People v. Faria , 402 Ill. App. 3d 475 ( 2010 )

SECOND DIVISION
June 22, 2010
No. 1-09-0131
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. )
)
CYNTHIA FARIA, )
)
Defendant-Appellant. ) Honorable Bertina E.
) Lampkin,
) Judge Presiding.
JUSTICE KARNEZIS delivered the opinion of the court:
Following a bench trial, defendant Cynthia Faria was found guilty of possession
of a stolen motor vehicle (625 ILCS 5/4-103(a)(1) (West 2008)) and was sentenced to a
term of six years' imprisonment, to be followed by a two-year period of mandatory
supervised release. On appeal, defendant contends she was denied the right to a fair
trial because the trial court: (1) limited defense counsel's ability to cross-examine the
State's witnesses and advocated for the State by taking over the cross-examination of
the State's witnesses; (2) demonstrated bias against defense counsel that evidenced a
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prejudgment of defendant's guilt; and (3) denied her right to making a closing argument
by interrupting and challenging defense counsel's remarks. For the following reasons,
we affirm the judgment of the trial court.
The record indicates that on January 14, 2008, at about 5:30 a.m., the victim's
car, a black 1989 BMW, was stolen. The victim, Rocio Escamilla Cruz, spoke only
limited English and testified through an interpreter. Cruz stated that she had just
parked her car outside a bakery located in Chicago and had left the car running while
she went inside. She also left her purse in the car. As Cruz entered the bakery, she
saw a man and a woman standing on the sidewalk. When she exited the bakery, her
car was missing and the man and woman were gone. Later that day, she and a friend
drove around looking for her car and saw it parked with two individuals inside. Cruz
called 9-1-1 and flagged down a sheriff's car that happened to be passing by. Deputy
Sheriff Ernesto Leon testified that he approached Cruz's car and detained defendant as
defendant exited the car. Chicago police officers also responded to the scene and
arrested defendant. Cruz's identification card and car keys were found in defendant's
coat pocket. Cruz identified defendant as the woman she had seen in front of the
bakery that morning. Chicago police officer Susana Lacasa testified that after
defendant was arrested and given Miranda warnings, she asked defendant if defendant
knew the car was stolen. Defendant told her, "Yes, I knew but was - - was not me the
one who took the car from the bakery. It was my friend Eric. I was with him but I knew
the car was stolen." When the officer asked defendant if she knew that the car's radio
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was missing, defendant replied, "Yeah. Eric took it. Eric took the radio to sell it, to sell
it in [sic] the west side of Chicago." After the close of evidence, the trial court found
defendant guilty. Defendant now appeals.
On appeal, defendant raises several issues regarding the propriety of the trial
court's comments and interjections during pretrial and trial proceedings. She maintains
that because of the court's actions she was denied the right to a fair trial.
Initially, we note that defense counsel neither objected to the court's actions, neither at
trial nor in a posttrial motion. Therefore, defendant's contentions are forfeited. See
People v. Herron, 215 Ill. 2d 167, 175 (2005) (a defendant forfeits review of errors
unless she makes an objection during trial and raises the issue in a posttrial motion).
Defendant asks this court to review her claim for two different reasons. First,
she argues that we should relax the forfeiture rule because the error concerns the trial
court's conduct. Second, she argues we should consider the error under the second
prong of the plain error exception because the error was so serious she was denied a
fair trial.
Our supreme court has recently discussed forfeiture and the plain error doctrine
in People v. McLaurin, 235 Ill. 2d 478 (2009). In McLaurin, the court first noted that the
application of the forfeiture rule is less rigid where the basis for the objection is the trial
judge's conduct, citing to People v. Kliner, 185 Ill. 2d 81, 161 (1998), and People v.
Sprinkle, 27 Ill. 2d 398 (1963). However, courts generally only relax application of the
forfeiture rule in the "most compelling of situations," such as when a trial judge makes
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inappropriate remarks to the jury or in cases involving capital punishment. McLaurin,
235 Ill. 2d at 488. In McLaurin, the court determined that the defendant had not
presented an extraordinary or compelling reason to relax the forfeiture rule because the
defendant did not claim "that the trial court overstepped its authority in the presence of
the jury" or that counsel's objection to the trial court's conduct "'would have fallen on
deaf ears.'" McLaurin, 235 Ill. 2d at 488.
Here, as in McLaurin, defendant has not established that an extraordinary or
compelling reason exists to relax application of the forfeiture rule. First, defendant's
trial was a bench trial and not a jury trial. Therefore, there was no jury to hear or be
influenced by the court's remarks. Had this been a jury trial, we may well have reached
a different decision. Second, the record does not show that defendant's objections
would have fallen on deaf ears. The trial court neither acted in defense counsel's
absence nor prevented defense counsel from making an objection. We decline to relax
the forfeiture rule in this case.
We next examine defendant's contentions pursuant to the plain error doctrine.
Plain error applies to a forfeited error affecting the substantial rights of a defendant
when: (1) the evidence in a case is so closely balanced that the guilty verdict may have
resulted from the error and not the evidence; or (2) the error is so serious that the
defendant was denied a substantial right, and thus a fair trial. Herron, 215 Ill. 2d at
178-79. To establish the first prong of plain error, the defendant must show both that
there was plain error and that the evidence was so closely balanced that the error
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alone severely threatened to tip the scales of justice against him. Herron, 215 Ill. 2d at
187. To establish the second prong of plain error, defendant must establish that the
error was so serious that it affected the fairness of the defendant's trial and challenged
the integrity of the judicial process. Herron, 215 Ill. 2d at 187. Defendant has the
burden of persuasion of establishing plain error. People v. Naylor, 229 Ill. 2d 584, 593
(2008).
We first note that defendant would not be able to establish plain error under the
first prong of the plain error analysis because the evidence was not closely balanced.
The evidence presented at trial established that defendant was found sitting in the
victim's car and made an inculpatory statement that she knew the car had been stolen.
Needless to say, this was not a close case.
With respect to the second prong of plain error, we must first consider whether
defendant established that a clear or obvious error occurred. Defendant first contends
the trial court limited defense counsel's ability to cross-examine the State's witnesses
and advocated for the State by taking over counsel's cross-examination. Specifically,
defendant argues the court limited counsel's ability to cross-examine all three of the
State's witnesses; Cruz, Deputy Sheriff Leon and Officer Lacasa.
A defendant's right to cross-examine a witness concerning possible biases,
prejudices, or ulterior motives is protected by both the federal and state constitutions.
People v. Ramey, 152 Ill. 2d 41, 67 (1992). The right to confront adverse witnesses
cannot be denied by the trial court, but the court is granted latitude in certain instances.
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People v. Nutall, 312 Ill. App. 3d 620, 627 (2000). For example, the court may interject
to avoid repetitive or unduly harassing interrogation. Nutall, 312 Ill. App. 3d at 627.
Furthermore, a trial court is justified in questioning witnesses when the court's purpose
is to clarify issues. People v. Heiman, 286 Ill. App. 3d 102, 115 (1996). This flows in
conjunction with the trial court's responsibility to achieve prompt and convenient
dispatch of court proceedings. People v. Thigpen, 306 Ill. App. 3d 29, 40 (1999). Also,
the trial court's latitude to question witnesses on material issues is enhanced in the
context of a bench trial because the danger of prejudice to the defendant is lessened.
People v. Palmer, 27 Ill. 2d 311, 314-15 (1963). However, the court must always
remain impartial and cannot assume the role of an advocate. People v. Cofield, 9 Ill.
App. 3d 1048, 1051 (1973).
Defendant points to numerous specific instances of the court interrupting his
cross-examination of Cruz. We highlight a few of the instances below.
"MR. DOUGLASS [defense counsel]: When you rode by at that
time, you couldn't see any faces in the car, correct?
MS. CRUZ: The one to this side I could see.
Q. What side?
THE COURT: What side of what?
A. The left side.
MR. DOUGLASS: What side of what?
THE COURT: Just, Ma'am, because I can't stand the way you do
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this Mr. Douglass, it's going to make me scream. Ma'am, you said you
could see somebody in the car. What seat were they sitting in? The face
you could see, what seat was the person sitting in?"
When defense counsel was attempting to impeach Cruz, the following colloquy
occurred.
"MR. DOUGLASS: When you remember testifying - -
THE COURT: It's not when you remember testifying. Ask her the
question and the answer that you're challenging.
MR. DOUGLASS: Okay. Let me ask this question first, Judge.
Q. Do you remember when you spoke in court that in court did you
raise your hand to take an oath and swear to tell the truth?
A. Yes.
Q. Just like you did today, right?
THE COURT: She doesn't have to go over that. She said she rose
her hand.
MR. DOUGLASS: I'll move on.
THE COURT: Mr. Douglass, you just waste time and it's
unbelievable.
***
MR. DOUGLASS: Judge, I don't think that answer is responsive to
my question. I'd ask that the court ask her to answer my question.
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THE COURT: I don't think she understands because it's a
language problem and you're not trying to make it easier. Ma'am - -
MR. DOUGLASS: Judge, you want to see the transcript?
THE COURT: I don't need to see it. I need to ask the question - -
MR. DOUGLASS: Okay.
THE COURT: - - of somebody who speaks a different language as
you know she does. Ma'am, he's not asking you what you saw at the
time. He's asking you when you testified, when somebody posed a
question to you, did you answer it the way that he is saying you answered
it. And the question is were you asked 'and you didn't see anyone's faces
then, did you' and your answer was 'no.' Is that what you said?
A. Yes.
THE COURT: Okay. You can go on."
Defendant also cites to several pages of the record in which the trial court made
various interjections when defense counsel was cross-examining Deputy Sheriff Leon
and Officer Lacasa. For example, during Deputy Sheriff Leon's cross-examination,
when defense counsel misstated Deputy Sheriff Leon's testimony, the court interrupted
counsel stating, "[w]ell, don't say something he hasn't said. I'm listening. I can't stand
it."
Additionally, during Officer Lacasa's cross-examination, the court interrupted
defense counsel numerous times when his questions were repetitive. For example, the
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court stated, "[n]o. We will not ask that again. You've asked it now three times." The
court later commented to counsel, "[y]ou're taking this inch by inch, step by step,
second by second." Also, at the conclusion of Officer Lacasa's testimony, the court
noted that the officer spoke with an "exceedingly strong accent," did not quite speak in
full sentences and it was clear that English was not her first language.
Here, the record reflects that the trial court's numerous interjections of defense
counsel's cross-examination of the State's witnesses was for the purpose of clarification
and moving the proceedings along. It was especially important to avoid confusion
when Cruz and Officer Lacasa testified since Cruz was testifying through an interpreter
and Officer Lacasa was not fully proficient in English. Also, it was important for the
court to correct defense counsel's misstatement of Deputy Sheriff Leon's testimony.
We do not find that the court limited defense counsel's ability to cross-examine the
State's witnesses or that the court's actions rose to the level of becoming an advocate
for the State.
Next, defendant contends the trial court's bias toward defense counsel caused
the court to pre-judge defendant's guilt. Defendant points to the court's following
pretrial remarks to counsel.
"THE COURT: Mr. Douglass, I am going to have your supervisor
down here, because I'm making a record. I think every case that you
have had set for the last two months for trial, you have not had the
witness here. They have not been served. I mean, it could not
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continually be somebody else's error. Just five minutes ago, I had a case
here with seven witnesses.
MR. DOUGLASS: Judge, I'm not denying that.
THE COURT: Now on this one, you say seven days before trial,
well, first you shouldn't be issuing a subpoena seven days before trial.
This case was set May 15th for trial. You had 50 days or so to subpoena
the witness. You don't wait seven days before trial to subpoena a witness
and not follow through on it. I am not tolerating this any longer. You all
can step away. I need a supervisor.
***
And it's not the investigator's fault, it's Mr. Douglass, for giving the
investigator a request seven days before jury trial is set when he had a
month and a half to do so."
As a result, the court had to postpone the trial until the next day in an attempt to
allow defense counsel to bring in the witness to testify in defendant's defense.
Ultimately, however, the witness was unavailable and did not testify.
Defendant also points to the court's numerous remarks to defense counsel
throughout trial as evidence of the court's bias.
"MR. DOUGLASS: That person you've just described and the
woman you just described - -
THE COURT: She didn't describe a woman. She just described a
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man.
MR. DOUGLASS: I'm sorry. You're right, Judge.
THE COURT: I know. And don't even start. Don't do that.
MR. DOUGLASS: Okay.
THE COURT: Okay. There's a language problem clearly so don't
try to confuse by putting different things together. Don't do that."
Defendant also notes the court's following remarks at trial, "[y]ou may not make
a novel out of a question"; "[y]ou're taking forever to ask a simple question"; "[y]ou're
just redundant"; and "don't go over these useless questions."
Defendant next points to the court's interruptions of defense counsel's closing
argument as further evidence of the court's prejudgment of defendant's guilt. Defense
counsel was pointing out discrepancies in the State's witnesses' testimony, commenting
that it did not make sense, when the court responded, "it does to me."
Defendant also refers to the following colloquy.
"MR. DOUGLASS: And I'll finish. We believe that there is
reasonable doubt, that the State has not met their burden on each and
every element of this case. We ask that you find [defendant] not guilty of
this crime.
THE COURT: Okay. I would normally let you argue, [defense
counsel], but I can't stand it so I have to actually go on. The State does
not have to prove the plate number. The State does not have to prove the
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VIN number. The State has to prove that the defendant possessed a car
knowing that it was stolen. They have proved that she possessed a car
knowing that it was stolen."
A trial judge is presumed to be impartial, and the burden of overcoming this
presumption rests on the party making the charge of prejudice. Eychaner v. Gross, 202
Ill. 2d 228, 280 (2002). Allegations of judicial bias or prejudice must be viewed in
context and should be evaluated in terms of the trial judge's specific reaction to the
events taking place. People v. Jackson, 205 Ill. 2d 247, 277 (2001). 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. Jackson, 205 Ill. 2d at 277.
Here, when the trial court's comments are viewed within the context they were
made, they do not evidence a bias or prejudice against defense counsel. If anything,
they show the trial court's impatience with defense counsel's lack of preparedness for
trial regarding the subpoena, the court's attempt to correct defense counsel's
misstatement of the evidence and the court's attempt to move the proceedings along
when counsel asked redundant or unclear questions. This showing of impatience, with
nothing more, does not lead this court to conclude that the trial court was biased
against defense counsel or defendant. Perhaps the court could have shown a touch
more patience when dealing with defense counsel; however, a defendant is entitled to
a fair trial and not a perfect trial. Defendant's trial may not have been perfect, but it
was fair. Therefore, we find that defendant has not overcome her burden of
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challenging the court's presumption of impartiality.
Lastly, defendant contends she was denied the right to a fair trial when the trial
court limited defense counsel's closing argument by interrupting and challenging
counsel's remarks.
Specifically, the trial court challenged defense counsel's argument that it did not
make sense that Deputy Sheriff Leon would turn over defendant's arrest to the Chicago
police department rather than make the arrest himself. The court commented that it
made sense to her because in her experience it was rare that a sheriff made an arrest
when the Chicago police department was also involved. Defense counsel further
argued that the State had not proven defendant guilty because the State failed to prove
that the vehicle identification number (VIN) from the recovered car matched the victim's
car. The court commented both before and after counsel concluded his argument that
the State did not have to prove the VIN and the victim's testimony that the recovered
car was her car was sufficient. Defense counsel concluded his closing argument by
stating that the State had not proven defendant guilty beyond a reasonable doubt.
A defendant has a constitutional right to present a closing argument. Herring v.
New York, 422 U.S. 853, 45 L. Ed. 2d 593, 95 S. Ct. 2550 (1975). However, the trial
court has broad discretion in regards to limiting the argument. Herring, 422 U.S. at
862-65, 45 L. Ed. 2d at 600-02, 95 S. Ct. at 2555-57. Although the closing argument is
not evidence, the trial court has a duty to be attentive, patient, and impartial. People v.
Smith, 205 Ill. App. 3d 153, 157 (1990).
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Here, defense counsel presented a full closing argument to the court. Although
his remarks were challenged by the court, he was permitted to argue his theory of the
case to the court. He was neither given a time limit nor pressured by the court to finish
prematurely. Counsel finished his argument by stating that the State had not proven
each element of the charged offense beyond a reasonable doubt and asked the court
to find defendant not guilty.
We are not persuaded by defendant's reliance on People v. Heiman, 286 Ill.
App. 3d 102 (1996), and People v. Stevens, 338 Ill. App. 3d 806 (2003). In Heiman,
the cause was reversed and remanded for a new trial because the court made
"excessive and exaggerated derogatory" comments about the defendant during closing
argument as well as negative comments about a defense witness prior to and after the
witness's cross-examination. Heiman, 286 Ill. App. 3d at 112. This court found on
appeal that the trial court's 40 to 50 interruptions and arguments with defense counsel
during closing argument indicated that the trial court had already decided the case and
was not interested in any argument from the defense. Heiman, 286 Ill. App. 3d at 112.
In Stevens, the trial court repeatedly interrupted defense counsel, exhibited impatience
by telling counsel he had two minutes left to argue and then immediately telling counsel
he had overrun his time, and showed a prejudgment of the case by remarking before
counsel concluded that the court was convinced the State had proven the defendant
guilty. Stevens, 338 Ill. App. 3d at 810. Unlike in Heiman and Stevens, the trial court
here did not make derogatory comments about defendant, did not cut short defense
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counsel's argument with a time limitation and did not show a prejudgment of the case
before counsel concluded his argument.
For the foregoing reasons, we find that no clear or obvious error occurred.
Therefore, defendant has failed to meet his burden of establishing plain error.
Defendant's claims are forfeited.
Accordingly, we affirm the judgment of the trial court.
Affirmed.
HOFFMAN and THEIS, JJ., concur.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
CYNTHIA FARIA,
Defendant-Appellant.
No. 1-09-0131
Appellate Court of Illinois
First District, Second Division
June 22, 2010
JUSTICE KARNEZIS delivered the opinion of the court.
HOFFMAN and THEIS, JJ., concur.
Appeal from the Circuit Court of Cook County.
The Honorable Bertina E. Lampkin, Judge Presiding.
For APPELLANT, DePaul University Legal Clinic, Chicago, IL (Professor Andrea D.
Lyon, Associate Dean for Clinical Programs, and Frank Cesarone, law student)
For APPELLEE, Anita Alvarez, State's Attorney of Cook County (Alan J. Spellberg,
Tasha-Marie Kelly, Jacqueline James, Assistant State's Attorneys, of counsel).
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