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03/28/95 PEOPLE STATE ILLINOIS v. ISRAEL VARGAS

March 28, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ISRAEL VARGAS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 90 CR 4027. Honorable Michael Toomin, Judge Presiding.

The Honorable Justice McCORMICK delivered the opinion of the court: Scariano, P.j., and DiVITO, J., concur.

The opinion of the court was delivered by: Mccormick

JUSTICE McCORMICK delivered the opinion of the court:

After a jury trial, defendant was convicted of first degree murder of Alvin Gill on a theory of accountability and sentenced to 35 years' imprisonment. On appeal, defendant contends: (1) he was denied his right to due process as a result of the trial judge's leaving the courtroom during trial and allowing the trial to proceed in his absence; (2) his sentence was excessive; and (3) the trial court considered improper factors in determining his sentence. We affirm defendant's conviction and sentence.

On January 17, 1990, defendant and two codefendants discussed killing members of a rival gang in retaliation for a previous shooting incident. At the corner of 63rd and Artesian in Chicago, they observed Gill whom they believed to be a member of a rival gang because the bill of his cap was off to the right. Gill was chased and died of gunshot wounds inflicted by one of the codefendants.

Defendant first contends that his right of due process was violated when, during cross-examination of one of the State's witnesses, the trial judge left the courtroom to take a telephone call. Defendant argues that the trial judge's absence constitutes plain error and, as such, mandates reversal of the judgment. The State contends that defense counsel's failure to object constitutes waiver of this issue. Alternatively, the State contends that the record does not affirmatively show that the trial judge actually left the courtroom or otherwise lost control of the courtroom, and cites a number of cases from other jurisdictions in support of this proposition.

At trial, the trial judge interrupted defense counsel while counsel was cross-examining one of the State's witnesses, and the following proceedings were had:

"THE COURT: Excuse me, Mr. Flanagan. I have Judge Brady on the phone. You can continue. If you need me, let me know.

(Judge exited.)

MR. FLANAGAN: Q. Now, your job as a State's Attorney is to prosecute for the People of the State of Illinois?

A: That is correct.

Q: And that is what you were doing January 18th of 1990, isn't that right?

A: I was a prosecutor at that time, yes.

Q: And you were working in Felony Review?

A: That is correct.

Q: And I believe you told the ladies and gentlemen of the jury that when you work Felony Review you assist in the investigation of cases, isn't that right?

A: Yes.

Q: And you gather evidence?

A: Yes. We talk to witnesses, we talk to defendants if they are willing to talk to us.

Q: And the purpose of that is ultimately to be used in court, isn't that right?

A: Yes.

Q: That is what you told Mr. Vargas when you spoke to him on January 18th, isn't that right, anything that he'd say would be used ...


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