Supreme Court Summaries

Opinions filed February 7, 2013




People v. Wilmington, 2013 IL 112938

Appellate citation: 2011 IL App (1st) 072518-B.


      JUSTICE KARMEIER delivered the judgment of the court, with opinion.

      Chief Justice Kilbride and Justices Thomas, Garman, and Theis concurred in the judgment and opinion.

      Justice Burke dissented, with opinion, joined by Justice Freeman.


      A Cook County jury convicted this defendant in the 2004 shooting death of a man whose body was found in a garbage can on the south side of Chicago. He received consecutive prison terms of 50 years for the murder and 5 years for concealment of a homicidal death. The appellate court had initially reversed and remanded for a new trial, finding plain error in purportedly inadequate questioning during jury selection, but, pursuant to a supervisory order from the Illinois Supreme Court, it reconsidered, and, ultimately, affirmed the convictions and sentences. In this decision, the supreme court agreed with what the appellate court had done, although reasoning slightly differently.

      Wilmington gave a statement which was taken down by hand by an assistant State’s Attorney, but Wilmington thereafter would not sign his statement and he did not testify at trial. There was trial testimony that defendant had stated that he had been engaged in a sexual relationship with the male victim, that they had argued at the defendant’s residence, and that defendant had shot the victim in the head before dragging the body outside and stuffing it in a garbage can. When police searched the defendant’s residence with his consent, they found that it had been cleaned and redecorated, no inculpatory evidence was found, and no fingerprints suitable for comparison were obtained. At trial, the defense offered testimony as to defendant’s mild retardation. There was also conflicting testimony as to whether he suffered from seizures. However, there was forensic testimony that the condition of the body was consistent with having been dropped on the sidewalk and then dragged on it.

      In jury selection for a criminal trial, the rules of the supreme court require that potential jurors be asked if they understand and accept the presumption of innocence, the requirement of proof of guilt beyond a reasonable doubt, the fact that an accused is not required to offer any evidence, and the fact that any failure to testify may not be held against him. In this appeal, Wilmington raised the arguments that the trial court failed to ask prospective jurors whether they understood and accepted the principle that his failure to testify should not be held against him, and, as to the other three principles, the venirepersons were asked only whether they accepted them, rather than whether they understood them. The supreme court said in this opinion that this was error. Objections to these defects had not been raised during the voir dire or by posttrial motion and were, therefore, defaulted. The question thus becomes whether there was plain error calling for reversal. The supreme court held that there was not. The court said that, under plain-error analysis, the defendant bears the burden of persuasion and he did not meet his burden here.

      The defendant argued the first prong of the plain-error rule, namely, that the evidence was so closely balanced that the error could have tipped the scales of justice against him. However, the supreme court did not agree that the evidence was close. There was unrebutted evidence of an inculpatory statement and there was some physical evidence supporting it. There was nothing in the record to indicate that the statement was coerced or untrue. Defendant’s refusal to sign his statement could be attributed to the fact that, as he had purportedly admitted, he did not want to reveal that he was gay.

      Wilmington had a second theory. He argued that the trial court had not ascertained whether he, personally, agreed to the submission to the jury of an instruction on second degree murder. It has been held that a defendant has the right to decide whether to submit an instruction on a lesser-included offense, but the supreme court pointed out that second degree murder is not a lesser-included offense of first degree murder. It is more accurately described as a lesser-mitigated offense of it, by which an accused does not expose himself to potential criminal liability which he might otherwise avoid.

      The appellate court’s affirmance of the results below was upheld.