Criminal Law

Defendant was convicted, after jury trial, of possession of controlled substance with intent to deliver and possession of controlled substance. Court denied Defendant's motion in limine as to introduction of his juvenile adjudications; Defendant contended trial counsel was ineffective for introducing the adjudications on direct examination before the State could introduce certified copies of them in rebuttal. However, this was a reasonable trial strategy, as by doing so, defense counsel attempted to reduce the impact of State's intended introduction of certified copies. Juvenile Court Act provision allowing impeachment with juvenile adjudications only pursuant to rules of evidence for ciminal trials does not override these rules of evidence, but is limited by them. Illinois Supreme Court has adopted Rule 609 of Federal Rules of Evidence, giving trial courts discretion to admit evidence of juvenile adjudications to impeach a witness, but no such discretion exists when the witness is the accused in a criminal case. (McCULLOUGH, concurring; TURNER, specially concurring.)

Defendant was convicted, after jury trial, of DUI and driving with BAC of 0.08 or more, and sentenced to 24 months conditional discharge. Arresting officer initiated a traffic stop based on violation of Vehicle Code to have high beams on within 500 feet of another vehicle. Testimony and logbooks for Breathalyzer were not testimonial, and established sufficient foundation that it was regularly tested and accurate, and its introduction did not violate confrontation clause. Prosecutor's questioning defense expert whether he had ever been under the influence of alcohol was improper was sufficiently cured by prompt sustaining of objection and instruction to disregard remark. Reference to expert as "a peacock" was allowable as a comment on demeanor, and reference to him as "a hired gun" was sufficiently cured by promptly sustained objection. Court did not err in giving IPI 23.30, the permissive-presumption instruction. (MYERSCOUGH and KNECHT, concurring.)

(Modified upon denial of rehearing 10/26/10.) Defendant was convicted, after jury trial, of possession with intent to deliver cannabis, and was sentenced to 18 months imprisonment, $140 street-value fine, and other fines and fees. Court awarded Defendant 28 days credit toward prison term and $140 in credit toward fines. Circuit clerk records show that Defendant has not received the credit awarded; thus, case remanded to apply $140 credit to his outstanding fines. State is entitled to $50 in statutory costs of appeal assessed against Defendant. State's representation by State's Attorney's Appellate Prosecutor's Office does not render State's Attorney's Office unauthorized to receive $50 credit, as Appellate Prosecutor was in essence acting on behalf of State's Attorney. As State's Attorney entered her appearance, appeal was "prosecuted or defended" by her regardless of who prepared the State's brief. (TURNER and McCULLOUGH, concurring.)

In 1993, Defendant pled guilty to first degree murder under fully negotiated plea; murder occurred while Defendant and victim were inmates at Stateville. Defendant filed several a second petition for postconviction relief from judgment on grounds on actual innocence, and ineffective assistance of counsel because a prison gang leader hired his attorney, and with claimed new evidence of innocence as to conduct of prison guard. Court erred in summarily dismissing Defendant's second postconviction petition, as Defendant's factual assertions in support of claim that his plea was coerced and involuntary are not baseless, and his guilty plea does not prohibit him from raising that claim or claim of actual innocence. (HOLDRIDGE, concurring; WRIGHT, specially concurring.)

(Court opinion corrected 11/1/10.) Defendant, who has been found to be a sexually violent person and subject to treatment in a secure facility, was transferred by the Department of Human Services to the Department of Corrections twice to serve criminal sentences, after he was found guilty of aggravated battery and sentenced. After each sentence was completed, DOC returned Defendant to DHS. The transfers did not terminate Defendant's custody by DHS, as only a court order can discharge custody from DHS. (HOLDRIDGE and O'BRIEN, concurring.)

Defendant was convicted, after bench trial, of DUI. State's nol-pros of misdemeanor DUI charges prior to speedy-trial term on charges had lapsed, and after which State re-filed identical charges, tolled the speedy-trial term, as there was no evidence that State acted in bad faith or attempted to evade the speedy trial statute at the time of nol pros. Defendant's motion for subsitution of judge did not clearly cause an avoidable delay; Defendant could have had his case tried on Day 159 before a different judge, but he chose to move to substitute that judge, and thus originally assigned judge presided over his trial two months later, as he was not avaible to conduct trial on Day 159 because another trial was then in progress before him. (HUTCHINSON and BURKE, concurring.)

Defendant was convicted, after jury trial, of numerous charges related to possession and use of methamphetamine and precursor, as Defendant was found to have several items used for manufacturing methamphetamine. Defendant, and the front seat of his pickup truck, were covered with a white powder when he was arrested. Methamphetamine Control and Community Protection Act's proscription against using vehicles to bring about a violation of the Act is reasonably related to Act's purpose of stopping the manufacture and distribution of the drug in Illinois. The Act does not encourage arbitrary enforcement and is not overbroad. Defendant's conviction for possession of methamphetamine is vacated, as all elements of that offense are included in conviction for unlawful use of property. Conviction for possession of precursor is not a lesser-included offense of unlawful use of property conviction, as the two convictions are unrelated, and none of the elements of the possession of precursor conviction were foundational to the unlawful use of property conviction. (CARTER and O'BRIEN, concurring.)

Defendant filed petition to seal the records of four prior convictions, which was denied by circuit court. Section 5(f) of Criminal Identification Act does not apply to extend the time that the circuit court's judgment on Defendant's petition to seal records became final, as extension provision applies only to expungements. Thus Defendant failed to properly invoke Appellate Court's jurisdiction by timely filing a notice of appeal. Any right to the sealing of criminal records is cumulative to and independent of any right to expungement. (O'BRIEN and SCHMIDT, concurring.)

Defendant, age 18 at time of offense, was convicted of first-degree murder. Defendant alleged that certain inculpatory statements he made during two sessions of police interrogation, which was recorded on four DVDs, were involuntary. Court's review is not rendered de novo because statements in question were on video, but remains usual bifurcated standard for voluntariness. Defendant's claimed susceptibility to aggressive or deceptive interrogation techniques is an issue of fact, and live testimony by Defendant as to his status as a special education student in high school, and his lack of food and sleep during interrogation, and not only the videos, were relevant to court's suppression decision. Court properly admitted Defendant's statements, as court properly found that Defendant was not unusually susceptible to the police tactics of aggression and deception used. (HUTCHINSON and SCHOSTOK, concurring.)