People v. Hill

2021 IL App (1st) 131973 -B

204 N.E.3d 841

461 Ill.Dec. 505

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Robert HILL, Defendant-Appellant.

No. 1-13-1973

Appellate Court of Illinois, First District, Fourth Division.

Filed May 27, 2021

Joshua Tepfer, of the Exoneration Project at the University of Chicago, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg and Phyllis Warren, Assistant State's Attorneys, of counsel), for the People.

JUSTICE MARTIN delivered the judgment of the court, with opinion.

¶ 1 We remanded defendant Robert Hill's case for completion of a hearing on his motion to dismiss the indictment but retained jurisdiction over the case and other issues raised in his appeal. People v. Hill , 2016 IL App (1st) 131973-U, ¶¶ 29-30, 2016 WL 2346728. On remand, the trial court completed the hearing and granted Hill's motion to dismiss the indictment upon finding the State breached an enforceable cooperation agreement to not rearrest or charge Hill if he took and passed a polygraph test. The State did not file a notice of appeal from that ruling. Instead, the State filed a "supplemental" brief under Hill's prior appellate case number arguing dismissal of the indictment was too extreme a remedy. For the reasons explained in this opinion, we find that we lack jurisdiction to consider this matter because the State failed to file a notice of appeal from the order dismissing the indictment.

¶ 2 I. BACKGROUND

¶ 3 After a bench trial, Robert Hill was convicted of first degree murder, attempted first degree murder, and armed robbery for his role in the robbery of Frank's Liquor Store in Robbins, Illinois, on the day after Thanksgiving, November 25, 2005. The crime left the proprietor Fakhri Elayyan (Frank) shot and in a coma and his daughter Ghadda Elayyan dead. Frank eventually recovered. The shooter, Carnell Tyler, decided to rob the store and kill Ghadda after an incident two days earlier in which Tyler felt Ghadda was rude to him when he tried to purchase lottery tickets. According to trial testimony, Hill helped Tyler by recruiting 17-year-old Darion Nance, who supplied the gun and cased the store at Hill's direction. Hill also drove the trio to and from the robbery. Afterward, all three split the money from the store's cash register.

¶ 4 Before trial, Hill filed a motion to dismiss the indictment against him. His motion claimed detectives from the Cook County Sheriff's Police promised him he would not be rearrested or charged in relation to the robbery and shootings at Frank's if he passed a polygraph examination. Hill consented to the test and passed. After Hill testified about this in a hearing on his motion to dismiss the indictment, the State moved for a directed finding asserting Hill could not establish an enforceable cooperation agreement because he failed to allege the State's Attorney authorized the agreement. The trial judge agreed and granted the State's motion for directed finding on that basis.

¶ 5 On appeal, Hill argued, among other issues, that, even absent the State's Attorney's approval, the agreement was enforceable. We allowed Hill to cite People v. Stapinski , 2015 IL 118278, 396 Ill.Dec. 362, 40 N.E.3d 15, decided after his conviction, which held the State could be bound by cooperation agreements made by police officers without the State's Attorney's authorization. Because the trial judge denied Hill's motion to dismiss on the contrary assertion, we found the ruling was an error of law. Hill , 2016 IL App (1st) 131973-U, ¶ 27.

¶ 6 The State argued that remand to the trial court for consideration of the motion was not warranted because, they averred, the transcript of Hill's conversation with the detective refuted that Hill and the detective formed the cooperation agreement Hill alleged. We rejected the State's contention because the transcript was not admitted into evidence in the trial court. The State further argued remand was unnecessary because, in its view, even if a cooperation agreement was formed as alleged, dismissal of the indictment was too extreme a remedy in this case. Id. ¶ 28. We found the State's argument concerning the remedy was premature because the hearing had not been completed. Id. Since the trial judge granted the State's motion for directed finding after only hearing Hill's testimony, Hill had not yet met his burden to prove the existence of an enforceable cooperation agreement and that the State breached it. The trial judge had made no findings of fact or determined any witnesses’ credibility. Therefore, we determined remand was required for completion of the hearing.

¶ 7 We vacated Hill's convictions and instructed the trial court to complete the hearing on Hill's motion to dismiss the indictment. Id. ¶ 29. We expressly retained jurisdiction over the case and stated we would decide the other issues raised in Hill's appeal, if necessary, following completion of the hearing on remand. Id. ¶ 30.

¶ 8 At the hearing on remand, the parties stipulated to the video with audio of Hill's time in custody during which the alleged cooperation agreement was made. The parties also stipulated to a transcript of the conversations between Hill and detectives, a transcript of the polygraph questions and answers, and the polygraph examiner's report, which opined Hill was truthful. (Hill denied any involvement in the crime.) Delvin Gray, the officer who administered the polygraph, was the only witness called to testify before Judge Boyd.¹ Hill's prior testimony was admitted as well. The trial court took the motion under advisement and announced its decision on December 15, 2017.

¶ 9 The trial judge found the conversation between Hill and the detectives showed an offer, acceptance, and meeting of the minds that formed an enforceable cooperation agreement in which Hill would not be arrested or charged if he passed a polygraph test.² The judge further found that Hill detrimentally relied on the agreement by waiving his fifth amendment privilege, Hill fulfilled his part of the bargain by undergoing the polygraph and passing it, and the State breached the agreement by later arresting and prosecuting him. The judge then dismissed the indictment and ordered Hill released on bond pursuant to Illinois Supreme Court Rule 604(a)(3) (eff. July 1, 2017) and entered an order to that effect. The order stated Hill's motion to dismiss had been granted.

¶ 10 The State filed a motion to reconsider, arguing the hearing evidence did not show an enforceable cooperation agreement or, in the alternative, dismissal was not the proper remedy. The trial court denied the motion to reconsider on February 14, 2018, and directed Hill's counsel to draft an order stating the court denied the State's motion. Counsel did so. The judge then signed the order and entered it on the record the same day, February 14, 2018.

¶ 11 At no point did the State file a notice of appeal challenging the circuit court's order. Instead, on January 23, 2019, the State filed a "Supplemental Brief and Argument for Plaintiff-Appellee Following Proceedings on Limited Remand Ordered By this Court" under the appellate case number of Hill's prior appeal filed in 2013. The brief recounts the proceedings, including those on remand, and states, "This case is now back before this Court following the limited remand ordered by this Court." The State further asserts that this court retained jurisdiction to consider its argument that dismissal is too extreme a remedy because we found that argument premature in our order remanding for completion of the hearing on Hill's motion to dismiss the indictment. Hill filed a responsive brief on March 15, 2019. His brief notes that we retained jurisdiction and states "Jurisdiction is proper for the reasons stated in the [sic ] Hill's originally-filed opening brief."

¶ 12 We ordered additional briefing to address whether we have jurisdiction to consider the State's challenge to the trial court's order dismissing the indictment without first filing a notice of appeal from that order. The State filed a brief largely reiterating that, because we found its remedy argument premature and retained jurisdiction, the State could reassert the argument when it became ripe under the same appeal without filing a new notice of appeal. Hill reversed his position and now argues the State was required to file a notice of appeal to challenge the dismissal of the indictment because, despite bearing the opposite label, the State is the party seeking a different result and otherwise taking steps such as filing a supplemental record that are attendant with being the appellant rather than the appellee. Hill further argues this court's order remanding for completion of the hearing on his motion to dismiss the indictment only retained jurisdiction if necessary to resume consideration of the other issues he raised to challenge his conviction if he received an adverse ruling on remand.

¶ 13 II. ANALYSIS

¶ 14 The appellate court has an independent duty to consider its own jurisdiction, even if the parties fail to raise it and even if the parties believe jurisdiction has properly attached. People v. Van Dyke , 2020 IL App (1st) 191384, ¶ 41, 448 Ill.Dec. 939, 178 N.E.3d 263 ; Sykes v. Schmitz , 2019 IL App (1st) 180458, ¶ 9, 429 Ill.Dec. 666, 124 N.E.3d 1176. To invoke the appellate court's jurisdiction over an order from which an appeal is taken, the appeal must be perfected. Ill. S. Ct. R. 606(a) (eff. July 1, 2017). "Perfect" means "[t]o take all legal steps needed to complete, secure, or record (a claim, right, or interest)." Black's Law Dictionary (11th ed. 2019). Appeals are perfected "by filing a notice of appeal with the clerk of the trial court." Ill. S. Ct. R. 606(a) (eff. July 1, 2017). "No step in the perfection of the appeal other than the filing of the notice of appeal is jurisdictional." Id. Put differently, " ‘[f]ailure to file the notice of appeal is jurisdictional.’ " People v....