2020 IL App (1st) 172706
Ill. App. Ct.2020Background
- Defendant Jonetta Shepherd was charged with unlawful use/possession of a weapon by a felon (UUWF) and related counts; trial court convicted and sentenced her to 42 months' imprisonment.
- Police responded to a call describing a woman in black and a man in a green shirt grabbing for a gun; officers found a 9mm handgun in an open purse near Shepherd. No FOID or CCC was in the purse.
- Shepherd testified she handed her purse to a friend (Von Civils, wearing green) before using a restroom; when she returned she found the gun in the purse, was afraid to touch it, tried to get others to remove it, and ultimately dropped the purse when police arrived.
- Trial counsel told the court the defense would file a written answer to discovery but did not file any answer or formally notify the State of an affirmative necessity defense.
- The trial court found the officer credible, rejected Shepherd’s account as insufficient to defeat possession, and did not consider necessity; on appeal Shepherd argued (1) the State failed to disprove necessity and (2) counsel was ineffective for failing to raise the necessity defense.
- The appellate majority held Shepherd forfeited the affirmative defense but, because counsel’s omission was not contested by the State as to deficiency, found prejudice from that omission and reversed for a new trial; one justice dissented.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Shepherd forfeited the affirmative defense of necessity by failing to file an answer to discovery | Necessity is an affirmative defense; defense counsel never filed an answer or otherwise put the State on notice, so the defense was forfeited | Shepherd argued the trial evidence raised necessity and the defense was therefore preserved; alternatively, counsel was ineffective for failing to assert it | Forfeiture: yes — necessity is an affirmative defense and Shepherd’s counsel forfeited it by never raising it at trial or in an answer |
| Whether counsel’s failure to notify the State of necessity amounted to ineffective assistance | The State did not contest deficiency and argued the evidence overwhelmingly supported guilt, so no prejudice | Shepherd argued counsel’s omission was deficient and prejudiced her because there was at least "very slight evidence" supporting necessity | Court assumed deficiency (State forfeited that argument) and found prejudice; reversed and remanded for new trial |
| Whether the record contained sufficient evidence to support submitting necessity to the factfinder | The State argued there was no evidence amounting to necessity and that the defense at trial was simply reasonable doubt | Shepherd pointed to testimony that she did not place the gun in the purse, tried to find the owner, feared touching it, and kept it secured in her purse | Court found "very slight evidence" supported each element of necessity, so the defense could have been presented to the trier of fact |
| Whether Shepherd was prejudiced under Strickland such that a new trial is required | State argued the evidence of possession and Shepherd’s statements showed guilt and no reasonable probability of a different outcome | Shepherd argued a reasonable probability exists that presenting necessity would have changed the outcome because the trial court never evaluated that defense | Court concluded counsel’s failure to present necessity undermined confidence in the outcome and vacated the conviction; dissent disagreed, contending the trial court considered and rejected the necessity theory |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes ineffective-assistance standard)
- People v. Tenner, 175 Ill. 2d 372 (record must contain enough evidence to support a defense when alleging prejudice from failure to assert it)
- People v. Janik, 127 Ill. 2d 390 (elements and nature of necessity defense)
- People v. Gonzalez, 385 Ill. App. 3d 15 (very slight evidence suffices to submit an affirmative defense)
- People v. Pickett, 217 Ill. App. 3d 426 (defendant must admit commission of offense when asserting necessity)