Illinois Dui & Illinois Criminal Case Review of 2003

ILLINOIS DUI AND ILLINOIS CRIMINAL LAW REVIEW OF 2003

DUI/ SENTENCING / MOOTNESS
2nd Dist. People v. Elizalde No. 2-02-0605 (December 3, 2003) DuPage County (O'MALLEY) Affirmed in part, reversed in part, remanded.

Because defendant has not yet completed his period of mandatory supervised release, his appeal from sentence upon revocation of probation for conviction of third DUI is not moot. Further, since judgment incorrectly refers to conviction of third DUI as class 2, rather than class 3 felony, it must be remanded for resentencing. However, imposition of $100 assessment, pursuant to Section 5-1101(d) of Counties Code, is not subject to $5.0 per day credit for time served, it being a fee and not a fine.

DUI/LIMITATIONS
2nd Dist. People v. Pacheco. No. 2-02-0024 (April 15, 2003) DuPage County (GROMETER) Affirmed.

Trial court properly granted defendant's motion to dismiss aggravated DUI and driving while license was suspended charges based on statute of limitations; because recitation in indictment that charges based on same conduct had been pending since 1996 is insufficient to invoke exception contained in Section 3-7(c) of Criminal Code.

DUI/ ONE ACT ONE CRIME RULE
3rd Dist. People v. Miller No. 3-01-0988, 3-01-0989, 3-01-0990 cons. (May 28, 2003) Will County (SLATER) Reversed and vacated in part.

Because driving while license is suspended is an element of aggravated DUI, defendant's conviction for driving while suspended must be vacated under the one act one crime rule. Further, evidence of empty beer can found outside of defendant's abandoned vehicle is insufficient to find defendant guilty of illegal transport.

DUI/ SENTENCING
1st Dist. People v. McCormick No. 1-01-3628 (May 22, 2003) 4th div.
(THEIS) Affirmed.

Evidence was sufficient for court to convict defendant of aggravated DUI based on testimony of police officer that he saw defendant exit vehicle involved in automobile collision after it came to a rest and run to passenger side. Further, extended term sentence of five years, based on defendant's prior conviction of class 2 felony within last ten years was appropriate.

APPEALS/ DUI
2nd Dist. Village of Mundelein v. Thompson No. 2-02-0376 (July 17, 2003) Lake County (BYRNE) Appeal dismissed in part, reversed in part.

Appellate court lacks jurisdiction pursuant to Rule 604(a) to conduct interlocutory review denial of motion to suppress by municipal attorney absent a statement from State's Attorney giving permission to municipal attorney to prosecute traffic tickets. Therefore, interlocutory appeal of motion to suppress must be dismissed. However, trial court erred when it granted defendant's motion to rescind statutory summary suspension because anonymous caller identified himself before defendant began to pull over, police were able to corroborate specific information provided by caller, and circumstances surrounding call, a chance encounter in traffic, carried high likelihood of reliability.

DUI/ MOTION TO SUPPRESS / STATUTORY CONSTRUCTION
2nd Dist. People v. Jones No. 2-02-0956 (December 5, 2003) DuPage County (GILLERAN JOHNSON) Affirmed.

Because provisions of Section 11--501.2(c)(2) of Motor Vehicle Code allow for involuntary collection of blood and urine samples when impaired driver causes injury to another, it implicitly forbids involuntary collection when no such injury occurs. Therefore, trial court properly granted motion to suppress results of blood and urine tests conducted on samples involuntarily drawn from defendant while he was treating in emergency room.

DUI/JURISDICTION TO ARREST
2nd Dist. People v. Schaefer No. 2-02-0429 (September 2, 2003) DuPage County
(HUTCHINSON) Affirmed.

Trial court was correct when it granted State's motion for a directed finding dismissing defendant's motion to rescind statutory summary suspension because police officer could arrest defendant outside of his jurisdiction for improper lane usage and driving while suspended which he observed defendant commit within his jurisdiction.

AGGRAVATED DUI
4th Dist. People v. Merritt No. 04-01-0711 (September 30, 2003) McLean County (TURNER) Affirmed. Evidence, although insufficient, according to the trial court, to convict defendant of reckless homicide, was sufficient to convict defendant of aggravated dui based on evidence that victim, who jogged across roadway in front of defendant, was struck by defendant's vehicle and that defendant's movements and responses were impaired by her intoxicated state. Court could properly find that both victim's behavior and defendant's intoxication were responsible for victim's death.

DUI / FILING FALSE REPORT / PROSECUTORIAL MISCONDUCT
2nd Dist. People v. Libberton No. 2-02-0075 (October 20, 2003) Jo Daviess County
(KAPALA) (HUTCHINSON, dissent) Affirmed.

Evidence that defendant was picked up by police officer walking along highway and reported that his car had been stolen but that he found it near grain elevator, coupled with strong odor of alcohol, breathalyzer test of .16, failing field sobriety test, and admissions of passenger contained in statement signed at police station, was sufficient to convict defendant of making false police report and DUI. Further, false report charge is sufficiently related to harm of causing misdirection of police resources to justify class 2 felony status without violating due process. In addition although prosecutor's comments about defendant having choice of pleading guilty like 90% of defendants, although improper, was not reversible error absent closely balanced evidence.

DRIVING PRIVILEGES/ ADMINISTRATIVE REVIEW
4th Dist. Clark v. White No. 4-02-0376 (September 25, 2003) Sangamon County
(MYERSCOUGH) Reversed.

Administrative law judge's decision to deny applicant a restricted driving permit is against the manifest weight to the evidence because applicant proved by clear and convincing evidence both that lack of driving privileges cause him an undue hardship, requiring his wife to occasionally turn down overtime pay in order to transport him to work, and that he has taken adequate steps to address his alcohol problem.

Lack of sufficient detail with regards to previous arrests on form is insufficient basis to deny request, particularly since applicant admitted that he was Level III alcoholic.

ZERO TOLERANCE SUSPENSION
1st Dist. Kalita v. White No. 1-01-4140 (August 5, 2003) 2nd div.
(MCBRIDE) Affirmed.

Administrative law judge's decision denying petition to rescind zero tolerance suspension of 18 year old driver charged with driving after consuming alcohol was not against manifest weight of the evidence; because statute allows for the consideration of the police officer's arrest report as substantive evidence, the defendant chose not to subpoena the officer, and handing notice of summary suspension to defendant's mother at police station.

SEARCH & SEIZURE/MOTIONS TO SUPPRESS

SEARCH AND SEIZURE / CONTROLLED SUBSTANCES / MOTION TO SUPPRESS
2nd Dist. People v. Brown No. 2-02-0814 (October 20, 2003) Lake County
(GILLERAN JOHNSON) Affirmed.

Suppression of evidence seized solely as the result of an anonymous tip describing defendant's vehicle, address and accompanying girlfriend was appropriate, because information contained in tip merely demonstrated knowledge of the defendant; but did not predict the defendant's behavior. Therefore, fact that police verified description of defendant's address and vehicle was not sufficient to give them probable cause to search defendant's vehicles for controlled substances.

SEARCH AND SEIZURE
3rd Dist. People v. Perkins No. 3-01-0765 (April 9, 2003) McDonough County
(SLATER) Reversed.

Police exceeded their Terry investigative stop authority when they looked inside backpack belonging to defendant while waiting to ascertain whether defendant was the person they had been informed would be carrying large sum of drugs on train from confidential informant. Therefore, trial court erred when it denied motion to suppress evidence, consisting of cannabis, seized from backpack.

SEARCH AND SEIZURE
People v. Lampitok, No. 93699 (September 18, 2003) Appeal, 4th Dist. Affirmed

Probation officers lacked legal authority to search defendant's hotel room, over defendant's objection, based solely on search condition of probationer's order, after probation officers learned that probationer had been staying in hotel room but was not then present. Therefore, trial court correctly concluded that search was overly broad in its scope and granted motion to suppress. (GARMAN)

MOTION TO SUPPRESS/ SEARCH AND SEIZURE
2nd Dist. People v. Koester No. 2-02-0714 (July 18, 2003) Jo Daviess County
(MCLAREN) Affirmed.

Trial court properly granted motion to suppress evidence of intoxication collected at private residence after caller placed hang up 911 call. Appearance of a party going on did not provide exigent circumstances sufficient to justify warrantless search without consent.

SEARCH AND SEIZURE/ MOTION TO SUPPRESS / CONTROLLED SUBSTANCES
People v. Caballes, No. 91547 (November 20, 2003) Appeal, 3rd Dist. Reversed

Trial and appellate courts erred when they refused to suppress evidence of cannabis seized during routine traffic stop when officers lacked specific and articulable facts sufficient to justify calling in a canine unit to sniff for drugs. By calling in a canine unit, officers impermissibly broadened scope of the stop to a drug investigation. Reasons given by officer, that he smelled air freshener coming from car, that defendant said he was moving to Chicago but lacked personal belongings in passenger compartment, and that defendant seemed nervous, were insufficient.

(KILBRIDE) THOMAS, GARMAN, FITZGERALD, dissent

SEARCH AND SEIZURE/ CONTROLLED SUBSTANCES / UNLAWFUL USE OF WEAPON BY A FELON
5th Dist. People v. Hughes No. 5-02-0070 (October 6, 2003) Saline County
(WELCH) Affirmed in part, reversed in part, remanded.

Because evidence produced at trial clearly indicates that informant saw items in jars in defendant's home and smelled odor of ether and ammonia coming from home within a few hours of application for search warrant, lack of temporal detail in application did not render search warrant defective. Further, jury was sufficiently instructed with regards to defendant's stipulation of his felony record as element of unlawful use of weapon by a felon so as not to be confused by instruction limiting purpose for which conviction used being limited to credibility. However, conviction for possession of drug paraphernalia must be reversed because evidence was not sufficient to conclude that items seized qualified.

CRIMINAL
MOTION TO SUPPRESS/ EVIDENCE

1st Dist. People v. Fernandez No. 1-00-1384 (October 30, 2003) 4th div.
(THEIS) Affirmed

Defendant, detained outside of airport, may not attack validity of consent to search of suitcases, found to contain cannabis, by claiming that it was not knowing consent because of his limited mastery of English. Further, destruction of two of 3 suitcases seized by State did not deprive defendant of due process; because suitcases were collateral to underlying charges, and his claimed defense that he did not know that suitcases contained cannabis could be demonstrated by examination of remaining suitcase.

CRIMINAL
SEARCH AND SEIZURE / MOTION TO SUPPRESS / CONTROLLED SUBSTANCES

People v. Harris, No. 92783 (November 20, 2003) Appeal, 3rd Dist. Appellate court affirmed

Appellate court properly reversed denial of motion to suppress evidence consisting of pea sized rock of cocaine seized when defendant was searched pursuant to arrest on outstanding warrant after police officer demanded identification from defendant and ran warrant check. Warrant check of passenger upon driver's arrest for illegal left turn and driving while revoked unreasonably expanded purpose of stop when police officer had no reason to believe that defendant had, or was about to, commit any crime. Further, inevitable discovery argument is too tenuous.

(FREEMAN) FITZGERALD, THOMAS, GARMAN, dissent

CRIMINAL
SEARCH AND SEIZURE/ CONTROLLED SUBSTANCES / UNLAWFUL USE OF WEAPON

5th Dist. People v. Jones No. 5-02-0398 (November 7, 2003) St. Clair County
(CHAPMAN) Reversed and remanded.

Trial court's decision to deny defendant's motion to suppress evidence seized during routine traffic stop for inoperative rear lights is against manifest weight of the evidence; because police officer lacked probable cause to search wooden box he saw in defendant's shirt pocket or defendant's vehicle, in which he found loaded weapon and cannabis.

CRIMINAL
MOTION TO SUPPRESS/ SEARCH AND SEIZURE

4th Dist. People v. Powell No. 4-02-0567 (October 29, 2003) Douglas County
(APPLETON) (MYERSCOUGH, special concurrence, partial dissent) Reversed.

Trial court erred when it denied motion to suppress evidence of cannabis seized after search of defendant's vehicle pursuant to a traffic stop for following too closely. After police officer questioned defendant and lacked probable cause to search vehicle, he exceeded reasonable scope of stop when he exited his squad car to ask questions of passenger about intended destination. Further, defendant has failed to prove that offense of following too closely is unconstitutionally vague.

MOTION TO SUPPRESS
5th Dist. People v. Grove No. 5-01-0958 (June 27, 2003) Wayne County
(CHAPMAN) (WELCH, special concurrence) Reversed.

When police officer stopped defendant driver for suspected registration violation, he was authorized to simultaneously check driver's license; and was not required to end stop after determining that vehicle registration was valid. Therefore, trial court erred when it granted defendant's motion to suppress.

CRIMINAL
SEARCH AND SEIZURE

5th Dist. People v. Dent No. 5-02-0389 (September 11, 2003) Madison County
(CHAPMAN) Affirmed.

Trial court's finding that police conduct whereby officer told defendant to "wait a minute," while other officers were exiting cars and surrounding them, constituted a detention without any reasonable suspicion that defendant had or was about to commit a crime is not against manifest weight of the evidence. Therefore, subsequent pat down search of defendant's person and search of defendant's vehicle resulting in seizure of drugs from defendant's person was illegal warranting suppression of evidence seized.

CRIMINAL
SEARCH AND SEIZURE

People v. Gonzalez, No. 92305 (April 17, 2003) Appeal, 2nd Dist. Appellate court reversed

Police officer did not violate defendant, passenger's, right to be free of unreasonable search and seizure, by asking to see identification during routine traffic stop of driver for failure to display front license plate.

(FITZGERALD) THOMAS, GARMAN, special concurrence

CRIMINAL
SEARCH AND SEIZURE/ EXPERTS

1st Dist. People v. Watson No. 1-99-2606 (April 28, 2003) 1st div.
(SMITH) Affirmed.

Because there was probable cause to believe that a sexual attack had occurred and that defendant had committed it, grand jury subpoena of hair, saliva and blood was not subject to suppression. Further, it was not necessary for Frye hearing to introduce evidence of RFLP profiling and use the product rule for DNA analyses because courts have acknowledged its general acceptance. Therefore, defendant's conviction of aggravated criminal sexual assault and aggravated kidnapping is not against manifest weight of the evidence.

SEARCH AND SEIZURE / CONFESSIONS / ARREST
1st Dist. People v. Bramlett No. 1-99-3768 (June 30, 2003) 5th div.
(GREIMAN) Vacated and remanded.

Trial court's lacked sufficient evidence to conclude that police had probable cause to arrest defendant. Therefore, it must conduct new hearing on motion to suppress confession to make determination with regards to whether confession made by defendant is sufficiently attenuated from illegal arrest to be voluntary.

MOTION TO SUPPRESS/ UNLAWFUL POSSESSION OF A WEAPON BY A FELON
5th Dist. People v. Leigh No. 5-02-0725 (June 26, 2003) Richmond County
(CHAPMAN) Reversed.

After defendant was lawfully stopped and issued warning for failure to properly illuminate his license plates, police officer had no articulable reason to interrogate him about whether he had anything in truck that might make canine unit alert or was illegal. Therefore, Defendant's conviction for unlawful possession of a weapon by a felon must be reversed because the trial court erred when it denied defendant's motion to suppress.

MOTION TO SUPPRESS
5th Dist. People v. Hubbard No. 5-01-0653 (June 27, 2003) Marion County
(CHAPMAN) Affirmed.

Trial court properly denied defendant's motion to suppress evidence obtained in connection with attempted murder and aggravated criminal sexual assault trial because Defendant was not illegally detained after he was only car seen driving from direction of reported shooting late at night. Further, police properly arrested defendant after they discovered that he was driving car registered to victim and matched description of assailant provided by victim.

CRIMINAL
SEARCH AND SEIZURE

2nd Dist. People v. Williams No. 2-02-0573 (June 9, 2003) DuPage County
(BOWMAN) Reversed and remanded.

Trial court erred when it granted motion to suppress evidence seized in automobile of student on school grounds after tip from student that gun involved in burglary was located in defendant's vehicle. In order to search car on school grounds, authorities needed only reasonable suspicion, which tip provided.

MOTION TO SUPPRESS
5th Dist. People v. Grove No. 5-01-0958 (June 27, 2003) Wayne County
(CHAPMAN) (WELCH, special concurrence) Reversed

When police officer stopped defendant driver for suspected registration violation, he was not authorized to simultaneously check driver's license; and was required to end stop after determining that vehicle registration was valid. Therefore, defendant's conviction for driving while revoked must be reversed based on trial court's improper denial of motion to suppress.

MOTION TO SUPPRESS/ SEARCH AND SEIZURE
4th Dist. People v. Miles No. 4-02-0624 (October 29, 2003) Vermilion County
(APPLETON) (TURNER, dissent) Affirmed.

Trial court's finding that police lacked any reasonable suspicion or articulable reason to extend detention of passenger in vehicle subject to routine traffic stop in order to ask for passenger's identification is to against the manifest weight of the evidence. Therefore, trial court properly granted motion to suppress evidence in defendant's obstruction of justice case.

CRIMINAL
SEARCH AND SEIZURE/ POST CONVICTION PROCEEDINGS

4th Dist. People v. Raibley No. 4-00-0587 (April 30, 2003) Mason County (APPLETON) (MYERSCOUGH, partial dissent, partial concurrence) Reversed and remanded.

State waived issue of timeliness of defendant's post trial motion by objecting only to its substance. Further, trial court erred when it denied motion to suppress videotapes containing child pornography contained in defendant's vehicle; because state's evidence that defendant shrugged when asked if police officer could take tapes to station and view them fails to demonstrate defendant's affirmative consent.

MOTION TO SUPPRESS
4th Dist. People v. Morales No. 4-02-0161 (November 3, 2003) McLean County
(STEIGMANN) (MYERSCOUGH, special concurrence) Reversed and remanded.

Trial court erred when it suppressed evidence consisting of drug paraphernalia found in defendant's jacket in car in which defendant was a passenger while driver was being arrested for driving on suspended license. Officers were entitled to search all containers in vehicle incident to custodial arrest of its driver.

DOUBLE JEOPARDY

DOUBLE JEOPARDY
5th Dist. People v. Garcia No. 5-01-0664 (April 17, 2003) Jasper County
(HOPKINS) Affirmed.

Defendant was not entitled to obtain dismissal of complaint for reckless driving based on double jeopardy after he had previously been pled guilty to squealing of tires at same time as alleged incident by signing back of ticket and forwarding it to clerk with fine enclosed; because, a) squealing tires is not lesser included offense of reckless driving, and b) State's Attorney had no knowledge of squealing tires ticket, thereby avoiding the mandatory joinder rule of 720 ILCS 5/3-3(b).

DOUBLE JEOPARDY
People v. Blue, No. 94564 (November 20, 2003) Appeal, 1st Dist. Affirmed Estoppel principals embodied in double jeopardy do not preclude State from seeking death penalty for first degree murder upon remand after reversal for prosecutorial misconduct.
(MCMORROW)

DOUBLE JEOPARDY
5th Dist. People v. Sanders No. 5-02-0685 (July 29, 2003) Marion County (WELCH) Affirmed. Defendant's double jeopardy rights were not violated by trial courts decision to retry him after mistrial was declared when juror was excused because he recognized witness, alleged victim of burglary, as his girlfriend's best friend; because mistrial was not declared out of improper motivation or overreaching by judge or by prosecutor.

DOUBLE JEOPARDY
3rd Dist. People v. LaFond No. 3-02-0426 (October 23, 2003) Kankakee County
(HOLDRIDGE) Affirmed.

Defendant was not precluded from retrial of aggravated battery and resisting a police officer charges after trial court declared mistrial when one juror was hospitalized during deliberation, other jurors were unavailable to continue deliberation the following Monday, and defendant refused to stipulate to deliberation by fewer than 12 jurors.

Further, because record was adequate to ascertain that defendant objected to trial by fewer than 12 jurors, there was no basis to conclude ineffective assistance of counsel for failure to sufficiently preserve record.

DOUBLE JEOPARDY/ JURY VERDICTS
People v. Henry, No. 93602 (April 17, 2003) Appeal, 5th Dist. Appellate court Reversed in part

In defendant's trial for involuntary manslaughter and aggravated battery, the trial court acquitted the defendant of aggravated battery when it declared from the bench that it found that the state had failed to meet its burden of proof and was granting motion for directed verdict. Therefore, defendant could not be subsequently tried for battery without exposing defendant to double jeopardy. However, jury verdict finding defendant guilty of battery, but stating that jury could not reach verdict on charge of involuntary manslaughter, was not implied acquittal on involuntary manslaughter and was properly declared a mistrial. (MCMORROW) FREEMAN, special concurrence

DOUBLE JEOPARDY
2nd Dist. People v. Bagley No. 2-01-1104 (May 5, 2003) DuPage County
(CALLUM) Affirmed.

Because trial court did not abuse its discretion when it ordered mistrial of defendant's DUI trial upon State's discovery of videotape of Defendant's arrest, that it had previously declared lost, after jury was sworn but before first witness was called, double jeopardy does not prevent defendant's retrial. Defendant's motion to dismiss was properly denied.

DISCOVERY

DISCOVERY/ EXPERTS
4th Dist. People v. Hood No. 4-03-0178 (November 3, 2003) Macoupin County
(TURNER) (COOK, dissent) Affirmed in part, reversed in part, remanded.

Trial court committed reversible error when it allowed State to present expert testimony of reverse extrapolation of alcohol by coroner in reckless homicide trial to rebut defendant's claim that he had consumed only two beers when 412 disclosure attached autopsy report to describe subject matter of coroner's testimony and State did not inform defendant that coroner would be offered for alcohol level testimony until after defendant's case in chief.

DISCOVERY
2nd Dist. People v. Rose No. 2-02-0420 (July 29, 2003) DuPage County
(BOWMAN) Reversed and remanded

Trial court erred when it dismissed indictment against defendant because of State's refusal to disclose confidential informant without sufficient showing, pursuant to Rule 412(j) that the knowledge was necessary to prepare defense. Further, requirement on defendant to show impairment of defense is not diminished when defense suggests that court review information in camera before revealing identity to defendant.

DISCOVERY
1st Dist. People v. Scott No. 1-01-0531 (May 21, 2003) 3rd div.
(HOFFMAN) Reversed and remanded.

Trial court erred when it refused to allow defendant to call material witness to testify as a sanction for a discovery violation when defendant disclosed to State intent to call witness a few days before trial and any prejudice to State could have been avoided by continuing trial.

JURY INSTRUCTIONS/ JURY DELIBERATIONS/CLOSING ARGUMENTS

JURY INSTRUCTIONS/ MANSLAUGHTER
People v. Carter, No. 94895 (November 20, 2003) Appeal, 3rd Dist. Appellate court reversed Appellate court erred when it held that trial court had a duty to issue involuntary manslaughter instruction in defendant's murder trial, particularly when evidence supported either mental state and defendant objected to issuance of instruction at trial.
(FITZGERALD)

JURY INSTRUCTION/ EVIDENCE / ONE ACT ONE CRIME RULE
5th Dist. People v. Forcum No. 5-01-0692 (November 7, 2003) Jackson County
(DONOVAN) (KUEHN, dissent) Affirmed in part, vacated in part, remanded.

Special interrogatory given to jury during guilt phase of deliberation with regards to enhancing factors for murder of household membership and exceptionally brutal behavior formed proper basis for enhanced sentence and constitutionally applied procedural amendment of statute enacted after acts forming basis of conviction. Further, gruesome photographs of victim were properly admitted to show nature and extent of victim's injuries and manner inflicted. Although hearsay evidence that victim feared defendant lacked proper foundation, it was harmless error. In addition, although armed violence count must be vacated as violative of one act one crime rule, home invasion need not be. Trial judge deprived defendant a fair trial in aggravated sexual assault bench trial when he repeatedly interrupted defense attorney's closing argument with negative comments and even accused him of misrepresenting evidence.

JURY INSTRUCTIONS/ EVIDENCE
2nd Dist. People v. Edwards No. 2-02-0009 (October 27, 2003) Kane County
(KAPALA) Affirmed.

Lack of jury instruction defining robbery in defendant's felony murder trial where robbery was predicate offense is not plain error. (disagreeing with Third District opinion in People v. Hopp) Further, record on appeal does not support defendant's contention that witness made statement prohibited by order in limine.

JURY DELIBERATIONS/ FELONY MURDER
5th Dist. People v. Derr No. 5-01-0977 (September 10, 2003) Madison County
(KUEHN) Affirmed in part, reversed in part, remanded.

By answering jury's question about how close in time act resulting in victim's death has to be to robbery with, "Death does not have to be contemporaneous with the robbery; however, there must be some concurrence between the force used and the taking of the property," court potentially misled the jury into thinking that defendant could be convicted of felony murder if he stole personal items from victim's body after victim was already dead, rather then caused victim's death in the course of a robbery. Therefore, felony murder charge must be retried.

CLOSING ARGUMENT/ PROSECUTORIAL MISCONDUCT
5th Dist. People v. Stewart No. 5-02-0427 (July 30, 2003) Madison County
(KUEHN) Affirmed.

Although prosecutor improperly attempted to make jury responsible for the safety of the entire community in its closing argument, the defendant failed to properly preserve the issue in his post trial motion, and it did not constitute plain error because the evidence of defendant's guilt was so overwhelming.

MURDER/ JURY DELIBERATION
1st Dist. People v. Smith No. 1-00-3128 (June 30, 2003) 5th div.
(REID) Reversed and remanded.

It was plain error for the trial court to allow an impaneled jury to deliberate after one of the jurors informed the court that she remembered the defendant from her sister's neighborhood and that he was affiliated with gang and hung around with drug dealers, which she had told other jurors about. Despite any protestations to the contrary, jury was irretrievably tainted by her statements.

KIDNAPPING/ LESSER INCLUDED OFFENSE / JURY DELIBERATIONS
1st Dist. People v. Banks No. 1-00-3709 (May 16, 2003) 6th div.
(TULLY) Affirmed in part, reversed in part, remanded.

Evidence that defendant enticed 10 year old to start walking down alley toward garage and grabbed and dragged him approximately 10 feet when he was stopped by third party was sufficient to convict defendant of aggravated kidnapping. However, conviction for unlawful restraint must be dismissed as same act. Further trial court's comments prior to issuance of Prim instruction did not unreasonably coerce jury and it adequately polled the jury following verdict.

JURY INSTRUCTIONS/ IDENTIFICATION
1st Dist. People v. Saraceno No. 1-00-0352 (June 6, 2003) 5th div.
(REID) (QUINN, dissenting) Reversed and remanded.

Trial court committed plain error when it tendered IPI 3.15 instruction to the jury with an "or" between each factor that the jury should consider when evaluating eyewitness testimony, inferring that they could consider only one applicable factor. In addition, the trial court improperly restricted defendant's opportunity to submit evidence in defense.

JURY SELECTION/ JUDICIAL CONDUCT / CLOSING ARGUMENTS
1st Dist. People v. Wembley No. 1-00-4196 (May 23, 2003) 5th div.
(QUINN) Affirmed.

Process by which one judge conducted void dire selection of jury and another judge conducted jury trial did not deprive defendant of a fair trial. Further, it was not plain error for judge to ask jurors questions as a group and then ask them individually whether they had raised their hand during earlier questioning. In addition, state's closing argument during which prosecutor asserted that defendant was a high ranking gang member, which was objected to and sustained, did not deprive defendant of a fair trial. Nor was the sentence of 45 years for murder excessive.

INCONSISTENT VERDICTS/ COLLATERAL ESTOPPEL
People v. Jones, No. 93511 (May 22, 2003) Appeal, 4th Dist. Affirmed

After jury convicted defendant of mob action, acquitted of battery and could not reach a verdict on robbery charge, State was not collaterally estopped from retrying defendant on robbery; because it could find him guilty of robbery without him being guilty of battery of victim.

Further, first trial court erred when it vacated mob action conviction as inconsistent with battery acquittal. Overruling People v. Klingenberg, inconsistent verdicts do not require reversal.
(THOMAS) FITZGERALD, concurrence, McMORROW, FREEMAN, KILBRIDE, dissent

CLOSING ARGUMENT
1st Dist. People v. Stevens No. 1-01-1093 (May 6, 2003) 2nd div.
(CAHILL) Reversed.

Trial court deprived defendant of fair trial when during bench trial, it repeatedly interrupted defense counsel's closing argument and made comments displaying his prejudgment of defendant's guilt of intimidation.

TRIAL IN ABSENTIA

TRIAL IN ABSTENTIA
2nd Dist. People v. Ramirez No. 2-02-1297 (December 1, 2003) Boone County
(O’MALLEY) Reversed and remanded.

Trial court erred when it conducted possession of cocaine with intent to deliver trial in abstentia of defendant who had not been served with notice of trial date by certified mail as required by Section 115-4.1(a) of Code of Criminal Procedure. Report of proceedings controls over common law record, and reveals that defendant was not specifically apprised of trial date at last hearing at which defendant was present; and notice to defense counsel alone is insufficient. (accepting precedent from 4th Dist., and rejecting it from 3d.)

APPEALS/ TRIAL IN ABSENTIA
1st Dist. People v. Vasquez No. 1-01-1131 (May 13, 2003) 2nd div.
(CAHILL) Appeal dismissed.

After court dismissed defendant's first appeal pursuant to fugitive rule, after trial in abstentia, trial court lost jurisdiction over him.

It was error for new trial court to consider defendant's motions and impose lesser sentence after his capture. However, appellate court's dismissal was without prejudice; and it would have jurisdiction to entertain a motion to reinstate appeal after defendant was returned to custody several years after his conviction.

MISCELLANEOUS

CONFESSIONS/ ARREST
1st Dist. People v. Willis No. 1-01-4170 (November 18, 2003) 2nd div.
(WOLFSON) Reversed and remanded.

Although there was probable cause to arrest defendant, detention for unreasonable length of time without providing him with a probable cause hearing violated his constitutional rights and confession given after 72 hours must be suppressed. Because there is insufficient evidence to convict defendant of arson absent his confession, his case need not be retried.

JUVENILE DELINQUENCY/ SEX OFFENSES
1st Dist. In the Interest of F. M. No. 1-02-0456 (November 25, 2003) 2nd div.
(WOLFSON) Affirmed.

13 year old Respondent was properly found delinquent, based on commission of aggravated criminal sexual assault of 6 year old girl, placed on five years probation, and ordered to have no unsupervised contact with children younger than 12. Aggravated criminal sexual assault statute does not violate defendant's substantive due process because statute does not punish innocent conduct. Further, omission of specific reference to Section 12(b) as qualifying class x offense was legislative oversight, which legislature promptly corrected at later term.

INEFFECTIVE ASSISTANCE OF COUNSEL/ JURY INSTRUCTIONS
4th Dist. People v. Probst No. 4-02-0420 (November 21, 2003) Jersey County
(MCCULLOUGH) Affirmed.

Defense counsel, who had previously represented state's confidential informant at sentencing hearing, was not operating under per se conflict of interest, and record does not demonstrate any actual prejudice.

Further, there was insufficient evidence to compel trial court to tender mistake of fact instruction to jury. In addition, stipulation to state's forensic evidence did not constitute ineffective assistance of counsel.

2-1401 MOTIONS/ SENTENCING
People v. Pinkonsly, No. 94644 (November 20, 2003) Appeal, 2nd Dist. Reversed

Appellate court erred when it reversed trial court's denial of 2-1401 motion challenging unlawful delivery of controlled substance charges based on ineffective assistance of counsel. Ineffective assistance is not available for 2-1401 motions. However, extended term sentence was not available for narcotics racketeering charge, it not being the most serious charge of which defendant was convicted.
(FITZGERALD)

APPEALS/ GUILTY PLEAS
People v. Flowers, No. 94721 (November 20, 2003) Appeal, 3rd Dist. Appellate court order vacated

Appellate court lacked jurisdiction to consider the merits of defendant's appeal from sentence imposed by trial court in excess of that contemplated by plea agreement, because defendant failed to file a proper 604(d) motion to vacate or reconsider sentence within 30 days of imposition of sentence. Further, court lacked procedural mechanism to vacate withholding order which appellate court found to be void.
(RARICK)

NOT GUILTY BY REASON OF INSANITY
2nd Dist. People v. Detert No. 2-02-0577 (October 24, 2003) Stephenson County
(BOWMAN) Affirmed.

Defendant, found not guilty by reason of insanity, was not entitled to a reduction of his commitment for 180 day service credit provided by Section 3--6--3(a)(3) of Code of Corrections in addition to day for day good time credit provided by Section 3--6--3(a)(2.1).

SEXUALLY VIOLENT PERSONS COMMITMENT ACT
1st Dist. In re Detention of Harold Powell No. 1-02-1421 (October 29, 2003) 3rd div.
(HALL) Certified question answered.

Trial court erred when it refused to dismiss petition to commit defendant pursuant to the Sexually Violent Persons Commitment Act because the State filed the petition more than 90 days prior to his entry into mandatory supervised release or did not file it within 30 days of entry into mandatory supervised release, as required by provisions of Section 15(b-5)(1) of Act.

EVIDENCE/ SENTENCING / JURY SELECTION
4th Dist. People v. Culbreath No. 4-02-0163 (October 29, 2003) McLean County
(STEIGMANN) Affirmed.

Defendant, in trial for aggravated battery, was not deprived due process when his attorney agreed to waive presence of court reporter during void dire; particularly since defendant failed to supply appellate court with bystander's report or complain of any error during jury selection process. In addition, question by defense counsel on rebuttal about defendant's mental state was properly stricken as cumulative. Further, court could order defendant to pay restitution within two years of release from prison even though order may be uncollectible because of defendant's lack of resources. Finally, by amendment to Section 5-8-2(a), legislature intended to comply with Apprendi; and did not intend to omit prior criminal record of defendant as qualifying for extended term sentence without finding of jury. Therefore, defendant's prior criminal record qualifies him for extended term sentence of six years without finding of jury.

UNLAWFUL USE OF WEAPON BY A FELON
4th Dist. People v. Harris No. 4-02-0481 (October 29, 2003) McLean County
(KNECHT) Reversed and remanded.

Although Section 21-1.1 of Code of Criminal Procedure, defining unlawful use of a weapon by a felon, is not unconstitutionally broad, trial court committed plain error when it allowed State to refuse defendant's offer to stipulate to status as felon and allowed State to introduce each of four prior felony convictions into evidence.

SENTENCING/ SEX CRIMES
1st Dist. People v. Sanchez Jr. No. 1-02-0102 (November 4, 2003) 2nd div.
(WOLFSON) Affirmed.

Defendant's mandatory sentence of life imprisonment after having been previously convicted of a sex crime pursuant to 720 ILCS 5/12-14(d)(2) violates neither proportionate penalties clause of constitution nor his right to a jury trial. Further, finding of previous conviction for sex crime need not be made by jury; but could be made by judge.

SEX CRIMES/ JURY SELECTION / EAVESDROPPING
2nd Dist. People v. Stewart No. 2-02-1005 (November 5, 2003) DuPage County
(CALLUM) Affirmed as modified.

Defendant's conviction of aggravated criminal sexual abuse is not subject to reversal, because technical error, consisting of incorrect name of consenting participant, in order allowing eavesdropping of telephone conversation does not render the recording inadmissible. Further, disgusted comments made by prospective jurors subsequently dismissed for cause, during selection process did not taint entire venire. In addition, photographs of defendant's apartments showing toy packages were properly admitted as evidence of pattern of conduct designed to make victim more comfortable in defendant's home.

FELONY MURDER
1st Dist. People v. McGee No. 1-02-1601 (October 17, 2003) 6th div.
(TULLY) Affirmed.

Evidence was sufficient to convict defendant of felony murder based on felony discharge of a firearm. Trial court found that defendant, who was driving around looking for rival gang member, was not acting in self defense when he shot at target after observing him shooting at vehicle, and stray bullets struck and killed infant passerby in stroller. Further, court was not required to make independent inquiry of pro se motion alleging privately retained trial counsel's ineffective assistance, which defendant withdrew after conversing with subject attorney.

CONFRONTATIONS
2nd Dist. People v. Balayants No. 2-01-1383 (October 22, 2003) Lake County
(MCLAREN) Affirmed.

Trial court infringed on defendant's right of confrontation in robbery trial when it barred defendant from questioning State's principal witness about his incarceration pending criminal charges with potential sentence of 15 years even though no plea offer had been requested or made.

SENTENCING
2nd Dist. People v. Smith No. 2-02-0655 (October 23, 2003) DuPage County
(GROMETER) Affirmed.

Agreeing with 1st Dist. People v. Askew opinion, omission of recidivism exception when amending Section 5-8-2(a) of Code of Corrections to comply with Apprendi was legislative oversight rendering that section inconsistent with other provisions of Code. Court will resolve ambiguity by inferring recidivism exception into statute to comport with clear legislative intention. Therefore, trial court did not err when it imposed extended sentence upon revocation of probation for forgery based on defendant's prior criminal record.

DOMESTIC VIOLENCE
2nd Dist. Alison C. v. Westcott No. 2-02-1379 (October 20, 2003) McHenry County
(MCLAREN) Reversed.

Trial court erred when it denied defendant's motion to dismiss plaintiff's petition for plenary order of protection because the history between the parties of just one date is insufficient to qualify as "dating relationship" pursuant to section 103(6) of Domestic Violence Act.

2nd Dist. People v. Fikara No. 2-02-0228 (October 10, 2003) Lee County
(HUTCHINSON) Affirmed.

After dismissal of defendant's post conviction petition challenging conviction of two counts of aggravated sexual assault and sentence to consecutive 40 year terms, was reversed and remanded, trial court order dismissing counts of petition other than Apprendi and setting new sentencing hearing was a final order which defendant did not appeal within 30 days. Therefore, court lacks jurisdiction to consider grounds stated therein. Further, under Section 5-8-4(a), defendant is not entitled to a new trial because state filed notice that it was seeking extended term sentence based solely on defendant's prior criminal record. Re-imposition of sentence was therefore, proper.

SELF DEFENSE/ ONE ACT ONE CRIME RULE
4th Dist. People v. Lee No. 4-98-0413 (October 3, 2003) STEIGMANN County
(SANGAMON) Affirmed in part, affirmed in part, remanded.

State presented sufficient evidence for jury to conclude beyond a reasonable doubt that defendant's use of deadly force in self defense was not reasonable. However, state having failed to charge separate offenses for each of three shots defendant used against victim, defendant, defendant can only be convicted of one crime for shooting. Since trial court assigned more serious sentence to second degree murder charge, defendant's conviction for aggravated battery with a firearm must be vacated.

MODUS OPERANDI/ SEX CRIMES / SENTENCING
1st Dist. People v. Colin No. 1-00-2755 (September 30, 2003) 4th div.
(HARTMAN) Affirmed.

Evidence of prior crimes was properly admitted as modus operandi because of similarity between defendant's previous sexual assault of vulnerable young neighbor, whose family he and his wife befriended, lured to his control and sexually assaulted with the assistance of his wife and the crimes for which he was convicted. Further, Apprendi violation associated with consecutive terms of 60 years was waived by failing to raise at trial and was harmless.

UNLAWFUL POSSESSION OF A WEAPON BY A FELON/ SENTENCING
1st Dist. People v. Carmichael No. 1-02-1106 (September 30, 2003) 3rd div.
(HOFFMAN) Affirmed in part, vacated in part, remanded

Trial court erred when it treated defendant's previous conviction for armed violence as a "forcible felony" in order to elevate defendant's conviction for unlawful possession of a firearm by a felon to a class 2 felony. However, sentencing range does not violate proportionate penalties clause, and case can be remanded for resentencing.

UNLAWFUL USE OF A WEAPON/ SENTENCING
1st Dist. People v. Washington No. 1-02-2919 (September 30, 2003) 3rd div.
(KARNEZIS) Affirmed.

Aggravated unlawful use of weapon cannot be compared to reckless discharge of a weapon statute for purposes of proportionate penalties analyses, because the statutes target different behaviors. Further, amendment to Section 5-8-2 of Criminal Code omitted recidivist exception to Apprendi by legislative oversight, which they corrected with later amendment. In addition, stipulated evidence was sufficient to convict defendant of possession of a controlled substance.

SEXUALLY DANGEROUS PERSONS ACT
People v. Masterson, No. 93579 (October 2, 2003) Appeal, 1st Dist. Reversed and remanded

Trial court committed respondent pursuant to Sexually Dangerous Persons Act without explicit findings required by People v. Crane. Therefore, in order to meet minimum due process requirements, court infers definition of "mental disorder" as "a congenital or acquired condition affecting the emotional or volitional capacity that predisposes a person to engage in the commission of sex offenses and results in serious difficulty controlling sexual behavior. Further, a finding of sexual dangerousness must be accompanied by an explicit finding that it is "substantially probable" the respondent will engage in the commission of sex offenses in the future if not confined.
(RARICK)

SPEEDY TRIAL/ SENTENCING
People v. Kaczmarek, No. 90865 (October 2, 2003) Appeal, 1st Dist. Affirmed in part, reversed in part, remanded

Delay of over one year between reversal and remand of defendant's conviction for murder and retrial, although lengthy, did not deprive defendant of his right to a speedy trial because he was responsible for the majority of the delay, and he was not prejudiced by it. Further, sentence to natural life based on exceptionally heinous and brutal behavior, although violative of Apprendi, is harmless error because evidence or murder of elderly victim by beating, stabbing and strangling to commit robbery that could easily have been accomplished without killing her clearly qualifies as exceptionally brutal.
(RARICK) KILBRIDE, special concurrence

SEXUALLY VIOLENT PERSONS COMMITMENT ACT
In re Detention of Varner, No. 90151 (October 2, 2003) Appeal, 2nd Dist. Affirmed

Sexually Violent Persons Commitment Act, as applied in this case, does not unconstitutionally deprive the respondent of substantive due process; because the jury was specifically instructed in such a way that it was clear that the state had the burden of proving that the respondent suffered from a mental disorder; which was defined in such a way that the jury was required to find an inability to control respondent's behavior.
(FREEMAN)

MURDER/ WITNESSES / SENTENCING
1st Dist. People v. Ruiz No. 1-00-2509 (August 5, 2003) 2nd div.
(GARCIA) Affirmed.

Evidence that defendant repeatedly shot gun in direction of person whom he though was member of rival gang was sufficient to convict defendant of murder of infant son of person at whom defendant was shooting as well as aggravated discharge of a weapon. Further, court did not abuse its discretion when it denied motion to continue during trial to enable defendant to subpoena witness. In addition, amended truth in sentencing statute is constitutional.

AGGRAVATED UNLAWFUL USE OF A WEAPON
1st Dist. People v. Marin No. 1-01-1080 (August 11, 2003) 1st div.
(GORDON) Affirmed.

Evidence that defendant was holding loaded hand gun in public was sufficient to convict defendant of aggravated unlawful use of a weapon. Further, statute, which requires only knowing mental state, is neither unconstitutionally vague nor overly broad.

PROPORTIONATE PENALTIES/ THEFT
People v. Graves, No. 94633 (September 18, 2003) Appeal, 3rd Dist. Appellate court reversed

Because the elements of theft of more than %10,000 of person over 60 years of age and theft by deception of over $20,000 of person over 60 years of age do not contain identical elements, appellate court's holding that defendant's 12 year sentence for unauthorized theft of $20,000 from elderly victims violates proportionate penalties clause is error.
(THOMAS)

SENTENCING
3rd Dist. People v. Breedlove No. 3-01-0744 (August 21, 2003) Tazewell County
(MCDADE) Affirmed.

Defendant, sentenced to 50 years imprisonment for murder before amendment to Supreme Court Rule 605(a), is not entitled to remand to the circuit court in order to be admonished that failure to file post trial motion challenging sentence could result in waiver of sentencing issues.

ACCOUNTABILITY/ PRISONERS
3rd Dist. People v. Strickland No. 3-01-0775 (August 6, 2003) Kankakee County
(LYTTON) Affirmed.

Evidence that defendant concealed gun in package and gave it to correctional officer, who smuggled it into jail, resulting in prisoner unknown to defendant shooting correctional officer and escaping, was sufficient to convict defendant of bringing contraband into penal institution, and of aiding escape on accountability theory.

SENTENCING/ CONTROLLED SUBSTANCES
4th Dist. People v. Cotton No. 4-01-0792 (September 5, 2003) Macon County
(COOK) Affirmed. modification

Defendant was properly sentenced to seven years imprisonment for delivery of a controlled substance with a prior conviction for drug possession, a class 2 felony, without jury finding of prior conviction; because enhanced sentence is not mandatory.

SEX CRIMES/ ACCOUNTABILITY / SENTENCING
1st Dist. People v. Watson No. 1-01-1988 (August 29, 2003) 6th div.
(GALLAGHER) Affirmed in part, reversed in part, remanded.

Defendant was properly convicted of aggravated criminal sexual assault and aggravated kidnapping based on evidence that he held victim at gunpoint and forced her to his apartment as co-defendant raped her. Further, it was not error for court to give IPI 11.57 containing accountability language and IPI 11.58 with no accountability language. However, trial court erred by imposing concurrent, rather than consecutive sentences and case will be remanded for imposition of consecutive sentences even though state requested court to impose concurrent sentences at trial.

LESSER INCLUDED OFFENSE/ MURDER
2nd Dist. People v. Soto No. 2-01-0119 (September 2, 2003) DuPage County
(KAPALA) Affirmed modification

After reconsideration in light of People v. Ceja, it was not error for the trial court to refuse defendant's tendered jury instruction of conspiracy to commit murder as lesser included offense of murder. Further, improper admission of codefendant's hearsay statements as tacit admission and improper closing argument by State were harmless error.

SENTENCING
2nd Dist. People v. DeBord No. 2-02-0226 (September 3, 2003) Jo Daviess County
(BYRNE) Reversed and remanded.

Although the absence of a finding or instruction in jury verdict of involuntary manslaughter that the victim was a member of the defendant's family or household is harmless error, the lack of allegation in the charging instrument for murder is plain error when defendant was convicted of lesser included offense of involuntary manslaughter of a family or household member. Further, court erred by ordering domestic violence fine taken out of defendant's bond money without first giving him credit for days spent in custody.

SUBSTITUTION OF JUDGE
3rd Dist. People v. Saltzman No. 3-02-0341 (August 29, 2003) Will County
(BARRY) Affirmed in part, reversed in part, remanded.

Judge from outside circuit did not abuse his discretion when he denied defendant's motion to disqualify all judges in Will County from hearing his case. However, trial court erred when it denied motion for substitution of judge filed within a day of notification of denial of motion to disqualify all judges as being untimely.

SENTENCING
1st Dist. People v. Golden No. 1-00-3181 (August 20, 2003) 3rd div.
(WOLFSON) (SOUTH, dissent) Reversed and remanded.

Defendant's extended term sentence for attempted murder without supporting jury finding was plain error that was not harmless because facts surrounding shooting were not so clearly indicative of wanton cruelty that it left "no doubt" that it was caused in a brutal and heinous manner.

INEFFECTIVE ASSISTANCE OF COUNSEL/ CONTROLLED SUBSTANCES / SENTENCING
1st Dist. People v. Rucker No. 1-01-3617 (August 19, 2003) 2nd div.
(MCBRIDE) Affirmed.

Defendant's post sentencing pro se petition containing bald allegation that his counsel failed to adequately represent him and asking for reduction of sentence did not qualify as exception to rule that pro se motions by represented defendants should not be considered by the court; and record is not sufficient to establish ineffective assistance of counsel. Further, evidentiary stipulation was sufficient to waive foundation requirement for drug tests; and defendant was properly sentenced as class X offender for delivery of controlled substance based on his prior criminal record.

SINGLE SUBJECT RULE
1st Dist. People v. Morales No. 1-02-1566 (August 19, 2003) 2nd div.
(BURKE) Affirmed.

Trial court properly dismissed defendant's post conviction petition seeking to vacate his guilty plea and sentence for aggravated battery with a firearm, because of single subject rule challenge to PA 86-890, as patently without merit.

HARASSMENT
1st Dist. People v. Terry No. 1-02-2287 (August 21, 2003) 4th div.
(GREIMAN) Affirmed.

Because Section 32-4a(a)(2) (harassment of a witness) does not apply to protect persons who are identified by State as intended witness, but who never testify because of defendant's guilty plea, trial court correctly dismissed indictment charging defendant with harassing person identified in State's 412 as witness after defendant was released from sentence imposed after guilty plea.

PROBABLE CAUSE TO ARREST ALL OCCUPANTS IN CAR

SUPREME COURT OF THE UNITED STATES
Syllabus
MARYLAND v. PRINGLE
CERTIORARI TO THE COURT OF APPEALS OF MARYLAND
No. 02-809. Argued November 3, 2003-Decided December 15, 2003

A police officer stopped a car for speeding at 3:16 a.m.; searched the car, seizing $763 from the glove compartment and cocaine from behind the back-seat armrest; and arrested the car's three occupants after they denied ownership of the drugs and money. Respondent Pringle, the front-seat passenger, was convicted of possession with intent to distribute cocaine and possession of cocaine, and was sentenced to 10 years' incarceration without the possibility of parole. The Maryland Court of Special Appeals affirmed, but the State Court of Appeals re-versed, holding that, absent specific facts tending to show Pringle's knowledge and dominion or control over the drugs, the mere finding of cocaine in the back armrest when Pringle was a front-seat passenger in a car being driven by its owner was insufficient to establish probable cause for an arrest for possession.

Held: Because the officer had probable cause to arrest Pringle, the arrest-rest did not contravene the Fourth and Fourteenth Amendments. Maryland law authorizes police officers to execute warrantless arrests, inter alia, where the officer has probable cause to believe that a felony has been committed or is being committed in the officer's presence. Here, it is uncontested that the officer, upon recovering the suspected cocaine, had probable cause to believe a felony had been committed; the question is whether he had probable cause to believe Pringle committed that crime. The "substance of all the definitions of probable cause is a reasonable ground for belief of guilt," Brinegar v. United States, 338 U. S. 160, 175, and that belief must be particularized with respect to the person to be searched or seized, Ybarra v. Illinois, 444 U. S. 85, 91. To determine whether an officer had probable cause to make an arrest, a court must examine the events leading up to the arrest, and then decide "whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to" prob-
2 MARYLAND v. PRINGLE Syllabus able cause. Ornelas v. United States, 517 U. S. 690, 696. As it is an entirely reasonable inference from the facts here that any or all of the car's occupants had knowledge of, and exercised dominion and control over, the cocaine, a reasonable officer could conclude that there was probable cause to believe Pringle committed the crime of possession of cocaine, either solely or jointly. Pringle's attempt to characterize this as a guilt-by-association case is unavailing. Ybarra v. Illinois, supra, and United States v. Di Re, 332 U. S. 581, distinguished. Pp. 3-8. 370 Md. 525, 805 A. 2d 1016, reversed and remanded. REHNQUIST, C. J., delivered the opinion for a unanimous Court.
Cite as: 540 U. S. ____ (2003) 1 Opinion of the Court

RETAIL THEFT / INEFFECTIVE ASSISTANCE OF COUNSEL
1st Dist. People v. Taylor No. 1-02-1319 (December 3, 2003) 3rd div.
(HOFFMAN) Affirmed.

Although presumption of intent contained in Section 16A-4 of retail theft statute is unconstitutional, it can be severed from the rest of the statute, and there is no evidence that trial court relied on presumption in record. Further, claim of ineffective assistance of trial counsel for conceding that defendant stole something fails because defendant failed to demonstrate how concession prejudiced defendant in light of overwhelming evidence of defendant's guilt and rigorous defense provided by trial counsel throughout trial.

DOMESTIC VIOLENCE/ MOOTNESS
2nd Dist. Creaser v. Creaser No. 2-02-0517 (July 29, 2003) DuPage County (CALLUM) Reversed.

Although denial of motion to vacate emergency order of protection is moot, the order having expired by its own terms 21 days after its issuance, it is reviewed under public policy exception to mootness doctrine. Further, trial court erred when it denied motion to vacate emergency order giving petitioner exclusive possession of marital home, there being no evidence whatsoever presented that there is a substantial likelihood of further abuse if notice were given to Respondent.

SENTENCING/ PROSECUTORIAL MISCONDUCT / INEFFECTIVE ASSISTANCE OF COUNSEL
2nd Dist. People v. Simmons No. 2-00-0695 (July 29, 2003) Winnebago County
(HUTCHINSON) Affirmed.

Defendant's extended term sentence of 80 years based on exceptionally brutal nature of murder without corresponding jury finding does not constitute plain error and will not be reversed based on Apprendi violation. Further, opening and closing arguments of prosecutor did not deprive defendant of fair trial. Nor did defense counsel's failure to object to statements of prosecutor.

SENTENCING/ MANSLAUGHTER
2nd Dist. People v. DeBord No. 2-02-0226 (July 29, 2003) Jo Daviess County (BYRNE) Reversed and remanded.

Defendant, who was charged with murder of girlfriend's 2 month old child, but convicted of involuntary manslaughter as lesser included offense, could not be sentenced for class 2 felony of manslaughter of family or household member, because charging instrument failed to contain requisite allegation that victim was family or household member and jury made no explicit finding thereof. Further, court improperly ordered that domestic violence fine be taken out of defendant's bond because fine was satisfied from time defendant spent in custody prior to being released on bond.

BATTERY
4th Dist. People v. Smith No. 4-02-0075 (July 30, 2003) Livingston County (APPLETON) Affirmed.

Record is sufficient to support trial court's finding that defendant committed aggravated battery by throwing liquid substance at correctional officer; because correctional officer was acting in his official capacity while delivering meal to her. Although he was also provoking her by unjustifiably taunting her, his provocation was not legally sufficient.

NOT GUILTY BY REASON OF INSANITY/ INEFFECTIVE ASSISTANCE OF COUNSEL
5th Dist. People v. Dutton No. 5-01-0963 (July 31, 2003) Marion County
(GOLDENHERSH) Affirmed.

Defendant, who pled not guilty by reason of insanity and arrived a plea agreement whereby she would be referred to Department of Mental Health for evaluation, was not deprived of effective counsel by attorney's comments at disposition hearing after evaluation recommended commitment, that he believed detention was in defendant's best interests.

MURDER/ SENTENCING
1st Dist. People v. Lee No. 1-99-2325 (July 16, 2003) 3rd div.
(WOLFSON) Affirmed. modification

Evidence that defendant was present in his apartment when victim was murdered, participated in disposal of body, and testimony of wife that he had stabbed victim was sufficient to convict defendant of murder. Further, trial court did not abuse its discretion when it refused to answer hypothetical questions from jury about matters within ordinary person's understanding; the answers to which would have required the judge to comment on the evidence. Further, although sentence of natural life violated Apprendi, it was not plain error because evidence of the brutal nature of the murder was overwhelming.

SENTENCING/ SEX CRIMES
1st Dist. People v. Lucas No. 1-99-2623 (July 16, 2003) 3rd div.
(WOLFSON) Affirmed. modification

Although Defendant's extended term sentence for attempted murder, aggravated criminal sexual assault and aggravated kidnapping based on trial court's finding of exceptional brutality without requisite findings by jury violated Apprendi, it was harmless error because the evidence of exceptional brutality was so overwhelming. Further, his consecutive sentences pursuant to the provisions of Section 5-8-4(a) of Criminal Code is both proper and constitutional.

INVOLUNTARY COMMITMENT/ INSANITY
1st Dist. People v. Youngerman No. 1-01-3723 (July 18, 2003) 6th div.
(TULLY) Affirmed in part, reversed in part, remanded.

Trial court was correct to amend order determining defendant's maximum term of commitment, for purposes of statute governing defendants found not guilty by reason of insanity, to exclude credit for time that defendant had improperly "eloped" from mental health facility. However, in defendant's discharge hearing, it erred when it denied defendant's request for independent psychiatric evaluation.

IMMUNITY/ MOTION TO SUPPRESS / PROSECUTORIAL MISCONDUCT
3rd Dist. People v. Rosenberg No. 3-02-0759 (July 11, 2003) LaSalle County
(LYTTON) Reversed and remanded.

Prosecutor deprived defendant of due process when it granted use immunity to obtain testimony of witness at defendant's trial after refusing to grant it in order to enable defendant to compel testimony of same witness at hearing on motion to suppress. Therefore, trial court must reconsider motion to suppress.

CRIMINAL

F/ CONSTITUTIONAL LAW
1st Dist. People v. McGee No. 1-02-2637 (June 30, 2003) 3rd div.
(WOLFSON) Affirmed.

Defendant was properly convicted of aggravated unlawful use of a weapon; and defendant failed to prove that statute violated either the proportionate penalties or substantive due process clauses of Illinois Constitution.

EVIDENCE/ SENTENCING / MURDER
1st Dist. People v. Alvarez No. 1-00-1221 (June 30, 2003) 5th div.
(REID) Conviction affirmed, sentence vacated.

Although trial court admitted evidence of gang involvement and presence of other weapons in defendant's home that was probably outweighed by prejudicial impact, any error committed by trial court was harmless. Further, trial court's refusal to allow testimony about police investigation was not an abuse of discretion. However, trial court erred when it imposed an extended sentence for murder of community activist without requisite finding of heinous nature of crime on part of jury in violation of Apprendi.

MURDER/ ACCOUNTABILITY
1st Dist. People v. Redmond No. 1-01-0405 (June 30, 2003) 1st div.
(O'MALLEY) Affirmed.

Evidence that defendant planed and participated in planned armed robbery and burglary is sufficient to find him guilty on an accountability for murder of accomplice during preparation for burglary by co-defendant in which he did not participate.

SEX CRIMES/ DISCOVERY / EVIDENCE
1st Dist. People v. Sykes No. 1-01-2942 (June 30, 2003) 3rd div.
(SOUTH) Affirmed

Defendant was properly convicted of attempted murder, predatory criminal sexual assault, and aggravated kidnapping based on his confession, and testimony of severely injured child who testified by means of eye gaze system without depriving defendant right of confrontation. Further, because physical evidence was already tested and found inconclusive, when State destroyed in violation of specific court order, court did not abuse its discretion when it gave instruction to jury about missing evidence rather than dismiss indictment.

CRIMINAL

JUVENILE DELINQUENCY
1st Dist. In re D.W. No. 1-01-0696 (June 16, 2003) 1st div.
(O'MALLEY) Reversed.

Trial court erred when it denied juvenile respondent's motion to suppress evidence seized in respondent's home after responding to tip by anonymous informant and police followed respondent into his home with insufficient exigent circumstances.

ATTEMPTED MURDER/ ONE ACT ONE CRIME
1st Dist. People v. Brown No. 1-01-1712 (June 20, 2003) 6th div.
(O'BRIEN) Affirmed.

Defendant was properly convicted of two counts of attempt murder and one count of attempted armed robbery after evidence at trial established that he shot his gun once at two police officers after attempting to steal guns from victim's trunk, there being two intended victims. Further threats from gang general earlier in the evening were not sufficient to give defendant a defense of necessity or compulsion.

SENTENCING
2nd Dist. People v. Harth No. 2-02-0320 (June 19, 2003) DuPage County
(GROMETER) Affirmed.

Defendant was not deprived due process by court's allowance of four page victim impact statement introduced at sentencing hearing and read by victim's mother. Although introduction was error, it cannot form basis for appellate review; and court, when imposing harsh sentence to defendant drug dealer, focused on his long, sophisticated and unrepentant career and the need to protect public from him.

FELONY MURDER/ RIGHT TO COUNSEL
4th Dist. People v. Graham No. 4-01-0550 (June 20, 2003) Vermilion County
(STEIGMANN) Affirmed.

Police did not violate defendant's right to counsel when they questioned him about offense unrelated to the offense for which he was in custody and failed to notify his attorney on unrelated offense prior to interrogation. Further, after he waived his Miranda rights, he did not assert his right to counsel by asking to speak with State's Attorney. In addition, stipulated statement of facts in which defendant planned home invasion in order to rob occupant and co-defendant struck victim with crow bar resulting in his death was sufficient to convict defendant of felony murder.

SENTENCING
1st Dist. People v. Askew No. 1-01-2920 (June 16, 2003) 1st div.
(SMITH) Affirmed.

Version of Section 5-8-2(a) under which defendant was convicted, when considered with other statutory provisions, evidence clear intent on the part of the legislature to exempt prior convictions from criteria for extended sentence which trier of fact must find beyond a reasonable doubt. Therefore, trial court properly sentenced defendant to four years for possession of controlled substance based on his prior criminal record.

ONE ACT ONE CRIME RULE/ POSSESSION OF A WEAPON BY A FELON
1st Dist. People v. McCarter No. 1-01-2936 (June 13, 2003) 6th div.
(GALLAGHER) Affirmed.

Defendant was properly convicted of three counts of illegal possession of a weapon by a felon after the State charged him with possession of hand gun, assault rifle, and ammunition, three separate crimes, which are not lesser included offenses of one another. Further, evidence that police found weapons in corner of room containing defendant's personal items, including a letter from court to defendant that was only three days old, was sufficient to prove possession.

MONEY LAUNDERING/ INDICTMENTS
2nd Dist. People v. Fields No. 2-02-0090 (June 17, 2003) DuPage County
(O'MALLEY) Affirmed.

Indictment charging defendant with money laundering by merely parroting statutory definition of offense was fatally defective because it failed to allege the source of the criminally derived funds or to describe the financial transaction. Further, the fatal errors were not cured by State's bill of particulars.

SPEEDY TRIAL ACT
4th Dist. People v. Colson No. 4-01-0439 (June 17, 2003) Champaign County
(COOK) Affirmed.

Defendant's Speedy Trial Act rights were not violated when trial court granted the State a continuance to obtain DNA test results pursuant to the provisions of Section 103-5(c). State showed due diligence by submitting tests to lab at a reasonable time with lab not taking unreasonable time to return results.

SEXUALLY DANGEROUS PERSONS COMMITMENT ACT
5th Dist. In re Detention of Cain No. 5-02-0088 (June 18, 2003) Christian County
(DONOVAN) Affirmed.

Respondent was not deprived due process by trial court's refusal to allow his presence at probable cause hearing as part of his 30 month review; and court's properly concluded that there was no probable cause to justify full hearing to determine whether respondent remained a sexually violent person.

EVIDENCE/ INEFFECTIVE ASSISTANCE OF COUNSEL
1st Dist. People v. Rosemond No. 1-00-1483 (May 14, 2003) 3rd div.
(HALL) Reversed and remanded.

Evidence presented by defendant of circumstances of interrogation and confession were not so suggestive of coercion that polygraph results could be admitted under narrow Jefferson exclusion. Therefore, trial court committed reversible error both by allowing testimony and by giving jury instructions compounding the error. Further, although defense attorney's cross examination of witness to elicit hearsay testimony of defendant's other crimes was not sound, defendant did not establish prejudice prong of Strickland test for ineffective assistance of counsel.

SOLICITATION OF MURDER
5th Dist. People v. Terrell No. 5-02-0367 (June 11, 2003) Montgomery County
(CHAPMAN) Reversed.

Evidence that that defendant requested another person drive him and his wife to specified location where he planned to kill his wife himself was insufficient to convict him of solicitation of murder.

IDENTIFICATION/ APPEALS
2nd Dist. People v. Ramos No. 2-01-1167 (June 9, 2003) DuPage County
(MCLAREN) Affirmed.

"Show up" identification of defendant standing with his companion, another Hispanic male, shortly after victims were shot from another vehicle was not unreasonably suggestive even though they were standing next to vehicle matching that described by victims. Further, identification was sufficient to support conviction for aggravated battery with a firearm and aggravated discharge of a firearm. However, State does not have the authority to appeal trial court's decision to merge two aggravated discharge convictions.

INEFFECTIVE ASSISTANCE OF COUNSEL/ SEX CRIMES / SEVERANCE
2nd Dist. People v. Gonzalez No. 2-02-0128 (June 9, 2003) Lee County
(O'MALLEY) Affirmed and remanded.

Defendant has failed to establish that his trial counsel's failure to move to sever disparate counts of his trial for predatory criminal sexual abuse and aggravated criminal sexual abuse resulted in conviction on count that otherwise would have likely been an acquittal. Therefore, he is not entitled to reversal based on ineffective assistance of counsel. However, case must be remanded with regard to sentencing issues for court to give proper admonishments.

APPEALS
4th Dist. People v. Slover No. 4-02-0892 (June 6, 2003) Macon County
(TURNER) Affirmed.

Appellate court has jurisdiction to review order from trial court, containing Rule 304(a) language, granting State's motion to allow animal DNA examination of defense exhibits and of former residence of murder victim. Further, trial court had jurisdiction to consider and grant motion even while the underlying criminal case was on direct appeal. In addition, trial court's decision to grant motion in order to further interest of justice, in light of pending juvenile proceeding, is not an abuse of discretion.

ATTEMPTED MURDER/ ONE ACT ONE CRIME RULE
1st Dist. People v. Green No. 1-99-1384 (May 27, 2003) 1st div.
(SMITH) Affirmed in part, reversed in part, remanded.

Evidence that defendant shot at police officers at close range from slow moving vehicle was sufficient to convict defendant of attempted murder. Further, defendant was not deprived his right of confrontation by the court's refusal to allow him to introduce evidence or cross examine police officers about his prior history with a police officer not called by State against whom defendant had filed police brutality charges. However, conviction for aggravated armed violence runs afoul of one act one crime rule.

SEX CRIMES/ CORPUS DELICTI
1st Dist. People v. Richmond No. 1-01-1656 (May 28, 2003) 3rd div.
(WOLFSON) Affirmed in part, reversed in part, remanded.

Defendant's conviction for aggravated predatory sexual assault based on penis to vagina contact must be reversed because the only evidencepresented on that charge was the confession of the defendant, thereby violating the corpus delicti rule. However, his conviction for penis to anus contact together with 30 year sentence is not plain error, although it was improper for State to make entire opening statement from the perspective of the 8 year old victim and court erred by refusing to give complete IPI 3.06-3.07

PROSECUTORIAL MISCONDUCT/ INEFFECTIVE ASSISTANCE OF COUNSEL
2nd Dist. People v. Arroyo No. 2-00-0498 (June 2, 2003) Lake County
(KAPALA) Affirmed.

On reconsideration pursuant to supervisory order of the Supreme Court, although prosecutor's comments during opening statement about defense witness being called who was serving twenty years and who had been convicted of being getaway driver in defendant's murder case were clearly improper, they did not seriously prejudice the defendant, and are therefore, harmless. Further, defense counsel's failure to call subject driver as witness was legitimate exercise of trial strategy and did not rise to level of ineffective assistance of counsel.

SINGLE SUBJECT RULE/ CONTRABAND
3rd Dist. People v. Burdunice No. 3-01-0776 (May 29, 2003) Kankakee County
(SCHMIDT) Reversed.

Statute under which defendant was convicted of bringing electronic contraband (cell phone batteries) into a penal institution, P.A. 89-688, violates single subject rule of Illinois Constitution. Therefore, her conviction is void.

HABEAS CORPUS/ SENTENCING
5th Dist. Taylor v. Cowan No. 5-01-0670 (May 22, 2003) Randolph County
(HOPKINS) Affirmed.

Defendant's habeas petition is subject to dismissal because he has not established that, even were he to apply Apprendi to his sentence of natural life for murder, he is entitled to release from custody because he has not completed maximum term for murder. Further, because evidence in his case established beyond a reasonable doubt that he was subject to enhanced penalty by virtue of excessively cruel and heinous conduct, he was not prejudiced by failure to submit question of enhancement to jury.

INEFFECTIVE ASSISTANCE OF COUNSEL
People v. Moore, No. 87958 (May 22, 2003) Appeal, 1st Dist. Reversed and remanded

Trial court erred when it refused to investigate or even address defendant's pro se motion for appointment of counsel other than public defender filed during the course of pre-trial proceedings and raised again after his sentencing.
(FREEMAN)

CHILD PORNOGRAPHY/ FIRST AMENDMENT RIGHTS
People v. Alexander, No. 93952 (May 22, 2003) Appeal, 2nd Dist. Reversed and remanded

Provision of Child Pornography Act which defines children, 11-20.1(f)(7), is unconstitutionally broad because it includes computer generated graphics which appear depict children. However, because that section is severable from the rest of the statute, the trial court erred by striking all of the charges against the defendant. With the common meaning of "child", the complaint charges the defendant with possession and intent to distribute child pornography by electronic means, which does not unconstitutionally impair defendant's First Amendment rights.
(FITZGERALD)

RETAIL THEFT/ GRAND JURIES / EVIDENCE
2nd Dist. People v. Hart No. 2-01-1131 (May 12, 2003) DuPage County
(O'MALLEY) (McLAREN, special concurrence) Affirmed.

Defendant was not deprived of a fair trial merely because inaccurate evidence was presented to grand jury without proof of deliberate deception. Further, evidence was sufficient to establish intent to steal briefcase from retailer despite apprehension of defendant before he left store. In addition, evidence of similar theft by defendant a few days earlier at same location was properly admitted to show intent.

JUVENILE DELINQUENCY/ SENTENCING
5th Dist. People v. Beck No. 5-01-0722 (May 14, 2003) St. Clair County
(CHAPMAN) Affirmed.

Because Section 2-7 of Juvenile Court Act, providing for transfer of juveniles to adult criminal court, is dispositional in nature, it does not implicate the constitutional concerns raised in Apprendi. Therefore, trial court properly denied respondent's Post Conviction Hearing Act petition challenging constitutionality of sentence to consecutive prison terms under Criminal Code for attempted murder, aggravated battery and home invasion.

SEXUALLY VIOLENT PERSONS COMMITMENT ACT/ EXPERTS
2nd Dist. In re Detention of Traynoff No. 2-01-0880 (May 8, 2003) Kane County
(BOWMAN) (KAPALA, dissent) Affirmed in part, reversed in part, remanded.

Although defendant's due process rights were not violated by trial court ordering him to be examined by State's expert before commitment hearing pursuant to Sexually Violent Persons Commitment Act, and there was sufficient evidence presented to conclude that defendant lacked the volitional capacity to stop himself from pedophilia, trial court erred by admitting evidence based on psychological tests that have not attained general acceptance without conducting proper Frye hearing.

SENTENCING
1st Dist. People v. Vida No. 1-99-2922 (May 2, 2003) 6th div.
(GALLAGHER) Affirmed. modification

After reviewing the 100 year sentence imposed on defendant by the trial court for murder with a plain error analyses in light of the Supreme Court opinion in People v. Crespo, the court concludes that the trial court's finding that the defendant was excessively brutal in the manner in which he committed murder would have been found by a jury. Therefore, his original sentence will be reinstated.

CRIMINAL

WHISTLEBLOWERS ACT
2nd Dist. People v. Salafsky No. 2-01-0378 (May 5, 2003) Winnebago County
(O'MALLEY) Certified questions answered

Under Illinois' Whistleblower's Reward and Protections Act, the allegation of false claim against a university that has not opted to operate under the Act does not require that funds be directly reimbursed by the State; but merely that state funds are more than a de minimus contribution to the allegedly false claims. Further, the plaintiff's complaint against a university president for taking retaliatory action against him in violation of the Act is not barred by previously filed civil rights action in federal court.

SENTENCING/ SEX CRIMES
3rd Dist. People v. Gossage No. 3-01-0674 (May 2, 2003) Knox County
(SCHMIDT) Affirmed.

Sentence of 17 ½ years for predatory criminal sexual assault of a child to first offender with psychological testimony of defendant's low intelligence and unlikelihood of reoccurrence of sexual offense in mitigation and evidence of devastating impact on victim in aggravation, is not an abuse of discretion.

PROPORTIONATE PENALTIES/ KIDNAPPING / SENTENCING
4th Dist. People v. Baker No. 4-01-0597 (April 30, 2003) Champaign County
(STEIGMANN) Affirmed in part, vacated in part.

The 15 year enhancement of defendant's sentence for aggravated kidnapping because he used a firearm while kidnapping his victim violates the proportionate penalties clause of the Illinois Constitution because it contains the identical elements as armed violence predicated on kidnapping while imposing a much harsher penalty.

CROSS EXAMINATION
1st Dist. People v. Chavez No. 1-01-0758 (April 23, 2003) 3rd div.
(WOLFSON) Reversed and remanded.

Defendant was deprived of his right of confrontation in his trial for murder when his attorney was not allowed to inquire on cross examination about potential bias of police officer who provided critical testimony of statements allegedly made by defendant. Defendant should have been allowed to ask about statements made by police officer about pending law suit for personal injuries against department and fellow officer for injuries that defendant sustained several years earlier.

MURDER/ EAVESDROPPING / EVIDENCE
1st Dist. People v. Burnom No. 1-01-1261 (April 4, 2003) 6th div.
(O'BRIEN) Affirmed.

Evidence that defendant waited in alley while underlings in gang attempted to rush intended victim of armed robbery in order to obtain cache of weapons in victim's trunk after intended victim set up transaction with defendant and of defendant's flight while police chased and killed driver of gang car while he was apparently trying to run police down with car is sufficient to convict defendant of felony murder on an accountability theory. Further, since agent in charge of investigation was federal agent investigating weapons violation court properly applied more liberal Federal eavesdropping statute and refused to suppress tape of confrontation. Further, evidence of previous crime was properly admitted to show motive; and gang evidence was relevant to show defendant's participation in armed robbery.

CONTROLLED SUBSTANCES/ SENTENCING
2nd Dist. People v. Roberts No. 2-01-0680 (April 21, 2003) Winnebago County
(KAPALA) Affirmed in part, reversed in part, remanded.

Defendant fails to demonstrate that statute establishing offense of possessing a look alike substance with intent to deliver within 1000 ft of public housing, with potential sentence greater than a conviction for possession of controlled substance that item is designed to imitate, violates due process. Further, defendant waived challenge to sentence of ten years and ten months by failing to file motion attacking it at trial court. However, because statute does not authorize imposition of street value fine or trauma center fine for look alike substance convictions, that portion of sentence will be vacated.

SEXUALLY VIOLENT PERSONS COMMITMENT ACT/ SUBSTITUTION OF JUDGE
3rd Dist. In re Detention of Hargett No. 3-02-0064 (April 18, 2003) Iroquois County
(SLATER) Reversed. modification

Trial court erred when it denied motion to substitute judge for cause based on conflict of interest when judge was state's attorney at time that defendant was convicted of qualifying sexual offenses. Further, trial court erred when it allowed state's psychological experts to testify based on results of MNSOST-R and Static-99 tests without Frye hearing.

MURDER/ EAVESDROPPING / EXPERTS
People v. Ceja, No. 89553 (April 17, 2003) Appeal, 2nd Dist. Affirmed

In defendant's trial for murder, based on indictment alleging that he was a principal, State could tender instruction containing accountability theory without opening door for defendant to demand instruction of conspiracy to commit murder. Further, trial court's determination that defendant had impliedly consented to individuals listening to his conversations over intercom system, by continuing to talk after correction officer told him to be quiet because his conversation was being overheard, was not clearly erroneous. In addition, court properly allowed state's expert to testify that there was a "good probability" that glass piece in defendant's shoe came from vehicle found at scene of murders; especially since defendant presented testimony of contrary expert.
(FREEMAN)

UNLAWFUL USE OF A WEAPON
2nd Dist. People v. Kelley No. 2-01-1471 (April 15, 2003) Winnebago County
(BYRNE) Affirmed.

State sufficiently established that defendant was guilty of aggravated unlawful use of a weapon, even without demonstrating that location where victim was shot was not his abode, by presenting testimony that defendant was driving around with weapon in his waistband on public road.

SEXUALLY DANGEROUS PERSONS COMMITMENT ACT
2nd Dist. In re Detention of Hughes No. 2-00-0999 (April 10, 2003) Lake County
(KAPALA) Affirmed.

Defendant was not deprived of effective assistance of counsel by virtue of failure to object to trial under Sexually Violent Persons Commitment Act because of Speedy Trial Act violation because Speedy Trial Act does not apply to commitment proceedings. Although due process imposes right to speedy trial, it was not violated. Further, although it was error to admit results of plethysmograph test without proper Frye hearing, it was not plain error, and defendant waived it by failing to object. In addition, because State gave race neutral reason for excuse of only African American juror, there was no Batson violation.

SENTENCING
2nd Dist. People v. Reyes No. 2-02-0117 (April 9, 2003) Lake County
(HUTCHINSON) Affirmed.

In probation of revocation proceeding, defendant's sentence of 30 months of intensive probation with 18 months periodic imprisonment with release only for work or treatment was not work release program; and therefore, did not violate twelve month maximum sentence for work release.

POST-CONVICTION PROCEEDINGS

POST CONVICTION PROCEEDINGS
People v. De La Paz, No. 93208 (May 8, 2003) Appeal, 1st Dist. Affirmed

Because Apprendi does not apply retroactively to convictions in which the direct appeal process had concluded at the time that it was decided, and because defense counsel's refusal to believe that her angry and difficult client was not unfit to participate in post conviction proceedings does not constitute ineffective assistance of counsel, trial and appellate court properly dismissed defendant's post conviction petition.
(FREEMAN) THOMAS, special concurrence, KILBRIDE, partial concurrence, partial dissent

POST CONVICTION PROCEEDINGS
2nd Dist. People v. Stivers No. 2-01-0991 (April 15, 2003) Ogle County
(GILLERAN JOHNSON) Reversed and remanded.

Trial court erred when it dismissed the defendant's post conviction petition at the first stage because the defendant had waived review of his guilty plea by failing to file a direct appeal. Matters such as waiver and timeliness must be affirmatively raised by the State; and are not proper grounds for summary dismissal. Further, the defendant's allegation of ineffective assistance of counsel for failing to file motion to dismiss based on statute of limitations does state the gist of a constitutional claim.

POST CONVICTION PROCEEDINGS
1st Dist. People v. Lee No. 1-01-1018 (November 24, 2003) 1st div.
(MCNULTY) Affirmed.

Trial court properly summarily dismissed defendant's post conviction petition without appointing counsel even though it stated reasons for dismissal of only one claim. On de nova review, both sue process claims, consecutive sentencing violating Apprendi and general verdict form for charge of aggravated criminal sexual assault as either accessory or principal, lack gist of a meritorious defense.

POST CONVICTION PROCEEDINGS
1st Dist. People v. Dodds No. 1-01-1239 (November 18, 2003) 2nd div.
(BURKE) Reversed and remanded.

Trial court erred when it dismissed after second stage hearing, the defendant's post conviction petition after DNA tests were performed and demonstrated that the blood on defendant's sweater could not have been that of the victim. The trial court must now proceed to third stage hearing at which it must determine whether new results would likely have changed outcome of verdict.

POST CONVICTION PROCEEDINGS
1st Dist. People v. Etherly No. 1-01-4166 (November 21, 2003) 6th div.
(FROSSARD) Reversed and remanded.

Trial court erred by dismissing defendant's post conviction petition based on res judicata when record does not indicate that issue of failure to property voir dire prospective jurors regarding gang violence was raised on direct appeal by defense counsel. Therefore, case must proceed to second stage, wherein defendant is appointed new counsel and is given opportunity to amend petition.

POST CONVICTION PROCEEDINGS/ INEFFECTIVE ASSISTANCE OF COUNSEL / BRADY

VIOLATIONS
3rd Dist. People v. Rish No. 3-01-0161 (November 10, 2003) Kankakee County
(SLATER) (McDADE, special concurrence) Reversed and remanded modification

Trial court erred when it dismissed post conviction petition of murder defendant without an evidentiary hearing; because petition and affidavits sufficiently allege violation of defendant's due process when attorney representing her allowed her to make series of inconsistent statements during two days of interrogation without informing her that he was close personal friend of victim and attorney for police officer involved in investigation. Further, petitions contain sufficient allegations of Brady violation based on lies by investigator. However, Apprendi sentencing issues will not be applied retroactively.

POST CONVICTION PROCEEDINGS
1st Dist. People v. Schutz No. 1-00-3494 (October 29, 2003) 3rd div.
(HALL) Affirmed.

Although there is not time limit for filing Section 116-3 motion for DNA testing, and relief under that section is available to defendants who have already served their sentence and are not incarcerated, trial court properly dismissed defendant's motion for DNA testing because State had destroyed evidence samples and chain of custody could, therefore, not be established.

POST CONVICTION PROCEEDINGS
1st Dist. People v. Broughton No. 1-01-2565 (October 31, 2003) 6th div.
(SMITH) Affirmed.

Trial court did not err when it dismissed defendant's post conviction petition after appointing counsel and allowing amendment thereto but without evidentiary hearing. Affidavits of co-defendant in murder trial that defendant did not kick or punch victim in course of robbing victim's trailer, and other witnesses, were not sufficient to conclude a substantial likelihood of a different outcome at trial had their testimony been available. Further, no ineffective assistance of post conviction counsel was established.

POST CONVICTION PROCEEDINGS
1st Dist. People v. Robinson No. 1-00-3309 (September 24, 2003) 5th div.
(REID) (QUINN, dissent) Reversed and remanded.

After trial court summarily dismissed defendant's post conviction petition, clerk failed to timely transmit order to defendant. Therefore, time for summary dismissal of defendant's petition has expired and defendant is now entitled to appointment of counsel to assist in the amendment of petition.

POST CONVICTION PROCEEDINGS/ BRADY VIOLATION
3rd Dist. People v. Rapp No. 3-02-0794 (September 19, 2003) Henry County
(HOLDRIDGE) Affirmed.

Trial court's denial of defendant's post conviction petition after third stage hearing was not against the manifest weight of the evidence because inadvertent failure on the part of the state to disclose that one of its witnesses had a felony conviction would not have changed outcome of trial, witness providing only evidence relevant to context of offense of predatory criminal sexual assault for which defendant was convicted.

APPEALS/ POST CONVICTION PROCEEDINGS / INEFFECTIVE ASSISTANCE OF COUNSEL
3rd Dist. People v. Kellerman No. 3-01-0713 (September 4, 2003) Will County
(HOLDRIDGE) (Mod) Reversed and remanded.

Defendant's appeal from the summary dismissal of his post conviction petition was timely filed by means of letter mailed from prison within 30 days of dismissal titled, "Notice of Filing Notice of Appeal" in which he requested that trial court's dismissal of his petition be appealed. Further, post conviction petition was not waived by failure to file motion to withdraw guilty plea or appeal from sentence imposed pursuant to plea; because it contained allegations of ineffective assistance, to wit: that counsel incorrectly advised him that statements made by police that state's attorney would offer him sentence of three or four years if he confessed, had no legal effect, could not have been raised on direct appeal. In addition, failure to submit documentation other than his own affidavit is excused because of obvious difficulty obtaining affidavit from attorney that they misled defendant.

POST CONVICTION PROCEEDINGS/ INEFFECTIVE ASSISTANCE OF COUNSEL
2nd Dist. People v. Cleveland No. 2-02-0088 (August 27, 2003) McHenry County
(BOWMAN) Affirmed

Overruling holding in Brothers, appellate court may affirm trial court's summary dismissal of defendant's post conviction petition if it finds that petition is without merit regardless of basis of trial court's dismissal. Therefore, defendant's post conviction petition was properly dismissed on summary basis as wholly without merit because allegation that attorney told defendant to testify falsely at trial is insufficient to raise issue of ineffective assistance of counsel.

POST CONVICTION PROCEEDINGS
1st Dist. People v. Jefferson No. 1-01-4483 (November 28, 2003 ) 4th div.
(QUINN) Affirmed. modification

Although trial court erred in relying on untimeliness of defendant's post conviction petition as a reason for summary dismissal of petition, it did properly conclude that petition is patently without merit because claimed errors were either raised on direct appeal or contradicted by the record.

POST CONVICTION PROCEEDINGS
1st Dist. People v. Plummer No. 1-01-0123 (December 5, 2003) 6th div.
(FROSSARD) Reversed and remanded

Trial court erred when it dismissed defendant's post conviction petition as patently without merit at first stage of proceeding, because record does not rebut defendant's claim of ineffective assistance of counsel based on counsel's failure to obtain social security records of State's principal witness, which demonstrate she suffered from hallucinations.

POST CONVICTION PROCEEDINGS
4th Dist. People v. Greer No. 4-01-1157 (July 18, 2003) Sangamon County
(COOK) Affirmed in part, reversed in part, remanded. July 18, 2003

Although trial court could properly allow appointed defense attorney to withdraw after fulfilling requirements of Rule 651(c) and concluding that defendant's post conviction petition could not be amended to state viable claim, it did not have authority to dismiss petition sua sponte more than 90 days after petition was filed.

POST CONVICTION PROCEEDINGS
1st Dist. People v. Jefferson No. 1-01-4483 (October 23, 2003) 4th div.
(QUINN) Affirmed.

Although trial court erred in relying on untimeliness of defendant's post conviction petition as a reason for summary dismissal of petition, it did properly conclude that petition is patently without merit because claimed errors were either raised on direct appeal or contradicted by the record.

POST CONVICTION PROCEEDINGS
1st Dist. People v. Deloney No. 1-98-1413, 1-00-0914 cons. (June 30, 2003) 5th div.
(GREIMAN) Affirmed.

Defendant's post conviction petition with supporting affidavits were properly dismissed by the trial court for failure to state the gist of a constitutional claim of police brutality or ineffective assistance of counsel and failed to present viable claim of actual innocence despite affidavit of State witness recanting her trial testimony.

POST CONVICTION PROCEEDINGS/ INEFFECTIVENESS OF COUNSEL
5th Dist. People v. Gandy No. 5-02-0015 (June 26, 2003) Marion County
(HOPKINS) Reversed.

Defendant was denied effective assistance of counsel in connection with second post conviction petition by counsel's failure to file 651(c) affidavit coupled with failure to file motion to amend pro se post conviction petition or respond to State's motion to dismiss after indicating intent to do so.

POST CONVICTION PROCEEDINGS
1st Dist. People v. Smith No. 1-01-2558 (Juene 16, 2003) 1st div.
(GORDON) Affirmed.

Trial court properly dismissed defendant's second successive post conviction petition because a) defendant failed to establish any objective reason why he could not have raised issued in first petition, and b) evidence of defendant's guilt was overwhelming, and none of the alleged errors would have likely changed the outcome of his trial.

POST CONVICTION PROCEEDINGS/ SENTENCING
2nd Dist. People v. Muntaner No. 2-01-1109 (June 11, 2003) Lake County
(O'MALLEY) Affirmed as modified.

Because Apprendi is not retroactive, defendant may not attack his extended term sentence for murder by means of collateral attack several years later. However, extended term sentence may only be imposed for most serious offense of which defendant convicted, i.e. murder. Therefore, extended term for attempted murder is void and sentence is reduced to 30 years concurrent with 50-year term for murder.

POST CONVICTION PROCEEDINGS
1st Dist. People v. Ross No. 1-01-2346 (May 28, 2003) 3rd div.
(WOLFSON) Affirmed.

Trial court's failure to transmit written order to defendant within 10 days does not render order dismissing post conviction petition void pursuant to provisions of Section 122-2.1(a)(2) of Post Conviction Hearing Act; and defendant was not prejudiced by delay because court extended time for filing appeal. (declining to follow People v. Porter) Further, summary dismissal was properly entered within 90 days, although not entered on record.

POST CONVICTION PROCEEDINGS
1st Dist. People v. Morales No. 1-01-4028 (May 27, 2003) 2nd div.
(CAHILL) Affirmed.

Defendant's second successive post conviction petition was subject to summary dismissal because it failed to contain allegations sufficient to demonstrate ineffective assistance of appellate counsel or to establish actual innocence by attaching affidavits of codefendants containing hearsay.

POST CONVICTION PROCEEDINGS
People v. Shum, No. 84933 (May 22, 2003) Appeal, 1st Dist. Affirmed in part, reversed in part, remanded

Trial court did not abuse its discretion when it found that defendant in post conviction petition challenging his murder and feticide conviction, failed to demonstrate his claim of ineffective assistance of counsel with regards to his fitness to stand trial or participate in post conviction proceedings, his arguments with defense counsel being volitional rather than resulting from delusional disorder. However, court erred when it denied Section 116-3 petition on procedural grounds. Because victim identification was critical issue and Vitullo kit preserved sperm sample, the results of the test could substantially advance defendant's claim of actual innocence.
(GARMAN)

POST CONVICTION PROCEEDINGS
1st Dist. People v. Smith No. 1-01-2558 (April 28, 2003) 1st div.
(GORDON) Affirmed

Trial court properly dismissed defendant's second successive post conviction petition because a) defendant failed to establish any objective reason why he could not have raised issued in first petition, and b) evidence of defendant's guilt was overwhelming, and none of the alleged errors would have likely changed the outcome of his trial.

POST CONVICTION PROCEEDINGS
3rd Dist. People v. Wilburn No. 3-02-0297 (April 25, 2003) Rock Island County
(HOLDRIDGE) Reversed and remanded.

Trial court erred when it dismissed post conviction petition challenging sentence for armed robbery under statute that was later declared unconstitutional, as being untimely. Defendant could not anticipate ruling by Supreme Court of unconstitutionality of statute; and post conviction petition filed 16 months after decision in People v. Cervantes, is not unreasonably late.