Criminal Law

A vacant house is not a “dwelling” within the meaning of the residential burglary statute, where the owners had placed the property for sale but had secured no purchaser and had moved out of the state with no plans to return to the house. As burglary is an included offense of residential burglary, Defendant's conviction is reduced from residential burglary to burglary. (ZENOFF and JORGENSEN, concurring.)

Court improperly denied Defendant's pro se motion for leave to file a successive postconviction petition, wherein Defendant alleged that newly discovered evidence supported his Brady claim, namely, evidence that Detective was involved in a pattern of flagrant misconduct whereby he manipulated witnesses to falsely identify individuals in multiple other cases. Petition meets "cause and prejudice test", as the objective factor that impeded his ability to raise a specific claim was lack of evidence of detective's pattern of misconduct. (McBRIDE and HOWSE, concurring.)

Defendant was convicted, after jury trial, of predatory criminal sexual assault of 5-year-old daughter of his live-in girlfriend. Fact that court ordered a fitness hearing pursuant to Section 104-10(b) of Code of Criminal Procedure, in response to defense counsel's statement that he had bona fide doubt as to Defendant's fitness does not mean that court also had bona fide doubt of Defendant's fitness. Thus, no error in court not ordering a fitness hearing and not making independent judicial determination of fitness. No error in admitting testimony of State's medical expert that child's normal examination findings (lack of physical trauma) was consistent with sexual abuse, as expert explained basis for her opinions and defense had opportunity to cross-examine expert. (HALL and GARCIA, concurring.)

Defendant was convicted, after bench trial, of possession of child pornography. Internet browsing history for Defendant's computer, showing a history of visiting Web sites with names suggestive of child pornography, was not improper other-acts evidence. State used Defendant's Cookies and Favorites to prove intent, i.e. that the nine TIF images on Defendant's web cache were not present by accident but were specifically sought out by Defendant. Recorded statement, combined with Cookies and Favorites, were sufficient evidence that Defendant knowingly and voluntarily possessed child pornography. (BURKE and SCHOSTOK, concurring.)

(Court opinion corrected 1/16/13.) Defendant was charged with eight counts of unlawful use of a weapon by a felon and one count of being an armed habitual criminal. Court improperly granted Defendant's motions to quash arrest and suppress. Officers' warrantless search of apartment, in response to multiple anonymous 911 calls reporting that gunshots had been heard from building, was only a plain view safety search, and was justified by emergency aid exception to warrant requirement. Probable cause existed, as one 911 caller identified the apartment where Defendant was found. Though police did not have authority to command occupants to exit the apartment, based on totality of circumstances fourth amendment was not violated. (LAMPKIN, concurring; GARCIA, dissenting.)

(Court opinion corrected 12/19/12.) No error in allowing State to amend indictment on first day of trial. No ineffective assistance of counsel in defense counsel failing to strike a juror, as it was a matter of trial strategy to accept juror. Entire voir dire must be considered, not only juror's statement that he would like to believe that police officers were more credible; totality of juror's responses showed that he could be fair and impartial. No ineffective assistance of counsel by defense counsel waiting until surrebuttal to call a witness, who was not allowed to testify. Counsel's decision not to call witness was a sound strategy and not a procedural mistake. (HUDSON and BIRKETT, concurring.)