People v. Little , 2018 IL App (1st) 151954 ( 2019 )

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People v. Little, 2018 IL App (1st) 151954
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v
Caption JERMON LITTLE, Defendant-Appellant.
District & No. First District, Third Division
Docket No. 1-15-1954
Filed September 28, 2018
Decision Under Appeal from the Circuit Court of Cook County, No. 12-C6-60111; the
Review Hon. Brian Flaherty, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Patricia Mysza, and Michael Gentithes, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
Joseph Alexander, and Elliot Englander, Assistant State’s Attorneys,
of counsel), for the People.
Panel JUSTICE ELLIS delivered the judgment of the court, with opinion.
Presiding Justice Fitzgerald Smith and Justice Howse concurred in the
judgment and opinion.
OPINION
¶1 Defendant, Jermon Little, was convicted after a bench trial of aggravated battery of a peace
officer (720 ILCS 5/12-3.05(d)(4) (West 2012)) and criminal damage to government-
supported property (id. § 21-1.01). On appeal, he challenges the sufficiency of the evidence to
sustain these convictions. And he contends that the trial court’s premature finding of guilt,
announced before counsel was permitted to argue the case, denied him his constitutional right
to make a closing argument.
¶2 But this case has an uncommon (albeit not unique) twist: The trial court acknowledged its
inadvertent error, reopened the case after judgment, and promised to “keep an open mind”
while hearing counsel’s (admittedly belated) argument. In the end, the trial court stood by its
initial conclusion—that the three police officers who testified for the State were more credible
than defendant and two relatives who testified on his behalf—and reaffirmed its findings of
guilt.
¶3 The question thus presented is whether—and if so, under what circumstances—reopening
a bench trial after a premature judgment preserves a defendant’s constitutional right to make a
closing argument. We hold that reopening the case preserves this right, unless the record shows
that the trial judge was unable or unwilling to give defense counsel’s belated argument all due
consideration before finalizing its judgment(s) of guilt.
¶4 The record here reveals quite the opposite. And the trial court could reasonably find that
the testifying officers were more credible than defendant and his witnesses. We therefore
affirm defendant’s convictions.
¶5 BACKGROUND
¶6 The charges in this case arose from a confrontation between defendant and three officers
of the Burnham Police Department, on January 8, 2012, in the parking lot of a sports bar. The
details of that confrontation were thoroughly disputed at trial. Chief Peter Belos and Officers
Bolin and Russell testified to one version of events for the State. Defendant, his sister, and his
niece testified to another.
¶7 Around 2 a.m., Chief Belos drove through the parking lot of the bar while on routine patrol.
He testified that he saw defendant and a woman walking through the lot, having a “heated
argument” and a “pushing and shoving match.” He called for backup and parked his car. As
he approached defendant and the woman on foot, he identified himself and asked what they
were arguing about. Defendant separated himself from the shoving match and walked toward
the front door of the bar.
¶8 Chief Belos followed defendant to the door and ordered him to remove his left hand from
underneath his coat, fearing that he may have been holding a gun. Defendant refused and
walked back to the center of the parking lot. Chief Belos followed him and repeated his order
five or six times. Defendant refused to comply, so Chief Belos eventually grabbed his arm.
Defendant broke free and ran back toward the front door of the bar.
¶9 Chief Belos followed defendant back to the door, where defendant eventually removed his
hand from underneath his coat. He was holding an open beer bottle. Chief Belos asked him
what the argument was about. Defendant erupted in profanity and tried to walk away again.
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¶ 10 In the meantime, a crowd of people had gathered around. Chief Belos asked defendant to
step over to his vehicle, away from the crowd, to talk about the argument. Instead, defendant
hit Chief Belos in his left shoulder. At that very moment, Officers Bolin and Russell were
arriving.
¶ 11 Officers Bolin and Russell testified that that they arrived at the same time but in separate
cars. They both parked at the edge of the lot and approached, on foot, a crowd that included
defendant, Chief Belos, and 8 to 12 other people surrounding them. Defendant was wrangling
with Chief Belos. Officer Bolin testified that Chief Belos was holding defendant by the arm or
jacket, but defendant pulled away and pushed Chief Belos. Officer Russell testified that he saw
Chief Belos “fall back,” but he could not be sure, from his vantage point, if Chief Belos was
pushed in the arm or punched in the mouth.
¶ 12 As they approached, Officers Bolin and Russell identified themselves, and Chief Belos
instructed them to arrest defendant. They tried, but defendant resisted. He was combative,
drunk, and shouting defiant profanities at the officers. While Officers Bolin and Russell
struggled with defendant, Chief Belos turned his attention to the rest of the crowd, which had
grown loud and unruly, and called for additional backup.
¶ 13 Officer Bolin grabbed defendant’s arm, but he pulled away and started to run. Officer Bolin
caught up with defendant, grabbed him from behind, and tried to cuff him. By this time, they
were near a storefront window in the strip mall where the bar was located. Defendant lunged
backward forcefully, ramming Officer Bolin’s back into the plate-glass window. The window
cracked but did not fully break. Defendant then fell to the ground, face-forward, and Officer
Bolin fell on top of or next to him. Officer Bolin tried again to cuff him, but defendant kept
kicking, punching, and pulling away. At least one of defendant’s kicks landed, striking Officer
Bolin in the shin.
¶ 14 Officer Russell warned defendant that he would be tased if he kept resisting. Defendant
continued resisting, so Officer Russell gave him a “drive stun” to the arm. (That is, he held his
taser to defendant but did not put the prongs into him—a method, he testified, that delivers a
lower-level jolt.) Apart from that, Officer Russell testified, he never struck defendant in any
way.
¶ 15 Officer Bolin testified that the rest of the crowd was “beating on” him and Officer Russell
the whole time, hitting them from behind while they tried to subdue defendant.
¶ 16 After defendant was tased, Officer Bolin handcuffed him, put him in the back of his squad
car, and drove him to the station. According to Officer Bolin, defendant kicked out the rear
passenger-side window of the car. Chief Belos testified that when he saw Officer Bolin’s car
at the station, one of the rear windows was broken and the frame around the window was bent;
earlier in the evening, when he saw Officer Bolin on patrol, the window was intact.
¶ 17 Officer Bolin testified that he did not notice any injuries to defendant at the station.
¶ 18 Defendant, his niece Kandis McMiller, and his sister Tasheena Givens testified to a very
different version of events.
¶ 19 Defendant and his family had gathered at the bar to celebrate his niece Lanique’s birthday.
Givens was escorted out of the bar by security guards after lighting a cigarette inside. McMiller
and defendant went outside to talk to her. Defendant testified that McMiller left them at some
point, but he was still talking to Givens when the police arrived. He testified that “I guess we
were loud because I’m telling her to calm down.”
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¶ 20 Twenty or more other people, according to the defense witnesses, had also gathered in the
parking lot by the time the police arrived. McMiller testified that the scene was peaceful and
that nobody was arguing. Givens testified that there was a “confrontation” brewing in another
“group of girls” in the lot, and that the “whole lot was lit up like fireworks with noise.”
¶ 21 The defense witnesses estimated that upwards of a dozen police cars descended upon the
lot. One of the officers drove past Givens and defendant, with his window rolled down, and
said “come here.” They walked away because they didn’t think the officer was talking to them.
The officer got out of his car, walked over, and said, “You heard me talking to you.”
¶ 22 Without any warning, that officer—whom defendant identified as Officer Russell—hit
defendant in the face with his baton. The defense witnesses all denied that defendant said
anything to Officer Russell or made any contact with him before he hit defendant. Defendant
either fell to his knees or was thrown to the ground by Officer Russell. He was bleeding heavily
from his mouth.
¶ 23 While defendant was on the ground, Officer Russell handcuffed and tased him several
times in the back. Officer Russell then pulled defendant back up and tased him again, this time
in his chest, while walking him to the squad car. Whenever defendant was tased, he foamed
from his mouth, and his eyes rolled back in his head.
¶ 24 Givens and McMiller testified that the police also tased and arrested several other family
members, including Givens. According to Givens, the police “just went berserk on people.”
¶ 25 Defendant denied that he touched or said anything to Officer Russell. He denied pushing
Officer Bolin into the storefront window or breaking the window of the squad car. He testified
that he never had his hand underneath his coat, and that nobody ever told him to remove his
hand from his coat.
¶ 26 Defendant introduced into evidence four photos depicting the injuries allegedly inflicted
by Officer Russell. Three of those photos, defendant’s Exhibits 1 through 3 (all dated January
11, 2012, three days after the incident), depict swelling on his face and lip. Exhibit 4 (dated
January 18, 2012, 10 days after the incident), he claims, depicts the area on his chest where he
was tased. Defendant did not offer any photos of the areas on his back where allegedly he was
tased.
¶ 27 After the defense rested, the trial court continued the case, so the judge could review his
notes and the trial transcripts. The court did not hear closing arguments at that time.
¶ 28 When the case was eventually recalled on December 12, 2014 (nearly three months after
the close of evidence), the trial court immediately announced its findings. The court found that
the case boiled down to a credibility contest, that the officers testified credibly, and that
defendant’s relatives “had a motive not to be truthful” on the stand.
¶ 29 The trial court found defendant guilty of several counts of aggravated battery of a peace
officer. The counts were all based on making physical contact of an insulting or provoking
nature with Chief Belos or Officer Bolin; defendant was acquitted of the counts charging him
with causing bodily harm to the officers. The trial court also found defendant guilty of one
count of criminal damage to government-supported property.
¶ 30 As soon as the court announced its findings, defense counsel pointed out that the court had
not heard closing arguments. After some discussion, the court conceded its error and offered
counsel a chance to argue, promising “that I will keep an open mind.” Counsel then made his
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argument, which focused on the failure of the bar’s security guards to testify. The State waived
both its closing argument and rebuttal.
¶ 31 The trial court reiterated its findings of guilt after hearing counsel’s belated argument. As
the judge explained, “I spent probably—probably six or seven hours going over this case in
my mind, again reviewing everything that I have, and my opinion does not change after your
closing argument.” The judge apologized to counsel for not letting him argue the case first, but
added, again, that “nothing that you said, [counsel], would have changed my mind.”
¶ 32 The trial court merged the various counts of aggravated battery to a peace officer into two
(one for each victim), and sentenced defendant—who had no prior felony convictions and was
gainfully employed—to two years’ probation.
¶ 33 ANALYSIS
¶ 34 I
¶ 35 Defendant first challenges the sufficiency of the evidence to sustain his convictions for
aggravated battery of a peace officer and criminal damage to government-supported property.
¶ 36 In reviewing the sufficiency of the evidence, we ask whether a rational trier of fact, viewing
the evidence in the light most favorable to the State, could have found the essential elements
of the crime beyond a reasonable doubt. People v. Wright, 2017 IL 119561, ¶ 70; Jackson v.
Virginia, 443 U.S. 307, 319 (1979). In applying this standard, we draw all reasonable
inferences in favor of the State. People v. Beauchamp, 241 Ill. 2d 1, 8 (2011). And we afford
great deference to the trial court’s findings on witness credibility, the weight to be given certain
testimony, the balancing of conflicting evidence, and the reasonable inferences to be drawn
from the evidence. Wright, 2017 IL 119561, ¶ 70. Those findings, however, are not conclusive
and may be reversed on appeal if “the record evidence compels the conclusion that no
reasonable person could accept” them. People v. Cunningham, 212 Ill. 2d 274, 280 (2004).
¶ 37 A person commits aggravated battery of a peace officer when he commits a battery, other
than by discharge of a firearm, against a victim he knows to be a peace officer performing his
or her official duties. 720 ILCS 5/12-3.05(d)(4)(i) (West 2012). As relevant here, a person
commits a battery when he intentionally or knowingly, and without legal justification, makes
physical contact of an insulting or provoking nature with an individual. Id. § 12-3.
¶ 38 Defendant does not dispute that he knew Chief Belos and Officer Bolin were police officers
performing their official duties. (Defendant was not charged with aggravated battery to Officer
Russell.) Thus, the only question is whether the State proved beyond a reasonable doubt that
defendant made “physical contact of an insulting or provoking nature” with either of them.
¶ 39 The evidence, taken in the light most favorable to the State, was sufficient to prove that he
did. Chief Belos was trying to conduct a field interview of defendant. Standing near the bar
entrance, surrounded by a growing crowd, he asked defendant to walk with him to his car,
away from the crowd, to discuss the earlier quarrel that he had observed. Instead of cooperating
with Chief Belos, defendant hit him.
¶ 40 All three officers testified to that allegation. Chief Belos testified that defendant hit him in
his left shoulder with his hand. Officer Bolin’s testimony that he saw defendant “push” Chief
Belos is consistent, in essentials, with Chief Belos’s own. And Officer Russell similarly
testified that he saw Chief Belos “fall back” after being struck, but he was not sure whether
Chief Belos was struck in the arm or the mouth. Any variations in the officers’ accounts,
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perhaps owing to their respective vantage points, were incidental; and they certainly did not
render the officers’ testimony “illogical and inconsistent,” to the point of “strain[ing]
credulity,” as defendant claims. A rational trier of fact could have found that defendant hit
Chief Belos, and thus committed an aggravated battery.
¶ 41 At Chief Belos’s command, Officer Bolin (along with Officer Russell) tried to arrest
defendant. After defendant initially slipped away, Officer Bolin caught up to him, grabbed him
from behind, and tried to cuff him. Officers Bolin and Russell testified that defendant lunged
backward, pushing Officer Bolin’s back into a storefront window. They both fell to the ground
after the impact, and Officer Bolin again tried to cuff defendant. But defendant continued to
resist, throwing kicks and punches at Officer Bolin. And at least one of those kicks, according
to Officer Bolin, hit him in the shin. A reasonable trier of fact could credit this testimony and
thus find that defendant committed an aggravated battery against Officer Bolin.
¶ 42 As defendant acknowledges, his trial was a credibility contest. The trial court heard
testimony from three police officers, who testified that a drunk and unruly defendant resisted
their efforts to subdue him, making the prohibited physical contact with two officers in the
process. The trial court also heard “diametrically opposed” testimony from defendant and two
of his relatives, who testified that a swarm of police officers descended upon the bar’s parking
lot and “just went berserk on people,” including defendant, for no particularly obvious reason.
And the trial court found the officers more credible.
¶ 43 That should be the end of the matter. We do not reweigh the evidence on appeal, and unless
they are clearly irrational, we honor the trial court’s determinations about the relative
credibility of the witnesses. Wright, 2017 IL 119561, ¶ 70. Defendant nevertheless argues that
we should find the State’s evidence insufficient because it consisted entirely of “dubious”
officer testimony that “conflicted with” three “reliable” defense witnesses. To this end, he
offers two principal reasons why any rational trier of fact should reject the officers’ testimony
as objectively implausible. Neither reason is convincing.
¶ 44 First, defendant says it would “defy logic” to believe that Officers Bolin and Russell could
have responded to the call for backup in time to see defendant hit Chief Belos, because this
would have required them to arrive in a matter of “seconds.”
¶ 45 On direct examination, Chief Belos estimated that from the time he first saw defendant in
the parking lot and called for backup, until the time defendant hit him (or more precisely, until
the time defendant revealed the beer bottle under his coat, which was immediately before
defendant hit him), only about “a minute” had passed—hardly enough time, defendant says,
for Officers Bolin and Russell to respond to the scene. The defense’s account of events, in
contrast, does not require this implausible, if not impossible, feat.
¶ 46 Defendant also claims that Chief Belos revised his testimony about when he called for
backup on cross-examination. That is not evident to us, but in any event, it does not change the
crux of defendant’s argument, which is that Officers Bolin and Russell had no more than about
a minute, or as defendant says, “mere seconds,” to get to the bar.
¶ 47 The trial court could have reasonably thought that Chief Belos (and the other officers)
testified truthfully about defendant’s conduct, but that his estimate of the elapsed time was not
entirely accurate. Chief Belos testified that defendant repeatedly refused to remove his hand
from underneath his coat, and so he feared that defendant may have been concealing a gun.
We would not expect an officer to be taking careful note of the precise time as he followed an
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uncooperative and potentially armed individual back and forth through a parking lot in the
middle of the night.
¶ 48 The trial court could have taken Chief Belos’s testimony less literally than defendant does,
as saying merely that the incident unfolded quickly. Indeed, that is what Chief Belos said on
cross-examination: “I didn’t have a stopwatch. I didn’t time the whole incident, but it happened
very fast.” But then defendant’s argument is merely that Officers Bolin and Russell could not
have responded within some unspecified but short period of time—as if they could not have
been close by when the call for backup came in. It was not unreasonable for the trial court to
reject that vague and speculative inference.
¶ 49 Defendant also says that the officers’ testimony is belied by the photographic evidence of
his alleged injuries. Specifically, three of the photos, defendant’s Exhibits 1 through 3, depict
swelling and bruising on the left side of his face and upper lip. Thus, defendant argues, they
refute Officer Russell’s denial that he hit defendant in the face with his baton, and, in turn,
support the defense witnesses’ testimony that he did.
¶ 50 The photos may be consistent with the defense witnesses’ testimony, but they do not refute
the officers’ competing account of their struggle to detain defendant. The officers testified that
after defendant lunged backward, pushing Officer Bolin’s back into the storefront window, he
fell face-forward to the ground, where he continued to struggle and forcefully resist Officer
Bolin’s attempts to handcuff him—so much so that Officer Russell had to subdue him with a
taser. It is entirely possible that defendant bruised his face and lip in the course of his face-
forward fall and ensuing on-the-ground tussle with Officer Bolin. Thus, the photos do not show
that it was irrational for the trial court to credit the officers over the defense witnesses.
¶ 51 The rest of defendant’s arguments merit little or no discussion. For example, he says it is
“unlikely” that a “38-year-old with no prior felony convictions suddenly became so
belligerent” that he attacked two police officers and could not be restrained without the use of
a taser. Defendant’s criminal history was not in evidence at trial. And even if it had been,
defendant’s argument would merely invite us to reweigh that evidence and the credibility of
the witnesses for ourselves. These are not legitimate grounds for reversal under the Jackson
standard.
¶ 52 In sum, because the trial court could reasonably credit the officers’ testimony, the State’s
evidence was sufficient to prove defendant guilty of aggravated battery to a peace officer.
¶ 53 Next, a person commits criminal damage to government-supported property when he or
she knowingly damages any property that is supported (in whole or in part) with state funds,
without the consent of the state. 720 ILCS 5/21-1.01(a)(1), (b) (West 2012). The only element
in dispute here is whether defendant actually damaged Officer Bolin’s squad car.
¶ 54 The evidence, taken in the light most favorable to the State, was sufficient to prove that he
did. Officer Bolin testified that defendant kicked out the rear passenger-side window of his
squad car while en route to the station. The testimony of a single witness is sufficient to convict,
as long as it is “positive and credible,” and even though it is contradicted by the defendant’s
own testimony. People v. Siguenza-Brito, 235 Ill. 2d 213, 228 (2009).
¶ 55 And although Chief Belos did not see this alleged incident, he testified that when he saw
Officer Bolin’s car at the station, one of the rear windows was broken, and the window frame
was bent. When Chief Belos saw Officer Bolin’s car earlier that evening, before the incident
at the bar, the window and frame were intact. His testimony thus supports Officer Bolin’s.
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¶ 56 It is true, as defendant says, that the State did not introduce any photos of the squad-car
window (or other documentary evidence) to corroborate the officers’ testimony. But if
believed, their testimony was sufficient on its own. See id. The absence of any photos merely
goes to the officers’ credibility and the weight their testimony on this point deserves. The trial
court resolved those questions in favor of the officers, and those determinations are entitled to
significant deference on appeal. Wright, 2017 IL 119561, ¶ 70.
¶ 57 There was nothing so inherently implausible about Officer Bolin’s testimony that no
rational trier of fact could believe it. Indeed, defendant’s only argument to the contrary is that
Officer Bolin did not testify credibly about defendant’s conduct in the parking lot, and thus his
testimony about defendant’s conduct in the car deserves no credence either. This argument
fails for the reasons we have already given. The evidence was sufficient to convict defendant
of criminal damage to government-supported property.
¶ 58 II
¶ 59 Defendant next contends that he was denied his right to make a closing argument when the
trial court prematurely announced its findings of guilt.
¶ 60 The sixth amendment guarantees every defendant the right to make a closing argument,
whether he elects a jury or a bench trial, and no matter how “simple, clear, unimpeached, and
conclusive the evidence may seem.” (Internal quotation marks omitted.) Herring v. New York,
422 U.S. 853, 856-57, 860 (1975). When this right is completely denied, “[t]here is no way to
know” what arguments in summation might have affected the outcome of the case. Id. at 864.
Thus, although Herring did not say so explicitly, courts have universally read that decision to
require automatic reversal when defense counsel is not permitted to argue the case. See, e.g.,
People v. Millsap, 189 Ill. 2d 155, 166 (2000); People v. Stevens, 338 Ill. App. 3d 806, 810
(2003).
¶ 61 But that is not—or not exactly—what happened here. After the close of evidence, the trial
court continued the case without hearing closing arguments. The court wanted time to review
its notes and the transcripts first. When the case was eventually recalled (nearly three months
later), the trial court immediately announced its findings—that the officers were more credible
than the defense witnesses, and thus that defendant was guilty of at least several of the charged
counts.
¶ 62 Defense counsel immediately, if sheepishly, asked, “[d]id we ever argue this case?” The
trial court initially said yes, but soon conceded its error. When counsel then asked, “Do you
think argument is gonna change your mind?” the court answered, “I have no idea,” but assured
counsel “that I will keep an open mind.”
¶ 63 Counsel made his closing argument without interruption, focusing on the role of the bar’s
security guards and their failure to testify. When counsel finished summing up, the trial court
reiterated its findings of guilt.
¶ 64 As the judge explained to counsel, he had spent several hours reviewing his notes and the
transcripts, and “my opinion does not change after your closing argument.” The judge
apologized for announcing his findings prematurely, but added, again, that “nothing that you
said, [counsel], would have changed my mind.”
¶ 65 In light of this record, defendant’s description of the issue in his opening brief is (at best)
incomplete. The trial court did not deny defense counsel an opportunity to make a closing
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argument, full stop. The crux of the issue is that the trial court had to reopen the case, after a
premature judgment, to hear counsel’s argument. So the question we must answer is whether—
and if so, under what circumstances—this remedy adequately protects a defendant’s sixth
amendment right to make a closing argument and, as a corollary, his due-process right to a fair
and open-minded trier of fact.
¶ 66 Neither party cites a single case that addresses these questions head-on. But our own
research has revealed several, and they reach conflicting conclusions about the questions at
hand.
¶ 67 There is one Illinois case directly on point. In People v. Daniels, 51 Ill. App. 3d 545, 548
(1977), the trial court found Daniels guilty without first hearing closing argument. The error
was clearly inadvertent, as the court “immediately and without question permitted summation”
when defense counsel requested it. Id. Although counsel’s summation was belated, coming
after the judgment was prematurely announced, we found that there was “no violation of the
principle set forth in the Herring case.” Id.
¶ 68 We do not read Daniels as adopting a bright-line rule that reopening a case for argument
is always an adequate remedy for a premature judgment. The opinion offers little detail about
the trial court’s actual remarks, but our description of the court as allowing argument “without
question” suggests that the court appeared willing to hear counsel’s argument with an open
mind and that we found the trial court’s attitude, as expressed on the record, to be the
dispositive fact in affirming its judgment. See id.
¶ 69 The Tenth Circuit adopted that rule explicitly in United States v. Price, 795 F.2d 61 (10th
Cir. 1986). The federal court of appeals “accept[ed] the view that a trial judge, under these
circumstances[, i.e., hearing argument after a premature judgment], is capable of keeping an
open mind.” (Emphasis added.) Id. at 64. The question for a reviewing court is whether the
record shows that the trial judge was willing to do so. See id.
¶ 70 In Price, there was “neither an explicit statement nor an implicit suggestion that Mr. Price’s
closing argument did not receive open-minded consideration.” Id. Rather, the record showed
that the trial court’s error was “inadvertent[ ]” and did not “manifest an unwillingness to hear
Mr. Price’s closing argument” fairly. Id. Because defense counsel “was permitted to make his
closing argument to an attentive, open-minder trier of fact,” the court affirmed Price’s
conviction. Id.
¶ 71 Consider, by way of contrast, the trial courts’ remarks in United States v. King, 650 F.2d
534 (4th Cir. 1981), and United States v. Walls, 443 F.2d 1220, 1223 (6th Cir. 1971). Both
courts reopened their respective cases for closing argument after prematurely announcing
judgment; but in doing so, each trial court said unequivocally that a belated argument would
be futile because the court had already made up its mind and was not amenable to changing it.
King, 650 F.2d at 536 (judge stated that “ ‘I have already made my finding. It’s not going to
change anything,’ ” and told counsel, “ ‘If you want to argue the case for the record, for the
appeals, that’s fine as far as I’m concerned.’ ”); Walls, 443 F.2d at 1223 (judge said “argument
then would be futile because he had made up his mind”).
¶ 72 Both King and Walls were granted new trials on appeal. The Sixth Circuit held (in a pre-
Herring case) that Walls was effectively denied his right to make a closing argument: A futile
argument—made to a fact-finder decidedly unwilling to change its mind, no matter what
counsel might have to say—is not the closing argument the constitution guarantees. See Walls,
443 F.2d at 1223-24.
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¶ 73 And in King, 650 F.2d at 537, where counsel declined to argue after the judge said, in no
uncertain terms, that argument would be pointless, the Fourth Circuit held that counsel did not
make a tactical decision to waive argument. Rather, counsel never had a chance to argue the
case in “the kind of environment in which a defendant’s interests can be effectively advocated,”
and therefore was denied “any real opportunity” to argue on behalf of his client at all. Id. at
536-37.
¶ 74 We glean the following rule from these cases: Reopening a case for closing argument is an
adequate remedy for a premature judgment when the record shows that the judge was willing
to hear the defense’s argument with an open mind—that is, where the judge acknowledges (or
at least does not overtly reject) the possibility that counsel’s argument could still change the
judge’s mind about the outcome of the case. But if the record shows that the judge was
unwilling to keep an open mind, or expressed the view that he simply could not, then the only
remedy that would protect the defendant’s constitutional rights would be a new trial before a
different judge.
¶ 75 It is no objection that Herring, 422 U.S. at 864, requires automatic reversal, whereas this
rule does not. The Court adopted an automatic-reversal rule in Herring because it thought
“[t]here is no way to know” for sure what arguments might have persuaded the trier of fact
when counsel was denied any chance to make them. See id. That rationale does not apply where
counsel did have an opportunity to marshal the defense’s best arguments in a (admittedly
belated) summation. If automatic reversal is to be required in this context, the rule will have to
be justified by different considerations than those offered in Herring.
¶ 76 An automatic-reversal rule in this context is not completely without authority. In Spence v.
State, 463 A.2d 808 (Md. 1983), for example, the Court of Appeals of Maryland (that state’s
highest court) adopted such a rule. In sharp contrast to Price, 795 F.2d at 64, the Spence court
rejected the view that a judge can keep an open mind after prematurely announcing judgment.
It would be unrealistic to expect the judge to recover the same attitude of open-mindedness,
and to “create the same atmosphere of fairness,” that existed before the entry of judgment.
Spence, 463 A.2d at 811-12. The judge’s good intentions notwithstanding, a fair hearing is no
longer possible: “ ‘The bell having rung cannot be unrung.’ ” Id. at 811 (quoting People v.
Dougherty, 162 Cal. Rptr. 277, 280 (Ct. App. 1980) (ordered deleted from California Appellate
Reports)).
¶ 77 Defendant echoes this metaphor in his reply brief, where he asserts that the trial court
“could not unring the bell of premature judgment.” At that point, says defendant, “confirmation
bias”—the human tendency to seek out data compatible with one’s beliefs, while ignoring
contrary evidence—prevented the trial court from giving fair consideration to any defense
arguments that cut against the conclusions it had already reached.
¶ 78 We do not deny that human beings may be subject to confirmation bias. And we are
mindful that a defendant’s right to an unbiased and open-minded trier of fact is of paramount
importance. But we reject the conclusion that defendant, and the court in Spence, draw from
these principles: That once the trier of fact has reached a conclusion about the case, closing
argument is necessarily futile because the trier of fact can no longer hear and consider the
argument fairly.
¶ 79 The Supreme Court rejected (one version of) this conclusion in Herring: “[S]urely, there
will be cases where closing argument may correct a premature misjudgment and avoid an
otherwise erroneous verdict.” (Emphasis added.) 422 U.S. at 863.
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¶ 80 Granted, the Court was not referring to a judgment that had been announced prematurely,
or a closing argument made after that announcement. Rather, the Court’s point was that closing
argument, no matter how “open and shut” the case seemed “at the close of evidence,” might
still change the conclusion that the trier of fact had already reached at that stage of the trial. Id.
¶ 81 Despite this difference (which we will discuss later), the Court’s point in Herring merits
careful scrutiny. It has important implications for the question presented in this case because
it helps to clarify what a defendant’s right to an open-minded trier of fact can realistically
mean.
¶ 82 A trier of fact should strive to suspend judgment, as best it can, until the end of the trial.
But that is possible only to a point. Judges and jurors inevitably form beliefs about the evidence
presented to them as the case unfolds. For instance, a belief that a witness is telling the truth—
or not—will sometimes impress itself upon the trier of fact in real time, as it observes the
witness on the stand. And when the evidence as a whole strikes the trier of fact as simple and
decisive enough—if, for example, the case turns on the testimony of a witness whose
credibility seems immediately apparent—the verdict, unavoidably, will also seem clear to the
trier of fact long before closing argument, as Herring frankly acknowledged. See id.
¶ 83 But even in these circumstances, Herring tells us, closing argument may still change the
trier of fact’s mind. Id. No matter how “simple” or “open and shut” the case may seem, it is
always possible that the trier of fact has missed something—a doubt about a witness, a gap in
the State’s proof, some connection between various evidentiary facts—and so has misjudged
the case prematurely. See id. And it is always possible that counsel, marshalling the evidence
“from the point of view most favorable to” the defendant, will bring that error to light, and thus
“correct” the trier of fact’s “misjudgment,” in closing argument. Id. at 864; see also People v.
Crawford, 343 Ill. App. 3d 1050, 1059 (2003) (“It is not uncommon for a trial court to change
its initial impression following argument by defense counsel or the prosecutor.”).
¶ 84 The Court’s faith in the power of an advocate’s argument to sway the verdict even in these
seemingly futile circumstances—where the trier of fact, confident the case was an easy one,
has already reached its conclusion—is an essential part of why Herring deemed the right to
closing argument fundamental. But we could not make sense of this holding if we accepted a
key premise of defendant’s argument—that we cannot reasonably expect closing argument to
change the trier of fact’s mind, once it has come to a conclusion about the defendant’s guilt.
Herring tells us that the trier of fact could change its mind.
¶ 85 It is not wrong, but it is overly simplistic, to insist that a fair and open-minded trier of fact
is one that “ ‘hears before it decides.’ ” Spence, 463 A.2d at 811 (quoting People v. Diaz, 1 Ill.
App. 3d 988, 992 (1971)). We need not—because Herring does not—indulge the fantasy that
a trier of fact will suspend all judgment until the last word is uttered in rebuttal argument.
Instead, the fair and open-minded trier of fact to which every defendant is entitled is one that—
while striving to suspend judgment, as best it can—is open to revising the views it does reach
along the way. It is a trier of fact that remains open, at all times, to the possibility that its
impressions and beliefs thus far may ultimately be wrong, upon further evidence, argument, or
reflection. It is a trier of fact that listens attentively and patiently, until the very end, for any
evidence or argument that might sway its verdict.
¶ 86 But what about a case like this one—where the trial court took the next step and actually
announced its judgment before hearing closing argument? Can a judge, in these circumstances,
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still hear a belated argument with an open mind? Or is it too late, at that point, for argument to
be anything but futile?
¶ 87 That next step is not a trivial one. Reversing the order of argument and verdict is not a
merely formalistic error. The verdict is obviously meant to have a finality that any previous
impressions or beliefs about the evidence lacked. But we think it goes too far to say that a judge
who has committed this error at a bench trial is necessarily incapable of giving full and fair
consideration to a belated defense argument or of being persuaded, when the argument is
compelling, that his or her view of the evidence was wrong.
¶ 88 We are not convinced that a premature bench-trial verdict is, as it were, a “bell” that can
never be “unrung.” That metaphor may be apt enough when, for example, a trier of fact is
asked to disregard prejudicial evidence. Perhaps the clearest case is propensity evidence—
evidence that is inadmissible despite being relevant. See, e.g., People v. Donoho, 204 Ill. 2d
159, 170 (2003) (propensity evidence “not considered irrelevant”; rather, it has “too much
probative value” (internal quotation marks omitted)). Because such evidence is relevant, a
rational person ordinarily would want to consider it when trying to get at the truth. For, and for
that reason, such evidence, once heard, may simply be too difficult to ignore (even if the law
has its reasons for asking the trier of fact to do so).
¶ 89 But a judge who is asked to consider a belated argument is not being asked to disregard
relevant evidence. The judge is simply being asked to hear an argument with an open mind and
give it whatever consideration it deserves. True, the argument will be at odds with the judge’s
conclusion(s) about the evidence. But Herring acknowledged that the verdict will sometimes
strike the trier of fact as a fait accompli by the close of evidence anyway and that, even in these
circumstances, an advocate’s closing argument may still convince the trier of fact to change its
mind. 422 U.S. at 863-64. Defendant’s burden is to explain why a trial judge’s ability to keep
an open mind—in the sense we have explained—ends, irrevocably, when a judgment is
announced prematurely. The metaphor of “unringing the bell,” in this context, explains
nothing.
¶ 90 Defendant’s cursory mention of “confirmation bias” does not fare much better. This bias
is always with us. It influences every trier of fact’s view of the evidence as the trial unfolds.
We cannot pretend otherwise without embracing the very fiction that Herring rejected. We
hope that every trier of fact will fight against this bias, and strive—against its own human
tendencies—to consider new evidence and arguments fairly, no matter how clear the verdict
may seem in light of the evidence already presented. Indeed, that is just what we mean by being
open-minded, and no doubt some triers of fact will succeed more than others.
¶ 91 Does a trial court’s confirmation bias strengthen when the court formally announces its
verdict? Perhaps. But we cannot honestly claim to know. Neither can defendant. Even less can
he claim to know that the bias becomes decisive at that point, leaving the judge unable to
consider a belated argument with a fair and open mind.
¶ 92 Defendant’s cursory citation to the work of Professor Kahneman on confirmation bias (see
Daniel Kahneman, Thinking, Fast and Slow (2011)) falls far short of showing that such a
blanket presumption of bias is warranted. Most courts to consider the question—including this
one—have rejected any such presumption. And it is at odds with the underpinnings of Herring,
the very source of the automatic-reversal rule that defendant asks us to extend to the case at
hand.
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¶ 93 We have not been given any clear reason to adopt that blanket presumption. And without
it, there is no basis for applying a bright-line rule of reversal when a trial court reopens a bench
trial, after a premature judgment, to hear closing argument. We adhere to our holding in
Daniels, 51 Ill. App. 3d 545, as we have elaborated it here.
¶ 94 To recap: Reopening a case for closing argument is an adequate remedy for a premature
judgment at a bench trial when the record shows that the judge was willing to hear the defense’s
argument with an open mind. But if the record shows that the judge was not willing to keep an
open mind or expressed the view that he or she could not, then the defendant is entitled to a
new trial before a different judge.
¶ 95 All that remains is to apply this rule to the record before us. To begin, as in Price, 795 F.2d
at 64, and as we suggested in Daniels, 51 Ill. App. 3d at 548, the record leaves no doubt that
the trial court’s error was inadvertent. At the close of evidence, the court expressly continued
the case for “arguments.” When the case was eventually recalled, the court announced its
judgment prematurely; but when the parties brought that error to light, the court freely
acknowledged and corrected it. The court clearly made an honest mistake in thinking, nearly
three months after the close of evidence, that it had previously heard closing arguments. The
trial court never intended to deprive defendant of his closing argument, and it never expressed
the attitude that closing argument was in any way dispensable.
¶ 96 Nor did the trial court’s comments in any way “manifest an unwillingness to hear [the
defendant’s] closing argument” fairly. Price, 795 F.2d at 64. Unlike in King, 650 F.2d at 536,
and Walls, 443 F.2d at 1223, where the trial courts clearly stated that argument would be futile,
the trial court here promised to “keep an open mind.” The court could hardly have been clearer
that it was willing to listen to counsel’s argument and give it whatever consideration it deserved
on the merits. Nothing in the record suggests that the court’s promise was insincere, or that the
trial court failed in its “obligation to be attentive, patient, and impartial” while hearing
counsel’s argument. Crawford, 343 Ill. App. 3d at 1059.
¶ 97 In its last word on the subject, after apologizing for having announced its judgment
prematurely, the trial court reiterated that “nothing that you said, [counsel], would have
changed my mind.” Defendant isolates this remark as evidence of the court’s irreparable
“prejudgment” of the case. But we do not understand the trial court to be saying here that it
was unwilling or unable to change its mind, even if counsel’s arguments in summation proved
convincing.
¶ 98 In the sentence uttered just before this one, the court had said that “my opinion does not
change after your closing argument.” Taking the court’s remarks as a whole, and in context,
we think it is clear that the two remarks were intended to mean the same thing: Not that
argument was futile, because the trial court was unwilling to hear it with an open mind, but
rather that the argument counsel did make was unconvincing. The trial court believed the
officers, and the crux of counsel’s argument—that the bar’s security guards were not called to
corroborate the officers’ testimony—did not change that assessment.
¶ 99 In sum, defendant was not denied his sixth-amendment right to make a closing argument.
Nor was he denied a fair trial before an open-minded trier of fact. Having reached these
conclusions, we do not consider the parties’ forfeiture and plain-error arguments.
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¶ 100 CONCLUSION
¶ 101 For the foregoing reasons, defendant’s convictions and sentence for aggravated battery of
a peace officer and criminal damage to government-supported property are affirmed.
¶ 102 Affirmed.
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