Criminal Law

Defendant was convicted, after jury trial, of criminal drug conspiracy. Court denied Defendant his constitutional right to self-representation on basis that Defendant was incapable of adequately representing himself, and thus committed structural error. Because Defendant made a clear and unequivocal choice to represent himself, after having been given proper admonitions, the court was required to honor his choice, unless court had found that Defendant had a mental disability that incapacitated him from understanding admonitions. (KNECHT and STEIGMANN, concurring.)

Defendant was convicted of criminal sexual assault of his minor step-daughter. Court erred by failing to question all but one potential juror about their understanding of Zehr principles, and all but two about principle that Defendant need not present any evidence. However, court clearly instructed jury that Defendant did not need to present evidence of any kind, and Defendant did not show that jury was likely to believe that he was required to present evidence other than testimony, or that jury was biased. (McLAREN and HUTCHINSON, concurring.)

After evidentiary hearing, Court found Defendant, an adult, remained unfit to stand trial, that he was subject to involuntary admission under Mental Health Code, and that he posed serious threat to public safety, and remanded him to DHS custody. Court was not obligated to give Defendant's mother, who Defendant claimed was his legal guardian, notice of evidentiary hearing. Provisions of Mental Health Code is not applicable to hearing at which finding of unfitness or threat to public safety is made. Unless State has reason to know a guardian has been appointed for adult criminal Defendant, failure to serve guardian with notice does not signify lack of diligence in proceeding for remand to DHS. (JORGENSEN and BURKE, concurring.)

Defendant was charged with four counts of aggravated battery of one victim, but court provided only one issues instruction and only one set of verdict forms relating to said charge; in closing argument State conceded that only this charge was before the jury, and jury returned only one such verdict. Court improperly entered three additional convictions of, and sentences for, aggravated battery. State's request for fees for appeal taken is denied, as State did not "defend" the appeal but only conceded error, and court would have considered claim of error even had State not filed brief. (BURKE and SCHOSTOK, concurring.)

Court properly found Defendant guilty, after bench trial, of possessing child pornography. Photograph was "lewd" in that it depicted young girl on a bed in a pose generally associated with sexual behavior, genital area was fully exposed, and child appeared aware of camera and posed in suggestive way. As photo portrays child as sexual object, it is intended to elicit a sexual response from the viewer, and is thus "lewd" for purpose of child pornography statute.(BOWMAN and BIRKETT, concurring.)

(Court opinion corrected 3/8/11.) Defendant was convicted of armed robbery after jury trial, and court properly denied him leave to file a successive postconviction petition. U.S. Supreme Court's Gant v. Arizona decision, which was nine years after initial postconviction petition, is an objective factor that impeded Defendant's ability to raise the issue during the first petition. Gant case introduced a new rule as to already-existing limitations on officers when conducting search incident to arrest, but not a watershed rule requiring retroactive application to cases on collateral review. Gant rule is that search incident to arrest is lawful only if the arrestee is within reaching distance of passenger compartment at time of search or if reasonable to believe that vehicle contains evidence of offense of arrest. (GALLAGHER and PUCINSKI, concurring.)