Appeal from the Circuit Court of Cook County. No. 95 CR 156 Honorable Ralph Reyna Judge Presiding.
The opinion of the court was delivered by: Justice Tully
Not released for publication.
MODIFIED UPON DENIAL OF REHEARING
Following a jury trial, defendant, Anthony Hill, was convicted of two counts of first degree murder and one count of attempt first degree murder. Defendant was sentenced to a term of natural life as to the murder charges and a concurrent term of thirty years' imprisonment as to the attempt first degree murder count. It is from this judgment of conviction defendant now appeals pursuant to section 6 of Article VI of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6) and Supreme Court Rules 603 and 606 (155 Ill. 2d R. 603, 606).
For the reasons which follow, we reverse and remand.
At trial, defendant claimed he acted out of self defense against the victims who were the actual aggressors in this case. In support of this defense, defendant presented a significant amount of testimony detailing the harassment and intimidation suffered by him at the hands of Gangster Disciple members, specifically, at the hands of Darnell Harris, a high ranking officer in the organization. He testified as to how he had been tormented and threatened over the course of several months by gang members because he would not join ranks with them in their war with a rival gang. Ultimately, the culmination of his fear and frustration led him to an emotional breaking point which ended in a violent shooting spree on November 29, 1994.
During the afternoon hours of that fateful day, Darnell Harris and Charles Buford, both members of the Gangster Disciples, went to defendant's home where Harris made remarks which defendant construed as a threat against his life. Later that evening, in an apparent attempt to thwart his own untimely demise, defendant and Kyle Edmondson (a co-defendant not party to this appeal) donned dark clothing and ski masks, armed themselves with guns and went to the street corner where he knew Harris, Buford and several other members of the Gangster Disciples were loitering. Defendant's claimed intent was to scare the thugs.
Defendant recounted how Andrew Redmond lunged toward him as he approached the gang and when Redmond was within approximately 3 feet of defendant, he fired his weapon. He also stated he saw Darnell Harris reaching toward his back pocket as if to retrieve a gun. Defendant continued firing his weapon until it was empty of ammunition.
The state, on the other hand, posits that defendant was just another thug vying with the Gangster Disciples for valuable territory from which to peddle drugs. Testimony elicited from state witnesses claimed they were merely standing on the corner, unarmed, when two men in ski masks rounded the corner and opened fire on them. The shooting did not stop until Videl McGee and Andrew Redmond were dead, and Charles Buford lay on the ground, shot twice in the back.
Defendant and Edmondson ran to defendant's home, abandoned the dark clothing and ski masks in the garage, entered the home and went up to the attic apartment. The police arrived at defendant's home within minutes of the shooting and both defendant and Edmondson were arrested.
The jury returned guilty verdicts as to the murder of Andrew Redmond and Videl McGee and the attempt murder of Charles Buford but found the defendant not guilty of attempt murder of Darnell Harris.
On appeal, defendant submits as error at the trial of this cause: (1) the verdicts are logically and legally inconsistent and therefore should have been rejected by the trial court; (2) the absence of the trial judge during the deliberation by the jury was improper and deprived defendant from addressing a legal argument to the court; (3) the trial court improperly refused to tender the jury a second degree murder instruction; (4) the court erred in excluding evidence regarding the victim's prior convictions where the defense was self defense; (5) the trial court improperly instructed the jury as to the state witness' prior convictions; (6) the trial court improperly restricted defendant's cross-examination of the state's chief witness; and (7) the trial court erred in refusing to allow defendant to offer evidence correcting alleged perjured testimony by a state witness.
We begin our analysis with an examination of defendant's contention that the absence of the trial judge denied the defendant due process and was such an affront to the judicial system as to constitute per se reversible error. The gravamen of the issue lies with the fact that the trial judge left the courthouse after tendering the case to the jury and was therefore unavailable to answer questions sent out by the jury, hear legal arguments regarding the tendering of additional instructions to the jury or make any determination regarding the inconsistency of the verdicts.
In support of this contention, defendant cites People v. Vargas, 174 Ill. 2d 355 (1996). The Vargas case discussed the resulting prejudice to a criminal defendant where the trial judge absents himself from the bench during a portion of the trial or where there is a substitution of judges at some point during the evidentiary phase of a felony trial. The supreme court concluded that a judge's absence from the bench might unduly influence the attitude of the jurors so as to deny defendant an impartial trial. Vargas, 174 Ill. 2d at 364.
We believe defendant's reliance on the Vargas case is misplaced. Illinois law is clear that a defendant is entitled to the judgment of one judge up to the time of the retirement of the jury to consider their verdict. People v. Mays, 23 Ill.2d 520 (1962); Huwe v. Commonwealth Edison Co., 29 Ill App. 3d 1085 (1962). Moreover, jury deliberations have long been regarded as a routine matter not requiring the presence of the trial judge. Huwe v. Commonwealth Edison Co., 29 Ill. App. 3d 1085, 1087 (1962); Chicago & Alton R.R. Co. v. Merriman, 86 Ill. App. 454, 455 (1899). Consequently, we do not believe the holding in Vargas is applicable to the facts in the case sub judice. The mere substitution of judges after the jury begins deliberation is not per se reversible error.
Defendant further argues he was prejudiced because the judge who conducted the trial and was familiar with the facts of the case as well as the previous rulings was unavailable to answer the jury's questions and rule on defendant's request to submit additional jury instructions. We agree.
We have painstakingly reviewed the record and include the salient portions of the transcript of the hearing had before the substitute judge after the jury sent out its questions at approximately 3:00 p.m. The two questions tendered by the jury were: (1) Why is Anthony Hill being charged with attempt 1st murder on Darnell Harris? and not on Carlton Logan and Vernon Tony? and, (2) Is the jury allowed to make a recommendation of leniency toward the defendant?
MR. PETRAKIS [assistant State's Attorney]:"As to the second question, we would ask your Honor to instruct the jury that they are not to consider possible punishment. That punishment is not their function and based on that, they should continue to deliberate.Generally, that's included in the 101, Judge. I've looked at a copy of the jury instructions in the court file, the same jury instructions that this jury has back there now, and it did not include that language, that they're not supposed to consider the punishment.
So, since it was omitted there and since the jury apparently has some concern about that, we believe that that would aid the jury in their deliberations and would ...