People v. Thomas , 2020 IL App (1st) 170310 ( 2020 )

2020 IL App (1st) 170310No. 1-17-0310
Opinion filed December 1, 2020.
Modified upon denial of rehearing December 15, 2020.
Second Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 11 CR 08111-02
)
SHANTE THOMAS, ) The Honorable
) Brian K. Flaherty,
Defendant-Appellant. ) Judge Presiding.
______________________________________________________________________________
JUSTICE LAVIN delivered the judgment of the court, with opinion.
Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment and
opinion.
OPINION
¶1 Following simultaneous but severed jury trials, defendant Shante Thomas and her
boyfriend, codefendant Deandre Minkens, were found guilty of first degree murder (720 ILCS
5/9-1(a)(1) (West 2010)) of Rosemary Newman (the victim) and intentional homicide of her
unborn child (id. § 9-1.2(a)(1)). 1 Defendant was sentenced to natural life in prison.
1
Codefendant is not a party to this appeal. We note, however, that codefendant’s convictions were
affirmed by this court in People v. Minkens, 2020 IL App (1st) 172808.
No. 1-17-0310
¶2 In this direct appeal, defendant challenges the trial court’s denial of her pretrial motions
to quash arrest and suppress incriminating statements made at the police station and to admit
evidence of codefendant’s violent nature. Defendant also challenges the trial court’s refusal to
give non-Illinois Pattern Jury Instructions (IPI) on obstruction of justice, even though she was
not charged with that offense in the indictment and conceded that it was not a lesser included
offense of those for which she was charged. Last, defendant challenges her murder conviction
based on the sufficiency of the evidence and her discretionary life sentence as unconstitutionally
excessive. Finding no merit in defendant’s arguments, we affirm.
¶3 BACKGROUND
¶4 Defendant was 19 years old when she accompanied codefendant to the police station after
he was arrested for first degree murder of the victim and intentional homicide of her unborn child
on April 25, 2011. Defendant left the station later that night but returned the following day.
Meanwhile, the police learned that defendant had misled them in their investigation of the
victim’s murder.
¶5 Defendant was initially arrested for obstruction of justice on April 26, 2011. Thereafter,
defendant confessed that she was involved in the victim’s murder and was then charged with the
above-stated offenses (see supra ¶ 1).
¶6 Prior to trial, defendant filed several motions to quash arrest and suppress evidence,
arguing, in the main, that she was in custody without probable cause beginning on April 25,
2011, when codefendant was arrested; thus, her subsequent confession was inadmissible as fruit
of the poisonous tree. In response, the State argued that defendant voluntarily chose to
accompany codefendant to the police station where she was treated as a witness, not a suspect,
and that she voluntarily returned the following day.
-2-
No. 1-17-0310
¶7 Evidence at the hearings on defendant’s motions generally showed that around 3:30 p.m.
on April 25, 2011, defendant was with codefendant near her home when he was arrested for the
murder. The police asked defendant if she wanted to accompany codefendant to the police
station. She said yes and was given a ride by the police. Unlike codefendant, however, defendant
was not handcuffed when the police drove her in a separate vehicle from him that did not contain
a barrier between the front and back seats. Defendant was also allowed to keep her personal
belongings, including her cell phone.
¶8 At the station, defendant told the police that she had been with codefendant and their
friend, Joshua Miller, the night the victim was murdered. Because defendant was not considered
a suspect at that time, her statements were not recorded. The police drove defendant home later
that night. Meanwhile, the police learned that Miller had not been with defendant or codefendant
the night in question but, instead, had been asked to provide an alibi by codefendant prior to his
arrest and then again by defendant after she left the police station that night.
¶9 The next evening, on April 26, 2011, defendant returned to the station with her mother,
Mia Fox. The police told defendant what Miller had said but she nevertheless maintained her
initial story. Still, she refused to take a polygraph test, asking for an attorney instead.
¶ 10 We note that defendant’s mother called an attorney, Raymond Kennan, on April 27,
2011. Kennan’s testimony, however, established that he never represented defendant even
though he spoke to one of the detectives about the investigation while she was at the police
station. 2
¶ 11 In any event, the police stopped all questioning after defendant asked for an attorney.
Subsequently, defendant was arrested for obstruction of justice. She then asked to speak to one
2
Notably, Kennan did not ask whether defendant had been Mirandized (see Miranda v. Arizona,
384 U.S. 436 (1966)) when the detective informed him that she was being charged with murder.
-3-
No. 1-17-0310
of the detectives. Defendant was informed of her Miranda rights but waived them and agreed to
take a polygraph test. We note, however, that after defendant was arrested for obstruction of
justice, all ensuing conversations with the police were electronically recorded, also known as
electronic recording of interrogations.
¶ 12 Defendant again waived her Miranda rights before taking the polygraph test the next
morning. During the test, she was given food and a blanket and allowed to use the bathroom. The
results of defendant’s polygraph test were consistent with her having provided false information
to the police about her whereabouts the night the victim was murdered. After defendant was
informed of the test results, she spoke to her mother and then asked to speak to one of the
detectives. She continued to change her story as to the events that occurred on the night in
question but eventually confessed that she was in codefendant’s car when the victim was
murdered and then went to the forest preserve with him to dump her body.
¶ 13 Ultimately, the trial court denied defendant’s motions to quash arrest and suppress her
statements made at the police station, including her confession. In reaching its decision, the court
concluded that defendant voluntarily went to the police station when codefendant was arrested
and that there was probable cause to arrest her for obstruction of justice the following day. The
court further concluded that suppression was not warranted because defendant’s statements were
made voluntarily either before she was in custody or after she had been Mirandized.
¶ 14 The trial court also denied defendant’s pretrial motions to admit evidence related to
codefendant’s violent nature, including past crimes and out-of-court statements made by the
victim to her friend.
¶ 15 The cause proceeded to trial where the following evidence, consisting of many of the
facts already presented at the suppression hearings, was adduced. In the summer of 2010,
-4-
No. 1-17-0310
defendant was in a relationship with codefendant when he began seeing the victim, who later
became pregnant, presumably with his child. When defendant learned of the situation, she was
incensed and, consequently, began threatening the victim, leading her to file police reports
against defendant. Testimony of the victim’s close friend, Nailah Washington, also revealed that
defendant had threatened the victim on multiple occasions. On one of those occasions, defendant
called the victim, letting her know that she was “fucking with the [wrong] family.”
¶ 16 Around 10 p.m. on April 23, 2011, the victim, then nine months pregnant, was living
with her mother, Rosie Newman (Newman), when she left to meet codefendant. He picked her
up and drove them to an Applebee’s restaurant less than two miles away, located at 4937 Cal Sag
Road in Crestwood, Illinois. After they arrived, the victim called her mother, letting her know
they made it to the restaurant safely and that she would be home soon. 3 But the victim never
made it home.
¶ 17 The next morning, on Easter Sunday, codefendant called Newman, asking to speak to the
victim. He claimed to have been with defendant the night before, not with the victim. Newman
immediately called the police to file a missing person’s report. A short time later, Alsip police
officers Joshua Spencer and Hector Puente arrived at Newman’s apartment where she explained
to them the above-stated events. She gave them codefendant’s phone number but their calls to
him went unanswered. Newman also described her daughter the last time she ever saw her,
stating she was wearing a green T-shirt and black pants and had red-tinted hair that was tightly
braided.
¶ 18 When the officers entered the victim’s information in the police database, they
discovered her previous reports of being threatened by defendant, as mentioned above (supra
3
The victim made the call on Newman’s cellphone which she regularly used because she did not
have her own.
-5-
No. 1-17-0310
¶ 15). Meanwhile, a body was found matching the victim’s description less than three blocks
away from codefendant’s home, in a Calumet City forest preserve.
¶ 19 Testimony from the detectives who were called to assist with the investigation of the
body that was found, and later identified as the victim, indicated they found her lying facedown
wearing only a “green T-shirt, underwear and ankle socks.” Additionally, the detectives observed
injuries to the victim’s mouth, nose, neck, and back, as well as petechial hemorrhaging in her
eyes, indicating manual strangulation. The victim’s autopsy confirmed those observations,
revealing that she suffered blunt force trauma to the head and died from strangulation.
¶ 20 Later that afternoon, codefendant returned Officer Spencer’s call, claiming that he had
not seen the victim in several days even though two Applebee’s employees confirmed that he
had been with her at the restaurant the night before. Nevertheless, codefendant claimed that he
had been at a night club known as “The Lick” in Harvey, Illinois, but surveillance video showed
him and defendant more than 30 miles away from that club at a gas station near defendant’s
home. They were in a white four-door Saturn that the officers had learned belonged to
codefendant.
¶ 21 The State introduced forensic evidence of the victim’s fingernail clippings, containing
“blood-like stains,” recovered from codefendant’s car, as well as DNA evidence showing that
blood found in the car matched defendant’s, codefendant’s, and the victim’s profiles. The State
also introduced the electronic recordings of defendant’s interrogations, admitting that she was in
codefendant’s car when the victim was murdered and then at the forest preserve where her body
was found.
¶ 22 Defendant’s confession was consistent with the testimony of codefendant’s cellmate, a
jailhouse informant. That testimony largely reflected that, on the night in question, codefendant
-6-
No. 1-17-0310
took the victim to Applebee’s while defendant hid in the trunk of his car, which had an access
panel to the backseat. At some point after they got back in the car, codefendant turned up the
radio volume, signaling defendant, who then lunged through the access panel and strangled the
victim while he punched her in the stomach. After the victim stopped breathing, they dumped her
body in the forest preserve and went to defendant’s home.
¶ 23 The jury found defendant guilty of first degree murder of the victim and intentional
homicide of her unborn child. The trial court then sentenced defendant to natural life in prison.
¶ 24 Defendant filed a motion to reconsider her sentence, asserting that the trial court
misconstrued the sentencing statute as to the unborn child’s death and unfairly imposed the same
sentence that codefendant, a repeat violent offender, received. In rejecting those arguments, the
trial court underscored defendant’s evil actions in committing the offenses, stating:
“To say that this was a horrific crime *** would be an understatement. And
[defendant] was not simply some passive participant in this crime. She was active in the
planning. From the testimony it came out that she was active in the execution of this
senseless killing of this young woman. Again, she was not just sitting by, watching. She
was actively participating in the murder of this young woman.”
The trial court denied defendant’s motion on May 3, 2017. 4
¶ 25 This appeal followed.
¶ 26 ANALYSIS
¶ 27 Defendant first contends that the trial court erroneously denied her pretrial motions to
quash arrest and suppress evidence because she was in custody beginning on April 25, 2011,
before the police acquired probable cause when she confessed that she was involved in the
4
The trial court also denied defendant’s pro se motion to reduce her sentence.
-7-
No. 1-17-0310
victim’s murder. In response, the State maintains that defendant was not in custody until she was
arrested for obstruction of justice on April 26, 2011, after which she waived her Miranda rights
and confessed.
¶ 28 Before proceeding to the merits, however, we note that both parties have failed to provide
proper citation to the record or authorities relied upon in the statement of facts and argument
sections of their briefs, in violation of Illinois Supreme Court Rule 341(h)(5), (h)(7), (i) (eff. Oct.
1, 2020). And where citations are provided, they are either erroneous or do not correspond with
the preceding statement or argument. See id. This court is not a repository into which the parties
may foist the burden of argument and research. People v. Jacobs, 405 Ill. App. 3d 210, 218
(2010). Furthermore, it is neither our function nor obligation to act as an advocate of either party
or to search the record for error. Id. Even though we will proceed to consider the merits of
defendant’s appeal, we strongly advise both parties to refrain from such noncompliance going
forward.
¶ 29 When reviewing a trial court’s rulings on motions to quash arrest and suppress evidence,
where mixed questions of fact and law are presented, we apply a two-part standard of review.
People v. Soto, 2017 IL App (1st) 140893, ¶ 48; People v. Payne, 393 Ill. App. 3d 175, 179-80
(2009). We will not reverse the trial court’s findings of fact unless they are against the manifest
weight of the evidence, i.e., only when the opposite conclusion is clearly evident. Soto, 2017 IL
App (1st) 140893, ¶ 48. In contrast, we review the trial court’s legal ruling as to whether
suppression was warranted de novo. Id. In doing so, we may consider trial evidence, as well as
evidence presented at the hearings on the motions to quash arrest and suppress evidence. Id.¶ 30 The first issue before us is whether defendant was, in fact, in custody before she
confessed. A person is in custody when her freedom of movement has been restrained or when a
-8-
No. 1-17-0310
reasonable person under the same circumstances would not have felt free to leave. People v.
Slater, 228 Ill. 2d 137, 150 (2008); People v. Melock, 149 Ill. 2d 423, 436 (1992).
¶ 31 Here, defendant was not in custody until she was arrested for obstruction of justice on
April 26, 2011. As set forth above, defendant voluntarily chose to accompany codefendant to the
police station the day before. She was neither handcuffed nor denied access to her personal
belongings, including her cellphone, and was driven in a separate police vehicle from
codefendant that did not have a barrier between the front and back seats. Additionally, defendant
left the police station later that night and was even given a ride home. Defendant then voluntarily
agreed to return to the station the next day with her mother. Under those circumstances, we
cannot say that defendant’s freedom of movement had been restrained or that a reasonable
person would not have felt free to leave.
¶ 32 Moreover, it is important to note that, when the police arrested codefendant, they were
aware that defendant had threatened the victim in the past (see supra ¶¶ 15, 18) but still did not
question her about it. This suggests that defendant was not considered a suspect or in custody on
April 25, 2011. 5 Accordingly, we conclude that defendant was not in custody before she
confessed.
¶ 33 Next, we must determine whether defendant’s confession in this case was voluntary. The
fifth amendment and the Illinois Constitution of 1970 (U.S. Const., amend. V; Ill. Const. 1970,
art. I, § 10) protect an individual’s right against self-incrimination in custodial interrogations by
requiring that a defendant be informed of her rights to remain silent and to an attorney and that
5
We note that, because defendant was not in custody on April 25, 2011, her nonrecorded
statements made at the police station that day were admissible at trial. But cf. 725 ILCS 5/103-2.1(b)(1)
(West 2012) (stating that “[a]n oral, written or sign language statement of an accused made as a result of a
custodial interrogation conducted at a police station *** shall be presumed to be inadmissible as evidence
against the accused” unless “an electronic recording is made of the custodial interrogation”).
-9-
No. 1-17-0310
any statement given may be used against her in court. People v. Dennis, 373 Ill. App. 3d 30, 42
(2007) (citing Miranda v. Arizona, 384 U.S. 436, 475-77 (1966)). A defendant waives her
Miranda rights, however, where the decision to relinquish those rights was voluntary, i.e., it was
not the result of intimidation, coercion, or deception and where it was made with full awareness
of the nature of the rights being abandoned and the consequences thereof. People v. Crotty, 394
Ill. App. 3d 651, 662 (2009).
¶ 34 Here, defendant was informed of her Miranda rights when she was arrested for
obstruction of justice and again before she was given the polygraph test. In both instances,
defendant made a conscious, voluntary decision to waive those rights under no threat of
intimidation, coercion, or deception. To the contrary, defendant was fully informed of the murder
investigation, including Miller’s statements to the police that belied her own. She was allowed to
see her mother and use the bathroom upon request and was given food, soda, and a blanket.
Furthermore, the record suggests that defendant was aware of the nature of the rights she was
waiving and the consequences thereof because she asked for an attorney before she was in
custody; thus, defendant had some understanding of Miranda rights before she was informed of
them (see supra ¶ 9). Yet, she chose to waive those rights on two separate occasions on different
days. Thus, we conclude that defendant’s confession in this case was voluntary.
¶ 35 Based on the foregoing, we cannot say the trial court’s findings that defendant was not in
custody before she confessed and that her confession was voluntary were against the manifest
weight of the evidence or that suppression of her confession was warranted. Accordingly, the
trial court properly denied defendant’s pretrial motions to quash arrest and suppress evidence.
¶ 36 We also conclude that the trial court did not abuse its discretion in denying defendant’s
pretrial motions to admit evidence of codefendant’s past crimes and out-of-court statements
- 10 -
No. 1-17-0310
made by the victim to her friend. See People v. Lopez, 2014 IL App (1st) 102938-B, ¶ 22 (stating
that evidentiary rulings rest within the sound discretion of the trial court whose determinations
will not be reversed on appeal absent a clear abuse of discretion).
¶ 37 Where, as here, a defendant seeks to admit evidence of prior crimes that she was not
involved in, admissibility is judged under ordinary principles of relevance. See id; People v.
Pikes, 2013 IL 115171, ¶ 20 (where the prior or collateral crimes were not committed by the
defendant, the admissibility of that evidence is judged under ordinary relevancy principles rather
than traditional other-crimes analysis). In this regard, proffered evidence is admissible if it tends
to prove or disprove the offenses charged, and that evidence is relevant only if it tends to make
the question of guilt more or less probable. People v. Hill, 2014 IL App (2d) 120506, ¶ 50.
¶ 38 In this case, defendant sought to admit evidence of codefendant’s past crimes involving
domestic violence, including a conviction for first degree cruelty to children. Defendant,
however, has not shown, or argued, that evidence was relevant to her defense by establishing that
it either disproved the offenses charged against her or called her guilt into question. See Ill. S. Ct.
R. 341(h)(7) (eff. Oct. 1, 2020) (stating that an appellant’s brief “shall contain the contentions of
the appellant and the reasons therefor, with citation of the authorities and the pages of the record
relied on”).
¶ 39 To the extent defendant asserts that codefendant’s past crimes were admissible under
section 7.4 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-7.4 (West
2014)), this applies only to evidence in domestic violence cases “in which the defendant is
accused of an offense of domestic violence.” (Emphasis added.) Id. § 115-7.4(a). Because
defendant was not accused of the domestic-related offenses committed by codefendant, that
evidence was not admissible. And, while that evidence may have shown codefendant’s
- 11 -
No. 1-17-0310
propensity for violence, it had no bearing on whether defendant was guilty in this case because
she never claimed in her pretrial motions or at trial to have been a victim of his violence or to
have been acting in self defense. 6 Cf. People v. Lynch, 104 Ill. 2d 194, 200-01 (1984) (holding
that the victim’s aggressive and violent character was relevant to show who was the aggressor
where the victim raised the theory of self defense). In fact, defendant expressly stated in her
motion to admit codefendant’s past crimes that she “in no way asserts a claim of self defense.”
We therefore conclude that codefendant’s past crimes were not admissible in this case.
¶ 40 For the same reasons, the victim’s prior out-of-court statements made to her friend
regarding codefendant’s violent temper were not relevant as to whether defendant had committed
the charged offenses in this case or whether she was guilty. Regardless, the victim’s statements
were inadmissible hearsay that did not constitute dying declarations subject to exception under
Illinois Rule of Evidence 804(b)(2) (eff. Jan. 1, 2011) because they were made several weeks
before she was murdered. The victim’s statements, therefore, could not have pertained to either
the cause or circumstances of her murder. See Ill. R. Evid. 804(b)(2) (eff. Jan. 1, 2011); see also
People v. Perkins, 2018 IL App (1st) 133981, ¶ 57 (noting that statements cannot be admitted as
dying declarations unless they were made under the belief of impending death and relate to the
cause or circumstances of the underlying homicide).
¶ 41 Likewise, the victim’s hearsay statements were not admissible under section 115-10.2a of
the Code (725 ILCS 5/115-10.2a(a) (West 2014)) because the victim in this case was not abused
by a family or household member. See id. § 115-10.2a(a) (applying only to statements made “by
an individual identified in [s]ection 201 of the Illinois Domestic Violence Act of 1986 as a
6
According to her presentence investigation report, defendant told the investigating officer, Jayne
Mulcrone, that “she was physically and verbally abused by *** co-defendant.” Additionally, defendant’s
pro se motion for a reduction of sentence alleged that she “was forced to participate in the crime” and that
her “life was at risk,” but it made no mention of codefendant.
- 12 -
No. 1-17-0310
person protected by that Act”); see also 750 ILCS 60/201(a)(i) (West 2014) (identifying only
individuals and minors who are “abused by a family or household member”). Accordingly, the
trial court properly denied defendant’s motions to admit codefendant’s past crimes and the
victim’s prior out-of-court statements.
¶ 42 The trial court also did not abuse its discretion in refusing to give non-IPI jury
instructions on obstruction of justice when defendant was not ultimately charged with that
offense and conceded that it was not a lesser included offense of the charged offenses. See
People v. Davis, 213 Ill. 2d 459, 475 (2004) (reviewing a trial court’s decision declining to give
a tendered jury instruction for an abuse of discretion). A defendant is not entitled to have the jury
instructed on an offense for which she was not charged that is not a lesser included offense of the
charged offenses. See People v. Ceja, 204 Ill. 2d 332, 359 (2003).
¶ 43 In this case, defendant was charged with multiple counts of first degree murder and
intentional homicide of an unborn child. Although defendant was initially arrested for
obstruction of justice, the indictment did not charge her with that offense and made no reference
to that theory of liability, presumably since she confessed her involvement in the victim’s
murder. Moreover, defense counsel conceded that obstruction of justice was not a lesser included
offense of those charged in this case when he requested the instruction at trial: “I understand it is
not a lesser included [offense] of any of the charges that remain.” Thus, we cannot say that the
trial court abused its discretion when it refused to instruct the jury on obstruction of justice.
¶ 44 Turning to defendant’s challenge to her murder conviction based the sufficiency of the
evidence, we must determine whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the crime to
have been proven beyond a reasonable doubt. People v. Jackson, 2020 IL 124112, ¶ 64. We will
- 13 -
No. 1-17-0310
not overturn a criminal conviction unless the evidence is so improbable or unsatisfactory that it
creates a reasonable doubt of the defendant’s guilt. Id. Furthermore, the trier of fact is in the best
position to judge the credibility of witnesses, resolve conflicts in the evidence, and draw
reasonable inferences therefrom; thus, we will not substitute the trier of fact’s credibility
assessments with our own. Id.¶ 45 A person is guilty of the offense of first degree murder when she kills an individual
without lawful justification if, in performing the acts which cause the death, she intends to kill or
do great bodily harm to that individual or another. 720 ILCS 5/9-1(a)(1) (West 2010).
¶ 46 The record in this case shows that the evidence at trial overwhelmingly supported the
jury’s finding of guilt. Most notably, defendant confessed that she was involved in the victim’s
murder. Her confession was supported by forensic and DNA evidence, as well as testimony that
not only belied her initial story to the police but also described the events that led to victim’s
murder in codefendant’s car where she was hiding in the trunk. Given that evidence, the jury in
this case certainly could have found that defendant intended to kill the victim and was successful.
Accordingly, we conclude that the evidence in this case was sufficient to sustain defendant’s
murder conviction.
¶ 47 Last, defendant challenges her discretionary natural life sentence as unconstitutionally
excessive. Defendant claims that new scientific evidence concerning brain development in
youths and the reasoning set forth in a line of caselaw beginning with the United States Supreme
Court decision in Miller v. Alabama, 567 U.S. 460 (2012), which prohibits mandatory life
sentences for juveniles who commit murder, should be considered and applied to her specific
circumstances as a 19-year-old young adult with no prior convictions.
- 14 -
No. 1-17-0310
¶ 48 The State argues, and we agree, that defendant forfeited her as-applied constitutional
challenge by not raising it in the trial court. As a result, she has failed to develop an evidentiary
record for her claim in the court below, precluding our review. See People v. Harris, 2018 IL
121932, ¶ 39 (reemphasizing that “a reviewing court is not capable of making an as-applied
finding of unconstitutionality in the ‘factual vacuum’ created by the absence of an evidentiary
hearing and findings of fact by the trial court”).
¶ 49 On the merits, the State maintains that defendant has not shown that, as-applied to her
circumstances, a discretionary life sentence is unconstitutionally excessive because Miller
applied only to juvenile offenders and involved constitutional attacks on mandatory life
sentences, not discretionary. But cf. Miller, 567 U.S. at 489 (holding that mandatory life
sentences without the possibility of parole for juvenile offenders violate the eighth amendment’s
ban on cruel and unusual punishment); People v. Buffer, 2019 IL 122327, ¶ 42 (holding that the
juvenile offender’s mandated 40-year sentence was a de facto life sentence in violation of the
eighth amendment); People v. Thornton, 2020 IL App (1st) 170677, ¶ 22 (similar); but see
People v. Holman, 2017 IL 120655, ¶¶ 47-50 (holding that the juvenile offender’s discretionary
life sentence did not violate the eighth amendment where the sentencing court considered his
youth and its attendant characteristics at the time of sentencing).
¶ 50 Here, defendant did not raise her as-applied constitutional challenge in the trial court.
Instead, she argued in her motion to reconsider that the trial court misapplied the sentencing
statute in imposing a discretionary life sentence because she was not found guilty of murdering
more than one victim since the unborn child’s death was defined as a “homicide.” But cf. 730
ILCS 5/5-8-1(1)(c)(ii) (West 2016) (mandating a term of natural life imprisonment when the
defendant is not a juvenile and “is found guilty of murdering more than one victim”).
- 15 -
No. 1-17-0310
¶ 51 To the extent defendant argued in her motion to reconsider that her life sentence was
“inappropriate for the same reasons” set forth in Miller, this was at best an implied facial
challenge to mandatory life sentences for youths even though defendant’s sentence in this case
was discretionary. 7 But see People v. Lusby, 2020 IL 124046, ¶ 33 (addressing Miller, the court
stated that “[t]he constitutional flaw with mandatory life sentences is their mandatoriness” but
emphasized that Miller “did not foreclosure the possibility of discretionary life sentences for
juveniles”). In concluding that defendant’s as-applied challenge is premature, we note that her
reply and supplemental briefs are devoid of any response to the State’s forfeiture argument.
¶ 52 We further note that defendant impermissibly claimed, for the first time in her petition for
rehearing, that her life sentence amounted to an abuse of discretion for the same reasons
mentioned above (see supra ¶ 47). See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (stating that
“[p]oints not argued are forfeited and shall not be raised *** on petition for rehearing”).
Regardless, defendant’s claim raised an as-applied constitutional challenge, which is reviewed de
novo, that she forfeited. See People v. Vega, 2018 IL App (1st) 160619, ¶ 52 (“An as-applied
constitutional challenge is a legal question that we review de novo.”).
¶ 53 Accordingly, we decline to remand this matter for an evidentiary hearing.
¶ 54 CONCLUSION
¶ 55 Based on the foregoing, we affirm the judgment of the trial court.
¶ 56 Affirmed.
7
See, e.g., Harris, 2018 IL 121932, ¶ 38 (stating that a “party raising a facial challenge must
establish that the statute is unconstitutional under any possible set of facts”).
- 16 -
No. 1-17-0310
No. 1-17-0310
Cite as: People v. Thomas, 2020 IL App (1st) 170310Decision Under Review: Appeal from the Circuit Court of Cook County, No. 11-CR-08111-
02; the Hon. Brian K. Flaherty, Judge, presiding.
Attorneys Amy P. Campanelli, Public Defender, of Chicago (Marsha Watt,
for Assistant Public Defender, of counsel), for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J.
for Spellberg, Mary L. Boland, Tasha-Marie Kelly,
Appellee: and Hareena Meghani-Wakely, Assistant State’s Attorneys, of
counsel), for the People.
- 17 -