On May 26, 1999, the defendant, Michael S. Jennings, was charged by informationwith one count of first-degree murder (720 ILCS 5/9-1(a)(1) (West 1998)) and one count ofconcealment of a homicidal death (720 ILCS 5/9-3.1(a) (West 1998)) in connection with thedeath of Thomas Beyers (the victim). A four-count indictment was later entered chargingthe defendant with four alternative counts of first-degree murder. The charges wereconsolidated for a jury trial. The case proceeded to a trial in the circuit court of ShelbyCounty, after which a jury found the defendant guilty of second-degree murder andconcealment of a homicidal death. The trial court sentenced the defendant to 15 years in theDepartment of Corrections for second-degree murder and a consecutive 5 years'imprisonment for concealment of a homicidal death. On appeal the defendant contends that(1) the appellate prosecutor lacked the authority to prosecute the defendant, so that the trialmust be declared a nullity and the resulting judgment void, (2) he was entitled to have thejury instructed on involuntary manslaughter, (3) he was denied a fair trial due to the trialcourt's response to a question by the jury during deliberations, concerning the effect offinding the defendant guilty or not guilty of first-degree murder, (4) the trial courterroneously believed that it was required to impose consecutive sentences, and (5) thesentences imposed were excessive in light of numerous factors presented in mitigation, thelack of significant factors in aggravation, and the defendant's potential for rehabilitation. Weaffirm.

On May 19, 1999, a fisherman found the body of the victim floating in LakeShelbyville. Chains and coffee cans filled with concrete were attached to the body. A policeinvestigation revealed that the victim and the defendant's wife were having an extramaritalaffair and that the defendant and his wife were involved in the death of the victim. Thedefendant's wife ultimately pled guilty to first-degree murder. In exchange for her guilty pleaand cooperation with police, the prosecutor agreed to ask for a sentence of no more than 45years in the Department of Corrections.

As for the defendant, on May 26, 1999, in cause No. 99-CF-54 he was charged byinformation with first-degree murder and concealment of a homicidal death. The charginginstruments were signed by Steve Friedel, a Shelby County assistant State's Attorney. OnAugust 31, 1999, a four-count murder indictment was entered against the defendant in causeNo. 99-CF-55. On September 29, 1999, an order was entered consolidating the causes fora jury trial under No. 99-CF-55.

Friedel represented the State at the first five pretrial hearings: first, a hearing on May28, 1999, after the indictments were issued; second, the defendant's first appearance on June2, 1999; third, the preliminary hearing on June 27, 1999; fourth, a pretrial conference on July12, 1999; and fifth, a substitution-of-counsel hearing on September 3, 1999. Thereafter, therecord indicates that Mr. Allan F. Lolie, Jr., of the State's Attorneys Appellate Prosecutor'soffice, took over the prosecution of the defendant.

Lolie's name first appears in the record on October 29, 1999, when he appeared onbehalf of the State as "Special State's Attorney" at a pretrial conference. Also on that date,Lolie filed the State's "First Supplemental Answer to Defendant's Motion for Discovery." Prior to October 29, 1999, all motions and pleadings were served on Friedel, as indicated bythe certificates of service contained in the record. After October 29, 1999, the certificatesof service reflect service to Allan Lolie as "Special Prosecutor." Lolie filed motions onbehalf of the State and responded to the defendant's numerous pretrial motions on behalf ofthe State. Lolie appeared on behalf of the State at all pretrial hearings held after September3, 1999, including, inter alia, hearings regarding numerous motions in limine, a motion tobar the imposition of the death penalty, a motion to declare the death penaltyunconstitutional, a motion to suppress recorded conversations and evidence derivedtherefrom, and a motion to require the sentencing jury to make specific findings.

In this appeal, the State has filed a motion to take judicial notice of a document filedwith the circuit court of Shelby County in which the State's Attorney appointed Allan Lolie,an employee of the appellate prosecutor's office, as an assistant State's Attorney. Thedefendant does not object but, rather, welcomes the introduction of the document, assertingthat it supports his contention that the appellate prosecutor lacked the authority to prosecutethis case. With no objection, we hereby grant the State's motion to take judicial notice of thedocument.

The document is divided into two separate portions. It bears a file-stamp date ofAugust 13, 1999, but lacks a case number. A review of the record in this case shows that itwas not made a part of the instant record. The top portion of the document is titled"Appointment of Special Assistant State's Attorney." It is signed by the State's Attorney ofShelby County and states, "I *** appoint Allan F. Lolie, Jr.[,] of the State's AttorneysAppellate Prosecutor, as Special Assistant State's Attorney, and as such full faith and creditare due to all his official acts." In addition to the file-stamped date, the upper portion bearsa handwritten date of August 13, 1999. The bottom portion of the document recites the oathof office taken by Allan F. Lolie, Jr., and bears his signature. The bottom portion of thedocument was signed by a notary on August 12, 1999, one day before the top portion of thedocument was signed by the State's Attorney.

After all the pretrial matters were resolved, a seven-day jury trial ensued. The trialtook place on April 3, 4, 5, 6, 7, 10, and 11, 2000. Lolie represented the State throughoutthe trial. A review of the transcripts from those dates shows that Lolie was almost whollyresponsible for the prosecution of the defendant. Mr. Parkinson was introduced to jurors asa part of the prosecution team, but his participation in the seven-day trial was minimal. Parkinson participated in voir dire, argued a minor evidentiary ruling regarding recordedconversations between the defendant and a witness, examined one witness (Dr. TravisHindman, a pathologist who had performed the autopsy on the victim), and participated inthe jury-instruction conference.

At the trial, the State presented evidence that the defendant and his wife conspired tokill the victim after the defendant had learned of his wife's infidelities. The defendant, onthe other hand, testified that he did not plan to kill the victim but "freaked out" after he sawhis wife performing oral sex on the victim and that he struggled with the victim forapproximately 15 minutes until the victim stopped moving. The defendant admitted thatduring 90% of the fight, he was on top of the victim while the victim was facedown on theground.

Dr. Hindman testified that the autopsy did not reveal a conclusive cause of death. Hefound a laceration on the left side of the victim's forehead but no evidence of a skull fractureor injury to the brain. He opined that the victim died by "a combination of suffocation, that'scovering the nose and mouth[,] and compression asphyxia from compression to the chest." At the jury-instruction conference, the defendant tendered an instruction forinvoluntary manslaughter. The trial court refused the instruction on the basis that theduration of the altercation between the defendant and the victim indicated that thedefendant's actions were not reckless. The trial court instructed the jury on the lesser offenseof second-degree murder.

During deliberations, the jury sent the following note to the trial court: "If we vote notguilty of first[-]degree murder[,] do we then confer on second[-]degree murder[,] or do wehave to find guilty of first[-]degree murder before conferring on second degree?" Thedefendant urged the trial court to respond "No." The trial court responded by bringing thejury back to the courtroom and rereading the elements instructions for first- and second-degree murder. The jury later returned guilty verdicts for second-degree murder andconcealment of a homicidal death.

On May 15, 2000, the trial court conducted a sentencing hearing. A presentenceinvestigation report noted the defendant's three prior traffic convictions and a 1995conviction for the production of cannabis plants. As factors in mitigation, the trial courtfound that the defendant did not have a substantial history of prior criminal conduct and thathis conduct had been induced by someone other than himself. As a factor in aggravation, thetrial court noted that it was necessary to deter others from committing similar crimes. Thetrial court sentenced the defendant to consecutive prison terms of 15 years on the second-degree-murder conviction and 5 years on the concealment-of-a-homicidal-death conviction. The defendant now appeals.

The defendant asserts that the appellate prosecutor lacked the authority to prosecutethis case, making the trial a nullity and the resulting conviction void. The State responds thatAllan Lolie was appointed as a special assistant State's Attorney in this case and therebyobtained the authority to prosecute the case. In the alternative, the State contends that evenif Lolie lacked authority to prosecute the case, the defendant's convictions are not renderedvoid by Lolie's appointment. The State asserts that, at worst, the convictions are voidableand that because the defendant failed to object to Lolie's participation in the trial and cannotshow that he suffered any prejudice from Lolie's participation, the convictions should beaffirmed. We agree with the State.

It has long been accepted that the circuit court has the discretion to permit a privatelyemployed attorney to assist the State's Attorney in the prosecution of a criminal case, so longas the State's Attorney assumes the management of the case and there is no injustice to thedefendant. Hayner v. People, 213 Ill. 142, 147-48, 72 N.E. 792, 794 (1904); People v.Blevins, 251 Ill. 381, 389, 96 N.E. 214, 217-18 (1911). While a trial court is vested with thediscretion to permit private counsel to assist a State's Attorney, a trial court must specificallyappoint such an attorney. Section 3-9008 of the Counties Code provides as follows:

"Appointment of attorney to perform duties. Whenever the State's [A]ttorneyis sick or absent, or unable to attend, or is interested in any cause or proceeding, civilor criminal, which it is or may be his duty to prosecute or defend, the court in whichsaid cause or proceeding is pending may appoint some competent attorney toprosecute or defend such cause or proceeding, and the attorney so appointed shallhave the same power and authority in relation to such cause or proceeding as theState's [A]ttorney would have had if present and attending to the same ***." 55 ILCS5/3-9008 (West 1998).

In the instant case, nothing in the record indicates that the State's Attorney was sick,absent, or unable to attend or had a conflict of interest that prevented him or a dulyauthorized assistant from prosecuting the case. The record shows that Lolie actuallyassumed the management of the case, not merely assisted in the prosecution. The recordindicates that Shelby County assistant State's Attorney Friedel filed the information and wasthe initial attorney of record in the case; however, as early as August 12, 1999, Allan Lolietook over the prosecution of the defendant. Lolie's name appears as the attorney of recordon all transcripts after October 29, 1999. The trial transcripts show that Lolie displaced theState's Attorney and was responsible for the prosecution of the defendant. From a reviewof the record in the instant case, the only conclusion that can be drawn is that Allan Lolieusurped the duties of the county State's Attorney. But see People v. Moretti, 415 Ill. 398,403-04, 114 N.E.2d 337, 339-40 (1953) (where the assistant appellate prosecutor assignedto the case was essentially a special assistant acting under the authority and supervision ofthe State's Attorney).

No order was issued by the trial court appointing Lolie as a special assistant in thiscase. Instead, there is only a document signed by the State's Attorney of Shelby Countyappointing Allan F. Lolie, Jr., of the appellate prosecutor's office as a special assistant State'sAttorney and an oath of office taken by Lolie and notarized one day prior to his"appointment." The order signed by the State's Attorney of Shelby County does not refer toeither a case file number or the name of the case to which Lolie was allegedly appointed toact as a special assistant. This type of appointment cannot be condoned. State's Attorneysare clearly not meant to have such unbridled authority in the appointment of specialprosecutors. The appointment of a special prosecutor is limited to a specific case, and theorder appointing such an attorney must be a part of the record.

Moreover, State's Attorneys cannot simply create assistant positions as they see fit. Section 4-2003 of the Counties Code provides as follows:

"[W]here assistant State's [A]ttorneys are required in any county, the numberof such assistants shall be determined by the county board, and the salaries of suchassistants shall be fixed by the State's Attorney subject to budgetary limitationsestablished by the county board and paid out of the county treasury ***." 55 ILCS5/4-2003 (West 2002).

The provisions in place for the appointment of assistants were not followed here.

Section 4.01 of the State's Attorneys Appellate Prosecutor's Act (Act) (725 ILCS210/4.01 (West 2002)) provides the scope of authority for those instances in which attorneysemployed by the appellate prosecutor's office may represent the People of the State ofIllinois. That statute provides as follows:

"