Tuesday, January 25, 2011

Can a Kidnapping Victim be "Secretly Confined" in Public?

In People v. Gonzalez, No. 108778, slip op. (January 21, 2011), a mother, father, and their infant were sitting in a crowded doctor's office with about one hundred other patients when they were approached by a woman whom they recognized from their neighborhood. Id. at 2. The neighbor (defendant) inquired about the infant and told the parents that she was also pregnant. Id. Soon after, the parents' doctor's appointment was finished, and the parents and infant returned to the waiting room to fill out paper work, where they again saw defendant. Id. The defendant offered to hold the child while the mother left the waiting room to talk on her cell phone and the father filled out paperwork. Id. After the father had completed the paperwork, he turned around to find the defendant and the infant gone, and a search by the parents and police for the infant ensued. Gonzalez, No. 108778, slip op. at 2-3.

Fifteen minutes after the baby went missing, officers received a dispatch that a suspect had been apprehended at a hospital two blocks away. Id. at 3. The woman had been discovered by a security guard in a restricted area of the hospital, holding a baby and acting nervous. Id. The defendant's husband testified that the defendant, who had been repeatedly telling him that she was pregnant, had phoned him to tell him that she had just given birth at the hospital. Id. at 3-4. Defendant was arrested for kidnapping shortly after the call was made. See id.

The defendant was charged with unlawful restraint and two counts of aggravated kidnapping, "one count based on secret confinement and the other based on the threat or use of force." Id. at 1. The kidnapping charged based on secret confinement alleged that "defendant knowingly and secretly confined the victim, R.O., a child under the age of 13 years, against her will." Gonzalez, No. 108778, slip op. at 1-2 (citing 720 ILCS 5/10-2(a)(2) (West 2006)). Following the presentation of the State's case, the "trial court granted the motion on the count based on threat or use of force but denied it on the count based on secret confinement." Id. at 4. The jury found defendant guilty but mentally ill on the aggravated kidnapping based on secret confinement and on the one count of unlawful restraint, and defendant was sentenced to prison. Id. at 5.

On appeal, defendant argued, and the appellate court agreed, that the infant was not "secretly confined" under the statute because "the baby was in constant public view or awareness." Id. The state appealed to the Illinois Supreme Court, arguing that "defendant secretly confined the baby when she removed the baby from the hospital without the parents' knowledge or consent and kept the baby in a location unknown to her parents." Id. The issue on appeal, then, was whether "defendant's actions isolated the baby from the public even though the defendant kept the baby in public view." See Gonzalez, No. 108778, slip op. at 7. The Supreme Court held that the defendant's actions did isolate the baby from the public because "The baby was unable to escape, cry out, or call attention to her plight. The evidence also suggested that defendant took the baby without the parents' permission or knowledge and sought to pass the baby off as her own, unbeknownst to anyone who saw defendant." Id. 7.

Typically, most people think of kidnapping as resembling something like the events of the Elizabeth Smart case, where the young child was abducted from her bedroom and held captive in a remote tent camp. Most jurors would find that a remote tent camp would certainly qualify as a "secret confinement." And this would be consistent with the court's decision in this case, which acknowledges that "[c]onfinement includes, but is not limited to, enclosure within something, most commonly a structure or automobile," Id. at 7 (quoting People v. Siquenza-Brito, 235 Ill. 2d 213, 227 (2009)). But, as the Gonzalez court notes, even though "a victim's confinement may often occur within a physical structure, there is no requirement, statutory or otherwise, that the victim must be held inside a physical structure." Id. at 8. Therefore, the Gonzalez decision requires the trier of fact to focus not so much on the type of physical place where the child was held but rather the manner in which the defendant isolated the child from the public.

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