People v. Staake, 2016 IL App (4th) 140638 (November). Episode 260 (Duration 9:52)
Second degree murder is not a lesser included offense of first degree murder; it is a lesser mitigated offense of first degree murder.
Defendant is originally charged with second degree murder for stabbing a carnival worker who had punched him in the face.
5 months later the state dropped the second degree murder and charged defendant with an intentional first degree murder.
One month after that they added a second count of strong probability of death or great bodily harm count.
Speedy & Joinder Issues
The Williams rule holds that if the initial and subsequent charges filed against the defendant are subject to compulsory joinder, delays attributable to the defendant on the initial charges are not attributable to the defendant on the subsequent charges. See People v. Williams, 204 Ill. 2d 191 (2003).
The rule only applies when the subsequent charge filed by the State is “new and additional,” thereby hindering the defendant’s ability to prepare for trial on the subsequent charge.
The “critical point” is whether the original indictment gave defendant adequate notice to prepare his defense to the subsequent charge.
Murder v. Second Degree Murder
The elements of the crimes of first degree murder and second degree murder are the same.
In other words, to convict a defendant of either first degree murder or second degree murder, the State must prove beyond a reasonable doubt the elements which constitute the crime of first degree murder.
Only after the trier of fact has concluded that the State has done so may the trier of fact then consider whether a mitigating factor is present so as to reduce the defendant’s conviction from first degree murder to second degree murder.
What is Second Degree Murder?
Accordingly, when the State chooses to charge a defendant with second degree murder, all it is doing is conceding the existence of a mitigating factor, thereby removing from defendant the burden of proving a mitigating factors existence.
When the State charges a defendant with second degree murder, it must still prove all of the elements that underlie the offense of first degree murder. However, if the jury finds that the State has proved those elements beyond a reasonable doubt, the verdict of the jury would be that the defendant is guilty of second degree murder, not first degree murder.
This result occurs because the State had effectively conceded the existence of the mitigating factor by charging the defendant only with second degree murder, not first degree murder.
Therefore, first degree murder is not a “new and additional” charge to second degree murder.
That is because the criminal behavior the State alleges the defendant engaged in regarding both charges—that is, first degree murder and second degree murder—is the same. The only difference between the two charges is the existence of a mitigating factor.
If the State initially decides to concede the existence of a mitigating factor by charging the defendant with second degree murder and then changes its position by charging first degree murder, the only change is that the State no longer concedes the existence of a mitigating factor.
That does not constitute a “new and additional” charge.
All of this matters because after the amendment to the charges in this case there was no joinder, speedy or preliminary hearing problem.
Defendant could claim no credible surprise or inability to properly defend the charges.
What About New Preliminary Hearing?
Also, note that the requirement for a preliminary hearing under article I, Section 7 of our constitution and 725 ILCS 5/111-2(e) only requires probable cause for any for at least one felony charged not all of the felonies.
This means that once a trial court, after conducting a preliminary hearing, has determined that probable cause exists for any felony offense with which the defendant is charged, that is all the trial court need determine before concluding that (1) the State has met its burden at the preliminary hearing and (2) the defendant should be held for trial on all of the charges then pending against him.