People v. Reynolds

No. 2--95--0126
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
_________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Du Page County.
)
Plaintiff-Appellee, )
) Nos. 80--CF--0639
v. ) 80--CF--1848
)
DONALD C. REYNOLDS, ) Honorable
) Ann Brackley Jorgensen,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________

JUSTICE INGLIS delivered the opinion of the court:
Defendant, Donald C. Reynolds, appeals from the denial of his
petition for post-conviction relief. We reverse and remand with
directions.
On June 4, 1991, defendant filed a sworn pro se petition for
post-conviction relief, contending that his trial counsel, Robert
Boyd, had rendered ineffective assistance. Defendant alleged that
Boyd had a private, in-chambers, conversation with the sentencing
judge, Charles Norgle, immediately preceding the sentencing
hearing. (Since that time, Judge Norgle has been appointed to the
federal bench.) In this conversation, Judge Norgle is purported to
have said that he would impose the maximum extended term on the
defendant unless Boyd talked him out of it. Defendant alleged that
Boyd did not inform him of the conversation until after he had
pleaded guilty. Defendant further alleged that he had asked Boyd
to provide an affidavit to verify the content of the purported ex
parte conversation and that Boyd never responded.
Defendant asked leave to take an evidence deposition, and on
April 30, 1992, the court entered an order allowing defendant to
take Judge Norgle's deposition. On October 15, 1993, the parties
informed the court that Judge Norgle had refused to submit to the
deposition. In a letter dated October 12, 1993, Judge Norgle
stated that he was "not aware of any issues which would require the
calling of the judge who presided in the case as a witness." Judge
Norgle also questioned the good faith of any subpoena that might be
issued to compel his testimony. The parties then agreed to the
alternative of having Boyd testify regarding the allegations in the
post-conviction petition.
On June 3, 1994, a hearing on the petition was held in which
Boyd testified that he did not specifically recall any conversation
with Judge Norgle regarding defendant's sentencing hearing.
Moreover, Boyd specifically denied the allegations in defendant's
petition, stating, "Judge Norgle would not have said those things
to me." Defendant objected, and Boyd interjected, "He didn't say
those things to me." In ruling on the objection, the court stated:
"I appreciate the objection but I'll state for the
record that I don't think that that is speculation on the
part of the witness [Boyd], a witness who had appeared
before Judge Norgle on numerous occasions.
I'll also state for the record so there is some basis
for my comment here, I have known this witness [Boyd] for
many, many years. I have also known Charlie Norgle for
many, many years. I think the witness' statement is not a
conclusion; it is a [sic] rather a very accurate statement
of fact.
But your objection is noted for the record."
Continuing his testimony, Boyd again denied having any
discussion with defendant regarding an off-the-record communication
with Judge Norgle in which Judge Norgle revealed his intention to
sentence defendant to a 60-year term of imprisonment. After Boyd's
testimony, defendant was given leave to submit interrogatories to
Judge Norgle to determine if he recalled any conversation with Boyd
and what the substance, if any, was.
On June 28, 1994, defendant filed the original interrogatories
with the court. On August 8, 1994, defendant informed the court
that Judge Norgle refused to respond. In a letter dated July 15,
1994, Judge Norgle stated, "While I do not believe that I have any
information that would be of assistance to you, I am not sure that
it is appropriate for me to respond to the interrogatories." Judge
Norgle asserted that a response to the interrogatories could
violate the Code of Judicial Conduct (codified at 155 Ill. 2d R. 61
et seq.) and that he had a privilege against testifying about his
mental processes. Judge Norgle concluded by stating, "There does
not appear--based upon the information available to me--to be
sufficient reason to overcome the general rule against a judge
testifying about a prior proceeding." Defendant then asked the
court to issue a subpoena for Judge Norgle. The court refused but
suggested that defendant ask Judge Norgle to submit an affidavit
verifying that he had no personal knowledge of any matters
regarding this case other than what occurred on the record.
On January 4, 1995, defendant informed the court that Judge
Norgle had not responded to his request for an affidavit and
renewed his request for a subpoena for the judge. The court then
ruled on defendant's petition, first taking notice of Judge
Norgle's letters, which the court construed as a denial that any
conversation occurred between Judge Norgle and Boyd. The court
also agreed with Judge Norgle's position that it would be improper
for him to testify regarding the circumstances surrounding the
performance of his duties. Finally, the court denied defendant's
petition, specifically finding that the alleged conversation
between Boyd and Judge Norgle never occurred. Defendant timely
appealed this ruling.
On appeal, defendant contends that the court erred by denying
his request to subpoena Judge Norgle to testify and that he was
denied a fair hearing on his petition due to the court's bias. We
hold that the court erroneously denied defendant's request to
subpoena Judge Norgle.
Before we determine defendant's issue, we must first answer
the question of whether defendant was even entitled to request a
subpoena of Judge Norgle. In view of the vulnerability of judges
to compulsory service for the many cases they hear and the natural
desire of criminal defendants to examine their judges, a party
seeking to subpoena a judge must first pass a reasonable threshold.
The party should first be required to ask the court's leave to
subpoena the judge. People v. Ernest, 141 Ill. 2d 412, 422 (1990).
The court should then hold a hearing to ensure the following
prerequisites are met. People v. Palacio, 240 Ill. App. 3d 1078,
1102 (1993).
"First, the party subpoenaing the [judge] must specifically
state the testimony the party expects to elicit from the
[judge]. Second, that party must specifically state why
that testimony is not only relevant, but necessary to the
party's case. Finally, that party must specifically state
the efforts that party has made to secure the same evidence
through alternative means." (Emphasis in original.)
Palacio, 240 Ill. App. 3d at 1102.
Considering the facts of this case, we find that defendant has
crossed the Palacio threshold.
Turning now to defendant's argument, we agree that Judge
Norgle was a material witness regarding defendant's allegations.
In that respect, People v. Montgomery, 162 Ill. 2d 109 (1994), is
instructive. There, the defendant alleged that his trial attorneys
provided ineffective assistance because they convinced him to plead
guilty to murder based on an improper ex parte promise to sentence
him to life imprisonment. Montgomery, 162 Ill. 2d at 111. The
court acknowledged that the post-conviction judge has wide
discretion to limit the type of evidence he or she will permit.
Montgomery, 162 Ill. 2d at 113. The court held, however, that the
post-conviction court abused its discretion in limiting the cross-
examination of the trial judge, as his testimony "went right to the
heart of the controversy," which was "whether [the trial judge]
made an inappropriate promise to defendant during an inappropriate
ex parte communication." Montgomery, 162 Ill. 2d at 113.
We find the reasoning of Montgomery to be persuasive in this
case. Here, the central allegation was whether Judge Norgle made
an inappropriate ex parte remark to Boyd. By refusing to issue a
subpoena to secure Judge Norgle's testimony, testimony which will
go "right to the heart of the controversy," the court abused its
discretion. Without this testimony, the court cannot reasonably
conclude that the conversation did not occur, as Judge Norgle's
letters shed no light on the main issue. See Montgomery, 162 Ill. 2d at 113. Accordingly, we hold that it was error for the court to
refuse to issue a subpoena to Judge Norgle.
The State contends that the court correctly refused to issue
a subpoena to Judge Norgle. The State claims that the court had
made a credibility determination concerning Boyd's testimony and
Judge Norgle's letters, which, according to the State, indicated
that Judge Norgle had no private, ex parte conversation with Boyd
about defendant's sentence. Moreover, the State asserts that Judge
Norgle's testimony would have been cumulative to Boyd's. We
disagree.
Although the court had the opportunity to determine Boyd's
credibility and may have believed his testimony, Judge Norgle's
letters do not foreshadow what his testimony will be. His letters
merely assert that he does not believe that he has any relevant
information regarding defendant's post-conviction claim. Without
Judge Norgle's testimony, it is impossible to say that it is
cumulative to Boyd's. Thus, we reject the State's contention on
this point.
We also address the concerns which Judge Norgle raised in his
letters to defendant's post-conviction counsel. In both letters,
Judge Norgle asserts that he does not believe that he has any
information which would be relevant to the disposition of
defendant's claims. We respectfully note that it is not for the
witness to determine whether his or her testimony is relevant to
the matter at hand, but for the judge presiding. To accept this
argument would allow any witness to disqualify himself on the
grounds that he did not believe he had relevant information. Thus,
we cannot allow Judge Norgle's belief that he has no relevant
information about defendant's claim to determine the result in this
case.
Judge Norgle also expressed concern that his testimony might
violate the Code of Judicial Conduct (codified at 155 Ill. 2d R. 61
et seq.). Specifically, he points to Canon 1 (155 Ill. 2d R. 61),
regarding independence and integrity, and Canon 2 (155 Ill. 2d R.
62), regarding the avoidance of impropriety and the appearance of
impropriety. We do not see how a properly focused and limited
examination would conflict with his duties under the Code of
Judicial Conduct. Therefore, we do not find Judge Norgle's
concerns on this issue sufficient to preclude his testimony in this
matter.
Judge Norgle's final concern is that he may be forced to
reveal his mental processes, to which he asserts that he has a
privilege. The issue raised by defendant is simply whether Judge
Norgle had an ex parte communication with Boyd immediately before
defendant's sentencing hearing, and the substance, if any, of that
communication. Defendant's petition simply raises no issue that
would require Judge Norgle to testify about his mental processes in
reaching a judicial decision.
For the foregoing reasons, we hold that the court erred by
refusing to issue a subpoena to compel Judge Norgle's testimony.
Although we are mindful of the burden which compliance with a
subpoena would place upon Judge Norgle and his court, we note that
judges may be called as witnesses. See Montgomery, 162 Ill. 2d 109. We also note that the record reflects that Judge Norgle
rejected defendant's offer to take his deposition, which we assume
would have been at a time and place of his convenience. Judge
Norgle also refused to answer the following two interrogatories:
"1. On or about November 10, 1981, prior to accepting
the plea of guilty and the sentencing hearing of [defendant]
in regard to the above captioned matters[,] did you have an in
camera conversation with Robert Boyd, counsel to [defendant]
in regard to the sentences to be imposed on [defendant]?
***
2. If the answer to interrogatory #1 is yes, what[,] to
the best of your recollection[,] did you say to Mr. Boyd?"

We find these two interrogatories to be relevant and to the point.
In addition, Judge Norgle also failed to respond to defendant's
subsequent request for an affidavit. Therefore, under the
circumstances of this case, we find that Judge Norgle should be
required to appear and testify. Accordingly, pursuant to Supreme
Court Rule 366 (155 Ill. 2d R. 366), we order that the court issue
a subpoena for Judge Norgle's testimony.
In light of our disposition of defendant's first issue, we
need not consider his claim of deprivation of a fair hearing, as by
our disposition, his post-conviction hearing is not concluded. We
note, however, that Judge Jorgensen's remark, quoted above, about
her long association with both Judge Norgle and Boyd, may raise
questions concerning her impartiality. Therefore, in the best
interests of the judicial system and of the defendant, pursuant to
Rule 366 (155 Ill. 2d R. 366), we order that defendant's post-
conviction hearing be assigned to another judge.
For the foregoing reasons, we reverse the order of the circuit
court of Du Page County and remand the cause for further
proceedings consistent with this order.
Reversed and remanded with directions.
DOYLE and HUTCHINSON, JJ., concur.