Criminal Law

Just before midnight, police officer saw person come out from behind bushes located between post office and sidewalk, then person jumped over bushes, and got in back seat of car. This conduct was sufficient to subject vehicle to lawful Terry investigative stop, even if there were plausible innocent explanations for conduct. Drug-detection police dog, walking around vehicle, alerted upon reaching handle of front passenger door. Warrantless search of Defendant, who was the front-seat passenger, was permissible based on dog's detection of odor of cannabis. (HUDSON and BIRKETT, concurring.)

Defendant was convicted of 2001 murder of ex-girfriend. Judge found Defendant eligible for death penalty as murder was committed in violation of protective order. Defendant claimed that State's notice of intent to seek death penalty was untimely, as filed outside the Rule 416(c) limit of 120 days after arraignment. Court's decision was an intervening event that made it impossible to grant Defendant relief from purported Rule 416(c) violation. Appeal dismissed as moot, as judge imposed prison term of 60 years, and nothing in record indicates that sentence was influenced by eligibility for death penalty.

Defendant was convicted of felony murder after jury trial. After 10 hours of deliberations, jury asked whether, if during a robbery one of the robbers commits murder, all are liable for the murder. In response, court improperly gave two jury instructions on accountability, which was a new theory of guilt. Even though defense counsel made brief remark, in closing, that one of the four accomplices could have shot the victim, the remark was not sufficient to interject issue of accountability into the case. Defendant was denied right to fair trial, as defense never had opportunity to argue accountability as to murder charge, and jurors' query implied that they had not yet reached verdict on murder charge. (HOLDRIDGE and O'BRIEN, concurring.)

After having been convicted of burglary by jury, Defendant later entered open plea of guilty to residential burglary. Court failed to specifically identify any assessed fees and fines at sentencing hearing, but thereafter Defendant was assessed two $20 fines and two $5 fees, and circuit clerk later sent Defendant notices for collection of his unpaid costs and fines, and then two late fees and two collection fees. Circuit clerk improperly assessed fines and fees for conviction, as imposition of a fine is a judicial act. Even though residential-burglary charge was severed from robbery charge within same case number, Defendant should not have been assessed duplicate fines and fees for those two convictions. Court and court on remand should consider application of presentence credit. (TURNER and APPLETON, concurring.)

(Modified upon denieal of rehearing 10/14/11.) Defendant was convicted, after jury trial, of DUI and driving while license revoked (DWLR). Court imposed Class 2 felony sentence for DUI conviction. Court concluded that DWLR was a lesser included offense and vacated DWLR conviction. Evidence was sufficient to sustain enhancement of offense, but court erred in vacating DWLR conviction. Although State forfeited issue of vacatur of DWLR, relaxation of forfeiture rule is appropriate given court's misapplication of nebulous concept of merger of convictions. Judgment modified to reinstate conviction of DWLR, with three-year sentence to be served concurrently with DUI conviction. (BURKE and BIRKETT, concurring.)

Defendant was convicted, after jury trial, of first degree murder, aggravated criminal sexual assault and home invasion. State was not required to prove that victim was still alive when actual sexual penetration occurred "essentially simultaneously" as homicide and part of same criminal episode. Facts of assault were brutal and heinous, and court properly weighed aggravating and mitigating factors, including Defendant's age and lack of violent criminal history. Court was within its discretion in imposing sentence of natural life. (CAHILL and GARCIA, concurring.)