People v. Vargas

• Decision Date: 21 November 1996
• Docket Number: No. 79044,79044
• Citation: 174 Ill.2d 355,673 N.E.2d 1037,220 Ill.Dec. 616
• Parties: , 220 Ill.Dec. 616 The PEOPLE of the State of Illinois, Appellee, v. Israel VARGAS, Appellant.
• Court: Illinois Supreme Court

Page 1037

673 N.E.2d 1037

174 Ill.2d 355, 220 Ill.Dec. 616

The PEOPLE of the State of Illinois, Appellee, v. Israel VARGAS, Appellant.

No. 79044.

Supreme Court of Illinois.

Nov. 21, 1996.

Michael J. Pelletier, Deputy Defender, Alan D. Goldberg, Assistant Appellate Defender, of the Office of the State Appellate Defender, Chicago, and Rudy Renfer, law student, for appellant.

James Ryan, Attorney General, Springfield, and Jack O'Malley, State's Attorney, Chicago (Arleen Anderson, Assistant Attorney General, Chicago, and Renee Goldfarb, Susan R. Schierl, Robert Robertson and Michael P. Golden, Assistant State's Attorneys, of counsel), for the People.

Justice McMORROW delivered the opinion of the court:

The question presented in this case is whether a trial judge's absence from the courtroom during a portion of the cross-examination of a witness at a murder jury trial constitutes per se reversible error, or whether prejudice to defendant must be shown in order to warrant reversal. We hold that judicial absence during a felony trial constitutes per se reversible error.

Background

The record in the present case reveals that in December 1990, defendant, Israel Vargas, was tried and convicted by a jury in the circuit court of Cook County for first degree murder on an accountability theory. The State's evidence at trial was essentially as follows. On January 17, 1990, at approximately 9:30 p.m., defendant, Raphael Padilla, and James Kallenborn, all members of the Satan Disciples street gang, discussed "putting a hit" on a member of the Vice Lords, a rival gang, in retaliation for a previous shooting incident between the two gangs. Later that evening, shortly before 10 p.m., the three men were walking along 63rd Street toward Artesian Avenue when they saw the victim, Alvin Gill, in front of a residence located on Artesian. Defendant, Padilla, and Kallenborn believed that the victim was a member of the Vice Lords because the bill of the victim's cap was positioned off to the left, indicating to them that he was a member of a rival gang.

Upon seeing the victim, Padilla pulled out a gun and fired a shot at the victim. In response, the victim turned to one side and ran eastbound into an alley. Defendant, Padilla, and Kallenborn chased the victim into the alley, where the victim was shot again. The victim died from gunshot wounds inflicted by Padilla.

The trial judge's absence in this case occurred as testimony was being elicited from Assistant State's Attorney Michael Vittori. During the State's direct examination of Vittori, Vittori read into evidence a handwritten statement taken by him from defendant wherein defendant describes, in detail, his involvement in the victim's murder. Shortly after defendant's attorney began his cross-examination of Vittori, the trial judge briefly excused himself from the courtroom. On this matter, the record reveals that the following occurred:

"THE COURT: Excuse me, Mr. Flanagan [defense counsel]. I have Judge Brady on the phone. You can continue. If you need me, let me know.

(Judge exited.)

MR. FLANAGAN: Q. Now, your job as a State's Attorney is to prosecute for the People of the State of Illinois, is that correct?

A. That is correct.

Q. And that is what you were doing January 18th of 1990, isn't that right?

A. I was a prosecutor at that time, yes.

Q. And you were working in Felony Review?

A. That is correct.

Q. And I believe you told the ladies and gentlemen of the jury that when you work Felony Review you assist in the investigation of cases, isn't that right?

A. Yes.

Q. And you gather evidence?

A. Yes. We talk to witnesses, we talk to defendants if they are willing to talk with us.

Q. And the purpose of that is ultimately to be used in court, isn't that right?

A. Yes.

Q. That is what you told [defendant] when you spoke to him on January 18th, isn't that right, anything that he'd say would be used in court, didn't you tell him that?

A. That['s] right. I did inform him of, yes.

Q. And that is part of your job, isn't it?

A. Yes.

Q. So when you were talking to [defendant] you were acting as an attorney for the State of Illinois and not as his attorney?

A. Yes. That is what I told him.

Q. And your job as a State's Attorney was to gather evidence to prosecute [defendant], isn't that right?

A. No. We gather information--

MS. RODI [prosecutor]: Objection.

MR. FLANAGAN: Miss Court Reporter, could you make a note of where that is and then I can continue along another line.

Any objection counsel?

MS. RODI: No.

MR. FLANAGAN: Q. Now, in January of this year how long had you been working as a State's Attorney?

A. In January of 1990 I had been working, it wasn't four years yet because I started in June of 1986.

(Judge entered.)

MR. FLANAGAN: Judge, we did have an objection and it was one question ago. Maybe we could go back to that question. I would respectfully ask for your ruling.

THE COURT: You ask for what?

MR. FLANAGAN: Your ruling.

THE COURT: Well, what is the question?

MR. FLANAGAN: If the court reporter can read it back?

THE COURT: All right.

(The Court Reporter read the record.)

And there was an objection to that?

MR. FLANAGAN: Yes.

THE COURT: Overruled. He may answer."

After Vittori's testimony, the State rested its case in chief. The defense rested without presenting any evidence. Following closing arguments, the jury found defendant guilty of first degree murder. The court subsequently sentenced defendant to serve a term of 35 years' imprisonment.

Defendant sought review of his conviction in the appellate court arguing, inter alia, that the trial judge's absence during a portion of the cross-examination of Vittori was plain error which mandated a reversal of his conviction. The appellate court held that the trial judge's absence was error, but determined that the error was harmless. 271 Ill.App.3d 337, 341, 208 Ill.Dec. 64, 648 N.E.2d 986. We subsequently granted defendant's petition for leave to appeal. 155 Ill.2d R. 315.

Analysis

The sole issue which defendant asks us to review is the correctness of the appellate court's conclusion that the trial judge's absence during Vittori's cross-examination was harmless error. Defendant's position on this issue is twofold. Defendant contends that a trial judge's absence during the presentation of evidence at a felony criminal jury trial constitutes per se reversible error. In the alternative, defendant argues that even assuming that such absence does not amount to per se reversible error, reversal is still warranted because a trial judge's absence is error and, in the present case, defendant suffered prejudice from that error.

Defendant's contention that the trial judge's absence in this case constitutes per se reversible error is based in large part on the defendant's theory that a trial judge's presence throughout the trial is necessary to preserve the integrity and reputation of the judicial process. Defendant argues that the judge's presence is required to prevent inattentiveness on the part of jurors, improper conduct by the attorneys, and general disorderliness in the courtroom during a criminal jury trial, which have the potential of prejudicing defendant. Defendant further maintains that jurors expect that a judge will always be present during the course of the proceedings and that the judge's absence may cause jurors to believe that evidence presented during the judge's absence is, in the judge's opinion, of lesser importance.

Defendant contends that even if the absence of the trial judge did not constitute per se reversible error, defendant's conviction should be reversed because Vittori "was the single most important witness in this case, for he testified to a statement supposedly made to him by [defendant], and the State's claim of accountability rested primarily on this statement." Defendant argues that the judge's decision to leave the courtroom in order to take a phone call during the cross-examination of Vittori prejudiced defendant by creating the impression that the judge did not consider the cross-examination to be significant. Defendant also claims that any inattention or distraction by the jurors which might have been caused by the judge's absence during the cross-examination of this critical witness was likely to prejudice defendant.

The State initially counters that defendant has waived review of the trial judge's absence. The State points out that defendant did not object to the judge's absence at trial but instead proceeded, in the trial judge's absence, to continue with the cross-examination of Vittori. The State also points out that defendant did not raise an objection to the trial judge's absence in a post-trial motion. The State argues that these inactions, either individually or collectively, are sufficient to preclude our review of defendant's challenge to the trial judge's absence.

In the alternative, the State contends that even if defendant's objection to the trial judge's absence in the instant case is reviewable, the appellate court correctly held that such absence did not amount to reversible error. The State disagrees with defendant's position that the trial judge's absence constitutes per se reversible error in the present case. Instead, the State argues that the appellate court correctly interpreted the decisions of this court to conclude that a trial judge's absence during a portion of a criminal jury trial, without a showing of prejudice to defendant, is harmless error. The State maintains that, in the present case, the trial judge's absence from the bench was harmless error because defendant was actively proceeding with the cross-examination of Vittori in the trial judge's absence, the trial judge was in effective control of the proceedings during his absence from the bench, and nothing prejudicial to defendant happened during the judge's absence from the bench. The State maintains that considering the judge's absence in this light,...