People v. Rivers

FOURTH DIVISION
JANUARY 8, 1998

No. 1--96--0731

THE PEOPLE OF THE STATE OF ILLINOIS, )Appeal from the
)Circuit Court of
Plaintiff-Appellee, )Cook County
)
v. )
)
TONY RIVERS, )Honorable Ronald
)A. Himel, Judge
Defendant-Appellant. )Presiding.


PRESIDING JUSTICE CERDA delivered the opinion of the court.
Following a jury trial, defendant, Tony Rivers, was
convicted of aggravated kidnapping (720 ILCS 5/10-2-A (West
1992)), two counts of aggravated criminal sexual assault (720
ILCS 5/14(a)(West 1992)), and armed robbery (720 ILCS 5/18-2-A
(West 1992)). He was sentenced to 50 years' imprisonment. The
issue on appeal is whether the trial court's comments to defense
counsel and to a potential juror were so prejudicial that they
denied defendant a fair trial. For the following reasons, we
affirm.
Defendant complains of several remarks made toward defense
counsel outside the jury's presence. When the defense counsel
made a motion for a continuance prior to jury selection, the
court stated:
"It's almost impossible to explain to anybody why this
case would have taken so long. But just listening to
you snivel and cry and whine about a reason for a
continuance is almost enough to make a grown man want
to throw up."
During jury selection, the following discussion between the
trial court and a prospective juror occurred:
"[JUROR]: I'm biased toward the defendant, because I
also think that the State's Attorney has the leverage
in the case.
I also think it's very difficult for anyone poor
to get a fair and impartial trial in America.
Having said that, I would probably weigh the
facts.
* * * *
THE COURT: All I'm asking you, can you wait, even with
these readily accepted preconceived notions and
understanding -- friendship with the Public Defender's
[sic], understanding that on alot of cases poor people
-- and I disagree with you, you know, starting with the
O.J. case, that is an Assistant Public Defender
defense. That is the age-old conspiracy. That is a
million dollar lawyer who got luckier than any other
lawyer in history."
After the potential juror was excused by the State, defense
counsel moved for a mistrial. During the discussion on the
motion, the following occurred:
"[DEFENSE COUNSEL]: I think some cumulative comments
by the Court regarding the O.J. Simpson case has [sic]
left this jury polluted, Judge.
* * * *
THE COURT: Well, sir, make your objections as to the
time that you're troubled about them, and make them
timely.
[DEFENSE COUNSEL]: How can I say that in front of the
jurors?
* * * *
I'm making the objection now because now is the timely
time to do it. I'm not --
THE COURT: Well, I don't think it's timely because the
jury isn't still here."
After denying the motion for a mistrial, defense counsel
continued to argue his position. The court stated:
"I heard you the first time. I heard you the first
time. Unless you want to spend the night with your
client in custody, I would expect you to argue your
motions and receive the ruling. Any back talk by you
will not be tolerated by this Court. Any conversations
about your inability transferred to the ability of this
Court to be fair and impartial will not be allowed.
Okay. You have already made all the motions
you're going to make as far as why this case should be
continued. Your other dilatory practices at this time
are considered just dilatory practices, and I will rule
on any motion that you make at a timely time."
Prior to opening statements, defendant told the trial court
that he was taking psychotropic drugs and had told his attorney
about the medication. Because defense counsel did not request a
fitness hearing, the State asked for an immediate hearing on
defendant's fitness to stand trial. After the hearing, the
following discussion occurred between the trial court and defense
counsel:
"THE COURT: First of all the Defendant said that he
told you he was taking this medication and it affected
his ability, and wanted you to file for a behavior
clinic; is that true or false.
[DEFENSE COUNSEL]: Are you ordering me?
THE COURT: I'm not ordering you to do anything. I ask
you to act like a lawyer in regards to this case. An
allegation has been made that is quite frightening to
this court in regards to your handling of the case.
Now I don't know. It's been my opinion that you are
willing to give up your license to help someone get a
not guilty; that's clear to me that you're willing to
do almost anything to prevail in a lawsuit, including
call yourself incompetence [sic]. Now whether or not
this is borne out by the facts only time will tell."
Later, in camera, the following occurred during a discussion
on an evidentiary matter:
"[DEFENSE COUNSEL]: What the identification exception
to the hearsay rule is, is when a person making the
identification goes that's him. What they did here was
-- I think the record should reflect the Judge walked
out of the chambers in the middle of my argument.
THE COURT: You saw me walk out of chambers?
[DEFENSE COUNSEL]: I believe I was--
THE COURT: I was opening my door.
[DEFENSE COUNSEL]: I apologize.
THE COURT: You better apologize. You're about ready
to go in custody with your client! We're going to have
several hearings in this case. Give me one more look
like that, pal, and you will be in custody. Now I am
tire [sic] of you acting like this poor hurt little
child. Now you either strap it up and get on with this
trial, and make your objections, and quit picking on
everything I do as some personal animosity that you're
showing for me. Because I have none for you. I have a
lot of disappointment for you, but no animosity."
During cross-examination of a police officer, in front of
the jury, the following occurred:
"THE COURT: Again, it's not his report. If you would
just ask these in regards to his partner's report.
Just ask questions in regards to the facts solicited
not the facts that you think. Ask questions in regards
to the facts in this case.
[DEFENSE COUNSEL]: I believe he adopted the report
when he says he read the report, he signed the report.
THE COURT: I don't believe he adopted the report. I
heard what he said, and I heard him tell you he didn't
make out the report. You knew he didn't make out the
report. What you figure is not important. It's what
is important that this witness says [sic]. So ask him
questions in regards to the questions that he already
answered."
Defendant relies on People v. Heiman, 286 Ill. App. 3d 102,
675 N.E.2d 200 (1996), which involved the same judge as in this
case. Nevertheless, the two cases are very different. Not only
was Heiman a bench trial, not a jury trial, but the trial court
harbored preconceived notions regarding the defendant and his
witnesses, which led to its rejection of the defendant's self-
defense theory even before the defendant presented all his
evidence.
Defendant also cites People v. Eckert, 194 Ill. App. 3d 667,
674, 551 N.E.2d 820 (1990), where a new trial was ordered because
the trial court repeatedly expressed hostility toward the defense
counsel in front of the jury and did not allow the defense
counsel the opportunity to effectively present his case. Eckert,
194 Ill. App. 3d at 673-74.
A defendant is entitled to a trial that is free from a trial
court's improper or prejudicial comments. People v. Garrett,
276 Ill. App. 3d 702, 711, 658 N.E.2d 1216 (1995). A fair trial
contemplates that the jury will, alone, fulfill its duty of
determining the facts, and it is not the province of the court,
in a criminal case, to express by word or indicate by conduct, in
the jury's hearing, any opinion on the facts. People v. Marino,
414 Ill. 445, 450, 111 N.E.2d 534 (1953). Jurors are ever
watchful of the attitude of the trial court and its influence on
them is necessarily and properly of great weight, thus its
slightest remark or intimation is received with deference and may
be controlling. People v. Vargas, 174 Ill. 2d 355, 364, 673 N.E.2d 1037 (1996); Marino, 414 Ill. at 450-51; Eckert, 194 Ill.
App. 3d at 673-64.
Hostile conduct by the court toward the defense counsel is a
factor that may influence a jury to the prejudice of the
defendant. Marino, 414 Ill. at 451. Nevertheless, the reviewing
court must consider the record as a whole when determining
whether the trial court harbored a belittling and resentful
attitude toward the defense attorney and conveyed that attitude
to the jury. Marino, 414 Ill. at 451. In the final analysis, a
trial court's improper comments are reversible error only if the
defendant can establish that the comments were a material factor
in his or her conviction or had a probable effect on the jury's
verdict. Garrett, 276 Ill. App. 3d at 711.
Considering the record as a whole, we conclude that the
trial court's remarks in this case did not prejudice defendant.
Most of the remarks were made outside the presence of the jury,
and taken in context, did not show such animosity toward defense
counsel that the trial court's attitude affected the jury. As
indicated in the trial court's remarks during the hearing on
defendant's motion for a new trial, the trial court admitted that
it made some improper remarks toward defense counsel prior to the
beginning of testimony, but changed its mind shortly thereafter.
It appears from the record that the trial court changed its
attitude toward defense counsel during the opening argument, when
the court realized that the attorney was in fact prepared to try
the case. There is nothing in the record to indicate that
defendant was prejudiced by the trial court's remarks to the
defense counsel either in front of or outside the presence of the
jury.
Accordingly, we affirm the circuit court judgment.
McNAMARA, J., concurs.
WOLFSON, J., specially concurring.
JUSTICE WOLFSON, specially concurring:
I agree with the result reached, but I think more needs to
be said about the trial judge's conduct.
The trial judge could have denied the defense a continuance
without saying: "But just listening to you snivel and cry and
whine about a reason for a continuance is almost enough to make a
grown man want to throw up." The judge's language was unseemly
and unprofessional. It has no place in a court of law, in or out
of the jury's presence.
The jury could have been selected without the trial judge
saying to a prospective juror: "***and I disagree with you, you
know starting with the O.J. case, that is an Assistant Public
Defender defense. That is the age-old conspiracy. That is a
million dollar lawyer who got luckier than any other lawyer in
history."
The reference to "an assistant public defender defense"
clearly was intended to deprecate the efforts of lawyers who
devote their energies to the defense of indigent people who
sometimes do not have much of a defense. That is what lawyers
are supposed to do. They should not have to bear insults from
those whom we vest with grave authority to conduct judicial
proceedings in a fair and dignified manner.
Of course, there are times when trial judges rightly become
impatient and irritable. But these are the times when they must
justify the confidence placed in them by the public. These are
9
1-96-0731
times for restraint, not anger; civility, not bullying; patience,
not outburst. These are times for some judges to remember they,
too, once stood before judges and vigorously urged the causes of
clients who, for the uninformed, did not deserve such effort and
such passion.

10