People v. McCann , 2024 IL App (1st) 240017-U ( 2024 )

2024 IL App (1st) 240017-UFOURTH DIVISION
Order filed: March 7, 2024
No. 1-24-0017B,
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
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. 2023 CR 1175191
)
)
KATHERINE McCANN, ) Honorable
) Maria Kuriakos Ciesil,
Defendant-Appellant. ) Judge, Presiding.
JUSTICE HOFFMAN delivered the judgment of the court.
Presiding Justice Rochford concurs in the judgment and specially concurs.
Justice Ocasio concurs the judgment.
ORDER
¶1 Held: We vacated the order of detention and remanded the case to the circuit court with
directions to enter an order articulating the facts supporting its finding that the
defendant poses a real and present safety threat and to whom and articulating why
no restriction(s) other than pretrial detention would mitigate that threat, taking into
consideration the factors set forth in 725 ILCS 5/110-6.1 (g) (West Supp. 2023)).
¶2 The defendant, Katherine McCann, appeals from the circuit court’s order of December 21,
2023, denying her pretrial release pursuant to Public Act 101-652, § 10-255 (eff. Jan. 1, 2023).
Commonly known as the Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act (Act). 1
See Pub. Act 102-1104 , § 70 (eff. Jan. 1, 2023) . For the reasons which follow, we vacate the
detention order of December 21, 2023, and remand the case to the circuit court with directions.
¶3 The defendant was arrested on October 20, 2023, and charged 5 counts of First Degree
Murder (720 ILCS 5/9-1(a) (West 2022)) and one count of Unlawful Use of a Weapon by a Felon
(720 ILCS 5/24-1.1(a) (West 2022)). On December 21, 2023, the State filed a petition for pretrial
detention pursuant to 725 ILCS 5/110-6.1 (West Supp. 2023). At the detention hearing, the State
made the following proffer.
¶4 On August 6, 2023, the victim, Mr. Redmond, a former paramour of the defendant, and his
cousins left a bar at approximately 1:00 a.m. and drove to a parking area in the rear of the
defendant’s residence to wait for several women. At approximately 1:43 a.m., the defendant exited
her residence holding a shotgun. She approached the passenger’s side of the vehicle containing
the victim and his cousins and pointed the shotgun in their direction. The victim rolled down the
window of the vehicle. According to his cousins, the defendant was calm when she realized who
was in the vehicle. The victim exited the vehicle and followed the defendant as she walked toward
her own vehicle. The victim’s cousins, Murphy and Tye, remained in the vehicle. One of the
cousins observed the defendant pointing the shotgun at the victim’s stomach. Murphy and Tye
observed the victim with his back against the defendant’s vehicle and with his empty hands in the
1
The Act has been referred to as the “SAFE-T Act” or the “Pretrial Fairness Act.” Neither name
is official, and neither appears in the Illinois Compiled Statures or the public act.
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air in a surrendering defensive posture. As Murphy and Tye started to exit the vehicle, they heard
a single gunshot and saw a flash of light. When they exited the vehicle, Murphy and Tye saw the
victim on the ground and the defendant holding a shotgun. The defendant’s son was seen exiting
her residence, and one of the victim’s cousins saw the defendant hand the shotgun to her son who
then walked toward the residence. According to the victim’s cousins, the defendant repeatedly
stated that she was sorry and that the shooting was an accident. The defendant called 911, gave
the dispatcher the address of the incident, and stated that the shooter was not at the scene.
Emergency personnel arrived and transported the victim to a hospital where he died. The medical
examiner found the cause of death to be a gunshot wound to the abdomen fired from approximately
3 feet. When interviewed by the police at the scene, the defendant stated that she heard a gunshot,
exited her home, and found the victim shot and leaning against her car. Ballistics analysis revealed
that a shell casing recovered at the scent was fired from a shotgun found in a neighbor’s yead
located in the direction that the defendant’s son traveled carrying the shotgun. The defendant was
arrested on October 20, 2023. At the time of her arrest, she was in possession of a phone that had
the same number that was used to dial 911 on the date of the shooting. The State also informed
the court that the defendant had a 2009 federal conviction for fraud with identification documents
for which she was sentenced to 4-years’ probation.
¶5 In response, the defendant’s attorney made the following proffer. On August 6, 2023, the
defendant returned home after 1:00 a.m. from her job as a nurse at Silver Cross Hospital. Her two
minor children, Carlton age 13 and Cayden age 11, were in the house. As she was preparing for
bed, she saw headlights from a car lighting the rear yard of her residence. The vehicle had Florida
license plates. The defendant checked her phone to see if she had any messages explaining why a
car would be in the rear of her residence and found none. The defendant was scared that someone
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was there to rob her, break into her residence, or hurt her children. She took a shotgun belonging
to the victim that he had left in her home when he last resided there in 2006, and left her house and
walked toward the vehicle parked in the rear of her property. When she approached the vehicle,
she raised the shotgun to protect herself. When the defendant saw that her former boyfriend, the
victim, was in the car, she lowered the shotgun and began walking toward her own car. The victim
yelled at her, stating “get your ass back in the house.” The defendant ignored him. She took out
her keys and started to open her car when the victim got out of the vehicle he was in with his hands
up as if to slap the defendant. The victim attempted to prevent the defendant from entering her car
and slapped the keys from her hand. The victim had his back against the defendant’s vehicle. The
victim again lifted his hands at which time the defendant lifted the shotgun in an attempt to scare
the victim. As the victim and the defendant argued, the victim grabbed the shotgun and pulled it
toward himself when the gun went off. The victim suffered a single gunshot wound. None of the
witnesses, including the victim’s cousins, actually witnessed the shooting; they only witnessed
what happened before and after the victim was shoot. The defendant gave the shotgun to one of
her minor sons who took the gun to a neighbor’s property. Following the incident, the defendant
called 911, telling the dispatcher that the shooter was not at the scene. The defendant remained at
the scene and administered CRP and chest compression to the victim until the paramedics arrived.
While at the scene, the defendant said that the shooting was an accident.
¶6 In mitigation, defense counsel informed the court of the following. The defendant is a 35-
year-old mother of two minor sons. The children’s father is incarcerated in Iowa serving an
extended sentence and has never been involved in the children’s lives. The defendant has both an
associate’s degree in science and a bachelor’s degree in nursing She has been employed since she
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graduated from high school. The defendant is a licensed registered nurse, working at Silver Cross
Hospital. She suffers from asthma and allergies and had to be taken to the hospital when she was
arrested. While incarcerated at the Cook County jail, the defendant was without her inhaler, and
she had to file a grievance to obtain one. In addition, she does not have proper allergy medication.
The defendant was the victim of domestic abuse by her children’s father until their relationship
ended in 2013. She also suffered physical abuse, slapping and choking, from the victim until their
romantic relationship ended in 2020. In 2023, several months before the shooting, the victim
pulled a gun on the defendant. On a later occasion in 2023, the victim threatened to beat one of
her sons because he refused to sell marijuana for him. Prior to this incident, the defendant had
never shot the gun or taken it out of her house. The defendant has strong ties to the community.
She serves as a volunteer at her children’s school, is active in her church, and acts as a mentor for
young women. The defendant’s two minor children, who are currently cared for by the defendant’s
mother, have suffered serious disruption to their lives and mental issues as a result of the
defendant’s incarceration. The defendant’s only felony conviction was for ID fraud when she
was 19. She has no history of violence and has never been arrested or convicted for a crime of
violence. The defendant does not have a reputation for violent, abusive, or assaulting behavior.
There is no evidence that the defendant suffers from any psychological or psychiatric condition
indicative of a violent, abusive, or assaulting nature. There is no evidence that she ever possessed
or had access to any weapon other than the shotgun involved in this incident. Since her arrest, the
defendant has been threatened by the victim’s family.
¶7 Following the detention hearing, the circuit court denied the defendant pretrial release. The
trial court noted that the defendant exited her house with a shotgun that she should not have
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possessed and shot her former paramour at close range. Following the shooting, the defendant
gave the shotgun to one of her minor sons who placed the gun in a neighbor’s yard, and she called
911, stating that the shooter was not at the scene. In ruling, the court found that the State has
shown by clear and convincing evidence that the proof is evident or the presumption great that the
defendant has committed an eligible offense as listed in 725 ILCS 5/110-6.1(a)(1)-(7) (West Supp.
2023); the defendant poses a real and present threat to the safety of the community based on the
specific articulable facts in this case; and that no conditions or combination of conditions of pretrial
release can mitigate the real and present threat posed by the defendant to the safety of the
community. It also found that there are no less restrictive conditions that would avoid the real and
present threat posed by the defendant. The court ordered the defendant detained and remanded
her to the custody of the Cook County Sheriff.
¶8 On December 21, 2002, the defendant filed a notice of appeal, asserting, as she did at the
detention hearing, that:
1. The State failed to meet its burden of proving by clear and convincing evidence that
the proof is evident, or the presumption is great that she committed the offenses
charged,
2. The State failed to meet its burden of proving by clear and convincing evidence that
she poses a real and present threat to the safety of any person or persons or the
community, and
3. The State failed to meet its burden of proving by clear and convincing evidence that
no condition or combination of conditions can mitigate the real and present threat to
the safety of any person or persons or the community.
¶9 In considering this appeal, this court has reviewed the following documents which the
defendant and the State have submitted pursuant to Illinois Supreme Court Rule 604(h) (eff. Oct.
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19, 2023): the defendant’s notice of appeal, the supporting record, the report of proceedings, the
defendant’s supporting memorandum, and the State’s response memprandum.
¶ 10 Pretrial release is governed by article 110 of the Code of Criminal Procedure of 1963
(Code) (725 ILCS 5/art. 110 (West Supp. 2023)). Under that statute, a defendant’s pretrial release
may only be denied in certain limited situations. 725 ILCS 5/110-2(a), 110-6.1 (West Supp.2023).
Upon the filing of a petition requesting an order denying the defendant’s pretrial release, the State
has the burden to prove by clear and convincing evidence that the proof is evident or the
presumption great that the defendant has committed a qualifying offense, that the defendant’s
pretrial release poses a real and present threat to the safety of any person or the community and/or
that the defendant’s pretrial detention is necessary to prevent the defendant’s willful flight to avoid
prosecution. 725 ILCS 5/110-6.1(e),(f) (West Supp. 2023). It is also the State’s burden to prove
by clear and convincing evidence that “no condition or combination of conditions of release would
reasonably ensure the appearance of the defendant for later hearings or prevent the defendant from
being charged with a subsequent felony or Class A misdemeanor.” 725 ILCS 5/110-6(a) (West
Supp. 2023). The trial court may order a defendant detained pending trial if the defendant is
charged with a qualifying offense, and concludes that the defendant poses a real and present threat
to the safety of any person or the community (725 ILCS 5/110-6.1(a)(1)-(7) (West Supp. 2023))
or that there is a high likelihood of willful flight to avoid prosecution (725 ILCS 5/110-6.1(a)(8)
(West Supp. 2023)). If the trial court determines that pretrial detention is not appropriate, it may
impose conditions “necessary to ensure the defendant’s appearance in court, ensure the defendant
does not commit any criminal offense, [or] ensure the defendant complies with all conditions of
pretrial release.” 725 ILCS 5/110-10(b) (West Supp. 2023).
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¶ 11 We are mindful of the fact that several judges in the Appellate Court believe that review of
a pretrial detention order should be de novo. See People v. Saucedo, 2024 IL App (1st) 232020, ¶
65 (Ellis, J., specially concurring). The weight of authority holds that the factual findings of the
circuit court are reviewed under a manifest weight standard with the circuit court’s determinations
that the defendant poses a poses a real and present threat which cannot be mitigated by any
condition or conditions of release and its ultimate decision to grant or deny pretrial release are
reviewed for an abuse of discretion. See: People v. Lee, 2024 IL App (1st) 232137 ¶ 21. In this
case, we need not address the issue of the proper standard of review because, whether the standard
of review is manifest weight or de novo, the record reflects that the State met its burden of proving
by clear and convincing evidence that the proof is evident or the presumption is great that the
defendant committed a detention eligible offenses as listed in 725 ILCS 5/110-6.1(a) (West Supp.
2023). However. our analysis continues as to the trial court’s findings that the State met its burdens
of proving by clear and convincing evidence that the defendant poses a real and present threat to
the safety of any person or persons or the community and that no condition or combination of
conditions other than pretrial detention can mitigate that threat.
¶ 12 In support of its finding that the defendant poses a real and present threat to the safety of
the community and that no condition or combination of conditions can mitigate that threat, the trial
court articulated only the facts surrounding the shooting of the victim, the fact that the defendant
gave the shotgun to one of her minor children, her call to 911, and the defendant’s prior conviction
for fraud. The trial court’s findings do not state why the defendant poses a real and present threat
to the community or why no conditions or combination of conditions other than detention could
mitigate any such threat. As a consequence, we vacate the December 21, 2023, order of detention
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and remand this case to the trial court with directions to enter an order articulating the facts
supporting its finding that the defendant poses a real and present safety threat and to whom and
articulating why no restriction(s) other than pretrial detention would mitigate that threat, taking
into consideration the factors set forth in 725 ILCS 5/110-6.1 (g) (West Supp. 2023)).
¶ 13 Vacated and remanded with directions.
¶ 14 PRESIDING JUSTICE ROCHFORD, specially concurring:
¶ 15 I concur with the decision of the majority to vacate the order of detention and remand this
matter to the circuit court, with directions for the circuit court to enter an order articulating the
facts supporting its finding that the defendant poses a real and present threat to safety—and to
whom—and articulating why no restrictions other than pretrial detention would mitigate that
threat.
¶ 16 I write separately to note that this conclusion results from the unique circumstances
presented by this case, in which the circuit court properly conducted a thorough detention hearing.
At that hearing, the parties were permitted to make full presentations of evidence as to both the
circumstances of the alleged offenses and as to the extensive mitigating evidence of defendant’s
personal and family background and her limited criminal history. We find no fault with the
procedure followed here in that regard.
Those unique circumstances aside, however, there may well be any number of other cases in which
the State’s proffered evidence as to the alleged crime itself, the manner by which it was allegedly
committed, and the history and characteristics of the defendant, would alone support a finding that
a defendant poses a threat to persons or to the community and that there are no conditions which
would mitigate that threat.
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