People v. Shepherd , 2020 IL App (1st) 172706 ( 2020 )

2020 IL App (1st) 172706No. 1-17-2706
Opinion filed November 30, 2020
First Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 17 CR 6783
)
JONETTA SHEPHERD, ) Honorable
) James B. Linn,
Defendant-Appellant. ) Judge, presiding.
JUSTICE HYMAN delivered the judgment of the court, with opinion.
Justice Griffin concurred in the judgment and opinion.
Justice Pierce dissented, with opinion.
OPINION
¶1 The trial court found defendant Jonetta Shepherd guilty of unlawful use or possession of a
weapon by a felon (UUWF) and sentenced her to 42 months’ imprisonment. On appeal, Shepherd
contends that the State failed to prove beyond a reasonable doubt that her possession of the firearm
was not justifiable by reason of necessity. The State correctly argues that Shepherd’s trial counsel
forfeited the affirmative defense of necessity by failing to raise it in an answer to the State’s request
for discovery. Anticipating that argument, Shepherd asserts her trial counsel was ineffective for
failing to raise the necessity defense. We agree, reverse her conviction, and remand for a new trial.
No. 1-17-2706
¶2 Background
¶3 The State charged Shepherd with four counts of UUWF and six counts of aggravated
unlawful use of a weapon. Before trial, Shepherd’s counsel told the court and the State that
Shepherd would file a written answer to discovery. Counsel never filed an answer.
¶4 In opening statements, Shepherd’s theory was that the State would not meet its burden to
prove Shepherd’s knowledge and intent to possess a firearm. Counsel highlighted expected
testimony that police officers found a gun in a purse allegedly belonging to Shepherd and that
Shepherd had not put the gun there.
¶5 Officer Graylin Watson testified that he and his partner responded to a call reporting a
woman in sunglasses and black clothing with a gun in her purse. When they arrived, they saw a
woman, identified in court as Shepherd, who matched the call’s description. The caller also
described a man in a green shirt and pants who was grabbing for the gun in the woman’s purse.
When Watson’s partner got out of their car, Shepherd dropped her purse to the ground. Watson
explained that he saw her holding the purse for four to six seconds before dropping it. Watson
looked in the open purse and saw a 9-millimeter firearm with an extended clip loaded with 18
rounds in the magazine and one in the chamber. He did not find in the purse either a Firearm
Owners Identification Card or a Concealed Carry License.
¶6 Watson arrested Shepherd. At the police station, he heard her say, “I’m stupid. I’m on
parole. I messed up my life.” He did not record this statement in any of his reports but did provide
it to the person assigned to felony review of the incident. Watson never spoke to the man in the
green shirt and pants, nor did he speak to any of the other six people in the vicinity of where he
found the purse.
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¶7 The State introduced a certified copy of Shepherd’s 2016 conviction for aggravated battery
of a peace officer.
¶8 Shepherd testified that she and some friends, including Von Civils, were hanging out with
others she was not familiar with. Shepherd left the group to use the restroom located inside a
nearby “neighborhood candy store.” Before leaving, Shepherd handed her purse to Von Civils,
who had on a green shirt and jeans, because she did not want the store owner to think she was
going to steal anything. Shepherd used the restroom, bringing only her cell phone with her, and
was gone for roughly five to seven minutes.
¶9 When Shepherd came back, her purse was on the ground next to Von Civils. Shepherd
picked it up and saw a gun inside, which she denied putting there. She testified, “I was scared. I
was shocked. I didn’t know what to do. I was just stuck.” Shepherd tried to get someone to remove
the gun from her purse for her because she did not want to touch it, but nobody did. Shepherd did
not personally take the gun out of her purse because she did not want her fingerprints on it, did not
empty her purse because she was “in shock,” and knew the firearm was in her purse when she
dropped it. Shepherd did not learn to whom the firearm belonged until after she was incarcerated.
¶ 10 In closing, Shepherd’s counsel argued that Watson never testified that he saw Shepherd
with a weapon and that Shepherd’s testimony that she found the firearm in her purse and did not
want to touch it for fear she would get her fingerprints on it was credible.
¶ 11 Based on this evidence, the trial court found Shepherd guilty of UUWF. In announcing its
decision, the trial court stated:
“I do find Officer Watson to be very credible. As to the defendant, *** her story is
that she was innocently trying to use the washroom at someone’s informal candy
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store in their home and left a purse outside so she wouldn’t get accused of stealing
something ***. She realized immediately upon coming out that there was a gun and
did nothing about it until the police came, at which point when she saw that the
police were there, at that point she abandoned the gun, but she had it for a period
of time before that. Even *** if I were to believe her, I’m not so certain that I do,
but if I were to believe her, possession always has to be a voluntary act and *** if
it’s a situation where it’s really not yours, but somehow it ends up in your lap or in
your purse, you have to terminate the possession in a reasonable time, like, right
away, and that didn’t happen. All that happened was that she abandoned the purse
with the contraband when she saw the police and did nothing about abandoning it
either.”
¶ 12 After a hearing where the parties presented arguments in aggravation and mitigation, the
trial court sentenced Shepherd to 42 months’ imprisonment.
¶ 13 Analysis
¶ 14 Neither party disputes that Shepherd’s conduct satisfies the elements of UUWF—a person
knowingly possessing a firearm having been convicted of a felony. 720 ILCS 5/24-1.1(a) (West
2016). Shepherd’s testimony showed the gun was in her purse, which was in her possession, and
she knew it was there. The State also introduced a certified copy of her conviction for aggravated
battery of a peace officer, which constitutes a felony. Id. § 12-3.05(d)(4), (h). The State proved the
elements of UUWF.
¶ 15 Affirmative Defense of Necessity
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¶ 16 Rather, Shepherd argues the State failed to prove her guilty of UUWF because it failed to
prove, beyond a reasonable doubt, that her possession of the firearm amounted to justifiable
necessity. The State responds that Shepherd forfeited this argument because necessity constitutes
an affirmative defense and counsel failed to put the State on notice of the defense by failing to file
an answer. We agree with the State.
¶ 17 Necessity gives rise to an affirmative defense. See People v. Jackson, 2013 IL 113986,
¶ 23 (listing necessity as example of affirmative defense). A defendant forfeits an affirmative
defense by failing to make it in the trial court. People v. Bardsley, 2017 IL App (2d) 150209, ¶ 1.
We hold defendants to their forfeiture of affirmative defenses because once an affirmative defense
has been presented, the State must provide evidence to rebut the defense beyond a reasonable
doubt. Id. ¶ 17. Where a defendant fails to properly raise an affirmative defense, the State loses its
ability to determine what it must rebut and “would have to disprove every affirmative defense of
which even ‘slight evidence’ exists or risk *** new potential defenses on appeal.” (Emphasis in
original.) Id. ¶ 22. The typical method for alerting the State of a defense involves the answer to
discovery. See Ill. S. Ct. R. 413(d) (eff. July 1, 1982). Here, the parties do not dispute trial
counsel’s failure to file an answer at all, let alone an answer raising the defense of necessity.
¶ 18 That said, Bardsley left open the possible mechanisms by which a defendant could make
an affirmative defense. See Bardsley, 2017 IL App (2d) 150209, ¶ 23 (“we have not addressed
what [defendant] would have needed to do [to raise the affirmative defense] or when he would
have needed to do it”). Maybe explicitly raising it in a closing argument would be enough; maybe
raising it for the first time in a motion for a new trial would even be enough, allowing the State to
argue against it based on the facts in the record. Like Bardsley, however, we need not answer the
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question. Shepherd’s counsel never mentioned the affirmative defense of necessity at any time
during any argument before the trial court. By any measure, trial counsel forfeited the defense.
¶ 19 Ineffectiveness of Counsel
¶ 20 Anticipating the State’s claim of forfeiture, Shepherd also argues that counsel provided
ineffective assistance by foregoing reliance on the affirmative defense of necessity. Specifically,
she argues that counsel’s failure to serve notice on the State of the use of the necessity defense
constitutes deficient performance and that performance prejudiced her because trial evidence
supported the defense. We evaluate claims of ineffective assistance of counsel under the familiar
standard set out in Strickland v. Washington, 466 U.S. 668 (1984). See People v. Utley, 2019 IL
App (1st) 152112, ¶ 36. To demonstrate ineffective assistance, a defendant must show that (i) his
or her counsel’s performance was deficient and (ii) any deficient performance prejudiced him or
her. Id. We review claims of ineffective assistance of counsel de novo. Id. ¶ 37.
¶ 21 The State presented no argument about deficient performance. Ill. S. Ct. R. 341(h)(7) (eff.
May 25, 2018) (“[p]oints not argued are forfeited”). Because the State forfeited any argument
about counsel’s deficiency we assume, without deciding, that counsel rendered deficient
performance. See People v. Cruz, 2013 IL 113399, ¶ 19 (declining to decide issue on merits where
State forfeited it). Instead, the State asks us to affirm because, in its view, the purportedly
overwhelming evidence of Shepherd’s guilt discredits prejudice. We disagree.
¶ 22 To show prejudice from counsel’s deficient performance, Shepherd must demonstrate a
reasonable probability that the result of the trial would have been different had counsel performed
adequately, meaning “ ‘ “a probability sufficient to undermine confidence in the outcome.” ’ ”
People v. Gonzalez, 385 Ill. App. 3d 15, 19 (2008). This is not a high burden. See People v.
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Lucious, 2016 IL App (1st) 141127, ¶ 45 (“prejudice may be found even when the chance that
minimally competent counsel would have won an acquittal is significantly less than 50 percent as
long as a verdict of not guilty would be reasonable” (internal quotation marks omitted)). Shepherd
has met that burden here.
¶ 23 Where a defendant claims ineffective assistance for failing to assert a defense, the record
must contain enough evidence to support the theory. See People v. Tenner, 175 Ill. 2d 372, 391
(1997) (finding lack of prejudice where judge’s ruling on affirmative defense was based on
“inadequacy of the evidence offered in support of the theory”). In the specific context of
affirmative defenses, it takes only “very slight evidence” supporting the defense to submit it to the
factfinder. See Gonzalez, 385 Ill. App. 3d at 19.
¶ 24 Necessity has three basic elements: (i) defendant must be “without blame in occasioning
or developing the situation” leading to criminal conduct, (ii) defendant must reasonably believe
that his or her conduct was necessary to avoid a public or private injury, and (iii) the public or
private injury must be greater than the injury caused by the defendant’s own conduct. 720 ILCS
5/7-13 (West 2016). We find “very slight evidence” supporting the necessity defense.
¶ 25 There is direct evidence of the first element. Shepherd testified that she did not put the gun
in her purse and found it there after leaving it with others when she went to the restroom.
¶ 26 Also, direct evidence establishes that Shepherd believed her conduct as necessary to avoid
a private injury. Shepherd testified that she did not want to touch the gun for fear of getting her
fingerprints on it, leading to and implying that she owned the gun. We also find some evidence
that Shepherd’s temporary possession was necessary to avoid a public injury. Shepherd’s
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temporary possession of the gun, while she attempted to find the rightful owner, kept the gun
securely in the purse instead of out on the street.
¶ 27 As to the final element—the balance of harms—the State posits that a reasonable
alternative would have been dumping the purse’s contents on the sidewalk. We do not agree that
this would be a reasonable alternative. Shepherd’s temporary possession of the gun while she tried
to get rid of it—in her purse, obstructed from public view, not being brandished by anyone—offers
a better alternative to leaving the gun in plain view on the ground where anyone could find it, take
it, and use it. Moreover, because the police charged Shepherd with only a possessory offense, the
relative harm caused by her momentary possession of the gun was small.
¶ 28 Because some evidence supports the necessity defense, we must consider whether
Shepherd’s counsel’s failure to present the defense prejudiced the trial’s outcome. We find it did.
¶ 29 Trial counsel’s opening statement focused on the State’s inability “to meet their burden to
prove knowledge and intent to possess a firearm” primarily because “[Shepherd] did not put that
gun in her purse.” Two things stand out from counsel’s statement: (i) counsel appeared to be
laboring under a mistaken impression that Shepherd would not be guilty of possession as long as
she was not the one who put the gun in her purse or otherwise did not intend to possess it and (ii)
counsel conceded that officers found the gun in her purse, essentially admitting possession. Then,
during Shepherd’s testimony, counsel elicited an admission that she had the gun in her purse and
knew it was there—the precise elements counsel told the court the State would not be able to prove.
¶ 30 Counsel repeated similar errors in closing argument, asking the court to find Shepherd not
guilty because she did not touch the gun, all while admitting (again) that the gun was in her purse.
In finding Shepherd guilty, the trial court rejected this argument: “[I]f it’s a situation where it’s
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really not yours, but somehow ends up in your lap or in your purse, you have to terminate the
possession in a reasonable time.” The court did not consider necessity in its findings. We presume
the trial court (here, quite able) knows the law, including the law of affirmative defenses, but the
court is not obligated to consider a defense that counsel does not put before it. Bardsley, 2017 IL
App (2d) 150209, ¶ 22. We cannot expect the trial court to look at the evidence through the lens
of the necessity defense unless that defense was presented. See id. Counsel’s failure to put the
State on notice of the necessity defense and to put that defense before the trial court undermines
our confidence in the outcome. See Gonzalez, 385 Ill. App. 3d at 19.
¶ 31 The dissent rejects any claim of prejudice, finding it clear that counsel asserted and the trial
court considered a necessity defense. Not even the State reads the record that way, repeatedly
arguing in its brief before us that “the defense in this case was reasonable doubt,” that “defense
counsel never attempted to elicit any type of ‘necessity defense,’ ” and that “there was no claim of
necessity.” Even in the section of its brief arguing against Shepherd’s claim of ineffective
assistance of counsel, the State resists any implication that the record (either through testimony or
argument) presented a necessity defense to the trial court. The State claims that “there was no
evidence to amount to a necessity defense” and “there was overwhelming evidence that [Shepherd]
did not *** present any evidence to support the necessity defense.” This seems like a position we
should take seriously, given it is the State’s burden to rebut an affirmative defense beyond a
reasonable doubt. See Bardsley, 2017 IL App (2d) 150209, ¶ 22.
¶ 32 As for the dissent’s suggestion that defense counsel in criminal proceedings will
intentionally sit on their hands instead of raising a viable affirmative defense at the earliest
opportunity, our supreme court has roundly rejected that kind of supposition. In the plain error
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context, our supreme court described as “fanciful and denigratory to the defense bar” the State’s
argument that defense attorneys would have “ ‘an improper incentive to “sit on their hands” and
allow errors to unfold without objection.’ ” People v. Sebby, 2017 IL 119445, ¶¶ 70-71. As with
forfeited claims raised as plain error, so to with forfeited claims raised as ineffective assistance of
counsel. It is “fanciful and denigratory” to assume that counsel who intends to raise an affirmative
defense will intentionally fail to put the State and the court on notice of that defense before trial.
Instead we treat the forfeiture as what it is—a mistake (a/k/a ineffective assistance of counsel).
¶ 33 The dissent is entitled to its view of the factual merits of the necessity defense; we need
not further rehash our conclusion on that score. We reiterate that Shepherd need only establish
prejudice sufficient to undermine confidence in the outcome—a “significantly less than 50
percent” chance that the outcome of trial would have been different. (Internal quotation marks
omitted.) Lucious, 2016 IL App (1st) 141127, ¶ 45. With that understanding of Strickland
prejudice, we reverse and remand for a new trial.
¶ 34 Reversed and remanded.
¶ 35 JUSTICE PIERCE, dissenting:
¶ 36 The majority in this case finds that defense counsel was ineffective for failing to serve
notice on the State of the intent to assert the defense of necessity because it resulted in prejudice
to defendant where the evidence supported the defense. I respectfully disagree. The defendant
suffered zero prejudice in this case, since defense counsel early in the proceedings put the court
and the prosecution on notice of the reliance on a necessity defense. Defendant’s testimony, that
she relies on in support of her appeal, encompassed what she considered to be sufficient evidence
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to establish the defense of necessity, and, critically, her testimony setting forth her claimed
necessity defense was considered and rejected by the trial court in her bench trial.
¶ 37 As set forth in her appellant’s brief, defendant’s sole contention on appeal is that the State
failed to prove illegal possession of a weapon “because the defense at trial nevertheless conformed
with the necessity defense described in 720 ILCS 5/7-13, and the State and the [trial] court treated
it accordingly.” Defendant readily concedes that “[T]he State cross-examined Shepherd as to why
she did not immediately remove the gun from her purse, and the trial court considered whether she
terminated her possession in a reasonable enough time to justify her conduct.” In other words,
according to the defendant, the State did not meet its burden because defendant’s testimony should
have been accepted as credible and her testimony was sufficient to establish a necessity defense.
¶ 38 Because no formal answer to discovery was filed, defendant offers the alternative appellate
argument of ineffective assistance of counsel in anticipation that either this court or the State would
raise the issue of forfeiture. True to form, the State argues forfeiture because the necessity defense
argument is being raised for the first time on appeal because no notice of an affirmative defense
was filed during discovery and the term “necessity” was never mentioned at trial or in defense
counsel’s closing argument. The majority takes the bait. In doing so, the majority creates a new
strategy for the defense bar: do not file pretrial discovery asserting an affirmative defense, but
present evidence in the nature of an applicable affirmative defense. If convicted, a defendant has
a built-in appellate issue of ineffective assistance of counsel for failing to file a notice of an
affirmative defense. Contrary to the majority’s assertion, the creation of this “built-in appellate
issue” is not a reflection on the defense bar; rather, it is a commentary on what will result from
unsound appellate reasoning in the review of this appeal.
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¶ 39 I would find that, in this case, defendant was found guilty beyond a reasonable doubt where
the defendant unsuccessfully presented evidence in the nature of a necessity defense, without
objection or limitation from the State; where the trial court considered and rejected defendant’s
testimony; and where the trial court correctly found the defendant guilty. Further, I would find that
there was no prejudice where defense counsel failed to file notice of an affirmative defense but
introduced evidence of an affirmative defense that was rejected by the trial court.
¶ 40 Defendant readily admits that defense counsel never specifically put the State on formal
notice that it intended to assert the defense of necessity. If any complaint lies in this regard, it lies
with the State. However, defendant nevertheless presented testimony containing all the “facts” that
established a defense of necessity. Thus, admitting that she presented an affirmative defense,
defendant seeks a new trial because either her affirmative defense was not overcome beyond a
reasonable doubt, which it was, or her counsel did not file an answer in discovery disclosing the
exact defense that was presented, and rejected, during her bench trial. Under the facts of this case,
granting a new trial is absurd.
¶ 41 The defense of necessity involves the following elements: (1) the person claiming the
defense was without blame in occasioning or developing the situation and (2) the person
reasonably believed that his conduct was necessary to avoid a greater public or private injury than
what reasonably might have resulted from his own conduct. 720 ILCS 5/7-13 (West 2016). The
burden of proving the defendant’s guilt beyond a reasonable doubt always rests on the State
(People v. Abadia, 328 Ill. App. 3d 669, 679 (2001)), and once an affirmative defense has been
raised, the State has the burden of proving the defendant guilty beyond a reasonable doubt as to
that issue (People v. Guja, 2016 IL App (1st) 140046, ¶ 46).
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¶ 42 This was a bench trial where the arresting officer testified to the elements of the charge and
to defendant’s voluntary admissions made after her arrest that “I’m stupid,” “I’m on parole,” and
“I messed up my life.” In her defense, defendant testified that she was with friends and left her
purse with Von Civils while she went to use the bathroom. When she returned, her purse was on
the ground next to Civils. She picked up her purse, opened it, and discovered there was a gun
inside. The gun was not in her purse when she left it with Civils. She testified that she was scared
and shocked and did not know what to do. Because she was a felon, if she were caught with the
gun, she would be arrested. She spent several minutes trying to figure out who the gun belonged
to and trying to get someone to remove the gun from her purse before the police arrived. She
dropped her purse on the ground when the police arrived. Notably, she did not deny her admissions
to the arresting officer.
¶ 43 Defendant’s testimony was clearly an attempt to assert the elements of a necessity defense.
Her testimony demonstrates that her counsel presented a defense of necessity unrestrained and
unimpeded in any manner by objection from the State or by any comment from the trial court.
Because her testimony was rejected, defendant basically claims that her testimony should have
been accepted and, should this court reject her reasonable doubt argument, she throws in a
Strickland claim in hopes of obtaining a retrial. Clever work by appellate counsel; however, not
clever enough in my estimation to warrant a new trial.
¶ 44 Defendant testified and admitted to possessing the gun but denied knowing how it got into
her purse. See People v. Pickett, 217 Ill. App. 3d 426, 428 (1991) (for the defense of necessity to
be available, defendant must admit she committed the offense). She also testified that she
attempted to locate the gun’s owner. By her temporary possession of the gun while she attempted
to find the gun’s owner, she kept the gun securely in her purse instead of out on the street.
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Defendant testified on cross-examination that she did not take the gun out of her purse because she
did not want to touch the gun and leave her fingerprints on it. She further testified that she did not
merely empty her purse onto the ground because she was “in shock.” See People v. Janik, 127 Ill.
2d 390, 399 (1989) (The defense of necessity “is viewed as involving the choice between two
admitted evils where other optional courses of action are unavailable [citations], and the conduct
chosen must promote some higher value than the value of literal compliance with the law
[citation].”) Clearly, no testimony was offered on the greater evil she sought to avoid or that her
conduct promoted some higher value than the conduct she engaged in. Even if such testimony had
been offered, it did not have to be accepted by the trial court. The trial court found defendant’s
testimony unconvincing, and its credibility determination must be respected. People v. Brown,
2013 IL 114196, ¶ 48.
¶ 45 Once evidence of a necessity defense is presented, the trier of fact determines whether the
defendant’s actions were objectively reasonable under the circumstances presented and whether
the defendant’s reasonable belief has been held to encompass an objective factor. See People v.
Kucavik, 367 Ill. App. 3d 176, 180 (2006). The factors involved in determining the validity of a
necessity defense inherently go to the weight and credibility of the evidence. See People v. Kite,
153 Ill. 2d 40, 46 (1992). It is clear from the record that defendant presented a necessity defense.
The court considered and rejected defendant’s necessity defense because it simply did not find
defendant’s version of the events to be credible, and the court therefore rejected defendant’s
testimony that, in defendant’s words, “nevertheless conformed with the necessity defense.” Indeed,
when the court remarked that it found Officer Watson to be “very credible,” this must have
included his testimony of defendant’s admissions. With respect to defendant’s version of the
events, the court remarked, “her story is that she was innocently trying to use the washroom” (the
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first element of the defense: she was without blame in developing the situation) and “I’m not so
certain that I [believe her].” The court later stated that “all that happened was that she abandoned
the purse with the contraband when she saw the police and did nothing about abandoning it either
[sic]. And that’s if I even agree with her story. So there’s a finding of guilty.” 1 The experienced
trial judge is presumed to know the law, and he was in a superior position to judge defendant’s
credibility. We should defer to the trial court’s credibility determinations and affirm this
conviction.
¶ 46 Defense counsel did not specifically indicate that a necessity defense would be asserted.
However, this court may review this claim because, as the defendant admits in her appellate brief,
“the defense at trial nevertheless conformed with the necessity defense described in 720 ILCS 5/7-
13, and the State and the court treated it accordingly.” How the majority can ignore this statement
and claim counsel was ineffective is beyond comprehension. See People v. Crowder, 2018 IL App
(1st) 161226, ¶¶ 34-35 (finding State failed to negate evidence supporting necessity defense where
defendant argued he “had no choice but to grab the gun,” though counsel did not explicitly assert
necessity as a defense at trial). The State never objected to this testimony, and Shepherd was cross-
examined as to why she did not immediately remove the gun from her purse. The trial court
considered whether she reasonably terminated her possession to justify her conduct. The court also
remarked that even if Sheppard was in possession of the gun through no fault of her own, she did
not take adequate steps to rid herself of the gun within a “reasonable time” (the second element of
the defense: a reasonable belief her conduct was necessary to avoid a greater public or private
injury.)
1
I presume the court said or meant to say “and did nothing about abandoning it earlier.”
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¶ 47 Again, defense counsel presented a defense of necessity that was ultimately rejected by the
trier of fact. For this reason, I would find that defendant suffered no prejudice and that counsel’s
performance was not even close to meeting the Strickland standard for a showing ineffective
assistance of counsel. Defendant suffered no prejudice from defense counsel’s failure to formally
serve notice on the State of an intent to assert the defense of necessity because the defense was
asserted.
¶ 48 The majority’s conclusion results in a second trial where the defendant may or may not
choose to testify. The State will offer the same testimony in support of the charge. If defendant
does not testify, she will likely be convicted again. If she does testify, she presumably will offer
the same testimony she presented in this trial to advance the affirmative defense of necessity, her
testimony presumably will be rejected, and she will be convicted. The term “second bite at the
apple” does not do justice to the gift the majority is bestowing upon the defendant. If the majority
is sincere in its complimentary remarks about the trial judge, it would acknowledge that (1) the
trial judge, admittedly not perfect, is presumed to know the law, (2) he has likely prosecuted and
presided over more criminal trials than the entirety of the justices in this appellate district, and (3)
he enjoys an excellent reputation for fairness, understanding of the law, and a keen appreciation
for assessing credibility and according appropriate weight to the evidence, such that the procedural
failure to file a formal notice of an affirmative defense would not impair his ability to render a fair
and just verdict where the elements of the affirmative defense are offered. In short, had a formal
notice of an affirmative defense of necessity been filed, the defendant’s testimony would have
been the same, the trial court’s rejection of defendant’s testimony because it “didn’t believe her”
would have been the same, and the finding of guilt would have been the same.
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¶ 49 The defendant was not prejudiced in any regard. Defendant claims on appeal that her
testimony established that her affirmative defense was sufficient to defeat the State’s burden of
proof beyond a reasonable doubt. But that testimony was rejected. The State proved her guilt
beyond a reasonable doubt. There was no ineffective assistance by her trial counsel where
defendant presented the defense she wanted.
¶ 50 Lastly, the majority takes me to task for not following the State’s argument that “the
defense in this case was reasonable doubt,” that “defense counsel never attempted to elicit any
type of ‘necessity defense,’ ” and that “there was no claim of necessity.” Supra ¶ 31. They go on
to admonish that “we should take [the State’ position] seriously given it is the State’s burden to
rebut an affirmative defense beyond a reasonable doubt.” Supra ¶ 31. First, we are under no
compulsion to accept the State’s argument, especially where it is flat out wrong. It is an argument
that is obviously advanced to defeat defendant’s claim that a necessity defense was asserted at
trial, which the defense undoubtedly did. Second, the State’s position in this regard is so incorrect
that even the majority rejects the argument when it finds evidence of each element of a necessity
defense in the record (supra ¶¶ 25-27) and makes its finding that “some evidence supports the
necessity defense” (supra ¶ 28). If the majority is so enamored with the State’s position, it should
“take it seriously,” adopt it, and affirm the conviction.
¶ 51 I respectfully dissent.
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Cite as: People v. Shepherd, 2020 IL App (1st) 172706Decision Under Review: Appeal from the Circuit Court of Cook County, No. 17-CR-6783;
the Hon. James B. Linn, Judge, presiding.
Attorneys James E. Chadd, Patricia Mysza, and Katherine M. Donahoe, of
for State Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J.
for Spellberg, Iris G. Ferosie, and Christine Cook, Assistant State’s
Appellee: Attorneys, of counsel), for the People.
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