Criminal Law

Defendant was convicted, following second jury trial, of first degree murder. Defendant made substantial showing of a constitutional violation and is entitled to third-stage evidentiary hearing on his claim of actual innocence. Defendant's claim of actual innocence is based on affidavit of person purporting to be the actual shooter stating that Defendant was not at the scene, consistent with Defendant's contention since his arrest; claim is not subject to cause-and-prejudice test. Defendant made a substantial showing that evidence was newly discovered, and that evidence would probably change the retrial and affiant's credibility must be determined at evidentiary stage, not at dismissal stage. (LAVIN and SALONE, concurring.)

Defendant was convicted, after jury trial, of Class 1 felony of criminal sexual assault, and required a finding that the Defendant knew that the victim was unable to give knowing consent. Defendant was age 17 at time of incident, and victim, then age 19, was intermittently passing out and drunk. During deliberations jury asked for "more explicit, expansive definition of reasonable doubt", and judge committed plain error in instructing jurors that it was "for the jury to collectively determine", as this allowed jury to use a standard that was likely below threshold of reasonable doubt standard, and thus deprived Defendant of his right to a fair trial. (CONNORS and HARRIS, concurring.)

Defendant was convicted, after jury trial, of first degree murder and that he personally discharged a firearm that proximately caused the victim's death. Court properly allowed publication of co-Defendant's videotaped prior consistent statement as substantive evidence. Co-Defendant testified at trial consistently with material on tape, and unlikely that verdict would have been different but for admission of tape. Court was within its discretion in barring defense expert from testifying at trial as to Defendant's police-related PTSD, as she had no opinion whether Defendant's PTSD affected voluntariness of his inculpatory statement to police, and had last seen Defendant several weeks prior to shooting. (LAVIN and STERBA, concurring.)

Defendant was convicted, after bench trial, of attempted first degree murder, aggravated battery with a firearm, and two counts of aggravated unlawful use of a weapon (AUUW). Court did not improperly assume role of prosecutor by considering other-crimes evidence against Defendant for limited purpose of identification. Defendant received sufficient notice prior to trial of alleged facts increasing penalty range of attempted murder conviction and was not prejudiced in preparation of defense. Convictions for attempted first degree murder and one count of AUUW did not violate the one-act, one-crime rule, but the convictions for aggravated battery with a firearm and a second count of AUUW did violate the rule. AUUW statute does not violate constitutional right to bear arms. (HALL and ROCHFORD, concurring.)

After bench trial, Defendant was convicted of attempted armed robbery and aggravated battery. Evidence proved the identification of Defendant as the assailant in convenience store's surveillance video beyond a reasonable doubt. Defendant, by his conduct, abandoned his request to represent himself. Court did not conclusively deny Defendant's motion to proceed pro se, but invited Defendant to present legal authority to support his position, in questioning the timeliness of Defendant's request, and Defendant failed to do so. Aggravated battery is not a lesser-included offense of attempted armed robbery. Penalties for attempted armed robbery in this case are unconstitutionally disproportionate, and proper remedy is to vacate sentence and remand for resentencing on Class 3 felony of attempted armed violence. (LAMPKIN and ROCHFORD, concurring.)

Defendant was convicted, after jury trial, of first-degree murder of one victim, and of attempted first-degree murder and aggravated battery with a firearm of another victim. A 25-year enhancement for personally discharging a firearm applies to the first-degree murder conviction but does not apply to the attempted murder conviction. Statute requires that the fact (of personal discharge of a firearm) be included as an aggravating factor for the specific offense, as jury is required to consider the specific elements required for an aggravating factor for that offense, and the elements for the convicted charges are not the same as the elements for the sentencing enhancement. (GARCIA and McBRIDE, concurring.)

(Court opinion corrected 6/30/11.) Defendant failed to show prejudice in alleged prior statement of State's rebuttal witness. Defendant did not show that State was willful in not disclosing witness' observation of movements of shooter. The State had disclosed this witness and that she saw a person shooting in front of her store, and Defendant had opportunity to impeach her credibility. State's other rebuttal witness gave proper rebuttal testimony as it contradicts Defendant's testimony that he was not in area of incident and did not make contact with that witness. Prosecutor's remark, in closing argument, to compare the credibility was not improper and "asking for justice for all", though improper, was not a material factor in conviction. (CUNNINGHAM and KARNEZIS, concurring.)