Appeal from the Circuit Court of Cook County. Honorable Thomas E. Nowinski, Judge Presiding.
The opinion of the court was delivered by: Justice Wolfson
After 72-year-old Rose B. pulled her car to the curb because of a flat tire, Nathan Antoine offered assistance. Unable to fix the problem, he offered her a ride to Jewel so she could call a friend.
After Rose B. accepted, Antoine drove instead to an alley and tried to force her to perform oral sex on him. When she resisted, Antoine then attempted to force anal sex on her. When this attempt failed, he again resorted to forcing her to perform oral sex on him, this time successfully.
After a jury trial, Antoine was convicted of two counts of aggravated criminal sexual assault. At the sentencing hearing, the State introduced evidence that Antoine previously had been convicted for rape, had sexually assaulted other women, and attempted to have Rose B. killed while he was in jail. Based on his prior convictions and the nature of the present convictions, the court sentenced Antoine to 60 years imprisonment on each of the two convictions, sentences to be served consecutively. See 730 ILCS 5/5-5-3.2(b)(1) (West 1996); 730 ILCS 5/5-8-4 (West 1996).
On appeal, Antoine contends: (1) he is entitled to a new trial because the trial court did not transfer his recusal motion and motion for substitution of judge for cause to another judge for ruling; (2) the trial court erred in refusing to hold a Franks hearing on the veracity of the search warrant affidavit; (3) the trial court erred in denying Antoine's motion for a continuance to secure the presence of his newly-hired attorney; (4) the trial court did not properly consider his allegations of ineffective assistance of counsel prior to sentencing; and (5) 730 ILCS 5/5-5-3.2(b)(1) and 730 ILCS 5/5-8-4(a) violate the United States Supreme Court holding in Apprendi v. New Jersey, 530 U.S. 466, 476 (2000).
We affirm Antoine's convictions and sentence.
At trial, the jury heard the following evidence:
On March 15, 1997, around midnight, Rose B. stopped at a Jewel on her way home from work. When she returned to her car, she noticed a dark car parked nearby with a man sitting in it. After placing her groceries in her car, she drove away.
While on the road, she realized she had a flat tire. She pulled over to check the tire and opened her trunk. A man she later identified as Antoine pulled alongside her car and offered assistance. A special lug wrench was needed to change her tire, which was not in her trunk. Antoine then offered her a ride back to the Jewel so she could call a friend; she accepted.
Antoine drove to an alley and stopped the car. He unzipped his pants, forced her head down, and said "suck it or I'll cut you." She begged Antoine not to force her and told him she was 72 years old. She then noticed she was cut over her right eye and was bleeding. She wiped the blood onto Antoine's pants.
After the unsuccessful attempt at anal sex, Antoine again pushed Rose B.'s head into his lap and ordered her to perform oral sex on him. She did, and he quickly ejaculated. Antoine then drove down the alley ordering her to keep her head down. After about 15 minutes, he stopped his car and told her to get out. He threatened to shoot her if she looked at him. He did not allow her to take her purse. After she got out of the car, Antoine drove away.
Rose B. went to a nearby home. The homeowner called the police, and Officer Brian Duffy responded to the call. The paramedics arrived and took her to the hospital.
She was treated with a sex assault kit. The treating nurse collected her pantyhose and took oral and rectal swabs.
While at the hospital, Rose B. told Duffy what happened. Her car was recovered, and Evidence Technician David Winston searched for latent prints. He located fingerprints on various parts of the car. He photographed and lifted the prints. He also found her flat tire had a puncture-hole on the side.
Officer Stanley McCadlow, an expert in latent print identification and comparisons, made a tentative, but not complete, identification that the latent impression belonged to Antoine. Detective William Villanova obtained an arrest warrant and a search warrant for Antoine's home.
On March 19, 1997, police officers arrested Antoine. He was placed in a lineup. Rose B. viewed the lineup and immediately identified Antoine as the perpetrator.
Antoine's car was confiscated and taken to the police station. The front seats were removed and sent, along with the sex assault kit, to the Illinois State Police Crime Lab in Joliet. The pantyhose and oral swab tested positive for semen. The front passenger seat of Antoine's car tested positive for the presence of blood. Blood samples were taken from Antoine and Rose B.
The semen stains from the oral swab could not be tested because of insufficient material. But the semen stains from Rose B.'s pantyhose were tested. The DNA profile from these stains matched Antoine's DNA profile. The blood stains taken from the seat of Antoine's car were tested and matched Rose B.'s blood.
Forensic Scientist Thomas Skinner compared nine suitable latent prints taken from Rose B.'s car. He determined all of the lifts were prints made by Antoine.
Antoine was found guilty on two counts of aggravated criminal sexual assault.
At the sentencing hearing, the trial court heard the following evidence:
On September 28, 1982, Janette L. was shopping. When she returned to her car, she noticed she had a flat tire. Antoine offered to help her change her tire. After changing the tire, he asked her for a ride to a bus stop. When she arrived, Antoine told her he had a knife and to keep driving.
When they stopped, Antoine ordered her to perform oral sex. She resisted. He then struck her, threatened her, and forced anal sex on her. She felt something around her neck and then passed out. When she awoke, Antoine and her car were gone.
Antoine was arrested. Janette L. identified him in a lineup. He then confessed to the crime and pled guilty to the charge.
On November 4, 1982, Monica G. pulled into her parking lot after driving home. When she leaned over to get things out of the back seat of the car, she was struck in the head and shoved in the car. Her attacker ordered her not to turn around. He struck her several times and forced vaginal sex "from the back." He later forced her to perform oral sex on him and then fled.
A club was found in her car, and prints from the club belonged to Antoine. He confessed to the attack and pled guilty to the charge.
In early 1996, Urbana police investigated Antoine after a woman complained he was stalking her. When Antoine was stopped in connection with the case, he consented to a search of his car. Police found a nylon mask, rubber gloves, a large hunting knife, and a box of condoms. He was subsequently charged with stalking and disorderly conduct.
In January 1997, Antoine approached a 13-year old victim while she was on her way home from school and forced her to the ground near an alley. He tried to kiss her, straddled her, unzipped his pants, forced his penis on her lips, and instructed her to play with it. When she resisted, he threatened to kill her if she told anyone what happened. In March 1997, the victim identified Antoine as the man who sexually assaulted her.
In March or early April of 1997, Antoine attempted to arrange a "hit" on Rose B. Antoine told Michael Taylor, who was in the jail cell next to Antoine's, he wanted to have "two bullets in her head" because she was "going to bury him." Taylor was concerned for Rose B. and pretended to go along with Antoine's plan.
Antoine gave Taylor details about Rose B.'s next court appearance and instructions on how he wanted the matter handled. The killer was to follow her to her home or work in order to kill her. Antoine also drew a map of an area where Antoine believed she lived.
As instructed by Taylor, Antoine had his mother send money orders to an organization as payment for the hit. The money orders were recovered, as were the map and the notes between Antoine and Taylor. Taylor received no consideration for providing the information against Antoine.
The trial court sentenced Antoine to two 60-year sentences to be served consecutively.
SUBSTITUTION OF JUDGE FOR CAUSE
Antoine contends the trial court erred in failing to transfer his motion for recusal and motion for substitution of judge to another judge for ruling.
The case was assigned to Judge Nowinski on June 19, 1997. When Antoine's counsel, Donna Foley, received the State's discovery, she learned Judge Nowinski had signed the search warrant.
On September 10, 1998, she filed a motion titled "Defendant's Motion Requesting the Court's Recusal from the Case in Chief or in the Alternative from Defendant's Substantive Pretrial Motions Based on the Court's Prior Participation in the Search Warrant Procedure."
In the motion, she contended Judge Nowinski should recuse himself to avoid any appearance of impropriety or conflict because he heard probable cause evidence and issued the warrants. The motion stated the encounter between Judge Nowinski and Villanova regarding the warrants was a "secret session," or ex parte proceeding, that required recusal. Her concern was that Judge Nowinski may have learned of other information not contained in the affidavit supporting the warrants regarding probable cause and identification.
Nowhere in the motion did she invoke or otherwise refer to 725 ILCS 5/114-5(d) (West 1998), the statute governing substitution of judge for cause. The motion was not verified, nor were any affidavits attached to the motion.
On November 17, 1998, Judge Nowinski heard Foley's arguments on the motion. At no time during her argument did she argue that Judge Nowinski should transfer the motion to another judge for ruling. Her argument was merely that Judge Nowinski should recuse himself because of his participation in the ex parte warrant proceedings. Judge Nowinski said it was not uncommon for judges in Cook County to hear motions on search warrants they signed. Although he felt he did not need to recuse himself at all, "as an accommodation to" Antoine, Judge Nowinski said he would recuse himself from ruling on the "four corners" motion -- the motion to suppress for lack of probable cause in the complaint for the search warrant.
On January 27, 1999, Antoine filed a pro se motion for substitution of judge. Antoine stated he was bringing the motion pursuant to 725 ILCS 5/114-5. While Antoine did not specify under what subsection he was filing the motion, his motion contained a reference to substitution as of right and allegations of prejudice. The motion was notarized.
Antoine's motion appears to have been brought under both subsection (a), substitution of right, and subsection (d), substitution for cause. On appeal, Antoine contends this motion was one for cause and does not contend it was a motion for substitution of judge as of right. *fn1
On February 2, 1999, Judge Nowinski addressed Antoine's motion for substitution of judge. Antoine told the court that although he understood he could not "go pro se" and be represented by counsel, he filed this pro se motion because Foley had refused to do so. The reason Foley gave Antoine for refusing to file the motion was that she thought Antoine would not "win on the motion."
The court told Antoine, "If you are filing that motion, we will set it for a hearing. After some further discussion, Judge Nowinski said:
"Mr. Antoine, you cannot file motions on your own if you are being represented by an attorney. What I will let you do is I will let you consider what your attorney wants to do and what you want to do and then I will address those issues that you have filed and see whether or not you want to proceed on them on your own and without getting any other assistance or if Ms. Foley -- or what Ms. Foley decides to do on the next date."
Neither Antoine nor Foley made any objection. From the record it appears neither Antoine or Foley ever filed the motion for substitution of judge again. *fn2 Additionally, the court's treatment of Antoine's pro se motion was not raised in Antoine's post-trial motion.
On appeal, Antoine contends his motion for recusal triggered the trial court's statutory duties under section 114-5(d). In other words, he urges us to treat his motion for recusal as a motion for substitution of judge for cause. He then contends the trial court erred by not transferring the matter to another judge for ruling as required under section 114-5(d).
In the alternative, Antoine contends the statutory obligations of 114-5(d) applied once he filed his pro se motion for substitution of judge. Relying on People v. Brim, 241 Ill. App. 3d 245, 608 N.E.2d 958 (1993), Antoine contends that once he filed his motion for substitution of judge, Judge Nowinski lost all power and authority over the case, and all his subsequent actions were void. Antoine says he is entitled to a new trial because Judge Nowinski failed to transfer the motion to another judge for ruling.
We turn first to Antoine's contention that his motion for recusal triggered a duty to transfer the motion to another judge under section 114-5(d). Section 114-5(d) provides:
"(d) *** the State or any defendant may move at any time for substitution of judge for cause, supported by affidavit. Upon the filing of such motion a hearing shall be conducted as soon as possible after its filing by a judge not named in the motion; provided, however, that the judge named in the motion need not testify, but may submit an affidavit if the judge wishes. If the motion is allowed, the case shall be assigned to a judge not named in the motion. If the motion is denied the case shall be assigned back to the judge named in the motion." (Emphasis added.) 725 ILCS 5/114-5(d).
Nothing in the title or body of Antoine's motion for recusal suggested Antoine was bringing the motion under section 114-5(d). The motion failed to meet the affidavit requirement of the statute. And Antoine's counsel never mentioned section 114-5(d) or contended Judge Nowinski should transfer the motion to another judge for ruling. In addition, the motion suggested alternative relief -- that the trial judge simply not decide the pre-trial matters, hardly a demand for a different judge. Thus, we refuse to treat Antoine's motion for recusal as a motion for substitution of judge under section 114-5(d). Cf. Schaller v. Weier, 319 Ill. App. 3d 172, 744 N.E.2d 376 (2001) (court rejected appellant's contention that it should treat her motion for recusal as a motion for substitution of judge as of right).
A motion for recusal does not trigger a duty on the part of the trial judge to transfer the motion to another judge for determination. On the contrary, the trial judge is in the best position to determine whether he or she is prejudiced against the defendant when presented with a motion for recusal. People v. Kliner, 185 Ill. 2d 81, 169, 705 N.E.2d 850 ...