APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JAMES BAILEY AND PATRICK GROSSI, JUDGES PRESIDING.
As Corrected June 15, 1995. Rehearing Denied June 20, 1995. Released for Publication July 10, 1995.
Presiding Justice Campbell delivered the opinion of the court: Buckley, concurs. Wolfson, dissents.
The opinion of the court was delivered by: Campbell
PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:
Following a bench trial in the circuit court of Cook County, defendant Michael Williams was found guilty of murder and sentenced to 80 years imprisonment. In People v. Williams (1989), 192 Ill. App. 3d 304, 548 N.E.2d 738, 139 Ill. Dec. 353 (Williams I), this court reversed and remanded for a new trial, holding that defendant had been denied effective assistance of counsel. Following retrial before a jury, defendant was again found guilty of murdering Karen Easton and sentenced to 80 years imprisonment. Defendant again appeals his conviction and sentence.
For the purpose of brevity, this court could adopt the recitation of facts set forth in Williams I. Although much of the testimony at defendant's first trial was stipulated to and not challenged by counsel, and while witnesses testified in this trial that did not testify previously, the facts elicited in the jury trial are sufficiently similar to those presented in the prior bench trial. (See, e.g., People v. Stack (1993), 244 Ill. App. 3d 166, 613 N.E.2d 1175, 184 Ill. Dec. 583 (adopting facts of prior trial).) Moreover, this appeal challenges rulings made before trial and during sentencing, not rulings made during the retrial. Thus, the evidence elicited at retrial and differences in evidence between the two trials will be only briefly summarized below.
The record on appeal indicates that the mandate of this court was filed with the circuit court on February 26, 1990. Defendant was first brought before Judge Bailey, who had presided at defendant's previous trial, on March 22, 1990. The case was continued to April 6, 1990. The record indicates that the case was again continued on five separate dates, during which time the public defender sought private counsel to represent defendant. On May 18, 1990, private counsel filed an appearance to represent defendant, whereupon the case was continued to May 30, 1990. Thereafter, the case was continued three more times.
On August 20, 1990, defendant filed a motion for substitution of judge ("SOJ") for cause. On August 28, 1990, the chief judge assigned the case to Judge Kelley for a hearing on the SOJ motion. The case was then continued on September 4 and September 14, 1990. On September 18, 1990, Judge Kelley heard and denied the SOJ motion and ordered that the case be transferred back to Judge Bailey.
Defendant also filed a motion to quash his arrest and suppressevidence on September 18, 1990. The case was then continued on October 12 and October 19, 1990. The motion was ultimately heard by Judge Bailey on October 26, 1990.
Defendant called Police Officers Dominick Cannova, Robert Navigato and Detective Lawrence Tuider to testify at the suppression hearing; defendant also testified on his own behalf. The police personnel testified that on May 29, 1985, Detective Tuider asked Officer Navigato and his partners to find defendant and bring him in for an interview. Detective Tuider did not think he told Officer Navigato to arrest defendant. Tuider also testified that there were no arrest warrants for defendant at that time, there was a stop order regarding "a traffic charge or something." Detective Tuider wanted to interview defendant because he had information that defendant had been in the hallway of Ms. Easton's building at approximately 4 a.m. on May 24, 1985. Detective Tuider had information that defendant had been seen in a drunken and belligerent condition directly across the hall from Ms. Easton's apartment. Detective Tuider also had information that defendant had been employed as a painter in the building and may have had a key for the front entrance of the building, though not for individual apartments. Detective Tuider had further information that defendant had a prior arrest for attacking a woman in a suburb of Chicago.
Police Officer Thomas Cannova testified that on May 29, 1985, he received information that he should talk to the defendant regarding a battery. Officer Cannova went to defendant's third-floor apartment at 6253 South Whipple in Chicago at approximately 5:15 p.m. and knocked on the door. Defendant answered the door; Officer Cannova displayed his badge, introduced himself, told defendant that the police were conducting an investigation regarding a battery of a young woman and asked whether defendant would mind coming to Area 3 for an interview. Defendant notes that Officer Cannova testified that he told defendant that defendant was "needed for questioning" at the first trial. Defendant asked if he had to come to the police station to which Officer Cannova responded that he did not, "but if he didn't have anything to worry about, why wouldn't he come." Defendant agreed to accompany Officer Cannova and the officer gave defendant his Miranda rights as they walked downstairs. Officer Cannova further stated that he did not have his gun out, handcuff the defendant or place defendant under arrest. Officers Cannova and Navigato, along with a third Officer Delia, then transported defendant to the police station in their squad car. Officer Cannova testified that when he spoke to defendant at the apartment, Officer Navigato had remained in the squad car and Officer Delia had been on another floor of the apartment building.
Officer Cannova admitted that a police report bearing his name indicated that defendant had been taken into custody at approximately 5:15 p.m. on May 29, 1985. However, Officer Cannova denied that the signature on the report was his signature.
Officer Navigato gave testimony that was largely similar to the account provided by Officer Cannova. Officer Navigato also admitted that a police report bearing his name indicated that at approximately 5:10 p.m. on May 29, 1985, the officers went to defendant's home and took him into custody. Officer Navigato further testified that the report was prepared on June 1, 1985, after defendant had been charged, that defendant had come in to the station voluntarily and that the report contained "an unfortunate selection of words" on his part. Officer Navigato stated that defendant was turned over to Detective Tuider at the police station.
Detective Tuider testified that he spoke with defendant in an interview room between 5 and 6 p.m. on May 29, 1985. Detective Tuider testified that defendant was not handcuffed, never asked to make a phone call or talk to an attorney. After reading defendant the Miranda warnings and ascertaining that defendant understood them, Detective Tuider asked defendant about his whereabouts on the evening of May 23 and early morning of May 24, 1985. Defendant responded that he had been out drinking for a while. Detective Tuider testified that defendant eventually gave an oral statement to an assistant state's attorney at approximately 11:30 p.m. and a written statement at approximately 1 a.m. on May 30, 1985.
We note that Detective Tuider testified at trial that he had also taken defendant's fingerprints. Detective Tuider testified that defendant asked to speak to a state's attorney after Detective Tuider informed the defendant that the police had found fingerprints on the bathroom door of Ms. Easton's apartment.
Defendant offered a different version of the events of May 29, 1985, at his suppression hearing. Defendant testified that upon answering a knock at his door, defendant was faced with Officer Cannova, who was standing with a gun in his hand. According to defendant, Officer Cannova pointed the gun at defendant's head and ordered him to get down on his knees. Defendant complied with this order and then lay face down on the floor at Officer Cannova's insistence. Detective Cannova and another officer searched defendant while he was on the floor, then handcuffed him, removed him from the building and took him to the police station.
Defendant testified that he was taken upstairs, where Detective Tuider took him into an interrogation room. Defendant testified that he was then handcuffed to the wall. Defendant also testified that hisrequest to speak to an attorney was denied. Defendant further testified that he did not have any traffic problem pending at the time of his arrest.
The trial court denied defendant's motion to quash and suppress, indicating that the motion turned on the credibility of the witnesses. The case was then continued to the prospective trial date of December 11, 1990. The case was then continued twice more until February 19, 1991, when the half-sheet indicates Judge Grossi as the judge on the case. The case was continued a number of times thereafter, during which time defendant moved to be discharged pursuant to the Speedy Trial Act (Ill. Rev. Stat. 1991, ch. 38, par. 103-5(a)). Defendant's motion for discharge was denied on October 23, 1991. Jury selection commenced on November 4, 1991.
As noted above, the facts elicited in the jury trial were sufficiently similar to those presented in the prior bench trial. In sum, the record shows that Karen Easton was discovered lying naked in a pool of her own waste in the bedroom of her apartment by her sister and her boyfriend. Easton died days later at the hospital; the cause of death was determined to be strangulation. A witness placed defendant outside Easton's apartment hours after her boyfriend had left the apartment and before he returned the day Easton was discovered. The jury was read defendant's statement, in which he admitted to entering her apartment, "coming on to her," chasing her to her bathroom, breaking down the bathroom door, grabbing Easton by her neck and bringing her into her bedroom. Following closing argument and deliberations, the jury found defendant guilty of murder, home invasion and attempt aggravated sexual assault.
Defendant filed a motion for a new trial, which was denied by the trial court on December 13, 1991. The trial court then heard arguments in aggravation and mitigation of sentencing. At the sentencing hearing, the State produced a facsimile copy of a 31 page report from the Department of Naval Investigative Service showing defendant's disciplinary record while in the Navy. Defendant objected to the introduction of the report. The State explained that the Chicago Bureau of Investigations report on defendant showed that a Maryland assault charge had been referred to military authorities. The Navy records indicated that defendant pleaded guilty to assault and battery charges and was sentenced to 18 months imprisonment in Maryland facilities. The State maintained that the inaccuracy of the Chicago Bureau of Investigations report delayed the State's inquiry into the Maryland charge and further represented that the Navy provided the facsimile copy because it could not produce the officialrecords in less than six months. Ultimately, the trial court admitted the portion of the Navy facsimile report regarding the Maryland charge, but excluded other portions of the report regarding admissions defendant allegedly made to Navy authorities regarding other incidents.
The trial court found defendant eligible for an extended term sentence on the ground that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty; thus, defendant was sentenced defendant to 80 years imprisonment. Defendant now appeals his conviction and sentence.
Defendant's first argument on appeal is that the trial court erred in denying his motion for substitution of judge. Section 114-5(d) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1991, ch. 38, par. 114-5(d)) provides that a defendant may move at any time for a substitution of judges for cause. Defendant has waived this issue on appeal because he did not raise it in his post-trial motion as trial error. See, e.g., People v. Wade (1987), 116 Ill. 2d 1, 9, 506 N.E.2d 954, 957, 107 Ill. Dec. 63.
Nevertheless, we may consider defendant's argument under the plain error rule (134 Ill. 2d R. 615(a)) where the evidence is closely balanced or the error of such constitutional magnitude that defendant was denied a fair trial. ( People v. Speight (1992), 153 Ill. 2d 365, 379, 606 N.E.2d 1174, 1180, 180 Ill. Dec. 97.) Bias in a judge is one of the few trial errors that may not be deemed harmless; moreover, the waiver rule is applied less rigidly where the conduct of the trial judge is ...