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11/21/96 PEOPLE STATE ILLINOIS v. ISRAEL VARGAS

November 21, 1996

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



The Honorable Justice McMORROW delivered the opinion of the court: Chief Justice Bilandic, dissenting: Justice Nickels joins in this dissent.

The opinion of the court was delivered by: Mcmorrow

The Honorable Justice McMORROW delivered the opinion of the court:

The question presented in this case is whether a trial judge's absence from the courtroom during a portion of the cross-examination of a witness at a murder jury trial constitutes per se reversible error, or whether prejudice to defendant must be shown in order to warrant reversal. We hold that judicial absence during a felony trial constitutes per se reversible error.

Background

The record in the present case reveals that in December 1990, defendant, Israel Vargas, was tried and convicted by a jury in the circuit court of Cook County for first degree murder on an accountability theory. The State's evidence at trial was essentially as follows. On January 17, 1990, at approximately 9:30 p.m., defendant, Raphael Padilla, and James Kallenborn, all members of the Satan Disciples street gang, discussed "putting a hit" on a member of the Vice Lords, a rival gang, in retaliation for a previous shooting incident between the two gangs. Later that evening, shortly before 10 p.m., the three men were walking along 63rd Street toward Artesian Avenue when they saw the victim, Alvin Gill, in front of a residence located on Artesian. Defendant, Padilla, and Kallenborn believed that the victim was a member of the Vice Lords because the bill of the victim's cap was positioned off to the left, indicating to them that he was a member of a rival gang.

Upon seeing the victim, Padilla pulled out a gun and fired a shot at the victim. In response, the victim turned to one side and ran eastbound into an alley. Defendant, Padilla, and Kallenborn chased the victim into the alley, where the victim was shot again. The victim died from gunshot wounds inflicted by Padilla.

The trial judge's absence in this case occurred as testimony was being elicited from Assistant State's Attorney Michael Vittori. During the State's direct examination of Vittori, Vittori read into evidence a handwritten statement taken by him from defendant wherein defendant describes, in detail, his involvement in the victim's murder. Shortly after defendant's attorney began his cross-examination of Vittori, the trial judge briefly excused himself from the courtroom. On this matter, the record reveals that the following occurred:

"THE COURT: Excuse me, Mr. Flanagan [defense counsel]. 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, is that correct?

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 with 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 [defendant] when you spoke to him on January 18th, isn't that right, anything that he'd say would be used in court, didn't you tell him that?

A. That['s] right. I did inform him of, yes.

Q. And that is part of your job, isn't it?

A. Yes.

Q. So when you were talking to [defendant] you were acting as an attorney for the State of Illinois and not as his attorney?

A. Yes. That is what I told him.

Q. And your job as a State's Attorney was to gather evidence to prosecute ...


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