FILED
 2016 IL App (4th) 140638 November 10, 2016 

Carla Bender 

NO. 4-14-0638 4th District Appellate 

Court, IL 

IN THE APPELLATE COURT 

OF ILLINOIS 

FOURTH DISTRICT 

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from

Plaintiff-Appellee, ) Circuit Court of 

v. ) Schuyler County

JARED M. STAAKE, ) No. 13CF29

Defendant-Appellant. ) 

) Honorable 

) Alesia A. McMillen,

) Judge Presiding. 

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

Justices Holder White and Appleton concurred in the judgment and opinion. 

OPINION 

¶ 1 In July 2013, the State charged defendant, Jared M. Staake, with second degree 

murder for the killing of Michael Box. In December 2013, the State filed an amended information, dropping the charge of second degree murder and adding a charge of first degree murder. 

In January 2014, the State filed a second amended information, this time charging first degree 

murder under a different theory. The trial court rejected defendant’s objections to the January 

2014 charge, and the cause proceeded to trial. After the close of evidence, the court instructed 

the jury on second degree murder over defendant’s objection. The jury found defendant guilty of 

second degree murder and the court later sentenced him to 18 years in prison. Defendant appeals, 

raising several issues. We affirm as modified and remand with directions. 

¶ 2 I. BACKGROUND 

¶ 3 A. Procedural Matters 
 

 

 

¶ 4 In July 2013, the State charged defendant by information with second degree 

murder (720 ILCS 5/9-2(a)(1) (West 2012)). The information alleged that defendant committed 

the first degree murder (720 ILCS 5/9-1(a)(1) (West 2012)) of Box while acting under a sudden 

and intense passion resulting from serious provocation by Box. 

¶ 5 In October 2013, defendant disclosed that he intended to assert the affirmative 

defense of self-defense if the cause proceeded to trial. The trial court scheduled a January 13, 

2014, trial date. 

¶ 6 On December 2, 2013, the State filed a motion in limine, asking the trial court to 

prohibit defendant from presenting evidence or argument relating to Box’s refusal of medical 

treatment as an intervening cause of death. 

¶ 7 That same day, defendant filed a motion in limine, seeking to admit evidence of 

Box’s reputation and propensity for violence in support of his self-defense claim. Specifically, 

defendant sought to introduce the testimony of “several witnesses” who could testify to both specific acts of violence and to Box’s reputation for violence. In addition, the motion indicated that 

defendant anticipated testifying about his knowledge of Box’s violent tendencies. 

¶ 8 At a December 4 status hearing, the prosecutor explained, “I do realize now that 

after reviewing, especially the Lynch motion and some of the other items, that there’s a selfdefense claim, your Honor. And I’ve done some research, and I feel at this time that it may be 

imminent that the State may be amending the charge to *** first-degree murder ***. However, 

that shouldn’t change anything, because even in a second-degree murder case, the State still has 

to prove first-degree murder ***.” Defendant, through counsel, responded as follows: 

“And I would like to respond to what was just represented in open court 

for the first time, that being this transforming into a first-degree homicide case. 

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Your Honor, it was manifestly clear at the preliminary hearing where it was factually established and adduced that [Box] first punched [defendant], and [defendant’s] actions were responsive thereto, that we were dealing with a self-defense 

case. My first disclosure, which was timely filed within 28 days of the receipt of 

the initial tender of discovery, clearly set forth that self-defense would be raised 

as an affirmative defense, your Honor. So for this to come as some kind of a surprise to the State, just based upon the filing of the Lynch motion, I think that’s disingenuous, your Honor. If the State would within 30 days of trial [sic] were to essentially transform a secondary case. And, your Honor, they essentially, for all intents and purposes, charged it as a second-degree event. I have to believe, based 

on knowing the facts at the time, that this was either responsive to a provocation, 

a mutual combat situation, but certainly not a first-degree homicide context, for 

them to now within 30 days of trial transform it into a first-degree homicide 

cause. I don’t know, your Honor, if I could in good faith proceed to trial on 13 

January with that little change in the course of the proceeding.” 

¶ 9 The trial court responded, as follows: 

“I don’t have any control over the charges the State files, except if they’re 

filed the morning of trial, I probably have some control over that. But under these 

junctures, I think they have the right to do that. I think you have the right certainly 

to say there’s some surprise there, and I don’t know whether I can be ready. I appreciate all of your candor here, because everybody could just play it close to the 

vest, and I could subpoena all of my jurors, and we could come in here ten days 

before trial and know that we weren’t ready. 

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* * * 

And so I think, [defense counsel], it’s just basically up to you whether or 

not you want to go forward with this case January 13th at this juncture or you 

know you don’t want to do that.” 

¶ 10 Defense counsel responded as follows: 

“You Honor, I have governed my affairs based on the charging instrument 

and the discovery received to date around trying this case on 13 January. Now, 

again, your Honor, that’s based on the charging instrument that is on file at this 

point in time. Still having that charging instrument as our notice, and based on all 

of the discovery I have in fact received to date, I will represent to your Honor I’m 

fully prepared, willing, and able to start picking a jury on 13 January. But there’s 

two things I don’t have control over at this time your Honor, that being the discovery, which is still outstanding, and I do agree with your Honor the State has an 

absolute right to charge [defendant] differently than they’ve charged him now, but 

I state once again with full faith and confidence that my Lynch motion did nothing 

to change the dynamic in this cause as to whether or not we have a first-degree 

homicide cause or a second-degree homicide cause.” 

The court then instructed the State to make any amendments to the charging information within 

the next seven days. 

¶ 11 The following day, December 5, 2013, the State filed an amended information. 

The amended information alleged that defendant committed first degree murder (720 ILCS 5/9­

1(a)(1) (West 2012)) by stabbing Box, thereby causing his death, while knowing that the stabbing would cause his death. The amended information no longer charged second degree murder. 

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¶ 12 On December 18, 2013, the trial court conducted a hearing on the two motions in 

limine. As to the State’s motion to prohibit defendant from producing any evidence or argument 

about an intervening cause of death, defendant argued that causation was an essential element of 

“the crime” and, as such, was a question of fact for the jury to determine. The court explained 

that if defendant planned to challenge the State’s evidence of causation, “it has to be raised by 

evidence, not just by speculation.” The court continued, “So, if the defense intends to actually 

question the State’s causation evidence, I think they’re entitled to do that, but then they’re going 

to have to come up with, with actual evidence of that, not just their own speculation of what 

might have happened.” 

¶ 13 The trial court eventually granted the State’s motion. However, the court allowed 

for the following procedure: 

“[I]f the defense has evidence that they wish [sic] that’s going to actually question 

the causation evidence, then again through an offer of proof they can, they can introduce that to me outside the presence of the jury, and I’ll see if it raises to that. 

But what I’m not going to let either side do in this case is just raise question 

marks for the jury with no evidence behind it ***. 

*** 

So the defense response didn’t, by affidavit or otherwise, indicate that they 

had any evidence with regard to causation. And they may. I simply don’t know. I 

don’t know if they have a forensic expert as well that’s going to question what the 

State’s witnesses have said. But if that’s the case, I’m going to need to know 

about that, and I’m assuming that’s going to have been produced in the discovery. 

But at this juncture, I don’t have any of that information. So I’m granting the 

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[State’s] motion in limine, their first motion in limine, that there will not be any 

questions asked, issues raised about causation, unless the defense has, has actual 

evidence they’re going to produce. And if they do, then I’m going to see that in an 

offer of proof outside the presence of the jury. *** If the defense has a defense on 

this or any other issue they wish to raise, they are invited to do that, but it has to 

be by evidence, not just by a question that’s to be speculative.” 

¶ 14 The trial court then addressed defendant’s motion to introduce so-called “Lynch 

evidence”—i.e., evidence of the decedent’s (1) reputation and (2) propensity for violence. The 

court denied defendant’s request to introduce evidence of Box’s propensity for violence, reasoning that such evidence is relevant only when a question exists as to who was the initial aggressor 

and that, in this case, there was no question that Box was the initial aggressor. 

¶ 15 As to evidence of Box’s reputation for violence, the trial court determined that 

defendant had not yet presented any evidence to establish that defendant was aware of any reputation for violence on the part of Box. As a result, the court determined that defendant would not 

be permitted to introduce evidence of Box’s reputation unless and until defendant provided evidence establishing his knowledge of that reputation. The court added the caveat that if defendant 

wished to make a proffer of evidence—before trial—establishing that he had specific witness 

testimony showing that defendant had knowledge of Box’s reputation for violence, defendant 

was free to do so. The court again voiced its concern about witnesses testifying to irrelevant evidence before the jury that the court would be required to strike. 

¶ 16 The parties and the trial court then addressed whether a preliminary hearing was 

necessary on the State’s amended information. The State explained that it “was unsure as to 

whether the court would require preliminary hearing since the court has already found there was 

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probable cause as to the second degree murder. And, as the court is well aware, in order to—you 

have to prove all the elements. And so to prove the elements of second degree murder, the State 

must first prove first degree murder ***.” 

¶ 17 The trial court responded, “It’s [the court’s] belief that once there’s a preliminary 

hearing on any felony matter, there’s no requirement there be an additional preliminary hearing 

on additional or new charges.” The court explained that it would not conduct a preliminary hearing unless either party objected. The following exchange between the court and defense counsel 

then occurred: 

“[COURT]: Okay then, [defense counsel], are you requesting an additional preliminary hearing? 

[DEFENSE COUNSEL]: I am not requesting one, but the defendant does 

not wish to waive a preliminary hearing if this court were to conduct a preliminary hearing. 

[THE COURT]: Okay. Well, I’m not—I’m not asking him to waive preliminary hearing. He didn’t. We had a preliminary hearing on this charge. There 

has been an amended charge filed. If you are requesting an additional preliminary 

hearing, I will hear that request and make a determination on it. If not, we’ll move 

along. 

[DEFENSE COUNSEL]: Just to clarify again, I am not requesting one nor 

is the defendant waiving his right to a preliminary hearing on the first [degree] 

murder charge. 

[THE COURT]: Well, let’s not dance with the words. Are you asking for 

preliminary hearing on the new charge or not? I did not ask him to waive prelimi­

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nary hearing. He didn’t. We had a preliminary hearing. 

[DEFENSE COUNSEL]: No, your honor, I was just referencing the pleading, the preliminary hearing that was noticed up for today. 

[THE COURT]: Okay. Then I will understand that I’m going to read the 

defendant the new charges again, presuming—’cause this was all discussed at our 

last hearing, so everybody came here with the intention that this was what was going to happen today. I’m not sure if either [defense counsel] was present at our 

last hearing. I know [other defense counsel] was here and knew, in fact there was 

some discussion about trial dates with that, knew that there were going to be 

amended charges filed.” 

¶ 18 The trial court then informed defendant of the nature of the first degree murder 

charge and the penalties defendant faced if found guilty. Defendant stated that he understood and 

persisted in his not guilty plea. Defense counsel then said the following: 

“[T]o prove second-degree murder, you basically have to prove first-degree murder first. So this really changes nothing at all as far as our preparation and being 

ready for trial. All of the evidence is exactly the same as it was when the seconddegree murder charge was the pending charge. And just as we answered a few 

weeks ago that we were ready for trial, we still are ready for trial.” 

¶ 19 On January 3, 2014, the trial court conducted a hearing on any proffers of evidence that defendant wished to present concerning the motions in limine. As to the State’s motion to prohibit evidence of an intervening cause of death, defendant first argued that the court 

should reconsider its decision. Defendant argued that causation was an element of the offense 

and that he therefore had a constitutional right to cross-examine the State’s witnesses (in particu­

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lar, the medical examiner) on the issue of causation, and he should not first have to present a 

proffer of what testimony the State’s witnesses might provide. Defendant therefore asserted that 

the court’s ruling violated his sixth amendment right to confront witnesses. The court explained 

that the requirement of a proffer was intended to prevent a “fishing expedition that you know in 

advance isn’t going to produce any evidence because you know what the medical examiner 

said.” The court denied defendant’s motion to reconsider but reminded defendant that he could 

still submit a proffer of evidence that he expected to extract from the medical examiner. 

¶ 20 Defendant, through defense counsel, then made a proffer of Lynch evidence to 

establish that defendant knew about Box’s reputation for violence. Counsel explained that one 

night the previous winter, defendant and Box were in the Freight House Tavern in Beardstown. 

That night, Box “cold cock[ed]” another patron, knocking him unconscious—an event witnessed 

by defendant. Defendant then saw Box approach the patron, who was lying unconscious on the 

ground. Defendant believed that Box intended to kick the victim. Defendant intervened and prevented any further violence. Counsel argued that episode established defendant’s personal 

knowledge of Box’s violent tendencies, which was relevant to establish the reasonableness of 

defendant’s actions in relation to his self-defense claim. In addition, defendant had several previous interactions with Box, and on nearly every occasion, Box carried at least one knife. In particular, on July 2, 2013, defendant saw Box sitting at a picnic table, brandishing a knife. 

¶ 21 In response to defendant’s Lynch proffer, the State presented testimony from Jeremy Swan, a former employee of the Freight House Tavern. Swan stated that he saw Box come 

into the bar a few times but never saw him fight anyone. The State then presented the testimony 

of Darin Spears, owner of the Freight House Tavern. Spears testified that he was not aware of a 

January 2013 fight occurring between Box and a person named Joshua Cowden. 

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¶ 22 The State also presented the testimony of Tonia Walker, another former employee 

of the Freight House Tavern. Walker testified that Box was involved in one “incident” while 

Walker was employed there. On the night of the incident, Box approached Walker and asked her 

whether the bar had surveillance cameras out back. Box told Walker that “I hit that guy.” Walker 

told Box to leave the bar and Box complied without any resistance. Walker explained that the 

person Box hit had been disturbing other patrons all night. 

¶ 23 Defendant then testified in rebuttal. He testified that one night in January 2013, he 

and Box were at the Freight House Tavern, smoking cigarettes outside in the beer garden. Defendant testified that Box motioned for Cowden to come over. When Cowden approached, Box 

punched him in the face, and Cowden fell to the ground. Box then looked at defendant and 

smiled. Box approached Cowden as he lay on the ground. Defendant intervened and advised Box 

that he should leave. Box went back into the bar. 

¶ 24 The trial court decided “to permit the Lynch evidence, but very limited.” The 

court allowed defendant to testify about the incident at the Freight House Tavern to establish defendant’s knowledge of Box’s character for violence, as it related to the reasonableness of defendant’s actions in response to Box’s aggression. However, the court prohibited defendant from 

introducing the testimony of other witnesses as to the incident at the Freight House. The court 

described defendant’s written descriptions of those witnesses’ expected testimony as “totally inaccurate and totally wrong, based on the testimony of the [other] individuals, including the defendant.” The court added that “I see no reason that any of these other witnesses [should testify], 

because what they observed has no affect on [defendant’s] state of mind. So they will not be 

permitted to testify.” 

¶ 25 The trial court then summarized its concerns as follows: 

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“And the other thing I’m going to caution everybody right now about: I 

can see where this is going ***. That, again, the defense will want to make January of 2013 what this trial is about. That’s not what this trial is about. I’ve stated 

what you will be permitted to introduce evidence—now, have a seat, [defense 

counsel]—what you’re permitted to present evidence about. But already here today we attempt to take the straightforward testimony of the defendant and add 

some nice fancy words to it and turn and twist it, and that’s not going to happen, 

not going to happen to this jury.” 

¶ 26 On January 9, 2014, the State filed a second amended information. The new information again charged defendant with first degree murder (720 ILCS 5/9-1(a)(2) (West 2012)) 

but this time under a different theory than that alleged in the first amended information. The second amended information alleged that defendant stabbed Box, causing his death, knowing that 

the stabbing created a strong probability of death or great bodily harm. 

¶ 27 On January 13, 2014—the day of trial—defendant filed a “motion to deny” the 

second amended information. Defendant argued that the second amended information charged 

him under a different subsection of the first degree murder statute than had the first amended information. Defendant contended that section 9-1(a)(2) contained a different mens rea requirement than section 9-1(a)(1). As a result, defendant argued, he now lacked time to adequately 

prepare for trial on the second amended information, which remained scheduled for January 13, 

2014. Defendant requested that the trial court prohibit the State from charging first degree murder under section 9-1(a)(2). 

¶ 28 Prior to trial, the trial court addressed defendant’s pending motion “to deny” the 

State’s second amended information. Defendant argued that the State filed the second amended 

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information outside the seven-day window established by the trial court at the December 4, 2013, 

status hearing. The court reasoned that the State’s first amended information was filed within the 

seven-day window, charging first degree murder, and that the second amended information also 

charged first degree murder, merely changing the subsection. Accordingly, the court denied defendant’s motion “to deny” the second amended information. 

¶ 29 Defendant then requested a continuance to prepare for trial on the second amended information. The State responded that, when charging first degree murder, the State is required to notify a defendant only that he is being charged with first degree murder, not to identify 

which subsection of first degree murder the State intends to pursue. The court denied defendant’s 

motion for a continuance, finding that defendant had not pointed to anything about the trial or the 

evidence that had changed because of the second amended information. 

¶ 30 Defendant again inquired about whether he could question the State’s expert witnesses about the cause of death. The trial court responded, “No. The limitations as to whether or 

not the [victim’s] seeking or not seeking medical treatment affected causation, and my ruling 

stands with regard to that. You may not go into those issues.” 

¶ 31 Defendant then requested a preliminary hearing on the State’s second amended 

information, which the trial court denied. 

¶ 32 B. The Trial Evidence 

¶ 33 Casey Slusser testified that she was employed managing carnival games for Kenny Fox, who operated traveling carnivals. In July 2013, Slusser worked for Fox at the Schuyler 

County fair. She and Box were the only two employees who managed carnival games for Fox 

and, while traveling for work, both Slusser and Box lived together in the “game trailer,” in which 

they had separate rooms. Slusser described Box as “my ex-boyfriend’s best friend, and he was 

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my protector.” 

¶ 34 Slusser testified further that on July 1, 2013, defendant visited the fairgrounds and 

socialized with other carnival workers. Slusser and Box began playing beer pong. After they finished playing, Box went back to his room. Slusser asked defendant if he wanted to come to her 

room. Defendant agreed, so he and Slusser went to her room, where they lay down and talked. 

After about two or three minutes, Box began yelling and banging on Slusser’s door. Defendant 

exited Slusser’s room, opening the door so hard that “it banged off the game trailer.” 

¶ 35 Slusser testified that as defendant exited the trailer, Box punched him in the face. 

Defendant took a couple steps backward before taking a knife out of his pocket. Defendant then 

stabbed Box with the knife in the left abdomen. Box fell into a pile of tires. Defendant said, “I’m 

sorry. I didn’t mean to stab you,” before running off. 

¶ 36 Slusser took Box to the hospital, dropped him off there, and returned to the fairgrounds. Two days later, as she had done the day before, Slusser checked on Box in his trailer. 

She found Box lying dead and naked on the floor. 

¶ 37 Dr. Mark Day testified that in the early morning hours of July 2, 2013, he treated 

Box at the hospital for a “small” stab wound. Day testified that it was difficult to examine Box 

because he was “very” uncooperative. Day tried to look at the wound, and Box “took a swipe at 

me.” Day left the room for a few minutes because Box was not bleeding significantly. The “third 

or fourth time” that Day tried to evaluate Box, Box had passed out. At the time, Day did not 

think the stab wound penetrated Box’s fascia. According to Day, “[T]he fascia is what’s underneath the muscle, and if you don’t have an injury to the fascia, you don’t have a wound that you 

need to worry about that much.” Day “reluctantly” stitched up Box’s wound because “it was 

clear to me that he didn’t want me doing anything else.” Box later awakened and left the hospi­

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tal. 

¶ 38 Defendant testified that he was in Slusser’s room when Box started yelling and 

pounding on Slusser’s door for 20 or 30 seconds. Defendant decided it was time to go, so he 

opened Slusser’s door and stepped outside. As he stepped onto the ground, he was punched in 

the face but did not see who hit him. As defendant staggered backward, he saw Box approaching 

him. Defendant pulled a folding knife out of his pocket and stabbed Box. Defendant testified that 

he stabbed Box because he was afraid for his life and did not know what else to do. 

¶ 39 Dr. Amanda Youmans testified that she performed the autopsy of Box. She discovered gastric contents in Box’s abdomen, indicating that the wound had penetrated Box’s 

stomach. She opined that Box died from septic shock due to acute peritonitis resulting from a 

stab wound to the stomach. 

¶ 40 At the State’s request, and over defendant’s objection, the trial court instructed the 

jury on second degree murder. The jury found defendant guilty of second degree murder. The 

trial court later sentenced defendant to 18 years in prison, noting defendant’s extensive, violent 

criminal history. 

¶ 41 This appeal followed. 

¶ 42 II. ANALYSIS 

¶ 43 Defendant argues that (1) the State violated the speedy trial statute by trying defendant for first degree murder more than 120 days after he was taken into custody; (2) the trial 

court erred by requiring defendant to first make a “preview” proffer of evidence of causation before cross-examining the State’s witnesses or presenting his own evidence on that issue; (3) the 

court abused its discretion by sustaining the State’s objections that Day’s testimony was unresponsive to defendant’s questioning during cross-examination; (4) the court abused its discretion 

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by limiting the corroborative evidence that defendant could present to establish Box’s propensity 

for violence; (5) he was prejudiced by the State’s second amended information—which charged 

a different theory of first degree murder than the first amended information—because no preliminary hearing was held on the new first degree murder charge and because the court denied his 

continuance for more time to prepare on the new charge; (6) the State engaged in improper rebuttal closing argument by “making fun of” defense counsel; and (7) his presentence custody credit 

must be applied to his probation operations and juvenile records assessments. We address defendant’s arguments in turn. 

¶ 44 A. Speedy Trial 

¶ 45 Defendant argues that the State violated the speedy trial statute (725 ILCS 5/103­

5 (West 2012)) by trying defendant for first degree murder more than 120 days after he was taken into custody. 

¶ 46 We first provide a brief recap of the relevant facts. On July 5, 2013, defendant 

was taken into custody for the death of Box. On July 8, 2013, the State filed an information 

charging defendant with second degree murder (720 ILCS 5/9-2(a)(1) (West 2012)). On December 5, 2013, the State filed an amended information, this time charging defendant with first degree murder under section 9-1(a)(1) of the Criminal Code of 2012 (Criminal Code) (720 ILCS 

5/9-1(a)(1) (West 2012)), alleging that he stabbed Box, knowing that the stabbing would cause 

Box’s death. On January 9, 2014, the State filed a second amended information, again charging 

defendant with first degree murder, but this time under section 9-1(a)(2) (720 ILCS 5/9-1(a)(2) 

(West 2012)), asserting that defendant stabbed Box, knowing that the stabbing created a strong 

probability of death or great bodily harm. Trial began on January 13, 2014, and ended on January 

16, 2014. 

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¶ 47 1. Speedy Trial and Compulsory Joinder 

¶ 48 Illinois’ speedy trial statute requires that every criminal defendant in custody shall 

be tried within 120 days of the date when he or she was taken into custody, excluding any delay 

occasioned by the defendant. 725 ILCS 5/103-5(a) (West 2012)). The remedy for a violation of 

the speedy trial statute is dismissal of the charges. People v. Sharifpour, 402 Ill. App. 3d 100, 

119, 930 N.E.2d 529, 547 (2010); 725 ILCS 5/103-5(d) (West 2012). 

¶ 49 The speedy trial situation becomes more complicated when the State initially 

charges the defendant with one offense and then later charges an additional offense. Generally, 

the compulsory joinder statute, section 3-3 of the Criminal Code (720 ILCS 5/3-3 (West 2012)), 

requires that when the State knows that a defendant’s act may constitute more than one offense, 

those offenses must be prosecuted in a single proceeding. 

¶ 50 Further complications arise when the defendant causes or agrees to a delay in the 

trial proceedings on the initial charge or charges and the State later files an additional charge. “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.” People v. Williams, 204 Ill. 2d 191, 207, 788 N.E.2d 1126, 1136 

(2003). The purpose of that rule is to prevent “trial by ambush.” (Internal quotation marks omitted.) People v. Phipps, 238 Ill. 2d 54, 67, 933 N.E.2d 1186, 1194 (2010). That is, the purpose is 

to prevent a situation where a defendant acquiesces to pretrial delays on a lesser charge while the 

State is preparing for trial on more serious charges that have not yet been filed. Id. Once the State 

files the new charges, the defendant is faced with “a Hobson’s choice between a trial without adequate preparation and further pretrial detention to prepare for trial.” Williams, 204 Ill. 2d at 207, 

788 N.E.2d at 1137. 

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¶ 51 The rationale for the Williams rule is intended to ensure that a defendant “had adequate notice of the subsequent charges to allow preparation of a defense.” Phipps, 238 Ill. 2d at 

67, 933 N.E.2d at 1194. As a result, the Williams rule applies only 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. On the other hand, “[i]f the original charging instrument gives a 

defendant adequate notice of the subsequent charges, the ability to prepare for trial on those 

charges is not hindered in any way.” Id. 

¶ 52 In Phipps, the supreme court held “that the ‘defendant could not have been surprised by the subsequent charges because they were essentially the same as the original ones.’ ” 

Id. at 70, 933 N.E.2d at 1195 (quoting People v. Woodrum, 223 Ill. 2d 286, 301, 860 N.E.2d 259, 

270 (2006)). In such circumstances, “the defendant may proceed to trial on the subsequent 

charges with adequate preparation instead of being forced to agree to further delay.” Id. at 68, 

933 N.E.2d at 1194. The “critical point” is “whether the original indictment gave defendant adequate notice to prepare his defense to the subsequent charge.” Id. at 69, 933 N.E.2d at 1195. We 

review de novo whether a subsequently filed charge is new and additional. Id. at 67, 933 N.E.2d 

at 1194. 

¶ 53 2. Second Degree Murder as a Lesser-Mitigated Offense of 

First Degree Murder 

¶ 54 To better understand the nature of second degree murder and its relationship to 

first degree murder, we provide a brief synopsis of the statutory history of murder in Illinois. 

Upon the adoption of the Criminal Code of 1961, the criminal law in Illinois set forth three separate homicide offenses: murder, voluntary manslaughter, and involuntary manslaughter. Ill. Rev. 

Stat. 1961, ch. 38, ¶¶ 9-1, 9-2, 9-3. The first two offenses were identical but for the inclusion of a 

mitigating circumstance—that the defendant acted under either a sudden and intense passion or 

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an unreasonable belief of justification—that distinguished voluntary manslaughter from murder. 

The relationship between the two offenses was summed up tidily by Professor Timothy P. 

O’Neill of the John Marshall Law School: 

“There are tensions between the roles of voluntary manslaughter as ‘true 

crime’ and as ‘compromise verdict.’ It is not a discrete crime, but merely a less 

culpable form of murder: murder with certain specified extenuating circumstances. It is a crime no one could ever deliberately intend to commit, but is rather an 

after-the-fact characterization of a defendant’s actions. It is a homicide less serious than murder; yet it is not a lesser-included offense, since the act and basic 

mental state of each offense are identical.” Timothy P. O’Neill, “Murder Least 

Foul”: A Proposal to Abolish Voluntary Manslaughter in Illinois, 72 Ill. B.J. 306, 

306 (1984). 

¶ 55 Under the Criminal Code of 1961, the State bore the burden to establish a mitigating circumstance necessary to prove the lesser offense of voluntary manslaughter. People v. 

Newbern, 219 Ill. App. 3d 333, 349, 579 N.E.2d 583, 593 (1991). That arrangement led to a paradoxical situation because the State bore the burden of proving beyond a reasonable doubt an 

element that benefited the defendant. And not infrequently, the prosecutor would argue to the 

jury that the State had failed to prove the mitigating element, while defense counsel would contend that the evidence had proved that element. 

¶ 56 To correct that perverse system, the legislature enacted Public Act 84-1450 (eff. 

July 1, 1987), which changed the names of the offenses of murder and voluntary manslaughter 

to first degree murder and second degree murder, respectively. Substantively, the respective elements of those crimes did not change at all. The only substantive change brought by the act was 

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to shift the burden to prove mitigation from the State to the defendant. 

¶ 57	 After Public Act 84-1450, second-degree murder was defined as follows: 

“(a) A person commits the offense of second degree murder when he commits the 

offense of first degree murder as defined in paragraphs (1) or (2) of subsection (a) 

of Section 9-1 of this Code and either of the following mitigating factors are present: 

(1) At the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by the individual killed or 

another whom the offender endeavors to kill, but he negligently or accidentally causes the death of the individual killed; or 

(2) At the time of the killing he believes the circumstances to be 

such that, if they existed, would justify or exonerate the killing under the 

principles stated in Article 7 of this Code, but his belief is unreasonable. 

(b) Serious provocation is conduct sufficient to excite an intense passion 

in a reasonable person. 

(c) When a defendant is on trial for first degree murder and evidence of either of the mitigating factors defined in subsection (a) of this Section has been 

presented, the burden of proof is on the defendant to prove either mitigating factor 

by a preponderance of the evidence before the defendant can be found guilty of 

second degree murder. However, the burden of proof remains on the State to 

prove beyond a reasonable doubt each of the elements of first degree murder and, 

when appropriately raised, the absence of circumstances at the time of the killing 

that would justify or exonerate the killing under the principles stated in Article 7 

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of this Code. In a jury trial for first degree murder in which evidence of either of 

the mitigating factors defined in subsection (a) of this Section has been presented 

and the defendant has requested that the jury be given the option of finding the 

defendant guilty of second degree murder, the jury must be instructed that it may 

not consider whether the defendant has met his burden of proof with regard to second degree murder until and unless it has first determined that the State has 

proven beyond a reasonable doubt each of the elements of first degree murder.” 

720 ILCS 5/9-2 (West 2000). 

Under this more sensible arrangement, the onus is on the defendant to establish the facts necessary to mitigate first degree murder to second degree murder, should the defendant so wish. 

¶ 58 Twenty-five years ago, in Newbern, 219 Ill. App. 3d at 352, 579 N.E.2d at 596, 

this court analyzed the relationship between second degree murder and first degree murder and 

explicitly disagreed with several decisions of other appellate court districts that had held that second degree murder is a lesser-included offense of first degree murder. In Newbern, this court 

began its analysis of the relationship between second degree murder and first degree murder by 

quoting from a law review article by Professor O’Neill, as follows: 

“ ‘A lesser included offense has either fewer elements or a less culpable mental 

state. Second degree murder does not have fewer elements [than] first degree 

murder; indeed, it embodies all of first degree murder plus mitigating circumstances. Nor does second degree murder technically have a less culpable mental 

state; like first degree, it requires an intentional or knowing state of mind.’ ” (Emphasis in original.) Id. at 353, 579 N.E.2d at 596 (quoting Timothy P. O’Neill, An 

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Analysis of Illinois’ New Offense of Second Degree Murder, 20 J. Marshall L. 

Rev. 209, 224 (1986)). 

¶ 59 The Newbern court then wrote the following: 

“In order to describe the relationship between first degree murder and second degree murder, it will not suffice for us to say what that relationship is not— 

namely, that second degree murder is not a lesser included offense of first degree 

murder. Instead, we must state what that relationship is, and we now hold that second degree murder is a lesser mitigated offense of first degree murder: It is a 

lesser offense because its penalties upon conviction are lesser (compare Ill. Rev. 

Stat. 1989, ch. 38, par. 1005-8-1(a)(1) (the penalty for first degree murder), with 

Ill. Rev. Stat. 1989, ch. 38, par. 1005-8-1(a)(4) (the penalty for second degree 

murder, a Class 1 felony)); and it is a mitigated offense because, as Professor 

O’Neill correctly explains, it is first degree murder plus defendant’s proof by a 

preponderance of the evidence that a mitigating factor is present. 

We fully recognize that the concept of a lesser mitigated offense is new to 

Illinois law, but so is the statutory scheme underlying second degree murder. We 

conclude that it is erroneous to try to fit second degree murder, a sui generis offense under the Illinois criminal code, into the ‘comfortable old shoe’ of being a 

lesser included offense simply because no other recognized description seems to 

fit.” (Emphases in original.) Id. 

¶ 60 Four years later, the Supreme Court of Illinois addressed the same subject in People v. Jeffries, 164 Ill. 2d 104, 122, 646 N.E.2d 587, 595 (1995), and, citing this court’s decision 

in Newbern approvingly, wrote the following: 

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“[W]e reaffirm *** that the mental states required for voluntary manslaughter, 

now known as second degree murder, are identical to that required for first degree 

murder. *** Murder and second degree murder each require the same mental 

state: either intent or knowledge. [Citations.] Moreover, second degree murder is 

not a lesser included offense of murder. Section 2-9 of the Criminal Code of 1961 

defines an included offense in pertinent part as an offense that ‘[i]s established by 

*** a less culpable mental state.’ (Ill. Rev. Stat. 1987, ch. 38, par. 2-9(a).) Having 

determined that the mental states for murder and second degree murder are identical, it is evident that second degree murder is not a lesser included offense of first 

degree murder. Rather, second degree murder is more accurately described as a 

lesser mitigated offense of first degree murder. See People v. Newbern (1991), 

219 Ill. App. 3d 333[, 579 N.E.2d 583] (second degree murder is a lesser offense 

because its penalties upon conviction are lesser, and it is a mitigated offense because it is first degree murder plus defendant’s proof by a preponderance of the 

evidence that a mitigating factor is present).” (Emphases in original.) 

¶ 61 3. The Effect of the State’s Charging a Defendant with Second Degree Murder 

¶ 62 As previously mentioned, the State in this case initially charged the defendant 

with second degree murder before later charging him with first degree murder. Given the unique 

status of second degree murder in Illinois law, we need to analyze the legal effect of the State’s 

doing so. 

¶ 63 As the supreme court made clear in Jeffries, 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 

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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. To achieve such a reduction in the seriousness of the crime the defendant committed, the defendant bears the burden of proving the existence of a mitigating factor by a preponderance of the evidence. 

¶ 64 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 factor’s 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. For example, in People v. Burks, 189 Ill. App. 3d 782, 785, 545 

N.E.2d 782, 784 (1989), the Third District Appellate Court held that the State could elect to 

bring a charge of second degree murder without first charging the defendant with first degree 

murder. The Third District in Burks added the following: “By charging a defendant with second 

degree murder, the State is alleging that it can prove the elements of first degree murder, but is 

conceding the presence of mitigating factors. Under these circumstances[,] the defendant bears 

no burden to prove any mitigating factors.” Id. 

¶ 65 Consistent with this holding, Illinois Pattern Jury Instructions, Criminal, No. 

7.01S (3d ed. 1992) (hereinafter, IPI Criminal 3d No. 7.01S), defines the offense of second de­

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gree murder when first degree murder is not charged as consisting of all of the elements of first 

degree murder. The Committee Comments to IPI Criminal 3d No. 7.01S cite Burks and Newbern 

and explain how the jury’s verdict, if the State proves all the elements constituting first degree 

murder, should be that the defendant is guilty of second degree murder. 

¶ 66 In 2009, the legislature revisited the second degree murder statute. Public Act 96­

710 amended subsection (c) of the second degree murder statute to read as follows: 

“When evidence of either of the mitigating factors defined in subsection (a) of 

this Section has been presented, the burden of proof is on the defendant to prove 

either mitigating factor by a preponderance of the evidence before the defendant 

can be found guilty of second degree murder. The burden of proof, however, remains on the State to prove beyond a reasonable doubt each of the elements of 

first degree murder and, when appropriately raised, the absence of circumstances 

at the time of the killing that would justify or exonerate the killing under the principles stated in Article 7 of this Code.” Pub. Act 96-710 (eff. Jan. 1, 2010) 

(amending720 ILCS 5/9-2(c)). 

Excised by the amendment was the language discussing the practicalities of instructing the jury 

on second degree murder. However, the amendment to section 9-2(c) in Public Act 96-710 did 

nothing to change the relationship between first degree murder and second degree murder. 

¶ 67 First degree murder and second degree murder require proof of the same elements, with the only difference being that second degree murder requires the additional proof of 

a mitigating factor. The mitigating factors available to create the offense of second degree murder should not be considered to mean that a less culpable mental state is in play. The two offenses are better thought of as different postures of the same offense. Second degree murder is not a 

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separate crime from first degree murder; instead, it is a mitigated crime. 

¶ 68 4. First Degree Murder Is Not a “New and Additional” Charge to Second Degree Murder 

¶ 69 The State, as in the present case, may choose to charge a defendant initially with 

second degree murder and later to charge him with first degree murder. Based upon the foregoing analysis of the relationship between first degree murder and second degree murder, we conclude that under those circumstances, 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. 

¶ 70 This conclusion is important because it means that the State’s decision to charge 

defendant in the present case with first degree murder—that is, the State’s decision to no longer 

concede the existence of a mitigating factor—did not implicate the compulsory joinder doctrine. 

¶ 71 For purposes of compulsory joinder and the speedy trial statute, second degree 

murder is a lesser-mitigated offense that may be described as a different posture of first degree 

murder. When the State in this case charged first degree murder after having earlier charged second degree murder, defendant’s ability to prepare was not hindered at all. We note again that 

the supreme court in Phipps held that the compulsory joinder doctrine did not apply where “the 

‘defendant could not have been surprised by the subsequent charges because they were essential­

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ly the same as the original ones.’ ” Phipps, 238 Ill. 2d at 70, 933 N.E.2d at 1195 (quoting 

Woodrum, 223 Ill. 2d at 301, 860 N.E.2d at 270). He was already prepared to defend against first 

degree murder, because the offense of second degree murder already alleged that he had committed first degree murder. As defense counsel explained: 

“[T]o prove second-degree murder, you basically have to prove first-degree murder first. So this really changes nothing at all as far as our preparation and being 

ready for trial. All of the evidence is exactly the same as it was when the seconddegree murder charge was the pending charge. And just as we answered a few 

weeks ago that we were ready for trial, we still are ready for trial.” 

Defense counsel was correct that a charge of second degree murder requires that the defendant 

prepare a defense against the elements of first degree murder. A subsequent charge of first degree murder, then, does nothing to hinder the ability of a defendant to prepare. This was not “trial 

by ambush.” 

¶ 72 We acknowledge that this conclusion may seem at first blush difficult to understand, but as we explained in Newbern, the concept of a lesser-mitigated offense as contained in 

the second degree murder statute is new to Illinois and is sui generis. Just as we cautioned 25 

years ago that second degree murder would not fit into the “ ‘comfortable old shoe’ ” (Newbern, 

219 Ill. App. 3d at 353, 579 N.E.2d at 596) of being a lesser included offense simply because no 

other recognized description seems to fit, we conclude that the “comfortable old shoe” of the 

compulsory joinder statute does not fit, either. 

¶ 73 We also acknowledge that our decision in this case is inconsistent with the decision of the Second District Appellate Court in People v. Izquierdo-Flores, 367 Ill. App. 3d 377, 

386, 854 N.E.2d 1156, 1163 (2006), which held that the original second degree murder charges 

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in that case and the later-filed first degree murder charges were based on the same act and were 

subject to compulsory joinder. The Second District reached this conclusion by deeming the laterfiled first degree murder charges as “new and additional charges” subject to compulsory joinder 

under section 3-3 of the Criminal Code of 1961 (720 ILCS 5/3-3 (West 2000)). In explaining this 

conclusion, the Second District wrote the following: “[A]lthough the second indictment did not 

add any new elements to the charged offense, it did place on defendant a burden that did not exist before. A defendant charged with second degree murder is not required to prove anything.” 

Izquierdo-Flores, 367 Ill. App. 3d at 383, 854 N.E.2d at 1161. 

¶ 74 However, section 3-3 of the Criminal Code—the compulsory joinder statute— 

says nothing about a mitigating factor that a defendant need prove to reduce first degree murder 

to second degree murder. Further, that a defendant charged with second degree murder is not required to prove anything is totally irrelevant to the question of whether the compulsory joinder 

statute applies. Justice Bowman, who dissented in Izquierdo-Flores, noted that because of the 

“unique relationship between first- and second-degree murder”, “when defendant was originally 

charged with second-degree murder, he was also, in effect, being charged with first-degree murder.” Id. at 388, 854 N.E.2d 1165 (Bowman, J., dissenting). Justice Bowman added the following: “Because the first-degree murder charges were essentially before the court from the beginning of the prosecution, and because the second indictment charging first-degree murder did not 

add new elements to the charged offense of second-degree murder, the first-degree murder 

charges did not constitute ‘new and additional charges.’ As a result, the compulsory joinder statute was not implicated ***.” (Emphasis added.) Id. at 390, 854 N.E.2d at 1166 (Bowman, J., dissenting). 

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¶ 75 We agree with Justice Bowman’s dissent. As we explained earlier, the “comfortable old shoe” of the compulsory joinder statute does not fit the sui generis circumstances of mitigating factors as used in the second degree murder statute. 

¶ 76 B. Limitation on Evidence of Causation 

¶ 77 Defendant next argues that the trial court erred by requiring defendant to first 

make a “preview” proffer of evidence of causation before cross-examining the State’s witnesses 

or presenting his own evidence on that issue. 

¶ 78 “Although any limitation on the right to cross-examine requires scrutiny, a defendant’s rights under the confrontation clause are not absolute.” People v. Averhart, 311 Ill. 

App. 3d 492, 497, 724 N.E.2d 154, 159 (1999). “The confrontation clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way 

and to whatever extent the defense desires.” (Emphasis in original.) Id. “A trial court should *** 

be unwilling to grant a motion in limine brought by the State if the result will be, for all practical 

purposes, an evisceration of the defendant’s theory of the case.” People v. Prevo, 302 Ill. App. 

3d 1038, 1050, 706 N.E.2d 505, 513 (1999). The appropriate question is whether the limitation 

on cross-examination created “a substantial danger of prejudice by depriving [the defendant] of 

the ability to test the truth of the witness’s direct testimony.” (Internal quotation marks omitted.) 

People v. Harris, 123 Ill. 2d 113, 145, 526 N.E.2d 335, 348 (1988). 

¶ 79 Here, to be clear, the trial court did not prohibit defendant from cross-examining 

the State’s witnesses on the issue of causation. Instead, the court merely required that, before defendant asked specific questions in cross-examination, defendant first make a proffer to show 

that there was a factual basis for the questioning. As the court said: “So, if the defense intends to 

actually question the State’s causation evidence, I think they’re entitled to do that, but then 

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they’re going to have to come up with, with actual evidence of that, not just their own speculation of what might have happened.” In short, the court sought to prevent a “fishing expedition” in 

front of the jury. If defendant had a legitimate factual basis to question the State’s witnesses or 

introduce other testimony about causation, he was free to do so. All that was required of him was 

to first explain—outside the presence of the jury—what testimony he expected to elicit. This limitation on the right to cross-examination did not create a substantial danger of prejudice. 

¶ 80 Of greater importance to our decision to reject defendant’s argument is that he 

failed to make an offer of proof regarding the evidence the trial court allegedly improperly kept 

out. See People v. Patterson, 2014 IL 115102, ¶ 123, 25 N.E.3d 526, where the supreme court 

rejected the defendant’s argument that the trial court erred in denying his evidentiary request was 

not subject to review because the defendant failed to make an offer of proof. As this court wrote 

in People v. Pelo, 404 Ill. App. 3d 839, 875, 942 N.E.2d 463, 493 (2010), a case in which the 

defendant was similarly arguing that the trial court erred by granting the State’s motion in limine 

to exclude certain testimony, “[f]ailure on the part of a defendant to make a proper offer of proof 

forfeits review of his challenge to the trial court’s granting of a motion in limine.” We explained 

in Pelo that because the defendant failed to make an adequate offer of proof, “we have no way of 

knowing whether the excluded testimony would have (1) been admissible or (2) assisted the jury 

in its determination of guilt. Thus, defendant’s failure to make an adequate offer of proof deprives this court of the record required to determine whether the court abused its discretion by 

granting the State’s motion in limine ***.” Id. at 877, 942 N.E.2d at 495. The same analysis applies in this case. 

¶ 81 C. Unresponsive Witnesses 

¶ 82 Defendant next argues that the trial court abused its discretion by sustaining the 

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State’s objections that Day’s testimony was unresponsive to defendant’s questioning during 

cross-examination. Specifically, the State objected to Day’s testimony that he stopped examining 

Box “[t]o keep from getting my head knocked off from him” and that, “Frankly, this guy scared 

me.” In response, the court sustained those objections and struck Day’s responses. Defendant 

argues that only the questioning party (here, defendant) has the “standing” to request that a nonresponsive answer be stricken. The State responds that defendant forfeited this issue by failing to 

raise it in the trial court. Defendant counters that we should consider his claim under the plainerror doctrine. 

¶ 83 The only case defendant cites for the proposition that only the questioning party 

has “standing” to object on grounds of nonresponsiveness is People v. Sweeney, 46 Ill. App. 3d 

858, 867, 361 N.E.2d 344, 351 (1977). Even if that proposition is generally correct, a trial court 

nonetheless has wide latitude to control and manage cross-examination. We see no reason why a 

trial court should be constrained from striking testimony it deems improper based upon which 

party made the request. We conclude that here, the trial court did not abuse its discretion. 

¶ 84 We also note that to the extent defendant claims that the jury needed to hear that 

Box was violent, that evidence was already before the jury. Day had testified that it was difficult 

for him to examine Box because he was “very” uncooperative, and when Day tried to look at the 

wound, Box “took a swipe at [him].” Day was permitted to demonstrate how Box had twice 

balled a fist as if to punch him and how Box had “scared” Day. Day testified that he feared for 

his own safety and thought he was going to be hurt by Box. Given all of the above, we conclude 

that the trial court merely was exercising its discretion by limiting cumulative evidence. 

¶ 85 D. Corroborating Witnesses 

¶ 86 Defendant next argues that the trial court abused its discretion by limiting the cor­

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roborating evidence that defendant could present to establish Box’s propensity for violence. Specifically, pretrial, defendant moved to introduce evidence of two witnesses who saw Box hit a 

man at the Freight House Tavern, an event which defendant also allegedly witnessed. The court 

ruled that although defendant was permitted to testify about what he saw Box do at the Freight 

House Tavern that night, defendant was prohibited from presenting corroborating witnesses on 

that issue. Defendant argues that the corroborating witnesses would have bolstered his testimony 

about Box’s propensity for violence, which, in turn, was relevant to show that Box, not defendant, was the initial aggressor in the conflict between defendant and Box. 

¶ 87 As we mentioned earlier, a trial court has wide latitude to manage its courtroom. 

That discretion includes the ability to limit the amount of corroborating testimony on a given issue. See, e.g., People v. Donegan, 2012 IL App (1st) 102325, ¶ 62, 974 N.E.2d 352 (acknowledging the trial court’s discretion to limit the number of prior inconsistent statements that may be 

introduced). 

¶ 88 We note that when the trial court conducted a hearing on defendant’s proffers of 

evidence concerning the January 2013 incident at the Freight House Tavern in Beardstown involving Box, the court was informed regarding what defendant would say about that incident, as 

well as what the testimony would be of other witnesses whom the State would present. The court 

permitted defendant to testify about the events at the Freight House Tavern, and defendant did so 

without the State’s presenting any contrary evidence, and without the State’s arguing that the defendant’s version of events at the Freight House Tavern was not believable. By barring other 

witnesses from testifying about the January 2013 incident at the Freight House Tavern, the court 

explained that it was intending to avoid a mini-trial on those events so as to avoid confusing the 

issues for the jury. We conclude that the trial court did not abuse its discretion in so doing. 

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¶ 89 E. Defendant’s Claim He Was Entitled to a Preliminary Hearing 

on the New Charge 

¶ 90 Next, defendant argues that he was prejudiced by the State’s second amended information—which charged a different theory of first degree murder than the first amended information—because no preliminary hearing was held on the new first degree murder charge and 

because the trial court denied his continuance for more time to prepare on the new charge. We 

reject both arguments. 

¶ 91 Defendant argues that he was prejudiced by the State’s second amendment information because no preliminary hearing was held on the new first degree murder charge contained 

therein. In support of his claim that he was entitled to a preliminary hearing, defendant cites 

People v. Kincaid, 87 Ill. 2d 107, 125, 429 N.E.2d 508, 515 (1981), but that case is inapposite. In 

Kincaid, the defendant was charged in a two-count information with indecent liberties with a 

child and contributing to the sexual delinquency of a child (Ill. Rev. Stat. 1977, ch. 38, ¶¶ 11-4, 

11-5). The first charge was a Class 1 felony, while the second was a Class A misdemeanor. The 

trial court permitted the State to amend the information charging indecent liberties with a child 

because the original charge omitted the essential element of the age of the victim. Kincaid, 87 Ill. 

2d at 120, 429 N.E.2d at 513. The supreme court held that the trial court did not err by permitting 

the amendment and affirmed the defendant’s conviction. Id. at 122-23, 429 N.E.2d at 514. In so 

doing, the supreme court noted that “[a] better procedure would be to allow the State’s Attorney 

to amend an information to include essential elements of the crime charged only when such 

amendment is made before trial, a prompt preliminary hearing is held to determine probable 

cause, and the defendant is allowed to plead anew and is afforded a reasonable time to further 

prepare his defense.” Id. at 125, 429 N.E.2d at 515. 

¶ 92 The holding in Kincaid does not apply to the present case because in Kincaid, the 

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only felony charge was defective, so when it was amended to overcome that deficiency, a new 

preliminary hearing was appropriate. In the present case, a previous, appropriately charged felony (second degree murder) had already been filed against the defendant and a preliminary hearing had been conducted in July 2013 before the trial court permitted the State to file the new first 

degree murder information. Thus, the rule declared by the Supreme Court of Illinois in People v. 

Redmond, 67 Ill. 2d 242, 246, 367 N.E.2d 703, 705 (1977), applies to the present case, where the 

supreme court wrote the following: 

“The defendant repeats here his contention that section 

111-2(e) [of the Code of Criminal Procedure of 1963 (Ill. Rev. 

Stat. 1975, ch. 38, ¶ 111-2(e))] violates an accused’s right to a 

prompt preliminary hearing to establish probable cause as declared 

in article I, section 7, of our constitution, because, he says, the constitutional provision requires a probable cause determination for 

each separate charge which might be brought in a criminal information. The defendant’s contention cannot be supported.” (Emphasis added.) 

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. 

¶ 93 For purposes of clarification, assume a case in which the State has charged the 

defendant in a three-count information with attempt (murder) (count I), aggravated discharge of a 

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firearm (count II), and aggravated battery (count III). The issue at the preliminary hearing in this 

case would be whether the State can present sufficient evidence so that the trial court has probable cause to believe (1) that a felony offense has been committed and (2) the defendant committed it. If at the close of the preliminary hearing, the court can determine that the State has met its 

burden of proof regarding aggravated battery (count III), which might typically be the easiest 

charge for which the State can meet its burden, then the trial court should state its finding regarding count III, proceed to arraign the defendant on all three charges contained in the information, 

and, when the defendant enters the expected not guilty plea, set the case for trial on all three 

charges. In this scenario, the court need not and should not make any findings regarding counts I 

and II of the information. 

¶ 94 This conclusion is consistent with the primary purpose of the Illinois Constitution’s requirement of a proper preliminary hearing, as the supreme court explained in Redmond. 

That purpose “is to insure that a defendant is not held without a prompt showing of probable 

cause.” Id. The supreme court also quoted from the remarks by one of the delegates to the 1970 

constitutional convention, as follows: 

“ ‘The theory of the requirement in our law that a person should 

not be required to stand trial or, for that matter, be held in extended custody without a preliminary hearing and a judicial determination of probable 

cause, is old and is rather simple. It is that when a person is charged with a 

crime by a member of the executive branch of government, be he a police 

officer or be he a prosecuting attorney, that for the protection of the individual there should be some independent determination by a judge that 

there is, in fact, some good reason for holding this individual in custody, 

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and that’s what lawyers mean when they use the technical shorthand of a 

judicial determination of probable cause. 

The judge, when he determines probable cause, in effect, asks, 

“What’s this all about? Was there a good reason for the policeman to take 

this person into custody and charge him with a crime, if the case came up 

initially that way, by an arrest without a warrant?” If the arrest was commenced pursuant to a warrant, then that hearing has already been held, at 

least to the extent that the judge had to be persuaded that there was a reason to issue the arrest warrant. This is one of the very, very basic protections in principle in our law for individuals against unwarranted arrest, 

unwarranted custody, and unwarranted prosecution.’ 3 Proceedings 1450­

51. 

Later Mr. Weisberg was questioned as to whether a second preliminary 

hearing would be required if an accused was bound over to the grand jury after a 

preliminary hearing on one charge and a true bill returned by the grand jury 

charged another offense. He expressed the opinion that the accused would be entitled to a second preliminary hearing if the new charge were ‘completely unrelated’ and ‘fundamentally different.’ (We need not consider the correctness of this 

view under the facts here.) The delegate went on to say: 

‘I don’t think it is the intention or the contemplation of the committee that a further preliminary hearing would be required if the offense 

was substantially the same one on which he received a preliminary hearing 

before being bound over to the grand jury.’ 3 Proceedings 1452.” Id. at 

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247-48, 367 N.E.2d at 705-06. 

¶ 95 The limited function served by the preliminary hearing is a judicial determination 

as to whether the defendant charged by the executive branch of government should be held to 

bail. In the scenario discussed earlier, once the court determines that there is probable cause to 

believe that defendant committed the offense of aggravated battery, he will be held to whatever 

bail the court deems appropriate on the three-count information, and nothing is gained by the 

court’s addressing the other two counts. After all, if a prosecution may be properly brought on an 

attempted murder charge arising from the same transaction as an aggravated battery charge for 

which probable cause was found without the need for a separate preliminary hearing on the attempted murder charge (which is the factual situation in Redmond), how can a defendant claim to 

be entitled to specific findings as to all charges just because the prosecutor elected to file them 

prior to the preliminary hearing? 

¶ 96 Further, a finding in this hypothetical case of no probable cause as to counts I and 

II would be mere surplusage due to the finding of probable as to the aggravated battery charge. 

There is no bar to a subsequent trial of the defendant on all of the charges in the information as 

originally brought. Thus, if after finding probable cause regarding the aggravated battery charge, 

the trial court made a further finding, for example, of no probable cause as to the attempt (first 

degree murder) charge, it would be mere surplusage and ultra vires. 

¶ 97 For the reasons stated, we conclude that defendant was not entitled to a new preliminary hearing on the newly filed first degree murder charge. 

¶ 98 We also note that “[w]hile our statute describes three ‘types’ of murder, first degree murder is a single offense. As we have explained on numerous occasions, ‘ “the different 

theories embodied in the first degree murder statute [citation] are merely different ways to com­

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mit the same crime.” ’ [Citation.]” People v. Smith, 233 Ill. 2d 1, 16, 906 N.E.2d 529, 537 

(2009). “Just as the method of committing murder is not integral to the offense and therefore 

need not be specified in the charging instrument [citation], so, too, *** the precise statutory theory of the offense of murder is not a matter that must be specifically alleged.” People v. Maxwell, 

148 Ill. 2d 116, 137, 592 N.E.2d 960, 970 (1992). This is yet another reason there was no need 

for a new preliminary hearing, and defendant had no right to demand a continuance. 

¶ 99 F. Closing Argument 

¶ 100 Defendant argues that the State engaged in improper rebuttal closing argument by 

“making fun of” defense counsel. 

¶ 101 Defendant points to the following specific comments made by defense counsel 

during rebuttal closing argument: 

“I’m sorry. I’m [sic] don’t have a lot of 16-cylinder words to give you like 

[defense counsel] is so eloquent is [sic] doing. I just don’t understand half of 

them. If I did, I wouldn’t use them on you. But, you know, that’s his style; he’s a 

very eloquent speaker, but don’t let him smokescreen what’s going on here. He 

used words like to you folks [sic] the criminal mens rea. I bet you don’t know 

what that is. Harkening back, percipient knowledge, indicia of shearing. I don’t 

know if I was in a biology class or a speech class here today. This is about a man 

that died because he got stabbed by that guy. That’s what happened. And he can 

sugarcoat it with all those fancy words and his pounding—I hope he didn’t hurt 

his fist—his yelling, screaming at you, his theatrics don’t mean a thing.” 

¶ 102 Defendant is correct that “personal attacks upon defense counsel” are “unprofessional and highly improper.” People v. Burnett, 27 Ill. 2d 510, 518, 190 N.E.2d 338, 342 (1963). 

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“[S]tatements may not be made in closing arguments solely to arouse and inflame the passions of 

the jury.” People v. Lucas, 132 Ill. 2d 399, 437, 548 N.E.2d 1003, 1019 (1989). Improper remarks during closing arguments do not constitute error unless they result in substantial prejudice 

to the accused. Id. In this case, defendant’s argument strikes us as fanciful and overly sensitive. 

We interpret the State’s comments as an explanation to the jury about terms such as mens rea 

that the jurors may not have understood. The State was attempting to ensure that the jury did not 

deliberate and reach a decision based on confusion. The State’s argument was an attempt to 

frame the jury’s task as simply as possible: “This is about a man that died because he got stabbed 

by that guy.” Defendant’s contention that these comments by the State rose to the level of substantial prejudice is unpersuasive. In rejecting defendant’s argument, we reiterate what this court 

wrote nine years ago in People v. Montgomery, 373 Ill. App. 3d 1104, 1118, 872 N.E.2d 403, 

415 (2007): 

“To slightly revise a common saying regarding campaigning for elective 

office, trying felony cases before a jury ‘ain’t beanbag.’ These are serious matters 

with high stakes, and we expect advocates in our adversary system of justice to 

use all of their forensic skills to persuade the jury of the wisdom or justice of their 

respective positions. Certainly, defense counsel in this case vigorously attacked 

the State’s case and the State’s witnesses, and we should expect no less vigor 

from the prosecutor. Of course, counsel are not free in their closing arguments to 

say anything they might wish. Limitations exist, but there is no restriction on argument because a party takes offense to the harshness of the opponent’s closing 

argument.” 

¶ 103 G. Five-Dollar-Per-Day Credit 

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¶ 104 Last, defendant argues that his presentence custody credit must be applied to the 

following two “fines”: (1) $10 “Probation Op 705 ILCS 105/27.3a(1.1)” assessment and (2) “Juvenile Records 730 ILCS 5/5-9-1.17.” 

¶ 105 The State concedes that the juvenile records assessment is a fine to which the 

presentence custody credit is applicable. We accept the State’s concession. 

¶ 106 A probation operations assistance assessment (705 ILCS 105/27.3a(1.1) (West 

2012)) operates as a fee when it “reimburses the State for costs incurred as the result of prosecuting the defendant.” People v. Rogers, 2014 IL App (4th) 121088, ¶ 37, 13 N.E.3d 1280. However, when the probation office is not involved in a defendant’s prosecution, the probation assessment acts as a fine. In this case, the probation office was involved in creating a presentence investigation in defendant’s case. Therefore, the assessment is a fee to which defendant’s sentencing credit does not apply. 

¶ 107 We therefore order the circuit clerk to apply defendant’s sentencing credit to his 

$10 juvenile records assessment. 

¶ 108 III. CONCLUSION 

¶ 109 For the foregoing reasons, we affirm the trial court’s judgment and order the circuit clerk to apply defendant’s presentence custody credit to his $10 juvenile records assessment. 

¶ 110 As part of our judgment, we award the State its $75 statutory assessment against 

defendant as costs of this appeal. 55 ILCS 5/4-2002 (West 2014). 

¶ 111 Affirmed as modified and remanded with directions. 

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