Illinois Official Reports 

Appellate Court

People v. Baker, 2015 IL App (5th) 110492

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,

v. CLIFFORD W. BAKER, Defendant-Appellant.

District & No. Fifth District

Docket No. 5-11-0492

Filed

Modified upon

denial of rehearing

February 6, 2015

March 17, 2015

Held

(Note: This syllabus 

constitutes no part of the 

opinion of the court but 

has been prepared by the 

Reporter of Decisions 

for the convenience of 

the reader.)

On appeal from a 15-year-old defendant’s convictions for three counts 

of home invasion, two counts of first degree murder and his sentences 

to two mandatory terms of natural life in prison for the murders and 30 

years for each of the home invasions and one 30-year term consecutive 

to the sentences on all other counts after he was tried as an adult 

pursuant to the automatic transfer provision in the Juvenile Court Act, 

the appellate court, inter alia, vacated the mandatory natural life 

sentences and remanded the cause to the trial court for a new 

sentencing hearing to determine which of the home invasion charges

was the less serious offense and to vacate the less serious conviction 

and sentence and correct the sentencing order.

Decision Under 

Review

Appeal from the Circuit Court of Fayette County, No. 10-CF-130; the 

Hon. Michael D. McHaney, Judge, presiding.

Judgment Affirmed in part, vacated in part, and remanded with instructions.
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Counsel on

Appeal

Michael J. Pelletier, Ellen J. Curry, Michelle Zalisko, and Amanda R. 

Horner, all of State Appellate Defender’s Office, of Mt. Vernon, for 

appellant.

Joshua Morrison, State’s Attorney, of Vandalia (Patrick Delfino, 

Stephen E. Norris, and Jennifer Camden, all of State’s Attorneys 

Appellate Prosecutor’s Office, of counsel), for the People.

Panel PRESIDING JUSTICE CATES delivered the judgment of the court, 

with opinion.

Justices Stewart and Moore*concurred in the judgment and opinion.

 OPINION 

¶ 1 I. INTRODUCTION 

¶ 2 Following a jury trial, the defendant, Clifford W. Baker, was convicted of two counts of 

first degree murder and three counts of home invasion. He was sentenced to two mandatory 

terms of natural life in prison for the murders, and a term of 30 years for each of the home 

invasions, with one 30-year term to run consecutive to the sentences on all other counts. 

Although the defendant was 15 years old at the time he committed the murders, he was tried 

as an adult in accordance with the automatic transfer provision in the Illinois Juvenile Court 

Act of 1987 (Juvenile Court Act) (705 ILCS 405/5-130(1)(a) (West 2010)). On appeal, the 

defendant challenged the constitutionality of the automatic transfer provision, the 

constitutionality of the sentencing scheme as applied to juvenile defendants, the propriety of 

certain procedural and evidentiary rulings by the trial court, and the effectiveness of his trial 

counsel. Our original opinion was issued on February 6, 2015. The defendant filed a petition 

for rehearing on February 27, 2015. We now issue this modified opinion upon denial of the 

defendant’s petition for rehearing. For the reasons stated, the defendant’s mandatory natural 

life sentences for murder must be vacated and the cause must be remanded for a new 

sentencing hearing. We affirm in part, vacate in part, and remand with instructions.

¶ 3 II. FACTUAL BACKGROUND 

¶ 4 On August 5, 2010, the 15-year-old defendant was charged by information with two 

counts of first degree murder, under section 9-1(a)(1) of the Criminal Code of 1961 (Code) 

(720 ILCS 5/9-1(a)(1) (West 2010)). The charges arose from the shooting deaths of John 

Michael “Mike” Mahon and Debra H. Tish at their home in Farina, Illinois, on August 4, 

2010. Count I alleged that the defendant shot Mike Mahon with a rifle, without lawful 

 

 *Justice Spomer was originally assigned to participate in this case. Justice Moore was substituted 

on the panel subsequent to Justice Spomer’s retirement and has read the briefs and listened to the tape 

of oral argument. 
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justification and with intent to kill him. Count II alleged that the defendant shot Debra Tish 

with a rifle, without lawful justification and with intent to kill her. The charges were filed in 

the circuit court pursuant to the automatic transfer provision in the Juvenile Court Act (705 

ILCS 405/5-130(1)(a) (West 2010)). 

¶ 5 On August 9, 2010, the State filed two additional counts of first degree murder arising 

from the deaths of Mike Mahon (count III) and Debra Tish (count IV), but those counts were 

voluntarily dismissed before the case was given to the jury. The State also filed two counts of 

home invasion under section 12-11(a)(5) of the Code (720 ILCS 5/12-11(a)(5) (West 2010)). 

Count V alleged that the defendant knowingly and without authority entered the Mahon-Tish 

home and intentionally caused injury to Mike Mahon. Count VI was identical to count V, but 

alleged injury to Debra Tish. In December 2010, the State added another count of home 

invasion (count VII) under section 12-11(a)(2) of the Code (720 ILCS 5/12-11(a)(2) (West 

2010)). Count VII alleged that on August 4, 2010, the defendant knowingly and without 

authority entered the home of Steve Krajefska and Randy Krajefska and intentionally caused 

injury to Randy Krajefska. 

¶ 6 A. The Commission of the Offenses 

¶ 7 The basic facts regarding the offenses and the identity of the person who committed them 

were not disputed at trial. The primary issues in dispute were the defendant’s mental capacity 

at the time he committed the offenses and the voluntariness of his confession. An overview 

of the evidence follows. 

¶ 8 On August 4, 2010, at approximately 3:30 a.m., Steve Krajefska and his wife, Randy 

Krajefska, were awakened when someone walked through their bedroom and went into a 

bedroom closet. Randy switched on her bedside light and walked to the closet. When she was 

near the closet door, the intruder jumped up, punched her in the jaw, and cut her above her 

eyebrow with a knife. Randy, dazed by the attack, ran into the bathroom. As Steve stood on 

the opposite side of the bed, he recognized the intruder as the defendant, a teenager who lived 

in the neighborhood. The defendant, barefoot and clad only in shorts, was hunched over, as if 

in “attack mode.” He was holding a butcher knife. Steve ordered the defendant to drop the 

knife. The defendant lunged toward Steve and swiped at him with the knife, but missed the 

target. The defendant then exited the bedroom and ran from the house. 

¶ 9 Steve called 911 immediately after the defendant left. While Steve was on the phone with 

the 911 operator, Randy noticed that the lights were on in the house of their next-door 

neighbors, Mike Mahon and Debra Tish, so she phoned them. No one answered. As Randy 

and Steve waited for the police, they saw the defendant walking down the road behind the 

home of Mike Mahon and Debra Tish and toward his own home. He was screaming. Steve 

described the scream as high-pitched, “like a woman” would make. Randy thought it 

sounded like a “war whoop.”

¶ 10 Two Fayette County sheriff’s deputies, Steven Coody and Josh Wattles, were dispatched 

to investigate the reported home invasion at the residence of Steve and Randy Krajefska, in 

Loogootee, Illinois. Deputy Coody and Deputy Wattles were just outside Loogootee, when 

they were notified that the defendant had left the Krajefska residence and was last seen 

walking toward his home. They drove directly to the defendant’s home. When Deputy Coody 

pulled into the driveway, he observed the defendant and the defendant’s father standing 

inside the garage, yelling at each other. The defendant had a manual staple gun, and he was 
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attempting to shoot staples into his neck and chest. As Deputy Coody approached the garage, 

the defendant pointed the staple gun at him. The defendant was grunting or growling and 

acting out of control. The defendant’s father grappled with the defendant and snatched the 

staple gun from him. Deputy Coody then ordered the defendant to come out and place his 

hands on the patrol car. The defendant did not comply. He continued to yell as he walked 

away. Deputy Coody ordered the defendant to turn around and place his hands on the patrol 

car. The defendant continued to walk the other way. Deputy Coody pulled out his Taser and 

fired, hitting the defendant in the back with a five-second burst. The defendant fell to the 

ground. He was handcuffed without a struggle. The deputies helped him to his feet and then 

conducted a pat-down search. They recovered a cigarette lighter, rolling papers, a bottle of 

“nitro” pills, and a cell phone. Deputy Coody called for an ambulance. He thought the 

defendant should be medically evaluated after being tasered. 

¶ 11 Moments after the defendant was apprehended, Steve Krajefska came up to Deputy 

Coody and stated that he was concerned about his neighbors, Mike Mahon and Debra Tish. 

Deputy Coody walked around the Mahon-Tish residence. He noted that the back door was 

open and that the lights were on inside. He knocked on the door and announced his presence. 

When he received no response, he entered the house. He walked into the kitchen and saw two 

rifles lying on the kitchen table. He then entered the living room. He observed two people, 

partially covered with a sheet, lying on the mattress. As he stepped closer, he observed that 

both had severe head wounds. It appeared that they had been shot multiple times and that 

they were dead. Deputy Coody searched the rest of the house but found no one else inside. 

He advised Deputy Wattles of the situation and then asked the dispatcher to notify the sheriff, 

the coroner, and the investigations unit. Deputy Coody and Deputy Wattles secured the scene 

and awaited the arrival of the Illinois State Police investigators. The deceased victims were 

later identified as Mike Mahon and Debra Tish. 

¶ 12 In the meantime, an ambulance arrived. Deputy Coody escorted the defendant to the 

ambulance. Once the defendant was situated inside, he was given Miranda warnings by 

Deputy Coody. Medics evaluated the defendant and then transported him to Fayette County 

Hospital. Trooper Stacey Heselton, a certified juvenile officer with the Illinois State Police, 

accompanied the defendant to the hospital. Trooper Heselton recalled that during the ride to 

the hospital, the defendant seemed to be confused, agitated, and talkative, but he was able to 

respond appropriately to the questions from the medics. The defendant told the medics that 

he had taken six Cymbalta tablets and some other pills, and that he had consumed beer and 

some other drink earlier that night. Trooper Heselton remained with the defendant at the 

hospital. He testified that he told the defendant that he was a juvenile officer. He recalled that 

he had to remind the defendant about his Miranda rights at one point when the defendant 

started to blurt out incriminating statements to the medical personnel who were caring for 

him. Aside from that, he did not initiate any conversations with the defendant, and he did not 

question the defendant. 

¶ 13 B. The Defendant’s Recorded Statement 

¶ 14 Special Agent Albert Gallatin, a State Police officer, arrived at the crime scene at 

approximately 5:45 a.m. While at the scene, he spoke briefly with the defendant’s father, Jeff 

Goldman. Lieutenant Tom Oliverio, Agent Holly Stroud, and Jeff Goldman’s girlfriend, 

Justina Fryman, were present during the conversation. Agent Gallatin told Mr. Goldman that 
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the defendant had been taken to Fayette County Hospital. Agent Gallatin testified that he 

asked Mr. Goldman for permission to speak with the defendant to find out what had 

happened and that Mr. Goldman consented. Agent Gallatin stated that Mr. Goldman gave no 

indication that he wanted to be present during the interview. Agent Stroud corroborated 

Agent Gallatin’s testimony.

¶ 15 Agent Gallatin and Agent Stroud left the scene and went to the hospital. Agent Stroud 

attended in her capacity as a juvenile officer. Trooper Heselton met Agent Gallatin and 

Agent Stroud in the hallway outside the defendant’s room. He advised them that he was a 

juvenile officer, that he had accompanied the defendant on the ride to the hospital, and that 

he had been with him since they arrived. He also advised them that the hospital personnel 

had removed the defendant’s shorts and found a small bag of cannabis in one of the pockets. 

¶ 16 Agent Gallatin testified that when he entered the defendant’s room, he observed that the 

defendant was handcuffed to the bedrails and was sleeping. Agent Gallatin set up a video 

camera. He then woke the defendant and asked if it would be okay to videotape him. The 

defendant agreed. Agent Gallatin started the recorder. He then informed the defendant that he 

had spoken with the defendant’s father and that he had received permission to interview the 

defendant. Agent Gallatin then asked the defendant if he would agree to a recorded interview, 

and the defendant agreed. The interview began at approximately 7:18 a.m. and ran 

approximately 48 minutes. Agent Stroud and Trooper Heselton were present during the 

interview. They did not ask any questions and they did not take part in the investigation. By

all accounts, there was no preinterview questioning or discussion. 

¶ 17 The video shows that Agent Gallatin gave Miranda warnings to the defendant before 

asking any questions. Agent Gallatin read each warning and, after each, asked the defendant 

if he understood it. The defendant indicated that he understood each warning. He also signed 

a written form. The defendant appeared to be drowsy at the start of the interview, but he 

seemed to understand the process and his answers were responsive to the questions posed. 

¶ 18 The defendant told Agent Gallatin that he and his dad got into an argument on the 

evening of August 3, 2010, and that he took some of his dad’s beer from the refrigerator and 

went to the garage to drink it. As he was drinking the beer, he exchanged text messages with 

Kelly Lange, a girl he met on a social media site. He then walked over to Mike Mahon’s 

garage and took a container of vodka from the refrigerator. He started to drink the vodka, but 

it was spicy and made him sick, so he threw it into the garden. The defendant then took some 

marijuana and some pills out of a drawer near the refrigerator. He went back to his garage 

and smoked the marijuana. The defendant returned to Mike Mahon’s home. This time, he 

went inside. He entered through the back door. The defendant stated that he found a rifle in 

the kitchen. He tried to shoot himself in the head with the gun, but it would not fire. He then 

lit a cigarette and threw it into the trash can. The defendant stated that the cigarette started a 

fire in the trash can and that the fire caused the smoke alarm to go off. The defendant said 

that Deb and Mike were asleep in another room and that Deb woke up when the smoke alarm 

sounded. The defendant feared that he would get in trouble for breaking into someone’s 

house, so he shot Deb first, and then he shot Mike. He put the gun on the kitchen table and 

left the house. The defendant said that he was then confronted by Randy Krajefska. He had a 

knife that he had taken from Mike’s house. He was unsure if he stabbed Randy with the 

knife. He tossed the knife into a field near his house. 
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¶ 19 C. The Investigation 

¶ 20 Investigators recovered records of the defendant’s phone calls and text messages from the 

night of the murders, and they interviewed Kelly Lange. Ms. Lange testified that she met the 

defendant on a social networking site for the first time during the week prior to the shootings. 

She had never met the defendant in person. The text messages that the two exchanged were 

presented at trial. In one of his texts, the defendant wrote that he felt weird and that he felt he 

was going to do something bad. 

¶ 21 Crime scene technicians searched the Mahon-Tish residence. They found a military-style 

rifle and a .22-caliber rifle in the kitchen. They discovered that the smoke alarm in the 

kitchen had been damaged, but they found no evidence of a fire in the kitchen trash can or 

anywhere else. The knife that was used in the attack on Randy Krajefska was located in a 

field near the defendant’s home. Some blood found on the defendant’s shorts was tested and 

matched the DNA of Mike Mahon. Blood and urine samples were collected from the 

defendant at the hospital. The urinalysis revealed that the defendant had an alcohol level of 

0.118 and that he had marijuana in his system. 

¶ 22 At the time of these events, Justina Fryman and her son lived with the defendant’s father 

and the defendant. Justina testified that she had taken her son and the defendant to the pool 

on the afternoon of August 3, 2010. After leaving the pool, she made dinner for the boys. Jeff 

Goldman got home from work about 6 p.m. He had a few beers and then went to mow a 

neighbor’s lawn. Justina recalled that at approximately 9 p.m., she, Jeff, and the two boys 

gathered together to watch a movie. The movie was two hours long. When the movie ended, 

the boys went to their bedrooms, and she and Jeff went to sleep in their bedroom. At 

approximately 2:45 a.m., the defendant entered the bedroom where she and Jeff were 

sleeping. He complained that he did not feel right and that he was hot. Jeff told the defendant 

to lie down in the cool air in the bedroom. She and Jeff fell asleep. The defendant woke them 

again at about 3:45 a.m. He was talking “gibberish” and waving his arms. Justina did not 

know whether the defendant was dreaming or had overdosed. The defendant said, “I killed 

them. The whole world’s dead.” He then fell down on the floor. He was banging his head and 

flopping. It looked like he was having a convulsion. Justina went into the kitchen to see if the 

defendant had gotten into his prescription medication. She counted the pills and noted that 

six were missing. 

¶ 23 When Justina returned to the bedroom, the defendant was smoking a cigarette and 

cussing. Justina noted that the defendant did not smoke or curse in front of them and that this 

was unusual behavior. Jeff took the cigarette away from the defendant and asked, “What’s 

wrong with you, boy?” The defendant grabbed Jeff’s hand and said, “Come on, I’ll show 

you.” The defendant led Jeff outside. The defendant began walking toward Mike Mahon’s 

house. Jeff was standing near his garage and told the defendant to come back to the house. 

The defendant emitted a very high-pitched scream as he walked back toward the house. Just 

then, two sheriff’s deputies pulled up. The defendant ran into the garage and grabbed a staple 

gun. He placed it near his neck and started to shoot himself with staples. Jeff grabbed the 

staple gun from the defendant. Justina noted that the defendant failed to comply with the 

deputy’s orders and so he was tasered. Jeff Goldman’s account of these events was similar to 

Justina’s account, and so it will not be restated here. 
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¶ 24 D. The Defendant’s Mental Capacity 

¶ 25 The defense team announced that it intended to present an insanity defense and an 

involuntary intoxication defense at trial. These affirmative defenses were based on the 

defense theory that the defendant suffered a psychotic event and became violent as a result of 

taking a prescription antidepressant called Cymbalta. 

¶ 26 During the State’s case, the defendant elicted testimony establishing that he had been 

hospitalized and diagnosed with major depression after he shot himself in the abdomen with 

a rifle on July 22, 2010, that Cymbalta had been prescribed for the depression, and that he 

had been taking the medication daily from July 23, 2010, through August 3, 2010. The State, 

over the defendant’s objection, was then permitted to introduce evidence of events that 

surrounded the incident on July 22, 2010. The evidence showed that the defendant began 

drinking beer after a disagreement with his father over household chores. After drinking a 

few beers, the defendant broke into his uncle’s house and took a .22-caliber rifle. He returned 

home and continued drinking. The family dog started to annoy him, so he shot it with the 

rifle. The defendant feared that he would get in trouble for killing the dog, so he dragged the 

dog’s body onto nearby railroad tracks. He returned to his house, shot himself in the stomach 

with the rifle, and called 911. He reported that someone kicked in his door and shot him. 

Police responded and the defendant was taken to the hospital for treatment. When he was 

questioned at the hospital, he admitted that there was no intruder and that he shot himself. 

The defendant was transferred to a short-term psychiatric facility on July 23, 2010. He was 

diagnosed with major depression and prescribed an antidepressant called Cymbalta. The 

defendant was discharged on July 30, 2010, with instructions to continue taking the 

medication daily. 

¶ 27 During the trial, the defense presented two expert witnesses in support of its affirmative 

defenses. Dr. Jonathon Lipman, a neuropharmacologist, testified about the reported adverse 

effects of Cymbalta on adolescents in general. Marcia Slomowitz, M.D., a child and 

adolescent psychiatrist, testified about her evaluation of the defendant and her opinions 

regarding his mental status at the time of the murders. 

¶ 28 Dr. Slomowitz testified that she evaluated the defendant in March of 2011. She noted that 

the defendant had experienced depression and suicidal thoughts from a very young age and 

that he had been sexually abused by a man one time when he was a child. She noted that the 

defendant’s mother left the family when the defendant was three years old and that he was 

raised by his grandmother and his father. She further noted that the defendant’s grandmother 

died when he was 10 years old and that his depression deepened and his suicidal thoughts 

increased following her death. Dr. Slomowitz testified that the defendant began taking 

Cymbalta about two weeks prior to the murders. He reported that he did not like taking the 

medication because it made him feel too hyper and disrupted his sleep. Dr. Slomowitz noted 

that the defendant experienced agitation, vivid homicidal night terrors, akathisia, and 

hypomania while taking the medication. She explained that akathisia is characterized by an 

internal restlessness and distress which can increase suicidality and violent behavior, and that 

hypomania is characterized by talking too fast, irritability, and hostility. 

¶ 29 Dr. Slomowitz testified that Cymbalta carries a “black box” warning of potential adverse 

effects. She explained that the warnings are issued by the Food and Drug Administration 

(FDA), and that “black box” warnings are the highest level warnings issued before a drug is 

taken off the market. Dr. Slomowitz testified that the “black box” warnings state, in part, that 
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there is an increased risk of suicide or violent behavior in persons under age 24 who take 

Cymbalta. Dr. Slomowitz opined that at the time of the murders, the defendant was suffering 

from the adverse effects of Cymbalta, that he lacked the capacity to understand right from 

wrong as a result of the adverse effects of the Cymbalta, and that the defendant did not 

understand or have the capacity to appreciate the criminality of his conduct in August 2010. 

¶ 30 During cross-examination, Dr. Slomowitz acknowledged that the “black box” warnings 

do not mention an increased risk of violence associated with adolescents taking Cymbalta. 

She stated that the increased risk of violence in younger people who take Cymbalta is 

reported in other studies in the literature. Dr. Slomowitz was unable to recall the names of the 

studies at trial. She acknowledged that she had not included those references in her written 

report. Dr. Slomowitz opined that the defendant was out of touch with reality at the time of 

the crimes, and she based her opinion, in part, on the observations of the defendant’s 

behavior that night, including Steve Krajefska’s description of the defendant, crouched in 

attack mode, and the observations of the witnesses who saw the defendant’s attempts to shoot 

himself and the deputies with a staple gun. Dr. Slomowitz stated that the defendant’s 

psychotic episode began sometime after the defendant took the first dose of Cymbalta and 

ended when he stopped taking it, but she could not provide a more specific time frame. 

¶ 31 Dr. Slomowitz acknowledged that she issued a preliminary report in which she opined 

that the defendant understood the criminality of his conduct when he killed the second 

victim. She testified that she did not have all of the police reports and witnesses’ statements 

when she wrote the preliminary report and that she modified her opinions after reviewing that 

information. Dr. Slomowitz testified that she did not believe the defendant was psychotic on 

July 22, 2010, when he killed his dog and shot himself. She based this opinion on the 

defendant’s ability to provide a clear recitation of that event and on the lack of any 

documentation of psychosis in his medical records following that event. Dr. Slomowitz then 

testified that the defendant’s psychosis was caused by the drug along with all the other 

intoxicants he ingested on the night of the murders. 

¶ 32 The State called Dr. Ashok Yanamadala as a rebuttal witness. Dr. Yanamadala is a 

psychiatrist, and he was a member of the team that treated the defendant at the Gateway 

psychiatric facility from July 23 through July 30, 2010. Dr. Yanamadala testified that the 

defendant was diagnosed as suffering from a major depressive disorder. He testified that a 

major depressive disorder does not ordinarily lead to psychosis, but acknowledged that it 

could if left untreated. Dr. Yanamadala prescribed Cymbalta for the defendant. He testified 

that there are “black box” warnings for Cymbalta and that the warnings indicate that there is 

an increased risk of suicide by adolescents who take the medication. He stated that there is no 

“black box” warning about an increased risk of homicides by adolescents who take that 

medication. Dr. Yanamadala testified that it was customary to prescribe Cymbalta for 

adolescents diagnosed with major depression even though the FDA had not specially 

approved it for use by that population. Dr. Yanamadala noted that the defendant did not 

complain about side effects of the medication while he was hospitalized. He also noted that 

the defendant’s condition improved significantly during his stay in the hospital. Dr. 

Yanamadala opined that when the defendant was discharged on July 30, 2010, he appeared to 

understand the difference between right and wrong, and he was not insane. Dr. Yanamadala 

had no further contact with the defendant after he was discharged. 
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¶ 33 The State also called Dr. Fred Klug, a clinical psychologist, as a rebuttal witness. Dr. 

Klug testified that 99% of his business is devoted to psychological evaluations. He admitted 

that he does not provide therapy. Dr. Klug stated that he evaluated the defendant in October 

2010 and again in August 2011. He also reviewed the defendant’s school records and the 

medical records from his psychiatric admission at Gateway. Dr. Klug diagnosed the 

defendant with a conduct disorder. He explained that a conduct disorder is characterized by 

persistent behavior that violates the basic rights of others. Dr. Klug also felt that the 

defendant was malingering and that the defendant had engaged in a number of evasive, 

deceptive, and manipulative tactics to avoid accepting responsibility for his actions. Dr. Klug 

did not believe that the defendant was psychotic at the time of the murders. He opined that 

the defendant was sane at the time of the charged crimes and that he understood the 

criminality of his conduct. 

¶ 34 III. ANALYSIS 

¶ 35 On appeal, the defendant challenges the constitutionality of the automatic transfer 

provisions in the Juvenile Court Act, the constitutionality of the sentencing scheme as 

applied to juvenile defendants, the propriety of certain procedural and evidentiary rulings by 

the trial court, and the ineffectiveness of his trial counsel. The State has conceded two points 

raised by the defendant. We will address those first. 

¶ 36 A. The Constitutional Challenges 

¶ 37 The defendant contends that he is entitled to a new sentencing hearing because the 

imposition of two natural life sentences for offenses he committed when he was 15 years old 

violates the eighth amendment’s prohibition on cruel and unusual punishment under the 

United States Supreme Court’s decision in Miller v. Alabama, 567 U.S. ___, ___, 132 S. Ct. 

2455, 2460 (2012). The State agrees that the case must be remanded for resentencing but 

notes that under Miller v. Alabama, the defendant can be sentenced to natural life, provided 

that the imposition of a life sentence is not mandatory, but discretionary with the trial court. 

¶ 38 In Miller v. Alabama, the United States Supreme Court held that the mandatory 

imposition of a life sentence without parole on a person under the age of 18 at the time of 

their crimes violates the eighth amendment’s prohibition on cruel and unusual punishment. 

Miller, 567 U.S. at ___, 132 S. Ct. at 2469. Under Miller, a juvenile defendant can be 

sentenced to natural life in prison without parole, so long as the natural life sentence is at the 

trial court’s discretion and not mandatory. Miller, 567 U.S. at ___, 132 S. Ct. at 2469. Miller 

requires a trial court to consider “how children are different, and how those differences 

counsel against irrevocably sentencing them to a lifetime in prison.” Miller, 567 U.S. at ___, 

132 S. Ct. at 2469. In People v. Davis, 2014 IL 115595, the Illinois Supreme Court 

recognized the new substantive rule established in Miller and concluded that it applies 

retroactively. Our supreme court noted that Miller does not foreclose the penalty of life 

without parole for a juvenile defendant convicted of murder, provided that the sentencing 

court has the discretion to impose a different penalty and takes into consideration the 

offender’s youth and attendant characteristics before imposing a sentence. Davis, 2014 IL 

115595, ¶ 43.
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¶ 39 In this case, the court sentenced the defendant to two mandatory terms of natural life, 

pursuant to section 5-8-1(a)(1)(c)(ii) of the Unified Code of Corrections (730 ILCS 

5/5-8-1(a)(1)(c)(ii) (West 2010)), and there is no indication that the court considered the 

defendant’s youth and attendant characteristics before imposing the sentence. The imposition 

of mandatory life sentences on a juvenile defendant violates the eighth amendment’s 

prohibition against cruel and unusual punishment. Miller, 567 U.S. at ___, 132 S. Ct. at 2469; 

Davis, 2014 IL 115595, ¶ 43. Accordingly, the defendant’s mandatory natural life sentences 

are vacated and the cause is remanded for a new sentencing hearing in accordance with the 

guidelines set forth in Miller.

¶ 40 The defendant also contends, and the State concedes, that his two convictions for the 

Mahon-Tish home invasion violate the one-act, one-crime rule and that one of the 

convictions must be vacated. The one-act, one-crime rule prohibits multiple convictions 

when the convictions are carved from the same physical act. People v. King, 66 Ill. 2d 551, 

566, 363 N.E.2d 838, 844-45 (1977). The Illinois Supreme Court has considered the home 

invasion statute in light of the one-act, one-crime rule and concluded that the statute will 

support only one conviction for a single entry into a dwelling, regardless of the number of 

persons present in the dwelling or the number of persons harmed by the defendant. People v. 

Cole, 172 Ill. 2d 85, 102, 665 N.E.2d 1275, 1283 (1996). 

¶ 41 In this case, the defendant was convicted of two counts of home invasion based on a 

single entry into the Mahon-Tish residence. Therefore, one of the convictions must be 

vacated. Under the one-act, one-crime rule, the conviction on the more serious offense should 

be retained and the conviction on the less serious offense should be vacated. See People v. 

Garcia, 179 Ill. 2d 55, 71-72, 688 N.E.2d 57, 64-65 (1997). However, in a case such as this, 

where a reviewing court cannot determine which of the offenses is more serious based on a 

review of the cold record, it will remand the case to the trial court for that determination.

Garcia, 179 Ill. 2d at 71-72, 688 N.E.2d at 64-65. Accordingly, on remand, the trial court is 

instructed to determine which of the home invasion convictions arising from the single entry 

into the Mahon-Tish home should be vacated and to enter an order vacating that conviction 

and the corresponding sentence. 

¶ 42 The defendant next contends that the automatic transfer provision of the Juvenile Court 

Act (705 ILCS 405/5-130(1)(a) (West 2010)) violates the due process clauses of the federal 

and state constitutions (U.S. Const., amend. XIV, § 1; Ill. Const. 1970, art. I, § 2), the eighth 

amendment (U.S. Const., amend. VIII), and the proportionate penalties clause of the Illinois 

Constitution (Ill. Const. 1970, art. I, § 11), by automatically prosecuting and sentencing all 

juveniles charged with certain offenses as adults, with no consideration of their youthfulness. 

¶ 43 The constitutionality of a statute is an issue of law that is subject to de novo review.

People v. Patterson, 2014 IL 115102, ¶ 90. A statute carries a strong presumption of 

constitutionality, and the burden is on the party challenging the constitutionality of a given 

statute to “clearly establish” that the statute violates constitutional protections. People v. 

Sharpe, 216 Ill. 2d 481, 487, 839 N.E.2d 492, 497 (2005). 

¶ 44 The defendant acknowledges that the Illinois Supreme Court has previously rejected 

claims that the automatic transfer provision violates due process, the eighth amendment, and 

the proportionate penalties clause in the Illinois Constitution, but argues that the 

constitutional validity of the provision must be revisited in light of the United States Supreme 
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Court’s decisions in Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012), Graham v. 

Florida, 560 U.S. 48 (2010), and Roper v. Simmons, 543 U.S. 551 (2005). 

¶ 45 During the pendency of this appeal, our Illinois Supreme Court issued a decision, People 

v. Patterson, 2014 IL 115102, in which it reviewed the automatic transfer provision in light 

of the United States Supreme Court’s analyses in Miller, Graham, and Roper. In Patterson, 

our supreme court rejected procedural and substantive due process challenges to the 

automatic transfer provision, reaffirming its decisions in People v. M.A., 124 Ill. 2d 135, 529 

N.E.2d 492 (1988), and People v. J.S., 103 Ill. 2d 395, 469 N.E.2d 1090 (1984). See 

Patterson, 2014 IL 115102, ¶¶ 92-95. In M.A. and J.S., the court found that the automatic 

transfer provision reflected the legislature’s determination that certain minors are not eligible 

for continuation in the administrative scheme of the juvenile court and that the automatic 

transfer provision was rationally based on the age of the offender and the nature of the threat 

posed by the offense to the victim and the community. M.A., 124 Ill. 2d 135, 529 N.E.2d 492; 

J.S., 103 Ill. 2d at 403-04, 469 N.E.2d at 1094-95. The court further found that the automatic 

transfer provision did not violate procedural due process because it does not allow for any 

disparity in treatment between the individuals within its classification, and that it does not 

deprive them of a meaningful opportunity to be heard. M.A., 124 Ill. 2d 135, 529 N.E.2d 492; 

J.S., 103 Ill. 2d at 404-05, 469 N.E.2d at 1095. The court also rejected the defendant’s 

attempt to rely on the eighth amendment analyses in Miller, Graham, and Roper to support 

his due process claims, noting that a challenge raised under one constitutional theory cannot 

be supported by decisions based purely on another constitutional provision. Patterson, 2014 

IL 115102, ¶ 97. 

¶ 46 In Patterson, a majority of the court rejected eighth amendment and proportionate 

penalties challenges to the automatic transfer provision. The court concluded that the 

provision does not impose any form of punishment, but directs that a small class of juvenile 

defendants, who are charged with specific, serious crimes, will be tried in adult criminal 

court. Patterson, 2014 IL 115102, ¶¶ 104-06. The majority found that the provision is 

procedural rather than punitive and that, as such, there is no violation of the eighth 

amendment’s prohibition against cruel and unusual punishment, and no violation of the 

proportionate penalties clause of the Illinois Constitution. Patterson, 2014 IL 115102, ¶ 106. 

The majority concluded that the automatic transfer provision was not unconstitutional, but it 

strongly urged the legislature to review the statute based on the current scientific and 

sociological evidence which indicates a need for the exercise of judicial discretion in 

determining the appropriate setting for the proceedings in the juvenile cases. Patterson, 2014 

IL 115102, ¶ 111. In this case, the defendant has provided no basis on which to distinguish or 

deviate from Patterson, J.S., and M.A. Based upon the existing precedent, we reject the 

defendant’s claims that the automatic transfer provision in the Juvenile Court Act is 

unconstitutional. 

¶ 47 B. The Voluntariness of the Defendant’s Statements 

¶ 48 The defendant contends that the trial court erred in denying his motion to suppress his 

confession because he did not knowingly, voluntarily, and intelligently waive his Miranda

rights before he was interviewed by the police on August 4, 2010. The defendant points to 

several facts in support of his claim that his statements were involuntary, including that he 

was 15 years old, that he had no opportunity to consult with a concerned adult, that he was in 
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a hospital and handcuffed to a bed, that he was sleep-deprived and intoxicated, that he was 

taking prescription medication for a major depressive disorder, and that he had undergone 

two painful procedures, a blood draw and the placement of a catheter, shortly before he was 

questioned by the police. 

¶ 49 In reviewing a ruling on the voluntariness of a juvenile confession, the trial court’s 

factual findings will be reversed only if they are against the manifest weight of the evidence, 

but its decision on the ultimate question of whether a confession was voluntary is subject to 

de novo review. People v. Murdock, 2012 IL 112362, ¶ 29. 

¶ 50 To determine the voluntariness of a confession, courts consider the totality of the 

circumstances, including factors such as the defendant’s age, intelligence, background, 

experience, education, mental capacity, and physical condition at the time of questioning. 

Murdock, 2012 IL 112362, ¶ 30; In re G.O., 191 Ill. 2d 37, 54-55, 727 N.E.2d 1003, 1012 

(2000). Courts also consider other factors, including the legality and duration of the 

detention, the length of the interview, whether there was any physical or mental abuse by the 

police, whether the police made any threats or promises, whether a concerned adult was 

present either before or during the interrogation, and whether the police made attempts to 

prevent or frustrate the minor and a concerned adult from conferring. In re G.O., 191 Ill. 2d 

at 54-55, 727 N.E.2d at 1012. The test of voluntariness is whether the defendant made the 

statement freely, voluntarily, and without compulsion or inducement of any sort, or whether 

his will was overcome at the time he confessed, and no single factor is dispositive. In re 

G.O., 191 Ill. 2d at 54-55, 727 N.E.2d at 1012. 

¶ 51 During the suppression hearing in this case, the trial court heard from a number of 

witnesses regarding whether the defendant knowingly and voluntarily waived his Miranda

rights. The court also viewed the video of the defendant’s interview with the police. The 

court found that the evidence overwhelmingly established that the defendant’s statements 

were made freely, voluntarily, and without compulsion or inducement of any sort and that the 

defendant’s will was not overcome at the time he confessed. After reviewing the testimony 

and evidence offered during the suppression hearing, including the defendant’s videotaped 

statement, we cannot find that the trial court’s factual findings and credibility determinations 

are against the manifest weight of the evidence. 

¶ 52 We now consider whether the statements were voluntary, based on the totality of the 

circumstances. The record indicates that the defendant was 15 years, 8 months old at the time 

he was questioned. He had an IQ of 85 and had completed eighth grade. He attended an 

alternative school due to misconduct issues, including fighting with other students, at his 

grade school. By all accounts, the defendant was sleeping soundly when Agent Gallatin 

arrived to question him. Agent Gallatin set up the video recorder and then woke up the 

defendant. There was no preinterview questioning of the defendant. The duration of the 

interrogation was approximately 48 minutes. 

¶ 53 The video recording shows that Agent Gallatin initially told the defendant that he wanted 

to find out what had happened. Agent Gallatin noted that he had spoken with the defendant’s 

father and that the defendant’s father had given permission for the interview. Agent Gallatin 

read each of the Miranda warnings to the defendant, and the defendant orally indicated that 

he understood each warning. The defendant was able to sign the written form. Based on our 

review of the recorded interview, Agent Gallatin did not engage in any behavior that would 

be considered abusive or coercive. He did not make any promises or threats, and he did not 
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use trickery in order to extract information from the defendant. The defendant did not ask for 

a lawyer prior to or during the interview. He did not seek to confer with his father or another 

concerned adult prior to or during the interview. There is no evidence that the defendant’s 

father attempted to get in touch with the defendant after he was taken to the hospital. The 

defendant’s father did not deny that he had given Agent Gallatin permission to interview the 

defendant to find out what had happened. 

¶ 54 The defendant did not appear to be physically or mentally distressed during the interview. 

He appeared to understand Agent Gallatin’s questions, and his answers were responsive to 

the questions posed. We do note that the defendant appeared to be drowsy when the 

questioning began, that he took some time to process the questions, and that he spoke in a 

very soft voice. But the defendant did not appear confused about the process, and he gave 

responsive answers. At different points during the interview, Agent Gallatin asked the 

defendant if he understood what was happening, and the defendant indicated that he 

understood. 

¶ 55 We also note that the defendant was handcuffed to the bedrails during the interview, but 

the video shows that the defendant had some ability to move his arms. In addition, the tenor 

of the interview was not coercive. Given the nature of the crimes that had been committed 

and the defendant’s agitation, and at times combative behavior prior to his arrest, the 

detention does not appear to be unreasonable. Two juvenile officers were present during the 

interrogation. There is no evidence that either was adversarial toward the defendant. The 

evidence shows that Trooper Heselton ensured that the defendant was aware of his Miranda

rights and that he was treated properly while at the hospital. While the circumstances of the 

interview were not perfect, we find, based on the totality of the circumstances, that the 

defendant’s statements were voluntary and not the result of coercion, deceit, or an overborne 

will. The trial court did not err in denying the defendant’s motion to suppress. 

¶ 56 C. Evidentiary and Procedural Challenges 

¶ 57 The defendant contends that the trial court erred in allowing evidence that two weeks 

prior to the murders, he shot his dog and dragged it onto the railroad tracks before he 

attempted suicide. The defendant acknowledges that the evidence that he shot himself was 

relevant to his state of mind and mental health issues. He claims that the evidence that he 

shot his dog and dragged it onto the railroad tracks before turning the gun on himself, and the 

photographs depicting the dog lying on the tracks, constituted other crimes evidence which 

was unfairly prejudicial. 

¶ 58 Evidentiary rulings are within the sound discretion of the trial court and will not be 

disturbed absent a clear abuse of discretion resulting in manifest prejudice to the defendant. 

People v. Illgen, 145 Ill. 2d 353, 364, 583 N.E.2d 515, 519 (1991). Other crimes evidence 

includes misconduct that occurred prior to the charged offenses, and it is admissible to 

establish state of mind. People v. Norwood, 362 Ill. App. 3d 1121, 1128, 841 N.E.2d 514, 

522 (2005). The trial court may exclude other crimes evidence, even if the evidence is 

relevant, if the danger of unfair prejudice substantially outweighs its probative value. Illgen, 

145 Ill. 2d at 364-65, 583 N.E.2d at 519; Norwood, 362 Ill. App. 3d at 1129, 841 N.E.2d at 

522. 

¶ 59 In this case, the evidence was offered to show the defendant’s state of mind and to rebut 

the defendant’s defense that the use of Cymbalta, as prescribed, resulted in involuntary 
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intoxication such that the defendant was unable to appreciate the criminality of the conduct.

The trial court instructed the jury that the evidence could only be used for the limited purpose 

of the defendant’s state of mind, and we presume the jury followed the court’s instruction. 

After reviewing the record, we find that the evidence was relevant to the defendant’s state of 

mind and that it was not so prejudicial as to substantially outweigh its probative value. We 

find no error in its admission. 

¶ 60 The defendant next contends that he was deprived of a fair trial when the trial court 

denied his motion for a change of venue based on pretrial publicity. 

¶ 61 A defendant is entitled to a change of the place of trial if the trial court has reasonable 

grounds to believe that prejudice against the defendant actually exists and that, by reason of 

that prejudice, there is a reasonable apprehension that the defendant cannot receive a fair and 

impartial trial. People v. Olinger, 112 Ill. 2d 324, 343, 493 N.E.2d 579, 588 (1986). A change 

of the place of trial should be granted when it becomes apparent that it will be impossible to 

find 12 jurors sufficiently unfamiliar with the details of the case to withstand a challenge for 

cause. Olinger, 112 Ill. 2d at 343, 493 N.E.2d at 588-89. 

¶ 62 Exposure to pretrial publicity is not enough to demonstrate prejudice. People v. Kirchner, 

194 Ill. 2d 502, 529, 743 N.E.2d 94, 108 (2000). Jurors need not be totally ignorant of the 

facts and issues involved, but it is essential that the people who are ultimately chosen as 

jurors must be able to lay aside impressions or opinions and render a verdict based on the 

evidence admitted at trial. People v. Sutherland, 155 Ill. 2d 1, 16, 610 N.E.2d 1, 7 (1992). In 

evaluating a defendant’s claim that the jury was prejudiced due to pretrial publicity, the 

reviewing court must consider the entire record, including the voir dire, to determine 

independently whether the defendant received a fair trial. Kirchner, 194 Ill. 2d at 529, 743 

N.E.2d at 108. 

¶ 63 The record shows that this case was originally set for trial in May 2011, but was 

continued and rescheduled for August 2011. Prior to the initial setting, a few of the potential 

jurors had requested to be excused. The trial court was notified of these requests and 

recognized that the case required a larger jury pool. Once the trial date was reset, the trial 

court notified the parties that 120 potential jurors would be summoned. Prior to voir dire, the 

potential jurors were asked to complete a questionnaire. The court reviewed each

questionnaire and determined that only one potential juror would be excused for cause 

because of the answers in the questionnaire. 

¶ 64 The potential jurors were questioned in groups of 14. The court denied the defendant’s 

request for individual voir dire, but it permitted potential jurors the opportunity to answer 

more personal questions in private. The record shows that a number of the potential jurors 

were excused for cause during voir dire. Some jurors were excused after admitting that they 

had prejudged the case. Several others were excused because they personally knew one or 

more of the victims or family members of the victims, or because they admitted a bias for or 

against the State’s Attorney or a particular witness. A few others were excused for health or 

family issues, and one could not consider an insanity defense. The record shows that a jury of 

12 and 2 alternates were selected before the pool of 120 potential jurors was exhausted. The 

jurors who were seated stated that they could be fair and impartial and that they would decide 

the case based solely on the evidence presented in court. The defendant has not established

that the jury was prejudiced against him due to pretrial publicity. After reviewing the entire 
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record, including the voir dire, we conclude that the trial court did not err in denying the 

defendant’s motion for a change of venue. 

¶ 65 Next, the defendant claims that he received ineffective assistance of counsel when his 

trial attorneys relied on the defense of insanity at trial, but then chose not to tender jury 

instructions on that defense. 

¶ 66 During the jury instruction conference, the defense team notified the court that it would 

tender instructions on involuntary intoxication, but would not tender instructions on “not 

guilty by reason of insanity” or “guilty but mentally ill.” The court asked if this was a matter 

of trial strategy. One of the defendant’s lawyers stated that it was the defendant’s right to 

decide whether to pursue an insanity defense. Another stated that he believed it was 

“indirectly” trial strategy. The court then asked the defendant if he had consulted with his 

lawyers about whether to submit instructions on the insanity issue. The defendant replied that 

he had consulted with his attorneys, that he accepted their advice, that he did not need 

additional time for consultation, and that he did not want the jury instructed on the insanity 

defense. 

¶ 67 In order to establish a claim of ineffective assistance of counsel, the defendant must show 

that his counsel’s performance was objectively substandard and that but for the deficient 

performance, there is a reasonable probability that the outcome would have been different. 

Strickland v. Washington, 466 U.S. 668, 694 (1984); People v. Albanese, 104 Ill. 2d 504, 473 

N.E.2d 1246 (1984). In order to establish an insanity defense, the defense must show by clear 

and convincing evidence that the defendant lacked the substantial capacity to appreciate the 

criminality of his conduct because of a mental disease or mental defect. 720 ILCS 5/6-2 

(West 2010).

¶ 68 In this case, Dr. Slomowitz opined that the defendant was insane at the time of the 

murders. She stated that he was unable to appreciate the criminality of his conduct because of 

a mental defect caused by the prescription medication he was taking. During 

cross-examination, Dr. Slomowitz testified that the defendant’s psychosis resulted from the 

prescription medication and all the other intoxicants he had taken. In addition, the State cast 

doubt on her testimony regarding the “black box” warnings and pointed out that in her 

preliminary report she had opined that the defendant was not insane when he murdered the 

second victim. The State also presented rebuttal experts to cast doubt on the insanity defense. 

Dr. Yanamadala testified that he prescribed Cymbalta for the defendant, and that the 

defendant did not complain of or display any side effects from that medication while in the 

hospital. Dr. Klug opined that he found no evidence to indicate that the defendant was 

psychotic when he murdered Mike Mahon and Debra Tish. He noted that certain actions by 

the defendant showed that he was aware of the criminality of his conduct. 

¶ 69 The record shows that the defense’s primary theory was that the defendant could not 

appreciate the criminality of his conduct due to an involuntary intoxication resulting from his 

prescription medication, and that the evidence supporting the insanity defense was not very 

strong. The defendant was questioned about his decision to abandon the insanity defense, and 

at that time he indicated he had consulted with his attorneys and agreed with their advice. 

The record shows that the defense team’s decision to forgo instructing the jury on insanity 

was a matter of trial strategy which was made after considering the law, the facts, the 

evidence as it played out during the trial, and the available options. People v. Whitehead, 169 

Ill. 2d 355, 390, 662 N.E.2d 1304, 1320 (1996), overruled in part on other grounds by 
- 16 - 

People v. Coleman, 183 Ill. 2d 366, 701 N.E.2d 1063 (1998). Though the jury ultimately 

rejected the defendant’s involuntary intoxication theory, an unsuccessful defense strategy, by 

itself, does not prove ineffective assistance of counsel. People v. Cundiff, 322 Ill. App. 3d 

426, 435, 749 N.E.2d 1090, 1098 (2001). The defendant has not shown that the decision not 

to instruct the jury on insanity constituted ineffective assistance of counsel. 

¶ 70 Next, the defendant contends that the trial court erred in prohibiting his neuropharmacology expert, Dr. Lipman, from offering his opinion on the effect of Cymbalta on the 

defendant’s state of mind at the time of the crimes, and from offering statistics regarding the 

adverse effects of Cymbalta with respect to violent or aggressive behaviors. 

¶ 71 In this case, Dr. Lipman prepared a preliminary report in which he discussed the effects 

of Cymbalta on adolescents in general and the defendant in particular. Dr. Lipman concluded 

that at the time of the crimes, the defendant was experiencing adverse effects of Cymbalta, 

and that he was not capable of making reasoned decisions or of controlling his behavior. The 

State filed a motion in limine asking that Dr. Lipman be prohibited from rendering an opinion 

concerning the defendant’s state of mind at the time of the crimes because he did not have a 

doctorate in psychology or psychiatry and therefore lacked the necessary qualifications to 

render an expert opinion on that subject. The trial court agreed. The court entered an order 

permitting Dr. Lipman to testify about the effects of Cymbalta on adolescents in general, but 

prohibiting him from giving opinions about the effects of Cymbalta on the defendant’s state 

of mind when he committed the crimes. 

¶ 72 Under Illinois law, medical doctors, psychiatrists, and licensed clinical psychologists are 

deemed statutorily qualified to testify as expert witnesses on the issue of a defendant’s 

insanity or mental illness. See 730 ILCS 5/5-2-5 (West 2010); People v. Lowitzki, 285 Ill. 

App. 3d 770, 779, 674 N.E.2d 859, 864-65 (1996). Dr. Lipman is a neuropharmacologist. He 

is not a medical doctor, a psychiatrist, or a licensed clinical psychologist, and therefore he did 

not possess the statutory qualifications required to offer an expert opinion on the issue of the 

defendant’s sanity or mental illness. Lowitzki, 285 Ill. App. 3d at 779, 674 N.E.2d at 865. 

Based on the record, we cannot say that the trial court abused its discretion in limiting 

Dr. Lipman to discussing the adverse effects of Cymbalta on adolescents in general. 

¶ 73 On August 12, 2011, the defense produced a revised report from Dr. Lipman. The report 

contained previously undisclosed statistical information regarding the adverse effects of 

Cymbalta. The State filed a motion to prohibit Dr. Lipman from testifying about the 

statistical information contained in his revised report. The State claimed that the report 

contained new opinions that could have been disclosed in the initial report or within a few 

weeks of the court’s ruling on the State’s initial motion in limine. The court agreed and 

barred Dr. Lipman from discussing the statistical information at trial. 

¶ 74 Under Illinois Supreme Court Rule 415, evidence may be excluded as a sanction for a 

discovery violation. Ill. S. Ct. R. 415(g)(i) (eff. Oct. 1, 1971). Factors that a trial court should 

consider in determining whether to exclude evidence as an appropriate discovery sanction 

include the effectiveness of a less severe sanction, the materiality of the witness’s proposed 

testimony to the outcome of the case, the prejudice to the other party, and the evidence of bad 

faith in the violation of the discovery rules. People v. Scott, 339 Ill. App. 3d 565, 572-73, 791 

N.E.2d 89, 94-95 (2003). The imposition of sanctions for violations of discovery rules is 

reviewed under an abuse of discretion standard. People v. Ramsey, 239 Ill. 2d 342, 429, 942 
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N.E.2d 1168, 1216 (2010); People v. White, 257 Ill. App. 3d 405, 413-14, 628 N.E.2d 1102, 

1108-09 (1993). 

¶ 75 In this case, the defense produced Dr. Lipman’s revised report two days before jury 

selection was to commence, and the report contained material that had not been previously 

disclosed. There was no offer of proof, so it is difficult to determine the value of the 

statistical evidence to the defense. The State noted that it would need additional time to 

prepare for cross-examination and that it was unprepared to rebut the statistics without an 

expert. A continuance would have been fraught with problems. One hundred twenty citizens 

had been summoned to report for jury duty in two days, and witnesses had been subpoenaed. 

The trial had already been continued once based on a last-minute decision by the defense 

team to present an insanity defense. The defendant has not established that he was unfairly 

prejudiced by this discovery sanction. Based on this record, we cannot say that the trial court 

abused its discretion in prohibiting Dr. Lipman from testifying about previously undisclosed 

statistical information regarding adverse effects of Cymbalta. 

¶ 76 In his supplemental brief, the defendant contends that the Krajefska home invasion did 

not arise out of the same incident as the Mahon-Tish murders. As such, the defendant argues 

that the circuit court did not have jurisdiction over the charge alleging home invasion and 

injury to Randy Krajefska (count VII), in the absence of a transfer order from the juvenile 

court.

¶ 77 Under section 5-130(1)(a) of the Juvenile Court Act, a minor who is charged with one of 

several enumerated offenses, including first degree murder, and who was at least 15 years old 

at the time of the offense, is automatically excluded from the jurisdiction of the juvenile 

court, and shall be prosecuted as an adult for that offense and for all other charges arising out 

of the same incident. 705 ILCS 405/5-130(1)(a) (West 2010). 

¶ 78 The defendant correctly notes that home invasion is not one of the crimes that is subject 

to automatic exclusion. The defendant contends that the Krajefska home invasion did not 

arise from the same incident as the Mahon-Tish murders, and that the circuit court lacked 

jurisdiction over the charge because it had not been transferred from the juvenile court. The 

defendant claims that the Krajefska home invasion and the Mahon-Tish murders were 

separate incidents because the weapons used were different, the locations were different, and 

the motivations were different. He also claims that the Krajefska incident was not dependent 

on or subordinate to the Mahon-Tish murder. 

¶ 79 After reviewing the record, we do not think that the evidence supports a finding that the 

Krajefska home invasion and the Mahon-Tish murders arose from separate incidents. While 

there is no definite time line, the defendant’s own statement indicates that he committed the 

home invasion at the Krajefska residence within moments after leaving the Mahon-Tish 

residence and that this was an uninterrupted course. The record shows the offenses were 

committed in neighboring homes and involved the use of a weapon. The crimes were closely 

linked in time, in location, and in manner. See People v. Lesure, 408 Ill. App. 3d 12, 20-21, 

944 N.E.2d 780, 787 (2011). The defendant’s claim that there were different motives for the 

Mahon-Tish murders and the Krajefska home invasion is not based on any evidence in the 

record. There is no evidence of a motive for any of these crimes. Based on this record, we 

find that the Mahon-Tish murders and the Krajefska home invasion arose out the same 

incident. Accordingly, the Krajefska home invasion was properly prosecuted under the 

criminal law in the circuit court. 
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¶ 80 The defendant argues, in the alternative, that if the Mahon-Tish murders and the 

Krajefska home invasion arose out of the same incident for purposes of jurisdiction in the 

circuit court, then those charges were subject to compulsory joinder. The defendant further 

argues that the filing of the Krajefska home invasion charge more than 120 days after he was 

arrested and charged with the Mahon-Tish offenses violated his statutory right to a speedy 

trial and required dismissal of the Krajefska home invasion charge. We disagree. 

¶ 81 Section 3-3 of the Criminal Code of 1961, commonly called the compulsory joinder 

statute, requires joinder if multiple offenses are known to the prosecutor at the time of 

commencing the prosecution and are within the jurisdiction of a single court, and if the 

charges are based on the same act. 720 ILCS 5/3-3 (West 2010). There is no requirement of 

joinder where multiple offenses arise from a series of related acts in the course of a single 

incident. See People v. Gooden, 189 Ill. 2d 209, 219, 725 N.E.2d 1248, 1254 (2000); People 

v. Mueller, 109 Ill. 2d 378, 385-86, 488 N.E.2d 523, 526-27 (1985). The compulsory joinder 

provision was never intended to cover situations in which several offenses arise from a series 

of distinct, but closely related acts in the course of a single incident. Gooden, 189 Ill. 2d at 

219-20, 72 N.E.2d at 1254; Mueller, 109 Ill. 2d at 385, 488 N.E.2d at 526. In this case, the 

Krajefska home invasion and the Mahon-Tish home invasion and murders arose from a series 

of distinct, but closely related acts in the course of a single incident, and so there was no 

requirement of joinder. Gooden, 189 Ill. 2d at 219, 725 N.E.2d at 1254; Mueller, 109 Ill. 2d 

at 386, 488 N.E.2d at 526-27. Because the Krajefska home invasion charge was not subject 

to compulsory joinder, it was not subject to the same speedy trial period as the original 

Mahon-Tish charges. Gooden, 189 Ill. 2d at 220-22, 725 N.E.2d at 1254-55. The defendant’s 

ineffective assistance of counsel claim, based on his defense team’s failure to file a motion to 

dismiss the Krajefska home invasion count on speedy trial grounds, cannot be sustained. 

¶ 82 IV. CONCLUSION 

¶ 83 For the reasons stated, the defendant’s mandatory natural life sentences are hereby 

vacated, and this cause is remanded to the circuit court for a new sentencing hearing. On 

remand, the circuit court is instructed to determine which of the two Mahon-Tish home 

invasion charges constitutes the less serious offense, and to vacate the conviction and 

corresponding sentence on the less serious charge and correct the sentencing order. In all 

other respects, the judgment is affirmed. 

¶ 84 Affirmed in part, vacated in part, and remanded with instructions.