Appeal from the Circuit Court of Cook County; the Hon. Francis
J. Mahon, Judge, presiding.
JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
After a jury trial, defendant was convicted of the June 6, 1981, murder of James Riordan and sentenced to 35 years in the Illinois Department of Corrections. Defendant raises several issues on appeal, including the terms of the conviction itself and the length of his sentence, the impact of pretrial publicity on his ability to receive a fair trial and the propriety of a previously substituted trial judge disposing of defendant's motion to substitute for cause. He also asserts several instances of the trial court's alleged abuse of discretion in conducting the trial, and of prosecutorial misconduct. We affirm.
The State presented the following testimony at trial:
Doris Radcliffe, a personal friend of the decedent, testified that she met Riordan at approximately 8:45 the night of June 6, 1981, and the two proceeded to the Marina City Restaurant. The couple met Alice and Marty O'Brien in the bar area of the restaurant and all four ordered drinks. At that time, defendant approached them and standing between Radcliffe and Marty O'Brien, stated that he would go away if O'Brien would buy him a drink. Alice O'Brien then admonished her husband not to dare buy defendant a drink, and told defendant to leave them alone. Defendant responded, saying, "I don't know why she doesn't like me," then stepped between the O'Brien's and pulled out a gun. Radcliffe stepped back a few feet and observed Riordan and Marty O'Brien grab defendant's arm and move him back by the juke box at the south entrance to the bar, with Alice O'Brien following. At that point, Riordan let go of defendant and told the O'Briens to return to their seats. Radcliffe then observed defendant enter the cloakroom and emerge a minute or two later holding a gun. Riordan approached defendant, put his hand on defendant's shoulder, and the two started walking north into the hallway. Radcliffe was six to eight feet behind the men when Riordan stopped. After a few more steps, defendant stopped and turned around. Riordan continued towards defendant, who was now facing him. Both men stopped near a reflecting pool, at which point Radcliffe saw the flash of a gun and heard four shots. Riordan fell into the pool and Radcliffe ran back into the bar area, crying and screaming for help. On cross-examination, Radcliffe stated that she did not hear Riordan tell defendant that he was a police officer or see him show defendant his badge.
Alice O'Brien testified that she and her husband arrived at the Marina City Bar at 8:45 on the night in question, where they found the south entrance to the bar blocked by defendant and a baby stroller. Defendant was loud, asking the bartendress, "What's the name of this fucking bar and how do I get a drink?" O'Brien shouted across the bar at defendant to shut up. Shortly thereafter, the decedent entered the bar with Radcliffe and the two couples ordered drinks. Defendant approached Marty O'Brien stating, "If you buy me a drink, I'll leave you people alone." O'Brien told her husband not to dare buy defendant a drink and defendant then told O'Brien, "I don't like you." O'Brien heard a click and turned toward defendant, who was holding a gun to her head and pulling the trigger. O'Brien heard two more clicks, after which her husband and Riordan grabbed defendant and walked him over by the cigarette machine. O'Brien got up from her seat and hit defendant in the shoulder with her purse. Riordan told the O'Briens to return to their seats, then went out into the corridor with defendant. O'Brien heard a shot, then several more shots, after which Radcliffe reentered the bar and stated that Riordan had been shot. On cross-examination, O'Brien stated that no one took the gun from defendant, although he had held it to her head inside the bar. O'Brien's husband, Marty, corroborated his wife's testimony.
Psyche Williams was working as bartendress at Marina City that evening. She observed defendant and his friends enter the bar at about 7 p.m. Defendant ordered a drink, and she observed him singing and dancing around the bar, holding a baby. Defendant and his friends ordered a second round of drinks which defendant paid for but did not drink. According to Williams, the O'Briens arrived at around 8 p.m. and defendant's friends left. Defendant approached some customers and asked them to buy him a drink. He then asked Williams to buy him a drink and she told him that he was cut off and must leave. Defendant asked Williams, "Do you know what I could do to you?" Williams stated that she was not scared of defendant and did not call the police. Although she did not think defendant was drunk, she told him to leave because he was bothering her other customers. The remainder of Williams' testimony corroborated that of the O'Briens.
Several other witnesses gave corroborating testimony, including Michael Conte, who observed the men in the hallway, and heard Riordan tell defendant to give him the gun. According to Conte, Riordan grabbed defendant's wrist and defendant brought up the gun and fired three to five times.
Michael Schramm was in the vestibule of the east tower of Marina City when he heard gun shots. He observed defendant walking toward him, holding a gun. When defendant was about 15 feet away, Schramm told him to drop the gun. Defendant told him, "Don't worry man, I'm cool." Defendant then dropped the gun at Schramm's direction, and Schramm kicked it away. Defendant told him, "I used to be a cop" and then said, "I'm sorry, I'm sorry. He was just there."
Officer Barnes, who recovered defendant's gun that evening, testified that it contained three live rounds.
Defendant then testified. On June 6, 1981, he left his home for downtown, intending to do some work at the office. He carried with him a canvas bag containing the .380 semi-automatic pistol which he always carried with him for protection. Before going up to his office, defendant went into an adjacent bar where he met his friends, Catherine Doyle, James Jeske, Jeske's wife and baby. The parties stayed until the bar closed at between 6:30 p.m. and 7 p.m., consuming several beers as well as hard liquor. They then proceeded to the Marina City restaurant and ordered more drinks at the bar. Defendant observed the O'Briens approach the bar and Alice O'Brien's annoyance at the Jeske baby's stroller which was blocking the entrance. Defendant's friends eventually left and defendant went into the washroom, returning to find that his drink was gone. Defendant stated that Williams then told him that she had poured out his drink because he was drunk and would not serve him another. Defendant testified that he then offered to buy someone at the bar a drink. He then asked him, "What the hell is the name of this place you can't even get a drink in?" Alice O'Brien then yelled across at him to shut up. He later asked Williams for another drink which she refused him, telling him to get out. He then asked Marty O'Brien to buy him a drink, at which point Alice O'Brien started yelling and hit defendant with her purse. After exchanging some words, defendant testified that he walked into the cloakroom, attempting to leave the bar. He came out and headed for an "exit" sign. Both the bartendress and Alice O'Brien were still yelling, and "making a big fuss." Defendant stated that as he walked away he was grabbed from behind by Riordan, who had him by the throat and had his left arm pinned down. Riordan told defendant he was "taking [him] the hell out of here." Defendant said to leave him alone and that he was leaving, but Riordan continued to push him, at which point defendant pulled his pistol out from the canvas bag he was carrying and flipped the safety off. Defendant testified that he feared for his safety. He did not attempt to fist-fight Riordan because he had broken bones in his hand. Instead, he tried to raise up the gun to fire a "warning shot." When Riordan did not let go, defendant fired a burst of three rounds. He heard a splash as Riordan fell away, and saw other people heading toward him. He then obeyed Schramm's directions to drop the gun and stand against the wall until the police arrived and took him in custody. Defendant stated that he did not know if he was drunk that night, but that he was "pretty high."
Defendant was arraigned on June 12, 1981, at which time he moved to substitute out two judges pursuant to section 114-5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 114-5(a)) on the basis of alleged prejudice. The motion was allowed, and the cause transferred to Judge Mahon. During a subsequent hearing during which Judge Mahon denied defendant's motion to appoint an investigator, the judge remarked, "It is the bare bones of what I read in the newspapers. There appears to be nothing to be investigated." Defendant then moved to substitute Judge Mahon under section 114-5(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 114-5(c)), citing the judge's remark as the reason that he would not receive a fair trial. The cause was transferred to the chief judge for reassignment and the motion for substitution was subsequently heard and denied by Judge Bailey, one of the two judges previously substituted out by defendant. Defendant now argues that Judge Bailey's ruling was of no legal force and effect because he was barred by (Ill. Rev. Stat. 1981, ch. 38, par. 114-5(a)) from proceeding in the cause. He concludes that all proceedings subsequent to Judge Bailey's ruling, including his trial and conviction, are therefore void. We disagree.
• 1 Section 114-5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 114-5(a)) provides that within 10 days after a cause involving one defendant has been placed on the trial call of a judge, defendant may, upon written motion, substitute that judge on the basis of prejudice. In cases of Class X felonies, two judges may be substituted under this section. In addition, subsection (c) of that paragraph provides for the substitution of judges for cause upon written motion supported by affidavit, and states that, "[u]pon the filing of such motion a hearing shall be conducted as soon as possible after its filing by a judge not named in the motion; * * *" (Ill. Rev. Stat. 1981, ch. 38, par. 114-5(c)). Thus, the actions of the chief judge were clearly in compliance with the statute where defendant's motion named only Judge Mahon and the motion was assigned to Judge Bailey. Defendant would argue that the plain language of the statute does not apply where, as here, Judge Bailey, although not named in the motion, had been previously substituted out under another section. Case law indicates, however, that a judge who has previously been substituted from a case may perform formal or ministerial functions concerning the case as long as the action has little or no direct relation to the merits. (People v. Lewis (1981), 88 Ill.2d 129, 160, 430 N.E.2d 1346; People ex rel. Walker v. Pate (1973), 53 Ill.2d 485, 292 N.E.2d 387.) Further, we have reviewed the record of defendant's hearing before Judge Bailey and find that it was fairly conducted, with all of the proper factors considered, and that defendant's motion was properly denied.
• 2 A defendant's right to substitute judges for cause is not absolute, but requires substantiation to ensure that his claim of prejudice is not frivolously made. (See People v. Vance (1979), 76 Ill.2d 171, 390 N.E.2d 867; People v. Myles (1980), 83 Ill. App.3d 843, 852, 404 N.E.2d 385, appeal allowed (1980), 81 Ill.2d 597.) A defendant moving for substitution under this section has the burden of showing prejudice on the part of the judge which disqualifies him from sitting as the judge in his case. (People v. Dunigan (1981), 96 Ill. App.3d 799, 811, 421 N.E.2d 1319, appeal denied (1981), 85 Ill.2d 569; People v. Winchell (1977), 45 Ill. App.3d 752, 756, 359 N.E.2d 487, appeal denied (1977), 65 Ill.2d 584.) As stated in Winchell, "`Prejudice is a condition of the mind that imports the formation of a fixed anticipatory judgment as distinguished from opinions which yield to evidence.'" (45 Ill. App.3d 752, 756; see also People v. Robinson (1974), 18 Ill. App.3d 804, 310 N.E.2d 652, appeal denied (1974), 56 Ill.2d 590.) Given the whole context of Judge Mahon's remark during defendant's motion for a court-appointed investigator, we find that the remark did not, in and of itself, signify that the judge had formed an opinion on the merits of defendant's case. Rather, Judge Mahon simply ruled that there was no basis in law or fact for him to appoint an investigator to help defense counsel prepare his case where defense counsel had a full list of witnesses and the facts of the case were clear to both sides.
• 3 Defendant next argues that this court must reduce his conviction to voluntary manslaughter where the evidence was overwhelming that he believed that his use of deadly force was necessary to prevent great bodily harm to himself. It is well settled that where the evidence is conflicting, whether a homicide is murder or manslaughter or whether it is justified as self-defense is a question for the jury to decide under proper instructions (People v. Davis (1966), 35 Ill.2d 55, 61, 219 N.E.2d 468), and that this court will not reverse a conviction unless the evidence is so improbable as to justify a reasonable doubt of defendant's guilt. (People v. Owens (1976), 65 Ill.2d 83, 90, 357 N.E.2d 465, cert. denied (1977), 430 U.S. 955, 51 L.Ed.2d 805, 97 S.Ct. 1600; People v. Sanchez (1981), 95 Ill. App.3d 1006, 1010, 420 N.E.2d 80, appeal denied (1981), 85 Ill.2d 572.) It is also clear that in order to justify a conviction of murder it is not necessary to show that the accused deliberately formed an intent to kill; it is sufficient to show that defendant voluntarily and wilfully committed an act, the direct and natural tendency of which was to destroy another's life. (People v. Davis (1966), 35 Ill.2d 55, 61, 219 N.E.2d 468; People v. Marrow (1949), 403 Ill. 69, 85 N.E.2d 34.) The intent is implied from the circumstances and character of the act. (People v. Winters (1963), 29 Ill.2d 74, 193 N.E.2d 809.) Further, the trier of fact need not accept as true the defendant's testimony concerning his claim of self-defense, but rather, in weighing such evidence it must consider the probability or improbability of the testimony, the circumstances surrounding the killing, and the testimony of all the witnesses. People v. Perry (1980), 91 Ill. App.3d 988, 993, 415 N.E.2d 523, appeal denied (1981), 82 Ill.2d 587; People v. Holtz (1974), 19 Ill. App.3d 781, 313 N.E.2d 234, appeal denied (1974), 56 Ill.2d 589.
In the instant case, all of the witnesses, with the exception of defendant, testified that defendant was not threatened, pushed or provoked in any way. It was defendant, not the victim, who was brandishing a gun during the incident. Under the circumstances, and given defendant's background as a former police officer, the jury rejected defendant's claim that he acted under the belief, whether reasonable or unreasonable, that the use of deadly force was ...