January Update

People v. Alfaro, No. 2-06-1146 (October 2, 2008)

Defendant enter plea to second degree murder, reduced from first degree, in exchange for testimony against other defendants.

Because defendant breached plea agreement, which allowed defendant to plead guilty to second degree murder and obstructing justice, in exchange with defendant’s cooperation with prosecutors in their prosecution of other defendants, by giving inconsistent and untrue statement, he was not prejudiced by ineffective and unprofessional representation by his counsel. However, trial court erred when it refused to suppress video taped statement given to police, after three hour interrogation; because defendant was in custody, and State deliberately engaged in “ask and then warn” tactic. After first hour, defendant was confronted by accusatory interrogation; defendant was interrogated after getting off from midnight shift; and a reasonable person in defendant’s position would not have believed himself free to leave.

People v. Russell, No. 3-06-0264 (October 2, 2008)

Admission of affidavits and records certifying results and accuracy of breathalyzer machine do not violate right of confrontation as described in Crawford.

People v. Poe, No. 3-06-0461 (October 7, 2008)
Although the Supreme Court has held that theft can qualify as lesser included offense of burglary for purposes of jury instruction, defendant is not entitled to vacate conviction for theft under one act one crime analysis where he was convicted of breaking into a lumber yard with intent to commit a theft, and also of committing theft upon entry.

People v. Petrenko, No. 3-06-0508 (October 2, 2008)

Trial court did not err when it summarily dismissed post conviction petition filed by defendant alleging ineffective assistance of trial and appellate counsel for failure to file motion challenging search warrant of defendant’s home after defendant’s fingerprints were found in murder and robbery victim’s home. Further, defendant’s assertion on appeal of first stage dismissal of his post conviction petition that his consecutive sentences of natural life and 10 years, respectively for murder and robbery, is procedurally defaulted.

People v. Paige, No. 3-07-0869 (October 6, 2008)
Trial court erred when it granted motion to rescind a statutory summary suspension based on evidence that defendant was stopped at a roadblock, where officer smelled cannabis odor coming from defendant’s vehicle and defendant admitted that he had been smoking marijuana. In order to rescind summary suspension, defendant was required to present some evidence that roadblock was unreasonable; which he did not.

People v. Lucas, No. 104558 (October 17, 2008)
Trial and Appellate courts erred when they allowed defendant to be convicted of armed violence based on predicate offense of driving while license revoked, subsequent offense. Although driving while license revoked can be elevated to felony at sentencing, Section 111-3(c) of Procedure Code prohibits prior record from being presented to jury. Therefore, driving while license revoked cannot be predicate offense for armed violence.

People v. Bannister, No. 100983 (October 17, 2008)

In defendant’s trial for single murder, resulting in jury sentencing verdict of death, trial court adequately advised defendant of his right to choose bench trial for guilt phase of trial and jury trial for sentencing phase. In addition, trial court did not err when it denied counsel’s motion for bench trial at sentencing phase; because counsel may not overrule defendant’s selection of jury. In addition, although defense nonpattern jury instruction on verdict form under amended death penalty statute is preferable, trial court did not abuse its discretion when it gave instruction tendered by State. Further, prosecutor’s closing argument in sentencing phase highlighting defendant’s lack of remorse did not undermine defendant’s right to remain silent.

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