*1 cline to section 102 of the IMDMA to for a interpret provide penalty against mitigate damages one of the for failure to where nei- parties ther party acted in a manner the amicable settlement promoted which of the matter.
Affirmed in part, reversed and remanded in part.
LORENZ, P.J.,* GORDON, J., concur.
THE THE ILLINOIS, PEOPLE OF STATEOF Plaintiff-Appellee, v. WILLIAMS,
LESLIE Defendant-Appellant. (6th First Division) District No. 1 - 88-0032 Opinion February filed 1991. * participated Justice Michel A. Coccia in this but has since recused himself. designated Justice panel Francis S. Lorenz was then as the third member argument
has tapes. read the briefs and listened to the oral
LaPORTA, J., dissenting.
EGAN, J., specially concurring. *4 Defender, Tietz, Stone, (Karen Assist- Randolph Chicago E. N. Public Defender, counsel), ant for appellant. Public Goldfarb, (Renee James E. Chicago Attorney, of O’Malley, John State’s counsel), Attorneys, of State’s M. Assistant Fitzgerald, Daly, and Noreen for the People. opinion delivered the JUSTICE RAKOWSKI
PRESIDING court: trial, found guilty Leslie Williams was jury
Following term to a of 40 of murder and armed He was sentenced robbery. robbery, and seven for armed sentences years years murder tried simultane- run Codefendant was concurrently. Weatherly Robert raised on trial and not The issues ously guilty. appeal a bench found a fair trial when the State (1) are: defendant was denied whether showed life and death murder scene of his photographs witness sister reaction in the jury; which elicited emotional counsel (2) judge’s preju- whether the trial toward defense hostility case; the rebuttal against (3) diced the defendant’s whether testi- fingerprint prejudicial examiner was mony improper guilt defendant; (4) prove whether State failed be- doubt; 40-year whether defendant’s sen- yond (5) reasonable tence excessive. was testified for the State that he was the brother of Triplett
Edward victim, Torry. spoke Overzenia He last with the victim the eve- he contact ning November 1986. When was unable to her he went to her telephone throughout day, apartment, next which South Michigan Chicago. Triplett located at 7756 Avenue in When arrived at he found the door unlocked. Inside the apartment, found his apartment doorway he sister between the din- lying not ing room and covered with dried blood. She was breath- bathroom knife ing, body. and there was a under her partially Trip- which was lett also noted that was off the hook and that telephone in disarray. inspection, further he determined that apartment On sets, jewelry money stereo were miss- equipment, two television ing. Triplett then shown a series of of the victim as photographs after Trip- well as condition the incident. When apartment lett he “Oh God.” He then iden- replied my saw the first photograph, At defense tified the as that of his sister. coun- photograph point, stipulate sel court order State to requested Defense counsel photographs. witness sister in identify could he had shown but stated photographs been acknowledged previous stipulate that he not made offer because did had to this witness. The know the State would show the photographs *5 finding court denied defense counsel’s it The court request, untimely. also it stipulate stated could not order either party any- thing. Triplett viewed the remainder of the and stated photographs that reflected the scene of the crime as he saw it on accurately November 1986. Defense counsel did not cross-examine the wit- ness, but counsel for codefendant did cross-examine him in the pres- ence of the jury. Lou Paul testified that her was located across
Mary apartment 29, 1986, evening the hall from the victim. some On November ring. time after 11 Paul stated that she heard a door She p.m., bell “Frances,” then heard a male voice the words “son” and “New say York.” The door closed and she heard else. nothing
Denise Saunders testified that she lived on the first floor of the building same and that her was that of the apartment directly below 29, 1986, victim. On November she arrived home at around 10:30 p.m. thereafter, rang apartment a man the bell of her and asked Shortly (victim’s nickname). for “Zek” She told him that no one that name in that around apartment. lived Saunders further testified one later, on her Haynes hour a friend of hers named Pamela knocked a man dressed in opened Haynes door. When she the door for she saw later, hat 30 minutes jeans, jacket proceed up and stairs. About heard a loud noise which to come appeared Saunders stated she from the her. apartment directly above she at the entrance of
Pamela testified that when arrived Haynes Both he coming she saw a man down the inside stair building way. man who was in the the door for her. She hallway opened another the odor of alcohol as she walked them. past stated that she detected the men came As walked to Saunders’ one of Haynes up apartment, her continued to the second floor. She up the stairs behind up that he and a she was wearing jacket cap. stated black While noise in the Saunders’ she heard and then a loud apartment, fighting her. apartment directly above of the Pink
Bertha testified that she was owner Robinson Chicago. She stated that victim Lounge on 79th Street Lady was also em- her in and that a Frances Williams had worked for stated that time She further period. her the same ployed by At 7:30 on No- p.m. had a son named Leslie. around Frances Williams a man Robin- 29, 1986, lounge arrived at the with vember was at the stated that defendant identify. son could Robinson not there when she re- when she left but was lounge p.m. at 9:30 turned at 3 a.m. 30, 1986, George
Detective Karl testified that on he November assigned investigate victim’s murder. When arrived crime, he up the scene of the found the victim face on the floor. lying sash-type There was a cord her neck stab multiple around wounds to her neck. After with some of the residents of the speaking build- ing, Karl looked in the victim’s personal phone book for name of listings Frances’ son. He found two for Frances One Williams. living listed as in Calumet and one was listed at 8041 South City, time, State Street Chicago. Sergeant Around this Jones arrived. He stated that he had not but assigned per- been to the case was a sonal friend He informed Karl victim victim. had worked with a Frances Lady Lounge. Williams at the Pink Karl then *6 went to City, Calumet interviewed Frances Williams and determined sons, Leslie, that she had three Lavane and Eugene, but did know later, where at time. were Several Karl a days received ra- dio communication that defendant was at the police station with Ser- geant station, Jones. Karl arrived at the he and and Detectives Ryan, Plenta and spoke Pesavento with defendant. Defendant told the offi- cers that went to the victim’s apartment building with Robert Weatherly. car, While Weatherly waited in the defendant went to up the apartment to try sell the telephone victim answering equip- ment. this During conversation, defendant referred to the victim as “Zekee.” After this conversation, again Sergeant defendant spoke Jones for several minutes. Defendant then had a second conversation with the other officers and made the “I statement would not kill that woman, she was like a mother to me.” He then told the officers that when he knocked on the door of the apartment, victim’s a female Puerto opened Rican the door. In the apartment, there were also two male Puerto Ricans standing by the victim who was on the lying floor. One the men holding shotgun. a gun He pointed defend- ant and threatened if shoot him anyone defendant told what he conversation, saw. After defendant was arrested and charged with the victim’s murder.
Murial Eason testified that 1986, November and December defendant lived with her her two children at 3565 South Prince- ton in She Chicago. 30, 1986, stated that on November defendant re- turned home sometime in the morning. police Several officers searched Eason’s home on December 1986. also asked if They defendant lived there and if any clothing of his apartment. was in the sweater, Eason them gave shirt and trousers which she identified in However, court. she was to identify unable a hat the presented State to her as one that defendant wore. Eason also stated that she did not her apartment whether the taken from was what clothing
know defendant when he returned No- wearing apartment 30,1986. vember that he was Angelo present
Detective Pesavento testified Eason and the one to the prosecutor prior conversation between week trial, say wearing and that he heard Eason that defendant was morning came home on the clothing police recovered when he 30,1990. of November field expert serology
Pamela Fish testified as an The matter of her was blood sam- electrophoresis. subject defendant, taken from the knife found near victim’s ples body that, dining from the room floor of the She stated apartment. victim’s sample on her of blood from defendant was differ- analysis, based from the sample ent than the from the room floor. sample dining sample different from but consistent was also weapon Fish then testified that she dining with the on the room floor. blood lining pair on the of the left pocket found bloodstain inside belonging trousers defendant. She stated the bloodstain was defendant with the sam- sample different than the from but consistent floor. ple dining from the room testified that the died from multi- pathologist
The forensic victim in the face and neck area. stab wounds ple that he with defendant’s Sergeant spoke Jones testified Walter On De- give up. her to have her son Leslie himself mother and asked go to the agreed po- contacted him and cember riding to the with him. defendant was station lice station with When on November 29 or Jones, to the victim’s going apartment he denied *7 However, had a conversation with private 1986. when Jones station, defendant first stated that some police defendant at the and the victim threatened shotguns Puerto Ricans with had killed responded he owed them When Jones money. defendant because him, crying, dropped like “bullshit” to defendant started this sounded like a “I mean to do it. She was his head in his hands and said didn’t cross-examination, acknowledged that this me.” Jones mother to On not any police reports. conversation crime, clothing of the scene The photographs into evidence. were then admitted samples and the blood Phillip the defense was Officer testify to only witness finger- compared examiner. He Montalbano, a latent fingerprint at the scene with those found of defendant palm prints and prints were different prints that defendant’s His conclusion was the crime. cross-examination, he stated that On at the scene. those found than on touching whether leave a is the amount print dependant will secreted, surface, temperature sweat the smoothness and wearing whether the is person gloves. rebuttal,
In offered the of Officer Thomas the State examiner, that no were Gimley, fingerprint prints latent who stated on the knife near the Defense ob- body. found found victim’s counsel jected the rebuttal evidence. fair
Defendant contends that he was denied a trial when the State showed the life and death witness of the murder scene photographs jury’s because witness’ reaction focused attention sympa- thy victim, for the as opposed evaluating evidence defend- ant’s guilt. brother, Triplett, The victim’s Edward called State as a life leading and death witness. He testified the events up to and of his including discovery body. sister’s At that point, the State Triplett photograph body showed his sister’s at the crime, scene of the “Oh God. This responded he is sister.” my my At point, this defense counsel stipulate offered witness could his sister from the that he identify photographs so would be spared However, undue grief. the State did accept defense offer, counsel’s and the court stated that it could not force the State to make the stipulation. Triplett then identified remaining photo- graphs as those of his body sister’s and the murder he scene as saw it on November 1986. In response question State, to this Triplett “Yes. replied I’ll never it.” In forget arguing issue, defendant does not claim that the admission the photographs error, but that error was when the committed State showed them to the victim’s brother which elicited an emotional reaction front of the jury.
The State permitted introduce full proof of the crime charged indictment and to call life and death witnesses to iden tify the victim and the fact of her death. v. Bost (People 80 Ill. 933, 952, App. 3d proof When such is offered relatives, through caution must taken be that there not be undue em on the fact that phasis the victim left a surviving family. (Bost, 80 Ill. 953.) However, 3d at the fact that the is a witness close relative who breaks down on the Bost, stand is not a basis for reversal. App. 952.
In this Triplett’s testimony was relevant State’s case because he found murdered, the victim’s after she was body he testified to the as location and condition of the body victim’s as Furthermore, well as the scene of crime. photographs iden tified accurately depicting the scene and the as he victim found
718 1986, as further them on November were also relevant evidence Bost, in unlike the witness Additionally, Triplett the murder scene. did on the made the initial comment only not break down stand but when he the first my photograph. “Oh God” saw a to timely objection that he made argument Defendant’s Defendant showing the witness the is also without merit. photographs to at time prior trial and did not determine that photographs saw also not by introduced the State. Defendant did how would be at the trial asked object photographs the admission but the State to the content of judge stipulate photo order v. People remaining rather than ones to the witness. graphs show Starks by 116 Ill. 451 N.E.2d cited defend (1983), App. 3d because, of his is argument factually distinguishable ant support testimony not relevant family that members’ proof State’s its case. reasons, that no error was
For the aforementioned we conclude allowing identify the life and death witness to photo- committed victim’s scene of crime. graphs body to hostility next the trial judge’s Defendant contends In all crimi against his case. prejudiced jury ward defense counsel fair and impartial is entitled a prosecutions, person nal accused 618, 640, Ill. 3d 540 (People v. Velasco (1989), App. 184 trial by jury. 933, 936, 449 v. Heidorn 521; 114 Ill. 3d People (1983), App. N.E.2d in the conduct judge While trial has wide discretion 568.) trial, reflecting preju not or comments interject opinions of a he must 3d (Velasco, App. or favor 184 Ill. against any party. dice toward 640; Heidorn, 936.) particularly 114 Ill. 3d at This true App. conduct, trial, judge’s where are watchful jurors influencing care to avoid high degree court must exercise Velasco, People Sprinkle (1963), v. 640; 27 Ill. Ill. 3d at App. jury. 398, 403, 295. 2d reflect disbelief in comments include those which
Improper
witnesses,
credibility of
confidence in-the
of defense
addi
guilt.
In
assumption
witnesses or an
prosecution
that de
defense counsel or remarks
tion, a hostile attitude toward
also
may
case in an
manner
improper
presented
fense counsel has
How
937.)
3d at
(Heidorn,
114 Ill.
App.
be
and erroneous.
prejudicial
error,
ever,
the trial
constitute reversible
for comments
and that
prejudicial
the remarks were
defendant must show
640;
(Velasco,
184 Ill.
3d at
App.
them.
she was harmed
or
the com
Heidorn,
it
appears
3d at
Where
App.
-
conviction,
in' the
or
a material
factor
do not constitute
ments
result,
probable
to the defendant
is not
the verdict will
prejudice
597, 605,
(People
be disturbed.
Parker
*9
352
394.) Thus,
N.E.2d
also
improper may
remarks which are
be
harmless error.
of the effect
upon
each case
evaluation
“[I]n
of a trial
in
jury
interjections
light
court’s
must be made
evidence,
in
the context which
made and the circumstances
they were
People
the trial.”
2d
surrounding
DeBerry (1966),
App.
v.
285,
In this quotes defendant two conversations which the trial judge made improper comments to defense counsel the pres ence of the jury. The first set of were made during comments defend ant’s cross-examination of girlfriend. counsel Defense process questioning regarding witness she when had signed the consent search form as follows:
“Q. So, they didn’t ask you sign this when first they got to your apartment, did they?
A. No.
Q. Before came in and tore your apartment look- apart ing for things —”
At point the State objected, but defense counsel continued ques- as tioning witness follows: “Q. (Continuing) they didn’t didn’t ask to you sign [sic] [sic] —
this consent to search form?” The trial judge then proceeded to admonish defense counsel as fol- lows:
“I earlier, asked you and I’m not asking you anymore, I’m tell- ing counsel, you, when there’s an objection, talking, stop you understand that?”
After making several comments defense counsel pres- outside the ence of the jury, returned to the courtroom and the trial addressed the judge jury as follows: gentlemen,
“Ladies and objection of the last question is sustained.
The question in its unprofessional character. I’m sure it was unintended counsel. He been has admonished Court, and I’m sure that kind will thing not happen again.” The other comments quoted were made defense counsel’s of Sergeant cross-examination Jones.
“Q. And Durkin’s order then went into the per Judge you I you had jury room and continued conversation started, is that correct? I judge’s order,
A. I don’t but was asked by know about come here an interview with Attorney Kopec State’s to have you.
Q. you judge you Mr. didn’t tell that the ordered Kopec come to—”
The trial then admonished defense counsel follows: judge unpro- is most gentlemen counsel, question “Ladies — desist, I hereby you you fessional. admonish and tell to stop that area.”
The trial then made comments to the jury explaining several then a criminal case and stated: discovery process
“The fact that I order may discovery prior issued a nothing trial has to do with determination your it is unfair to have that. *10 disregard any
I hereby you implication instruct in that contained question.
Counsel, in to cease that area.” you are admonished for it was the trial improper We find both conversations that unprofes- of on defense counsel’s to comment in he counsel conduct, already had admonished sional where particularly Nevertheless, of the we very jury. issue outside the presence on that nor a material factor defend- prejudicial find the comments neither guilt. of defendant’s strong in view of the evidence ant’s conviction result, did not constitute reversible judge’s As a the trial comments error. the field of trial, testified an expert
At the
Pamela Fish
that,
a reasonable
She stated
“within
electrophoresis.
serology
from the floor
sample
the blood
degree
certainty,”
of scientific
the knife
sample
from
was consistent with
apartment
victim’s
with the
were inconsistent
samples
found near her
but that both
body,
further
testified
She
from defendant or co-defendant.
sample taken
pocket
on the inside
a stain found
the blood from
analyzed
that she
then stated
Fish
belonging to defendant.
a
of trousers
lining
pair
of
certainty,” the blood
of scientific
that,
degree
“within a reasonable
with
was consistent
pocket
defendant’s trousers
found on the inside of
on the floor of
well as
blood
on the knife as
the blood found
412,
406,
274
3d
App.
Ill.
(1971),
Redmon v. Sooter
apartment.
as the
certainty
medical
of
degree
defines a reasonable
con
thought
opinion
recognized
of
medical
consensus
“general
also Mahr G.D. Searle
of
cerning
(See
conditions.”
probabilities
&
(where
In addition to Fish’s the scientific evi regarding crime, dence at the scene of we have defendant’s own admission he at apartment day the victim’s she was murdered. Defend ant acknowledged that he knew the victim had but been murdered claimed it that he did not there been report police because had at several Puerto Ricans the scene shotgun, with had threatened to shoot him if he told happened. what had When anyone a defendant occurred, elects to has explain circumstances what he tell is bound to or story judged by improbabili reasonable be its ties. (People v. Lester 720, 738, instance, In this explanation what found the victim’s apartment not credible.
There was also evidence of defendant’s guilt presented through the several witnesses who were in the victim’s apartment Paul, building night on Ms. murder. the victim’s neighbor, heard someone “Frances” and “son.” say Defendant was Frances Williams’ son. Frances victim, Williams had worked with the and defendant acknowledged that he had known the victim. Ms. Saun ders, who lived the floor below victim’s apartment, testified that male her rang doorbell on night incident and asked “Zek,” which victim’s She nickname. also stated that about 30 minutes later she heard a “thud” from apart the victim’s ment which sounded like someone falling. Ms. testified that Haynes *11 she visiting night Ms. Saunders on the incident and that she men saw two in the hallway. One of men was a black wearing jacket cap. and She stated that the cap identified as belonging defendant looked like one she on night saw in Detec question. tive Karl testified that defendant referred to the victim as “Zekee” and being admitted apartment during victim’s the time period when Saunders Haynes stated heard a “thud” from the victim’s apartment. Detective testified Pesavento that defendant’s girlfriend identified clothes taken from her as the apartment clothes defendant wearing night of the murder. This was the same
clothing which contained bloodstain which was consistent with testi Sergeant blood taken from knife and the crime scene. Jones fied that when he with defendant alone made the spoke defendant statements, it. “I didn’t mean do She was like a mother to me.” acknowledged prepared On cross-examination that he had no Jones contained this statement defendant but also police report which case testified that he had no other be prepared reports regarding he had one of the officers. assigned investigating cause not been We, therefore, in of all of the aforementioned conclude that view judge’s in the trial guilt, any impropriety evidence defendant’s not a comments defense counsel was material factor defendant’s conviction and that it was harmless error. support argument
Defendant cites three cases in In distinguishable People which are from case. v. factually 534, 445, the trial made (1953), judge Marino Ill. 111 N.E.2d a comments the examination of witness defense counsel during key to the that the not of belief. conveyed worthy which witness was jury counsel. The The court made hostile comments to defense also of the fact that the evidence was Marino court held that view balanced, judge's the trial prejudiced by defendant had been closely v. conduct, it error. In San People and that was reversible improper 491, guilt or inno tucci 24 Ill. 2d 180 N.E.2d defendant’s During the jury on which witness the believed. dependent cence was testi trial, thereby emphasizing each judge questioned witness or discredited ac pointed guilt accused mony which impatience The trial court also or key displayed cused’s witnesses. In presented counsel and the his case. way toward defense hostility the trial Mays (1989), People counsel’s down his defense judge sighed pencil and threw to the witness which key conveyed cross-examination The trial theory his case. regarding court’s sentiments closing argument. limited defense counsel’s prematurely court also not.limited conduct in these cases was judge’s improper The trial Rather, in each instance the counsel. negative reaction toward defense fact-finding province trial invaded improperly also potentially prejudicial jury in a manner oppo have reached in his conviction. Because we material factor find cases control we do not these site instant conclusion ling. testimony of that the rebuttal
Defendant next contends to him because prejudicial improper examiner was fingerprint presented or evidence explain, repel, disprove it contradict did
723 he misrepre believe that defendant, may and it led by presented that which is Rebuttal evidence is sented evidence. or evidence pre explain, disprove contradict prosecution repel, 571, v. Rios (People App. 145 Ill. 3d (1986), the accused. by sented testimony 495 N.E.2d The decision to rebuttal permit v. Andrews (People court in the discretion the trial largely rests 628; People Egan v. 394, 399, 172 Ill. 3d 526 N.E.2d (1988), App. 501, 511, 477), 65 382 that decision (1978), Ill. 3d N.E.2d App. on has its discre appeal will not be reversed unless the court abused (Egan, at App. tion to the defendant 65 Ill. 3d resulting prejudice People v. Thornton 511; 54 3d (1977), Ill. App.
358). fact evidence could have Additionally, that rebuttal been by introduced the State in its case in chief will not render the evi People v. Ross dence rebuttal. 3d inadmissible 1093, 1096, 427 868. chief,
In the Keating, State’s case in Dennis evidence technician with the Chicago police department, presented testimony regarding at the such various items evidence scene as the physical taken, samples bloodstains and whether there were of forced en signs knife try, the condition of the apartment, found at scene and areas from which he apartment palm fingerprints. took cross-examination, On Keating stated that it was the of oils residue or water from a person’s hand which caused to form. fingerprint On redirect, testified that a Keating person could touch an item and not any touched, leave on fingerprints depending the surface the amount secreted, of perspiration temperature gloves and whether were worn. During defendant’s Officer Montalbano testified that there were no or palm fingerprints belonging to among prints defendant were rebuttal, found the scene of the crime. Then in the State pre testimony sented Officer Thomas who Gimley, stated Therefore, knife found at the scene had no it. when fingerprints knife, testified in rebuttal that no on the Gimley prints were evi dence an item could be touched without formation of prints had been already presented. Montalbano had also confirmed Keating’s previous during testimony cross-examination the State. had obviously touched, Because knife been Gimley’s testimony was presented repel to contradict or the inference that the absence of Thus, prints meant he had not the re touched knife. buttal testimony proper. Any argument that defendant did not the door to this open without merit where most of Keat ing’s testimony regarding was elicited cross- fingerprints examination defense counsel and as a Montalbano was called de 45, 49, People Payne (1983), fense See witness. N.E.2d 44.
Defendant contends the State failed to him prove were no identification guilty of murder and where there wit robbery nesses or of defendant’s at the scene of physical evidence crime, admit signed and there were no statements *13 ting sufficiency When an court reviews evi quilt. appeals “ dence, whether, is evidence question viewing ‘the relevant after the the trier in the most favorable to rational of light prosecution, the beyond fact have found the essential elements of crime a could ” omitted.) (1989), v. 128 (Emphasis (People Young doubt.’ reasonable 49, (1979), 443 1, 453, Virginia Ill. 2d 538 N.E.2d Jackson v. quoting 560, 573-74, 2781, 307, 318-19, 2788-89.) 61 L. 2d 99 S. Ct. U.S. Ed. “ Then, the crime guilty a defendant has been found of ‘[o]nce as of the evidence is charged, weigher pre the factfinder’s role the judicial all the through legal upon served a conclusion that review of most the light prosecu evidence is be considered favorable to 237, original.) (People (1985), tion.” v. Ill. 2d (Emphasis Collins 106 319, 261, 267, Jackson, 443 at L. quoting 478 N.E.2d U.S. 61 Ed. 2d Further, 573, 2789.) discrepancies at 99 S. Ct. at of be credibility, judged by to the issue of which must go witnesses 450, 443, 421 96 Ill. 3d (1981), App. trier of fact. v. Thomas People N.E.2d 357. of our question part we addressed this previously
Because comments were re- of trial judge’s improper discussion whether error, to our former need not discuss it further. Pursuant versible we discussion, we that the evidence was sufficient establish conclude doubt. guilt defendant’s reasonable beyond for 40-year Defendant contends that his sentence finally background, no prior murder because he had criminal was excessive behavior, of his had rehabilitative because potential or other violent It is his remorse the victim’s death. age and had showed young that, a court considering punishment, of recognized propriety of trial court. great weight judgment must give review 344; 482, 492, Ill. 431 N.E.2d Peo La 88 2d (People (1981), v. Pointe 153, 882; People v. 149, N.E.2d v. Ill. 2d 368 ple Perruquet (1977), 68 108, im 1370.) The 121 Ill. 3d 458 Bergman (1984), App. and, absent an is a discretion judicial of a sentence matter position al discretion, the trial court be may the sentence of abuse of in a is better normally trial Additionally, tered review. upon than is a court of to be imposed to determine position punishment
725
64 Ill.
154;
(1976),
68 Ill.
Butler
2d
Perruquet,
People
review.
2d at
v.
485, 490,
A as to sentence to be im judgment reasoned the proper facts and circumstances of posed upon particular must be based 154.) judgment 68 Ill. at Such (Perruquet, each individual case. 2d factors, of the offense and depends many including gravity upon commission, credibility, de circumstances meanor, character, environment, general moral social mentality, habits, age, Ill. 2d at history. Perruquet, and criminal 154.
The task sentencing judge charged with difficult fashioning sentence which strike the balance be appropriate would tween protection (People and rehabilitation offender. society 541; (1980), Cox 82 Ill. 2d 412 N.E .2d 121 Ill. Bergman, Yet, restoring 3d at to useful App. 109.) objective offender greater is to accorded citizenship be no consideration than that.which (People establishes seriousness of the offense. v. Waud 588, 596, 1; Ill. 2d Bergman, App. court required process
trial is not to detail for the record the which it concluded La penalty imposed appropriate. Pointe, 493; 88 Ill. Bergman, 2d at 3d at 110.
In this the court found that the murder was committed course of a felony forcible and that defendant was eligible *14 However, for the death the penalty. court considered the absence of prior activity criminal as a mitigating factor which precluded death court penalty. also noted that also defendant could be sen to However, tenced a life an term or extended years. 80 court did into take consideration for age potential and rehabili in sentencing Therefore, tation him to a term of we years. 40 con factors, clude that the did court all of the relevant consider and its sentencing determination was proper.
Accordingly, judgment of the is circuit court affirmed.
Affirmed. LaPORTA, dissenting:
JUSTICE I cannot with agree trial majority’s conclusion court’s to improper comments defense counsel were harmless error. There- fore, I dissent. respectfully view,
In the trial my court’s treatment of defense counsel contam inated entire to such a proceeding degree defendant de of his to a fair prived right Supreme (107 trial. Illinois Court Rule 63 R. 63), Conduct, Ill. 2d 3 of Code of incorporating Canon Judicial
726 alia, inter judge that a should maintain order and decorum provides, him, patient, dignified, before should be and courteous proceedings witnesses, litigants, lawyers, to and and should accord to jurors, is in a his person legally who interested or every proceeding, lawyer, right (107 63(A)(2), full to be heard to law Ill. 2d Rules according Thus, to (A)(3)). objective judge trial is conduct a primary fair and trial. unbiased throughout this case
My reading of the record in indicates that trial, and engaged insulting the court behavior toward abusive counsel, but the same toward the display defense did behavior referred to defense counsel’s prosecutor. judge For trial example, him conduct and “unfair” and twice called “supercilious” “unpro- as court for ar- inappropriately fessional.” The chastised defense counsel not comment at all ar- guing objections, prosecutor but did when suggested trial gued judge in a similar manner. The objection some skin-toughening side bar that defense counsel “[e]at him judge admonishing food over lunch.” The criticized witnesses had no such attorney thing, when defendant’s done and directed coun- to when had been made. sel not make editorial comments none Other the court to defense counsel were sarcastic and remarks made him. denigrate humiliate clearly designed outside the of the court’s comments were made some Although Those re jury. of them were heard jury, many marks, belief that defense conveyed jury judge’s which manner, his case in an attempting present improper counsel was had effect of only prejudicing could the inevitable v. Finn 2d jury. (People (1959), eyes opinions judge, of the attitudes and 354.) very Jurors are aware the court is very disclosure of disbelief or hostility by likely v. (People Santueci arriving them in their verdict. to influence 491.) 24 N.E.2d Such conduct a trial Ill. 2d (1962), (People Zaccagnini error. prejudicial nothing counsel did The record indicates defense Yet, the trial fulfill duties an advocate. attempt more than that defense him, suggesting court criticized ridiculed his case in an manner. present improper attempting counsel was have ad Moreover, defense counsel must treatment the court’s *15 the his trial. performance affected versely evidence which I do was on circumstantial Defendant convicted the accusations of overwhelming, “unpro- and court’s not find to be counsel conduct occurred while defense was fessional” or “unfair” entirely witnesses. It is pos- the most cross-examining important two charged, sible is the crimes for which was guilty that defendant of fairly to eval- record, opportunity but on did not have jury his or innocence against guilt uate the case him and to determine based evidence upon presented. the trial sub interjected throughout
The trial court’s comments on jected ability adequately defense counsel to attacks his to repeated appear and the defendant. It does not that properly represent justified, court’s treatment of defense counsel was its continua tion to atti throughout conveyed jury the trial must have a hostile (Santucci, tude toward the defense. 24 Ill. 2d The trial court’s behavior prejudiced would almost have inevitably Finn, defendant eyes jury.
354. to
Certainly defendant was entitled a fair and unbiased trial guilt innocence, test or I get am convinced that he did not would, therefore, one. In view he entitled a new trial. I re- my verse defendant’s convictions and remand for new trial. EGAN,
JUSTICE specially concurring: I opinion concur in the of Justice Rakowski judgment should I conviction be affirmed. concur specially because I wish to make on my clear certain position arguments raised the State and to explain Iwhy part must with Justice company LaPorta her view that a trial new is required.
I agree judge's comments were but not improper did constitute error in reversible view evidence. Fish testified that blood found apartment victim’s was “consistent” with taken samples blood from the defendant’s trousers. There also blood spattered other clothing The defendant. witnesses like a falling heard sound body within minutes or one-half hour man up after a went the stairs. The defend- ant’s own statement identifies him as that man. The defendant told a preposterous story. In addition to the story’s inherent it incredibility, is most unlikely that the alleged unidentified Puerto Ricans would escaped notice of the women building who lived in the who saw the defendant and his companion. State’s case overwhelming, strong but it was enough argument withstand the hostile attitude toward the assistant displayed public defender trial. I if were requires new so conclude even we disregard Sergeant Jones completely “I him, told didn’t it. She like mean do a mother to me.” It unnecessarily prolong my opinion explain why, would but *16 that, susceptible
suffice it to in is say my judgment, Jones’ to many arguments against acceptance. its argues hostility
The defendant that the toward defense “judge’s in the presence counsel was on several occasions” and out of apparent that in- response attorney The State’s is the “defendant’s jury. that trial tactics” and vited court’s admonishments his presence made out of the prejudiced by defendant cannot be remarks parts of the has us record jury. specific The State referred to to that to allegedly judge repeatedly required inject show himself into the the assistant defender proceedings public because in court’s “persisted interrupting ignoring suggestion.” *** well any State concludes that “admonishment deserved since professional.” trial certainly totally that conduct It is at to turn to the Justice point opinion this appropriate trial he it was for the says “improper judge Rakowski which that to unprofes comment of the on defense counsel’s presence jury conduct, admonished already sional where had counsel particularly very jury.” (209 App. on that issue outside the of the presence at A from might reader infer that statement that defense was, fact, I with the unprofessional. disagree counsel’s conduct implication public and with assistant any State’s contention I time. As show expect defender acted unprofessionally later, the called to our attention the State buttress instances Justice position and the observations made La in her Porta dissent. out of the
The defendant first refers us to what occurred the trial when the dis- jury began judge expressed before of motions he considered pleasure filing large over the number He see himself. It was during asked to defender untimely. public judge at that time characterized assistant colloquy “supercilious” as noted dissent. public defender’s statement after the excused next to what points transpired The defendant assistant defender’s public he characterized the jury before following the first time. The occurred in as “unprofessional” conduct court: open the Let record reflect that right.
“THE COURT: All Defender], for out, some is out. Mr. Public is witness [Assistant cheap, ques- in a line of histrionic engage choose you reason seat, When I Mr. Public tioning. Take a Defender]. [Assistant histrionic you Cheap, questioning from I’ll ask.' need hear spite and in nothing has to do with absolutely line, along fact continue sustain objections you I when you As I told questioning. previously, continue line I chance to rule stop talking get there until objection, objection. on the I make a com- May PUBLIC
[ASSISTANT DEFENDER]: ment? No,
THE out the you may Bring jury, please. COURT: not. oppor- I have an PUBLIC Will [ASSISTANT DEFENDER]: spread something of record? tunity right THE You’re of record spreading COURT: manure now. spread PUBLIC I’d like
[ASSISTANT DEFENDER]: something specific.
THE Shut up. spread COURT: Shut You’llbe allowed to up. it of Right record later. now shut you up. Attempt conduct yourself professional. telling you now, a I’m when right there is objection, stop talking.”
I exchange. return to what that The occurred precipitated following in of presence jury: they PUBLIC Before came in
“[ASSISTANT DEFENDER]: your and tore apartment apart looking things— Objection. STATE’S [ASSISTANT ATTORNEY]: PUBLIC (continuing)-they [ASSISTANT DEFENDER]: didn’t ask didn’t this you sign consent to search [sic] [sic] form?” circumstances, no
Under in it judgment, be that the my may said as- public sistant was guilty unprofessional defender conduct that point nor it does show he necessarily proce- violated rule of any dure. It is true that questions can be manifestly improper before are but completed, it also true have judges sometimes ruled that an objection premature itself is a question before is completed. If the assistant public rules, defender was of a guilty deviation from the it was trivial. It not certainly justify did what followed. ofWho us that has ever in participated contested trials has strongly not been guilty of same trivial deviation? I I know that in the heat and fray; I would have be deeply resented to damned as “unpro- fessional” or by judge a out of the I jury. suspect judge’s that it was the displeasure with itself question that precip- itated his It public censure assistant defender. was the question described as “unprofessional.”
I turn now the other instances in the record to which State refers in claim support public its assistant defender’s con- Attorney duct unprofessional. When assistant State’s following occurred: cross-examining, us to
“Q. just Did tell what told Chi- you subsequently you Chicago— or cago police detectives Objection. PUBLIC [ASSISTANT DEFENDER]: THE COURT: Grounds? no There in- has been PUBLIC
[ASSISTANT DEFENDER]: other It’s an story. has ever told dication that this woman consistent prior to introduce statement. attempt your Please state just simply THE COURT: Overruled. grounds. argue objection. Don’t evidentiary grounds, Overruled.” respond more than public nothing defender did assistant invitation, was a one. proper
the court’s answer cross-examining police When the assistant defender public following occurred: witness Now Detec- perhaps, PUBLIC
“[ASSISTANT DEFENDER]: tive, you and I ladies misleading, apologize I was gentlemen jury— Counsel, need to be admon-
THE COURT: when witnesses ished, You ask wit- questions it will be done court. ness, you lawyer. I am the are the gives you judge, answers. Ask questions. Fine, Honor. Your PUBLIC DEFENDER]:
[ASSISTANT Detective, fact, had ei- Q. there was a conversation with woman ther or detectives brother yourself Scott, is that correct? the name Mary Objection. STATE’SATTORNEY]: [ASSISTANT *18 Grounds? THE COURT: It doesn’t to im- go STATE’S ATTORNEY]:
[ASSISTANT report. He didn’t author this peachment. it offering I’m not PUBLIC DEFENDER]:
[ASSISTANT the— is that objec- rule in this courtroom Another
THE COURT: court. by are invited Ob- unless argued tions not are may question.” You answer jection overruled. defender be- public the assistant made statement prefatory not to be ad- be construed himself could judge injected
fore the part assist- attempt nor the witness monishment of Moreover, I judge. of the usurp function public ant defender did, Attorney that the State’s dissenting opinion, note, as does chastisement, defender had public what assistant exactly without criticized for. and was done
Another instance called to our attention the State occurred while the assistant defender public again cross-examining police witness: Now, detective, PUBLIC you
“[ASSISTANT DEFENDER]: do recall that it was into put your police that there report were no signs of forced is entry, that correct?
A. That’s correct. STATE’S Objection, asked and
[ASSISTANT ATTORNEY]: answered.
THE COURT: Sustained. PUBLIC Do recall- you
[ASSISTANT DEFENDER]: THE Counsel, counsel, COURT: counsel. Do you remember when you said you’re talking too fast the officer should men- tion I’m going it? to mention it. When there is an objection, you stop until the court you directs to start again. You under- stand? PUBLIC Yes, sir.”
[ASSISTANT DEFENDER]: That exchange does not show any improper conduct on the part of the assistant defender. public Moreover, I have never before heard of a rule that requires questioner to stop asking questions after judge rules on an objection until the judge directs him to start again. short,
In I repeat those portions the record called to our attention State do not support the State’s contention that those instances justified the court’s later, remarks which Justice Rakowski and I agree were improper. noted,
As previously argues State remarks out of the presence of the jury may be considered aby reviewing court determining whether prejudice occurred. I wish to make it clear that I do not to the that, subscribe view whether determining the trial court has manifested a hostile attitude toward a defense a re lawyer, court viewing restricted to only what occurred in the presence of I am in People v. Connor jury. aware that 177 Ill. App. 3d 532 N.E.2d the court expressed view that what occurred presence outside the of the jury prejudice did not the defendant. We do not know from the was said out opinion what of the presence of the jury; moreover, court held that appellate “two minor inci dents occurred in the jury] can hardly sug [that gested to the that defense attempted counsel to present the case in an improper (177 manner.” Ill. 3d at 539.) That is not true in In People Zaccagnini case. (1963), 29 286, court reversed conviction this: saying
“A reading record leaves no doubt the trial *19 feelings prejudice against
harbored of hostility not, and his counsel. will for which oc except examples We two jury, during curred before the detail the number of occasions which were both and outside the feelings these exhibited within 2d at 409. added.) presence jury.” (Emphasis me, therefore, Does the To issue is reduced this: record show that judge displayed hostility such toward defendant’s presence in or that attorney out of “the impaired? to a fair trial was dissent observes that right have adversely court’s treatment of defense counsel must affected If I performance agreed the trial.” during (209 con dissent, that I would vote to reverse the with observation I were said to the things viction. I do not but do that agree; recognize said public assistant defender that should not have been lawyers some to the extent that effective might represen cowed are might tation have been diminished. like not au Lawyers, judges, tomatons. case;
This is not theft this is a case of a murder of brutal petty in her commission of a rob- a woman own home committed charged sleep-killing The assistant defender was with bery. public It is defending person the State wanted execute. responsibility that, face the assistant responsibility, pub- of that my judgment act with fortitude and anything respectful lic defender never did but I persistence under circumstances. do believe trying Consequently, He was affected. public performance assistant defender’s vigor. throughout represent ably continued his client and with of Fish’s testi- agree I do not with Justice Rakowski’s description that the from defend- establishing blood taken mony samples from victim’s samples ant’s trousers “matched” of blood taken Fish looks nine electrophoresis testified that the test apartment. five) She four enzymes (or perhaps in blood. found that specific at the scene and those were blood found enzymes present both Fish was determine pants. the blood the defendant’s unable Her four) findings were (or enzymes present. whether other five her ultimate conclu- the basis of enzymes were other. Testi- with each samples sion that blood were “consistent” the same as testi- is not samples were “consistent” mony “matched.” mony samples respects. in all other
I with Rakowski’s opinion concur Justice