Criminal Law

Defendant was convicted, after jury trial, of 1st degree murder. Court dismissed a juror because he was repeatedly inattentive and appeared to be sleeping during trial. No abuse of discretion in court's decision to excuse that juror, even though it came after he revealed his dismissive view of the evidence presented up to that point.No violation of due process or plain error when defense counsel waived Defendant's presence during in camera questioning of and discussion with alternate juror who first reported seeing juror sleeping, and with that juror who admitted he had fallen asleep. (O'BRIEN and LYTTON, concurring.)

Defendant was convicted, after jury trial, of residential burglary and possession of burglary tools. Defense counsel did not have a per se conflict of interest. Although she had appeared on behalf of the State at Defendant's guilty-plea hearing in an unrelated case more than 10 years earlier, she was never involved in the prosecution of Defendant in this criminal proceeding. Her prior work as a prosecutor, with no evidence that it was related in any way to the current prosecution, was not a per se conflict of interest. (TURNER and CAVANAGH, concurring.)

 Defendant was charged with unlawful possession of methamphetamine. Court erred in granting Defendant’s motion to suppress. Police officers responded to a report of a “suspicious vehicle” and encountered Defendant, who was sitting inside a parked car that matched the description. Officer observed a small plastic baggie on floorboard of car. Officer ordered Defendant to exit the vehicle, and a dog “sniff” resulted in officers finding controlled substance. Totality of circumstances presented to officers at time of seizure justified a reasonable suspicion of criminal drug activity such that further investigation was warranted. Defendant was not seized until after police developed a reasonable, articulable suspicion of criminal drug activity. A K-9 officer arrived on the scene a few minutes later and conducted a dog sniff, and the officers’ investigatory detention was not unreasonably prolonged. (KNECHT and TURNER, concurring.)

Defendant was convicted of 2 counts of predatory criminal sexual assault of a child. Court properly denied Defendant’s pro se postconviction petition after 3^rd-stage hearing. Rule 651(c ) did not govern counsel’s performance at the 3^rd-stage hearing; it is measured by the overarching reasonableness standard, and counsel did meet the reasonableness standard. Counsel complied with Rule 651(c ) at the 2^nd stage when he consulted with Defendant, examined the trial, record, and amended the pro se petition as necessary to adequately present Defendant’s claims. Even assuming that Defendant had done poorly in the 5^th or 6^th grade, Defendant’s educational level was but one factor relevant to whether he knowingly and intelligently waived his Miranda rights. Video of his interrogation confirms that Defendant understood, and knowingly and intelligently waived, his Miranda rights. (BURKE and SCHOSTOK, concurring.)

Court dismissed Defendant’s postconviction petition. Defendant argues that postconviction counsel failed to comply with Rule 651(c ) by failing to amend his petition to include notarized affidavits from 2 potential witnesses. Pro se allegations in petition that were supported by 2 witnesses’ unnotarized affidavits were not meritorious claims. Contention as to exclusion of one witness’ testimony is barred by res judicata. As to the other witness’ testimony, Defendant could have raised claim of intimidation based on the new affidavit and forfeited the issue, and that claim has no basis in law or fact.   (CUNNINGHAM and CONNORS, concurring.)

(Modified upon granting of petition for rehearing 12/13/19.) Defendant entered a fully negotiated guilty plea to 1 count of theft. Prior to accepting her plea, court admonished her pursuant to Rule 402(a). Court sentenced her to conditional discharge. Ten days after her plea, Defendant filed motion to withdraw her plea and to vacate the judgment, which court denied. Substantial compliance with Rule 402 is what is required for all guilty pleas, and court was not required to admonish Defendant of potential employment consequences of guilty plea. Section 113-4(c) admonishments are to be given at that time of the arraignment. Defendant did not plead guilty at her arraignment and thus these admonishments do not apply to Defendant. Defendant failed to meet her burden to establish she entered her plea of guilty on a misapprehension of fact or law. (HOLDER WHITE, concurring; HARRIS, specially concurring.)

Defendant was convicted, after jury trial, of possession with intent to deliver a controlled substance, and was sentenced to 9 years. Sentence was not excessive. Defendant had extensive criminal history, including 7 prior felony convictions, was on parole at the time of this offense, and incurred another intent to deliver charge while on bail in this case.  (MIKVA and CONNORS, concurring.)

Defendant was charged with 2 counts of aggravated DUI and 2 counts of DUI. Defendant filed motion to suppress, claiming that officer lacked training or tools to ascertain whether his car windows were illegally tinted which officer claimed was the basis for the traffic stop. Court erred by granting Defendant’s motion to suppress because it applied an incorrect standard applicable to the 4^th amendment. The 4^th amendment requires a totality of the circumstances approach, and the facts of each individual case must be considered. As a substantial amount of window tinting is now legal, police must have some ability to discern between legally and illegally tinted windows, and that method must be reliable. Officer’s testimony that he could not see anything through Defendant’s window provided a reasonable, articulable suspicion of violation of Vehicle Code. (HOLDER WHITE and CAVANAGH, concurring.)