Criminal Law

Under Section 5-4-3 of Unified Code of Corrections, trial court does not have authority to order a defendant to submit a DNA sample and pay a $200 DNA analysis fee, where that defendant has already submitted a DNA sample, and paid a DNA analysis fee, for prior conviction. Code provides circuit court with discretion to order a DNA sample in the rare case that a defendant's prior DNA record had been expunged, or if prior DNA sample is not adequate. (KILBRIDE, FREEMAN, THOMAS, GARMAN, BURKE, and THEIS, concurring.)

(Court opinion modified per supervisory order 1/26/11.) Court did not re-admonish second jury panel of Zehr principles, and did not admonish venire that Defendant's failure to testify could not be held against him, nor ask whether they understood and accepted that principle. Evidence was not closely balanced, and because Defendant testified, he cannot argue prejudice as to court not informing jury that if he did not present evidence or did not testify that it could not be held against him, thus no plain error. State's comments that Defendant sets up shop to sell drugs next to an elementary school, and that he is a drug dealer, and that this is not CSI, not improper suggestion of past and future illegal conduct, but reasonable inference given that Defendant was next to a school when selling drugs to undercover officer. Comment as to CSI was invited by defense counsel's questions as to why State's expert did not obtain fingerprint evidence. (J. GORDON, concurring; HOWSE, concurring in part and dissenting in part.)

Defendant was convicted, after jury trial, of several counts of sexual assault and abuse and possession of child pornography, from incidents of sexual conduct with his 13-year-old stepdaughter and her classmate. Defendant exhibited a subjective expectation to negotiate a plea, reasonable under totality of objective circumstances, and was attempting to bargain for a specific sentence of probation rather than imprisonment if he confessed. Thus, his plea-related statements, offered by two State witnesses and emphasized in closing arguments, were inadmissible, and error in admitting statements was highly prejudicial and warrants reversal. (GALLAGHER and PUCINSKI, concurring.)

(Court opinion corrected 5/13/11.) Defendant was convicted, after jury trial, of first degree murder and concealment of homicidal death. Court was within its discretion in denying Defendant's request to instruct jury on involuntary manslaughter because he cannot show his actions were "reckless". Prosecutor's comment, that if jury believed Defendant's "load of baloney" that it was second degree murder, they should let him walk, was brief and isolated and did not substantially prejudice Defendant. Sentencing judge properly balanced goals of retribution and rehabilitation. (KARNEZIS and CONNORS, concurring.)

Defendant was convicted of burglary after jury trial. Court's failure to ask each person in venire whether he or she understood and accepted the fourth Zehr principle was plain error, but evidence was nbot so closely balanced that the error severely threatened to bias jury against him. No ineffective assistance of counsel in defense counsel making an alternative explanation for Defendant's presence. Defendant himself decided not to testify after State rested. (MURPHY and STEELE, concurring.)