People v. Johnson

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Appellate Court Date: 2018.07.25
09:01:12 -05'00'
People v. Johnson, 2018 IL App (1st) 140725
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ROBIN JOHNSON, Defendant-Appellant.
District & No. First District, Fourth Division
Docket No. 1-14-0725
Filed March 30, 2018
Rehearing denied April 25, 2018
Decision Under Appeal from the Circuit Court of Cook County, No. 08-CR-14022; the
Review Hon. Thomas V. Gainer Jr., Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Patricia Mysza, and Christopher Kopacz, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
Christine Cook, and Sheilah O’Grady-Krajniak, Assistant State’s
Attorneys, of counsel), for the People.
Panel JUSTICE McBRIDE delivered the judgment of the court, with
opinion.
Presiding Justice Burke and Justice Gordon concurred in the judgment
and opinion.
OPINION
¶1 Defendant, Robin Johnson, was convicted in a jury trial of the first degree murder of
Chicago police officer Richard Francis, disarming Officer Francis, and aggravated discharge
of a firearm toward another Chicago police officer, for which she received sentences of,
respectively, mandatory natural life, 4 years’ imprisonment, and 15 years’ imprisonment. In
this appeal, defendant raises several challenges to the judgment. Defendant alleges that the trial
court violated her constitutional right to present a defense when it barred proposed expert and
lay testimony that she contends establishes that she was in a postictal, or post-seizure, state at
the time of the offense. Defendant also argues that the trial court erred in refusing to instruct
the jury on involuntary manslaughter and in not allowing defense counsel to impeach a defense
witness about the State having provided the witness with housing prior to her testifying at trial.
Finally, defendant contends that her mandatory natural life sentence is unconstitutional.1
¶2 The record shows that defendant was charged by indictment with four counts of first
degree murder of a peace officer, eight counts of attempted murder, four counts of aggravated
discharge of a firearm, and disarming a peace officer, arising from a July 2, 2008, incident that
occurred after Officer Francis was called to investigate a disturbance on a Chicago Transit
Authority (CTA) bus. Prior to trial, defendant submitted an answer to the State’s motion for
pretrial discovery that suggested that defendant would “rely on the State’s inability to prove its
case beyond a reasonable doubt.” Defendant also indicated that she was contemplating
asserting the affirmative defense of insanity.
¶3 On October 16, 2013, the day before jury selection was set to commence, defendant filed a
motion to allow her “to present the defenses and supporting evidence that (1) she did not act
intentionally or knowingly as required under the charged statutes and (2) she did not perform a
voluntary act as required by the criminal code.” The defense indicated that it “had investigated
the possibility of presenting an insanity defense” and believed that the insanity defense would
be “a weak and ineffective defense.” However, counsel believed that defendant had “a strong
defense” based on her “not possess[ing] the mental state necessary to commit first degree
murder” and “not perform[ing] a voluntary act.” Counsel further stated an intent to call Dr.
Stephan Schuele to testify that defendant suffers from epileptic seizures and that she was “in a
postictal or post-seizure state at the time that” the officer was shot. Dr. Schuele would further
testify that defendant “was not capable of forming the necessary mental state to commit first
degree murder” and that her medical condition “created a confused state such that [defendant]
was not performing voluntary acts.” Defendant also claimed that her condition, which resulted
from “a seizure and postictal state, could lead a jury to conclude that she acted recklessly and
therefore committed the offense of involuntary manslaughter rather than first degree murder.”
¶4 On October 16, 2013, the State filed a motion in limine to exclude defendant’s proposed
expert testimony in the absence of an insanity defense. The State argued that where defendant
was not presenting an insanity defense, the proposed testimony was irrelevant and amounted to
1
In defendant’s initial brief, she also raised an issue regarding her mittimus, contending that she
was credited for only 2044 days spent in custody prior to sentencing when she actually spent 2045 days
in pre-sentencing custody. After the State responded that 2044 was the correct number of days, since
the date of sentencing is not included in the calculation (see People v. Williams, 239 Ill. 2d 503, 509
(2011)), defendant withdrew that issue in her reply brief.
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“an improper attempt to resurrect the now-defunct defense of diminished capacity.” The State
further asserted that “the proposed testimony on the issue of epilepsy, would serve only to
confuse the jury and to invade the province of the jury.”
¶5 On October 17, 2013, the court held a pretrial hearing for the court to hear Dr. Schuele’s
proposed testimony and consider its admissibility at trial. Dr. Schuele testified that he was a
neurophysiologist and epileptologist at Northwestern University and Northwestern Medical
Faculty Foundation (Foundation). Dr. Schuele further testified that he was “the section head
for the Epilepsy Section” at the Foundation, and the Medical Director of the Neurological
Testing Center at Northwestern Memorial Hospital. In 2010, Dr. Schuele was asked to
evaluate defendant. In evaluating her, Dr. Schuele interviewed defendant and her family
members and relied on a neuropsychological report prepared by Dr. Robert Hanlon, the fire
department incident report, the police case report, the indictment, the video surveillance
footage of the incident, and defendant’s prior hospitalization records.
¶6 Dr. Schuele explained that epilepsy is “a tendency of the brain to have unprovoked,
recurrent seizures, epileptic seizures” and that it was “basically defined as having had at least
two unprovoked epileptic seizures.” Dr. Schuele stated that a person could have epileptic
seizures without having epilepsy when the seizures were “provoked.” He stated that provoking
factors could include a “variety of medical conditions,” including renal failure, liver failure,
and dehydration after, for example, running a marathon or substance abuse. Dr. Schuele
testified that he did not diagnose defendant with epilepsy because he was not able to determine
whether her seizures were provoked or unprovoked. He was “confident to say that she has
epileptic seizures,” but noted that defendant had certain risk factors for provoked seizures.
Specifically, Dr. Schuele stated that if defendant had provoked seizures, they would have been
caused by her chronic drug use, alcohol use, or alcohol withdrawal. Dr. Schuele also stated that
he looked at defendant’s EEG records, which were normal, but explained that about 20% of
people with epilepsy will have normal EEGs.
¶7 Dr. Schuele further explained that a “postictal period” referred to “the fact that directly
following a seizure most patients are confused for a certain period of time.” This period
normally lasts between 10 and 30 minutes; however, some patients with frequent seizures, or a
cluster of seizures, “go into a prolonged confusional, delusional state.” Dr. Schuele stated that
this was “basically a prolongation of the acute postictal state,” in which people are tired,
confused, disoriented, and, in some cases, agitated or violent. Dr. Schuele described this as
“postictal psychosis,” where a person has “one or two or several days” where he or she exhibits
“paranoid and delusional and bizarre behavior.” Dr. Schuele testified that a person can “walk
and *** function to a certain degree, but they *** have psychotic symptoms where they [have]
irrational or erratic or bizarre behavior.”
¶8 Dr. Schuele noted that defendant was hospitalized on June 29, 2008, three days before the
incident, and that there was a handwritten note in the record that she had been “postictal” the
day before and was “[n]ow feeling better.” Dr. Schuele testified that, from defendant’s history
and the descriptions he had been given, he believed that it was “reasonable to assume that
[defendant] was in a postictal state” on July 2, 2008, and that, at the time of the incident,
defendant “showed signs of erratic behavior consistent with an acute confusional state.”
¶9 The doctor also explained that the symptoms of a postictal period could “wax and wane”
and that “people who are delirious or postictal have moments where they make clear
statements and other moments where they make very incoherent or out of context statements.”
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He also stated that he could not “exclude that during these three days she would have the
intention to go to the bathroom or she had the intention to eat something or do something
intentional” but stated that the surveillance video of the incident gave him “information of how
erratic she was at the moment of the incident.” Dr. Schuele specifically characterized the video
as showing that when defendant was on the bus, she engaged in a motion mimicking putting
money in the fare box, when she did not actually do so, and that she was walking behind one of
the bus passengers with her arms bent. Dr. Schuele also relied on reports that the bus passenger
asked defendant why she was following her, and defendant responded, “[Y]ou made me this
way.”
¶ 10 Dr. Schuele further explained that a person
“in a delirious state has actions which are volitional and actions which are erratic. ***
[W]e are not talking about a patient who is comatose and unresponsive and where
things are black and white. We’re talking about a situation where obviously every step
a person does is a volitional act because, otherwise, we wouldn’t walk. *** So, yes,
obviously, she does many volitional things. She does—it is my opinion as well that she
does many erratic things.”
¶ 11 When asked whether Dr. Schuele could tell which parts of the sequence of events were
volitional and which were erratic, the doctor responded:
“I think you can probably judge erratic behavior as good [sic] as I can. You know, it’s
erratic to mimic putting money in the fare thing. *** [I]t is erratic to walk behind
someone with your arms bent and walking back and forth. *** It is erratic to answer
questions of why do you follow me with, like, you made me this way. That is paranoid
and delusional.”
Dr. Schuele clarified, however, that when he used the words “paranoid and delusional,” he was
describing the postictal state, not making a psychiatric diagnosis, and that a doctor “obviously
do[es]n’t make a psychiatric diagnosis just because someone *** was confused after a
seizure.”
¶ 12 Dr. Schuele stated that it was his understanding that “movements are volitional” and that
“holding something, pulling a trigger” and pointing a gun at someone, were “volitional act[s].”
However, Dr. Schuele stated that he believed that defendant did not “understand[ ] the
situation” and that she was “paranoid and *** fe[lt] threatened to an irrational degree.”
¶ 13 When asked about whether he knew from witness accounts that Officer Francis did not get
up or move after the initial gunshot, Dr. Schuele responded, “If I remember the video, the
video, obviously, doesn’t show much. The video on that part, there’s a lot of obstruction.” Dr.
Schuele was also asked whether he recalled that defendant was “accused of hiding behind a car
and shooting in the direction of other officers after she shot and killed Officer Franc[i]s,” and
responded that he “d[id]n’t remember that detail.”
¶ 14 At the conclusion of Dr. Schuele’s testimony, the court indicated that it would have a ruling
in the morning before jury selection.
¶ 15 The next morning, the court began by noting that, typically, “a defendant’s state of mind is
a question of fact to be determined by the jury” and that it “may be inferred from the character
of the defendant’s conduct and the circumstances surrounding the commission of the offense.”
The court continued:
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“The admissibility of expert testimony regarding a defendant’s intent or lack thereof
which is the ultimate issue in a murder prosecution depends on whether the expert is to
testify to facts requiring scientific knowledge not within the common knowledge of the
jury.
***
Dr. Schuele’s testimony in this case is not being offered in support of the
affirmative defense of insanity. It’s being offered only on the issue of her intent, and it
comes under the rubric of a reasonable doubt argument. ***
But expert testimony cannot and must not confuse the jury or invade the province
of the jury in determining the ultimate issues. ***
Dr. Schuele described what he called the postictal phase which occurs after the
seizures. ***
In this state, the person could appear paranoid and delusional, but according to Dr.
Schuele, would also be capable of performing voluntary acts such as pointing a gun at
someone, shooting that person, hiding behind a vehicle, and firing a weapon at other
police officers who arrived on the scene while protecting herself.
Dr. Schuele testified that there was no psychiatric or psychological diagnosis made
that the defendant suffered from paranoia or delusional thinking[.]
***
Dr. Schuele testified that while she may have been confused and agitated as a result
of her postictal state, she was capable of engaging in voluntary acts such as I have
described, aiming a gun at a victim, shooting the victim, protecting herself, and then
shooting at other police officers.
In this Court’s opinion, this testimony would only serve to confuse the jury on the
ultimate issue in the case since the doctor is saying two things. She’s in this confused
and agitated state, but she’s also capable of engaging in volitional acts. To allow anger,
agitation, confusion, erratic behavior which result in the defendant’s long history of
alcoholism and substance abuse to rise to the level of mental disease or defect would
make voluntary intoxication a defense to criminal conduct, and Illinois does not
recognize voluntary intoxication as a defense.
***
This testimony that’s being offered is more akin to the diminished capacity defense
***.
***
Dr. Schuele’s testimony that the defendant was in a postictal state of agitation and
aggression but still capable of volitional acts would only confuse the jury on an issue
which is theirs [sic] to decide.”
¶ 16 After ruling, the State also indicated that it “would be objecting” to the defense presenting
evidence through lay opinions given by family members and paramedics that defendant
suffered from seizures. Defense counsel responded that the defense would not be asking about
their opinions of whether defendant was suffering from a seizure, but that the defense should
be able to call these witnesses to testify regarding the “facts of what they observed.” The court
ruled that defendant did not have a right to “ask them opinions about postictal states and such.
But I believe you have a right to call witnesses to testify to her behavior.”
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¶ 17 On October 21, 2013, the State sought to clarify the trial court’s ruling by filing a motion
in limine seeking to prevent the defense from providing evidence of “defendant’s medical and
mental history as it is not relevant to any issue before the court.” The State asserted that any
evidence “of the defendant’s mental health in the form of prior seizures, confusion, medication
or current medical diagnoses are not relevant absent an insanity defense.” The State argued that
it was “obvious that the defense [wa]s trying to circumvent their burden” of proving insanity,
and that the defense’s “attempts to call her family, paramedics, and doctors” were only
relevant to a nonexistent diminished capacity defense. The State asked that the evidence “be
excluded as it remains irrelevant, in no way assists the jury and would instead serve to confuse
the jury while deliberating the issues in the case.” The State also explained that some of the
evidence that defendant sought to admit constituted hearsay, was speculative, or was “too
remote to be relevant.”
¶ 18 In ruling on the State’s motion in limine, the court explained that its prior ruling
“was that the jury should be able to determine [the voluntariness of] the acts, all the acts
of the defendant and her acts at the time she encountered the police officer, and no
expert testimony was necessary ***.
The evidence that this woman suffers from epilepsy, had suffered from epilepsy in
the past and had involved herself in seizure-type behavior in the past is not relevant to
the issue of whether or not she was committing a voluntary act on the night in
question.”
¶ 19 The court noted that Dr. Schuele testified that defendant was “capable of committing
voluntary acts” and concluded that
“all this epilepsy evidence is only going to confuse the jury. It’s excludable under 403.
It’s really not relevant to what happened. ***
This type of evidence, all of it, the daughters, the boyfriend, the paramedics, and the
doctors, is going to mislead the jury. The jury is going to have to make up its mind from
what it hears from the witnesses, *** and *** what they see in the video to determine
whether or not she was acting volitionally.
She does not have an affirmative defense, and there is no defense of diminished
capacity under Illinois law.”
¶ 20 The defense asked the court to reconsider, and the court stated, “I still believe that this is
more in the nature of a diminished capacity defense which does not exist in Illinois, and my
ruling is no one will testify concerning epilepsy.”
¶ 21 After opening statements, the State called Debra Francis, widow of the deceased victim,
Chicago police officer Richard Francis. Debra testified that she last saw her husband at 10:40
p.m. on July 1, 2008, before he left for his 11 p.m. shift. After 2 a.m., a police officer rang her
doorbell and drove her to the hospital, where she learned that her husband had died.
¶ 22 Tracey Jackson testified that she was working the overnight shift as a CTA bus operator on
July 1 and 2, 2008. Around 1:50 a.m. on July 2, 2008, Jackson stopped the bus at the
intersection of Belmont, Western, and Clybourn Avenues, across the street from a police
station, to let passengers on and off the bus. One passenger, a middle-aged Hispanic woman
later identified as Donna Barney, exited the bus, and two people stepped onto the bus. Jackson
identified defendant as the second person to step onto the bus, and testified that defendant
turned around and stepped off of the bus a few seconds after Barney exited. Jackson saw
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defendant follow Barney, walking “very closely, step for step behind” her. Barney then came
back to the bus with defendant following, and Jackson unsuccessfully tried to separate the
women by closing the doors between them. Barney exited the bus, and defendant again
followed. At that point, Jackson requested assistance using a machine on the bus. Jackson saw
a Chicago police car driving northwest on Clybourn, so she “beeped [her] horn and waved at”
the driver. The officer, identified as Officer Francis, stopped the car and exited, and Jackson
exited her bus to speak with him. Jackson then returned to the bus, and when she turned around
again, she saw defendant and Officer Francis “in [a] struggle.” Jackson saw “both of them start
to fall to the ground,” then saw a “flash” which she understood to be a gunshot. Jackson
screamed and ran to the back of the bus. The State then published the surveillance footage from
the CTA bus for the jury.
¶ 23 Jennifer Orze testified that on July 2, 2008, she was an office manager at Chicago
Veterinary Emergency and Specialty Services on Clybourn, a 24-hour veterinary clinic near
Belmont and Western. Around 1:53 a.m. on that date, Orze began driving home after the end of
her shift. Orze drove north on Western, and was stopped at the traffic light at Belmont and
Western when she noticed a police patrol car stopped in front of a bus at the corner. Orze was
approximately 20 feet away from the patrol car when she saw Officer Francis attempting to
escort defendant away from the bus and towards the squad car, with his hand on her arm. Orze
saw that defendant was “jerking her arm away as [Officer Francis] was trying to hold onto her
arm.” Orze then saw that Officer Francis appeared to “los[e] control of [defendant’s] arm for
probably a second” and defendant and Officer Francis fell to the ground, with Officer Francis
on top of defendant. A “couple of seconds” later, Officer Francis started to get up, and was on
his knees with both hands on either side of his face with his palms open and nothing in his
hands. Defendant was still on the ground, when Orze heard a gunshot and saw Officer Francis
fall back. Orze noticed that other squad cars had arrived on the scene and heard officers
commanding defendant to drop her weapon. Orze saw defendant, with a gun in her hand,
pointing the gun toward the officers. Orze heard another gunshot, which sounded like it was
coming towards her. Orze then drove away from the intersection and went back to her office,
where she told her coworkers about what she had witnessed. At some point later, Orze saw
officers on foot in the area, and she went outside her office to speak to the officers and let them
know that she had witnessed the incident.
¶ 24 Robert Kalnes testified that he was working the overnight shift on July 1 to 2, 2008, as a
dispatcher at the Illinois State Police. Kalnes received two calls that night from Officer
Francis. At 1:53 a.m., Officer Francis called to state that he was stopping for a bus disturbance
and, shortly thereafter, called again for assistance. The two calls were published for the jury.
¶ 25 The Chicago police officers who responded to the scene—Emmert Gauthier, Darrel Rizzo,
Kevin Leahy, and William Seski—each testified. Officer Gauthier testified that on July 2,
2008, he and Officer Rizzo were on duty together, patrolling in a marked car, when they
received a call to go to the intersection of Belmont and Western. Officer Rizzo drove the patrol
car towards that intersection, with Officer Gauthier in the passenger seat. As they arrived, they
saw Officer Francis’s squad car parked in front of a bus that was parked at that intersection,
just west of Western Avenue. Officer Gauthier testified that he saw Officer Francis escorting
defendant to the back of his squad car when defendant pulled Officer Francis toward her and he
fell forward. Officer Gauthier exited his vehicle to help, while Officer Rizzo parked the car.
From two or three feet away, Officer Gauthier saw Officer Francis on the ground, and
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defendant in front of Officer Francis in a crouched position with a silver revolver in her hands.
Officer Francis started to step up into a standing position, with his hands on either side of his
face and with his palms open and empty. Officer Gauthier heard a “pop,” and saw Officer
Francis’s body fall back. Officer Gauthier yelled “she’s got a gun” and ran to the back of
Officer Francis’s car to “take cover.” Officer Gauthier heard several gunshots and saw that
both defendant and other officers were shooting. Officer Gauthier saw other officers
approaching defendant, who was on the ground, and Officer Seski kicked the gun out of her
hand. Defendant tried to crawl under the car as the officers attempted to pull her out. Officer
Leahy then moved Officer Francis’s vehicle forward to expose defendant from underneath the
car, and she was placed into custody.
¶ 26 Officer Rizzo testified that as he arrived at the scene, he saw Officer Francis escorting
defendant from the bus. Officer Rizzo was looking for a place to park when he glanced back at
the scene and saw defendant “fighting” and “trying to break away from” Officer Francis.
Officer Rizzo then realized that it was “more of an emergency,” so he parked in the intersection
and exited the car to help. Officer Rizzo then heard shots and “became aware that we were
under fire and that the fire was coming from the direction of the disturbance.” Officer Rizzo
hid behind the squad car and heard someone yell “she has a gun,” which he understood to mean
that defendant had a gun. Officer Rizzo saw defendant pointing a gun in his direction. At this
point, Officer Rizzo saw that Officer Francis was on the ground and not moving. Defendant did
not comply with the officers’ commands to drop the gun, and Officer Rizzo ran around the car
to a position where he felt that he had “a line of fire.” Defendant would not drop the gun, and
had it aimed at the officers, so Officer Rizzo fired three shots at defendant. Thereafter, Officer
Rizzo saw defendant attempting to crawl underneath the squad car. Officer Rizzo
unsuccessfully attempted to pull her out from underneath the car, but eventually, with the
assistance of the other officers, he was able to secure and arrest defendant.
¶ 27 Officer Kevin Leahy testified that he and Officer Seski were on patrol in an unmarked car
on July 2, 2008, when a call came in on the radio shortly before 2 a.m. from Officer Francis
regarding a bus disturbance. Officer Leahy, who was driving, decided to turn the car around
and go assist. As they approached, Officer Leahy immediately saw Officer Francis in a
struggle. Before exiting the car, Officer Leahy heard a single gunshot. He exited the car, heard
another gunshot and went towards the rear of the vehicle. Officer Leahy heard Officer Seski
yell “she’s got a gun, drop the gun, drop the gun,” and saw defendant crouched, with a gun in
her hand, pointing in his direction. Officer Leahy took cover for a “brief second,” heard
another shot, then saw that defendant was pointing the gun toward Officer Seski. Officer
Leahy then fired five gunshots in defendant’s direction. After those shots, Officer Leahy could
no longer see defendant, so he ran around the front of his car, and saw defendant on the ground
near the rear of Officer Francis’s vehicle. Officers Leahy, Seski, and Rizzo ran up to defendant,
who still had the gun in her hand. Officer Seski was able to kick the gun out of her hand, and
defendant crawled underneath Officer Francis’s car. The officers unsuccessfully attempted to
pull her out from underneath the car. Officer Leahy then got in the vehicle and moved it
forward approximately two feet until she was exposed, and the officers were able to handcuff
her.
¶ 28 Officer Seski testified that around 1:53 a.m. on July 2, 2008, a call came in from Officer
Francis that he had been flagged down for a bus disturbance at Belmont and Western Avenues.
Officer Seski and Officer Leahy were approximately a half mile away from that location and
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knew that Officer Francis was working alone, so they decided to go over to help. As they
approached, Officer Seski saw Officer Francis engaged in a struggle with defendant. As
Officer Seski began to open his door to exit the car, he heard a gunshot coming from the area of
the struggle. Officer Seski ran towards the shot to assist Officer Francis and saw defendant
raise her right hand over the trunk of Officer Francis’s vehicle with a gun in her hand.
Defendant pointed the gun at Officer Seski, who turned around and went back to the driver’s
side of Officer Rizzo’s car for cover. Officer Seski saw defendant in a crouched position,
holding the gun towards Officer Francis, and ordered her to drop the weapon. Defendant
looked up and pointed the gun at Officers Seski and Rizzo. At that time, Officer Seski fired at
the defendant eight times. Defendant “went down to the ground on her stomach” while still
holding the gun. Officer Seski “saw an opportunity,” so he ran towards defendant and kicked
the gun out of her right hand. Defendant then began to crawl underneath the vehicle, and the
officers were unable to apprehend her until Officer Leahy moved the car forward a few feet.
¶ 29 Expert testimony established that no suitable fingerprints were found on Officer Francis’s
revolver. The expert testimony also established that DNA samples were taken from the trigger
and hand grips of Officer Francis’s gun. The DNA profile taken from the trigger and hand
grips matched defendant’s DNA profile within a reasonable degree of scientific certainty. The
probability that the DNA profile would occur was approximately 1 in 3.4 quadrillion
African-American, 1 in 27 quadrillion Caucasian, and 1 in 560 quadrillion Hispanic unrelated
individuals.
¶ 30 Robert Berk, a trace evidence analyst for the Illinois State Police, testified that he
performed gunshot residue tests on both defendant’s and Officer Francis’s hands. He explained
that a “positive finding” on a person’s hand meant that the person has either “handled,
discharged, or been in the vicinity of a firearm [when] it was discharged.” In order to make a
“positive finding,” he needed to find three unique particles—lead, barium and
antimony—present on the sample, as well as a significant number of “consistent particles.”
¶ 31 If a sample had less than three unique particles, and not a significant number of consistent
particles, then it would be a “negative sample,” which meant that the person “may not have
discharged a firearm, may not have been in the environment of a firearm when it was
discharged, or may not have contacted an item that had primer gunshot residue on it.” He also
explained however, that a negative result could be caused if the particles were “removed by
activity, or not deposited, or *** not detected by the procedure.” Finally, if there were less than
three unique particles, but a significant number of consistent particles, the result would be
“inconclusive,” which Berk stated indicated that a person “had discharged a firearm, [was] in
the environment of a discharged firearm, *** contacted a primer gunshot residue related item,
or *** received the particles from an environmental or occupational source.”
¶ 32 Berk testified that he was able to indentify one unique particle on the samples taken from
defendant’s hands, but that there were a significant number of consistent particles present.
Accordingly, the test results were inconclusive. The sample taken from Officer Francis’s right
hand tested negative, and the sample taken from his left hand was positive for the presence of
primer gunshot residue. The parties stipulated that Officer Francis was right-handed.
¶ 33 John Flaskamp testified that he is a forensic scientist specializing in firearm and tool mark
examination at the Illinois State Police. In relation to this case, Flaskamp received a revolver,
three semi-automatic firearms, cartridge cases, and fired bullets. He determined that four
bullets were fired from Officer Francis’s gun. Flaskamp also testified that Officer Francis’s
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gun had two internal safeties—a “hammer block” and a “rebound slide”—both of which
stopped the gun from firing when the trigger was not pulled. The two safety mechanisms
would keep the gun from discharging accidentally, and the gun would not have gone off if
dropped. The only way to fire the gun was to pull the trigger.
¶ 34 Dr. Joseph Cogan testified that he was a medical examiner for the Cook County Medical
Examiner’s office and that he performed an autopsy on Officer Francis’s body on July 2, 2008.
Dr. Cogan testified that Officer Francis had a gunshot wound to the left eye, with a group of
lacerations around the entrance wound, indicating that he had been shot from close-range or
about “18 inches or less” away. The trajectory of this wound was consistent with Officer
Francis standing, and he had parallel abrasions on the rear of his head, indicating that his head
hit something as he fell. Officer Francis had two other gunshot wounds, one that entered the
abdomen and the other that went through the buttock. The gunshot which went through the
buttock had an exit wound in the center of Officer Francis’s back, with a large area of abrasion
that was consistent with Officer Francis’s body being against a hard surface, like a city
sidewalk. Dr. Cogan also testified that he recovered a bullet that had evidence of flattening on
one surface, which was consistent with Officer Francis lying on the ground at the time he was
shot.
¶ 35 On October 23, 2013, before the defense presented its case, defendant filed a motion for
reconsideration of the trial court’s decision to bar testimony regarding defendant’s seizures
and included an offer of proof as to the proposed testimony. Defendant described the proposed
testimony of defendant’s daughters Kyra and Kaulea and defendant’s boyfriend, Michael
Biggs, who would testify regarding defendant’s history of seizures. Kyra would testify that
“during her periods of seizures,” defendant would “become combative,” not recognize her
family members, and forget “her activities during the seizure and after seizures.” Kyra would
also testify that she saw defendant have three or four seizures on June 29, 2008, and that two
days later, she and defendant got into a “verbal confrontation” during which defendant
attempted to attack Kyra with knives from the kitchen before Biggs was able to take the knives
away from defendant. Defendant left, and Kyra called the police.
¶ 36 Biggs would also testify that he saw defendant have four seizures on June 29, 2008, and
that the next day he observed defendant “slurring her speech, speaking ‘backwards,’ ” and
referring to her grandchildren by the wrong names. On July 1, 2008, defendant was
complaining of pain, and Biggs called 911. After talking to the responding paramedic,
defendant’s demeanor changed “for the worse.” Defendant told Biggs to “go home,” and Biggs
“doubted that [she] knew who he was based on her behavior towards him” and her statements.
¶ 37 Defendant also indicated that the defense would call the Chicago police officers who
responded to Kyra’s 911 call on July 1, 2008, and paramedics who responded to calls and
encountered defendant on June 29, 2008, and July 1, 2008. Defendant also stated that she
intended to call various paramedics who responded to calls in 2004, 2005, and 2007, after
defendant reportedly suffered other seizures. Finally, defendant attached the evaluation of Dr.
Schuele, and testified that he would testify consistently with that evaluation. In the evaluation,
Dr. Schuele stated that the “reason for referral” was to determine whether defendant “lacked
substantial capacity to appreciate the criminality of her conduct due to a mental disease or
defect.” Dr. Schuele described the CTA surveillance video, and characterized defendant’s
behavior “in the four minutes before the shooting” as “odd, erratic, [and] ‘magnetic’ ***
without a clear purpose of her action.” The doctor stated that defendant “appear[ed to be] in an
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acute psychotic state” and that she did not “seem to understand the actions around her or to be
able to respond to them with any specific intention.” Dr. Schuele thus concluded that defendant
“at the time of the offense, lacked substantial capacity to appreciate the criminalityof [sic] her
conduct due to a mental disease or defect.”
¶ 38 On October 25, 2013, the court held a hearing on defendant’s motion. The trial court noted
that Dr. Schuele’s report contained the “types of things we typically see in an insanity defense,
but that’s not the defense here.” The trial court denied defendant’s motion for reconsideration,
finding that “all of this seizure testimony would only serve to confuse the jury.” The court
explained that if the “mental disease or defect *** would rise to the level of insanity, it
certainly then would become relevant. But without being able to say anything specific, he’d
only confuse the jury. *** Dr. Schuele maintain[ed] that she was capable of acting in a
volitional way. It is for the jury to decide whether she knowingly and intentionally performed
the acts which caused the death of Officer Francis.” The trial court clarified that the ruling was
regarding each and every witness, and that a number of the proposed witnesses were also “too
remote in time” when they would be testifying regarding events from years prior to the
incident.
¶ 39 Also outside the presence of the jury, the court held a hearing on the admissibility of the
testimony of Deputy Laura Mlinarcik, who had been assisting in the courtroom during jury
selection, opening statements, and the beginning of testimony. During the lunch break after
Debra Francis’s testimony, Deputy Mlinarcik heard defendant’s conversation with another
inmate, who asked defendant what she was in for. Defendant told the other inmate, “a police
murder,” to which the other inmate stated, “I f*** hate cops,” and defendant replied, “I’d do it
again.” The trial court found that the State could not introduce the conversation in their case in
chief but reserved ruling on whether the deputy could testify in rebuttal should defendant
testify.
¶ 40 The defense called Dr. Rebecca Rico, who was working at Illinois Masonic Medical Center
on July 2, 2008, when defendant arrived around 5:30 a.m. with multiple gunshot wounds.
¶ 41 Shawn Both testified that he was a paramedic with the Chicago Fire Department and that
he arrived at the scene at Belmont and Western in the early morning hours of July 2, 2008.
When he arrived, Both found defendant laying in the street with handcuffs on and covered in
blood. He asked her how she was doing and defendant looked at him and spit blood at him.
Defendant became physically combative, “kicking and being uncooperative,” as Both and
other responders attempted to secure her to a board in order to safely transport her to the
hospital.
¶ 42 Sandra Figueroa, a dispatcher for the American United Cab Company, testified that she
was working the overnight shift July 1 and 2, 2008 in an office at the intersection of Belmont
and Western. Around 1:30 a.m., Figueroa looked out of a window onto Belmont and saw
defendant stomping her feet and waving her hands in the air. Figueroa testified that defendant
was saying something, but she could not hear what it was. Figueroa then went back to her desk
to continue taking calls, and around 20 minutes later, she heard the sound of gunshots.
¶ 43 Victoria Pruszewski also testified that she worked for American United Cab Company and
that around 9:45 or 10 p.m. on July 1, 2008, as she was getting off the bus to go to work, she
saw defendant walking around and looking lost. After she got to work, Pruszewski saw
defendant more than five times while she was looking out the window. Pruszewski described
defendant as still walking around and looking lost on those occasions.
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¶ 44 The parties stipulated that when defendant arrived at the hospital after the incident, her
blood and urine were collected and sent to the toxicology lab. Defendant’s blood tested
negative for the presence of alcohol and her urine tested negative for the presence of
amphetamines, barbiturates, benzodiazepines, cannabinoids, cocaine metabolites, opiates,
phencyclidine, and methadone.
¶ 45 Prior to the defense calling their next witness, Donna Barney, the State informed the court
that it had previously learned that Barney was going to become homeless and without a
permanent address. Defense counsel had requested that the State make Barney available, and
in order to “facilitate her being available to both sides,” the State put Barney in a hotel. The
State argued that it did not believe that defense counsel was “intending to go into that,” but
such information would be “misleading to the jury because the only reason [the State] did that
[wa]s to make her available to both sides.” Defense counsel denied requesting that the State
make Barney available by providing her a hotel, and responded that the defense should be able
to impeach Barney, if necessary, with the fact that the State had been paying for her housing.
Defense counsel asserted that such information was relevant to her “bias, interest and motive.”
The trial court stated that it would not allow the defense to introduce such evidence as
impeachment because it should not “suggest *** that she is deriving some benefit from the
State of Illinois in exchange for testimony that the State isn’t even offering.”
¶ 46 The defense then called Barney, who testified that on July 2, 2008, shortly before 2 a.m.,
she was riding a CTA bus headed eastbound on Belmont. Barney got off the bus at Belmont
and Western Avenues to use the restroom at a gas station at that intersection. When Barney
started to cross Western, she felt pressing on the back of her body. She turned around and saw
defendant trying to get behind her. Defendant and Barney kept moving around each other, and
defendant held her own breast with one hand and said, “You made me this way.” Barney
turned around and went back to speak with the bus driver, and both Barney and the bus driver
said that they were going to call the police. When Officer Francis pulled up, Barney told him
that defendant would not leave her alone. She asked Officer Francis if she could leave to use
the restroom and then come back, and the officer told her not to “worry about it,” and that she
did not need to return. Barney started to walk away towards the gas station, then heard a
“scuffling” behind her. She looked back at the scuffle for a second, but Barney testified that
she could not recall the exact details of what was happening at the time of her testimony.
Barney acknowledged that she told the detective on the scene that she saw Officer Francis
appear to place defendant in a headlock with his arm, but she stated that at the time of her
current testimony she could not remember seeing the headlock. She agreed that if it was in the
detective’s notes, she had said it, but explained that she was “not trying to be difficult, but I’m
not remembering the specific headlock right now.” Barney saw a number of police cars
approaching, then heard a gunshot. Barney turned around and saw defendant with a gun in her
hand and Officer Francis falling to the ground. Barney then heard more gunshots, and she
crouched behind an unmarked squad car to avoid the gunshots. At some point, defendant
looked at Barney “in the eye,” and defendant pointed the gun in the direction of Barney and the
responding police officers.
¶ 47 The defense next called Detective Heerdt, who testified that he was the primary detective
assigned to the case. After the incident at approximately 3 a.m., Detective Heerdt spoke to
Barney, who told him that “Officer Francis appeared to place [defendant] in a headlock with
his arm.”
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¶ 48 After Detective Heerdt’s testimony, defendant informed the court that she did not wish to
testify on her own behalf and that she had discussed with her counsel, and agreed with, the
decision not to pursue the affirmative defense of insanity.
¶ 49 The parties proceeded to the jury instruction conference at which defense counsel
requested instructions on involuntary manslaughter. The trial court denied defense counsel’s
request, stating “I don’t believe there’s any evidence that would warrant the giving of a[n]
involuntary manslaughter instruction because I don’t believe that there is one of the four
physical or one of the four qualifying factors.” The trial court also found that “after reviewing
all of the evidence *** there are no actions that one would deem reckless based on the
testimony that I have heard from any witness. I’m not going to give an involuntary
manslaughter instruction.”
¶ 50 After closing arguments and deliberation, the jury found defendant guilty of the first
degree murder and disarming of Officer Francis, and the aggravated discharge of a firearm
towards Officer Rizzo. It acquitted defendant of the remaining attempted murder and
aggravated discharge counts. Defendant’s motion for a new trial was denied.
¶ 51 At sentencing, Debra Francis read a victim impact statement, describing the effect of her
husband’s murder on her and their two daughters. The State also submitted the incident report
from Deputy Mlinarick regarding the conversation that she overheard in which defendant told
another inmate that she was incarcerated for “killing a cop” and that she would “do it again.” In
mitigation, the defense noted that defendant had no prior criminal convictions. The defense
also introduced medical records, which indicated that defendant had expressed remorse or
sadness for what occurred on four occasions.
¶ 52 Defendant spoke in allocution, stating that she did not remember what happened during the
incident and that after her daughter told her that she had killed a police officer, defendant said
that she “d[id]n’t like police officers, but [she] d[id]n’t go around killing *** them.”
¶ 53 In imposing sentence, the trial court noted that, while defendant was not under the
influence of alcohol or drugs at the time of her arrest, her boyfriend had stated that “they had
binged” a few days before the incident. The trial court also stated that defendant’s stated
remorse was “certainly offset by what was heard by the deputy in the lockup” and by
defendant’s statement at sentencing that she did not like the police.
¶ 54 Although the only sentence available for defendant’s murder conviction was natural life,
the trial court stated that defendant “earned that sentence” and that her “actions warrant[ed]
that sentence.” The trial court sentenced defendant to natural life without parole for the first
degree murder of Officer Francis, 15 years’ imprisonment for aggravated discharge of a
firearm, to be served consecutively to the natural life sentence, and 4 years’ imprisonment for
disarming a police officer, to be served concurrently with her sentence for aggravated
discharge. Defendant’s motion to reconsider that sentence was denied, and defendant filed a
timely notice of appeal.
¶ 55 In this court, defendant raises a number of challenges to the judgment. First, defendant
contends that the trial court violated her constitutional right to present a defense when it barred
the proposed expert and lay testimony regarding her seizures and that she was in a “postictal”
state at the time of the offense. Defendant also argues that the trial court erred in refusing to
instruct the jury on involuntary manslaughter and in not allowing defense counsel to impeach
Barney about the State having provided for her housing. Finally, defendant contends that her
mandatory natural life sentence is unconstitutional. We will address each issue in turn.
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¶ 56 Defendant first contends that her constitutional right to present a defense was violated
when the trial court precluded her from presenting evidence of her medical condition,
including expert and lay testimony. Defendant contends that the excluded evidence was
necessary to show that she was not acting voluntarily at the time of the shooting and that she
lacked the requisite mental state for first degree murder and the other charged offenses. The
State disagrees, contending that the trial court’s exclusion of the proposed evidence was proper
where the evidence was being offered to prove defendant’s “diminished capacity,” a defense
which does not exist in Illinois.
¶ 57 As an initial matter, the parties disagree as to the appropriate standard of review pertaining
to this issue. The State contends that it is within a trial court’s discretion to determine the
admissibility of evidence and we should review the trial court’s decision to exclude the
proposed evidence for an abuse of discretion. Defendant acknowledges that the decision to
grant or deny a motion in limine generally will not be reversed absent an abuse of discretion,
but argues that the question of whether her constitutional right to present a defense is violated
is a purely legal issue that should be reviewed de novo.
¶ 58 A criminal defendant has a right to a meaningful opportunity to present a complete defense.
Holmes v. South Carolina, 547 U.S. 319, 331 (2006). Although the United States Constitution
prohibits the exclusion of defense evidence under rules “that serve no legitimate purpose or
that are disproportionate to the ends that they are asserted to promote,” well-established rules
of evidence permit trial judges to exclude evidence if its probative value is outweighed by
other factors, such as unfair prejudice, confusion of the issues, or potential to mislead the jury.
Id. at 326. A trial court has the inherent authority to admit or exclude evidence, and we review
a trial court’s decision to grant or deny a motion in limine pursuant to an abuse of discretion
standard. People v. Williams, 188 Ill. 2d 365, 369 (1999); People v. Garcia, 2012 IL App (2d)
100656, ¶ 17. In particular, “[d]ecisions of whether to admit expert testimony are reviewed
using this same abuse of discretion standard.” People v. Becker, 239 Ill. 2d 215, 234 (2010).
Accordingly, because defendant’s argument is really a challenge to the trial court’s exclusion
of the proposed evidence, we will review that decision for an abuse of discretion.
¶ 59 Abuse of discretion is the most deferential standard of review known to the law. People v.
Crane, 195 Ill. 2d 42, 50 (2001). A trial court abuses its discretion only when its decision is
arbitrary, fanciful, or unreasonable, or when no reasonable person would take the trial court's
view. Garcia, 2012 IL App (2d) 100656, ¶ 17. A reviewing court does not consider whether it
would have made the same decision if placed in the position of the trial court; rather, a
reviewing court considers whether the decision of the trial court was arbitrary, made without
conscientious judgment, or otherwise made in such a way that, “ ‘in view of all of the
circumstances, the [trial] court exceeded the bounds of reason and ignored recognized
principles of law so that substantial prejudice resulted.’ ” People v. Burtron, 376 Ill. App. 3d
856, 863 (2007); see also People v. Donoho, 204 Ill. 2d 159, 186 (2003) (“ ‘[R]easonable
minds [can] differ’ about whether such evidence is admissible without requiring reversal under
the abuse of discretion standard.”). The use of the abuse of discretion standard in matters
relating to the admissibility of evidence recognizes that a reviewing court owes some
deference to the trial court’s ability to evaluate the impact of the evidence on the jury. People v.
Illgen, 145 Ill. 2d 353, 375-76 (1991).
¶ 60 Defendant contends that the court erred in barring the expert testimony of Dr. Schuele
regarding his opinion that defendant was in a postictal period at the time of the offense and the
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lay testimony of defendant’s boyfriend, family members, and paramedics who interacted with
defendant on previous occasions, all of whom would have corroborated defendant’s “history of
epileptic seizures and prolonged postictal states, as well as her condition in the days before the
shooting incident.” She contends that such evidence was relevant to the determination as to
whether she acted voluntarily and her mental state. The State responds that the trial court
properly excluded the proposed evidence because defendant was essentially attempting to raise
the nonexistent defense of diminished capacity.
¶ 61 Defendant’s main contention on appeal is that the proposed evidence would have
demonstrated that her actions were not voluntary. A material element of every offense is a
voluntary act (720 ILCS 5/4-1 (West 2008)), and it is a fundamental principle that a person is
not criminally responsible for an involuntary act. People v. Grant, 71 Ill. 2d 551, 558 (1978).
“A cornerstone of the defense of involuntary conduct is that a person, in a state of automatism,
who lacks the volition to control or prevent his conduct, cannot be criminally responsible for
such involuntary acts.” Id. “Such involuntary acts may include those committed during
convulsions, sleep, unconsciousness, hypnosis or seizures.” Id. Here, however, there is no
question that defendant was not in the throes of a seizure. Instead, she claimed to have been in
a “postictal” state, during which she “wax[ed] and wane[d]” between volitional and “erratic”
behavior, according to her proposed expert.
¶ 62 We ultimately agree with the State that the evidence was properly excluded because it
amounted to a diminished capacity defense.
¶ 63 Diminished capacity is an affirmative defense that permits a “legally sane defendant to
present evidence of mental illness to negate the specific intent required to commit a particular
crime.” Metrish v. Lancaster, 569 U.S. 351 (2013); see also Black’s Law Dictionary 199 (7th
ed. 1999) (defining “diminished capacity” as, “An impaired mental condition—short of
insanity—that is caused by intoxication, trauma, or disease and that prevents the person from
having the mental state necessary to be held responsible for a crime.”). This defense is
recognized in some jurisdictions around the country; however, some jurisdictions, including
Illinois, have chosen to reject it. See People v. Hulitt, 361 Ill. App. 3d 634, 636 (2005); Clark v.
Arizona, 548 U.S. 735, 770-79 (2006) (holding that Arizona’s rule precluding the use of
diminished capacity evidence to negate the mens rea element in the absence of an insanity
defense did not violate due process).
¶ 64 As we discussed in Hulitt, 361 Ill. App. 3d at 640-41:
“The doctrine of diminished capacity, also known as the doctrine of diminished or
partial responsibility, allows a defendant to offer evidence of her mental condition in
relation to her capacity to form the mens rea or intent required for commission of the
charged offense. [Citation.] Similar to the insanity defense in that it calls into question
the mental abnormality of a defendant, it differs in that it may be raised by a defendant
who is legally sane.”
¶ 65 We find this case analogous to Hulitt, in which this court affirmed the trial court’s
determination to exclude evidence that the trial and appellate courts found amounted to raising
a diminished capacity defense. Specifically, in Hulitt, the defendant was charged with first
degree murder of her two-year-old daughter. Prior to trial, the defendant claimed that she did
not intend to raise an insanity defense, but instead wanted to raise a “reasonable doubt defense”
through the expert testimony of a psychologist showing that she suffered from postpartum
depression which left her “unable to appreciate the danger of her actions toward [her
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daughter].” Id. at 636. The State filed a motion in limine barring testimony from the
psychologist as to the defendant’s mental capacity, and the trial court granted that motion. Id.
at 636-37. The trial court found that the defendant was attempting to raise a diminished
capacity defense, which did not exist in Illinois. Id. at 636. On appeal, the defendant argued
that she was not attempting to claim diminished capacity; instead, she was attempting to show
that she did not have the requisite intent to commit first degree murder.
¶ 66 This court affirmed the trial court’s decision, concluding that “[d]efendant could not raise
[diminished capacity] as an affirmative defense and, therefore, should not be permitted to raise
it in the guise of a reasonable doubt argument.” Id. at 641. We explained that the doctrine of
diminished capacity allowed a defendant to offer evidence of a mental condition in relation to
the defendant’s capacity to form the intent required for commission of the charged offense. Id.
at 640. We described the defense as follows:
“Diminished capacity is considered a partial defense because it is not presented as an
excuse or justification for a crime but, rather, as an attempt to prove that the defendant,
because she was incapable of forming the requisite intent of the crime charged, is
innocent of that crime but likely guilty of a lesser included offense.” Id. at 641.
¶ 67 Despite defendant’s claims to the contrary, we find that, like in Hulitt, defendant’s
proposed evidence goes to the defense of diminished capacity, which does not exist in Illinois.
Id.
¶ 68 Specifically with respect to the proposed expert testimony of Dr. Schuele, we find that the
court did not abuse its discretion in choosing to exclude it. Our courts have held that the
defendant’s mental state is a question of fact to be determined by the trier of fact. Id. at 637.
Mental states “ ‘ “are not commonly established by direct evidence and may be inferred from
the character of the defendant’s conduct and the circumstances surrounding the commission of
the offense.” ’ ” Id. (quoting People v. Raines, 354 Ill. App. 3d 209, 220 (2004), quoting
People v. Adams, 308 Ill. App. 3d 995, 1006 (1999)).
¶ 69 When deciding whether to admit expert testimony, the trial court should balance the
probative value of the testimony against its prejudicial effect and should “carefully consider
the necessity and relevance of the expert testimony in light of the particular facts of the case
before admitting that testimony for the jury’s consideration.” People v. Lerma, 2016 IL
118496, ¶ 23. Relevant and probative testimony should be admitted, whereas misleading or
confusing testimony should not be admitted. People v. Anderson, 2017 IL App (1st) 122640,
¶ 78 (citing People v. Tisdel, 338 Ill. App. 3d 465, 468 (2003)). Moreover, expert testimony is
only necessary when the subject is both particularly within the witness’s experience and
qualifications and beyond that of the average juror’s, and when it will aid the jury in reaching
its conclusion, and expert testimony addressing matters of common knowledge is not
admissible unless the subject is difficult to understand and explain. Lerma, 2016 IL 118496,
¶ 23.
¶ 70 In the absence of an insanity defense, we agree with the trial court that the proposed
evidence would be irrelevant and serve only to confuse the jury. An expert may not give an
opinion supporting the doctrine of diminished mental capacity because, as we have previously
stated, that doctrine is not recognized in Illinois. See Hulitt, 361 Ill. App. 3d at 641. From our
reading of the record, it is apparent that defendant was attempting to circumvent the
requirements of pleading and proving an insanity defense, by instead claiming that her bizarre
behavior was indicative of her lacking the mental state necessary for first degree murder. In
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fact, the language used in Dr. Schuele’s evaluation was specifically tailored to an insanity
defense, concluding that defendant “at the time of the offense, lacked substantial capacity to
appreciate the criminality *** of her conduct due to a mental disease or defect.” See 720 ILCS
5/6-2 (West 2008). Defendant, however, ultimately chose not to pursue that defense.
¶ 71 Examining the testimony of Dr. Schuele, we note several statements that would have
confused and misled the jury, specifically regarding his opinion of the voluntariness of
defendant’s actions. In particular, Dr. Schuele testified that, in his opinion, at the time of the
offense, defendant was in a post-seizure state where she “showed signs of erratic behavior.” He
also believed that defendant was not “in complete understanding of the situation,” and that she
“fe[lt] threatened to an irrational degree,” describing her behavior as “paranoid and
delusional.” Dr. Schuele, however, was not a psychiatrist, and explicitly stated that he was not
making a psychiatric diagnosis. At no time during his testimony did Dr. Schuele state that
defendant’s actions in shooting Officer Francis were involuntary. He testified that she was
behaving “erratic[ly]” and “irrational[ly]”; however, erratic or irrational behavior does not
absolve defendant of responsibility for her actions. Dr. Schuele testified that a person is
capable of engaging in volitional actions while in the postictal state, and specifically described
the key actions in this case—holding and pointing a gun, and pulling the trigger—as
“volitional act[s].”
¶ 72 Dr. Schuele also never testified as to when defendant allegedly suffered the seizure that left
her in a postictal state at the time of the offense. There is no evidence that defendant had a
seizure on the day of the incident. There is some suggestion that defendant may have had a
seizure on June 28, 2008, or before, based on the handwritten note in her medical record from
June 29, 2008, that she had been “postictal” the day before and was “[n]ow feeling better.”
¶ 73 The significance of Dr. Schuele’s testimony is also questionable because his testimony
showed that his opinions were not based on a full and accurate understanding of the relevant
events. First, Dr. Schuele acknowledged that he viewed an incomplete surveillance video of
the incident, which did not include a full account of the events. Dr. Schuele also conceded that
he did not view Officer Francis’s autopsy report and testified that he did not recall that after
shooting Officer Francis three times, defendant hid behind a car and shot in the direction of the
responding officers.
¶ 74 Dr. Schuele also indicated during this testimony that the determination of whether an
action is volitional or erratic was something that another person could “probably judge *** as
[well] as” he could, describing certain actions that defendant engaged in prior to her encounter
with Officer Francis as erratic. Because Dr. Schuele admitted that defendant was capable of
both volitional and “erratic” acts while in a postictal state, and he effectively conceded that
expert testimony would not be needed to determine which of defendant’s acts were volitional,
Dr. Schuele’s proposed testimony was, admittedly, no longer in the realm where an expert
opinion is needed. See Becker, 239 Ill. 2d at 235 (“A trial court does not err in barring expert
testimony where the matter at issue is not beyond the ken of the average juror.”); Lerma, 2016
IL 118496, ¶ 23; Hulitt, 361 Ill. App. 3d at 638 (2005) (“The admissibility of psychiatric
evidence regarding a defendant’s intent or lack thereof, the ultimate issue in a murder
prosecution, depends on whether the expert is to testify to facts requiring scientific knowledge
not within the common knowledge of the jury.” (Internal quotation marks omitted)).
¶ 75 Additionally, Dr. Schuele’s opinion about defendant’s behavior was based in large part on
his observations of the surveillance video, specifically observing that she “mimic[ked]”
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putting money into the fare box and that she had her arms bent as she was following Barney.
Having observed the surveillance video, we conclude that it would be difficult for Dr. Schuele
to draw such conclusions from its viewing. The video is grainy and unclear, with much of the
action—particularly that occurring outside the bus—obstructed from view. In particular, this
court cannot determine whether defendant was “mimic[king]” putting money in the fare box.
We would also find it to be quite a leap to conclude that defendant’s later actions were
involuntary because defendant had her arms crossed and made a confusing remark to a bus
passenger, and Dr. Schuele provided no support for such a conclusion. See People v. Mitchell,
2011 IL App (1st) 083143, ¶ 80 (“An expert’s opinion is only as valid as the basis and reasons
for the opinion. [Citation.] A party must lay a foundation sufficient to establish the reliability
of the bases for the expert’s opinion.” (Internal quotation marks omitted)).
¶ 76 For all of the above reasons, we find no abuse of discretion by the trial court in excluding
the proposed testimony of Dr. Schuele.
¶ 77 In support of her contention that the proposed evidence would show that her actions were
involuntary, defendant cites a number of cases, including People v. Chmilenko, 14 Ill. App. 3d
270 (1973), People v. Nelson, 2013 IL App (3d) 120191, and People v. Martino, 2012 IL App
(2d) 101244.
¶ 78 The defendant in Chmilenko was a prisoner who was convicted of escaping from custody.
The parties stipulated that the defendant suffered from epilepsy, consisting of “ ‘periods when
the [defendant] continues to function physically and can walk and talk, but during which the
[defendant] lacks conscious awareness of what he is doing, lacks conscious intent to do what
he does, and lacks any recollection of what he did during the seizure.’ ” Chmilenko, 14 Ill.
App. 3d at 272. On appeal, the appellate court noted that unrebutted testimony at trial
established that the defendant suffered a seizure as he was being loaded into a transport from a
police station and that the police did not notice that the defendant had collapsed to the ground
and loaded the other prisoners in the transport, leaving the defendant behind. Id. at 271-72. No
evidence showed that the defendant had the intent to escape, but the testimony was that he had
a seizure, woke up, did not know where he was, and went to his home. Id. at 272. The appellate
court reversed the defendant’s conviction, finding the evidence that defendant had a seizure
tended to raise doubt as to his ability to form the specific intent required by the statute because
during a seizure, “ ‘the subject lacks conscious awareness of what he is doing, lacks conscious
intent to do what he does.’ ” Id.
¶ 79 Here, however, defendant was not in the midst of a seizure when she shot Officer Francis,
which could have rendered her actions completely involuntary like the actions at issue in
Chmilenko. Instead, the proposed evidence sought to show that she was in the postictal period
after a seizure, during which Dr. Schuele testified that she could engage in both volitional and
erratic behavior. As stated above, Dr. Schuele did not testify that defendant’s actions were
involuntary; instead, he testified that she was capable of engaging in volitional acts and,
specifically, that pointing a gun and pulling the trigger are volitional acts.
¶ 80 The other cases that defendant relies on, Nelson, 2013 IL App (3d) 120191, and Martino,
2012 IL App (2d) 101244, fare no better. In Nelson, the Third District Appellate Court
reversed the defendant’s conviction for telephone harassment because the “uncontroverted”
expert testimony at trial regarding the defendant’s Tourette syndrome showed that the
defendant acted pursuant to an “involuntary tic” and did not intend to dial the phone. Nelson,
2013 IL App (3d) 120191, ¶ 29. In Martino, the Second District Appellate Court reversed the
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defendant’s conviction for aggravated domestic battery, where the police tased the defendant,
and he fell onto his wife, breaking her arm. Because the defendant was “incapable of
controlling his muscles” as a result of being tased, “his act of falling on [his wife] and breaking
her arm was an involuntary act for which he cannot be held accountable.” Martino, 2012 IL
App (2d) 101244, ¶ 15. Unlike in these cases, there was no evidence that defendant was acting
“pursuant to an involuntary tic” or was “incapable of controlling h[er] muscles.”
¶ 81 For many of the same reasons, we also conclude that the trial court did not abuse its
discretion in excluding the proposed lay witness testimony from defendant’s family members,
boyfriend, and medical personnel who interacted with defendant on prior occasions. Like Dr.
Schuele’s testimony, the proposed lay witness testimony was, at best, relevant to a diminished
capacity defense. Additionally, none of the proposed lay witnesses were present at the scene of
the offense, and each could testify only to having interacted with defendant several hours to
four years prior to the incident. The testimony could have established, at most, that defendant
had prior periods where she behaved “erratic[ally]” following seizures, but it would not have
shown that she did not act voluntarily when she shot Officer Francis. Accordingly, we cannot
say that the trial court’s ruling on the State’s motion in limine was arbitrary, fanciful, or
unreasonable, and we find no abuse of discretion in excluding the proposed evidence.
¶ 82 Defendant next contends that the trial court erred in refusing to instruct the jury on
involuntary manslaughter. Defendant, citing People v. Consago, 170 Ill. App. 3d 982, 986
(1988), argues that the evidence supported that the jury could have found her actions merely
reckless based on the trial evidence because “the defendant’s discharge of a weapon during a
struggle is a well established form of reckless conduct.”
¶ 83 The parties disagree on the applicable standard of review for this issue as well. Defendant
cites People v. Washington, 2012 IL 110283, ¶ 19, to contend that the determination of
whether sufficient evidence exists to support the giving of a jury instruction is a question of
law subject to de novo review. However, as the State points out, our supreme court has since
clarified that holding, limiting it to the facts of that case, which “reviewed a question of law:
whether a second degree murder instruction must be given as a mandatory counterpart to an
instruction on self-defense.” People v. McDonald, 2016 IL 118882, ¶ 41. The supreme court
then went on to hold that “when the trial court, after reviewing all the evidence, determines that
there is insufficient evidence to justify the giving of a jury instruction, the proper standard of
review of that decision is abuse of discretion.” Id. ¶ 42. Accordingly, we review this issue for
an abuse of discretion.
¶ 84 “The offenses of involuntary manslaughter and first degree murder require different mental
states, such that involuntary manslaughter requires a less culpable mental state than first
degree murder.” People v. Jones, 219 Ill. 2d 1, 31 (2006). A defendant commits first degree
murder when “he kills an individual without lawful justification and he knows that his acts
create a strong probability of death or great bodily harm,” whereas a defendant commits
involuntary manslaughter when he “performs acts that are likely to cause death or great bodily
harm to another and he performs these acts recklessly.” People v. DiVincenzo, 183 Ill. 2d 239,
249-50 (1998) (citing 720 ILCS 5/9-1(a)(2), 9-3(a) (West 1994)). Recklessness is defined in
section 4-6 of the Criminal Code of 1961 as follows:
“A person is reckless or acts recklessly, when he consciously disregards a substantial
and unjustifiable risk that circumstances exist or that a result will follow, described by
the statute defining the offense; and such disregard constitutes a gross deviation from
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the standard of care which a reasonable person would exercise in the situation.” 720
ILCS 5/4-6 (West 2008).
¶ 85 In general, an instruction on a lesser offense is justified “where there is some evidence to
support the giving of the instruction.” DiVincenzo, 183 Ill. 2d at 249 (citing People v. Jones,
175 Ill. 2d 126, 132 (1997)). Specifically, an involuntary manslaughter instruction should be
given if there is some credible evidence in the record that would reduce the crime of first
degree murder to involuntary manslaughter. Id. (citing People v. Foster, 119 Ill. 2d 69, 87
(1987), and People v. Ward, 101 Ill. 2d 443, 451 (1984)). However, a manslaughter instruction
should not be given where the evidence shows that the homicide was murder, not
manslaughter. People v. Arnett, 217 Ill. App. 3d 626, 634 (1991) (citing People v. Simpson, 74
Ill. 2d 497 (1978)).
¶ 86 Although a defendant “is entitled to an involuntary manslaughter instruction if there is
‘slight’ evidence upon which a given theory could be based, there must be some evidence of
the reckless conduct.” People v. Eason, 326 Ill. App. 3d 197, 209 (2001) (citing People v.
Trotter, 178 Ill. App. 3d 292, 298 (1988)). The appellate court has held that
“[c]ertain factors may suggest whether a defendant acted recklessly and whether an
involuntary manslaughter instruction is appropriate: disparity in size and strength
between the defendant and the victim, the severity of the victim’s injuries, whether the
defendant used his bare fists or a weapon, whether there were multiple wounds, or
whether the victim was defenseless.” Id. (citing DiVincenzo, 183 Ill. 2d at 251).
Conversely, “Illinois courts have consistently held that when the defendant intends to fire a
gun, points it in the general direction of his or her intended victim, and shoots, such conduct is
not merely reckless and does not warrant an involuntary-manslaughter instruction.” (Internal
quotation marks omitted.) People v. Sipp, 378 Ill. App. 3d 157, 164 (2007).
¶ 87 While we agree that a gun discharging during a struggle may be indicative of recklessness,
there was no evidence in the record that would tend to show that the gun accidentally
discharged during a struggle. The evidence in this case showed that Officer Francis’s gun had
two internal safeties and could not fire unless the trigger was pulled. Additionally, there was no
evidence presented that would tend to show that defendant and Officer Francis were struggling
over the gun itself. Instead, the witnesses who saw the struggle at the time of the initial gunshot
testified that Officer Francis was getting up from the ground and holding his open and empty
hands by his face when defendant fired the gun. The evidence also showed that defendant shot
Officer Francis two more times after the initial gunshot, and there was evidence that Officer
Francis was on the ground at the time of those gunshots based on abrasions on his back and
“flattening” on one of the bullets. There was also evidence that defendant then shot at the
responding officers, and tried to hide under Officer Francis’s vehicle to evade apprehension.
This context to the offense belies any suggestion that defendant’s actions were merely
“reckless” or that defendant accidentally shot Office Francis during a struggle.
¶ 88 In these circumstances, we find no evidence from which the jury could have found
defendant’s conduct to be merely reckless. Given the evidence that was presented in the trial
court, we conclude that the trial court did not abuse its discretion in denying defendant’s
request for an instruction on involuntary manslaughter.
¶ 89 Defendant next contends that the trial court erred in refusing to allow defense counsel to
impeach witness Donna Barney regarding the State having paid for her to stay in a hotel so that
she could be available for trial. She specifically asserts that where Barney “recanted her
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pre-trial statement that she saw Officer Francis put [defendant] in a headlock, it was unfair to
deny the defense the opportunity to elicit a potentially pro-State bias.”
¶ 90 On questions of the admissibility of evidence, we will not substitute our judgment for that
of the trial court unless the record clearly shows the trial court abused its discretion. People v.
Cookson, 215 Ill. 2d 194, 213 (2005) (citing Ward, 101 Ill. 2d at 455-56). As stated, an abuse
of discretion occurs “only where the [trial court’s] ruling is arbitrary, fanciful, or unreasonable,
or where no reasonable person would take the view adopted by the trial court.” (Internal
quotation marks omitted.) People v. Phillips, 392 Ill. App. 3d 243, 272 (2009).
¶ 91 As defendant points out, the credibility of a witness may be attacked by any party,
including the party calling the witness. Ill. S. Ct. R. 238 (eff. Apr. 11, 2001). The confrontation
clause of the sixth amendment of the United States Constitution (U.S. Const., amend. VI)
guarantees a defendant the right to cross-examine a witness against him for the purpose of
showing the witness’s bias, interest, or motive to testify falsely. People v. Harris, 123 Ill. 2d
113, 144 (1988) (citing Davis v. Alaska, 415 U.S. 308 (1974)). The confrontation clause,
however, does not prevent the trial judge from imposing limits on defense counsel’s inquiry
into potential bias of a witness, and a trial judge retains wide latitude to impose reasonable
limits on such cross-examination based on concerns about harassment, prejudice, confusion of
the issues, the witness’s safety, or interrogation that is repetitive or of little relevance. People v.
Kliner, 185 Ill. 2d 81, 134 (1998) (citing Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986),
and Harris, 123 Ill. 2d at 144). As the United States Supreme Court observed in Delaware v.
Fensterer, 474 U.S. 15, 20 (1985), “the Confrontation Clause guarantees an opportunity for
effective cross-examination, not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.” (Emphasis omitted.) “[P]otential limitations on a
defendant’s right to cross-examine a witness as to bias, interest or motive to testify falsely are
clearly rooted in the relevancy concepts of materiality and probative value.” People v. Green,
339 Ill. App. 3d 443, 455 (2003). While a defendant in a criminal prosecution has the right to
cross-examine a witness regarding her bias, interest, or motive to testify falsely, the evidence
used to impeach the witness must give rise to the inference that the witness has something to
gain by her testimony. People v. Leak, 398 Ill. App. 3d 798, 822 (2010) (citing People v. Sims,
192 Ill. 2d 592, 624-25 (2000), and People v. Triplett, 108 Ill. 2d 463, 475-76 (1985)). Thus,
the evidence used to establish bias must be timely, unequivocal, and directly related and may
not be remote or uncertain. Id. (citing Sims, 192 Ill. 2d at 625). Evidence that is not relevant
and that would only confuse or mislead the jury is also properly excluded. People v. Averhart,
311 Ill. App. 3d 492, 500 (1999). Moreover, the improper denial of a defendant’s constitutional
right to cross-examine a witness regarding bias does not always mandate reversal, but may be
found to be harmless error. See Kliner, 185 Ill. 2d at 134 (citing Van Arsdall, 475 U.S. at 684).
¶ 92 Initially we disagree with defendant’s characterization of Barney’s trial testimony as
“recant[ing] her pre-trial statement” about the headlock. Barney testified that at the time of her
testimony—more than five years after the incident—she could not recall the exact details of
what was happening when she looked back at defendant and Officer Francis. She
acknowledged that she told the detective on the scene that she saw Officer Francis appear to
place defendant in a headlock with his arm, and agreed that if it was in the detective’s notes she
said it, but testified that she did not have a specific recollection of the headlock at the time of
her testimony. In these circumstances, Barney’s trial testimony cannot fairly be described as a
“recantation,” but rather a lapse in memory.
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¶ 93 The State contends that the proposed impeachment regarding Barney’s housing was
properly excluded as it would have “open[ed] an irrelevant line of inquiry that would have led
to further complications and confusion.” It asserts that the fact that it paid for Barney’s hotel
“did not give rise to an inference of bias where it was not given in consideration of her potential
testimony, but rather to make her available for the defense.” (Emphasis in original.) Defendant,
however, argues that the defense did not ask the State to provide housing to Barney, and
merely asked that she be made available for “an interview,” which, defendant claims, “could
have been done without providing any housing at all.” Defendant, however, did not specify
before the trial court, or this court, how Barney could have been made available either for an
interview or for trial short of providing her with temporary housing.
¶ 94 In these circumstances, we find no abuse of discretion by the trial court in concluding that
the proposed impeachment could confuse or mislead the jury, and in refusing to allow it. Given
the wide discretion afforded to the trial court on questions of the admissibility of evidence, we
do not find the trial court’s ruling to be arbitrary, fanciful, or unreasonable. Phillips, 392 Ill.
App. 3d at 272.
¶ 95 Nonetheless, even if we were to find any error in the trial court’s restriction, we would find
such error to be harmless. The only change in Barney’s testimony that defendant contends
could have been motivated by a “pro-State bias” is Barney’s failure to remember her prior
observation of a headlock. Although the trial court did not allow impeachment on this issue
based on Barney’s housing, defendant was allowed to impeach Barney through the use of her
prior inconsistent statement. In fact, immediately following Barney’s testimony, defense
counsel called Detective Heerdt, who testified and confirmed that, during his interview with
Barney after the incident, she told him that Officer Francis appeared to put defendant in a
headlock with his arm. Accordingly, defendant was given sufficient opportunity to effectively
impeach Barney’s testimony, even if it was not “in whatever way, and to whatever extent” she
wished. See Fensterer, 474 U.S. at 20.
¶ 96 Defendant disagrees, arguing that “the fact that the defense proved up this one prior
inconsistent statement did nothing to even hint at the broader point of bias.” However, as
pointed out above, defendant has pointed to no other statement or testimony by Barney that
allegedly was motivated by a “pro-State bias” as a result of her being provided with temporary
housing. In these circumstances, we find that any alleged error in disallowing the proposed
impeachment was harmless beyond a reasonable doubt.
¶ 97 Finally, defendant contends that the statute mandating a natural life sentence for the first
degree murder of a peace officer conviction is unconstitutional as applied to her. Defendant
argues that the mandatory life sentence violates the United States and Illinois Constitutions
because it precluded any consideration of mitigating factors, including her medical condition
as described above, her lack of prior convictions, and her “advanced age.” Defendant raises an
as-applied constitutional challenge, which is a legal question that we review de novo. People v.
Fisher, 184 Ill. 2d 441, 448 (1998).
¶ 98 The eighth amendment, applicable to the states by the fourteenth amendment (see
Robinson v. California, 370 U.S. 660, 666 (1962)), provides that “[e]xcessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” (U.S.
Const., amend. VIII). Additionally, article I, section 11, of the Illinois Constitution of 1970
provides that “[a]ll penalties shall be determined both according to the seriousness of the
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offense and with the objective of restoring the offender to useful citizenship.” Ill. Const. 1970,
art. I, § 11.
¶ 99 All statutes carry a strong presumption of constitutionality and “the party challenging the
statute bears a heavy burden of clearly establishing its constitutional infirmities. [Citation.]
Any reasonable construction which affirms a statute’s constitutionality must be adopted, and
any doubt regarding a statute’s construction must be resolved in favor of the statute’s validity.”
People v. Morgan, 203 Ill. 2d 470, 486 (2003). We generally defer to the legislature in the
sentencing arena
“because the legislature is institutionally better equipped to gauge the seriousness of
various offenses and to fashion sentences accordingly. [Citation.] The legislature’s
discretion in setting criminal penalties is broad, and courts generally decline to overrule
legislative determinations in this area unless the challenged penalty is clearly in excess
of the general constitutional limitations on this authority.” People v. Sharpe, 216 Ill. 2d
481, 487 (2005).
¶ 100 Section 5-8-1(a)(1)(c)(iii) of the Unified Code of Corrections (Code) (730 ILCS
5/5-8-1(a)(1)(c)(iii) (West 2008)) mandates a sentence of natural life imprisonment for an
adult offender when he or she is
“found guilty of murdering a peace officer *** when the peace officer *** was killed in
the course of performing his official duties, or to prevent the peace officer *** from
performing his official duties, or in retaliation for the peace officer *** performing his
official duties, and the defendant knew or should have known that the murdered
individual was a peace officer.”
¶ 101 Defendant, citing People v. Miller, 202 Ill. 2d 328, 338 (2002), argues that this statute
violates the Illinois proportionate penalties clause as applied to her because the punishment “is
cruel, degrading, or so wholly disproportionate to the offense committed as to shock the moral
sense of the community” in light of her mitigating circumstances. She acknowledges that the
offense was “serious and tragic” but contends that it was “not so abhorrent that it warrants the
automatic imposition of the most severe sentence in Illinois.”
¶ 102 As our supreme court has “repeatedly recognized,” the legislature “has the power to
prescribe penalties for defined offenses, and that power necessarily includes the authority to
prescribe mandatory sentences, even if such sentences restrict the judiciary’s discretion in
imposing sentences.” People v. Huddleston, 212 Ill. 2d 107, 129 (2004). “The rehabilitative
objective of article I, section 11, should not and does not prevent the legislature from fixing
mandatory minimum penalties where it has been determined that no set of mitigating
circumstances could allow a proper penalty of less than natural life.” People v. Taylor, 102 Ill.
2d 201, 206 (1984).
¶ 103 As relevant to this case, the legislature has determined that the seriousness of the offense of
murdering a police officer mandates a sentence of natural life imprisonment, such that “no set
of mitigating circumstances” could properly allow for a lesser penalty. Id. This court has also
noted that a statute that punishes more severely those persons who murder, or attempt to
murder, a peace officer in the line of duty is justified because it serves a more specific purpose
than simply deterring people from unlawfully killing. People v. Henderson, 354 Ill. App. 3d 8,
16 (2004) (citing People v. Hill, 199 Ill. 2d 440, 458 (2002)). Specifically:
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“Police officers play a vital role in our society. The demands of their position regularly
place officers in potentially violent and dangerous situations. The need to protect these
officers and to punish more severely those who interfere with their duties is a
determination that the legislature is in a better position than this court to make.” Id. at
18.
¶ 104 We also note that defendant’s contention that a mandatory life sentence is
unconstitutionally disproportionate in light of the mitigating circumstances is undermined by
the record of the sentencing hearing, which suggests that the trial court would have imposed
the same sentence, even if it had discretion. The record shows that, despite the mandatory
sentencing scheme, the trial court reviewed the mitigating circumstances and determined that
defendant had “earned” a natural life sentence and that her actions “warrant[ed] that sentence.”
¶ 105 In light of the above, we conclude that defendant’s mandatory sentence of natural life for
murdering a police officer does not shock the moral sense of the community and does not
violate the proportionate penalties clause of the Illinois Constitution as applied to her. See
People v. Ybarra, 2016 IL App (1st) 142407, ¶ 30.
¶ 106 Based on the foregoing, we affirm the judgment of the circuit court.
¶ 107 Affirmed.
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