APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
509 N.E.2d 1026, 156 Ill. App. 3d 238, 109 Ill. Dec. 187 1987.IL.323
Appeal from the Circuit Court of Cook County; the Hon. John A. McElligott, Judge, presiding.
JUSTICE FREEMAN delivered the opinion of the court. McNAMARA, P.J., and WHITE, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN
Following a jury trial, defendant, David Wofford, was convicted on two counts of murder (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(a)(1), (a)(2)), and sentenced to 40 years in the Illinois Department of Corrections. Defendant appeals his conviction, contending: (1) he was denied a fair trial due to the cumulative effect of the trial court's conduct; (2) the trial court committed error in allowing certain testimony into evidence under the "spontaneous declaration" exception to the hearsay rule, and (3) the evidence presented was not sufficient to prove defendant guilty beyond a reasonable doubt.
The facts of the case relevant to this appeal are as follows. At approximately 7:45 p.m. on March 3, 1983, a caller informed the police that gunshots had been fired and a man injured at 1314 West 90th Street in Chicago. When the police arrived at that address, several people confirmed that shots had been fired; however, they told the officers that those involved ran east on 90th Street. The police subsequently received a second call, informing them the possible victim was somewhere around 8937 South Elizabeth. There they found the victim, Harold Crawford, lying in the grass surrounded by a group of people.
Several minutes later, three Chicago police detectives arrived at the scene. Detective Joe Paladino approached the victim, determined his identity, and observed he was bleeding profusely from the abdominal area. Paladino testified that when he asked the victim who shot him, the victim responded, "Cheese shot me. He lives in the area of 92nd and Ada." When the ambulance still did not arrive after several minutes, the victim was taken by squad car to the hospital. He later died of a gunshot wound to the abdomen.
At the scene, the police spoke with Vincent James and David Brown, who were with the victim when he was shot. They explained that they went to the park to play basketball and, while there, James spent some time talking with his girlfriend. They left for awhile to go to the grocery store and then headed back to the park. As they walked, a green Thunderbird approached, and the driver shouted some gang slogans at them. They responded they were not affiliated with the gang. The driver proceeded, then stopped the car and got out. He spoke with three girls whom James, Brown, and Crawford saw and briefly spoke to earlier in the evening. As the three men passed the alleyway where the others were standing, a man identified as defendant came up to James and put a pistol to his face. James quickly walked away and, when he, Brown, and Crawford were around the corner, a car came by and the driver fired two shots, one of which struck Crawford. They described his car as a green, 1977 Ford Thunderbird, license plate number AV5760. The car was registered to the Wofford family near 92nd and South Ada Streets. The detectives drove James and Brown west on 90th Street and, when they reached Ada, the men indicated they saw two of the girls with whom the assailant was talking when he pulled a gun on James prior to shooting the victim. The girls told the detectives they did not know anyone named "Cheese" and, further, knew nothing about the shooting. Detective Paladino drove to 92nd and Ada where James and Brown recognized a parked green Thunderbird. The detective testified that its hood and grill were still warm. He went to the address to which the car was registered. The woman who answered the door identified herself as Evertedine Wofford. When asked if "Cheese" was there, she responded that he recently had parked the car and left with the keys.
Later that evening James and Brown went to police headquarters where they each viewed six photographs. Both identified defendant as the victim's assailant. After the police made several visits to defendant's home without locating him, defendant turned himself in and was arrested on June 2, 1983. The police conducted two lineups; both James and Brown identified defendant as the person who shot the victim. The trial commenced on February 6, 1984. The jury returned a finding of guilt, and defendant appeals.
Defendant contends he was deprived of a fair trial because of the cumulative effect of the trial court's conduct in its comments before the jury. This issue could be viewed as waived because defendant failed to object at trial or set forth the matter in his post-trial motion. (People v. Tannenbaum (1980), 82 Ill. 2d 177, 181, 415 N.E.2d 1027.) At oral arguments, defense counsel claimed the matter was addressed in the post-trial motion; however, we have reviewed the document and do not believe the issue was raised. Although a counsel's failure to object has been recognized as an understandable trial tactic, courts have held that the failure to include the issue in a post-trial motion for a new trial, directed only to the court and therefore without risks of alienating the jury, is not excusable. (People v. Saunders (1984), 122 Ill. App. 3d 922, 936-37, 461 N.E.2d 1006; People v. Christmas (1977), 54 Ill. App. 3d 612, 615, 370 N.E.2d 65.) Nevertheless, because of the fundamental importance of a fair trial and the practical difficulties in objecting to comments of the trial Judge, the general rule that an issue is waived because of defendant's failure to object at trial or assert the matter in a post-trial motion is applied less rigidly when the Judge's conduct is the basis for the objection. (People v. Heidhorn (1983), 114 Ill. App. 3d 933, 936, 449 N.E.2d 568.) The trial Judge must exert a high degree of care to avoid influencing the jurors. He must remain impartial and should refrain from displaying prejudice or favor to any of the parties. (People v. Sprinkle (1963), 27 Ill. 2d 398, 403, 189 N.E.2d 295.) Therefore, in this situation we will consider the merits of defendant's argument., Defendant initially complains that the Judge erred during the voir dire when he informed prospective jurors:
"Mr. Wofford, known as the defendant here, is charged by the Grand Jurors. He committed the offense of murder, in that he, without lawful justification, intentionally and knowingly shot and killed Harold Crawford with a gun, in violation of our statutes of the Criminal Statutes of Chapter 38, Section. [ sic ]. That is count 1." (Emphasis added by defendant.)
Defendant alleges that the trial Judge also committed error in explaining the presumption of innocence to the prospective jurors, when he informed them that the presumption remains until they have been "satisfied" by the evidence beyond a reasonable doubt of defendant's guilt rather than "convinced" by the evidence. He claims error when the Judge informed prospective jurors that he was "the Judge of the law" and that it was his duty to tell them the applicable law and what evidence they could hear. Defendant points to numerous instances during direct and cross-examination of witnesses in which he maintains the court reinforced testimony of prosecution witnesses, put words in witnesses' mouths, testified for and coached witnesses, argued with and demeaned defense counsel, and characterized testimony in a light favorable to the State. Defendant argues that when the defense called its witnesses, the court became very active, interrupting and ridiculing defense counsel and the witnesses.
The State maintains the trial Judge did nothing more than try to conduct the trial in an orderly fashion by clarifying information and expediting questioning of the witnesses and at no time gave any indication as to his view of defendant's story. In one cited instance, the State notes, the court was restating the witness' answer at the request of defense counsel. In another, where defendant alleged the court interrupted and ridiculed defense counsel by asking the witness to repeat answers, the court likely believed the jurors were having difficulty hearing the witness, as were the court and attorneys. The State adds that the trial was peculiar in that problems in hearing the witnesses existed throughout the trial. The case also required that witnesses be cognizant of various directions and locations, which many were not. The State agrees with defendant's contention that it was inaccurate for the court to inform the jurors that they needed to be "satisfied" with the evidence rather than "convinced" by it to find defendant guilty. Nevertheless, where the jury receives proper instructions on the presumption of innocence at the close of all the evidence, prior misstatements are harmless. (See People v. Bradford (1979), 78 Ill. App. 3d 869, 876, 397 N.E.2d 863.) The State adds that before the Judge made his remarks about the presumption of innocence, he informed the jurors his remarks were not instructions and that they would receive written instructions at the close of the case. Thus, the State urges that the remarks amounted to nothing more than harmless error. The State further emphasizes that even if improper, the actions of the trial court were not reversible error because defendant failed to show that the actions and remarks harmed him or constituted a material factor in his conviction. The jury in the instant case also was instructed that any instructions, rulings, or remarks ...