Criminal Law

Timing of court's questioning of potential jury had no bearing on jurors' opportunity to respond as to whether they accepted and understood Zehr principles per Supreme Court Rule 431. Court did not err in reciting the four Zehr principles to the venire and inquiring about their understanding and acceptance in small groups after they had been selected as jurors but before they were sworn in. Credit given for trauma-fund fine and drug-court assessment fine.

Defendant was convicted in jury trial of first degree murder and aggravated battery with a firearm, and sentenced to consecutive terms of 60 years and 15 years; and was convicted of felony unlawful use of weapon by felon during simultaneous bench trial and sentenced to additional consecutive term of 3 years. Defendant's choice of whether to testify at trial did not deprive Defendant of any constitutional rights, and was not impeded by trial judge's blanket policy of deferring rulings on motions limiting admissibility of prior convictions. Court did not abuse its discretion in allowing testimony that nature and consequences of shooting victim's injury changed over time, as it was relevant to establish injury to victim.

Defendant physician, who had been jailed for direct criminal contempt during her trial for Medicare vendor fraud, was charged with aggravated battery while in jail, by ramming into jail supervisor with her wheelchair and kicking him. Pro se appeal raised 18 arguments, all found without merit. Indictment for aggravated battery was sufficient to bar future prosecution of same offense. No denial of right to represent herself, as five different private attorneys represented her in litigation, Defendant did not unequivocally invoke her right to self-representation, and court allowed her to make standby arrangements with her counsel. Not error to bar expert testimony given his lack of current knowledge of jail procedures. State did not act in bad faith when it searched for wheelchair and paramedic reports but could not locate them and did not produce them.

(Court opinion corrected 5/27/10.) Defendant, who was convicted of first-degree murder, was denied right to fair trial because defense counsel failed to tender accomplice-witness instruction, as such instruction goes far beyond jury instruction relating to general credibility of witnesses. Had accomplice-witness instruction been given, jury would have been compelled to examine accomplice's testimony, which was key to State's case, with close scrutiny.

Defendant was convicted of first-degree murder and home invasion, after proceeding pro se at trial. Court's analysis of his Batson challenge, claiming that State removed African-American men from jury but without specific supporting facts, properly ended at first stage, as Defendant did not make prima facie showing that State exercised its peremptory challenge on basis of race. No showing that Defendant was not mentally competent to proceed pro se at trial; his deficiencies in self-representation were not the result of mental incompetence, as record shows clear, verbal exchanges with court. Court was not required to apply higher standard for mental fitness to stand trial because Defendant was pro se. No error in State's comments in closing argument that Defendant seized control of his own defense by sitting alone at defense table, as State did not ask jury to draw negative inferences from his pro se representation.

Defendant was convicted of cyberstalking, harassment through electronic communication, and stalking. Evidence showed that Defendant left victim several voice mail phone messages threatening to kill her, thus State proved that Defendant transmitted threat of immediate or future bodily harm. Trial court addressed Defendant's pro se claims of ineffective assistance of counsel by inquiring of trial counsel, who explained circumstances of claims. Conviction and sentence for harassment through electronic communication vacated as violative of one-act, one-crime rule, but convictions and sentences for cyberstalking and stalking affirmed.

(Modified upon denial of rehearing 5/24/10.) Defendant convicted of possession of intent to deliver after police entered bedroom where Defendant was staying as overnight guest, and found 21 small bags of crack cocaine, razor blade, and $355 cash on nightstand within arm's reach of Defendant. Court erred in sua sponte considering whether trial counsel was ineffective in not arguing that leaseholder of apartment lacked authority to consent to search of bedroom, where issue was not raised by parties and issue was not controlled by clear precedent. Defendant was not denied effective assistance of counsel by her counsel withdrawing motion to suppress, where court resolved credibility of witnesses in favor of State. Upon remand, appellate court is to consider Defendant's remaining contention as to chain of custody.

(Modified upon denial of rehearing 5/24/10). Sufficient evidence shown for convictions for first degree murder and aggravated discharge of firearm for Defendant who shot and killed woman during carjacking. Claim of ineffective assistance of counsel did not warrant appointment of attorney to present claim, as whether to call certain witnesses for defense at trial, and jury selection and voir dire, are matters of trial strategy left to trial counsel's discretion. Illinois death penalty statute does not violate due process, as statute does not require State, at second stage of death sentencing hearing, to prove beyond a reasonable doubt that aggravating factors outweigh mitigating factors. Date for execution set.