Criminal Law

Court properly dismissed postconviction as untimely. Section 122-1(c) of the Post-Conviction Hearing Act requires that if a petition for certiorari is not filed, proceedings must be commenced within 6 months from date for filing certiorari petition. Whether "certiorari petition" in that provision is construed to refer to PLA to Illinois Supreme Court or for certiorari review from U.S. Supreme Court, Defendant's petition was untimely. (ZENOFF and BURKE, concurring.)

Defendant was convicted of first degree murder based on theory of accountability for his participation as a "lookout" in fatal shooting, by six masked men, in retaliation for murder of the brother of a gang member. Court properly denied Defendant leave to file successive petitions for postconviction relief. Affidavit of co-participant was not "newly discovered" evidence, as Defendant testified that he had told him about the murder minutes later, and affidavit does not exculpate Defendant. Defendant failed to establish prejudice from counsel's failure to call the co-participant as a witness, as he did not exculpate Defendant and his alibi directly conflicted with Defendant's testimony. No ineffective assistance of counsel, as counsel could reasonably have chosen not to call co-participant, who was an alleged street gang leader, as a trial witness for strategic reasons. (MURPHY and STEELE, concurring.)

Defendant was arrested for aggravated unlawful use of a weapon. Police officers' actions in handcuffing Defendant during an investigatory stop constituted an arrest, but officers had probable cause to execute the arrest as the stop took place in a high-crime area and Defendant fled from officers when they approached the vehicle in which he was a passenger. Thus, officers had requisite reasonable suspicion to detain Defendant for a Terry investigative stop. Thus Defendant's motion to quash arrest and suppress evidence should have been denied. (HOWSE and EPSTEIN, concurring.)

Defendant was charged by informatin with aggravated sexual abuse of his 8-year-old granddaughter. Court properly refused to admit evidence of Defendant's alleged sexual abuse of his sisters in the 1960s, and of his daughters in the 1970s and 1980s. Court's order did not condition the admissibility of any other-crimes evidence on satisfaction of a common law exception, but applied statutory factors for admissibility. The great time lapse between the offenses renders the prior offenses prejudicial, as for admissibility under Section 115-7.3, the prior offenses may not be too remote in time and must have some threshold similarity to the charged offense.(McDADE and CARTER, concurring.)

Defendant was convicted, after jury trial, of first degree murder and aggravated unlawful restraint. After 2 hours 50 minutes of deliberating, jury sent court a note that they were "11 to 1 on all 4 propositions". Court sent a note in response stating "when you were sworn in as jurors and placed under oath you pledged to obtain a verdict. Please continue to deliberate and obtain a verdict." Court's note to jury was coercive as it indicated that being deadlocked was not an option, and that their oath required a verdict. Note affected the Defendant's right to a fair trial and challenged the integrity of the judicial process, and Defendant was prejudiced as evidence was closely balanced. Court erred in barring a witness from testifying as to statement made by another person that he shot the victim, as statement satisfied four factors for exception to inadmissible hearsay. (LAVIN and PUCINSKI, concurring.)

Defendant was convicted of predatory criminal sexual assault of a child. Court ordered sentence of incarceration and lifetime MSR, but did not indicate whether any fees or fines were to be assessed. Public defender fee must be vacated, as clerk of court had no authority to impose fee without notice and hearing before the trial court. Pretrial bond supervision fee must be vacated, as Defendant never posted bond and thus never utilized pretrial services. Ex post facto principles do not apply to Clerk Operation and Administrative Fund assessment, which is a fee for services resulting from conviction, or to State's Attorney Fee, which is compensation for professional services. Sex Offender Investigation Fund Fine is a fine, and as statute authorizing it was not in effect at time of offense, imposition of the fine violated ex post facto principles and must be vacated. (JORGENSEN and HUDSON, concurring.)

Defendant was convicted, after bench trial, of eight counts of aggravated criminal sexual assault with a firearm and two counts of home invasion with a firearm, and sentenced to 84 years in prison. Court properly found that Defendant forfeited his right to confront a witness as Defendant engaged in conduct intended to render witness unavailable to testify against him at trial by mailing letter to witness repeatedly told witness to plead the fifth, and to not "get down on" him; and in recorded phone calls Defendant's mother repeatedly told witness to plead the fifth and to deny that he knew anything. As Defendant made one illegal entry into victim's home, and four acts of four acts of sexual assault, one conviction for home invasion and four convictions for sexual assault should be vacated.(GARCIA and McBRIDE, concurring.)

Probation officer was making home visit at the home of a DUI probationer, who resided with Defendant, after receiving report that the two were injecting methamphetamine. Defendant was making erratic and uncontrollable movements, and suddenly lunged for object on table in common area, which officer then took and opened, and which contained methamphetamine. Court properly denied Defendant's motion to suppress this evidence. An objectively reasonable probation officer could have reasonably suspected the contained belonged to the probationer, and nothing about the appearance of the container identified it as belonging to someone other than the probationer. Thus, Defendant's fourth amendment rights were not violated. (TURNER and APPLETON, concurring.)

Defendant was convicted, after jury trial, of criminal sexual assault, and sentenced to 28 years imprisonment. Written sentencing order improperly failed to list a specified period of MSR, which for criminal sexual assault is a minimum of three years. It is duty of the trial court, rather than DOC, to determine the period of MSR to be imposed at sentencing. Court properly allowed State's voir dire inquiry of why potential jurors would believe a victim might delay reporting a sexual assault; defense argued this delay in its case, and State offered evidence of reasons for the delay. Evidence was not closely balanced, as 17-year-old victim testified that Defendant sexually assaulted her, and Defendant failed to present any evidence. (STEIGMANN and POPE, concurring.)