24-5(b).

People v. Hutt, 2023 IL 128170

By Kerry J. Bryson, Office of the State Appellate Defender

In May 2017, Oliver Hutt was arrested for DUI and other traffic offenses. Hutt refused to perform field sobriety tests or submit to a breath alcohol test. So, the police obtained a search warrant for Hutt’s blood and urine, and Hutt was transported to a local hospital lab for the blood draw and urine collection. When told of the warrant, Hutt responded that he needed time to think about it. Subsequently, an officer asked Hutt if he was going to give a blood and urine sample, and Hutt did not respond. Ultimately, Hutt did not provide a blood or urine sample, and none was forcibly taken from him.

Subsequently, Hutt was charged with, and convicted of, obstructing justice [720 ILCS 5/31-4(a)(1)] predicated on his failure to submit to the search warrant. Section 31-4 provides, in relevant part, that a person obstructs justice when:

(a)…with the intent to prevent the apprehension or obstruct the prosecution or defense of any person, he or she knowingly commits any of the following acts:

(1) Destroys, alters, conceals or disguises physical evidence, plants false evidence, furnishes false information…

On appeal, Hutt argued that the evidence was insufficient to establish obstructing justice beyond a reasonable doubt because Hutt did not conceal or destroy evidence. The appellate court disagreed and affirmed Hutt’s conviction, concluding that Hutt’s blood and urine were physical evidence and that Hutt had concealed that physical evidence by preventing its disclosure. The Illinois Supreme Court then granted leave to appeal.

“Conceal” is not defined in the obstructing justice statute. In People v. Comage, 241 Ill. 2d 139 (2011), the Court looked to the dictionary definition and held that “conceal” means either (1) to prevent disclosure of something or refrain from revealing it, or (2) to place something out of sight. Here, the Court held that the first definition does not apply to physical evidence, and thus was not relevant to the charge against Hutt. And, applying the second definition, Hutt did not conceal his blood or urine.

Concealment of physical evidence requires that the evidence be placed out of sight or moved from a state of visibility to a state of being hidden. Here, Hutt did not take any action to hide otherwise visible blood or urine. He simply took no action to affirmatively comply with the warrant. Thus, his conduct did not amount to concealment within the meaning of the obstructing justice statute, and the Illinois Supreme Court reversed Hutt’s conviction of that offense outright.

The Court’s decision was unanimous, with Justice Holder White taking no part in the consideration or decision of the case.

People v. Taylor, 2023 IL 128316

By Kerry J. Bryson, Office of the State Appellate Defender

Shaun Taylor was convicted of attempt first degree murder of a peace officer arising out of an incident which occurred in October 2017. Taylor was sentenced to 30 years of imprisonment plus a 20-year firearm enhancement because he personally discharged a firearm during the commission of the offense. Taylor argued on appeal that because the base sentence for attempted murder was enhanced by virtue of the fact that it was committed against a peace officer, it was improper to also apply the firearm enhancement. Both the appellate court and the Illinois Supreme Court disagreed.

The firearm enhancements of the attempt statute, 720 ILCS 5/8-4(c)(1)(B)-(D), can be imposed in conjunction with the already-enhanced sentence for attempted murder of a peace officer, 720 ILCS 5/8-4(c)(1)(A). Applying both does not constitute an improper double enhancement. Under the plain language of the statute, Section 8-4(c)(1)(A) sets forth the baseline sentence for attempted murder of a peace officer, and other aggravated forms of attempted murder, of 20-to-80 years of imprisonment. Subsections (B)-(D) of that section then provide firearm enhancements which “shall be added to the term of imprisonment imposed by the court.” Thus, the plain language supports the conclusion that both the increased baseline sentence and the firearm enhancements can be applied together.

Further, the Court concluded that this interpretation is consistent with the legislature’s intent to punish attempted murder of a peace officer more severely than the same offense against an ordinary citizen. Adopting Taylor’s interpretation could result in circumstances where the minimum sentence for attempted murder of a peace officer (20 years, no firearm enhancement) could actually be less than minimum for attempted murder of an ordinary citizen (26 years, consisting of a regular Class X 6-year minimum and a 20-year mandatory firearm enhancement), where both involved firearms. Such a result would be inconsistent with the purpose behind the enhanced sentencing for attempted murder against certain individuals, including peace officers. Accordingly, there was no error here where the trial court imposed a 30-year base sentence and a 20-year firearm enhancement.

Taylor also argued that the trial court erred in denying his request for the appointment of a second psychiatric expert to evaluate him for insanity. Prior to trial, Taylor was examined by a psychiatrist who concluded that he did not meet the criteria for an insanity defense. Upon subsequently reviewing additional records from a prior psychiatric hospitalization, however, the doctor issued an addendum to his report. He did not alter his conclusion, but he did send a handwritten note to defense counsel stating that Taylor was “a borderline case” and that “if his parents can afford it, you may wish to seek a second opinion.” Defense counsel sought the appointment of a second expert, at the State’s expense, referencing the doctor’s note. That request was denied.

The Illinois Supreme Court held that the trial court did not abuse its discretion in denying Taylor’s request for a second psychiatric evaluation on the issue of insanity. Under Ake v. Oklahoma, 470 U.S. 68 (1985) a defendant is entitled to access to a competent expert when his sanity is to be a significant factor at trial. This means the psychiatrist will examine defendant and assist in the evaluation, preparation, and presentation of the defense. Taylor argued that, under McWilliams v. Dunn, 582 U.S. 183 (2017), appointment of a second expert was required because here, the first did not assist in evaluation, preparation, and presentation of his defense. The Court distinguished McWilliams, however, because their defendant had not had access to an expert to evaluate records and a psychiatrist’s report that were received just before his sentencing hearing. Here, on the other hand, the psychiatrist had conducted two evaluations of Taylor and consistently opined that he was not insane but was eligible for a finding of guilty but mentally ill. While this was not Taylor’s desired outcome, it did not rise to the level of him being denied constitutionally required assistance of an expert.