People v. Lopez , 2012 IL App (1st) 101395 ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Lopez, 2012 IL App (1st) 101395Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ALEX LOPEZ, Defendant-Appellant.
District & No. First District, Fifth Division
Docket No. 1-10-1395
Filed June 22, 2012
Held Defendant’s convictions for criminal sexual abuse and unlawful restraint
(Note: This syllabus were upheld on appeal where he failed to show that he was deprived of
constitutes no part of a fair trial by the trial judge’s comments suggesting that defense counsel
the opinion of the court was incompetent and that his defense was a waste of time, his right to
but has been prepared present a defense was not violated by the trial judge’s decision to allow
by the Reporter of the State more time for closing argument than defendant, and he failed to
Decisions for the show that the prosecutor improperly vouched for the credibility of the
convenience of the victim during closing argument.
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 08-CR-21389; the
Review Hon. Lawrence P. Fox, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Benjamin Wimmer, all of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
Peter D. Fischer, Assistant State’s Attorneys, of counsel), for the People.
Panel PRESIDING JUSTICE EPSTEIN delivered the judgment of the court,
with opinion.
Justices J. Gordon and McBride concurred in the judgment and opinion.
OPINION
¶1 After a jury trial, defendant Alex Lopez was convicted of criminal sexual abuse and
unlawful restraint. He was sentenced to four years in prison. Defendant argues on appeal that:
(1) the trial court denied his right to a trial by an impartial jury by making numerous
comments before the jury conveying the impression that his “defense counsel was
incompetent and his defense a waste of time”; (2) the trial court violated his right to due
process of law by indicating, prior to closing argument, that it might impose unequal time
limits on defense and State closing arguments; and (3) the State improperly vouched for the
credibility of the complaining witness and suggested irrelevant considerations during closing.
We affirm.
¶2 BACKGROUND
¶3 On November 12, 2008, defendant was charged with attempted criminal sexual assault,
criminal sexual abuse, and unlawful restraint. Defendant pleaded not guilty and his jury trial
commenced on March 8, 2010.
¶4 I. State’s Case in Chief
¶5 A. MS
¶6 The State first called the complaining witness, MS, who testified to the following version
of events. In October 2008, MS was a 17-year-old junior in high school and lived at home
with her mother and her brother. Her uncle, Jose Avalos, and his family lived in the same
building. Another uncle, Nicholas Hurtado, lived across the street with MS’s aunt, Rosa. On
October 16, 2008, at approximately 6 p.m., Uncle Nicholas called MS and asked her to come
over to help him set up his iPod. MS went out the front door. It was still sunny outside.
While standing on her front porch, she saw defendant across the street, masturbating in the
gangway by her aunt and uncle’s house. She had never seen him before. He was wearing a
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black spaghetti strap undershirt and black basketball shorts that were pulled down to his mid-
thigh. She could not remember what color shoes defendant wore or whether defendant had
facial hair or tattoos. MS also saw a girl walking in front of her uncle’s house across the
street. MS had never seen the girl before. The “suspicious” girl kept walking, looking back
at defendant, and looked worried. MS focused her attention on the girl. When MS looked
back to where defendant had been, he was gone. MS did not call out to her uncle or call the
police. She waited a few minutes on her porch, “in shock.”
¶7 MS then went across the street to her Uncle Nicholas’s house. She walked to the rear
door because her aunt did not like people to use the front door. The rear entrance to her
uncle’s house had two small stairwells. One led up to the rear door, and the other went down
to the basement. MS went up the stairs and, as she knocked on the rear door, she saw
defendant hidden at the bottom of the steps to the basement. She was approximately five feet
away from defendant, who was still masturbating. In a “calm voice,” she told defendant he
was not supposed to be there and he nodded his head with a smirk. MS knocked harder on
the door but did not scream for help because she was in shock. She did not run because she
would have had to run past him. Defendant then came up the stairs and grabbed MS’s left
wrist; his grip was hard and painful. MS kept pushing him away, but was unsuccessful. She
was unable to pull herself away from defendant. As defendant held her by the wrist, he
pushed MS against the wall and, with his right hand, pulled down her sweat pants and
underwear “[r]ight beneath the pubic hair.” MS testified “I felt his hand on my vagina.” She
stated that “[b]asically everything” was exposed.
¶8 As defendant was restraining her, MS stated she was scared and panicking. She may or
may not have screamed. MS heard the locks unlocking on the rear door. Defendant then ran
out of the stairwell toward the front of the house. When Uncle Nicholas opened the door,
defendant was gone. MS pointed toward where he had run. Uncle Nicholas ran, and MS
followed him, to the end of the gangway. MS then saw her Uncle Jose get in his van and
chase defendant down the street. Uncle Nicholas ran back down the gangway and MS went
inside the house. Family members called the police and they arrived in a few minutes.
¶9 The police and MS went into the alley behind Uncle Nicholas’s house, where there was
an unfamiliar car parked. MS testified that she told the police that she saw defendant
masturbating and that he had rubbed her vagina with his hand. At trial, she testified that he
did not insert his fingers in her vagina.
¶ 10 MS went to the police station with her mother and identified defendant in a lineup. She
testified that the shirt defendant was wearing during the attack was different than the one he
was wearing during the lineup. MS denied telling the police that defendant had been wearing
white shoes.
¶ 11 B. Nicholas Hurtado
¶ 12 MS’s uncle, Nicholas Hurtado testified that he lived with his wife, Rosa, and their baby
daughter, across the street from MS. MS came to visit them almost every day and would
always use the back door, where there was one stairwell going up to the back door and
another going down to the basement.
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¶ 13 On October 16, 2008, at approximately 6 p.m., Nicholas was home. Rosa had just had
foot surgery and was unable to move around easily. Nicholas had called MS and asked her
to come over to his house to help him with his iPod. After a few minutes, he heard a “pretty
loud” knock at the back door. He heard a series of knocks. It took him a few seconds to get
to the back door and unlock the top and bottom locks. He did not hear voices or screams. As
he opened the back door, he found MS crying loudly and pointing down the stairs into the
gangway. He tried to calm her down. After 10 to 15 seconds, she was still crying loudly but
told him that a man tried to grab her and that she did not know who the man was. Nicholas
ran to the front of the house and MS followed. He saw a man, wearing black, running a half
block down the street but he was unable to see the man’s face. Nicholas also saw his brother-
in-law, Jose Avalos, run and jump into his van and follow in the same direction the man in
black was running. Nicholas went back to get his shoes and went into the alley but did not
find the man. He did see an unfamiliar car parked by the neighbor’s garage. The police then
arrived in less than 10 minutes.
¶ 14 C. Jose Avalos
¶ 15 Jose Avalos testified that on October 16, 2008, at approximately 6:15 p.m., he looked out
his living room window. He saw a man across the street coming out of the gangway of his
sister’s house. The man was clean shaven and was wearing a sleeveless black shirt and
underwear that was “like shorts like boxers.” Jose identified defendant in court as that
individual. Jose testified that he came out of his house onto the porch and saw his niece and
brother-in-law Nicholas coming out of the gangway. His niece was crying. When Jose saw
defendant running, he knew defendant had done something wrong, so Jose got into his car
and chased defendant down the street.
¶ 16 Jose drove between 10 and 20 miles an hour down several streets following defendant
who was approximately two car lengths away. When they came to a one-way street, Jose did
not want to drive down it, so he parked his car and started chasing defendant on foot. At that
point, he was no more than 10 feet from defendant. Defendant ran into a gangway, turned
around, faced Jose, and said, “I’m sorry. I’m sorry.” Jose had a clear view of defendant’s
face. Defendant then turned around and ran down an alley. He eventually ran into another
gangway and Jose lost him.
¶ 17 Jose returned to his car and drove back home. He then left again and drove around trying
to find defendant, but was unsuccessful. Jose spoke to the police at the scene. Later that same
evening, he was contacted by the police. The detectives picked up Jose, his sister Martha, and
his niece MS. Jose viewed a lineup at 12:40 a.m. on October 17, 2008 and identified
defendant.
¶ 18 D. Officer David Mullany
¶ 19 Chicago police officer David Mullany testified that, on October 16, 2008, he was
working with a partner in plain clothes in an unmarked car. At around 6:15 p.m., they
received a report of a criminal sexual assault in the 6100 block of School Street. The call
included a description of the offender as being a male Hispanic, 5 feet 10 inches to 5 feet 11
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inches tall, 190 pounds, wearing a black sleeveless shirt and black shorts. They toured the
area on foot for about an hour.
¶ 20 At around 8:30 p.m., the officers were parked on School Street. Sergeant Mullins was in
a marked car directly to their left. A purple van pulled up and the back door opened. A male
Hispanic, about 5 feet 10 inches to 5 feet 11 inches tall, wearing black shorts and a black
shirt got out of the van. He fit the description of the offender heard on the flash message.
Officer Mullany made an in-court identification of defendant as that man. As the officers
approached, defendant told them that his car was parked in the alley. Officer Mullany
testified that they were looking for an Alex Lopez. They asked defendant his name and
arrested him after he told them his name was Alex Lopez. The purple van had left
immediately after defendant exited and the officers did not get a good look at the driver.
¶ 21 E. Detective Emiliano Leal
¶ 22 Detective Emiliano Leal testified that, during the evening hours of October 16, 2008, he
responded to a call. When he arrived at the scene, at least six officers were there. They
canvassed the area and a description of the offender was broadcast over the radio. There was
a Mitsubishi vehicle parked in the alley that they suspected belonged to the offender. The
first thing Detective Leal observed was that there was clothing on the front seat of the car
including a pair of pants. There was also a shirt, defendant’s wallet, cell phone, and some
citations. The police were able to determine that the car was registered to defendant’s wife
and that defendant was in possession of the car that night.
¶ 23 Detective Leal spoke to MS, who was physically shaking. She appeared to have been
crying and the tone of her voice was not clear or even. MS told Detective Leal that she
screamed immediately after defendant pulled down her pants and underwear, that defendant
“grabbed her crotch” through her clothing, and that at least part of defendant’s hand and
fingers were inside the waistband of her underwear.
¶ 24 He also spoke to Jose Avalos, who retraced the steps he had taken when chasing the
offender. Detective Leal remained on the scene for approximately 20 minutes. He heard over
the air that officers had placed someone in custody at 8:31 p.m.
¶ 25 Detective Leal conducted a physical lineup at which both MS and Jose identified
defendant as the offender. Detective Leal had defendant wear a jacket because he was the
only one wearing a black shirt, but he did not include that fact in his report. He testified that
the participants were seated to remove some of the disparities in height and that he had them
roll up their pants and put their hands on top of their knees to hide the fact that their pants
were rolled up. Defendant was 31 years old at the time and definitely older than some of the
participants in the lineup.
¶ 26 On cross examination, the court refused to permit defense counsel to refresh Detective
Leal’s recollection regarding the ages of the participants in the lineup. The court stated that
a party could not refresh a witness’s recollection on cross-examination. The court refused to
allow defense counsel to be heard at a sidebar and stated, “That’s just not the right procedure.
You can impeach him.” The court also would not allow defense counsel to ask leading
questions about what Jose had told Detective Leal because Jose had not yet testified.
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¶ 27 II. Defense Case
¶ 28 A. Officer Ruiz Oquendo
¶ 29 The defense called Officer Ruiz Oquendo as its first witness. She testified that she spoke
to MS in the gangway going up the stairs of her uncle’s residence. Also present was MS’s
uncle, aunt, and mother. Officer Oquendo took notes but did not generate a report at that
point; she did eventually generate a report. She could not recall whether MS told her that she
saw the offender masturbating. Her report did not indicate that MS saw the offender
masturbating. Officer Oquendo testified that MS “may or may not have said it.” Officer
Oquendo stated she was responsible for the preliminary report but there were other people
interviewing MS as Officer Oquendo was gathering all the other information. Officer
Oquendo testified that her report indicated that MS told her the offender “attempted” to pull
down her pants, but that did not mean the offender had not completed the task. She used the
word “attempt” because she did not know if the offender got MS’s pants down.
¶ 30 On cross examination, Officer Oquendo also testified that MS was quite upset, crying,
and was telling her “a lot of things out of order, not in consecutive order as to how they
occurred.”
¶ 31 B. Zeinab Mohamed
¶ 32 Defendant presented the testimony of his wife, Zeinab Mohamed. On October 16, 2008,
defendant drove her to work in her Mitsubishi Gallant. He was wearing long black pants, a
long black sweater, a black T-shirt, and glasses. She testified he was not wearing black
shorts. Defendant dropped her off at work at 3:25 and was going to pick her up eight hours
later. He never did.
¶ 33 C. Victor Lopez
¶ 34 Defendant’s father, Victor Lopez, testified next. On October 16, 2008, he was alone in
his house, which is on the north side of Chicago. Defendant called him at 4:30 p.m. After the
conversation, defendant’s father stayed home. He testified that his son has always worn
glasses.
¶ 35 D. Ibrahim Almirah
¶ 36 Ibrahim Almirah testified that, on October 16, 2008, he was working in telemarketing at
the Al Furquan Foundation in Addison and defendant worked in the warehouse. On that day,
defendant called Almirah twice at work. After the second telephone call, Almirah left work
at 7 p.m. to pick up defendant in Chicago. He took the gray Ford work van and called
defendant for directions on the way.
¶ 37 He arrived 30 to 40 minutes later at a trucking school where defendant had asked him to
come. Defendant was wearing a black jacket and dark shorts, as well as the glasses he always
wore. Defendant directed Almirah to his car located in an alley. Almirah saw two police cars;
one marked and one unmarked. Almirah testified that defendant exited the van, walked
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toward the police car and leaned toward the window. Almirah stated that he went to park the
van because somebody was honking behind him. He stated that he got out of the van but left
when he saw the police putting handcuffs on defendant.
¶ 38 On cross-examination, Almirah stated that he had not arranged to meet defendant at the
Dog Stop restaurant in the area. He denied telling the police that such a meeting had been
arranged. Almirah talked to defendant about what had happened after he picked him up.
Almirah never contacted the State’s Attorney’s office and testified that he did not know there
was any need for that. He stated, “Why would I contact anyone?”
¶ 39 E. Alex Lopez
¶ 40 Defendant, Alex Lopez, testified in his own behalf. He said that on October 16, 2008, he
left home at 3:30 p.m. in his wife’s Mitsubishi Galant to take her to work in Warrenville. He
dropped her off at about 4 p.m. and went back home where he changed into long black gym
shorts, a black T-shirt with a pocket, a black zip-up sweater and black shoes. He testified that
he wears glasses for his astigmatism and cannot see without them.
¶ 41 At 4:30 p.m., defendant called his father and drove toward his father’s house on the north
side of Chicago. At 5:15 p.m., as he was driving east on Belmont Avenue in rush-hour
traffic, a minivan started following him. The minivan pulled next to defendant at a stop light
and the driver started making hand gestures. Defendant believed that the driver was flashing
a gang sign and was a “gang banger.” The minivan got behind defendant’s car again and
continued to follow him. Defendant could not remember the color of the minivan and stated
it “seemed like a Ford of some kind.” As defendant continued driving eastbound on Belmont
Avenue, he noticed the minivan really close behind him so he decided to make a left turn
heading north. He did not make the turn at an intersection, but at “a small street.” Defendant
noticed the minivan was still following him, so he decided to make a left turn into an alley.
Again the minivan followed defendant. Defendant testified that he stopped his car, got out,
and walked towards the back of his car to “see what he wanted.”
¶ 42 The driver got out of the vehicle and put a “hoodie” over his head. Defendant described
the man, whom he had never seen before, as being either Hispanic or Caucasian, shorter than
defendant, and bald with no facial hair. Defendant asked him what he wanted. Defendant
then noticed the back door slide open and realized there were more people in the minivan,
so he ran through a gangway. Defendant testified that, as he ran through the gangway
“Apparently somebody was *** walking towards me, I guess, and I bumped them.”
Defendant could not describe the person. He was wearing his glasses at the time but was not
sure where he was at in the gangway at the time he bumped this person. Defendant did not
say anything and was moving “pretty fast.” The other person was walking. After defendant
bumped into this person, he ran towards the front sidewalk and then ran down the street in
an eastbound direction. He did not see anyone else on the street and he did not see anybody
following him in the gangway.
¶ 43 Defendant testified that he stopped to catch his breath because he is asthmatic. He
stopped on somebody’s property–“the front part of someone’s property”–but did not know
what street he was on at the time. He was not familiar with this alley or these streets that he
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was running on. He stopped for “five to 10 minutes or so.” He then realized where he was
and walked a block toward the main street, Belmont Avenue. He next walked two blocks
westbound on Belmont Avenue. He then started walking through alleys looking for his car.
¶ 44 He located his car and was about a block away when he noticed the front two doors of
his car were open and there were people near the car and in the car. He did not know how
many people there were and he did not see any police cars. Defendant was afraid to return
to his car, so he went to a truck driving school on Belmont Avenue where he had taken a
course in 2007. Defendant had left his cell phone in his car, along with some clothing, his
wallet, and some money. A person at the school let defendant use his cell phone and
defendant called his workplace. He was unable to get in touch with a particular person and
called again. Ibrahim Almirah answered, the two had a conversation, and defendant then
waited at the trucking school for Almirah to show up.
¶ 45 While waiting for Almirah, defendant occasionally left to check to make sure his car was
still there. Then he would return to the school. Defendant testified that when he went to
check on his car at no time did he see any police officers or squad cars in the area. He called
Almirah “quite a few times” and Almirah also called defendant. When Almirah arrived at
approximately 8 or 8:30 p.m., it was dark. Almirah drove defendant to the mouth of the ally
and defendant told Almirah to leave him there. There were two police cars there. Defendant
testified that he approached the passenger side of one of the cars and knocked on the
window. The officer asked defendant if the car in the alley was defendant’s car. Defendant
said yes, the officer said “Wait a moment” and got on his radio. Plainclothes officers arrived
and asked defendant for his name and how to spell it. The police arrested defendant.
¶ 46 The police took defendant to the station at Grand and Central. He participated in a lineup.
Everyone in the lineup was a tall, male Hispanic. Defendant was told to pick a spot and was
asked to remove his glasses and put them in his pocket. Defendant was wearing his shorts,
shirt and sweater. The other participants were wearing long pants and the officer directing
the lineup told everybody to roll up their pants and put their hands on their knees. Defendant
denied ever wearing a sleeveless shirt that day and testified that he was wearing a shirt with
short sleeves as illustrated in the Cook County jail’s booking photo.
¶ 47 Defendant denied that he had ever masturbated in the gangway. He denied that he had
approached or touched MS, or seen her before. Defendant bumped only one person in the
gangway. He was not sure if the person he ran into in the gangway was MS. Defendant
admitted running down School Street that night, but did not see a person chasing him down
School Street or any of the other streets with an automobile. He denied turning around while
running to say “I’m sorry. I’m sorry.” Defendant denied having seen Mr. Avalos before that
night.
¶ 48 Defendant stated that he was not given his Miranda rights. He testified that, after he was
arrested, he spoke with Detective Leal. Defendant denied telling Detective Leal that when
he reached the other side of the gangway into School Street he heard an engine start and a
vehicle was following him. He denied telling the detectives that he was in the area to meet
Almirah at the Dog Stop restaurant. He also denied telling Detective Leal, during any of the
several conversations he had with the detective, that Almirah “was lying.” Defendant did not
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recall being asked by Detective Leal “why in the world” he would pull into an alley if being
chased by “gang bangers.” Defendant denied telling Detective Leal “Gang bangers always
fought in alleys and parks and not in the open.”
¶ 49 Defendant admitted that, instead of calling his wife or the police to help him get his car,
which was just blocks away, he called Almirah, who was at work in Addison 20 miles away.
Defendant also admitted that he knew Almirah not only had to leave work while he was on
shift and get a car, but also had to drive at least 50 miles back and forth to pick defendant up
to get his car, which was within walking distance of where defendant was waiting.
¶ 50 III. State’s Case in Rebuttal
¶ 51 In rebuttal, the State called Detective Emiliano Leal back to the stand. He testified that
he had three conversations with defendant: October 16, 2008 at 9:35 p.m.; October 17, 2008
at 1:40 a.m.; and October 17, 2008 at 4:45 p.m. Detective Leal testified that defendant told
him that when he got out of his car, three male Hispanics exited the other vehicle. Defendant
also told the detective that he ran into the gangway to escape from them and that, while
running, he bumped into a “woman.” Defendant told the detective that, when he reached the
other side of the gangway, he heard an engine start and a vehicle following behind him.
¶ 52 Defendant also told the detective that, on the evening in question, he was planning to
meet with Ibrahim Almirah at the Dog Stop restaurant to study the Koran. He did not tell
Detective Leal that he was in the area to visit his father. Defendant also told Detective Leal
that gang members always fought in alleys and parks and not in the open. Detective Leal also
testified that defendant told him that he was in the alley to fight. Detective Leal testified that,
after defendant provided Almirah’s number, the detective called him. After Detective Leal
spoke to Almirah, he again spoke to defendant, and defendant told him that Almirah “was
lying.”
¶ 53 The jury found defendant guilty of criminal sexual abuse and unlawful restraint and not
guilty of attempted criminal sexual assault. Defendant filed a posttrial motion for a new trial
which the trial court denied after hearing arguments. Defendant was sentenced to four years
in prison. He now appeals his conviction.
¶ 54 ANALYSIS
¶ 55 I. Trial Court’s Comments
¶ 56 Defendant first argues that he was denied his right to a trial by an impartial jury as a
result of the trial court’s comments. He asserts that “the trial court repeatedly and forcefully
castigated the defense for violating rules of evidence that did not exist.” (Emphasis in
original.) He also contends that “the trial court frequently sustained sua sponte objections to
defense questioning on the basis of non-existent rules, and sometimes without any
understandable basis.” In addition to the comments on these “erroneous rulings,” defendant
argues that “even the trial court’s otherwise legitimate rulings were frequently phrased with
excessive and inappropriate hostility that biased the jury” and were “replete with
manifestations of hostility” directed toward defendant and his counsel that “inappropriately
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revealed the court’s low opinion of Mr. Lopez’s defense.”
¶ 57 A trial judge “must not interject opinions or comments reflecting prejudice against or
favor toward any party.” People v. Williams, 209 Ill. App. 3d 709, 718 (1991). “Improper
comments include those which reflect disbelief in the testimony of defense witnesses,
confidence in the credibility of the prosecution witnesses or an assumption of defendant’s
guilt. In addition, a hostile attitude toward defense counsel or remarks that defense counsel
has presented his case in an improper manner may also be prejudicial and erroneous.” Id. A
defendant must show that comments by the trial judge were prejudicial and that he was
harmed by the comments for them to constitute reversible error. Id. “Where it appears that
the comments do not constitute a material factor in the conviction, or that prejudice to the
defendant is not the probable result, the verdict will not be disturbed.” Id. at 718-19. Thus,
even improper remarks may be harmless error. Id. at 719. “[I]n each case an evaluation of
the effect upon the jury of a trial court’s interjections must be made in the light of the
evidence, the context in which they were made and the circumstances surrounding the trial.”
(Internal quotation marks omitted.) Id.
¶ 58 A. Forfeiture
¶ 59 The State contends that defendant forfeited this issue by failing to object and by failing
to include the issue in his posttrial motion and the only way it can be reviewed on appeal is
pursuant to the plain-error rule. This is a threshold determination we must make because
“[t]he application of plain-error or harmless-error review *** depends on whether defendant
has forfeited review of the issue.” People v. Thompson, 238 Ill. 2d 598, 611 (2010). To
preserve an alleged error for review, both an objection at trial and a written posttrial motion
raising the issue are necessary. See People v. Enoch, 122 Ill. 2d 176, 186 (1988). Defendant
concedes that he did neither. However, citing People v. Sprinkle, 27 Ill. 2d 398 (1963),
defendant argues that the alleged error was not forfeited because “an objection ‘would have
fallen on deaf ears’ or caused the defendant to further bias the jury.”
¶ 60 In Sprinkle, our supreme court recognized that judicial misconduct could provide a basis
for relaxing the forfeiture rule. Id.; accord People v. McLaurin, 235 Ill. 2d 478, 486 (2009);
see also People v. Nevitt, 135 Ill. 2d 423, 455 (1990) (“although defendant did not raise any
issues concerning the conduct of the trial judge in his post-trial motion, application of the
waiver rule is less rigid where the basis for the objection is the trial judge’s conduct”). More
recently, the Illinois Supreme Court explained:
“The failure to preserve an error will be excused under the Sprinkle doctrine only in
extraordinary circumstances, however, such as when a judge makes inappropriate
remarks to a jury or relies on social commentary instead of evidence in imposing a death
sentence. [Citations.] We have stressed the importance of applying the forfeiture rule
uniformly except in compelling situations because failure to raise a claim properly denies
the trial court an opportunity to correct an error or grant a new trial, thus wasting time
and judicial resources. [Citation.]” People v. Thompson, 238 Ill. 2d 598, 612 (2010).
Here, the trial court’s comments during its evidentiary rulings and closing argument, even
if unnecessary or incorrect, were not extraordinary circumstances to justify excusing the
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forfeiture by defense counsel. Defendant has forfeited review of the issue.
¶ 61 B. Plain Error
¶ 62 Nonetheless, the plain-error rule bypasses normal forfeiture principles and allows a
reviewing court to consider unpreserved claims of error in specific circumstances. People v.
Thompson, 238 Ill. 2d 598, 613 (2010); Ill. S. Ct. R. 615 (“Plain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of the trial
court.”). A reviewing court can consider a forfeited error where:
“(1) a clear or obvious error occurred and the evidence is so closely balanced that the
error alone threatened to tip the scales of justice against the defendant, regardless of the
seriousness of the error, or (2) a clear or obvious error occurred and that error is so
serious that it affected the fairness of the defendant’s trial and challenged the integrity
of the judicial process, regardless of the closeness of the evidence.” People v. Sargent,
239 Ill. 2d 166, 189 (2010).
A defendant bears the burden of persuasion under each prong of the plain-error test. People
v. Lewis, 234 Ill. 2d 32, 43 (2009). Defendant now asserts that the alleged error here
constitutes a clear error under both prongs.
¶ 63 1. Error
¶ 64 The first step of plain-error review is to determine whether any error occurred at all.
People v. Thompson, 238 Ill. 2d 598, 613 (2010). If there was no error in the first instance,
there can be no plain error. See People v. Bannister, 232 Ill. 2d 52, 79 (2008).
¶ 65 The State notes that “defendant does not raise any of [his] claims as free-standing claims
of error.” Defendant counters that “[t]wenty-two pages of [his] initial brief organize and
describe these rulings and comments, most of which the State ignores or dismisses in a
conclusory fashion.”
¶ 66 During the State’s case-in-chief its first witness was the complainant, MS. On direct
examination, MS testified that she did not call out to her uncle when she first saw the
defendant masturbating. She also testified that, as she knocked on her uncle’s door after
seeing defendant masturbating in the stairwell, she did not scream. On cross-examination,
she again stated that she did not scream when she first saw the defendant masturbating, and
again testified that she was not screaming as she knocked on her uncle’s door after seeing
defendant masturbating in the stairwell. She also testified that she did not scream when
defendant grabbed her. Defense counsel, after asking MS to describe the neighbor’s backyard
then returned to the issue of screaming, as follows:
“DEFENSE COUNSEL: When do you start screaming? How long has he touched
you?
MS: I never screamed.
DEFENSE COUNSEL: You never screamed at all?
MS: No.
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DEFENSE COUNSEL: Do you remember telling the police that he ran and you
screamed?
MS: I don’t remember.”
On redirect, the State asked MS: “When [defense] counsel was asking you about how
shocked you were when this was all going on *** [i]s it that you were screaming or you don’t
know whether or not you were screaming?” MS stated: “I wasn’t screaming.” Defense
counsel then began his recross by asking “Did you ever scream–when you were answering
the Prosecutor’s questions, did you ever scream at any time during the attack?” MS replied
“No.” The State contends that this is but one example of how defense counsel repeatedly
asked questions that had been asked and answered and how he badgered the victim in this
case.
¶ 67 Also, during defense counsel’s cross-examination of MS, the record shows a pattern of
repeatedly asking improper questions. Defense counsel misstated witness testimony,
repeatedly cut the witness off in the middle of her answers, and asked questions phrased in
an improper form, e.g., “Is there anything in the world, [MS], that would have prevented you
from going into your house calling 911 and saying oh, me [sic] God, there’s somebody out
there exposing his penis?”
¶ 68 Defense counsel continually asked questions that would have required MS to testify as
to someone else’s state of mind. He also–at least nine times–asked MS what other people
could see or hear, asking what “the rest of the world,” “anybody,” “your uncle,” “anybody
else,” “Uncle Avalos,” or “Uncle Hurtado” could see or hear. After the trial judge had
sustained several objections without comment, these types of questions continued unabated.
The court then stated: “She can’t testify to what somebody else saw.” When defense counsel
persisted in asking this type of question, the court explained: “She can’t testify to what
someone else is watching.” Undeterred, defense counsel continued asking this type of
question. Finally, the court stated: “She can’t testify to what view someone else got. I don’t
know how many times I have to say this.” After defense counsel stated he would rephrase,
the court stated: “She cannot testify to what someone else saw or what they watched or what
view they had. She can only testify about what she saw.” Even after this proper admonition,
defense counsel again asked MS what her uncle saw. After properly sustaining the State’s
objection, the court again admonished counsel, stating: “she can’t testify what her uncle saw,
can she, counsel? And haven’t we gone over this before several times now? You can’t ask
her about what someone else saw. Please stop doing that.” Almost immediately thereafter,
defense counsel asked MS what her uncle saw. When the State objected, the court asked the
parties to come back in chambers.
¶ 69 Once out of the presence of the jury, the trial judge admonished defense counsel:
“THE COURT: First of all, all of these questions have been asked already over and
over and over again.
Secondly, I don’t know how many times I’ve cautioned you, I’ve admonished you,
I’ve asked you, I just pleaded with you please don’t continue to ask this witness what
someone else saw, and then you absolutely go right ahead and within two questions say
he saw the whole thing.
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Now, I am not going to put up with this. And I don’t want to have to hold you in
contempt or threaten you with contempt.
I am asking you to accept the principle of law that maybe you don’t understand and
you don’t want to believe exists. But a witness cannot testify as to what someone else
saw. Okay? And don’t ask anymore questions that are phrased that way. Okay?
DEFENSE COUNSEL: Judge, am I allowed to ask was his head facing the direction–
THE COURT: Earl, what is it you don’t understand about what I just said? You just
asked her, so her uncle saw the whole thing. What is it you don’t understand about
what’s wrong with that question?
DEFENSE COUNSEL: All right, Judge.
THE COURT: All right. We don’t need to go any further and then to come back at
me and say can I ask this or can I ask that. I’m not playing that game.
I’m telling you you’ve done it over and over again and I’m not going to stand for it
for one second longer.
She has been asked these questions. You don’t need to ask her any more questions.
The first question you got up and asked her on recross was did you ever scream. Do
you know how many times you asked that on original cross? Probably six or eight.
DEFENSE COUNSEL: And that was redirect.
THE COURT: I don’t care what they did on redirect. The point is do you understand
the basis for an objection, that a question has been asked and answered? That applies if
you have asked that question and it’s been answered on your original cross-examination.
Now, are you really telling me you don’t know that and you don’t understand that and
you don’t accept that? That if on recross you get up and ask the same question you asked
on your original cross, that the objection is asked and answered is not a valid objection.
Are you really trying to tell me that?
DEFENSE COUNSEL: Judge, they didn’t even voice an objection.
THE COURT: I know they didn’t. And I didn’t rule on an objection either. I’m just
telling you what you did and I’m asking whether you understand and accept the principle
of law that if you ask the question on cross and you go ahead and re-ask it on recross, the
objection asked and answered should be made and it should be sustained. Do you agree
with that?
DEFENSE COUNSEL: I would agree.
THE COURT: I would guess if we got the transcript of your cross, it would show that
you asked her if she ever screamed at least several times on your original cross.
My point is that question did not need to be asked, should not have been asked. An
objection should have been made. It should be sustained.
You are completely wasting this Court’s time and this jury’s time with that kind of
question and I don’t appreciate it.
It’s 7:00 o’clock at night. This jury thought they were going to get out of here long
before this.
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This examination of this witness has been far too long. You’ve gone over and over
everything you could possibly ask this witness, and you better bring it to a close real
quickly. Okay?
DEFENSE COUNSEL: Judge, am I permitted to ask her if her Uncle Hurtado’s face
was facing her and Alex Lopez when he opened up the door? If I’m not, so be it. That is
the question I want to ask.
THE COURT: Well, that’s not the question you asked.
DEFENSE COUNSEL: Okay.
THE COURT: And if you had asked that question, Earl, we wouldn’t be back here
and you know it. And the only reason we’re back here is because you’ve asked the same
kind of question I have told you probably six to eight times that you can’t ask what
someone else saw.
DEFENSE COUNSEL: Now I’m asking you, Judge, am I permitted–
THE COURT: I am not going to rule ahead of time because I will not know what
question you ask until the words come out of your mouth because you change from one
second to the next, you changed the question from hand to fingers, whatever. So, I’m not
going to rule ahead of time.
I know what a proper question is. If you ask a proper question that hasn’t been asked
and answered, I will allow the witness to answer it. It’s that simple. And that’s the way
it’s been since the very beginning.
DEFENSE COUNSEL: Fine, Judge.
THE COURT: But I am not going to wait for them to object. All right.
And I think the court–and I have case law that absolutely holds the court has the right
to sua sponte control the proceedings and interject and, in effect, make its own objection
if something that is being asked and answered as many times as so many of the questions
you’ve asked have been asked and answered. So, I’m not going to wait for them to
object. And I have a lot been butting in, but in the instances I haven’t, it’s because it’s
absolutely beyond–it has to be done to protect this jury from what you’re doing to them
with asking and re-asking and badgering and improper questions and no foundation for
conversations without a point, without any apparent prove-up plan because it’s not
impeaching in the form.
Attempting to lay the foundation to impeach is all wrong and unspecific. You know,
there is only one–I hope with your experience, you know, that in order to lay the
foundation to impeach a witness, you have to say didn’t you have a conversation with
such and such a person at such and such a place and time and isn’t it true in that
conversation you said X, Y, and Z. What did they ask you, what did you tell them? That’s
not right. That’s inappropriate. All of it is inappropriate.
You can’t just flounder around and ask about all of these out-of-court conversations.
There’s no purpose to them, if there’s no purpose to laying the foundation–
DEFENSE COUNSEL: Impeachment by omission. She is saying these things
happened. And if I ask her did you ever tell an officer–
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THE COURT: That’s what we’re talking about.
DEFENSE COUNSEL: I thought you said I didn’t lay a proper foundation.
THE COURT: You haven’t laid a proper foundation for all kinds of things you’ve
tried to do. Some things you’ve tried to do, you have laid the proper foundation and
you–of course, you’ve done it over and over and over again. Yes, you have. Over and
over and over again.
It’s five after 7:00 and it’s time to wrap this up. And we don’t have to be back here.
And the reason we’re back here is because for the final time I looked you in the eye in
front of this jury and said will you please not ask this witness any more questions about
what someone else saw. Isn’t that what happened? Don’t you agree that’s what
happened?
DEFENSE COUNSEL: Yes, it did, Judge.
THE COURT: And then two questions later you asked that question. How would you
feel right now if you were me? Wouldn’t you feel pretty much the same way that I do?
This guy will not listen to what I am at this point begging him not to do. Will you please
not do this, and without any hesitation whatsoever you go right ahead and you do it. I
have had it. I mean it, I have had it.
DEFENSE COUNSEL: All right. I’m asking the Court–
THE COURT: No, you’re not asking me anything. You’re going to go out there and
you’re going to finish this recross that doesn’t need to be done.”
¶ 70 Defendant now argues that the trial judge “lambasted” defense counsel in chambers for
repeatedly asking MS whether other people could see or hear certain events. The judge
correctly noted that he had admonished defense counsel and that defense counsel had ignored
him. The judge explained that he did not want to hold defense counsel in contempt and tried
to ascertain what it was that defense counsel did not understand. The court also explained to
defense counsel that he had continued to repeatedly ask questions and tried to ascertain if
defense counsel accepted the principle of law regarding the objection “asked and answered.”
The judge specifically commented upon the questions defense counsel posed regarding
whether MS had screamed. Despite defendant’s characterizations of the judge’s admonitions
as “dressings-down,” we believe the comments were entirely appropriate. The criticism,
contrary to defendant’s contentions, was neither “unwarranted” nor “inappropriate.”
Moreover, it was done outside the presence of the jury.
¶ 71 Defendant raises other discussions that took place in chambers. These sidebars were all
had outside of the presence of the jury and therefore could not have resulted in a biased jury.
As to the issue of whether they showed bias on the part of the judge himself, defendant has
already conceded that he is not raising that argument. Defendant has not raised any of these
alleged errors regarding the sidebars as freestanding errors. Thus, we need not further address
the in-chambers discussions.
¶ 72 Defendant further notes that, during cross-examination of MS, the court sustained 55
objections, and that 13 of these were raised sua sponte by the court. Our review of the record
shows that the majority of the rulings were correct and defendant does not raise them as
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freestanding errors. Nonetheless, defendant contends that “the trial court would often not
only state the basis for the ruling, but repeat the basis and criticize defense counsel’s
performance.”
¶ 73 The record shows that, after sustaining five of the State’s objections without comment,
the following occurred:
“DEFENSE COUNSEL: You are out on the porch. You don’t call, you don’t scream,
you don’t yell. You go to the same area where you say Alex was at–
THE COURT: No, we’re not doing this. We’re not summarizing. Okay. Stop. Second
time. Objection sustained. No more.”
¶ 74 After this ruling, and sustaining an additional two of the State’s objections without
comment, the court made the following sua sponte comment: “Okay. Now, you ask the
question and then you keep going, so that doesn’t work either. If you’re going to ask the
question, you’ve got to let her answer it.” Defense counsel responded: “Okay. I’m sorry.”
¶ 75 After sustaining two more of the State’s objections with no comments by the court to
defense counsel, the following colloquy occurred:
“DEFENSE COUNSEL: Can you describe how [defendant] appeared now that you
are looking at him just a few feet away?
MS: Can you repeat the question?
DEFENSE COUNSEL: Yeah. Can you describe how he appeared as you are looking
at this person a few feet away?
ASSISTANT STATE’S ATTORNEY: Objection.
THE COURT: Sustained. It’s a completely vague question.
DEFENSE COUNSEL: Can you describe his facial hair?
MS: No.
ASSISTANT STATE’S ATTORNEY: Objection.
DEFENSE COUNSEL: Can you describe if he was wearing glasses?
MS: No.
DEFENSE COUNSEL: Can you–
THE COURT: Sustained. These are asked and answered. She’s already answered
these questions. You’re badgering the witness.
DEFENSE COUNSEL: Did the police ever ask you to describe him?
ASSISTANT STATE’S ATTORNEY: Objection.
THE COURT: Overruled. She can answer.
MS: Can you repeat the question?
DEFENSE COUNSEL: Did the police ever ask you to describe the offender?
MS: Yes.
DEFENSE COUNSEL: Do you recall what you told them?
MS: Some things.
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DEFENSE COUNSEL: Did you ever tell them–
THE COURT: Sustained. Improper form.
DEFENSE COUNSEL: Did you ever say he had a mustache?
MS: No.
DEFENSE COUNSEL: Did you ever say he had glasses?
MS: No.
ASSISTANT STATE’S ATTORNEY: Objection.
THE COURT: Is there going to be some evidence offered that she did make these
statements?
DEFENSE COUNSEL: That she didn’t make these statements, Judge.
THE COURT: No. That she did make these statements.
DEFENSE COUNSEL: That she made a description, yes.
THE COURT: No. That she made the statements you just asked her if she made to
the police. The objection is sustained.”
The trial court’s comments were warranted. Although defendant now claims this was error
and argues that defense counsel was attempting to challenge MS’s identification of defendant
by eliciting testimony that, even close up, she did not see that he was wearing glasses,
defense counsel’s intention was entirely unclear because the questions asked were vague and
confusing.
¶ 76 The trial court then sustained approximately 12 objections with either no comment, or
an occasional brief comment including “asked and answered” or “no foundation.” Some of
these properly sustained objections were discussed earlier regarding defense counsel’s
continuing attempts to ask MS what someone else saw or heard.
¶ 77 The remainder of the sustained objections contain some court commentary that indicates
a certain level of frustration on the part of the trial court. Nonetheless, the commentary is
limited to explanations of what the defense counsel, in the court’s opinion, was doing
incorrectly. Moreover, in those instances where the trial court did comment regarding
defense counsel’s performance, each comment had a valid basis as the following shows:
“DEFENSE COUNSEL: Did you say he hurt you when he grabbed your arm and held
you with great force?
THE COURT: Did you say, you mean today when she testified?
DEFENSE COUNSEL: Yes, that’s what I’m asking judge.
THE COURT: Well, then ask it that way because otherwise at any time to whomever
did you say that.
Now, if you want to recommit her to her direct testimony or her cross where you’ve
already asked her this question, then fine. Say, did you say earlier when I asked you that
he held you so that he hurt you, fine. Ask it that way if that’s what you want to do to
recommit her, otherwise it’s asked and answered.”
These rulings did not constitute error.
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¶ 78 As the trial proceeded, however, the judge’s frustration with defense counsel became
somewhat more evident. MS testified that she did not remember the names of the two female
police officers who arrived 10 minutes after the incident. Later during cross-examination,
defense counsel attempted to elicit testimony from MS as to what she told the police officers,
purportedly to reveal either inconsistencies with, or omissions from, that which she testified
to at trial:
“DEFENSE COUNSEL: Did you ever say [defendant] literally rubbed your vagina
with his hand to any, any officers?
MS: Yes.
DEFENSE COUNSEL: Did you say that to the first officers, the two lady officers?
MS: I don’t remember.
DEFENSE COUNSEL: Well, did they ask you to tell them everything that happened?
MS: Not everything.
DEFENSE COUNSEL: Well, did they say to leave some stuff out?
ASSISTANT STATE’S ATTORNEY: Objection.
THE COURT: Sustained.
DEFENSE COUNSEL: What did they say to you when they arrived?
ASSISTANT STATE’S ATTORNEY: Objection.
THE COURT: Overruled.
MS: Can you repeat the question?
DEFENSE COUNSEL: What did those female officers say–
THE COURT: You know what, I’m going to sustain the objection. This is just too
loose and not specific enough.
DEFENSE COUNSEL: Well, you talked to the female officers ten minutes after–
THE COURT: You’ve got to name someone you’re calling to testify. If you’re
referring to a specific conversation, from now on you’ve got to use names.
DEFENSE COUNSEL: Okay. Do you know the names of those two lady officers?
THE COURT: She’s already testified she doesn’t.
DEFENSE COUNSEL: Okay.
THE COURT: If you’re saying–if you’ve got a witness who’s going to come in here
and testify about something, then you have to specifically ask her if she made a statement
to that person.
DEFENSE COUNSEL: Officer Stadler, star 13716, or Officer Ruiz-Oquendo, star
number 4907, did you ever talk to those individuals?
THE COURT: No, it’s got to be a person. Okay.
If you’re going to call a witness to testify that she made some statement to the
witness, then you have to ask her if she made that statement to the witness.
DEFENSE COUNSEL: All right. Judge, this is a report incorporated by two officers–
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THE COURT: Ask her the question. That’s not her problem or my problem. That’s
your problem.
DEFENSE COUNSEL: Judge, I don’t have a problem.
I’m just asking did you tell those two female officers who happen to be named
Officer Ruiz-Oquendo or Officer Stadler, that the defendant actually touched your vagina
with his hand?
THE COURT: Sustained. Asked and answered. And her answer was yes. And I have
it right in front of me in my notes. And if you want to go in the back, we’ll have the court
reporter read it back. Do you want to do that?
DEFENSE COUNSEL: No.
THE COURT: Okay. Fine.”
Defendant argues that these rulings constituted error because “the trial court repeatedly
criticized defense counsel before the jury for failing to comply with procedural and
evidentiary rules that did not exist.” Citing People v. Lewerenz, 24 Ill. 2d 295 (1962),
defendant contends that these admonitions were particularly prejudicial because the rulings
were incorrect and, therefore, the “unjustified criticism was particularly damaging.”
(Emphasis in original.)
¶ 79 Defendant argues that defense counsel was “entitled to inquire regarding [MS’s]
description of the attack to the police, as a description inconsistent with her trial testimony
would be a prior inconsistent statement, whether it added or omitted significant details.”
Nonetheless, before prior inconsistent statements may be admitted for impeachment, a proper
foundation must be laid on cross-examination. See, e.g., People v. Henry, 47 Ill. 2d 312, 321
(1970). A proper foundation typically directs the attention of the witness to the time, the
place, the person or persons to whom the statement was made, the other circumstances, and
the substance of the inconsistent statement. The purpose of laying the proper foundation for
impeachment by admission of prior inconsistent statement is to protect a witness against
unfair surprise and to provide the witness with an opportunity to explain the statement with
which he is confronted. Id.¶ 80 If there is nothing inconsistent between the trial testimony and the prior statement, the
court may properly prohibit the introduction of the prior statement. See, e.g., People v.
Galindo, 95 Ill. App. 3d 927 (1981) (foundation too general and inadequate where witness
was not apprised of, and reviewing court was unable to determine, the substance of the
alleged omission or the inconsistent statement or even if there was in fact an omission or the
inconsistent statement, defense counsel at trial stated only that “apparently” the witness did
not relate the same version of the shooting incident to the police officer at the scene, and
defendant’s brief referred to the omission as “allegedly” impeaching). Here, however, the
basis of the trial court’s ruling focused not on the substance of the statement but, rather, on
defense counsel’s failure to specify one particular officer by name. This was error.
¶ 81 The trial court erred in not permitting defense counsel to elicit the testimony because
defense counsel’s questions sufficiently apprised MS of the time, the place and the persons
to whom the statement was made. See People v. Henry, 47 Ill. 2d 312, 321-22 (1970)
(explaining that the conventional and formal method of establishing an adequate foundation
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for the introduction of prior inconsistent statements need not be rigidly applied where the
reasons for this rule–to “protect the witness against unfair surprise and to permit his
explanation of the prior statement”–are substantially satisfied). This particular ruling was
incorrect and, therefore, some of the comments to defense counsel were “unjustified” as
defendant claims. We note further that MS testified on redirect that she had different
conversations with different officers and did not remember each conversation she had with
each particular officer.
¶ 82 Defendant also asserts that “[t]he trial court also repeatedly criticized trial counsel for
attempting to refresh witness recollection on cross-examination, which the court appeared
to believe was forbidden by basic evidence law.” During cross-examination of Officer
Mullany, defense counsel attempted to refresh his recollection regarding what the defendant
was wearing as follows:
“DEFENSE COUNSEL: Is there anything in that report that refreshes your
recollection as to what the defendant was wearing when you arrested him?
MULLANY: Not when we arrested him. Just at–that he matched the description of
the prior flash message.
DEFENSE COUNSEL: And does that description that you say you heard match the
description you generated in your report?
ASSISTANT STATE’S ATTORNEY: Objection.
THE COURT: Sustained.
DEFENSE COUNSEL: Well does this say a black sleeveless shirt or a black T-shirt
in your report as the description of the offender?
ASSISTANT STATE’S ATTORNEY: Objection.
THE COURT: Sustained. This is all cross-examination. If you want to impeach him
you can impeach him. Otherwise ask another question. He’s not your witness. Refreshing
his recollection is inappropriate to begin with. If you want to impeach him go ahead and
impeach him.
Sustained.”
¶ 83 The State conceded during oral argument that the trial court erred when it prohibited
defense counsel from refreshing the recollection of a witness during cross-examination. As
long as the correct procedures are followed, a witness’s recollection may be refreshed during
cross examination. See, e.g., People v. Shatner, 174 Ill. 2d 133 (1996).
¶ 84 Defendant additionally notes that the court later sustained a sua sponte objection to
defense counsel’s attempt to refresh Detective Leal’s recollection. When defense counsel
sought to be heard at a sidebar, the court refused: “No. That’s just not the right procedure.”
Defendant now argues that the court’s refusal to hear argument was improper which, when
combined with the court’s unwarranted criticism of counsel’s “inappropriate” questions, gave
the jury the impression that the court was impatient with a defense counsel that did not know
basic rules of evidence.
¶ 85 Thus, we conclude that there was error here. Again, however, defendant does not raise
either of these errors as a freestanding error but instead argues that the trial court’s
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accompanying comments criticizing defense counsel, as well as the comments discussed
earlier, resulted in a biased jury and constituted plain error. Having concluded that there was
an error, we next consider whether this error was clear or obvious error under either prong
of the plain-error doctrine.
¶ 86 2. First prong of plain-error test
¶ 87 Defendant argues that the evidence here was closely balanced. He contends that the trial
court’s errors therefore constituted plain error under the first prong of the plain-error test.
¶ 88 Citing People v. Naylor, 229 Ill. 2d 584, 606-07 (2008), defendant asserts that the
evidence in this case was closely balanced because it involved a “credibility contest” between
uncorroborated testimony of State witnesses and defense witnesses. In Naylor, our supreme
court stated that the evidence there was closely balanced because it depended upon the
credible testimony of two police officers (that defendant sold drugs) and the credible
testimony of defendant that he was swept up in a drug raid. Naylor, however, is
distinguishable because there was no other evidence to corroborate or contradict either
version. Naylor does not stand for the proposition that evidence is “closely balanced”
whenever the defense version of events differs from the State’s version and the accounts are
“equally consistent with the physical evidence.” Here, there was evidence corroborating the
complaining witness’s version of events which included the testimony of her two uncles, as
well as the circumstantial evidence consisting of defendant’s car, which contained his pants,
being parked in the alley. Defendant’s entire version of events strained credulity.
¶ 89 According to defendant, he was afraid of gang members who were following him yet,
although he had a cell phone, he drove off the street, into an alley and, having been followed
by the “gang members,” stopped his car and got out of his car. He then ran from them into
a gangway where he “bumped” into someone, yet did not know if it was a woman or a man.
Defendant then ran, through various streets and alleys, even though nobody was chasing him.
He did not look for police. He then ran back to his car, and saw people in his car, so he ran
to a nearby truck driving school that he had attended even though he was supposedly
unfamiliar with this area. Once at the truck driving school, rather than call the police, his
father, or his wife, he called his workplace in Addison. He then asked the coworker to
borrow a car and drive at least 50 miles round trip, to pick him up and drive him to his car
which was within walking distance from where defendant was located. While waiting,
defendant claimed to have walked to the car several times even though his coworker, whom
he had asked to make this 50-mile journey, was en route.
¶ 90 Moreover, defendant’s own testimony corroborated, in part, the complaining witness’s
version because he admitted that he was the person present at the scene and that he did run
through the gangway. Although defendant claimed that he “bumped” into someone in the
gangway in the daylight hours, but was not sure if it was a male or a female, the jury
obviously found his testimony incredible. Thus, Naylor, which involved a defendant’s
credible version of events, is inapposite. See also People v. Anderson, 407 Ill. App. 3d 662,
672 (2011) (“Unlike the trial judge in Naylor, in the present case, the jury was not faced with
two equally credible versions of the events.”). The evidence here was not closely balanced.
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Thus, review of this forfeited issue is not warranted under the first prong of the plain-error
test.
¶ 91 3. Second prong of plain-error test
¶ 92 “Under the second prong of plain-error review, [p]rejudice to the defendant is presumed
because of the importance of the right involved, regardless of the strength of the evidence.
[Citation.]” (Emphasis omitted.) (Internal quotation marks omitted.) People v. Thompson,
238 Ill. 2d 598, 613-14 (2010). The Illinois Supreme Court has “equated the second prong
of plain-error review with structural error.” Id. (citing People v. Glasper, 234 Ill. 2d 173,
197-98 (2009)). “An error is typically designated as structural only if it necessarily renders
a criminal trial fundamentally unfair or an unreliable means of determining guilt or
innocence.” Thompson, 238 Ill. 2d at 609; see also People v. Cosmano, 2011 IL App (1st)
101196, ¶ 78 (“Error under the second prong of plain error analysis has been equated with
structural error, meaning that automatic reversal is only required where an error is deemed
to be a systemic error that serves to ‘erode the integrity of the judicial process and undermine
the fairness of the defendant’s trial.’ [Citation.]”). Thus, we now consider whether the trial
court’s erroneous evidentiary ruling and comments constituted error “so serious that it
affected the fairness of the defendant’s trial and challenged the integrity of the judicial
process.” People v. Sargent, 239 Ill. 2d at 189.
¶ 93 Defendant conceded during oral argument that he is not claiming actual bias on the part
of the trial judge himself. Moreover, the record contains no evidence of actual bias on the
part of the trial judge. Rather, the issue raised by defendant is whether the trial court’s
conduct, even if unbiased, was so inappropriate that it caused the jury to be biased against
him.
¶ 94 It is well settled that “ ‘a trial before a biased jury would constitute structural error.’ ”
Thompson, 238 Ill. 2d at 610 (quoting Glasper, 234 Ill. 2d at 200-01). A finding that a
defendant was tried by a biased jury would certainly satisfy the second prong of plain-error
review because it would affect his right to a fair trial and challenge the integrity of the
judicial process. Thompson, 238 Ill. 2d at 613.
¶ 95 Here, however, as in Thompson, defendant has not presented any evidence that the jury
was biased in this case. Id. at 614 (court “cannot presume the jury was biased simply because
the trial court erred in conducting the Rule 431(b) questioning”). Rather, as the State notes
“all of defendant’s claims of bias or prejudice are derivative claims[, i.e.,] he is not claiming
that the judge ever expressed bias or hostility towards him, towards his case, towards his
defense or towards his witnesses. Instead, his claim is that the judge expressed impatience
and hostility towards his attorney which in the minds of the jury then might have transformed
into bias against defendant.” (Emphasis in original.)
¶ 96 Although trial before a biased jury is structural error subject to automatic reversal, a trial
judge’s failure to restrain his frustration toward defense counsel does not necessarily result
in a biased jury. “A judge’s display of displeasure or irritation with an attorney’s behavior
is not necessarily evidence of judicial bias against the defendant or his counsel.” (Emphasis
added.) People v. Faria, 402 Ill. App. 3d 475, 482 (2010) (citing People v. Jackson, 205 Ill.
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2d 247, 277 (2001)). We are mindful, however, that “[t]he circuit court has a great influence
on jurors at all stages of trial and therefore must exercise restraint over [its] utterances and
refrain from unnecessary disparagement of issues. [Citations.]” (Internal quotation marks
omitted.) People v. White, 2011 IL App (1st) 092852, ¶ 83. “Jurors are quick to perceive any
leaning of the court and place great reliance upon what he says and does, so that his
statements and intimations are liable to have the force of evidence and be most damaging to
an accused.” People v. Lewerenz, 24 Ill. 2d 295, 301 (1962). “It is extremely difficult for a
reviewing court to read a jury’s subjective thoughts.” People v. Nitz, 219 Ill. 2d 400, 413
(2006); see also People v. Pankey, 58 Ill. App. 3d 924, 927 (1978) (same). The defendant
bears the burden of showing that he has been harmed by the judge’s remarks. See, e.g.,
People v. Snulligan, 204 Ill. App. 3d 110, 115 (1990). Defendant has not met his burden
under the second prong of the plain-error doctrine because he has not established that the trial
court committed an error that was “so serious that it affected the fairness of the defendant’s
trial and challenged the integrity of the judicial process.” People v. Sargent, 239 Ill. 2d at
189.
¶ 97 Although the trial court erred when it prohibited defense counsel from refreshing the
recollection of a witness during cross-examination, this error, even when combined with the
trial court’s remarks to defense counsel, was not a clear or obvious error under the second
prong of the plain-error doctrine. Additionally, our review of the record shows that the trial
court made no comments during the majority of the rulings that would have caused the jury
to be biased against defendant. The judge’s commentary neither expressed nor intimated any
opinion as to the merits of the defense evidence. See People v. Garrett, 276 Ill. App. 3d 702,
713 (1995) (“Reviewing the comments that the defendant cites, it is clear that the judge was
attempting to control the trial rather than disparage defense counsel. Each of the comments
had a valid basis and did not display a specific bias or prejudice against defense counsel.”).
The trial judge’s comments were most likely the result of the trial judge’s efforts to correct
defense counsel and “move the proceedings along when counsel asked redundant or unclear
questions.” Faria, 402 Ill. App. 3d at 482 (noting that although the court could have shown
a touch more patience when dealing with defense counsel, “a defendant is entitled to a fair
trial and not a perfect trial”). We disagree with defendant’s characterizations of the
comments as “replete with manifestations of hostility” directed toward defendant or his
counsel. While the trial judge may have become frustrated with defense counsel, there is no
showing that he was hostile. Despite the court’s commentary on the procedure it believed
defense counsel should follow while questioning witnesses, nothing the trial judge said
indicates that he had a low opinion of Mr. Lopez’s defense.
¶ 98 Defendant relies on several cases involving reversible errors that were not reviewed
pursuant to the plain-error doctrine. More importantly, however, the comments made in the
instant case, although evidencing frustration on the part of the trial judge, were not
comparable to the egregious comments at issue in the cases cited by defendant. Thus, even
if defendant had not forfeited the error, it would be harmless in view of the overwhelming
evidence against him.
¶ 99 In People v. Pressley, 160 Ill. App. 3d 858, 864-65 (1987), the court reversed and
remanded for a new trial. The court stated:
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“Certainly a trial judge is permitted a limited amount of impatience. But in a close case,
partial or biased remarks have a greater impact and increase the likelihood that the case
will be reversed. Some of the instances we have noted in isolation may have been proper,
or not reversible error, or had sufficient justification under the circumstances. However
taken together the remarks had the cumulative effect of depriving defendant of a fair
trial.” (Emphasis added.) Id. at 865.
The Pressley court explained: “It would unnecessarily lengthen this opinion to outline each
instance in which the court displayed impatience. The record is replete with manifestations
of hostility directed toward this defendant which necessarily denied him a fair trial.”
(Emphasis added.) Id. The court, however, did discuss some of those comments.
¶ 100 For example, the trial judge in Pressley “in an abrupt fashion prevented defense counsel
from making an offer of proof which may have justified his line of questioning.” Id. As the
Pressley court further noted: “The impatient attitude of the trial judge toward defense counsel
*** persisted throughout the trial. The trial judge repeatedly directed defense counsel to ‘tie
things up.’ While it is not improper for the trial judge to express impatience about undue
time being consumed, such remarks must be made with great caution or they may be
prejudicial error. [Citation.] Additionally, at one point in the trial the trial judge made the
following admonishment: ‘The Court: Sustained. He already said Mexican. If you would
listen to what your witness is saying you wouldn’t have to put him in a box. You are worse
then he is.’ ” Id. The trial judge’s conduct in the instant case is qualitatively different from
that which transpired in Pressley.
¶ 101 Defendant also cites People v. Eckert, 194 Ill. App. 3d 667 (1990), which is also
distinguishable from the instant case. Similar to Pressley, the defendant in Eckert was
unfairly prevented from making an offer of proof. When defense counsel persisted in his
attempt to proffer evidence, the following colloquy occurred:
“ ‘[DEFENSE COUNSEL]: May I please make an offer of proof?
THE COURT: No, you can’t approach the bench. I don’t want you up here.
[DEFENSE COUNSEL]: Can I make an offer of proof?
THE COURT: Turned off my hearing aid, can’t hear a word you are saying.’ ”
Eckert, 194 Ill. App. 3d at 670.
Later, with a different witness, the court allowed defense counsel to make an offer of proof,
but ordered that it be done outside the presence of the trial judge. The Eckert court reversed
and remanded, noting that counsel was allowed to make his offer of proof, but it was
“without the benefit of having the trial judge present” and only “after disparaging remarks
to defense counsel were made in the presence of the jury by the trial judge.” Id. at 675. Thus,
“[t]he court’s insistence that it would not listen to any offer of proof made by the defense
effectively prevented defense counsel from showing the trial judge the relevance of certain
evidence so that the judge could make an informed decision as to admissibility.” Id. The trial
court’s conduct in the instant case, although evidencing frustration with defense counsel,
bears no resemblance to the “antagonistic manner” and expressed hostility toward defense
counsel displayed by the trial judge in Eckert.
¶ 102 Here, the record shows that the majority of the judge’s comments were made in response
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to defense counsel’s continual, undeterred asking of inappropriate questions and committing
the same error over and over again. Many of the comments indicate that the trial judge was
attempting to help defense counsel elicit the testimony. While we disagree with some of the
circuit court’s rulings, in light of the evidence, the context in which they were made, and the
circumstances of the trial, defendant has failed to establish plain error because he has not
shown that either the trial judge’s comments, or incorrect rulings, caused the jury to be
biased against him. Defendant has failed to establish plain error.
¶ 103 II. Time Limits on Closing Argument
¶ 104 Defendant next argues that the trial court violated his right to due process of law by
indicating it would impose time limits on closing arguments and that it would allow the State
more time than it allowed defendant. He contends that this unequal time limit violated his
right to make a closing argument. Defendant notes that there is no Illinois precedent. The
State contends that “this issue is moot where the trial court never actually curtailed the
defense argument in any way” and “never cut defense counsel off or told him to wrap it up.”
¶ 105 In People v. Trolia, 107 Ill. App. 3d 487, 502 (1982), this court stated that a defendant
must demonstrate actual prejudice by the time limit imposed upon him. Although Trolia did
not involve unequal time limits, we believe that this principle applies here. Defendant has
failed to show how the unequal time allocation prejudiced him. He has failed to indicate what
argument he was not allowed to make or how the time limit affected those arguments that
he did make.
¶ 106 In People v. Joe, 207 Ill. App. 3d 1079 (1991), defendant’s time for closing argument
was erroneously cut short due to a clerk’s error in signaling defense counsel that his time for
argument was up after 25 minutes, rather than the previously agreed-upon 45 minutes. The
trial court denied defendant’s motion for a mistrial. On appeal, defendant argued that this
ruling was an abuse of discretion. This court determined that the defendant did not show how
he was prejudiced by the difference in argument. As the court noted:
“Defense counsel did not request additional time, and the record reveals that he did
address most of the relevant issues in the trial. Further, defendant’s brief is devoid of any
important points he wished to make but did not have the opportunity to do so because of
the time limitation.” Id. at 1085.
Therefore, the court held that the trial court’s denial of the motion for a mistrial was not an
abuse of discretion.
¶ 107 Similarly, here, although defendant complains generally about the disparity in the time
limits, he has failed to state that he was unable to address the relevant issues or argue an
important point. Although by our opinion we do not condone the imposition of unequal time
limits on defense and the State, in this particular case, defendant has failed to show that the
trial court’s decision to do so deprived him of a fair trial.
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¶ 108 III. State’s Comments During Closing Argument
¶ 109 Defendant next argues that his conviction should be reversed because the State made
improper comments during closing argument regarding the credibility of witnesses. A
defendant is entitled to a fair trial free from prejudicial comments by the prosecution. People
v. Burney, 2011 IL App (4th) 100343.
¶ 110 Defendant concedes that defense counsel did not object and that any error is forfeited,
but again argues that this court should review the error as plain error because the instant case
was a “credibility contest” and the evidence was therefore closely balanced. We have already
noted that the evidence was not closely balanced. Therefore, defendant has failed to show
that the State’s comments during closing argument were plain error entitling him to reversal
of his conviction.
¶ 111 Defendant additionally argues that this court must vacate his conviction to redress the
denial of his right to effective counsel. See Strickland v. Washington, 466 U.S. 668 (1984).
To prevail on a claim of ineffective assistance of counsel, a defendant must show that
counsel’s performance was deficient and prejudice resulting from the alleged deficiency in
counsel’s performance. Id. at 687. “Because a defendant’s failure to satisfy either part of the
Strickland test will defeat a claim of ineffective assistance, a court is not required to address
both components of the inquiry if the defendant makes an insufficient showing on one.
[Citation.]” (Internal quotation marks omitted.) People v. Edwards, 195 Ill. 2d 142, 163
(2001). Thus, we “ ‘need not determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged deficiencies.’
[Citation.]” Id.¶ 112 Defendant argues that “[g]iven the closely balanced evidence [in this case] absent the
State’s improper argument, there is a reasonable probability that the jury would have
resolved the credibility contest between the [State] and defense witnesses differently and the
trial would have had a different outcome.” We disagree. We have already concluded that the
evidence in this case was not closely balanced and was instead overwhelming. Thus,
defendant cannot demonstrate that his counsel’s failure to object prejudiced the outcome of
his trial, as required by the Strickland test. See People v. Glasper, 234 Ill. 2d 173, 215-16
(2009).
¶ 113 CONCLUSION
¶ 114 In accordance with the foregoing, we conclude that the defendant has failed to show that
he was deprived of a fair trial by the judge’s comments where the evidence was not closely
balanced and has failed to show the jury was biased against him. Defendant failed to show
that the trial court’s decision to allow the State more time for closing argument than the time
allowed defendant violated his constitutional right to make a defense. Additionally,
defendant has failed to show that the prosecutor’s comments during closing argument were
plain error that affected the verdict where the evidence against defendant was overwhelming.
The judgment of the circuit court of Cook County is affirmed.
¶ 115 Affirmed.
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