Friday, February 25, 2011
Tuesday, February 22, 2011
Thursday, February 10, 2011
Wednesday, February 9, 2011
In the Second District's recent decision in People v. Horsman, No. 2-09-0554, slip op. (2d Dist. January 28, 2011), the court considered, for the first time, whether "electronic home monitoring fulfilled the imprisonment requirement" of Section 6-303(d-3) of the Criminal Code. See id. at 2, 3. In Horsman, defendant was charged with felony driving while license revoked and entered an open plea of guilty. Id. at 1. At sentencing, the defendant requested that "he be placed on electronic home monitoring as a means of fulfilling the statutory requirement that he be sentenced to imprisonment." Id. at 2. The defendant argued that electronic home monitoring constituted "imprisonment" under the statute. See id. The trial court rejected the argument, and the defendant appealed. Horsman, No. 2-09-0554, slip op. at 2.
On appeal, the issue was whether electronic home monitoring could be substituted as an alternative for jail under 625 ILCS 5/6-303(d-3) (West 2006). See id. Section 5/6-303(d-3) provides that "Any person convicted of a fourth [or subsequent] violation of this Section is guilty of a Class 4 felony and must serve a minimum term of imprisonment of 180 days if the revocation was for a violation of section 11-401 of 11-501 of this Code…" Id. Defendant had "at least" four prior convictions for driving while license revoked. Id. Therefore, he had to serve a minimum imprisonment term of 180 days because he violated 11-401 or 11-501. Defendant admitted that he had to serve 180 days, but he argued that 303(d-3) allows for those 180 days to be served in home confinement. See id. Defendant argued that "'imprisonment requires that a person be in custody; electronic home monitoring is a form of custody; therefore, home electronic monitoring satisfies the 'imprisonment' condition of section 6-303(d-3)." Horsman, No. 2-09-0554, slip op. at 4.
Lacking a definition for "imprisonment" in the statute, the court began its analysis by first looking to the dictionary's definition of imprisonment," which defined it as "'the act of imprisoning or the state or begin imprisoned.'" Id. "Imprisoned" was defined as "'to put in prison: confine in a jail.'" Id. at 4-5. The court then looked at the definition of "imprisonment" from the Unified Code of Corrections, which defined it as "incarceration in a correctional institution under a sentence of imprisonment…'" Id. at 5 (quoting 730 ILCS 5/5-1-10 (West 2008). This plain meaning analysis of "imprisonment," which the State urged the court to adopt, would seem to indicate that electronic home monitoring would not constitute imprisonment because it takes place outside the confines of a jail or correctional institution. However, the court entertained the defendant's argument that, pursuant the Electronic Home Detention Law (730 ILCS 5/5-8A-3 (West 2008)), there are several instances where a defendant may be permitted to serve a portion of his sentence in electronic home detention, and that a defendant is subject to arrest and prosecution for the crime of escape if he does not comply with his home monitoring conditions. Id. at 5,6. The crime of escape, the court notes, requires that the offender "escaped from a penal institution or from the custody of an employee of a penal institution." Horsman, No. 2-09-0554, slip op. at 6 (citing 720 ILCS 5/31-6 (West 2008). The argument concludes, then, that because failure to comply with home monitoring conditions subjects an offender to escape charges, and because escape charges require that the escape must be from a penal institution, home monitoring must therefore be a penal institution and must therefore be a form of imprisonment. That's the argument, anyway.
The appellate court, though, did not buy defendant's argument. The court determined from the legislative history that legislators intended to use imprisonment as a form of punishment. See id. at 8. The court, noting the freedoms that a defendant on home monitoring would enjoy at home versus the freedoms he would relinquish in a traditional prison setting, held that electronic home monitoring was not a "punishment" that legislators sought to inflict under 6-303. See id. at 8,10. The purpose of 6-303, the court reasoned, was to punish "incorrigible offenders," like the defendant, who "prompted the legislature to enact high penalties." Id. at 9. Further, "The legislature's intent to punish these serial offender would be inconsistent with availability of the relative nonpunishment of electronic home monitoring in lieu of actual incarceration, which includes a county jail." Id. at 9,10. The trial court's judgment denying defendant home electronic monitoring in lieu of jail was therefore affirmed. Id. at 10.
The defendant's argument was not really off-the-mark. The function of both jail and home electronic monitoring is to confine the offender and limit the freedoms he would enjoy as a "free man." I believe the court erroneously reasoned that home confinement is not a punishment because an offender can "eat, sleep, make phone calls, watch television, and entertain guests at his leisure" while at home, Horsman, No. 2-09-0554, slip op. at 8, whereas he cannot in jail. Though inmates may not be able to do these things "at their leisure," inmates in modern penal institutions can still do many of these things quite freely, especially in low-security institutions like jails (vis-a-vis supermax prisons). So the difference is not that an offender in jail has no freedom while an offender on home confinement has freedom (and therefore that an inmate in jail is being punished while an offender at home is not); rather, it is only a matter of the degree to which the offender's freedom is restricted. To be sure, a jail inmate's freedom is more restricted than someone on home confinement. But the freedom of both offenders' is restricted by the boundaries of their confines. Just because someone on home confinement has less restrictions on his freedom within his home than an inmate has on his freedom in jail, does not mean that the freedom of an offender on home confinement is not restricted and that he is not confined. That is akin to saying that five years in prison is not a punishment because it is not as bad as being lethally injected. Both are punishments--just one is more severe than the other. Because freedom is restricted by being confined in one's home, that offender is therefore punished in the same way, though not to the same degree, that an inmate is punished by being sent to jail. Therefore, courts should entertain the idea of electronic home confinement, especially at time when prisons are overcrowding and state's are attempting to trim their budgets.
Tuesday, February 8, 2011
The Illinois Supreme Court's recent decision in People v. Alsup, No. 108354, slip op. (Ill. January 21, 2011) contemplates what constitutes a "complete breakdown" in the chain of custody. In Alsup, police officers observed what they concluded was the defendant selling drugs near a trash can in an alley in Chicago. See id. at 2. Police approached defendant near the trash can, around which police suspected defendant was hiding drugs. See id. Behind one trash can, officers "found a ziplock bad containing 10 smaller ziplock bags of suspected cocaine and five tinfoil packets of suspected heroin." Id. Defendant was then arrested. Id. The "10 ziplock bags had a total weight of 1.05 grams of cocaine and the 5 tin foil packets contained a total weight of less than 0.1 gram of heroin." Alsup, No. 108354, slip op. at 3.
At trial, the officer who found the drugs testified that he personally transported them back to the station, where he gave them to another officer, who placed the drugs in a tagged bag, inventoried the bag with a number, and gave the bag to a sergeant, who dropped the bag in a "narcotics vault." See id. at 3. The forensic scientist provided stipulated testimony that he had tested ten packets of cocaine and nine packets of heroin. See id. The State then rested, and the defendant moved for a directed verdict, which was denied. Id. at 4. The defendant was convicted on two counts of possession of controlled substances with intent to deliver, in violation of 720 ILCS 570/401(c)(2) and 401(d) (West 2004). See id. at 1, 5.
Defendant appealed, arguing that "the State failed to prove beyond a reasonable doubt the items tested positive for heroin were the same five tinfoil packets of suspected heroin retrieved from the behind the black city garbage can." Alsup, No. 108354, slip op. at 5. Defendant's argument rested on evidence in the record that the officer at the scene had "testified that he recovered five items of heroin," while the forensic scientist testified that he had tested "nine items of heroin." Id. at 5. The appeal was denied, and defendant petitioned for rehearing, which the appellate court granted. Id. The appellate court then held that the State failed to prove that the items seized and the items tested by the chemist were linked because of the discrepancy in the number of packets. See id. at 6. Defendant's conviction on the heroin count was therefore reversed, and the the State appealed to the Illinois Supreme Court. See id.
Before the Supreme Court, the defendant persisted in his argument that "the five-versus-nine discrepancy indicates a 'complete breakdown' in the chain of custody," which "constitutes a failure to prove the identity of the substance which is an element of the offense." Alsup, No. 108354, slip op. at 7. Citing People v. Woods, 214 Ill. 2d at 471, the Court "acknowledged that under limited circumstances defendant may raise a challenge to the chain of custody for the first time on appeal in "'[T]hose rare instances where a complete breakdown in the chain of custody occurs--e.g., the inventory number or description of the recovered and tested items do no match--raising the probability that the evidence sought to be introduced at trial was not the same substance recovered from defendant…" Id. at 8. The Woods decision further states that in order for a challenge to the chain of custody to result in "the conclusion that the State could not prove an element of the offense," the defendant first had to show that there was a "complete failure of proof, there is no link between the substance tested by the chemist and the substance recovered at the time of defendant's arrest." Id. (citing Woods, 214 Ill. 2d at 471). Therefore, so long as the State proves that there is any link between the evidence discovered on the defendant and the evidence tested by the chemist, the defendant cannot successfully argue that there was a "complete breakdown in the chain of custody." The Supreme Court ultimately reversed the appellate court because it found that there was at least some link between the officer's testimony regarding the five packets he found on defendant and the forensic scientist's testimony regarding the ten packets he tested. See id. at 11.
The Alsup holding does not bar defendants from asserting challenges to the chain of custody. Its holding is only limited to chain of custody challenges brought on appeal under the plain error doctrine. The court has essentially ruled in Alsup that chain of custody challenges cannot succeed on appeal under the the plain error doctrine if there is any link between what is found on the defendant and what is analyzed by the lab tech. As you can see in Alsup, it does not take much to show any link--even if the lab tech testified to analyzing almost twice the number of the packets as the officer had found on the defendant. The problem, however, as shown at the original trial, is that the defendant's conviction was initially based on the number of packets that the lab tech analyzed, not the number of packets that the officer testified to finding on defendant. If the State needs to only show that there is any link, it really only has to show that the officer found some packets of heroin on defendant and that the lab tech analyzed some packets of heroin. In many cases this won't make a difference, but it cases were the defendant could face harsher punishment for possessing larger quantities of packets or packets with greater weight, it very much matters how many packets there are and how much they weigh. Because it is so difficult to bring chain of custody challenges under the plain error doctrine, it is therefore best practice for defense counsel to make these challenges during post-trial motions or sooner so that the defendant does not have to resort to challenging the chain of custody on appeal under the plain error doctrine.
Wednesday, February 2, 2011
The plaintiff then commenced supplementary proceedings against Rogan, his wife, and trusts controlled by his three adult children. Supplementary proceedings are post-judgment processes that support the judgment creditor in asset discovery and final satisfaction of judgment, and specifically include citations, garnishments, wage deductions, etc. This appeal followed the district court's turnover of assets held by the children's trusts during the course of a third party citation to discover assets.
The Court found that none of the issues raised on appeal required reversal. Every point decided by the Court was favorable to the plaintiff, and to creditors' lawyers in general. The Court issued a 40 page opinion which is overflowing with instructions for creditors' lawyers pursuing third parties in search of the debtor's assets. Below I have linked to four separate posts examining different issues discussed in the opinion, including a review of the statutes and case law involved.
In the Dexia case, one of the issues raised on appeal was that the plaintiff was attempting to enforce a judgment that was not a final order. Because that case took place in federal court, the defendants cited Federal Rule of Civil Procedure 54(b). That rule is substantially similar to Illinois Supreme Court Rule 304(a). For purposes of this blog, I will refer to the Illinois Supreme Court Rule.
Moreover, the Court found that the district court's actions were consistent with considerations of finality in those situations where a judgment becomes final during an appeal. The Court cited Lovelette v. S. Ry. Go., 898 F.2d 1286 (7th Cir. 1990) for the proposition that the failure to certify a judgment as final under Rule 54(b) can be cured where the rest of the claims and parties are dismissed during the pendency of an appeal.
The Court examined the elements of alter ego and constructive trusts in a separate part of its opinion, so I wrote a separate post about them, which can be found HERE.