2020 IL App (1st) 172706
Ill. App. Ct.2020Background:
- Defendant Jonetta Shepherd was charged with unlawful use/possession of a weapon by a felon after police found a loaded 9mm in a purse she had been carrying.
- Shepherd testified she left the purse with a friend (Von Civils, wearing green) while she used a restroom; when she returned the gun was in the purse and she did not put it there.
- Trial counsel announced he would file a written answer to discovery but never did; counsel’s trial theory emphasized lack of knowledge/intent and elicited that the gun was in Shepherd’s purse.
- The trial court found Officer Watson credible, rejected Shepherd’s account, and convicted her of UUWF; Shepherd was sentenced to 42 months’ imprisonment.
- On appeal Shepherd argued the possession was justifiable under the affirmative defense of necessity; the State argued the defense was forfeited because it was never pleaded at trial.
- The appellate majority held counsel forfeited the formal notice of necessity but, because there was "very slight evidence" supporting necessity, counsel’s failure to raise it was deficient and prejudicial under Strickland, so the conviction was reversed and remanded for a new trial.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Shepherd forfeited the affirmative defense of necessity by failing to plead it in an answer to discovery | State: necessity is an affirmative defense; counsel never filed an answer; defense was forfeited and not preserved | Shepherd: necessity was shown by trial testimony; even if forfeited, counsel was ineffective for not asserting it | Forfeiture: defense was forfeited at trial because counsel never raised it before the court or in discovery |
| Whether trial counsel’s failure to give notice of and present the necessity defense constituted ineffective assistance causing prejudice | State: even if counsel erred, overwhelming evidence of guilt defeats Strickland prejudice | Shepherd: counsel’s failure was deficient and prejudiced her because there was at least "very slight evidence" supporting necessity that the court never considered as an affirmative defense | Held for Shepherd: assuming deficiency, prejudice established because slight evidence supported necessity and counsel’s omission undermined confidence in the outcome; reversed and remanded for new trial |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance of counsel)
- People v. Tenner, 175 Ill. 2d 372 (Ill. 1997) (placing burden for submitting affirmative defenses; need record support)
- People v. Janik, 127 Ill. 2d 390 (Ill. 1989) (elements and theory of the necessity defense)
- People v. Gonzalez, 385 Ill. App. 3d 15 (Ill. App. Ct. 2008) ("very slight evidence" standard to submit affirmative defenses)
- People v. Pickett, 217 Ill. App. 3d 426 (Ill. App. Ct. 1991) (defendant must admit commission of offense to invoke necessity)