Incomplete Record Torpedoes Appellate Argument

April 12, 2019 9:32 AM | Anonymous member (Administrator)

By Margaret Manetti
Sosin, Arnold & Schoenbeck, Ltd.

A complete appellate record is one of the most precious things an appellant can build for an appeal. Its primary importance was established again in People v. Burnett.

In that case, the defendant appealed his conviction stemming from his arrest for unlawfully possessing a weapon. 2019 IL App (1st) 163018, ¶ 1. Three police officers spotted Burnett in a van with no front license plate. Id. ¶ 3. The officers approached the van, and noticed Burnett remove an “L” shaped object from his waistband and place it in the back of the van. Id. ¶ 4. The object turned out to be a semiautomatic handgun, and Burnett was arrested. Id. He did not have a FOID card or a concealed carry license. Id. ¶ 5. Burnett was later convicted, and he appealed. Id. ¶ 6.

On appeal, Burnett argued that he was deprived of his constitutional right to effective assistance of counsel because his attorney should have moved to quash his arrest. Id. ¶ 7. He claimed that mere possession of a gun is no longer sufficient to establish probable cause to justify an arrest. Id. The First District acknowledged that the Illinois Supreme Court had determined in People v. Aguilar, 2013 IL 112116, that a statute was unconstitutional because it categorically criminalized the possession of a weapon outside the home. Id. ¶ 10.

There was a problem, though: the record did not “contain sufficient information about the circumstances of defendant’s arrest from which we could determine whether he has an arguably meritorious claim.” Id. ¶ 11. The Court noted that because the case just went to trial, the State had no reason to factually demonstrate probable cause in the first place. Id. It specified that due to the insufficiency of the record about the arrest, “we have no way of knowing what the officers’ probable cause determination was based upon[.]” Id. ¶ 12.

The Court forcefully rejected the defendant’s argument that holes in the record should go in his favor. It recognized that the defendant “attempts to spin the lack of testimony about probable cause into a conclusion that there was no probable cause.” Id. ¶ 14 (emphasis in original). This reasoning could not work, because the defendant was “drawing an affirmative conclusion from a negative premise. The lack of evidence currently in the record concerning probable cause and the officers’ pre-arrest beliefs cannot be equated with fact—that there was no evidence to support a probable cause determination.” Id. (emphasis in original).

The Court concluded that it “would be imprudent for us to reach the question about the existence probable cause at this stage in the case because there is too much potential information to which we are not privy and because the issue was not visited by the circuit court.” Id. ¶ 16. “Because the record is insufficient, we must affirm.” Id.

This case should serve as an important reminder to jealously guard the state of the trial court record for a potential appeal.

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