Appeal from the Circuit Court of Shelby County. No. 99-CF-55 Honorable Michael P. Kiley, Judge, presiding.
The opinion of the court was delivered by: Justice Goldenhersh
On May 26, 1999, the defendant, Michael S. Jennings, was charged by information with one count of first-degree murder (720 ILCS 5/9-1(a)(1) (West 1998)) and one count of concealment of a homicidal death (720 ILCS 5/9-3.1(a) (West 1998)) in connection with the death of Thomas Beyers (the victim). A four-count indictment was later entered charging the defendant with four alternative counts of first-degree murder. The charges were consolidated for a jury trial. The case proceeded to a trial in the circuit court of Shelby County, after which a jury found the defendant guilty of second-degree murder and concealment of a homicidal death. The trial court sentenced the defendant to 15 years in the Department of Corrections for second-degree murder and a consecutive 5 years' imprisonment for concealment of a homicidal death. On appeal the defendant contends that (1) the appellate prosecutor lacked the authority to prosecute the defendant, so that the trial must be declared a nullity and the resulting judgment void, (2) he was entitled to have the jury instructed on involuntary manslaughter, (3) he was denied a fair trial due to the trial court's response to a question by the jury during deliberations, concerning the effect of finding the defendant guilty or not guilty of first-degree murder, (4) the trial court erroneously believed that it was required to impose consecutive sentences, and (5) the sentences imposed were excessive in light of numerous factors presented in mitigation, the lack of significant factors in aggravation, and the defendant's potential for rehabilitation. We affirm.
On May 19, 1999, a fisherman found the body of the victim floating in Lake Shelbyville. Chains and coffee cans filled with concrete were attached to the body. A police investigation revealed that the victim and the defendant's wife were having an extramarital affair and that the defendant and his wife were involved in the death of the victim. The defendant's wife ultimately pled guilty to first-degree murder. In exchange for her guilty plea and cooperation with police, the prosecutor agreed to ask for a sentence of no more than 45 years in the Department of Corrections.
As for the defendant, on May 26, 1999, in cause No. 99-CF-54 he was charged by information with first-degree murder and concealment of a homicidal death. The charging instruments were signed by Steve Friedel, a Shelby County assistant State's Attorney. On August 31, 1999, a four-count murder indictment was entered against the defendant in cause No. 99-CF-55. On September 29, 1999, an order was entered consolidating the causes for a jury trial under No. 99-CF-55.
Friedel represented the State at the first five pretrial hearings:
first, a hearing on May 28, 1999, after the indictments were issued; second, the defendant's first appearance on June 2, 1999; third, the preliminary hearing on June 27, 1999; fourth, a pretrial conference on July 12, 1999; and fifth, a substitution-of-counsel hearing on September 3, 1999. Thereafter, the record indicates that Mr. Allan F. Lolie, Jr., of the State's Attorneys Appellate Prosecutor's office, took over the prosecution of the defendant.
Lolie's name first appears in the record on October 29, 1999, when he appeared on behalf of the State as "Special State's Attorney" at a pretrial conference. Also on that date, Lolie filed the State's "First Supplemental Answer to Defendant's Motion for Discovery." Prior to October 29, 1999, all motions and pleadings were served on Friedel, as indicated by the certificates of service contained in the record. After October 29, 1999, the certificates of service reflect service to Allan Lolie as "Special Prosecutor." Lolie filed motions on behalf of the State and responded to the defendant's numerous pretrial motions on behalf of the State. Lolie appeared on behalf of the State at all pretrial hearings held after September 3, 1999, including, inter alia, hearings regarding numerous motions in limine, a motion to bar the imposition of the death penalty, a motion to declare the death penalty unconstitutional, a motion to suppress recorded conversations and evidence derived therefrom, and a motion to require the sentencing jury to make specific findings.
In this appeal, the State has filed a motion to take judicial notice of a document filed with the circuit court of Shelby County in which the State's Attorney appointed Allan Lolie, an employee of the appellate prosecutor's office, as an assistant State's Attorney. The defendant does not object but, rather, welcomes the introduction of the document, asserting that it supports his contention that the appellate prosecutor lacked the authority to prosecute this case. With no objection, we hereby grant the State's motion to take judicial notice of the document.
The document is divided into two separate portions. It bears a file-stamp date of August 13, 1999, but lacks a case number. A review of the record in this case shows that it was not made a part of the instant record. The top portion of the document is titled "Appointment of Special Assistant State's Attorney." It is signed by the State's Attorney of Shelby County and states, "I *** appoint Allan F. Lolie, Jr.[,] of the State's Attorneys Appellate Prosecutor, as Special Assistant State's Attorney, and as such full faith and credit are due to all his official acts." In addition to the file-stamped date, the upper portion bears a handwritten date of August 13, 1999. The bottom portion of the document recites the oath of office taken by Allan F. Lolie, Jr., and bears his signature. The bottom portion of the document was signed by a notary on August 12, 1999, one day before the top portion of the document was signed by the State's Attorney.
After all the pretrial matters were resolved, a seven-day jury trial ensued. The trial took place on April 3, 4, 5, 6, 7, 10, and 11, 2000. Lolie represented the State throughout the trial. A review of the transcripts from those dates shows that Lolie was almost wholly responsible for the prosecution of the defendant. Mr. Parkinson was introduced to jurors as a part of the prosecution team, but his participation in the seven-day trial was minimal. Parkinson participated in voir dire, argued a minor evidentiary ruling regarding recorded conversations between the defendant and a witness, examined one witness (Dr. Travis Hindman, a pathologist who had performed the autopsy on the victim), and participated in the jury-instruction conference.
At the trial, the State presented evidence that the defendant and his wife conspired to kill the victim after the defendant had learned of his wife's infidelities. The defendant, on the other hand, testified that he did not plan to kill the victim but "freaked out" after he saw his wife performing oral sex on the victim and that he struggled with the victim for approximately 15 minutes until the victim stopped moving. The defendant admitted that during 90% of the fight, he was on top of the victim while the victim was facedown on the ground.
Dr. Hindman testified that the autopsy did not reveal a conclusive cause of death. He found a laceration on the left side of the victim's forehead but no evidence of a skull fracture or injury to the brain. He opined that the victim died by "a combination of suffocation, that's covering the nose and mouth[,] and compression asphyxia from compression to the chest." At the jury-instruction conference, the defendant tendered an instruction for involuntary manslaughter. The trial court refused the instruction on the basis that the duration of the altercation between the defendant and the victim indicated that the defendant's actions were not reckless. The trial court instructed the jury on the lesser offense of second-degree murder.
During deliberations, the jury sent the following note to the trial court: "If we vote not guilty of first[-]degree murder[,] do we then confer on second[-]degree murder[,] or do we have to find guilty of first[-]degree murder before conferring on second degree?" The defendant urged the trial court to respond "No." The trial court responded by bringing the jury back to the courtroom and rereading the elements instructions for first- and second-degree murder. The jury later returned guilty verdicts for second-degree murder and concealment of a homicidal death.
On May 15, 2000, the trial court conducted a sentencing hearing. A presentence investigation report noted the defendant's three prior traffic convictions and a 1995 conviction for the production of cannabis plants. As factors in mitigation, the trial court found that the defendant did not have a substantial history of prior criminal conduct and that his conduct had been induced by someone other than himself. As a factor in aggravation, the trial court noted that it was necessary to deter others from committing similar crimes. The trial court sentenced the defendant to consecutive prison terms of 15 years on the second-degree-murder conviction and 5 years on the concealment-of-a-homicidal-death conviction. The defendant now appeals.
A. Authority to Prosecute
The defendant asserts that the appellate prosecutor lacked the authority to prosecute this case, making the trial a nullity and the resulting conviction void. The State responds that Allan Lolie was appointed as a special assistant State's Attorney in this case and thereby obtained the authority to prosecute the case. In the alternative, the State contends that even if Lolie lacked authority to prosecute the case, the defendant's convictions are not rendered void by Lolie's appointment. The State asserts that, at worst, the convictions are voidable and that because the defendant failed to object to Lolie's participation in the trial and cannot show that he suffered any prejudice from Lolie's participation, the convictions should be affirmed. We agree with the State.
It has long been accepted that the circuit court has the discretion to permit a privately employed attorney to assist the State's Attorney in the prosecution of a criminal case, so long as the State's Attorney assumes the management of the case and there is no injustice to the defendant. Hayner v. People, 213 Ill. 142, 147-48, 72 N.E. 792, 794 (1904); People v. Blevins, 251 Ill. 381, 389, 96 N.E. 214, 217-18 (1911). While a trial court is vested with the discretion to permit private counsel to assist a State's Attorney, a trial court must specifically appoint such an attorney. Section 3-9008 of the Counties Code provides as follows:
"Appointment of attorney to perform duties. Whenever the State's [A]attorney is sick or absent, or unable to attend, or is interested in any cause or proceeding, civil or criminal, which it is or may be his duty to prosecute or defend, the court in which said cause or proceeding is pending may appoint some competent attorney to prosecute or defend such cause or proceeding, and the attorney so appointed shall have the same power and authority in relation to such cause or ...