2019 IL App (3d) 160709
Ill. App. Ct.2019Background
- Around 7:30 p.m. on March 8, 2016, police attempted a traffic stop of a Chrysler; occupants fled on foot. Officers radioed that one runner had a gun.
- Officer Sylvester saw a tall man in a white sweatshirt (identified as defendant Alexander) exit the vehicle holding a large black semiautomatic firearm and run eastbound; other officers found Alexander hiding under a deck wearing a white sweatshirt.
- A .22-caliber Beretta with fresh dirt on it was recovered in the garden area adjacent to the driveway the defendant ran down; no usable fingerprints and only an incomplete DNA profile were obtained.
- The State’s case emphasized eyewitness testimony that Alexander ran with the gun and the location of the gun along his flight path; defense emphasized that another passenger may have had the gun and could have thrown it.
- During deliberations the jury asked for a definition of “possession.” The court gave IPI Criminal 4th No. 4.16 (defining actual and constructive possession) over defense objection; the jury then returned a guilty verdict.
- Defendant’s untimely posttrial motion was filed (state did not press timeliness), the trial court denied relief, sentenced defendant to six years, and defendant appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether giving IPI Criminal 4th No. 4.16 mid-deliberations improperly introduced a new theory (constructive possession) and violated due process | Instruction accurately stated the law and answered the jury’s question | Instruction injected a new theory (constructive possession) after closing, depriving defendant of chance to address it in closing argument | Court: Giving the instruction introduced constructive-possession theory mid-deliberations and was reversible error; conviction reversed and remanded |
| Whether defendant forfeited review by filing an untimely posttrial motion | Forfeiture argued by State (posttrial motion filed >30 days after verdict) | Defense noted timely objection at time instruction was given and court ruled on posttrial motion | Court: State waived timeliness objection by not raising it below; issue not forfeited on appeal |
| Whether retrial is barred by double jeopardy given reversal for instructional error | State: Evidence supported actual possession; retrial should be permitted | Defendant: (implied) reversal should bar retrial if conviction unsupported | Court: Evidence was sufficient to support actual-possession conviction; double jeopardy does not bar retrial |
Key Cases Cited
- People v. Enoch, 122 Ill. 2d 176 (holding on preservation requirements for appellate review of trial errors)
- People v. Millsap, 189 Ill. 2d 155 (trial court may not give instructions mid-deliberation that introduce new theories of guilt)
- People v. Brown, 406 Ill. App. 3d 1068 (discussing when mid-deliberation instruction is permissible where evidence supports new theory)
- People v. Raibley, 338 Ill. App. 3d 692 (waiver of timeliness argument by State)
- People v. Lopez, 229 Ill. 2d 322 (double jeopardy and retrial principles)
- People v. Wilkerson, 87 Ill. 2d 151 (harmless constitutional error standard)
- People v. Patterson, 217 Ill. 2d 407 (factors considered in harmless-error analysis)