The opinion of the court was delivered by: Justice O'mara Frossard
Appeal from the Circuit Court of Cook County Honorable James B. Linn, Judge Presiding.
Following a bench trial in the circuit court of Cook County, defendant was found guilty of delivery of a controlled substance and sentenced to probation for three years. On appeal, defendant contends that the trial court improperly engaged in a prosecutorial function by asking the prosecution questions that elicited incompetent evidence used to convict defendant.
On January 16, 2000, Chicago police officer Espinosa drove to 59th and Halsted. She heard a female on the sidewalk yelling "blows, blows." Espinosa had been a police officer for 9½ years and testified that "blow" is a street term for white heroin. The female told Espinosa that "the work was on the corner and to tell him that Donetta" sent her. Espinosa proceeded to the corner and asked defendant whether he worked with Donetta. He replied by saying "blows" and Espinosa held up one finger and told him "yeah, just one."
Espinosa testified that defendant disappeared around the corner from the store, returned seconds later and gave her a small ziploc packet in exchange for a marked $10 bill. Espinosa testified that she radioed enforcement that "it was a positive, gave them a description, and the location of Mr. Johnson." She described the defendant as a "male black with a black baseball cap, a black jacket with white stripes down the sleeves, jeans and white gym shoes." Espinosa told enforcement to come in, she drove around the block and eventually she returned to the area where she had made the exchange with the defendant. Officer Espinosa testified that she saw defendant "in the same spot they had detained him, right in front of the store."
After Espinosa saw the defendant in the custody of the other police officers, she radioed enforcement that the person in the custody of the other police officers was the target that had delivered white heroin to her. Espinosa proceeded to the police station where the sealed bag of heroin was inventoried. There was a stipulation to the chain of custody and to the fact that in the opinion of forensic scientist Cirk, the substance was positive for heroin.
Espinosa did not testify about the length of time it took her by driving around the block to return to the store front after she purchased the drugs and she did not testify at what point she lost sight of the defendant. The State did not call any of the enforcement or surveillance officers to demonstrate the amount of time that passed between the drug purchase and the arrest. The police did not recover the marked $10 bill. Defense counsel argued these facts in his motion for acquittal, which was denied. The defense rested his case and adopted the argument he made during his motion for acquittal.
The court found officer Espinosa to be a credible witness, found defendant guilty, and sentenced defendant to probation for three years. Defendant appeals. ANALYSIS
Defendant contends he was denied his right to due process and a fair trial by the judge (1) asking the prosecutor material questions directed at eliciting information to convict the defendant; and (2) relying on information that was incompetent evidence. Generally, a trial judge has the right to question witnesses in order to elicit truth or bring enlightenment on material issues that seem obscure. People v. Wesley, 18 Ill. 2d 138 (1959). The propriety of judicial examination is determined by the circumstances in each case and remains in the discretion of the trial court. People v. Trefonas, 9 Ill. 2d 92 (1956). In the proper exercise of discretion, the trial court may pose questions for the purpose of clarifying any ambiguities that may exist and to help elicit the truth. People v. Santucci, 24 Ill. 2d 93, 98 (1962). The propriety of such conduct must be determined by the circumstances of each case and rests largely in the discretion of the trial court. Trefonas, 9 Ill. 2d at 100. This is particularly true where the defendant is tried without a jury and the danger of prejudice to the defendant is lessened. People v. Palmer, 27 Ill. 2d 311, 315 (1963). "A defendant in a criminal case who waives a trial by jury and submits his rights and liberty to the trial judge is entitled to the same fair, patient, and impartial consideration he would be entitled to by a jury composed of fair, impartial, careful and considerate jurors." Trefonas, 9 Ill. 2d at 100. The line of propriety is crossed when the judge fails to function as the trier of fact and assumes the role of prosecutor. Trefonas, 9 Ill. 2d at 100. A trial judge is limited to the record made during the course of the trial. People v. Harris, 57 Ill. 2d 228, 231 (1974). Conclusions that are based upon a private investigation or upon private knowledge of the trial judge, untested by cross-examination, violate due process of law. People v. Wallenberg, 24 Ill. 2d 350, 354 (1962).
In determining whether the judge has crossed the line and assumed the role of prosecutor, the record must be examined in its entirety. We find the following factors instructive when examining the conduct of the judge: (1) did the judge call witnesses?; (2) did the judge conduct an examination of witnesses, and if so, what was the nature, extent and duration of the examination?; (3) was the information elicited by the judge outcome determinative?; and (4) was the information elicited by the judge ascertainable from the record by either direct or circumstantial evidence independent of the judge's examination or conduct?
Here, we have examined the record in its entirety. Defendant contends questions asked by the judge demonstrate the trial judge abandoned the impartial role as trier of fact and improperly engaged in a prosecutorial function. That argument is based on the following exchange, which occurred after defense counsel argued a motion for judgment of acquittal at the close of the State's case:
"THE COURT: How long after this transaction was it that he got arrested?
THE STATE: A few minutes.
THE COURT: Well, was he out of sight of anybody?
THE STATE: He was out of sight of this officer. There was
surveillance that followed him to a store, and then ...