Criminal Law

Defendant was convicted, after bench trial, of 1st degree murder, attempted 1st degree murder, and armed robbery. Before trial, Defendant filed a motion to dismiss the indictment against him, claiming that detectives promised him he would not be rearrested or charged in relation to the robbery and shootings if he passed a polygraph examination. Defendant consented to the test and passed. Appellate court vacated convictions and remanded, instructing trial court to complete the hearing on Defendant's motion to dismiss the indictment. Because remand order direct court to make a final ruling on that motion and retained jurisdiction only to resume consideration of his appeal if the motion was denied and his convictions reinstated, State was required to file a notice of appeal to perfect an appeal from the order dismissing the indictment.Because State did not perfect an appeal from court's order dismissing the indictment, appellate court does not have jurisdiction to consider State's challenge to that order in supplemental briefs filed under Defendant's prior appeal. (LAMPKIN and REYES, concurring.) 

Defendant was convicted, after jury trial, of 1 count of 1st degree murder, 1 count of aggravated battery, and 2 counts of mob action. Defendant's brother had been charged as a codefendant with the same set of crimes, but his trial was to be held separately. During Defendant's trial, defense counsel announced its intent to call Defendant's brother as a witness, but brother invoked his 5th amendment rights and refused to testify. Evidence offered in brother's affidavit, which stated that brother acted alone, goes to the ultimate issue of who the shooter was, and is of such a conclusive character that it would probably change the result on retrial. Brother's affidavit was executed and offered 2 years after brother was convicted and sentenced for the same crimes. As no amount of diligence could have forced brother to waive his 5th amendment rights, the affidavit qualified as newly discovered. Defendant's postconviction petition and supporting affidavit from his brother adequately alleged a claim of actual innocence, entitling him to appointment of counsel at the 2nd stage. (DAUGHERITY, concurring; SCHMIDT, dissenting.)

Defendant was convicted, after bench trial, of 2 counts of endangering the life or health of a child when he overdosed on heroin while a 5-year-old child was in his care and custody. Defendant possessed heroin in close vicinity to the child and used it while the child was in his care and custody. When police and paramedics arrived, they found the child near the bathroom where Defendant was found unconscious and several bags of drugs and syringes were nearby. Based on totality of these circumstances, it was reasonable for court to conclude that Defendant knowingly cause child to be placed in circumstances that endangered his life or health. (DAUGHERITY and SCHMIDT, concurring.)

Defendant was convicted of 1st degree murder, attempted murder, and aggravated discharge of a firearm. Evidence at trial showed that 2 eyewitnesses identified the same person (not the Defendant) as resembling the shooter in a photo array, before later identifying Defendant as the shooter in a photo array and lineup. Defendant did not present any evidence at trial. Illinois Supreme Court held,in 1990, that expert testimony on the issue of eyewitness identification was admissible in certain circumstances. Thus, the claim that defense counsel was ineffective for failing to offer expert testimony on the subject of eyewitness identification was available to Defendant at the time of direct appeal in 2007, and he should, and could, have raised the issue in that appeal. Defendant failed to establish cause for failure to raise his ineffective assistance of counsel claim earlier. THus, court properly denied Defendant leave to file 2nd successive postconviction petition. (HOFFMAN and ROCHFORD, concurring.)