Criminal Law

Ct. of Appeals vacated  and remanded Dist. Ct.’s second attempt to impose certain conditions of supervised release as part of defendant’s bank robbery charge. Ct. found as either vague or unwise: (1) condition requiring defendant to “seek and work conscientiously at lawful employment,” since said condition failed to contemplate any inability to obtain employment; (2) condition requiring defendant to remain within “jurisdiction,” since Dist. Ct. failed to define boundaries of jurisdiction; (3) condition allowing probationary officer to visit defendant at work, since such visit could cause employer to re-think defendant’s continued employment; and (4) condition requiring defendant to perform 20 hours of community service if he is unemployed for 60 days, since Dist. Ct. had failed to define community service or explain significance of 20 hour requirement.

Record contained sufficient evidence to support jury’s guilty verdict on drug possession charges under circumstances where drugs were found in lining of cooler in co-defendant’s home, at time when both co-defendant and defendant were present. Jury could properly find that defendant had constructive possession/control over said drugs, where: (1) defendant paid rent for said apartment; (2) recorded telephone calls contained defendant’s conversations with co-defendant about shipment of drugs and about defendant’s arrival next day after said shipment; (3) co-defendant told informant that drugs had arrived, and that defendant would be arriving that same day, when co-defendant sold informant half-pound of methamphetamine; and (4) police discovered drugs in co-defendant’s apartment next day, as well as discarded packaging that tied drugs in apartment with half-pound of drugs delivered by co-defendant to informant. Informant also testified that he was required to do business with defendant through co-defendant.

Dist. Ct. did not err in denying defendant’s habeas petition challenging his murder conviction on ground that his trial counsel was ineffective for failing to seek 2^nd degree murder jury instruction based on provocation, where trial counsel sought and obtained 2^nd degree murder jury instruction based on self-defense. Trial counsel made reasonable, strategic choice to omit provocation instruction, where defendant testified that prior to confrontation with victim he was not upset and just wanted to leave scene, and where such testimony was inconsistent with provocation jury instruction. Moreover, defendant failed to establish any prejudice arising out of trial counsel’s failure to seek such instruction, where jury obviously rejected defendant’s self-defense claim based on forensic evidence that supported govt.'s view that victim had died from severe and repeated beating to head. Also, defendant procedurally defaulted claim that his conviction was product of govt.'s use of false testimony, where defendant could produce only unsigned and unsworn affidavits to support such claim, and where defendant otherwise failed to raise claim within applicable 2-year period under section 2-1401 of Illinois Code.

In prosecution on drug and prostitution charges, Dist. Ct. did not err in denying defendant’s motion to suppress drugs seized from his car and two homes, after dog alerted to presence of drugs in defendant's car after he had been stopped on traffic violation. Defendant did not challenge legality of his traffic stop, and Ct. rejected his claim that officer improperly conducted dog sniff during said stop, where: (1) instant dog sniff, which occurred within five minutes of officer requesting said sniff, did not prolong traffic stop in any meaningful way; (2) dog alert occurred while officer was still processing defendant’s traffic citation; and (3) at time officer stopped defendant on traffic violation, officer had reasonable suspicion that defendant had drugs in his car due to faint smell of marijuana in defendant’s car and due to officer’s prior traffic stop of defendant where officer had noticed stronger marijuana smell. Also, officer did not improperly assist dog during instant sniff, where dog initially alerted to presence of drugs while outside of defendant’s car, and where dog entered car through door that had been left open by defendant. Moreover, subsequent searches of defendant’s homes were proper since they were based on distribution amounts of drugs found in defendant’s car, as well as defendant’s admission that he had used drugs at his home.

Dist. Ct. did not err in denying defendant’s habeas petition challenging his capital murder conviction after granting govt.’s motion to lift stay on consideration of said petition, even though Dist. Ct. had previously found that defendant was not competent to assist his counsel in proceeding on petition. Under Ryan, 133 S.Ct. 696, Dist. Ct. could properly proceed on habeas petition even though defendant was still incompetent, where issues contained in habeas petition were “record-based” claims that were resolvable as matter of law. With respect to merits of his claims, defendant failed to establish any reversible error with respect to prosecutor’s actions during closing arguments at sentencing phase of trial that pertained to showing pictures of victims to jury and accusing defense counsel of crying at every trial, where trial court instructed jury to disregard prosecutor’s actions and where trial court, and not jury, had ultimate sentencing authority. Ct. further rejected defendant’s contention that his trial counsel was ineffective, where record showed that: (1) counsel essentially advanced defendant’s main argument that his co-defendant was instigator of murders; and (2) trial court rejected his argument based on facts indicating defendant had planned murders and tried to cover up his crime. Ct. also noted that defendant retains right to future hearing as to whether he is sufficiently competent to be put to death.

In prosecution on bank robbery and money laundering charges, Dist. Ct. did not err in denying defendant’s motion to suppress his arrest, as well as dye-stained money found on defendant at casino under circumstances where casino attendant observed defendant feeding dye-stained money into slot machine and then cashing out machine with vouchers without having played any games. Record showed that: (1) part-time security officer at casino was actual lieutenant at local police dept.; (2) information that casino attendant told lieutenant about defendant’s conduct at slot machine permitted lieutenant to stop defendant and ask him two questions about source of his money, especially where lieutenant’s past experience indicated that banks used red-dye packs to mark stolen money; and (3) lieutenant had probable cause to arrest defendant where lieutenant also observed defendant holding stack of red-dyed currency that had been wrapped in bank bands and where defendant gave unlikely story that he had found money at location near where he had changed his tire. Dist. Ct. also did not err in admitting expert testimony regarding historical cell-phone site analysis that govt. used to place defendant relatively near site of bank robbery, where expert set forth advantages and limitations of such analysis for jury’s consideration.

In prosecution on drug distribution charge, defendant waived any alleged error with respect to Dist. Ct.’s instruction to jury to keep on deliberating case in response to juror’s request to be removed from jury because he could not “make sound” decision on case. Prior to sending instruction to jury, defense counsel stated “perfect” in response to Dist. Ct.’s question as to whether said instruction was appropriate. Ct. further noted that bare instruction to keep deliberating would not warrant reversal of jury’s guilty verdict, even though Dist. Ct. had failed to also give for fourth time Silvern instruction that reminded jury to hold onto their convictions.