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People v. Bach

OPINION FILED JULY 16, 1979.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

DEBRA BACH, A/K/A DEBRA A. BROWN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT L. MASSEY, Judge, presiding.

MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

After a jury trial, Debra Bach (defendant) was found guilty of delivery of a controlled substance. (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1401(b).) She was sentenced to imprisonment for 3 to 9 years. Defendant appeals.

At trial, Officer Ricardo Abreu testified he approached defendant on March 3, 1977, at approximately 6 p.m., at the intersection of two Chicago streets. He told her he wished to buy some heroin. He gave the defendant $20 and he received from her a blue balloon about one-eighth of an inch in diameter containing a brown powder. This powder was identified by testimony of a forensic chemist as .11 grams of heroin.

Officers George Karl and Lawrence Evans testified they had worked on an undercover team with Officer Abreu. On the day in question they served as "surveillance officers" and observed Officer Abreu talking with defendant. From about 40 feet away, they saw the officer hand something to the defendant and the defendant hand something to the officer. Shortly thereafter Officer Abreu met with the other officers at a prearranged spot. He gave Officer Karl a blue balloon which contained a plastic package filled with a brown powder. The balloon was inventoried and was taken by Officer Karl to the crime laboratory.

Defendant testified in her own behalf. She stated she had engaged in prostitution on the date and in the area in question. She could not remember if she had been in that area at 6 p.m. but said this was "very doubtful". She testified she had never seen Officer Abreu before her arrest and denied selling heroin to him. She had never delivered the blue balloon to any one and she had never seen it before. Defendant testified she had never sold heroin. Defendant admitted to having a prior felony conviction.

No point is raised by the defendant in this court concerning proof of guilt beyond a reasonable doubt. In our opinion, the evidence of guilt supports the verdict to the point of being overwhelming.

I.

Defendant was arraigned on May 26, 1976. She made an oral motion for substitution of judges naming Judges Epton and Massey. In August of 1976 the case was assigned to Judge Massey. After nine postponements before him, the case was tried by Judge Massey commencing July 7, 1977. No objection to trial before Judge Massey was raised by defendant.

Defendant contends the oral motion for substitution of judges rendered Judge Massey without power to preside over her trial. Defendant relies on several cases such as Hoffmann v. Hoffmann (1968), 40 Ill.2d 344, 239 N.E.2d 792. In Hoffmann, the court stated that "if the petition for change of venue complies with the statute (Ill. Rev. Stat. 1967, chap. 146, par. 1 et seq.), the right to a change of venue, in both criminal and civil cases is absolute." (Hoffmann, 40 Ill.2d 344, 347.) However, Hoffmann and the remaining cases relied upon by defendant are distinguishable from the case at bar. In all of these other cases, the motions for substitution of judges were in writing as required by statute. The statute (Ill. Rev. Stat. 1975, ch. 38, par. 114-5(a)) states:

"Within 10 days after a cause involving only one defendant has been placed on the trial call of a judge the defendant may move the court in writing for a substitution of judge or any 2 judges * * *. Upon the filing of such a motion the court shall proceed no further in the cause but shall transfer it to another court or judge not named in the motion."

In the instant case, defendant's motion did not comply with the statute because it was not "in writing." This requirement of the statute is clear and unmistakable. In People v. Tucker (1971), 3 Ill. App.3d 273, 277, 278 N.E.2d 141, this court noted that where a defendant named four judges (under section 114-5(c) of the criminal code providing for substitution of one judge) the motion failed to comply with the statute. In People v. Pinchott (1977), 55 Ill. App.3d 601, 370 N.E.2d 1294, appeal denied (1978), 71 Ill.2d 600, the trial court permitted defendant to argue an oral motion for substitution prior to filing a formal petition under section 114-5(c). This court held that "the failure to follow-up by filing the written matter, in effect, waives any alleged error." Pinchott, 55 Ill. App.3d 601, 603.

• 1, 2 This court finds defendant's willingness to proceed to trial before a judge named in the motion for substitution constitutes a waiver. Defendant was aware of the motion made at the arraignment. She had every opportunity to object to continuing before Judge Massey as the case appeared before him on nine occasions prior to trial. No objection was made. (People v. Howell (1975), 60 Ill.2d 117, 120, 324 N.E.2d 403.) Also, the point was not raised in defendant's motion for new trial and is therefore waived. (People v. Precup (1978), 73 Ill.2d 7, 16, 382 N.E.2d 227.) Defendant cannot now seek relief from this court upon that basis. We will add that the trial judge, in our opinion, gave defendant a fair and impartial trial.

II.

Defendant contends the trial court failed to give the Illinois Pattern Jury Instructions, Criminal No. 3.13 (2d ed. 1968) (hereinafter cited as IPI Criminal). This instruction limits the evidence of the prior conviction of defendant to credibility. Upon motion of the State, an order was entered by this court on February 20, 1979, directing the clerk of the circuit court of Cook County to prepare, certify and transmit to the Clerk of this court the complete set of instructions submitted to the jury at the trial. Upon examination of these instructions, ...


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