first case and our call morning this case number one zero six two hundred people the state of illinois versus michael p catamite agenda number six morning mark levine of the office of the state appellate defender and i'm representing mr card i'm mr card i'm was convicted of harassment of a witness which is a class two felony he was sentenced to three years in prison and that conviction consecutive to his sentence in another case has that other conviction has since been reversed and remanded for a new trial and mr car and this case so what's at stake here today is the last two felony conviction so there are two issues on an appeal one  whether what he did could have been intended to inflict enough emotional distress to the be this class two felony and there's a disagreement on that point or maybe a disagreement on that point between the second district court court below and the fifth district based on constant and interpret in the statute to make it constitutional the aether issue which is the one i really want to address is whether he could have intended whether the evidence is sufficient to show that he could have intended to cause any emotional distress at all whether what he did was too remote to be even in direct communication and since the whole case can be disposed of based on this issue of this that's the one i would like to address now statute requires the specific intent to annoy or harass and there's a lot more to the statute but this is the the pertinent part now here it cannot be inferred from the evidence that mr carden them intended that the complainant be stopped by the police at all by his call so without a stop without the police stop there being no annoyance to the complainant there's no communication there's nothing so the question naturally springs to mind what do you expect when he called nine one one well that's the that really is the question and that question has to be answered by the natural and probable consequences of reporting on nine one one what he reported was really mean and i know this wasn't the focus of the briefs but and i know the focus is really van but his conduct itself the communication i don't believe the trial court found that it was in the evidence of when he pulled up next to her was that he and his wife glanced at  she looks straight ahead and that's all that happened so they're both on the road on this on the public road at the same time and he happens to pull up next to her and glance at her that couldn't be a communication or at least there's no evidence to support an inference that that would be a communication with the intent to annoy the witness something in the facts and i don't know whether it would fall under the which even the communication problem i noticed in the anything from the fact that the wife was fearful for her child and the erratic alleged erratic driving of the driver the minivan in this case and would still choose to pull up alongside that know that it was at a stop light the car would have been stopped not not driving erratically at that moment so i don't know that we could infer anything from that we might be able to infer the reason why mr cart of them called nine one one so the question question is what did he intend by calling by by calling nine nine one one and as i said we have to look at what did he report not just not just the generic nine one one call he reported something specific so before i go on i want to emphasize that mr cardamom is not arguing that a nine one one call can never  b the grounds for a harassment of the of a witness it depends on what what's reported in that nine one one call the content of this call is undisputed the recording of the call was played in court and there's no dispute about what was said he reported in this nine one one call was a suspicion he reported what he described as another car swerving he reported that he thought he saw the driver drinking something but it's undisputed that he did not report that he saw the driver drinking alcohol the police officer also let me ask you right here is it is it unreasonable to think that an inference to be arguing what did what did he intend the reasonable and forseeable consequence of reporting what he reported would be to have the police take a look at her driving he did not he didn't people drink lots of things from bottle bottled water software let's listen to the what your cockle erratic driving with drinking from a bottle it would be reasonable suspicion well that was his suspicion that it was alcohol that was part of whatever policeman got that message no your honor that was the basis for mr cardamom suspicion but he's not a police officer i counsel when in point of time did he pull out next to  testified that she wasn't exactly sure whether of course she didn't know exactly when the call was made so we don't really know the answer to that the only thing we have in the record is his testimony and his wife's coast money that he pulled up next door after after making the call they said i think they testified that they were curious to get a look at this person and that's why they pulled up and they looked at her and mrs mrs cardamom testified that she said oh my gosh it's mrs so he s entirely clear to me how but the trial court made the inference that they knew it was her when they made the call it mrs nice and testified she made eye contact with them she testified that she kept looking straight ahead and she saw out of her peripheral vision that it was them so there were there was that was that there was really really putting aside the fact that you know whether or officer would determine that they should pull somebody over based on somebody saying there's drinking and erratic driving regardless of mention you know when you said it was mr card i'm on suspicion when the reasonable driver we're dealing with his intent right only follow and make their own observations but actually pull that personal well it's he may have hoped that a police officer would pull that person that you're going to rule in my client's favor but everybody everybody expects this court to make its own judgment based on the law you're not going to make your ruling based on what i want you to do what you think i want i want you to do you're going to make your own independent judgment on what the law and that's what everyone that's what everyone naturally expects and it was the same thing with mr cardamom and the police he may have hoped that the complain that this is isn't would do something while the police were watching her that would create a reasonable suspicion for a stop you may have hoped that she would swerve the next crazy well of the police was watching her she may have hoped that she would make a turn without signaling or something you may have hoped that but his call what he did did not provide a reason for the police to stop her unlike if if he had reported as i said if he had reported i saw her drinking alcohol if he really wanted the police to stop or he could have reported something like that if he's going to make up something he could have reported she has a trunk full of cocaine or she has seized drinking alcohol or she's been shooting the gun out the window or some of these years or older and that one of his calls i see a driver in front of me driving a radically i saw bottle i would hope that you would call the police and i hope if the police call that person or would that be enough i think that he didn't except for saying i would hope the police pull the person over that is that's our case right now he reported i saw a bottle and i saw her swerving i'm adding hope you're adding he said hope he said i hope you know that the changes that i think you can reasonably infer that actually going to happen i understand because what he would reasonably expect is for the police officer or any police officer to look at or that's what he expected not to stop reasonable expected expected her expected the officer to look at it and make his own determination just like this court will make its own determination about whether itself isn't just about matched the but the bottle in the car you know even if even if the opposite your honner ok list because because that's what he did say he said i saw a bottle now most drivers who are out there drinking from bottles are not drinking alcohol they're drinking bottled water they're drinking coca cola or they're drinking drinking other things most drivers drinking for buck from bottles and you know this from driving on the highway most drivers who are drinking something are not drinking alcohol fortunately i mean just slightly different yes it is it is a and this is cardamom said she swerved first to the left or it might be vice versa i don't remember but they disagreed the court found that that was a contradiction in their testimony mrs eason testified that she didn't swear and so the court said ok i've got a contradiction here she's not she's the only one testifying so i'm going to believe her that's the finding that the trunk court made as for whether there was a bottle in the car she said there was not the police officer who leaned into the car and looked didn't see  about whether there was one end of the seat i don't know she also mrs isn't also testified that some point during this trip she applied a plug lipstick which would have meant that she would necessarily have brought something to her mouth that could have appeared and that could have been what what he saw we don't really know exactly what what he saw i think it's pretty clear that he didn't make this up from whole cloth however because if he did he could have made up a much better story if if what he may not constitute a legal versus illegal stop or do you think the average driver on the road would expect this person to be all over based on asking me to well you know we say we presume that people stuff legal and illegal based on various facts right now and those are motions that come before the court all the time so you know i think we should have it based on that you could say that the police officers don't always know what i'm talking about the air bridge right calls somebody up and says i see somebody drinking they're driving to radically do you really think the average driver on the road expects the police to do their own surveillance of that or do you think there's an expectation by the driver well i haven't done a poll i don't know i have to hope that citizens of our country expect the police to make reasonable judgments rather than just simply going out and stopping people are the fourth amendment our whole system is based on police have having reasons for stopping people and not just doing so because someone else called again as i mentioned in my the stories about the nazis sending in false reports and or delaminate arrival we don't do that here and i hope that the citizens of our country don't expect the police to do that and don't want the police to do the job that i want eat you to return over here i'm sorry i'm deaf in one ear and i like you to return to your original painting statement with regard to emotional distress whether or not the defendant could have intended to produce emotional intend for the police to stop her based on his suspicion then and intended merely to have the police take a look at her driving and assess whether she needed to be stopped if that's what he intended then and the policeman had followed her as he did pop out of there for half an hour and in syria doing anything wrong then she wouldn't even have known that any of this happened so she would have been annoyed there wouldn't have been any communication at all none of  this none of this so the question is what did he intend by doing this did he intend to have her stopped if he didn't intend to have her stop to but merely intended to have her driving scrutinized and he didn't intend to annoy and in the statute that's the that's one of the elements that's the specific intent that's required the intent to annoy so if he didn't intend to communicate anything to her then he didn't intend to annoy or so sure position that he is not sufficient that he set in motion a series of events that would you know it ended up with her being stopped he had to have intended that she be stopped still another is he had to intend precise planners of communication are obese as well that might be a little more x i'd like to make that argument but i don't think i reasonably could make that argument you're doing what you have to infer video intended the reasonable and probable effects of of what he did not all the possible effects what if for example the policeman had shot or this would be beyond anything that could have been expected intended everything that possibly could happen lots of lots of things could happen you know the butterfly in china theory that one thing causes events around the world but at some point these events even though you may be able to trace it back step by step and find a cause and work at some point they're just too remote for the law to find someone guilty of plus two felony based on this remote link good morning i mean our no conall an assistant attorney general on behalf of the people the state of illinois i'd like to first address what exactly happened in that case and that set set forth very clearly in the trial court's opinion in terms of who was credible in this case and therefore what were the facts that actually occurred that court found that trees eastern was not driving or radically she was not doing anything out of the ordinary that was a an actual finding the court also found that at the time defendant made the nine i won't call he knew the driver of the car it was sure he said isa so from these facts the court found that there could be no reason other so council focused a lot on whether this was a communication this use of police authority to indirectly communicate with the victim clearly that was the defendant why would the defendant place a call to nine one one and falsely report that he's observed swerving behavior by a driver for umar that she has a bottle what c be his intent other than to have a police officer intervene in some fashion i think your honour's are correct that the average citizen does not know the nuances of probable cause it is reasonably probable that the police officer will pull over someone if they receive a report that she has been driving very dangerously and that she possibly has oklahoma car defending our view is that he didn't say precisely well she had alcohol when he couldn't really have known that she had alcohol but what he did say was she had something with like a bottle that she's drinking from this was a fabrication the police officer that examined her car afterward found no bottle all of the witnesses testified that she never at any point threw anything out of her window so this fabrication was although it wasn't you know possibly the best story that defendant could have come up with the clear implication of his report to nine one one is he's reporting this is a drunk driver having having that in front of us any any person making such a called intense that the police officer will probably pull her over and i just want to address some of the points that were made in the  defeats his case this says that the defendant need only know two reasonable probability what would happen the facts in this case the defendant here was engaged in an armed robbery one of his victims took his gun and fired a shot as the defendant was running killing a bystander clearly that's not what you would know to one hundred percent certainty would occur during the course of an armed robbery but it is certainly for the court also said in that case that there is a principle that if there is an intervening cries then it can cause a break in the in the causal sequence however the intervening cause must be completely unrelated to the acts of the defendant in this case the police officers arguable misconduct in pulling over trees isa in the absence of any further information or observations of erratic driving was perfectly related to defendant's film called to him because that is the information that he received from a call was the information that he used to make the traffic stop so in this case under lori clearly this was forseeable and therefore we can easily conclude that the defendant intended in making his call that the police would pull her over you know  there has not been very much precedent in terms of what constitutes an indirect communication however we know from the statute beis inclusion of the word interact that it meant to encompass now whole means of communicating with  that i don't and i would just argue that the statutory language is is unequivocal unequivocal on its face and therefore that there's no need to resort in this particular case yes i think that comes within the definition those would even be direct forms of communication is there there was no trace of money by the police officer was the victim's knowledge that it was a defendant who had placed a false call to nine one one and thus engaged the police to falsely and fraudulently puller over on our way home and in this case just to emphasize they were both on their way home from a court hearing that dealt with the criminal case at which this witness was potentially going to testify against the defendant the the witness saw that the defendant was driving directly behind her the people have never alleged that defendant simple act of being on the roadway was in any way misconduct but it certainly goes to her state of mind in terms of what what was the context that she viewed this within and that was she was nervous by issues may nervous by the defendant she knew immediately that it was the defendant that place this call on the distress that she suffered was knowing this defendant engaged in an act that was intended to interfere with her peace and that it was solely because she was a witness against him and that causes quite a bit of anger and i think you know reasonable anxiety that well if this defendant is willing to do this and fall seeing gauge law enforcement what else might he be willing to do to interfere just due to my status as a witness that was said that set in motion the events and if the police had not pulled her over there couldn't have been a complete communication because it did have to be he made the call and then it had to be at some point communicated to her that he had made the call so there the police intervention was necessary in order to complete the communication but defendant's own act under the statute would have been his placing of the c under the witness harassment statute are rational factfinder could clearly conclude that this defendant had done an act that was intended to interfere with the witnesses peace and tranquility know at the time and never knew that it was the defendant that placed the call but here the defendant was directly behind her on the road she saw him behind her he and his wife doing something and kind of laughing so she was kind of already on edge and then because there is no basis whatsoever for a police officer to pull her over she knew pretty clearly that it must about the defendant that did so and in fact is an i'm on call indicates it was  thank you and she she said no i know exactly yes the police officer said to her we received a call that said you are a possible drunk driver immediately she said oh i know who that is that's that that person that i was just at a court hearing for that you know committed a crime against my daughter and you for their questions communication was was so remote and so indirect that it reached ms hughes and through her own imagination now it turns out that her imagination was right  was mr crowder man who made the call but she testified she testified that when she was stopped by the police she said i was already extremely nervous and upset because of the following home she thought that mr cardamom was following her although the testimony well you know we're live but the testimony was undisputed that he lived down the same road a bit further south from her so this  whole road that they were both on was the direct route home for both of them he wasn't following her home she left the court the same court hearing a little before he did and they were both going home and he was naturally behind her he wasn't following her home but she thought he was she she testified that she was that frightened or that she saw him behind her so when she was stopped this sprang to her mind he must have been the one who called the police because she was already terrified but it wasn't anything that mr carter moaned did with intent to terrify or yes she was terrified but this came from her own imagination she she saw them she saw mr carden alone and her and his wife laughing in the car behind her she testified and so she assumed she testified that they were laughing at her she assumed that they were loud but she said it seemed that something was going on well this is what she thought but you can't infer anything about the defendant's intent from the complainants imagination see police lights come on beef before behind you your heart drops and so and she did testify about that but in the previous sentence she had just said that what really upset or what really made her angry was her belief that it was mr card a move she was already furious that because of this other criminal case that her belief that it was him who did this although she had no like i say it turns out she was right but she had no information that we information had been communicated to her the police officer did not say mr cardamom called called nine one one she thought of this now the state said asked the question the same question that i asked why else would why else would she have what would mr cardamom have called nine one one and i think i tried to answer that in my original argument wasn't it was to have the police take a look take a look at her driving and you can't infer that it was to have or her stop because that would be beyond the law  if you have any other questions for me i'll try to answer them otherwise i'll sit down thank you very much very much