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Illinois Supreme Court Asked to Review the Appellate Court's Application of Illinois’ “Harmless Error Doctrine”

For Immediate Release: June 26, 2015

Contact: Craig M. Sandberg, 312.263.7249,

Springfield, IL – The appellate court found the circuit court’s sua sponte citizen’s arrest instruction (Illinois Pattern Instructions (I.P.I.) – Criminal 24-26.16) for the State’s benefit was “clearly inappropriate” and “clearly error” and “had no place in this case.” People v. Dahms, 2015 IL App (1st) 133301-U, ¶¶ 51, 53, 55 (emphasis in original). Specifically, the appellate court found as follows: “What the jury instruction did…was inject the trial court’s opinion as to what happened before the battery in question took place, and to some extent what happened afterward. The jury heard evidence that defendant smashed the cab’s windshield, and it heard evidence that the briefcase accidentally made contact with the windshield after the cab stopped too close to defendant in the street. The jury instruction effectively picked one version over the other. It made the cab driver’s accosting of defendant the equivalent of a ‘lawful arrest,’ suggesting that defendant had engaged in criminal conduct with respect to the shattering of the windshield.” Dahms, 2015 IL App (1st) 133301-U, ¶ 52.

“Worse still, the instruction inserted commentary as to the events forming the offense in question. In describing the alleged battery at issue, defendant testified that the cab driver grabbed his briefcase and would not let go, and during the process of forcefully removing it from the driver’s grasp, the briefcase accidentally contacted the driver in the face. The jury was told by this instruction, however, that the cab driver was making a lawful arrest and was ‘justified in the use of any force which he reasonably believe[d] to be necessary to effect the arrest.’ Defendant’s testimony painted the cab driver’s refusal to let go of his briefcase as unreasonable, but the jury instruction told the jury that the cab driver ‘need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance.’ Simply put, the jury instruction effectively placed the fault for the broken windshield on defendant, and more significantly, it placed the cab driver in a very favorable light during his confrontation on the street with defendant. The giving of this instruction was clearly error.” Dahms, 2015 IL App (1st) 133301-U, ¶ 53.

Here, citing and quoting controlling Illinois law, the appellate court pronounced that “[e]rror arising from the tendering of a jury instruction is deemed harmless only if the submission of proper instructions to the jury would not have yielded a different result.” Dahms, 2015 IL App (1st) 133301-U, ¶ 54. However, instead of the appellate court asking itself the inescapable question of whether “it [is] clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error”, see People v. Thurow, 203 Ill. 2d 352 (2003) and Chapman v. California, 386 U.S. 18 (1967), the appellate court, seemingly, looks to (without calling it by its name) the sufficiency of the evidence, which looks to “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” People v. Hernandez, 2012 IL App (1st) 92841, ¶ 13.

Defendant contends that by giving the citizen’s arrest instruction, the delicately balanced scales of justice were tipped in favor of the State. The circuit court biased the jury against Defendant before it was to consider the evidence related to the charged conduct, which, thus, usurped Defendant right to a fair and unbiased jury. “A criminal defendant is entitled to have his or her guilt or innocence determined solely with reference to the crime with which he or she is charged. People v. Gregory, 22 Ill. 2d 601, 602-03 (1961). The improper admission of other crimes-evidence implicates a defendant’s fundamental rights of fair trial by an unbiased jury and to due process. U.S. Const., amend. V, VI, XIV; Ill. Const. 1970, art. I, §§ 2, 8, 13; People v. Roberts, 100 Ill. App. 3d 469, 474-76 (1st Dist. 1981).” People v. Sawyer, 2013 IL App (2d) 110897, ¶ 27.

In his petition to the Illinois Supreme Court, Defendant argued three issues that warrant the Court's review. First, the appellate court’s application of Illinois’ “harmless error doctrine” to the circuit court’s sua sponte citizen’s arrest instruction and its admission that this was “clearly inappropriate” and “clearly error” and “had no place in this case” conflicts with the Supreme Court’s rulings in People v. Thurow, 203 Ill. 2d 352 (2003). In doing so, a panel of the First District has refused to follow this Court’s precedent (and the precedent of the Supreme Court of the United States in Chapman v. California, 386 U.S. 18, 22 (1967) and Neder v. United States, 527 U.S. 1 (1999)) and to apply stare decisis. Moreover, the appellate court’s finding of error constitutes “trial error” that was not harmless and may, in fact, constitute “structural error” subject to automatic reversal without regard to the evidence in the particular case based on Tumey v. Ohio, 273 U.S. 510 (1927). Second, the lower courts’ decisions related to the denial of Defendant's right to have the jury instructed on his theory of defense constitutes error that can never be considered harmless error given the fact that the right to have the jury instructed as to the defendant’s theory of the case is one of those rights so basic to a fair trial that failure to instruct, where there is evidence to support the instruction, can never be considered harmless error. Third, the lower courts’ decisions related to the constitutionality of 720 ILCS 5/12-3.05(c) was not supported by the evidence.

WHAT: Petition for Leave to Appeal in Dahms v. People (Docket No. 119465) seeking review of the First District's decision reported at People v. Dahms, 2015 IL App (1st) 133301-U.

WHO: Craig M. Sandberg of the law firm of Muslin & Sandberg.

WHERE: Supreme Court of Illinois, Supreme Court Building, 200 East Capital Avenue, Springfield, Illinois

To view a PDF of the petition, please click here: Dahms v. People, Petition for Leave to Appeal, No. 119465

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