People v. Vargas

• Decision Date: 28 March 1995
• Docket Number: No. 1-91-0625,1-91-0625
• Citation: 271 Ill.App.3d 337,648 N.E.2d 986
• Parties: , 208 Ill.Dec. 64 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Israel VARGAS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 986

648 N.E.2d 986

271 Ill.App.3d 337, 208 Ill.Dec. 64

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

No. 1-91-0625.

Appellate Court of Illinois First District, Second Division.

March 28, 1995.

Justice McCORMICK delivered the opinion of the court:

After a jury trial, defendant was convicted of first degree murder of Alvin Gill on a theory of accountability and sentenced to 35 years' imprisonment. On appeal, defendant contends: (1) he was denied his right to due process as a result of the trial judge's leaving the courtroom during trial and allowing the trial to proceed in his absence; (2) his sentence was excessive; and (3) the trial court considered improper factors in determining his sentence. We affirm defendant's conviction and sentence.

On January 17, 1990, defendant and two codefendants discussed killing members of a rival gang in retaliation for a previous shooting incident. At the corner of 63rd and Artesian in Chicago, they observed Gill whom they believed to be a member of a rival gang because the bill of his cap was off to the right. Gill was chased and died of gunshot wounds inflicted by one of the codefendants.

Defendant first contends that his right of due process was violated when, during cross-examination of one of the State's witnesses, the trial judge left the courtroom to take a telephone call. Defendant argues that the trial judge's absence constitutes plain error and, as such, mandates reversal of the judgment. The State contends that defense counsel's failure to object constitutes waiver of this issue. Alternatively, the State contends that the record does not affirmatively show that the trial judge actually left the courtroom or otherwise lost control of the courtroom, and cites a number of cases from other jurisdictions in support of this proposition.

At trial, the trial judge interrupted defense counsel while counsel was cross-examining one of the State's witnesses, and the following proceedings were had:

"THE COURT: Excuse me, Mr. Flanagan. 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?

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 to 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 Mr. Vargas 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: So when you were talking to Mr. Vargas 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 Mr. Vargas, isn't that right?

A: No. We gather information--

MS. RODI [the 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."

We first observe that the State's contention that defendant waived this issue is without merit. While Illinois courts have found that defendants may waive the issue of substitution of judges during a criminal trial (People v. Mays (1962), 23 Ill.2d 520, 525, 179 N.E.2d 654; People v. Wills (1987), 153 Ill.App.3d 328, 339, 106 Ill.Dec. 207, 505 N.E.2d 754), the courts have not found that the right to have a judge present on the bench at all times during a trial may be waived. Meredeth v. People (1877), 84 Ill. 479, 482 [no parallel citation available] ("It is not material whether the judge of the circuit court was absent from the courtroom, during the trial of the cause, by consent of counsel for the defense.").

By the same token the State's alternative contention, that the record does not reflect whether the trial judge was absent from the courtroom, is disingenuous. Not only does the record reflect that the judge "exited" and "entered," but the record also reflects that the judge had to be apprised of what happened during his absence, evidencing that he heard no part of the proceedings and was not present to rule from the bench.

A judge may not absent himself from trial proceedings without calling a recess or otherwise suspending the proceedings. (Meredeth , 84 Ill. at 482; Thompson v. People (1893), 144 Ill. 378, 381, 32 N.E. 968; Schintz v. People (1899), 178 Ill. 320, 326, 52 N.E. 903; Wells v. O'Hare (1904), 209 Ill. 627, 636-37, 70 N.E. 1056; Loftus v. Chicago Railways Co. (1920), 293 Ill. 475, 482, 127 N.E. 654; People v. Chrfrikas (1920), 295 Ill. 222, 228, 129 N.E. 73; People v. Bolton (1927), 324 Ill. 322, 329-30, 155 N.E. 310; People v. Rudorf (1909) 149 Ill.App. 215, 217 [no parallel citation available].) Although our supreme court has not had occasion to rule upon this issue in several years, we believe the above cases are still good law. See Mays, 23 Ill.2d at 524-25, 179 N.E.2d 654, where the court in reviewing Meredeth, Thompson and another case, Durden v. People (1901) 192 Ill. 493, 61 N.E. 317, stated that it did "not disagree with these decisions in the light of the extreme situations" involved.

We note, however, that in each case where the supreme court has had occasion to address the issue of a judge's absence from the bench, the court, while specifically disapproving of the practice, has reversed only where the defendant suffered prejudice as a result of the judge's absence. For example, in Meredeth, 84 Ill. at 482-83, a capital case, judgment was reversed because the judge was absent for two days during argument before the jury, his place was occupied by two other members of the bar, and the record showed that order was not maintained in the courtroom. In Thompson, 144 Ill. at 381-82, 32 N.E. 968, the presiding judge went into his chambers during the State's closing argument to prepare jury instructions. During the State's argument, defense counsel made several objections that were never ruled upon. The court reversed the defendant's conviction. However, in dicta the court indicated that its ruling might have been different if the trial judge had remained within hearing of the argument and was available to rule upon any objections. In Schintz, 178 Ill. at 326, 52 N.E. 903, the court found that although the trial judge was not present during the argument, he could hear the argument and "no questions were raised to be passed upon by the judge, and whilst not approving the practice of a judge absenting himself from the courtroom, we are not disposed to hold the facts here shown constitute error." Moreover, our supreme court has held that the absence of the trial judge from the courtroom in a criminal case is not cause for reversal absent a showing of prejudice. Quiqq v. People (1904), 211 Ill. 17, 23, 71 N.E. 886.

Here, we do not condone the trial judge's absence from the bench and it was error for the trial judge to leave the bench, for whatever reason, during the trial without first recessing the proceedings. However, considering the relevant case law and the facts of this case, we find that the error was harmless. Quiqq, 211 Ill. at 23, 71 N.E. 886.

Defendant next contends that the trial court's sentence of 35 years' imprisonment was excessive, in light of his potential for rehabilitation and his lack of a criminal record, and that his sentence was grossly and improperly disparate from the 20-year sentence imposed upon his codefendant James Kallenborn. He urges this court to reduce his sentence to 22 years pursuant to the court's authority under Supreme Court Rule 615(b). 134 Ill 2d R. 615(b).

A trial judge's sentencing is afforded great weight and deference. (People v. Perruquet (1977), 68 Ill.2d 149, 154, 11 Ill.Dec. 274, 368 N.E.2d 882.) A sentence is within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. (Perruquet, 68 Ill.2d at 154, 11 Ill.Dec. 274, 368 N.E.2d 882.) "[A] disparity between sentences will not be disturbed * * * where it is warranted by differences in the nature and extent of the concerned defendants' participation in the offense." (People v. Godinez (1982), 91 Ill.2d 47, 55, 61 Ill.Dec. 524, 434 N.E.2d 1121, citing People v. Johnson (1978), 59 Ill.App.3d 640, 642, 16 Ill.Dec. 920, 375 N.E.2d 1027.) Fundamental fairness is not violated by the mere fact that one defendant receives a substantially longer sentence than another. People v. Milton (1989), 182 Ill.App.3d 1082, 1094, 131 Ill.Dec. 671, 538 N.E.2d 1227.

Here, the record shows that the court properly considered all evidence presented by defendant in mitigation in imposing sentence. With respect to defendant's disparate sentence argument, the evidence established that codefendant...