Assume in each of the following fictional cases that the evidence was properly preserved, and that all appropriate pre-trial motions have been heard and ruled on.
All of the facts in the Statement Of Facts could be admitted.
The Trial of:
A Violent Crime
People vs Max Baroni
Statement Of Facts:
Michelle Johnson is a 22 year old mother of one. Her six month old child lives with her in a single family home at 222 Lansing in Lombard, Illinois. Until July 2, 1997 her boyfriend, Max Baroni, resided with them. Max and Michelle dated on and off for four years. They began renting the house in January of 1997 in preparation of the birth of their child. Both of their names appear on the lease for the home.
They have a history of domestic violence contacts with the Lombard Police Department resulting in both their arrests on different occasions. Max is currently on misdemeanor probation in DuPage County for a domestic battery committed July 2, 1997 against Michelle. All the previous arrests were resolved by either Max or Michelle failing to appear in court and the cases being dismissed. There is an active order of protection against Max on behalf of Michelle and their child as a result of his domestic battery conviction. the order of protection precludes Max from entering or remaining at the Lombard residence or having any contact of a harassing or intimidating nature with Michelle.
On August 2, 1997 at 1:30 a.m. Max left a local tavern and headed for the house at 222 Lansing. He had been out of the house since the last incident of domestic battery and living with a friend. He worked until midnight at a local factory and left immediately after his shift that evening. At 2:00 a.m. Max arrived at the home and parked his truck in front of the residence. He entered the home with a set of keys that he had kept from before Michelle had thrown him out of the home. Upon Max entering the residence, Michelle work up and began screaming at him to leave.
The police drive up, in response to a neighbor’s phone call that Max has returned and that yelling ensued. Max’s pick-up is out front. As the police get out of their cars, yells are coming from the house but, other than being that of a man and woman, are indecipherable.
Then two gunshots are heard from inside the house, and the back door of the house being slammed.
Police immediately call for back-up and take cover.
Eventually the police get inside Michelle’s house. The furniture is cheap and the house is messy — clothes lie everywhere, junk is strewn about. The kitchen is the main scene, however . . . it shows signs of a struggle. One end of the table has been pushed against the wall. One chair is on its side. At least 2 dishes are broken. A half-empty can of beer, still cold, is on the kitchen table. A cat food dish is overturned; cat food is scattered on the floor. The silverware drawer is open, and a carving knife lies on the floor nearby.
A bullet hole is plainly visible in the center of the ceiling; another is in the back door. Later checking shows bullet marks on the dishwasher and wall next to the back door.
Michelle, alcohol on her breath, is kneeling by the carving knife. She is naked. She tells the police that Max entered, apparently with his own key, and she ordered him out. He then grabbed her, threw her on her bed, and raped her. (the bed sheets and covers are in disarray.) He got off her and went into the kitchen; she heard him open the refrigerator and open a can of beer. She ran into the kitchen and screamed at him to get out. He yelled he was going to see the baby, and she yelled to stay away from it, to get out and to never come back. He then pushed her into the table and yelled, "If I can’t have you, nobody can," whipped a small gun out of something by his ankle and fired at her several times. She covered up, heard him go by her to the back door, and saw him run out the back.
Forensics show a flurry of fingerprints of both Max and Michelle about the kitchen. Michelle’s prints are found on the knife. No prints are found on the can of beer.
Max, for his part, has vanished. His pick-up truck is left in front of the house. He is ultimately arrested the next day in a White Hen Pantry, is given his Miranda warnings, and refuses to speak. He has a .22 caliber, semi-automatic in an ankle holster, missing two rounds.
Max is indicted for First Degree Attempted Murder, and Aggravated Criminal Sexual Assault.
Later, Michelle tells the police that she may have grabbed the carving knife out of the drawer after Max threw her against the table. She can’t remember. She also says that, to her knowledge, Max never carried a gun. She cannot identify the gun he shot at her with.
The prosecution perspective is represented in bold faced type. A two person team will defend Max Baroni.
The defense team offers two perspectives. Defense attorney number one is represented in italic type and defense attorney number two in regular type.
Motions in Limine by Defense
1. The main one here is to keep out Max’s prior conviction for domestic battery and current probation status. They have nothing to do with Max’s credibility and strongly go to propensity. Arguably, though, I’ll open the door to this evidence when I bring up Michelle’s prior attacks on Max. Still, I’ve got to make this motion and see how much latitude the Court will give me. I would also try to keep out evidence of the outstanding Order of Protection, which suggests that Max is a dangerous man who needs to be kept away from Michelle (obviously not the kind of image I want in a consent case). I would try to keep out evidence of past arrests of Max that didn’t result in a conviction (i. e., that Michelle didn’t come to court. Max will want this-evidence in, as it shows she’s constantly accusing him of crimes; my fear, though, is that the jury will interpret it that Max repeatedly intimidated Michelle to not go to court.
2. I need to address Michelle’s opening words to Officer Jones, which the State will want to introduce as an excited utterance. If those wards are "He raped me", or the like, then my grounds to exclude them are that sine the shooting came afterwards, so much time had passed since the sex act that Michelle had time to reflect. If it’s "He tried to kill me ", the grounds are that she can’t speak about the state of Max’s mind. If it’s "He shot at me", then I’ll live with it. . . after all, I’m not disputing it.
If it’s a somewhat lengthy statement, the argument becomes that, at some time in the statement Michelle began reflecting. Maybe the first part of her statement will he admitted and the last will not. If so, I’ll need to bring out on cross those parts of the physical evidence that contradict the admitted position (along with a lot of "harmless" physical evidence, so as not to tip my hand).
State's Opening Statement
The opening statement is a critical moment for the prosecution. Here the jurors are introduced to the case based upon the content and delivery of the prosecutor. While great attention is often given to preparing the content of the opening statement, the prosecutor must, likewise, polish his skill of delivery. The objective should not be to spill out every detail of the crime, but more to present the jury with a big persuasive picture.
The purpose and scope of legitimate opening statement is set out in United States v. Dimitz 424 U.S. 600 (1996).
"It is to state what evidence will be presented, to make it easier for the jurors to understand what is to follow, and to relate parts of the evidence and testimony to the whole; it is not an occasion for argument. To make statements which will not or cannot be supported by proof is, if it relates to significant elements of the case, professional misconduct. Moreover, it is fundamentally unfair to an opposing party to allow an attorney, with the standing and prestige inherent in being an officer of the court, to present to the jury statements not susceptible of proof but intended to influence the jury in reaching a verdict."
The State’s opening statement will stress the sequence of violent acts perpetrated against Michelle Johnson, and how none of these things were under her control or by her own doing. She is a young mother attempting to make a new life for herself and her child after the end of a turbulent and destructive relationship with the defendant. While the defendant would not be indicted for the misdemeanor offense of violation of an order of protection, that order’s existence should allow the State to describe for the jury how the defendant was ordered from the residence, and how a court in this county had found it advisable to provide for the protection of Michelle and her daughter. It should be driven home to the jury that the defendant came to the house and entered uninvited. The defendant was ordered out by Michelle and he violently sexually assaulted her, and ultimately it was the defendant who stated, "If I can’t have you, nobody can," before attempting to take Michelle’s life.
Each piece of physical evidence which supports this theme should be alluded to during the opening statement. If the doctor is going to testify that Michelle suffered defensive wounds and sexual trauma consistent with her version of the crime, the jury should know. It makes it that much more difficult for the defense to present their theory after you have finished your opening. Along with corroboration of the sexual attack, the State would also describe any ballistic testimony and evidence reconstruction that will support the attempt murder charge. It is enough to tie the bullet to the weapon found on the defendant as the expert will explain the processes through which this is done to the jury during your direct examination. The same would hold true for any trajectory evidence that would indicate in what direction the defendant fired the gun.
Contrary to popular opinion, defenses can be anticipated and subtly attenuated without being dwelt upon. Assuming medical evidence supports the fact that sexual penetration occurred, it would be wise to expect the consent defense in relation to the sexual assault. Any evidence in the bedroom, on the bed, or on the victim that suggests a struggle or physical conflict took place must be highlighted. Michelle’s fingerprints on the knife found in the kitchen will also offer a potential self-defense claim by the defendant in relation to the attempt murder charge. The angles of the two shots fired from the .22 and where they first hit within the kitchen could be crucial to persuading the jury as to what the defendant’s intentions were when he fired.
Tell the story without being rigid. The facts of this case suggest that the jury will be hearing some technical testimony from expert witnesses. Do not use language which is foreign to the jury in opening statement. As an example: "At this point and time, she then and there decided to try for facial recognition of the defendant-assailant, so that subsequent to this event, she could identify the perpetrator." or, "He then exited his OPV - official police vehicle - and proceeded in the direction of the apartment complex, keeping a watch out for possible subjects meeting the description of the subject-assailant."
Speaking to the jury in this manner will almost certainly bore them. There is no reason we can’t tell this jury about the crime committed against Michelle Johnson in plain language.
Finally, make sure the jury knows this case is real. They are probably serving on a jury for the first time in a setting that is wholly unfamiliar to them. Coupled with the judge and the lawyers it can sometimes begin to seem a little unreal. Don’t let them forget that Michelle Johnson lives in their town, shops at their stores, and went to their hospital for treatment. For the State’s opening to make its greatest impact the jury must know Michelle Johnson is a citizen just like them who was victimized by the defendant for no other reason than "he wanted to".
Defense Opening Statement
My opening statement in this type of case would be very bare bones. This is a case with tremendous factual possibilities, and there is no way of knowing at the time of opening all the facts that will come out despite all the police reports, discovery, photographs, investigations, and so on. I would tell the jury that the prosecution’s own evidence will show that Max is innocent - that Max and Michelle each consented to have sex with the other, and that later on, Max, in fear, shot at Michelle when Michelle, in a drunken rage, tried to stab him.
In direct, I would give a "phantom" opening here - I would give a clear, concise opening, no histrionics, no flamboyance (the latter will come in a close), no games. I will do this to avoid losing credibility if the facts change and to avoid tipping the prosecution to the facts that I think are important. The big issues will suffice, as will the obvious facts.
(As an ace in the hole — if I don’t like my jury, I can wait for the State to front in their opening statement that Max and Michelle have a child together. I can then move for a mistrial. According to our "Rape Shield Statute ", only the accused can offer evidence of his prior sexual contacts with the victim on the consent issue, 725 ILCS 5/115-7(a)(1), and the State will have just violated this.)
Defense Opening Statement
If it is the purpose of the State to sow the seeds of a good prosecution, then it is the purpose of the defense counsel to sow fast-growing weeds in State’s beautifully planned garden.
It is important for the jury to feel the defense counsel is being honest with them, giving them the impression that he will just tell them the truth, whether it hurts his client or helps his client. Often if the jury likes the defense counsel, they will want to find the client not guilty. To start with a statement that is not flattering to your client will help the jury to accept facts that you feel are flattering to him - crucial facts that will block the State’s efforts to secure a conviction.
"Max violated the order of protection when he went to his home that evening. I am his lawyer but I must be honest and speak the truth. He admits it and he will take the consequences of his actions. But the facts will also show that he did not rape or try to kill Michelle who he loves. He was standing right next to her in the kitchen. If he had wanted to shoot Michelle, he would have shot her. He was so close he could not have missed. The bullet holes were in the ceiling and back door, not in Michelle. There were no marks on Max to show Michelle had struggled against this alleged rape. But you will hear facts about Michelle’s history of violent and bizarre behavior. And you will hear the police testify to evidence that she had been drinking that evening."
This technique is to try and implant in the mind of the jury that a man who is willing to admit to one crime, would also admit to other crimes if he committed them. It’s a subtle opportunity for the jury to "reward" Max’s honesty in admitting one crime by "absolving" him of the more serious charges that he denies.
Presentation of State's Case
Direct examination is dubbed by many as one of the most boring and least challenging phases of a trial. The truth is, however, that direct examination, especially by the prosecution, is the most important phase of the trial. In short, you have exclusive control.
A trial is much like a movie in that every witness has a role. As prosecutor, you organize and decide what role each person will play. An effective direct is one that is carefully choreographed to emphasize the role of the witness.
Direct Examination of Michelle
Michelle Johnson is your victim, and will play the lead role. She was victimized, she was injured, she was the one who had described this crime to the police. Therefore, she must make a lasting and favorable impression on the jury.
Michelle can begin by introducing herself and then identifying the defendant. Next, each and every physical movement of the defendant upon his entry into the apartment should be recounted. Specific detail as to how the defendant restrained her and forced sexual acts upon her are crucial to the jury understanding our case. The more real Michelle can bring this home to the jury, the better. Details as to what she said, how she felt and what she was thinking can have great impact on a jury. If photographs were taken of her injuries on that night, she should identify them for the court and describe the jury. The physical positioning of Michelle and the defendant within the kitchen will be extremely important to the attempt murder charge. All that she can remember about who stood where, and when is helpful. She should describe the gun, if possible, and the position of his arm when she heard it go off. A diagram of the apartment could be used to show the jury her position in the kitchen when she "covered up", and where the bullets were later found.
The State would have to address obvious cross examination points on direct with Michelle. If she drank earlier in the evening she will describe exactly what, how much and whether she was affected by it. If she grabbed the knife to defend herself it should be pointed out on direct examination. To have these facts be heard by the jury for the first time on cross examination would be senseless and appear that there was something to hide. If consent is a potential defense to the sexual assault charge, it would be helpful to have Michelle tell the jury if any "rough" sex had been part of her physical relationship with the defendant. Even doing this does not insure that the defense won’t raise an issue on cross that was either unpredicted or unknown to you. In that case a decision must be made to leave the issue alone as it wasn’t that damaging or attempt to clarify any confusion. To finish, leave the jury with the only statement we can attribute to the defendant at this point, "If I can’t have you, nobody can."
Cross Examination of Michelle
This, of course, is the case. How believable is Michelle? How is she dressed? What do her mannerisms and body language tell me? Will she be out to destroy Max? Is she articulate? Is she honest?
Hopefully, Michelle will have spoken to me or my investigator before trial. (If she refused, I’ll use her refusal as a subject for cross.) I should have a sense of how spiteful a person she is before trial. I can’t wait for trial to develop that knowledge.
I need to show that Michelle is lying not mistaken, but outright lying. I won’t start off with this however, as she may be a sympathetic witness and because I need her to help me first. I can’t attack a witness who I need help from until they’ve given me that help.
I’ll start off by bringing up the nature of their relationship; how they met, how they dated, their good times together, their romance together, the fact that they had a child together. I’d bring up that they’d argued in the past, had troubled times, and always got back together. I’d bring up that she knew Max had a key to the house. (All this goes to consent.)
I’d then move into the past times she’d struck or attacked Max. If she denies it, I’ll need Max to prove it up or, better yet, the police officer(s) who took any statements she made when she was arrested. If I could, I would try to show that the severity of Michelle’s attacks on Max increased over time.
Then I’d discuss the night in question. I’d bring up how much she‘d had to drink, knowing that I can impeach her, if needed, by her blood alcohol content from the hospital and by the number of cans and bottles the evidence technicians found in her trash.
Only then would we reach the issues of Max. She, of course, will deny consenting to having sex with Max. Still, I need to ask, if only to show the jury that I’m not afraid of her answer.
I’d then address the knife. I’d bring up the dangerousness of the knife (and show it to the jury) and emphasize that she chose this knife, as opposed to the smaller -and less dangerous ones — that she also had. I’d emphasize that she raised the knife while Max was unarmed. If she disagrees, I’d bring up the clear ridiculousness of defending oneself with a knife while the assailant has a gun, and see how far I can carry that. Hopefully, she’ll become evasive, or better yet, argumentative and defensive.
That’s probably as far as I can take her. I’d finish up with her convictions, if any, relating to her lack of credibility.
Cross Examination of Michelle
In a sexual assault case, I find that it is always better to depict the alleged victim as one having many personal and psychological problems, one to be pitied, rather than an evil person who should be scorned. It is easier to invoke the sentiment of pity, as if this woman cannot really help herself when she fabricates these lies about her former lover. To try to invoke hatred on the part of the jury is much harder, and the possibility of a backlash is much greater.
Preliminary questions asked in a subdued tone, with answers that don’t seem distasteful to the witness, can lull her into a sense of security: You had had a hard day? You had something to drink to calm your nerves, isn’t that true? You and Max had many beautiful plans for the future when you leased this house? And you had many beautiful plans for your baby’s future? But now that’s all gone, because of Max’s behavior in the past? And that has made you sad? And that has made you angry? And because of his behavior, you have even done a few things to him that you wish you hadn’t done, right?
After you have been able to show the jury a woman who might have reasons, legitimate or imagined, to dislike Max and want to see him in trouble, the second phase of the questioning should be devoted to the actual sequence of events on the night in question. Attempt to show, by bringing that small kitchen into the jury’s mind, that her story cannot be true. It is the story of an angry woman.
Start with the sexual assault. She testified that when she awoke she started screaming and the neighbors called the police. So how many seconds or minutes did she scream prior to the police arriving? Most people tend to exaggerate time sequences, often unintentionally. I’d have her admit that her initial time estimates were exaggerated, and thus cannot be relied on. Did she fight and scream during the rape? Use the time element to show the jury that a rape could not have happened that fast. She testified that he was going to see the baby after he had raped her. Does that seem consistent with what a person would do after he raped someone who is now screaming her had off, calling for the police?
Ask her about the kitchen. Bring that small kitchen into the jury’s mind. As she sits on the stand, approach her and have her tell you to stop when you are as close to her as Max was when he allegedly fired the shots. Then raise your hand as if you were pointing a gun so that the jury can see how much closer the gun would have been to her, showing them that if Max intended to shoot her, he would have succeeded. Show how unreasonable her story is when contrasted to the actual physical facts that she has testified to before the jury. And when she answers your questions, have a bewildered look on your face, to show how honestly you are trying to believe her, but how the facts don’t support her testimony.
Direct Examination of Reporting Officer
This officer is most likely one of the lead detectives on the case. He is familiar with the entire investigation and has interviewed all the witnesses. While some issues may have been covered through the direct of the victim, this officer will put in venue, identification of the defendant post-arrest, and describe the residence through the use of the diagram. He will describe the condition of the home upon the police officer’s arrival that evening as well as identify any photographs that were taken of the scene. His description of the state of the bedroom and the kitchen will help solidify Michelle’s testimony for the jury.
While this officer can’t testify as to what Michelle told him that night, his description of her physical condition and demeanor are of the utmost importance. Testimony about Michelle’s injuries, shaking, or being hysterical would be consistent with what she had just gone through. He should also identify the photographs of Michelle’s injuries and describe them for the jury. It might also be helpful for this officer to testify as to whether or not he felt Michelle was under the influence of alcohol. That would first require you to go through the officers training and years of experience. Whatever the answer, it would be better to have this police information again be presented to the jury on direct examination.
Assuming this is the same officer that took the defendant into custody the next day at the White Hen Pantry, he can describe that scene. While the defendant refused to give any statement, the officer will identify the .22 as the one in the defendant’s possession at the time of arrest. He will also identify the ankle holster and describe how he took them into evidence and to whom he sent them for any tests.
Cross Examination of Officer Jones (Police Officer on scene)
I need to emphasize the knife that Officer Jones, found, when it was found, and Michelle’s (presumed) lack of reaction when Officer Jones indicated the knife on the floor when he met her.
I might want to emphasize the physical evidence in the kitchen. it’s consistent with a small skirmish in one part of the kitchen, i.e., matching the theory that Michelle lunged at Max, I need to underline it. If all parts of the kitchen show a struggle (consistent with the State’s theory that Max threw Michelle around after raping her, then my cross must bring out from Officer Jones the sloppy nature of the overall house - that way I can argue that the mess had been present for weeks and that Michelle never cleans house. The same is true if a man’s muddy footprints on the kitchen floor support the State’s theory — Michelle hadn’t mopped the, floor for weeks.
Presumably, Michelle explained all the details of her case to Officer Jones. She may even have prepared a written statement. Both are hearsay, but they are obviously helpful to me. If the State calls Officer Jones before Michelle (an unlikely scenario - I’d expect Michelle to go first, but who knows?), I’ll get out from Officer Jones the physical evidence that contradicts Michelle’s written statement before Michelle hits the witness stand. If Michelle goes first, obviously, I can’t do this.
As an aside, this is a potentially important witness for me in my case in chief to perfect any impeachments of Michelle.
Direct Examination of Evidence Technician
This officer will be responsible for describing the collection of evidence from the scene, securing that evidence and establishing your chain of custody. If the officer has experience and special training that would render him an expert in the area of evidence collection, it should be brought out and he should be established as such for the jury. Specific attention should be given to training in the analysis of ammunition discharge and trajectory.
If he is the one who initially photographed the scene and Michelle, then he will identify these police photographs for the jury. All of the physical evidence such as clothing, bedding, shell casings and the knife should all be introduced through this officer. He will use the diagram of the crime scene to show where each piece of evidence was collected, and hopefully paint a picture of the crime that is consistent with the State’s theory. While some of this officer’s testimony could be short circuited by stipulations, the prosecutor should have gone through each piece of evidence and determined its value to the case prior to trial.
The exact path of the bullets will be an issue of great argument in this case. We should probably anticipate the defense offering their own expert who will give an opinion as to what the bullet marks and holes indicate about the original trajectory of the shots. Therefore, the evidence technician will be required to testify very specifically about where these impact points are located and the jury should have clear photos to view. He will also describe the exact procedure used to determine the path of the bullets and why this procedure is accurate. His testimony as to the bullets being fired towards the area where Michelle was crouching (established through earlier testimony), and then bouncing off the dishwasher and back wall and ultimately coming to rest in the back door and ceiling is the most persuasive argument we have for attempted murder.
If the defense calls an expert to give an opposite opinion as to the bullet trajectory we would be prepared to cross that expert. This expert is likely working on a fee for testimony basis and that can go towards bias. It is possible that our expert is aware of this witness and can point out flaws in his theories. Finally, never assume he is an expert because the defense is offering him as one. Probe as to his training and education in this exact area.
No Cross Examination
Direct Examination of Ballistics Expert
This witness should also be qualified as an expert at the start of his testimony. Based on his tests he will be able to testify to several facts relating to the bullets found at the scene. If these bullets are a ballistics match with those still in the defendant’s gun, if the bullets are a ballistic match with the shell casings found at the scene and if the slugs retrieved are consistent with a .22 shell fired from defendant’s gun. All of this will most likely be moot however, because the facts seem to indicate the defendant would be claiming he in fact fired the gun, but only in self-defense. He should be used to identify and enter these articles into evidence and insure the defendant is tied to the use of the gun.
Cross Examination of Ballistics Expert
A tough one, to the extent that I will probably be unable to dispute his findings. Assuming (based on what Max has told me) that the expert will opine that the bullets were fired from the gun Max had on him when he was arrested, and that I’m conceding that anyway, the only real important issue is the trajectory of the bullets in the kitchen as they ricocheted around. Since I know the expert’s findings from pre-trial discovery, he should not surprise me on the witness stand.
The important thing is to show that Max fired in self-defense. To some extent, this expert will dictate my theory of the case. If the expert will testify that the two shots hit nearly the same target, and then ricocheted around, my theory is that Max fired as Michelle approached. If the targets were far apart, then Max fired while struggling with Michelle. Obviously, the latter version gives me a stronger defense, but the first can still work.
My only cross would be to clarify ambiguous points. This is not a trial witness who needs to be taken apart.
Direct Examination of Medical Personnel
The doctor who treated Michelle will be important for two reasons: First, any account Michelle gave him describing the defendant’s sexual assault of her and identifying the defendant, is admissible at trial as an exception to the hearsay rule as long as the examination was for the purposes of medical diagnosis or treatment. Second, he can corroborate the sexual assault depending on the rape kit results, and the extent of the injuries he observed and treated. The doctor will tell the jury about Michelle’s emotional state as she recounted the attack to him. If this account is consistent with the one previously given to the jury by Michelle it makes both all the more powerful. By using the doctor to describe in detail Michelle’s injuries we will also be able to give the jury a better picture of the kind of force the defendant used, any restraint bruises to the wrists or shoulders, marks to the throat or signs of sexual trauma would enhance the jury’s mental picture of the crime. If the defendant is going to claim the intercourse was consensual the rape kit has less importance. If not, the presence of semen or saliva on any of the swabs that are taken of the victim could be highly probative. The defendant would have these results before trial and it is doubtful he would claim the act never occurred if the tests were positive. The doctor might also be able to testify as to the presence of any defensive wounds on Michelle’s body that would corroborate her account of what happened in the kitchen. We would also want the doctor to testify, if he could, to Michelle’s level of functioning and if he felt alcohol was affecting her.
Cross Examination of Medical Personnel
Again, I know what the testimony of this witness will he, and that knowledge dictates my theory of the case. If Michelle has no signs of sexual trauma and no bodily scratches or bruises, I have a good consent defense. If she does have trauma and bruises, my argument is that Max and Michelle usually enjoy a more violent type of lovemaking. If the ballistics expert will opine of two separate targets, then I can argue that some of Michelle’s scratches and bruises occurred when she lunged at him with the knife. If the ballistics expert opines there was only one target, then Michelle got her bruises while having consensual sex with Max.
Cross on this expert will be minimal - unless I wish to emphasize one of Michelle’s injuries (such as a scratch that could have been made by the carving knife, to show she struggled while holding the knife).
Direct Examination of Neighbor
While the neighbor cannot offer much in the way of the sexual assault or the attempt murder, she can identify the defendant, (or at least his truck), arriving on the scene before the shooting. Testimony that the fighting started immediately after the defendant arrived would also tend to negate the defendant’s potential claim that the alleged sexual assault was consensual. One more witness to add to the theme that the defendant had arrived and brought the trouble with him would only help.
Cross Examination of Neighbor
Nosy neighbor needs a careful cross. I would have spoken to her before trial to find if she sides with Max or Michelle. The fact that she calls when she sees Max’s truck suggests to me that she don’t like Max and thinks he’s no good. She might even have good reason to think that Max is a dangerous man.
If she merely testifies that she heard shouts and called the police, I would likely waive cross. If she is allowed to put in more (i. e., she saw Max’s truck, became scared, etc.), I would do a cross that shows how often she speaks with Michelle, socializes with her, has seen the baby, etc. - then argue at close, if needed, that she is plainly biased for Michelle and against Max and has always heard just one side of the story. (If she called the police because she saw Max’s truck, and not because of the shouting, then I have a motion in limine to stop her testimony outright — because what is implicit is Max’s character for being a troublemaker.)
Presentation of Defense Case
Direct Examination of Max Baroni
Max will probably want to testify, and to explain something like:
1. Michelle consented to have sex with him, just as she’s always done;
2. She yelled at him afterwards because he was leaving, or because of another woman, or because of money;
3. He never said "If I can’t have you, nobody can",
4. He told her that the baby was also his, and he wanted to see it;
5. She then rushed at him with the knife;
6. He shot at her in the struggle. It would he nice to keep Max off the stand outright, but I’ll probably need him to show consent (Michelle will never admit it) and to show that he fired in fear only after Michelle rushed him. There will he no tricks here - I just need a simple, direct explanation by Max that can he accepted.
My fears with putting Max on are, especially, Max’s personality. I’ve got to ensure that he’ll he passive, irrespective of the tough prosecution’s cross; that he won’t tense up or show any anger . . . if he shows that he’s a hothead, it’s all over.
I’m also unsure whether Max will he believed. If he insists on testifying even though his story has holes, so be it. It’s his case.
Cross Examination of Defendant, Max Baroni
As the defendant gave no oral statements to the officer upon arrest, it is difficult to anticipate what will occur at trial. The defense case will therefore have to be anticipated through discovery pursuant to state rules; through defense contentions in their motion; through defense attorney statements in voir dire and opening statement; and through the defense cross-examination of my witnesses. Based on this, it would be important to identify what the defense will concede in terms of the elements of our case and what portions of the defense case are a threat to a conviction if believed. To some extent the cross of this defendant would have to be done reactively to what he testifies to. There are some things he will either have to concede, foolishly deny, or evade on the stand. The defendant knew he couldn’t be at the house. He will either have to admit to causing the injuries to Michelle or claim she looked like that when he arrived. Based on the results of the rape kit he may be forced to admit the act of sex took place and then explain the fact that the neighbor heard fighting from the moment he arrived. He will most likely have to admit discharging the gun and possibly discharging it at Michelle based on the expert testimony. The defendant must also address the issue of fleeing the scene.
If that is all we can get from the defendant, then sit down. His story is going to be filled with facts directly opposite to Michelle’s and probably some of the evidence. The jurors will be relied upon to decide those inconsistencies based on the credibility of the witnesses. At all cost, we will avoid elaborating on defense raised issues irrelevant to guilt or innocence or needless reiterations of damaging testimony.
The State’s Closing Argument
Closing argument is your first, last and only time to combine facts, influences and law to tell the jury that what the defendant did violated the law as they have been (or will be) instructed. In opening statement you could not argue any facts. In your examination of witnesses you could not argue the law. Now you not only may but you must do both.
If the defendant is guilty, the greatest threat to a conviction is confusion by the jury as to what the defendant did or what significance the law attaches to the defendant’s conduct. The defendant’s attorney will want the jurors to believe that while these facts may be construed to represent the elements of the crime with which the defendant is charged, there are reasonable doubts as to these material elements.
In order to avoid confusion the theme developed on opening should be revisited on closing. This time we will also characterize the conduct of the defendant and argue our facts, supported by every part of the evidence presented to the jury. This defendant will no doubt have presented defenses to the most grievous of his conduct which he can’t deny. Now is the time to address these defenses and show how improbable and inconsistent they are. If the defendant was going to be at Michelle’s house for a reasonable purpose, why doesn’t he call and why does he bring a loaded gun? If the sexual intercourse was consensual why does the neighbor hear fighting from the moment he arrives and the victim have restraint wounds consistent with sexual trauma? If he fired the gun to scare Michelle, or in self-defense, why does the physical evidence and the bullet trajectory indicate it was aimed at her across the room? All the while I’m encouraging the jurors to use their common sense in drawing the inferences from these facts. The photos of Michelle’s injuries should be on hand to be referred to when appropriate. In keeping with the theme I keep hammering away at the defendant’s statement, "If I can’t have you, nobody can". The greatest mistake that can be made is to repeat the painfully confusing way in which evidence was presented to the jury. Therefore, your theme should not be based on what the witnesses saw or what the officers did, but rather should describe the how and why of the defendant’s conduct. This closing should explain that what Max, the defendant, did is worthy of conviction.
Defense Closing Argument
Immediately before close, I would move in limine to bar the State, assuming that Max testified, from arguing that for the jury to believe Max they must disbelieve Michelle. It’s an improper argument. The jury doesn’t have to believe anyone — maybe all the witnesses are lying. I’d want to stop this argument before it came, but not make the motion until just before close, when, hopefully, the State won’t have time to rethink their argument.
I would give an analytic close here, and try to use the introduced physical evidence to explain what "really" happened (which, not coincidentally, matches what Max said on the stand). In this case, a swearing contest, how well I can spin this physical evidence into something that makes sense will be the make it or break it difference.
Defense Closing Argument
A technique that I have used with good results in closing arguments is linked directly to jury selection. During jury selection you should pick out three jurors you feel can be strong advocates for you. You remember what each of them does for a living. And in your closing argument you have examples that use their profession.
For instance, if one of your three jurors is a nurse, at some point you say, "When people have been drinking, they tend to imagine or exaggerate things. Ask any nurse who has had to take a history from a patient that has been drinking." And when you say the word "nurse" you look directly into the eyes of that nurse and keep eye contact for a few seconds.
You have now shown her that out of all the jurors, you have positively remembered her. You have also remembered what she does for a living and you must think its important, and she’s important, or else you would not have mentioned her. While it would be sophomoric to say that this alone will result in a not guilty, it is equally naive to think that it has no effect on that person.
How can a juror thank you for remembering her? How can she show her gratitude? A verdict of not guilty for your client is one way.
Driving Under the Influence
People vs. EArl Lusch
Statement of Facts
On February 15, 1997, at approximately 2:00 a.m., Officers John Smith and A1 Jones of the Willowdale Police Department were on routine patrol in the area of Route 83 and Lake Street. At that location, they observed a red pick-up truck, stopped in the curb lane of eastbound Lake Street, with its brake lights activated. The vehicle did not have its hazards on. On approach, the officers observed a male subject outside of the truck, near the front passenger side tire and a woman was seated in the driver’s seat.
Officer Smith approached the man, and observed that the front, passenger side tire was blown out, and resting against the curb. The man, now identified as Earl Lusch, was attempting to place a jack under the front bumper, but was struggling with the jack. Earl told the officer that, "Everything is fine, officer. We just hit the curb..." Officer Smith noticed that Earl’s speech was slightly slurred, his eyes were bloodshot and glassy, and he had a moderate odor of an alcohol-based beverage coming from his mouth. When asked who was driving the truck, Earl responded, "It wasn’t me. I don’t drive drunk anymore!" A check of Earl’s driver’s license revealed that he is revoked for a prior DUI arrest.
Officer Jones approached the woman. He observed that the keys were in the ignition, and the heater and radio were on inside the cab of the truck. The woman, now identified as Loretta Lusch, was slouched down in the driver’s seat, and appeared to have just awakened. She rubbed her eyes, and said "Oh hello, officer...." Jones noticed that her eyes were bloodshot, her expression drowsy and confused, her speech mumbled and slurred, and that she had a strong odor of an alcohol-based beverage coming from her person. In response, Loretta hit the directional signal indicator and could not get the keys out. After a minute or two, Jones reached in and turned off the ignition, and removed the keys. Jones asked Loretta if she had any alcoholic drinks tonight, and where she was coming from. She said, "Oh, we went out for Valentine’s Day, to the riverboat in Elgin... I had some drinks, sure..." When asked what she had been drinking, she said, "I had about six or seven sloe gin fizzes when we were shooting dice..." Jones noticed that she had difficulty saying the word "fizzes." At that point, he asked her to step out of the truck to perform field sobriety tests; Loretta reluctantly agreed saying, "Well, what for? I wasn’t even driving!" She attempted the Horizontal Gaze Nystagmus, Walk and Turn, One Leg Stand, and Finger to Nose tests. She failed all tests, exhibiting grossly impaired balance and coordination, and an inability to correctly count from 1 to 30. Loretta was arrested, and then began crying and yelling at the officers: "This is so unfair! ! ! I wasn’t even driving! You guys are a bunch of jerks for doing this to me!" When asked who was driving, Loretta pointed at Earl and responded, "It wasn’t me — I’m too drunk to drive! Talk to him!" Earl, who had remained silent throughout Loretta’s field sobriety tests, responded saying, "Hey, don’t look at me. I was just trying to fix the flat."
After Loretta was arrested, both she and Earl were transported to the Willowdale Police Department. Loretta was read the Warning to Motorists, observed for the requisite 20 minutes (during which time she neither ingested or expelled anything from her mouth or nose), and submitted to a breath test. The Willowdale breath instrument, an Intoximeter 3000, disclosed a blood alcohol concentration of .13. the Intoximeter 3000 was properly certified before and after her test result by an Illinois Department of Public Health Inspector; Officer Smith was a certified breath operator.
In order to determine his ability to drive Loretta home, Earl also submitted to a breath test. His sample disclosed a blood alcohol concentration of .02. Earl and Loretta left the Willowdale Police Department at 4:20 a.m.
At trial, the State will call Officers Smith (Breath Op) and Jones (Arresting Officer). Loretta will call an expert witness, Mr. James Johnson, to testify as to retrograde extrapolation; Loretta and Earl may or may not testify.
The prosecution perspective is represented in bold faced type, the defense perspective is represented in italic type.
Motions in Limine by the State
Motion in Limine to voir dire expert witness outside of the presence of the jury:
Oftentimes, in a case such as the present matter, a defense "expert" will attempt to be called to question the validity or reliability of the breath result, or to utilize theories of retrograde extrapolation to suggest that at the time when the defendant was actually behind the wheel, her BAC was not as high as it was when she submitted to the breath test, i.e., her BAC was rising, rather than falling. By conducting voir dire outside the presence of the jury, you assure that the expert is in fact qualified and can render the opinions the defendant needs to elicit. Also, you have an idea of where the expert is coming from, and where he will go with the evidence.
Motion to admit evidence of Earl’s driver’s license revocation:
Because Earl is a potential defense witness, who could feasibly testify that he was the driver, it is important to let the jury know that Earl did not have valid driving privileges at the time of Loretta’s arrest. In doing so, you provide strong corroboration for Earl’s initial statements that he was not driving that night.
Motion in Limine to voir dire Earl on the issue of driving (if Loretta calls him as a witness), limiting his answer to "yes" or "no", and precluding invocation of the 5th Amendment:
If Loretta intends to call Earl as a witness, there is a distinct possibility that he will answer neither "yes" or "no" when questioned on the issue of driving i.e., he will invoke his 5th Amendment right to remain silent and thereby avoid self-incrimination. (Remember that Earl’s driving privileges are revoked.) If allowed to invoke the 5th Amendment, Earl’s testimony on the issue of driving does nothing to assist the trier of fact in determining who was the driver, and is therefore not relevant. Allowing Earl to "take the 5th" in response to questioning serves only to create the inference that he was the driver. The State would want to inquire outside the presence of the jury, and obtain an order in limine directing Earl to answer "yes" or "no", or to preclude the defense from posing the question.
Motion in limine to preclude the expert from testifying as to retrograde extrapolation without sufficient facts:
Retrograde extrapolation requires a significant factual basis in order to be able to form an opinion on a person’s BAC at a time other then the actual test. If the defendant does not testify, there will probably be insufficient facts in evidence for the "expert" to attempt to calculate the opinion on BAC.
Motion in limine to preclude argument as to sentence or repercussions of conviction:
In an "actual physical control" case, where there is very little evidence of a defendant’s driving, the concept of jury nullification is at the forefront of the defense theory. In this regard, the State may wish to present a motion in limine to prevent the defense from arguing anything about the repercussions of a conviction or a finding of guilty of the offense of DUI. In so doing, you effectively diminish the ability of the defense to play upon the jury’s sympathies.
Motions in Limine by Defense
Motion in limine to bar introduction of the MC-TN test or its results:
A recent appellate decision has stated that the HGN test cannot be introduced as evidence of BAC in the absence of a Frye hearing, establishing its general acceptability within the scientific community. Assuming arguendo that the court is inclined to admit the test, defense counsel should seek to limit the inference of the test result to merely being indicative of the consumption of alcohol; the test correlates to BAC levels, and not to impairment. Present case law holds that the only trial admissible BAC tests are those based on blood, breath or urine, which does not include the HGN test.
Motion in limine to preclude the State from introducing Earl’s hearsay statements to police that suggest that Loretta was driving:
Earl’s denials of driving are classic hearsay; their introduction in the State’s case in chief directly violates the Confrontation Clause. However, if Earl testifies that he was driving, the State would be able to use his prior denials as impeachment.
Motion in limine to bar introduction of the Warning to Motorists into evidence:
First, pursuant to the Illinois Vehicle Code, the Warning is admissible at the criminal DUI trial only when the defendant refuses chemical testing. Second, the Warning contains a lengthy discussion of the civil Summary Suspension law, which is separate and distinct from the criminal DUI charge. Thus, the Warning is likely to confuse the jury as to the law applicable in the criminal case.
Motion in limine to bar the State from arguing "actual physical control" in opening statements:
It is important to try to prevent the State from indoctrinating the jury as to their version of the law. Use of the phrase "actual physical control" does just that. However, the phrase as it would he used in opening statements is not a statement of fact, but rather a legal term of art, which requires a jury instruction at the close of the evidence.
Motion in limine to hear the State and its witnesses from characterizing the Defendant as the "driver":
As there will be little or no evidence that Loretta was actually driving at the time of her arrest, use of the term "driver" may mislead the jury. Whether or not Loretta was the driver is a question of fact for the jury to decide based upon the evidence, not based upon the State’s mere characterization of her as such.
Motion to suppress statements:
Because Loretta’s post-arrest statements were not preceded by Miranda warnings, defense counsel would normally wish to suppress them. However, in this case, because Loretta’s statements actually support her theory of innocence, i.e., "I wasn’t driving," defense counsel would be better off not objecting to that statement.
Presumably, however, the State would never admit those statement in their case in chief, and, because of their hearsay nature, would object to their admission by the defense.
Whether any or all of the foregoing motions in limine are granted, they will apprise the Court of how each side intends to proceed. Thus, motions in limine are often helpful in allowing the trial court to more carefully understand and follow your future objections at trial.
The State’s Opening Statement:
The State’s opening statement will focus primarily on the issue of "actual physical control," using the Illinois Pattern Jury Instructions for a DUI involving physical control, as opposed to driving. In this case, Loretta was clearly behind the wheel of the truck. Though she denies driving, that is not an issue in the case. Clearly, she was intoxicated to an extent that she should not have been behind the wheel. However, a savvy defense attorney will attempt to paint the picture that she was a mere victim of circumstance, and is undeserving of a DUI arrest or conviction. Jury nullification is a powerful tool for a defense attorney, and it is your responsibility to defuse its effect from the outset. In this regard, it is a good idea to get a feel for your jurors from the outset, during voir dire. For example, in an actual physical control case, it’s important to get each juror to commit to the principle that whether they like the law or not, they will adhere to their oath and uphold it nonetheless, even if they may think it is unfair in application to this particular defendant. Paint a picture of the scene: what do Officers Smith and Jones observe when they come upon the scene? A pick-up truck, wedged up onto the cub, it’s front, passenger-side tire blown-out from the impact. Earl Lusch, fumbling with a jack, attempting, hopelessly, to repair the damage and make a clean getaway before the cops show up. Loretta Lusch, in a dazed, drunken stupor, behind the wheel, keys in the ignition, with the radio on, oblivious to what is going on outside the truck. What do Loretta and Earl tell the officers? "We hit a curb." "I wasn’t driving; my license is revoked," says Earl. "I wasn’t driving; I’m too drunk to drive," says Loretta. And then detail Loretta’s acquiescence to the FST’s, her miserable performance, and, ultimately, her .13 blow. Mention, also, that no one else (i.e., Earl) ever claimed to be driving the truck to Willowdale. The bottom line in this case comes down to the fact that Loretta Lusch was behind the wheel, in actual physical control of the truck, and had a blood alcohol content of .13. For that, they will return a finding of guilty of the offense of DUI.
The Defendant’s Opening Statement:
The defendant’s opening statement is always wiser for defense counsel to keep his opening statement short, concise, and less, fact-specific. This prevents the defense from getting trapped if the evidence starts turning in a different direction. In the instant case, the best defense is to point out that the defendant never actually drove the vehicle, according to the state’s own evidence. Never tell the jury in your opening statement that the defendant will (or will not) testify. Indicating one thing and doing another will be fatal in almost every case. It will suggest to the jury that you changed your mind because you were losing the case.
Merely reminding the jury that the facts are contested, that the evidence at trial will not be consistent with the State’s opening statement, and that the defendant’s case also includes the cross-examination of the State’s witnesses may leave the jury more interested in what actually happens at trial.
From a defense standpoint, the opening statement should present your general theme and then counsel should stop talking. Do not bore the jury or give the State too much good factual insight into your case. The defendant is not required to disclose his witnesses or evidence to the State prior to trial. Don’t do it in opening statement either.
Direct Examination of Officer Jones (Arresting Officer)
With Officer Jones, you will need to cover the basic ground. Initially, you will want to establish your officer as an expert in the detention and apprehension of DUI drivers. In this regard, go through his training and years of experience as an officer. Next, you must remember that in an "actual physical control" case, it is important to establish that the Defendant, while intoxicated, had the power to put the vehicle into motion. In this regard, you must set the scene as it appears to the officer on his initial approach. First, the truck is stopped in the roadway. Though the tire is flat, the truck is derivable; there is no severe damage to the body or undercarriage of the truck. Second, the defendant is seated in the driver’s seat, with her feet on the floorboards, inches from the gas pedal, in a confused, sleepy state The keys are in the ignition, the heater and the radio are on. Third, you must establish the officer’s other observations of Loretta’s physical condition, including her exit from the vehicle and performance on the field sobriety tests. Fourth, have Officer Jones testify as to Loretta’s mood swings and demeanor; be careful to avoid her exculpatory and therefore hearsay statements. Finally, have Officer Jones render an opinion, based upon his personal and professional experience, as to whether or not he felt Loretta was intoxicated. You will also establish your identification of the defendant and venue through your direct examination.
Cross Examination of Officer Jones
Because most DUI cases can he won or lost based on the arresting officer’s testimony, effective cross-examination should cover two aspects: (a) the officer’s motives; and (b) the facts that are helpful to the defense. With respect to motive, the defense should cover the following points: (1) that the officer has received special training on how to testify in court; (2) that the number and type of arrests made by the officer are considered by his superiors when his performance is reviewed for employment purposes, but convictions are not; and (3) that it is likely that this,fellow officers and/or supervisors will want to know whether he "won his case or not" when he returns to work. Thus, he has an interest in the outcome of the trial. With respect to the facts, remember to get to the important points first, through short and concisely worded questions, covering the following aspects: (1) that the officer(s) never saw the vehicle driving on the roadway; (2) that the truck was not driveable when Loretta was in the he driver’s seat; (3) that Earl Lusch was sober enough to drive the truck; (4) that it would be unwise to have Loretta get out of the car and walk down the street alone; (5) that Loretta made statements denying driving immediately, at the scene (prepare for a State objection).
Direct Examination of Officer Smith (Breath Operator)
Your examination of Officer Smith will mirror that of Officer Jones, at the outset and conclusion. Initially, you will have establish him as an expert in the detection and apprehension of DUI drivers, and ultimately, you will have him render an opinion as to Loretta’s level of intoxication, based upon his personal and professional experience. You will not attempt to have him testify as to her performance on the FST’s — it is unnecessary, cumulative, and can only serve to provide a smart defense attorney with an opportunity to have the officers contradict each other. You need only have him testify as to his interaction with the defendant at the police station, where he administered the breath test. Lay the appropriate foundation, mark your exhibits, and put the breath ticket into evidence.
Cross Examination of Officer Smith
Because the BAC is relatively low (.13) cross-examination of the breath operator should seek to establish the following: (a) that the BAC level rises gradually over time after the last drink is consumed; (b) that a breath test at some time later in the evening does not establish what Loretta’s BAC was at the time of driving; and (c) that the breath result does not make it any more likely that Loretta was ever driving
Finally, if the State does not adequately lay the foundation for admissibility of the test result, the jury may believe that this is a "bad case" and give the defense a not guilty — even though the defense theory centered on the driving element, or lack thereof. Keep in mind, also, that if the State revealed the breath test result in its opening statement, and then failed to get it admitted into evidence, an excellent argument for a mistrial or a post-trial motion then exists.
Direct Examination of Earl Lusch:
If Earl is successfully interviewed pre-trial, and or voir dired, the State may wish to call him as a witness to say that Loretta was, in fact, driving, and that he was not. Either way, Earl is a dangerous witness for the State! Because Earl’s license was revoked at the time of occurrence, ask the Court to admonish him as to his Fifth Amendment rights against self-incrimination before he testifies as a forewarning that if he admits to driving, he could be prosecuted. On cross-examination, the defense will need to question Earl’s prior statements which suggested that Loretta was the driver. Additionally, the defense will expose his motive for denying driving and testifying falsely against Loretta, i.e., his revoked status.
No Cross Examination.
Presentation of Defense Case
As a threshold matter, prior to proceeding to your witnesses, you must make your record! Defense counsel should always make a motion for a directed finding on all counts at the close of the State’s case. Because the denial of the directed verdict is reviewed de nova, argument is not actually necessary unless counsel feels it is appropriate. Assuming your motion is denied, you must then decide whether or not your client should testify. This is probably the toughest decision in most cases. Unless the defendant is articulate, congenial, and intelligent, it would be difficult to recommend that she testify. On the other hand, the final decision must always be left with the client. If the defense attorney has already successfully introduced the defendant’s exculpatory statements at the scene, there is really not need to put Loretta on the stand, unless you need to lay a foundation for the breath expert’s testimony, i. e., how much and what she had to eat and drink prior to her arrest, the time of her last drink, her weight, etc.
Assuming that the defendant testifies, the State should cover the following areas: (1) that she was in the driver’s seat when the officers arrived; (2) that she had been drinking at the riverboat all evening; and (3) that she knew that if Earl drove, he could get in trouble because his license was revoked. If Loretta is well-prepared, "articulate, congenial, and intelligent, "you probably aren’t going to get much out of her. Hit your points, and get out as soon as you can. Do not victimize her in front of the jury.
Direct Examination of James Johnson ("Expert Witness")
The breath "expert" can be used to testify as to his opinion that the defendant’s BAC was lower at the scene than it was at the station. Whenever a trial court seeks to hear the defendant’s evidence, defense counsel must make an offer of proof; take failure to do so may constitute ineffective assistance of counsel. In the present case, the defendant will have to testify (before the expert) in order to put the expert on the stand. Thus, the decision as to whether to employ the expert should not be made until after the close of the State’s case.
Cross Examination of James Johnson
With an "expert" witness, it is important to know what you are getting yourself into, prior to trying to cross-examine. You need to be at least as knowledgeable as the expert, so that you don’t look foolish, or ask a question that you don’t know the answer to. As with any expert witness, you will want to do a little research on Mr. Johnson prior to trial (thus, the need for a pre-trial motion in limine), such as investigating his history for testifying. At trial, you can cross Mr. Johnson on the number of cases in which has testified for a defendant in a DUI proceeding, and how much he is paid for each case. You can inquire as to how many times he has testified for this particular defense attorney. Finally, you can establish that his reputation, and value as an expert witness, is largely dependent upon how he performs at trial, i.e., the more time he helps get a not guilty, the more he will be in demand, and the more money he will make. If you have an opportunity to review prior transcripts of Mr. Johnson’s testimony, do so — it will help you get a feel for his manner of testifying.
With respect to his opinions, make sure that the defense has laid an appropriate foundation for his expert testimony, and that any hypothetical posed on direct is supported by the evidence.
The State’s Closing Argument:
The State’s closing argument should stick with the law and the facts. There is really no disputing the fact that Loretta Lusch was driving intoxicated on the night in question. Briefly recapitulate your proof as to the intoxication element: the field sobriety tests, and the breath ticket. Discuss the law of actual physical control, and argue to the jury the instructions, explaining how the State has proven each and every element of its case against the defendant. Avoid being longwinded and avoid giving the defense any ammunition. Rebuttal is when you argue; close is when you state your case.
The Defendant’s Closing Argument:
The defendant’s closing argument should always be made with the defense attorney posturing a look of confidence and the smile of an anticipated victory.
Remind the jury that their verdict should be based on common sense. If common sense dictates that it would be unfair to convict the defendant, then their verdict should be for the defendant. (This is close to, but not, jury nullification.) The only thing worse than drunk driving would be convicting an innocent person of drunk driving. Remind the jury that their verdict will be final, and cannot be lightened at sentencing. (The jury instruction tells them that they cannot consider the court’s sentence during deliberations.) Remind them that the Constitution places decision-making with citizens in order to prevent the abuse of process that occurs in a governmental proceeding.
The Illinois Supreme Court has reserved the issue of whether a defendant can raise a necessity defense in a DUI case. Counsel should argue that even if the jury were to find that Loretta was in actual physical control, she is not guilty by way of necessity, because she felt that she had no other choice but to remain inside the car due to the weather and the car’s mechanical condition.
Remind the jury that if defense counsel (you) misses some argument or evidence that they believe supports your client’s innocence, that they can and should consider that argument or evidence: this is a matter for consideration by the jury.
Finally, tell the jury that because the State is entitled to speak last, and the defendant will not be able to respond to rebuttal, they should think of your responses for you and your client, because there would be plenty of them.
The State’s Rebuttal Argument:
Don’t forget to object if the defense crosses a line in its closing argument, but remember, you get the last word, so use your objections sparingly. On rebuttal, you have an opportunity to remind the jury that, notwithstanding everything defense counsel just told them, the judge will instruct them as to the law. He or she will instruct them that sympathies are not to sway their decision making. He or she will instruct them as to the law of "actual physical control." And even though defense counsel wants you to believe that Loretta Lusch must have been seen driving in order to be found guilty, that is not the case, and it is not the law. the law provides that if a person is intoxicated — and there is presumption of intoxication when a BAC level is above .10 (as was the law at the time of defendant’s arrest) — and in actual physical control of a motor vehicle, she is guilty of DUI. Clearly, the defendant, seated in the driver’s seat, keys in the ignition, her feet inches from the gas pedal, her hand inches from the gear shift, and with a BAC of .13 after a night of boozing at the boats, was capable of setting that truck into motion. She was capable of driving down Lake Street, or Route 83, with a flat tire and a BAC of .13. Whether they like the defendant or not, whether they feel sorry for her or not, they have a higher duty, to which they swore an oath as jurors. They swore to uphold the law, whether they like that law or not. That is their duty; that is their obligation, and they must find the defendant guilty.
Making the Record, Stipulations and Waivers
A wise old defense attorney once stated the following: "Never stipulate to anything except your client’s innocence, and the only thing counsel should "waive" is the American flag." There are few exceptions to this adage. However, in the present case, because the evidence of Loretta’s intoxication is ample, you may wish to stipulate to that, and go solely on the issue of driving or actual physical control. That is an issue you must consider with your client.
When making your record, remember that the denial of a motion in limine is not preserved for appeal unless the defendant makes a timely objection to each admission of the State’s evidence during the trial. Defense counsel should keep a running list of all potential errors at trial so they can be incorporated into a single post-trial motion. Remember, a post-trial motion is necessary to preserve errors on appeal, and all errors must be brought in a single motion. As for the State, remember that denial of a pre-trial motion, or conversely, the grant of a defense pre-trial motion, may provide a basis for the State’s interlocutory appeal if your case is significantly impaired by the ruling.
As noted above, defense counsel should make a motion for a directed verdict on all counts at the close of the State’s case-in-chief. In the same vein, defendant’s post-trial motion should always include the "Judgment Not Withstanding the Verdict" argument that the defendant was not proven guilty beyond a reasonable doubt. (This will allow the appellate court to test the sufficiency of the evidence if the justices agree that any of your motions in limine were wrongfully denied.)
The Trial of
A FINANCIAL CRIME
People vs Bob Smith
In January, 1993, Bob Smith founded a construction company that he incorporated as Suburban Builders, Inc. Suburban Builders engaged in the business of home construction, remodeling, and repair. For two years the business went reasonably well, but Smith was not a good businessman.
Smith had not only engaged generally in bad bookkeeping but had paid himself and other family who worked for the company too much money. Moreover, Suburban had taken a lease on an expensive suite of offices, which were larger than necessary, because it appeared to Smith at the time as though business would continue to expand. By the Fall of 1995, economic problems had become endemic. Suburban had not paid subcontractors promptly, and many were not refusing to do further work on existing jobs until they were paid off for work on prior jobs. Many also refused to provide the lien waivers necessary for Suburban to receive payment on completed projects.
The same problems arose with Suburban’s suppliers. The local building supply and lumber yards had extended too much credit for too long and began refusing to provide any more supplies until substantial payment had been made.
By early 1996, Suburban Builders was over $300,000.00 in debt and was involved in 14 uncompleted projects that were weeks behind schedule. Neither the homeowners nor their lenders would forward any additional cash to Suburban. In an effort to generate cash flow, Smith began contracting for the construction of new homes at prices that wee simply unbeatable. He did this by virtually eliminating from the total price his own roughly 15% profit, which allowed him to promise a $200,000.00 house for $175,000.00. To secure this price, however, the customers had to provide Suburban a $60,000.00 down payment.
Armed with $180,000.00 from three such contracts, Smith paid those subcontractors to whom he was already heavily in debt and would need to start work on the new projects (which represented the lion’s share of the money) and paid his company’s own back rent and utilities just to stay in business. He also spent a large percentage of this money clearing accounts with his building materials suppliers. He spent the remainder of the money for his own immediate needs, such as his mortgage (months behind) tuition, car payments, etc. The 14 uncompleted projects, however, were largely unaffected by this cash, and Smith had been unable to purchase any appreciable amount of the building materials needed for the new projects he was obligated to build.
In an effort to complete some of his current projects, Smith wrote checks to subcontractors in exchange for their lien waivers on prior jobs, which he then tendered to the old homeowners and lenders to acquire the equivalent amounts of cash. The accounts on which the checks had been written had insufficient funds to pay these checks, and Smith neither paid the cash he acquired over to the subcontractors nor deposited the money to cover the checks he had written. Smith has always maintained, however, that he did what he had to do and intended to cover these obligations when the business recovered.
Soon, numerous subcontractors began filing mechanic’s liens against the uncompleted projects. Smith was not unable to continue in business, and in the Spring of 1996, he filed for bankruptcy. At that time, he had undertaken minimal work on the three new projects, such as acquiring architectural drawings, material specifications and bids from suppliers and contractors.
From a prosecutorial standpoint, there are a number of offenses that can and should be indicted. First, the checks written to subcontractors for waivers of lien on accounts with insufficient funds should be charged as deceptive practices. Although a bad check written to clear a pre-existing debt rather than in return for goods or services does not normally provide a basis for a deceptive practice charge under 720 ILCS 5/17-l(B)(d), People v. Cundiff, 16 Ill.App.3d 267, 305 N.E.2d 735 (3d Dist. 1973), a bad check written to induce the tender of an executed waiver of lien does. "Property" for purposes of a deceptive practice at large is defined as "anything of value", including "written instruments representing or embodying rights concerning anything of value, labor or services, or otherwise of value to the owner ..." 720 ILCS 5/15-1. An executed waiver of a $12,000.00 mechanic’s lien certainly falls within that definition.
Moreover, because the lien waiver itself represents property, i.e., "anything of value," a charge of theft by deception should be filed for the full value of the labor or services that were represented by the lien. If, in return for a bad check, a plumbing contractor tendered a lien waiver covering $ 12,000.00 worth of labor and materials, thereby forfeiting his right to recover from the homeowner, a Class 2 theft charge should be filed under 720 ILCS 5/16-l(a)2(A).
Defendant should also be charged with Class 2 thefts for the down payments received on each of the three final new home projects. Charges should be filed, under both 720 LCS 5/16-l(a)2(A) (Theft by Deception) and 720 ILCS 5/16l(a)(l)(c), which covers a person who "exerts unauthorized control over property" and "uses...the property knowing such use... probably will deprive the owner permanently of such use or benefit." This is an appropriate charge because it might be difficult to prove beyond a reasonable doubt that Smith never intended to build the houses at the time he entered into the contracts. Moreover, the law says that down payments generally become the property of the seller or contractor to be used as part of the ordinary operating expenses of the business. People v. Rolston, 113 Ill.App.3d 727, 70 Ill.Dec. 87 (3rd Dist. 1983). The State must then focus the factfinder on the defendant’s long-standing financial condition at the time the funds were used for purposes other than the jobs on which the down payments had been made.
Finally, when indicting a case such as this, all business people and subcontractors involved should provide sworn testimony before the grand jury as part of the indictment process. Without this step, a considerable number of the charges might become impossible to prove as various subcontractors and other complaining parties are paid by the defendant after indictments have been returned. The defendant, through post-indictment payment, not only builds a "no intent to defraud" defense into the case but also ensures that these witnesses no longer have any complaint with him. It is amazing how often a subcontractor’s version of events changes after he has been paid.
All charges against a defendant such as this should be filed as separate counts of a single indictment. Although, a motion to sever these courts can be expected whenever different victims and separate offenses are involved, there is substantial authority to support a denial of such a motion whenever a series of financial offenses of this nature have been alleged. People v. McKibbins, 96 Ill.2d 176, 70 Ill.Dec. 474 (Ill. 1983); People v. Clark, 9 Ill.2d 46, 137 N.E.2d 54 (Ill. 1956); People v. Peebles, 114 Ill.App.3d 684, 70 Ill.Dec. 356 (1st Dist. 1983).
The key is to demonstrate to the court that the defendant has been involved in "a coherent pattern of connected behavior." Cleary and Graham, Illinois Evidence (6th Ed.) Section 4Q4.5. In the scenario in the fact pattern above, the defendant is certainly involved in such a pattern of behavior with a single intention and design to salvage the business by whatever means are necessary. Severance, however, will ultimately be within the sound discretion of the trial court.
Trial on the merits of a case such as this will invariably come down to inferences and argument. When a contractor has engaged in forgery, as sometimes happens in the scenario above, there is little if any defense. When deceptive practice and theft are alleged against the owner of a financially shaky business and no forgeries are involved, however, prosecution is more difficult. The prosecutor must convince the factfinder that more than a business failure is at issue.
The legal authority available does not delineate a clear line between the noncriminal conduct involved in business failures and the conduct that constitutes fraud and theft whether a business was involved or not. This is a classic question of fact. People v. Rolston, supra, stands at the business failure end of the spectrum. Although defendant Rolston had failed to fulfill his contract, had not ordered the merchandise, failed to return the down payments and lied to customers who made inquiry, the exculpatory evidence outweighed these facts: Rolston had gone with two other men to the Thermal Industries Plant in Pittsburgh to receive professional training. There was no evidence indicating that Thermal Industries was anything other than a legitimate, reputable manufacturer. The defendant became an authorized dealer of this company and embarked on selling a reputable product. It is uncontradicted that the defendant here put most of the money he received back into the business, spending a great deal of money on advertising. The defendant partially performed one contract and fully performed another contract with one of the complainants, and he never denied owing the customers their money or the windows. He was always available to his customers and did not try to avoid them, or their complaints. He reasonably explained his failure to order the windows for each customer separately. If Rolston ordered 100 windows, he avoided the freight costs and the company would ship them in special trucks designed to minimize the risk of breakage. The State’s own witness, Arthur Poland, supported him on this point. Finally, Rolston continued his business, with apparent improvement in sales, installations and business procedures. Id. at 732-33. 70 Ill.Dec. at 90-91.
At the opposite end of the cases is People v. Smith, 18 Ill.2d 547, 165 N.E.2d 333 (1960). The defendant Smith contracted to build a new house for $20,430.00. In reliance on his representations, his customers paid him $5,430.00 to cover purchase of the lot ($4,000.00) and other expenses. The defendant thereafter provided specifications for the house and advised the purchasers that he had purchased the lot. The deal fell apart, and it was determined that defendant had not purchased the lot as represented. At the trial of the Smith case, evidence of two similar but unrelated transactions undertaken was admitted by the defendant . In both of the prior cases, misrepresentations were made to the customers who ultimately lost thousands of dollars to defendant. Use of this evidence was ruled proper, and the court outlined its reasoning as follows: The evidence clearly established that Smith was a marginal operator. Necessarily, the scheme that he was promoting was one where he sought to escape trouble in the concluded transaction by obtaining money in an instant transaction. The two prior transactions were valid proof that Smith was aware of and calculated the risks involved in his enterprises. His operation was more than a business failure for which he would incur only civil liability. Id. at 552, 165 N.E.2d at 336.
Because criminal liability will turn ultimately on the prosecutor’s ability to convince the factfinder that the defendant’s activities fall under the ruling in Smith rather than Rolston, other similar transactions are important.
When actions similar to those charged have been undertaken by defendant in the past, a motion in limine by the State is a proper way to seek a pre-trial ruling on the admissibility of the prior acts.
The prosecutor should also concentrate as much as possible on injured consumers as his witnesses. Whether a bench or a jury trial, injured consumers make a far more compelling case than businessmen and contractors who, it can often be shown, are fully aware of the ups and downs of the business.
Finally, care must be taken in the preparation of bank records for use as evidence. Bank records are normally important to a prosecution of this nature because they provide a means of recreating the transactions and tracing the money to the accused. The business records exception is found at 725 ILCS 5/1 155. However, virtually all bank records are computer generated, and the accuracy and reliability of computer generated records must be shown through the testimony of a witness who has sufficient technical expertise.
A computer record can be admitted in evidence as a business record under Section 115-5 of the Code of Criminal Procedure of 1963 (Ill. Rev.Stat. 1985, Ch.38, Par. l 15-5) although a proper foundation must be established (People v. Mormon (1981), 97 Ill.App.3d 556, 52 Ill. Dec. 856, 422 N.E.2d 1065, affd, 92 Ill.2d, 268, 65 Ill.Dec. 939, 442 N.E.2d 250). The Illinois Supreme Court has held that foundation for such evidence requires testimony that the computer equipment was recognized as standard, that the entries were made in the regular course of business at or reasonably near the time of the event recorded, and that the testimony satisfied the court that time of preparation indicated its trustworthiness and justified its admission. Grand Liquor Co. v. Department of Revenue (1977), 67 Il1.2d 195, 10 Ill.Dec. 472, 367 N.E.2d 1238. People v. Friedland, 202 Ill.App.3d 1094, 48 Ill.Dec. 415, (1st Dist. 1990). See also People v. Morrow, 256 Ill.App.3d 392, 195 Ill.Dec. 86 (1st Dist. 1993).
The key to the State’s case is the acquisition and presentation of evidence necessary to show an intent to defraud. Defendants in these types of cases always attempt to demonstrate that their conduct was undertaken in good faith and that, at worst, what they did was cut corners in an effort to meet obligations during a downturn in the business cycle. For this reason, a complete review of the defendant’s economic condition is essential and other similar occurrences, whether directly related to the instant case or not, are important pieces of evidence. Trial of a case such as this will come down to arguing the inferences, and if the appropriate evidence has been uncovered and presented, convictions are attainable.
Honorable Ann B. Jorgensen is the Presiding Judge of the Felony Division.
She received her Undergraduate Degree in 1976 from Loyola University-Chicago and her Law Degree in 1980 from DePaul University.
Neil J. Levine is a Senior Assistant Public Defender with the DuPage County Public Defender’s Office, a Georgetown law grad and a diehard baseball fan.
Harry Smith is an Assistant State’s Attorney in the DuPage County State’s Attorney’s Office. He is currently assigned to the Felony Division. He has also served in the Domestic Violence Unit.
John Paul Carroll, a Naperville attorney specializing in criminal defense, was a federal undercover narcotics agent, Chicago Police Homicide Detective and Assistant Cook County State’s Attorney.
Donald J. Ramsell is the senior partner of Ramsell & Associates, Ltd. in Wheaton, Illinois. His firm has defended over 6,000 DUI cases.
Michelle L. Moore is an Assistant State’s Attorney in the DuPage County State’s Attorney’s Office. While assigned to the Misdemeanor Division, she prosecuted hundreds of DUI’s and Domestic Batteries.
Peter G. Baroni is an Assistant State’s Attorney in the DuPage County State’s Attorney’s Office. He is presently assigned to the Misdemeanor Division.
Joseph L. Solon, Jr. is the Deputy Chief, Criminal Bureau, DuPage County State’s Attorney’s Office.
Thomas F. Sullivan, Jr. is a sole practitioner specializing in criminal defense and domestic relations law in Wheaton, Illinois.
Neal Thompson is the Supervisor of the Financial Crimes/Public Integrity Unit of the DuPage County State’s Attorney’s Office.