People v. Heiman

JUSTICE TULLY, dissenting:

I must respectfully disagree with my colleagues’ decision to reverse defendant’s conviction and remand the cause for a new trial. I believe that the trial judge’s comments were innocuous at best and surely did not amount to reversible error. Moreover, defendant was proven guilty of first-degree murder beyond a reasonable doubt. Aside from my trouble with the majority’s reasoning in this case, I am particularly disturbed by the tone of its opinion, which comes close to being a personal attack on the trial judge, an experienced circuit court judge with over a decade of experience in the criminal division. Accordingly, I would affirm the trial court’s ruling for the reasons that follow.

Initially, I take issue with the majority’s application of the waiver rule to this case. Speaking to this question, the supreme court of Illinois has repeatedly held that, absent plain error, "[b]oth a trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised during trial.” People v. Enoch, 122 Ill. 2d 176, 186 (1988); see also People v. Adams, 109 Ill. 2d 102, 116 (1985). In People v. Caballero, 102 Ill. 2d 23, 31 (1984), our supreme court stated the reasons for the waiver rule as follows:

"Failure to raise issues in the trial court denies that court the opportunity to grant a new trial, if warranted. This casts a needless burden of preparing and processing appeals upon appellate counsel for the defense, the prosecution, and upon the court of review. Without a post-trial motion limiting the consideration to errors considered significant, the appeal is open-ended. Appellate counsel may comb the record for every semblance of error and raise issues on appeal whether or not trial counsel considered them of any importance.” 102 Ill. 2d at 31-32 .

This rule is both simple to understand and apply. In the case sub judice, defendant did not include any of the alleged errors in his post-trial motion and, as I shall explain infra, there was no plain error. Thus, all of defendant’s issues are waived and therefore not cognizable on review. Enoch, 122 Ill. 2d at 176-77 .

In order to evade the clear mandate of Caballero, Enoch and their progeny, the majority by necessity cites to cases that soften the waiver doctrine in situations of alleged improper judicial conduct in a bench trial. See People v. Nevitt, 135 Ill. 2d 423 (1990); People v. Davilla, 236 Ill. App. 3d 367 (1992). While I have no quarrel with the import of those cases, they are simply inapplicable here. In order for a trial judge’s comments to constitute reversible error, a defendant must show that the remarks were prejudicial and that he was harmed by them. People v. Westfield, 207 Ill. App. 3d 772, 778 (1990). In other words, the defendant needs to establish that the comments were a material factor in his conviction. People v. Garrett, 276 Ill. App. 3d 702 (1995). Where is the proof of harm in this case? I cannot find it. In addition, the majority completely omits any discussion of the long line of cases that holds that where a defendant receives a bench trial, not a jury trial, the danger of prejudice due to judicial questioning decreases sharply. People v. Griffin, 194 Ill. App. 3d 286, 296 (1990).

The majority’s opinion painstakingly quotes various comments made by the trial court out of context and then through the use of its clairvoyant powers and judicial prestidigitation concludes that the trial judge was biased against defendant and his witnesses from almost the beginning of the trial. The truth of the matter is that the trial judge merely commented on the credibility of the witnesses based on their testimony, rather that on any preconceived notions as the defense would have us believe. A circuit court is free to examine witnesses in its discretion, provided it does not become an advocate, thereby abandoning its function as an impartial tribunal. People v. White, 249 Ill. App. 3d 57, 61 (1993). The relevant inquiry in a non-jury trial is whether the tenor of the court’s questioning indicates that the court has prejudged the verdict before hearing all the evidence. People v. Griffin, 194 Ill. App. 3d at 296 . The court may be justified in making such inquiries as a seeker of the truth (White, 249 Ill. App. 3d at 61 ) or to clarify material issues which seem obscure. People v. Wesley, 18 Ill. 2d 138 (1959).

A careful review of the record reveals that the comments made about Dennis King’s testimony were not improper, since the trial judge found his testimony incredible and further emphasized that "[King] thinks things happen that don’t happen.” This, I find, was an isolated comment, one that surely does not prejudice defendant. After the cross-examination of this witness, it became clear that Dennis King changed his story several times. The record demonstrates that King testified at trial that he never saw defendant strike the victim with the tire iron. Yet, upon cross-examination, he admitted that he told police that he did see defendant strike the victim with the tire iron. Furthermore, the record shows that while King was in jail for outstanding DUI warrants, King wrote a letter to an assistant’s State’s Attorney stating that he would testify against defendant if a deal could be worked out. Yet, he also met with defense counsel while in jail and told him he would testify for defendant. At trial, King admitted that he was trying to get out of jail at any cost. It was then that the trial judge told defense counsel that King can turn on anyone in order to protect himself. Clearly, Mr. King was an individual who had some problems getting his story straight and with the truth in general. The judge’s comments did not express a prejudgment of the case. Rather, his comments were based on the evidence the trial judge had before him. Thus, I cannot say that his extensive comments on the credibility of King was reversible error.

Additionally, the interruption and comments during closing arguments were hardly detrimental to defendant’s rights of having a fair trial. The majority erroneously divined that the trial judge was "not interested in any argument from the defense” since he "had already decided on the case.” 286 Ill. App. 3d at 112. That is simply not the case. In this bench trial, the judge was attempting to get to the truth and to clarify many of defense counsel’s points. We must remember that the test is whether the trial judge had become an advocate and abandoned his function as an impartial tribunal. People v. Griffin, 194 Ill. App. 3d at 296 . Here, the judge was not an advocate. Expressing skepticism and becoming an advocate are entirely different matters.

Appellate defense counsel claims that the trial judge interrupted trial counsel’s closing arguments over 40 times, yet does not cite to the 40 so-called interruptions as error. Only a very few are actually challenged by defendant. The majority bases its decision in this matter on People v. Smith, 205 Ill. App. 3d 153 (1990), while noting that the case is factually dissimilar, in other words, not on point. In Smith, the defendant’s conviction was reversed based on the trial court’s improper conduct. Smith, 205 Ill. App. 3d at 157 . The defense counsel did not get to utter more than a sentence of her closing argument before the trial judge cut her off, stating that he was not required to listen to her arguments. Smith, 205 Ill. App. 3d at 156 . Unlike Smith, the trial court here did give defense counsel an ample opportunity to argue.

Moreover, I do not believe that the trial judge’s comments about defendant were derogatory when stating "less than human” or "macho man.” At one point during closing arguments, the trial judge noted that defendant himself "admitted acting less than human on this occasion when his wife was out drinking with friends; acting less than what we would expect from a law-abiding citizen.” This comment was based on defendant’s own admissions. It was defendant that testified to striking his wife, which caused her to fall to the ground, and yelling "I’m going to kill you, you bitch.” Comments based on the evidence and defendant’s own admission cannot be considered prejudicial.

As to the questioning of Dr. Geiger, I do believe that the comments made by the trial judge were prejudicial and unwarranted. However, based on the overwhelming evidence in the record proving defendant’s guilt, I do not believe that those comments, standing alone, constitute prejudicial error.

In sum, it has often been held that a criminal defendant is entitled to a fair trial and not a perfect one. See, e.g., United States v. Hasting, 461 U.S. 499, 508-09 , 76 L. Ed. 2d 96, 105-06 , 103 S. Ct. 1974, 1980 (1983). In a bench trial, it is the function of the trial court to determine the credibility of the witnesses, the weight to be given their testimony and the inferences to be drawn from the evidence. See People v. Westfield, 207 Ill. App. 3d at 778 . I believe that defendant did not meet his burden in establishing that the trial judge was biased. The trial court, despite comment and questions, found defendant guilty based on the evidence and testimony. The opinion of the majority needlessly launches this case on another journey through the trial court, which will come back again to the appellate court. This additional caseload should not be imposed upon the judicial system of this state where it is clear that the totality of the trial judge’s comments did not rise to the level of reversible error. Accordingly, I would without hesitation affirm defendant’s conviction.