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11/02/89 the People of the State of v. David L. Darnell

November 2, 1989





546 N.E.2d 789, 190 Ill. App. 3d 587, 137 Ill. Dec. 844 1989.IL.1739

Appeal from the Circuit Court of De Kalb County; the Hon. Richard D. Larson, Judge, presiding.


JUSTICE INGLIS delivered the opinion of the court. REINHARD and McLAREN, JJ., concur.


Defendant, David Darnell, was convicted in a bench trial of the offense of harassment by telephone (Ill. Rev. Stat. 1987, ch. 134, par. 16.4-1(2)) and was sentenced to one year's probation, six months' periodic imprisonment, and a fine of $500. Defendant timely filed this appeal. While there are three issues raised before us, we deem it necessary to address only one, and we reverse on that issue alone.

Apparently, there was no court reporter present at defendant's trial; however, a bystander's report was prepared pursuant to Supreme Court Rule 323(c) (107 Ill. 2d R. 323(c)). According to the report, the State called three witnesses. The first witness was Cynthia Fabrizius, defendant's ex-wife with whom he had two children. Fabrizius testified to facts surrounding the numerous, allegedly threatening, telephone calls defendant had made to her. The second witness was Tim Freeman, Fabrizius' boyfriend at the time of the alleged harassment, who testified that he overheard one of defendant's telephone calls to Fabrizius. The State's final witness was an employee of the telephone company who presented records of telephone calls made from defendant's home.

During a break, either immediately after the third witness testified or shortly before cross-examination was concluded, the trial Judge called the attorneys into his chambers and asked what efforts had been made to settle the case. He commented that it appeared from the telephone records presented that "defendant would get home from work and call everyone under the sun, perhaps after having a few beers." The assistant State's Attorney responded that since defendant was unwilling to plead guilty, no serious Discussions had been had as to a negotiated Disposition. Defense counsel told the Judge that the State was asking defendant to plead guilty without regard to the contents of the telephone calls and mentioned that there was an additional misdemeanor charge pending against defendant alleging a violation of a protection order.

The Judge then suggested that the case might be disposed of by defendant pleading guilty and being placed on court supervision since he had no prior record. Defense counsel indicated some concern about the pending protection order violation charge. The prosecutor commented that the State felt that defendant was a dangerous person and would strenuously resist court supervision. Nonetheless, defense counsel stated that he would propose the Judge's solution to defendant.

After discussing the proposal with defendant, defense counsel returned to chambers and told the Judge that defendant elected to proceed with the trial. After the trial was reconvened, the State rested. The defense then moved for a directed finding on both the telephone harassment charge and a charge alleging that defendant violated the order of protection. As to the latter charge, the court granted the motion, finding that the State had failed to prove that defendant had been served with papers or otherwise had knowledge of the protective order. However, the Judge denied the motion for a directed finding on the telephone-harassment charge, ruling that the State had made a prima facie case.

Defendant then testified on behalf of himself, claiming that he did not threaten Fabrizius or their children. He argued that most of the phone calls were made for the purpose of discussing visitation and similar topics concerning the children and that no phone calls were made for the purpose of harassing Fabrizius.

Following closing arguments, the court found defendant guilty of telephone harassment. After being sentenced, defendant filed a post-trial motion for a new trial and a motion for reconsideration of sentence. Both motions were denied, and this appeal followed.

Defendant argues that by initiating plea Discussions before hearing any defense testimony, the trial Judge improperly preJudged the defendant's guilt, thereby depriving defendant of due process.

Initially, we observe that this case appears to be one of first impression. We can find no case, and the parties cite none, where the Judge interrupts a ...

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