Criminal Law

(Modified upon denial of rehearing 2/2/16.) State, in 1998, charged Defendant with 2 counts of unlawful use of a weapon by a felon (UUWF) and 2 counts of simple unlawful use of a weapon (UUW). In 1999, while weapons charges still pending, State charged Defendant with first-degree murder, attempted first-degree murder, and aggravated battery after Defendant brought a gun to a fist fight. After a retrospective fitness hearing, court found that Defendant was fit in 2001 to be tried and sentenced for first-degree murder and to plead guilty to UUWF. Court's dismissal of Defendant's postconviction petition, after third-stage evidentiary hearing, was not manifestly erroneous. State offered credible evidence in form of defense counsels' testimony and a psychiatrist's report finding Defendant fit to stand trial in murder case and that he made his plea in felony weapons case knowingly and intelligently.(MASON and PUCINSKI, concurring.)

Defendant was convicted, after jury trial, of aggravated criminal sexual assault.  Court erred in denying Defendant's motion for forensic testing, as Defendant satisfied each element of Section 116-3 of Code of Criminal Procedure, for posconviction motion for forensic testing. Defendant put the question of identity squarely at issue at trial, as he disputed being the person who committed the crime, and stated at trial that it was victim's brother who committed the crime. (O'BRIEN and McDADE, concurring.)

(Court opinion corrected 1/29/16.) The admission of DNA expert testimony of a 50% probability of inclusion for a random person in the population as a possible contributor to a mixed DNA profile was error because it was irrelevant, as it did not tend to make the issue of Defendant's identification more likely than not. The admission of this evidence was not plain error, as error was not serious and evidence was not closely balanced as both victims identified Defendant. Court is not required to recite all counts against a defendant in admonishment of a waiver of the right to counsel pursuant to Rule 401(a). Admonishment substantially complies with Rule 401(a) where court states nature of charge and possible maximum punishment, even though it did not recite every count. (LAVIN, concurring; HYMAN, dissenting.) 

The admission of DNA expert testimony of a 50% probability of inclusion for a random person in the population as a possible contributor to a mixed DNA profile was error because it was irrelevant, as it did not tend to make the issue of Defendant's identification more likely than not. The admission of this evidence was not plain error, as error was not serious and evidence was not closely balanced as both victims identified Defendant. Court is not required to recite all counts against a defendant in admonishment of a waiver of the right to counsel pursuant to Rule 401(a). Admonishment substantially complies with Rule 401(a) where court states nature of charge and possible maximum punishment, even though it did not recite every count. (LAVIN, concurring; HYMAN, dissenting.) 

In 1992, Respondent was sentenced to 22 years for attempted criminal sexual assault. State filed petition to have him declared a sexually violent person 5 days before his scheduled release. Respondent presented evidence of probable cause that he is no longer a sexually violent person,so that he met his burden of production and he is entitled to an evidentiary hearing.(HOLDRIDGE, concurring; CARTER, dissenting.)

State charged Defendant by indictment with first degree murder and concealment of a homicidal death in death of his neighbor.  Court properly granted Defendant's motion to suppress. State failed to meet its burden in proving that statements made by Defendant while in custody at police department were sufficiently attenuated from taint of illegal arrest. Defendant did not voluntarily waive Miranda when he asked to speak with detective at end of 37 hours in custody. Police illegally held Defendant without probable cause, repeatedly ignored his requests to speak with an attorney, and held him nearly 37 hours before he made his statements. (O'BRIEN and LYTTON, concurring.)