People v. O'Malley

• Decision Date: 19 March 2021
• Docket Number: 5-19-0127
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Katherine O'MALLEY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

2021 IL App (5th) 190127
183 N.E.3d 928
451 Ill.Dec. 471

The PEOPLE of the State of Illinois, Plaintiff-Appellant,
v.
Katherine O'MALLEY, Defendant-Appellee.

NO. 5-19-0127

Appellate Court of Illinois, Fifth District.

Filed March 19, 2021

James A. Gomric, State's Attorney, of Belleville (Patrick Delfino, Patrick D. Daly, and Max C. Miller, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

James E. Chadd, Ellen J. Curry, and Christina M. O'Connor, of State Appellate Defender's Office, of Mt. Vernon, for appellee.

OPINION

PRESIDING JUSTICE BOIE delivered the judgment of the court, with opinion.

451 Ill.Dec. 473

¶ 1 On March 21, 2017, the defendant, Katherine O'Malley, was charged by information with committing the offense of unlawful possession of a controlled substance in violation of section 402(c) of the Illinois Controlled Substances Act (Act) ( 720 ILCS 570/402(c) (West 2016)). On January 23, 2019, the defendant filed a motion to dismiss, stating that her alleged actions comported with the statutory immunity provided in section 414(b) of the Act (id. § 414(b)), which grants limited immunity from prosecution for a person seeking medical assistance for someone experiencing an overdose. The trial court conducted a hearing on the defendant's motion to dismiss on February 25, 2019,¹ and on

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March 6, 2019, entered a written order stating its findings and granting the defendant's motion to dismiss.

¶ 2 The State now appeals the trial court's judgment granting the defendant's motion to dismiss, arguing that the defendant failed to prove that she was entitled to the limited immunity provided by section 414(b). We agree and for the following reasons, we reverse the judgment of the trial court.

¶ 3 I. BACKGROUND

¶ 4 The record of proceeding on the trial court's hearing on the defendant's motion to dismiss conducted on February 25, 2019, reveals the following information. At the beginning of the hearing, the parties requested that the trial court determine which party carried the burden of proof. The defendant argued that section 414(b) was a limited bar to charging or prosecuting an individual that was seeking medical assistance for an overdosing individual. As such, the defendant argued that the State should have the burden to prove it was entitled to charge the defendant in this matter. The defendant also argued that if the burden was placed on a defendant, a defendant would be required to waive his or her fifth amendment rights in order to obtain the protections of section 414(b).

¶ 5 The State argued that the defendant's motion to dismiss asserted an affirmative matter. The State, therefore, noted that a motion based upon an affirmative matter requires the individual asserting the affirmative defense to bear the burden of proof. It was the State's position that requiring a defendant to bear the burden of proof would not force a driver of a vehicle to waive their fifth amendment rights on a law enforcement stop if they were truly assisting someone who was overdosing. The State further argued that section 414(b) gives the state's attorney the discretion as to whether to proceed with charges or prosecution if the facts fall under the requirements of the statute.

¶ 6 The trial court, after hearing arguments, ruled that the defendant carried the burden of proof. The parties proceeded to inform the trial court that they had an agreed stipulation that the specific drug and the amount of the drug involved in this matter fell within section 414(d) of the Act's limitations. See id. § 414(d). The defendant then presented one witness after which the State presented three witnesses. The trial court heard the following testimonies.

¶ 7 The only witness called by the defendant was Kurt Eversman, a former law enforcement officer with St. Clair County Sheriff's Department. Officer Eversman testified that, on March 19, 2017, he was employed by the St. Clair County Sheriff's Department as a law enforcement officer and that, while driving on Highway 15, he received a call from his dispatch concerning a drug overdose at a home located on North Belt West in Belleville, Illinois. Before he could proceed to the home, Officer Eversman stated that the dispatch call was changed to an individual potentially overdosing in a vehicle headed west on North Belt West. Officer Eversman testified that the vehicle proceeded to Highway 15 and that he, along with Officer Savage, conducted the stop of the vehicle.

¶ 8 Officer Eversman stated that he observed Officer Savage at the driver's side window of the stopped vehicle so Officer Eversman exited his vehicle and went to the passenger's side window. Once at the vehicle, Officer Eversman stated that he observed the defendant in the driver's seat, an individual in the passenger's seat, and three other individuals in the back seat of the vehicle. Officer Eversman testified

451 Ill.Dec. 475

183 N.E.3d 932

that he also observed heroin on the passenger's seat, the driver's seat, the driver's side floorboard, and the back-seat floorboard. There were also hypodermic needles on the passenger's side floorboard and the back-seat floorboard. Officer Eversman testified that once the defendant was removed from the vehicle, he observed three pills on the driver's seat and one pill on the driver's side floorboard.

¶ 9 According to Officer Eversman's testimony, he noticed that one of the individuals in the back seat appeared "kind of slumped over" and "responsive but not responsive." He also noticed that the individual in the passenger's seat was "still having some effects of the heroin or fentanyl or whatever it was they took" so the officers called for an ambulance so that emergency medical treatment could be administered. Officer Eversman acknowledged that the stop of the vehicle was for the sole purpose of checking on the well-being of the individuals in the vehicle and that he was not attempting to investigate any sort of criminal activity at the time of the stop.

¶ 10 Officer Eversman also testified that he spoke with all the individuals in the vehicle and he could not recall anyone stating that they were on the way to seek medical assistance. Officer Eversman stated that he was familiar with the area and that Memorial Hospital was 1.6 miles from the residence that the vehicle left, but that the defendant's vehicle was going the opposite direction. Officer Eversman further testified that he did not know whether Touchette Regional Hospital had a detox program, but that St. Elizabeth's Hospital would have also been closer than Touchette Regional Hospital, and that both Memorial and St. Elizabeth Hospitals dealt with drug overdoses every day.

¶ 11 The defendant informed the trial court that she had no further witnesses. The State then called Officer Savage to testify. Officer Savage stated that he was employed by the St. Clair Country Sheriff's Department and had been for 14 years. Officer Savage testified that he was on duty on March 19, 2017, and that he had received a call from his dispatch concerning a vehicle with a suspected overdosed victim inside that had recently left a residence. According to Officer Savage's testimony, "we received information that they had grabbed the overdosed victim and put her in the vehicle and they left the residence and we was trying to locate the vehicle." Officer Savage stated that he located the vehicle on Highway 15 and stopped the vehicle for the sole purpose of checking on the well-being of the overdosed victim.

¶ 12 Officer Savage stated that the defendant was driving and that there were four other individuals in the vehicle. Once the vehicle was stopped, Officer Savage testified that he observed narcotics and contraband in plain sight throughout the vehicle. Officer Savage further testified that he spoke with the defendant but did not recall her making any mention of seeking medical assistance or attempting to get to a hospital. According to Officer Savage, the vehicle was heading west on Highway 15 when it was stopped and, although Memorial Hospital was close by, the vehicle was headed in the opposite direction. Officer Savage did acknowledge that medical personnel were called to the location of the stopped vehicle, but he stated that they were called by law enforcement and not at the request of any of the individuals in the vehicle.

¶ 13 Next, the State called Kevin Kocurek to testify. Kocurek testified that he was employed as an investigator with the St. Clair County Sheriff's Department and that he worked with the Drug Tactical Unit. Kocurek stated that he conducted a recorded interview with the defendant on

183 N.E.3d 933

451 Ill.Dec. 476

March 20, 2017. According to Kocurek's testimony, the defendant stated during the interview that she had no idea where they were going but that the individuals in the vehicle wanted her to head toward the highway. Kocurek further testified that the defendant never mentioned seeking medical assistance or...