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12/27/94 PEOPLE STATE ILLINOIS v. THOMAS DAMNITZ

December 27, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE
v.
THOMAS DAMNITZ, DEFENDANT-APPELLANT



Appeal from the Circuit Court of Cook County. The Honorable Francis J. Mahon, Judge Presiding.

Presiding Justice DiVITO delivered the opinion of the court: Hartman, J., concurs. McCORMICK, J., dissents.

The opinion of the court was delivered by: Divito

PRESIDING JUSTICE DiVITO delivered the opinion of the court:

A jury found Thomas Damnitz guilty of armed violence, aggravated battery by great bodily harm, and aggravated battery involving use of a deadly weapon, but not guilty of attempted murder and aggravated battery by permanent disability. The circuit court sentenced him to incarceration for 25 years on the armed violence conviction. He appeals his conviction and sentence, raising issues concerning the improper exclusion of evidence, impermissible double enhancement, improper refusal of the court to transfer his motion for substitution of judge to another judge for consideration, and the consideration of improper factors in sentencing. For reasons that follow, we affirm.

At approximately 3 a.m. on November 29, 1987, as Francisco Vargas drove past a school, he heard the loud sound of something hitting the side of his car. Vargas got out of the car and saw defendant standing in the schoolyard. Vargas chased defendant and hit him with a stick, knocking him to the ground. Vargas went back to his car. A few minutes later defendant shot Vargas.

Defense counsel indicated that he intended to present witnesses other than defendant who would testify that Hispanic gang members firebombed defendant's home and shot at him. The circuit court instructed defense counsel not to present such evidence unless he could prove that Vargas was involved in the incidents, and ordered him to make an offer of proof concerning the testimony of each witness before calling the witness. Defendant objected to the requirement, but made the offers of proof. The court ruled that the other witnesses could testify, on subjects of which the court approved, only after defendant testified.

The court allowed defendant to describe a prior incident in which he said that Vargas, who was with a group of young members of the Spanish Cobras, a street gang, threatened to beat up defendant. Defendant's other witnesses corroborated this testimony. Defendant also related that Vargas and another Hispanic youth on another occasion tried to start a fight with him on the street.

The jury found defendant not guilty of attempted murder and aggravated battery by permanent disability, but guilty of armed violence, aggravated battery by great bodily harm, and aggravated battery involving use of a deadly weapon.

Between the end of trial and the sentencing date, defendant filed a written motion for substitution of judge for cause, along with other post-trial motions. The motion for substitution and the supporting affidavit described several incidents at trial, including the court's refusal to allow defendant to call any witnesses without first telling the court and the prosecutor what the witness would say, while placing no similar restriction on the prosecution. Defendant also stated in his affidavit that after the jury returned the verdicts the court said "words to the effect that if he would have heard the case he would have convicted the Defendant of attempted 1st degree murder; anyone who pulls a gun intends to kill." Defendant argued the judge was prejudiced because he believed defendant guilty of a charge on which the jury found him not guilty.

When the court started to set a date for hearing the motions, defense counsel said:

"With respect to the motion for substitution of Judge, your Honor, I believe I'm accurate in stating that the statute provides that your Honor cannot hear that motion, that it has to be transferred immediately to another judge for hearing."

The court answered, "It's not going to be transferred." Counsel reiterated that the statute required transfer for hearing the motion: "The judge to whom the motion is presented cannot hear the motion. It has to be assigned out to another judge for consideration."

At the date for hearing the motion, defense counsel again said that "the law requires this Court to do nothing more than send it to another Judge, the chief Judge, of this division for reassignment to consider the question whether this Court is unduly biased." The prosecutor said defendant needed to make the motion prior to any substantive ruling in the case, so the motion came too late. The judge denied the motion because he found that he was not prejudiced.

Defense counsel reiterated his position that the court had no right to proceed on the other motions until a judge with the power to do so heard the motion for substitution. The court instructed counsel to proceed on his other motions, agreeing that defendant was not waiving any right to challenge the propriety of the ruling on the first motion. The court denied all motions and sentenced defendant to 25 years in the custody of the Department of Corrections on the armed violence charge. No sentence was imposed on either aggravated battery charge.

Defendant moved for reconsideration of the post-trial motions and sentencing, arguing once more that the court violated statutory procedures by hearing and deciding the motion for substitution of judge for cause. The court denied the motion for reconsideration, and defendant filed a timely notice of appeal.

I

On appeal defendant again argues that the circuit court violated procedures mandated by statute when he refused to transfer to another judge the motion for substitution of judge for cause. The State answers that defendant waived the issue, stating that "defendant never objected to the trial court ruling on his motion for substitution of judge." Defense counsel, however, objected to the circuit court setting a date for hearing the motion for substitution, objected at the hearing to the failure to assign the motion to another judge, both before and after the judge ruled on the merits of the motion, and again objected to the refusal to send the motion to another judge in defendant's post-sentencing motion. Defendant more than adequately preserved the issue for review.

Section 114-5(d) of the Code of Criminal Procedure of 1963 provides:

"Any defendant may move at any time for substitution of judge for cause, supported by affidavit. Upon 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. 1991, ch. 38, par. 114-5(d), now codified at 725 ILCS 5/114-5(d) (West 1992).

The right to a substitution of judge for cause is not absolute, and the burden of establishing cause rests with the moving party. (In re C.S. (1991), 215 Ill App. 3d 600, 575 N.E.2d 1, 159 Ill. Dec. 1; People v. Andricopulos (1987), 162 Ill. App. 3d 899, 516 N.E.2d 302, 114 Ill. Dec. 147, appeal denied (1988), 118 Ill. 2d 546, 520 N.E.2d 388.) Here, defendant failed to establish even a threshold basis for his substitution motion. In contrast to People v. Brim (1993), 241 Ill. App. 3d 245, 249, 608 N.E.2d 958, 181 Ill. Dec. 707, appeal denied (1993), 151 Ill. 2d 568, 616 N.E.2d 339), where it was alleged that the judge's own misconduct had caused an improper judgment, here defendant's bases for his motion for substitution of judge--the judge's trial rulings and the statement allegedly made by the judge to the jury after the verdict--did not lead to an improper verdict and do not support any valid allegations of prejudice.

Defendant swore in his affidavit that the court showed prejudice near the end of trial by requiring defendant to present an offer of proof concerning the testimony ...


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