APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a bench trial, defendant was convicted of aggravated battery and was sentenced to two years imprisonment (Ill. Rev. Stat. 1977, ch. 38, par. 12-4.) On appeal he contends (1) he was deprived of his right to an impartial trier of fact because the trial judge was a former neighbor of a prosecution witness who was the mother of the complainant; (2) he should not be bound by his attorney's waiver of the opportunity to request that the trial judge recuse himself; (3) there was ineffective assistance of counsel when his attorney, without consulting him, waived the opportunity to ask the trial judge to recuse himself; (4) the State's evidence was not sufficient to prove, beyond a reasonable doubt, that his use of force was not justifiable; and (5) it was error to admit testimony about the complainant's medical condition from witnesses who were not medical experts.
Yvonne Lofton, the only prosecution occurrence witness, was the "common law wife" of Wallace Davis, the complainant. Late in the evening of May 29, 1978, she left a pool hall with Davis and a man whose name she did not know. Davis was carrying his pool cue, disassembled, in a carrying case. When she turned around she saw the defendant, Jesse Anderson, carrying a coat over his arm. Davis gave her the cue case and told her to get in their car. She assumed that the third man turned the corner and kept on walking. As she was getting into the car, she heard Anderson say to Davis, "You dirty m____ You know what you did?" The two men argued angrily. When the argument seemed to be "getting out of hand," Lofton got out of the car. All she had in her hands were the car keys. Though she couldn't hear exactly what the two men were saying, when she looked at Anderson, she "could see the anger in his face." Davis didn't have anything in his hands, but Anderson pulled an umbrella out from under his coat and stabbed Davis in his left eye. When Davis fell, blood was shooting out of the eye. As Lofton started toward Anderson, he tried to stab her with the umbrella, but he missed and ran away. When she saw Davis several days later, his left eye was gone.
Lofton admitted that she had been convicted of theft, prostitution, and possession of marijuana. Because of another theft charge, she was residing in county jail at the time of trial.
The other prosecution witness was Davis' mother. When she was called to testify, the trial judge announced that he recognized her as a former neighbor of his:
"[T]he parties should know and the record should reflect that the witness that is coming to the stand now, the court knows was a former neighbor of this witness and I want to so advise all the parties that [sic] is the first time I have seen her up close and I recognize her."
In response, defendant's attorney said, "We have no objection." Mrs. Davis testified that she saw her son Wallace in the hospital some time after May 29. She volunteered that she thought he was going to die. When asked if she noticed anything different about his eyes, she said, "Well, his eye was poked out with an umbrella." She also said that the doctors at the hospital told her that they could not save the eye and that it had to be removed. Later, she noticed that her son was paralyzed on the right side and that he was unable to speak. After 5 1/2 months in the hospital he was discharged. But, at the time of trial he was still receiving medical treatment, still partially paralyzed, and still unable to speak clearly. The defense attorney objected to both the hearsay and the statements of opinion in her testimony, but the objections were overruled.
The defendant testified that, on May 29, 1978, he saw Davis in a car with another man and Lofton. Davis, who had a reputation of being affiliated with a street gang, owed defendant $120. When Davis got out of the car, he was carrying the bottom half of a cue stick. Defendant asked for his money, and Davis explained that, because of some bad luck, he would not be able to repay the loan for a few more days. Defendant testified: "We came to an agreement, he would give me my money on the first." As they were talking, Lofton and the unidentified man got out of the car. She carried a tire iron, and she "started running off at the mouth." The other man stood behind her. Davis told her to shut up. Before walking away, defendant told Davis, "[J]ust have my money."
After walking half a block, defendant saw that Davis, Lofton and the third man had followed him. Davis said, "Don't you know I am a chief in the Stone." When defendant replied, "[J]ust have my money, that is all," Davis slapped him and said, "You ain't nothing but a bitch no way." Defendant replied, "What's the matter with you, you crazy?" Davis slapped him again and raised the cue stick, but before Davis could strike him, defendant poked Davis in the face with an umbrella. Lofton threw the tire iron at defendant from three feet away, but he knocked it away and stabbed at her with the umbrella. The other man pulled out a knife and, when Lofton jumped back to avoid being stabbed with the umbrella, she bumped into the man with a knife, knocked him off balance, and gave defendant a chance to run away.
The umbrella was bent out of shape, and defendant threw it away. The next day he went to a police station and reported that he had been attacked. He told a lieutenant from homicide what had happened, and identified Wallace Davis by name. On cross-examination he was asked what the lieutenant said in response. Defendant testified, "Well he didn't say anything. I told him I was going to make bond, get my bond money together, that is all."
The lieutenant let him go and defendant wasn't arrested until June 6. Again, he said, he told the police how he had been attacked.
• 1 The initial contention, on appeal, is that defendant was deprived of an impartial trier of fact because the trial judge who found him guilty was a former neighbor of a prosecution witness who was the complainant's mother. It is undisputed that it would be fundamentally unfair to force a defendant in a criminal case to have the question of guilt decided by a judge who had a direct, personal, substantial pecuniary interest in deciding against him. (Ward v. Village of Monroeville (1972), 409 U.S. 57, 34 L.Ed.2d 267, 93 S.Ct. 80.) However, "All questions of judicial qualification may not involve constitutional validity. Thus matters of kinship, personal bias, state policy, remoteness of interest would seem generally to be matters merely of legislative discretion." (Tumey v. Ohio (1927), 273 U.S. 510, 523, 71 L.Ed. 749, 754, 47 S.Ct. 437, 441.) In Tumey, a court system was attacked as fundamentally unfair because the mayor, who was authorized to sit as a judge, would not be paid for his services as a judge unless the defendant was convicted. Additionally, a substantial amount of city revenue came from fines imposed by the mayor. As the United States Supreme Court concluded, "[M]ight not a defendant with reason say that he feared he could not get a fair trial or a fair sentence from one who would have so strong a motive to help his village by conviction and a heavy fine?" (Tumey v. Ohio (1927), 273 U.S. 510, 533, 71 L.Ed.2d 749, 758-59, 47 S.Ct. 437, 445.) When a judge has a direct, personal, substantial pecuniary interest in finding a defendant guilty, there is a denial of due process because there is a presumption of bias against the defendant. (Ward v. Village of Monroeville.) However, as the court pointed out in Tumey, not every challenge to the ability of a judge to impartially decide a case involves a constitutional violation. For instance, in United States ex rel. Perry v. Cuyler (3d Cir. 1978), 584 F.2d 644, cert. denied (1979), 440 U.S. 925, 59 L.Ed.2d 480, 99 S.Ct. 1257), the sole issue was whether there was a denial of the sixth and fourteenth amendment rights to a fair trial when a judge who presided at a jury trial refused to disqualify himself even though he was acquainted with, and went to the funeral of, the defendant's alleged victim. After examining the circumstances of the case, the third circuit held that disqualification was not necessary because the trial judge's possible interest in the outcome of the case was not substantial enough to make unfairness probable. See also People v. Vance (1979), 76 Ill.2d 171, 390 N.E.2d 867 (in seeking a disqualification for cause the defendant has the burden of showing actual prejudice which would interfere, with a fair determination of guilt or innocence).
Therefore, to establish that there is a denial of the right to trial by an impartial trier of fact, the defendant has the burden of rebutting the presumption of impartiality by proving that the nature of the trial judge's ...