Criminal Law

(Per supervisory order, reconsideration of prior opinion of 5/17/10.) Court's inquiry whether jurors understood that Defendant did not have to prove anything was sufficient to satisfy Rule 431 requirement for inquiry that Defendant did not have to produce any evidence. Court's imparting of humor during voir dire, that half of their juror pay would be taken away if they changed the answer on their juror questionnaire, was in jest and did not intimidate jurors from answering inquiries truthfully. Court properly refused to give second-degree murder provocation instruction, as Defendant's conduct, in stabbing and striking victim with shovel and piece of wood, while others hit him with baseball bat, indicated she was not in "mutual combat" and had entered victim's apartment with intent to confront him about his plan to evict her, thus not in sudden and intense passion as a result of provocation. (GARCIA and HALL, specially concurring.)

(Court opinion issued pursuant to supervisory order of 1/26/11 for reconsideration of 8/19/10 opinion.) Jury found Defendant guilty of unlawful possession of heroin and possession with intent to deliver heroin. Court improperly allowed State to present hearsay evidence as to confidential informant having told officer that Defendant would be going to Chicago to pick up a large quantity of heroin and would return in a certain vehicle. That information was far beyond that necessary to explain officer's presence at certain location for surveillance, and limiting instruction did not cure error as it was not specific as to all hearsay statements. Error was harmless given that officer testified that he saw Defendant holding a purple cloth bag containing heroin, a scale, and a sleep aid used for cutting heroin. Not plain error for court to have not questioned one juror as to his acceptance of Zehr principles per Rule 431, as the entire venire was properly admonished as to the principles, evidence was not closely balanced, and Defendant failed to show that error resulted in biased jury. (CARTER and LYTTON, concurring.)

Defendant was convicted, after jury trial, of first degree murder for stabbing death of victim. No plain error in court's failure to sua sponte instruct the jury under IPI Criminal 24-25.09X (on justified use of force when a defendant is not the initial aggressor), and defense counsel was not ineffective for failing to request that instruction. Determination of whether Defendant initially provoked the use of force was not an essential element of the charged crime or his claim of self-defense. Critical question of Defendant's self-defense claim was whether his use of force, which was his stabbing of victim three times, was reasonable in the circumstances. Court erred in failing to question venire about their understanding and acceptance of Zehr principles, but trial was not thereby rendered fundamentally unfair. (SCHMIDT, concurring; McDADE, specially concurring.)

Defendant, age 19 at time of incident, was convicted, after jury trial, of two counts of predatory criminal sexual assault of eight-year-old child. State failed to prove the corpus delicti of the offense, because the State failed to present any evidence corroborating Defendant's out-of-court confession of act. Thus, apart from confession, State's evidence supported a finding only of lesser-included offense of aggravated criminal sexual abuse. No plain error in court not giving instruction mandated by Section 115-10(c) of Code of Criminal Procedure. Court gave pattern instruction on credibility of witnesses, and there was no serious risk that the jurors misunderstood the applicable law in a way that severely threated fairness of trial.(STEELE, concurring; MURPHY, specially concurring.)

Defendant, age 19 at time of incident, was convicted, after jury trial, of two counts of predatory criminal sexual assault of eight-year-old child. State failed to prove the corpus delicti of the offense, because the State failed to present any evidence corroborating Defendant's out-of-court confession of act. Thus, apart from confession, State's evidence supported a finding only of lesser-included offense of aggravated criminal sexual abuse. No plain error in court not giving instruction mandated by Section 115-10(c) of Code of Criminal Procedure. Court gave pattern instruction on credibility of witnesses, and there was no serious risk that the jurors misunderstood the applicable law in a way that severely threated fairness of trial.(STEELE, concurring; MURPHY, specially concurring.)

Court improperly denied Respondent's petition for discharge from custody and control of IDHS pursuant to Section 70 of Sexually Violent Persons Commitment Act. Court improperly weighed the contradictory evidence presented by the parties' respective psychological experts instead of determining whether Respondent's evidence that he was no longer a sexually violent person was plausible. As Respondent presented such plausible evidence, which thus establishes probable cause, case remanded for evidentiary hearing on petition for discharge from custody. (KNECHT and McCULLOUGH, concurring.)

Defendant was convicted, after jury trial, of second-degree murder, and sentenced to 20 years imprisonment. Defendant waved a knife toward victim, and knife punctured victim's chest and killed him. Evidence which showed that Defendant intended to swing the knife in victim's direction is all that is required to preclude an involuntary manslaughter instruction, and whether Defendant had additional subjective intent to kill or scare victim away is irrelevant. Although court erred in considering victim's death as an aggravating factor, as it was also element of offense, remand unnecessary, as this would not necessarily have led court to impose a harsher sentence than would otherwise have been imposed. Although court erred in not asking jurors whether they understood and accepted principle that Defendant need not testify and that not testifying cannot be held against him, Defendant failed to show resulting bias or prejudice. (KARNEZIS and HARRIS, concurring.)

Defendant was convicted of burglary and theft of cash, checks, and cigarettes, after bench trial, and was sentenced as Class X offender. Defendant's theft is not a lesser included offense of burglary, as burglary requires a knowingly unlawful entry into a building with intent to commit a therft therein, but does not require a "taking" of property with intent to permanently deprive the owner of the property as does theft. (ZENOFF and SCHOSTOK, concurring.)

Defendant was convicted, after jury trial, of resisting a police officer and attempting to obstruct justice. Video of arrest, and testimony of officer, showed that Defendant repeatedly resisted officers' requests that she place her hands behind her back, and Defendant did not submit until five officers restrained her, including using Taser gun, placing knee to her back, and using pressure points. Court erred in failing to address all of the Rule 431(b) principles with the alternate juror who was later empannelled when another juror was dismissed. However, no plain error, as evidence was not closely balanced. (CUNNINGHAM and HOFFMAN, concurring.)