author: JUSTICE RAKOWSKI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD L. DAVIS et al., Defendants-Appellants.
    First District (6th Division)
    Nos. 1—88—3163, 1—88—3315 cons.
    Opinion filed March 13, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Richard E. Cade, Assistant Public Defender, of counsel), for appellants.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and James Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Defendants-appellants Richard Davis and Teddie McKinley were charged with armed robbery and aggravated criminal sexual assault. The cases were severed, and after separate jury trials, defendants were found guilty on all counts. Defendant Davis was sentenced to two concurrent terms of 18 years’ imprisonment, while defendant McKinley was sentenced to two concurrent terms of 20 years’ imprisonment. Defendants’ appeals have been consolidated, and the following issues are raised: (1) whether the trial court erred in refusing to instruct the jury in the Davis trial on the lesser-included offense of criminal sexual assault; (2) whether the trial court’s failure to instruct the jury in the McKinley trial on the lesser-included offenses of criminal sexual assault and robbery was error, despite the fact that the instructions were not requested; and (3) whether the trial court abused its discretion in sentencing defendants to their respective terms of imprisonment. We affirm.

The relevant facts are as follows.

the McKinley trial

The victim, L.S., testified that defendants, uninvited, came to her apartment at 120 N. Kilpatrick in Chicago, at 6 p.m. on December 2, 1987. The victim had known defendant McKinley casually for about six months, as he had stopped by her apartment several times and she had spoken to him from her window. The victim did not know defendant Davis. On the evening of the incident, L.S. allowed defendants into her apartment. According to the victim, both defendants used her bathroom numerous times. Defendant McKinley asked her if she had any money, to which she replied that she did not.

After defendants promised that she would be returned home soon, L.S. agreed to go with them to defendant Davis’ home, located at 4909 W. Polk St. in Chicago. On the way, the victim and defendants stopped at a liquor store. Defendant McKinley talked with friends outside the store, while L.S. and defendant Davis went into the store. L.S. testified that inside the store, she observed Davis steal some wine. She left the store at this point, asked McKinley if they could leave, and McKinley told her to wait.

The group next drove to defendant Davis’ place of residence. Davis lived in a room in the basement of his family’s residence. According to L.S., McKinley showed her cocaine paraphernalia and said “We can get high if you act right.” She told him that she did not want to get high, she did not want to have sex, and that she wanted to go home. McKinley then left the room, and Davis entered. According to the victim, Davis offered her white powder in exchange for sex. She told Davis: “I’m not here to get high with either of you or to go to bed with either of you, I just want to leave.”

At this point, the victim attempted to leave. Defendants became angry, however, and Davis said that defendants would have to teach her a lesson. Defendant McKinley grabbed her by the arms and threw her on the bed. The victim began to scream and yell. Next, according to L.S., Davis went to the closet and pulled out a big gun, possibly a .38 caliber pistol, which was black, with silver or some other color on the tip.

Defendant McKinley ripped off L.S.’ pants and shoes, breaking the zipper on her pants. McKinley ordered her to remove her sweater, and Davis held the gun to her left temple and told her “You better do what he says.” L.S. identified the clothing she wore for the jury. The zipper of the pants was ripped, her sweater was ripped under the arm, as was her blouse, and the buttons had been ripped off the blouse.

Defendant Davis kept the gun inches away from her head, and told L.S. that if she refused them, he “would blow [her] brains out.” Defendant McKinley penetrated L.S. vaginally with his penis. Davis then slapped her and told her to turn over. At first, Davis attempted to perform anal intercourse upon her, but then he performed vaginal intercourse upon her.

After defendant Davis finished, defendant McKinley told L.S. that she had better do what McKinley said, because defendants took women like her, put them in plastic bags and dumped them in the lake. McKinley proceeded to search her clothing and took a $5 dollar bill from her pockets. At this time, L.S. believed that McKinley still had the gun; she did not see him put the gun back in the closet.

Next, according to the victim, defendants ordered her to put her clothes back on, saying that they were going to take her to “the north side so [she could] make some money” for them. Defendants shoved her to make her hurry. When L.S. and defendants went out to the car, L.S. fled. Defendant McKinley chased her briefly, but she escaped to a neighbor’s house, where she warned the occupants to lock the door behind her as her assailants were still chasing her. A woman called the police, and when the police arrived, L.S. located defendant Daws’ home for them. She was then taken to Loretto Hospital.

On December 13, 1987, the police drove up to L.S. Defendant McKinley was in the squad car, and L.S. identified him as one of her attackers.

The next witness to testify was Bertha Bell. She was acquainted with defendant Davis’ family and lived near the Davis residence. On the night of December 2, 1987, L.S., a stranger, came to her home. L.S. was nervous and crying. The victim’s shoe heel was torn off and her blouse was ripped loose. The victim stated “Teddie and his friend” had just raped her and put a gun to her head.

Officer Roy Jackson testified that on the night in question he arrived at the Bell residence to find the complainant “crying and almost hysterical.” According to Officer Jackson, L.S. said that she just been raped at gunpoint by two black males and that one of them, whom she knew as Teddie, had taken $5 from her. Officer Jackson further related that on December 13, 1987, he picked McKinley up and took him to L.S., who identified him as one of her attackers.

Next, the stipulated testimony of Dr. Timmons, who treated L.S. at the hospital, was admitted into evidence. Timmons would testify that he treated complainant, who was upset and crying and indicated she had been raped. There was a fresh scratch on her right arm, her left wrist was swollen, and a vaginal smear indicated the presence of spermatozoa.

Defendant McKinley testified on his own behalf. He said that he first met L.S. in August of 1987, and that since that time, he had given her money to buy cocaine several times. Defendant McKinley further testified that after L.S. would purchase cocaine, the two would return to her apartment, where “she would get high and we would have sex.” McKinley testified that the two had sex only one time, although he continued to see her and continued to give her money.

On the evening in question, he and defendant Davis visited L.S.’ apartment. Inside, according to McKinley, a man was smoking cocaine. The victim suggested that if he had money and if defendants bought her a bag of cocaine, she “would turn [defendants] both on.” Defendant McKinley said that the victim was “sort of a prostitute.”

Next, defendants and the victim left for defendant Davis’ home, stopping at a liquor store on the way. In Davis’ room, defendant stated that he saw L.S. kissing Davis and “cooking up” cocaine with her own paraphernalia. After she finished smoking the cocaine, she told McKinley that she should have gotten more cocaine. Then, however, she voluntarily took her clothes off and had sex with McKinley. He denied using force, and he denied that either Davis or himself had a gun. McKinley further denied either taking $5 from complainant or proposing to take her to the north side for the purposes of prostitution.

After the three left Davis’ apartment, complainant insisted on walking to her home, which was located some 10 blocks away. Defendant McKinley testified that she appeared angry over receiving too little cocaine.

In rebuttal, the State established defendant McKinley’s 1982 plea of guilty to a charge of felony theft. Thereafter, the jury found McKinley guilty of both aggravated criminal sexual assault and armed robbery.

THE DAVIS TRIAL

Complainant testified at the Davis trial in a manner consistent with her testimony at the McKinley trial. The same is true of Bertha Bell, to whose house complainant went after the incident, and of Officer Issacson, who additionally related details about the arrest and identification of defendant Davis. At the Davis trial, L.S. described the gun used during the incident as a black handgun, “possibly a .38.”

Ernestine Lee, defendant Davis’ sister, testified in Davis’ behalf. She testified that she saw the defendants and “a lady” enter the basement room. She could not, however, hear what went on in the basement and did not see the group leave.

Defendant Davis testified. When he went to L.S.’ apartment, he did not see her smoking cocaine, but did see a man smoking. L.S. asked McKinley for money. McKinley, in turn, asked to borrow $25 from Davis to give the money to L.S. so that she could buy cocaine.

After the three arrived at his basement apartment, Davis testified that he left for awhile, and when he returned he found McKinley and the victim on his bed, and they apparently had just engaged in sex. He further observed McKinley take $5 from L.S.’ pocket. Then, L.S. offered to have sex with him (Davis) in exchange for more cocaine. Defendant Davis proceeded to have sex with L.S.

According to Davis, a toy, plastic gun, grey with a red tip, picked up by McKinley, was present. McKinley played with the gun, clicking the trigger, but McKinley never threatened L.S. with the gun.

Davis further testified that after L.S. and McKinley had a “domestic argument,” he asked them to leave. Davis denied that L.S.’ clothes were ripped. After she left, he advised McKinley to find her, and McKinley briefly gave chase. Defendants then, alone, went to the north side of the city. Police later found the toy gun and a cocaine pipe, which Davis claimed was L.S.’, at his apartment.

In rebuttal, the State introduced evidence of defendant Davis’ 1979 misdemeanor and 1980 and 1981 felony convictions. Defense counsel requested that the jury be instructed on both robbery and criminal sexual assault as lesser-included offenses. The trial court gave the robbery instruction but not the criminal sexual assault instruction.

The first issue we address is whether the trial court erred in refusing to instruct the jury in the Davis trial on the lesser-included offense of criminal sexual assault. Defendant Davis’ argument that the trial court erred in refusing to give the instruction on simple criminal sexual assault is as follows. According to defendant, a factual dispute existed on the question of whether either Davis or defendant McKinley was armed with a gun during the sexual assault. While the jury could have believed that the victim was forced to have sex against her will, it could have rejected her testimony that she was forced to do so at gunpoint, which provided the basis for the charge of aggravated criminal sexual assault. Defendant Davis testified that no gun was used to threaten the victim — only that defendant McKinley was playing with a plastic, toy gun. According to defendant Davis, the jury could have either believed complainant’s testimony about the use of a real gun, believed that she consented to sex with defendants, or believed that complainant was forced to engage in sexual intercourse “but that no gun was displayed, used or threatened.” Defendant does not argue that the jury could have found a belief on the part of the complainant that the toy gun was real to be unreasonable, although this appears to be an option for the jury flowing from the manner in which defendant has briefed the issue.

The State responds that the issue in this case does not involve the factual determination of the presence or absence of a gun during the incident. The question, to the State’s line of thinking, is whether the jury could have found that L.S. reasonably believed that she was threatened by a gun during the sexual assault and robbery. According to the State, the trial court properly refused an instruction on the lesser-included sexual offense once defendant admitted the presence of a gun, whether real or toy. This is so, the State argues, because while the crime of armed robbery requires the person carry an objectively dangerous weapon, the crime of aggravated criminal sexual assault requires the presence only of a weapon which the victim subjectively believes to be dangerous. The jury, according to the State, could and did premise its verdict on the aggravated criminal sexual assault charge upon the belief that the weapon was one she reasonably believed under the circumstances to be dangerous. This, the State argues, is evident even if the jury were to believe defendant Davis’ account of the type and manner of gun displayed.

The State observes, moreover, that defendant Davis was found guilty of armed robbery, a result which necessarily flows from the determination that it was a real-looking, dangerous gun.

In this case, defendants committed aggravated criminal sexual assault if they committed a sexual assault and while committing it “displayed, threatened to use, or used a dangerous weapon or any object fashioned or utilized in such a manner as to lead the victim under the circumstances reasonably to believe it to be a dangerous weapon.” (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(a)(1).) Criminal sexual assault (see 111. Rev. Stat. 1987, ch. 38, par. 12 — 13) is a lesser-included offense of aggravated criminal sexual assault. People v. Geneva (1990), 196 Ill. App. 3d 1017, 1029, 554 N.E.2d 556.

In People v. Phillips (1989), 181 Ill. App. 3d 144, 150, 536 N.E.2d 1242, a case in which defendant argued that he was not found guilty of aggravated criminal sexual assault beyond a reasonable doubt, the court discussed the dangerous instrument requirement of the statute. The court observed:

“ ‘In determining whether a particular instrument constitutes a dangerous weapon, the supreme court has held:
“Where the weapon in question and the manner of its use are of such character as to admit of but one conclusion, the question whether or not it is deadly is one of law for the court to determine, but when the character of the weapon is doubtful or the question depends upon the manner of its use it is a question for the jury to determine from a description of the weapon, from the manner of its use and the circumstances of the case.” ’ [Citations.]” 181 Ill. App. 3d at 150.

The State contends that “[a] toy gun does not give rise to the offense of the armed robbery statute.” The State cites People v. Skelton (1980), 83 Ill. 2d 58, 414 N.E.2d 455, for this simple proposition, and the State’s interpretation of Skelton in this manner is inaccurate. In fact, while the Skelton court held that a toy gun in that case was, as a matter of law, not a dangerous weapon, the court observed:

“In the great majority of cases it becomes a question for the fact finder whether the particular object was sufficiently susceptible to use in a manner likely to cause serious injury to qualify as a dangerous weapon. Where, however, the character of the weapon is such as to admit of only one conclusion, the question becomes one of law for the court. [Citations.] The toy gun in this case, in our judgment, falls into the latter category. It does not fire blank shells or give off a flash *** it is entirely too small and light in weight to be effectively used as a bludgeon *** it fires no pellets *** and, except that it could, conceivably, be used to poke the victim in the eye (and a finger could be used for that purpose), it is harmless. It simply is not, in our opinion, the type of weapon which can be used to cause the additional violence and harm which the greater penalty attached to armed robbery was designed to deter.” 83 Ill. 2d at 66-67.

In this case, there can be little doubt that the dangerousness of the weapon was an issue in need of resolution. Defendant Davis is correct in arguing that some evidence existed in the record (namely his own testimony) which, if believed by the jury, could have supported his case for simple criminal sexual assault. If the jury believed his testimony that the gun was a “small,” “plastic,” “cap” pistol, that was never pointed at or used to threaten the victim, the jury might have concluded that it was not a dangerous weapon within the meaning of the aggravated criminal sexual assault statute. Moreover, the jury might have believed that the victim could not reasonably have believed under the circumstances that it was a dangerous weapon, a different question than whether it actually was a dangerous weapon. The jury was not allowed to consider this question due to the lack of instruction on the lesser-included offense.

However, as the State points out, the jury did determine that a dangerous weapon was involved in the incident when it found defendant guilty of armed robbery. The record does not suggest, as defendant Davis contends in reply, that defendant testified that the toy gun was taken out and played with after the assault. Davis’ testimony does not establish when the toy gun was played with. Given that the jury obviously believed that the gun used was a dangerous weapon in returning the guilty verdict on the armed robbery charge, we do not find any prejudice defendant Davis suffered from the lack of an instruction on the lesser-included sex offense charge. We therefore affirm defendant Davis’ conviction.

Next, we address whether the trial court’s failure to instruct the jury in the McKinley trial on the lesser-included offenses of criminal sexual assault and robbery was error, despite the fact that these instructions were not requested.

Defendant McKinley argues that despite the fact he never requested them, it was reversible error for the trial court not to instruct the jury on the lesser-included offenses of robbery and criminal sexual assault. Defendant asks us to disregard any waiver on the part of McKinley due to his failure to request the instructions under the plain error doctrine. We should do so, according to defendant, “in the interests of fundamental fairness — e.g., parity — the same relief Davis can lay claim should be afforded to McKinley as well.”

There is, however, an important difference in the testimony elicited at the two trials, namely, while Davis admitted that some type of pistol, albeit only a toy gun, was present, McKinley, on the other hand, completely denied that there was a weapon of any sort present. Thus, the victim’s reasonable belief under the circumstances that the weapon was dangerous was not an issue. Moreover, given that defendant denied the presence of a weapon at all, there is no way the jury could have concluded, believing complainant’s testimony as its verdict indicated it did, that any sexual assault without a dangerous weapon occurred. It is defendant’s duty, as the State points out, to request jury instructions, and the failure to do so will constitute a waiver of the issue. See People v. Foster (1989), 190 Ill. App. 3d 1018, 547 N.E.2d 478.

Moreover, defendant’s argument that this case is analogous to People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141, is not persuasive. There, the supreme court chose to consider the correctness of instructions which were given which incorrectly stated the burden of proof involving the offenses of both murder and manslaughter. The court considered the issue despite the fact that both defendants in Reddick had failed to object at trial, present proper instructions or raise the issue in a post-trial motion. One defendant did not even raise the issue on appeal. (123 Ill. 2d at 198-99.) Reddick, however, is distinguishable. Here, defendant McKinley did not receive an instruction which incorrectly stated the burden of proof as to either offense he was convicted of, but rather did not receive an instruction on a lesser-included offense, which, as we have indicated, defendant was not clearly entitled to. Defendant has not advanced a convincing argument in support of his invocation that we address the issue under the plain error doctrine.

Likewise, we reject defendant McKinley’s brief argument that his counsel’s failure to request the lesser-included offense instructions constituted ineffective representation. Given defendant’s denial that any weapon was present at all, the failure to instruct the jury on the lesser-included offenses was strategically supportable. Defendant’s testimony, in denying both the underlying crimes and the presence of a weapon which provided the aggravating factor resulting in the charges of the greater offenses, could reasonably have been viewed by counsel as removing the option of instruction on lesser-included offenses for (the sake of defendant’s credibility and to avoid “compromise” in the verdicts.

Finally, we consider whether the trial court abused its discretion in sentencing defendants to their respective terms of imprisonment. Defendants’ argument that the trial court abused its discretion in imposing 20-year (defendant McKinley) and 18-year (defendant Davis) concurrent sentences boils down primarily to the argument that defendants’ conduct was not particularly brutal or heinous, as aggravated criminal sexual assaults and armed robberies go, that defendants had limited criminal histories, and that defendants showed some real potential for rehabilitation.

A trial judge’s decision in regard to sentencing is entitled to great deference and weight, and absent an abuse of this discretion, a sentence may not be altered upon review. (See People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) In this case, defendants’ sentences were 10 and 12 years below the statutory maximum, the conduct was indeed somewhat brutal, and we hold that the trial court did not abuse its significant discretion in imposing the sentences it did.

Accordingly, defendants’ convictions are affirmed.

Affirmed.

McNAMARA and LaPORTA, JJ., concur.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH GASTON, Defendant-Appellant.
    First District (1st Division)
    No. 1—91—0544
    Opinion filed March 16, 1992.
    Michael J. Pelletier and Barbara Kamm, both of State Appellate Defender’s Office, of Chicago, for appellant.
    John M. O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Christine Perille, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Based on events of December 9, 1986, defendant Kenneth Gaston, Tanya Woods, and Ray Collins were convicted, in separate trials, of the armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18 — 2) of a paint store located at the intersection of Belmont and Ashland Avenues in Chicago. For his part, Gaston was sentenced to a prison term of 20 years.

In this appeal, Gaston, who is black, challenges the State’s use of peremptory challenges to exclude black individuals from the venire during jury selection. He also complains that the length of sentence imposed was improper.

We remand for a hearing in accordance with the decision in Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, retaining jurisdiction to review the subsequent proceedings and to then consider defendant’s contentions concerning the propriety of sentence.

Questioning of the venire in this case was conducted by the trial judge. The record indicates each individual was asked the same general questions. Each was asked about location and ownership of residence, employment, marital and, when appropriate, family status, education, prior involvement in litigation, hobbies, preferred reading material, and existing friendships with either attorneys or police.

In all, 33 individuals were questioned. Nine individuals were excused by the court for cause. The State used four of five peremptory challenges to exclude black individuals. The only peremptory challenge not exercised against a black individual was used to exclude a white male who had previously been convicted and incarcerated for murder.

Upon completion of voir dire, counsel for defendant moved for a mistrial, charging that the State had exercised its peremptory challenges to purposefully discriminate against defendant by excluding black individuals from the venire on the basis of race. The trial judge promptly denied that motion, finding that the State had not used its peremptory challenges to “systematically” exclude black individuals.

Ultimately, four black individuals were among the members of the jury selected.

In People v. Garrett (1990), 139 Ill. 2d 189, 564 N.E.2d 784, our supreme court reviewed the process which must be employed pursuant to Batson relevant to a challenge that the State engaged in purposeful discrimination in jury selection. The procedure involves two distinct stages: a hearing to ascertain whether the defendant has established a prima facie case of purposeful discrimination and, if so, a hearing in which the burden is shifted to the State to provide race neutral explanations for exercising the peremptory challenges. The court noted that, in People v. Hope (1990), 137 Ill. 2d 430, 560 N.E.2d 849, it had cautioned against collapsing that methodical approach into an “undifferentiated review” of defense and State contentions. (Garrett, 139 Ill. 2d at 201-03, 564 N.E.2d at 789-90.) The concern is that the reviewing court must then preliminarily determine whether it could be presumed the trial judge found defendant failed to make a prima facie case in order to properly reach the issue of the State’s explanations for its use of peremptory challenges. Garrett, 139 Ill. 2d at 201-03, 564 N.E.2d at 789-90.

Such analysis is unnecessary here. The State was not even given an opportunity to explain its challenges. Instead, the trial judge’s determination that the State had not “systematically” excluded blacks was a ruling that defendant had failed to establish a prima facie case of purposeful discrimination. That ruling is a factual finding which may be disturbed if it is against the manifest weight of the evidence. See Garrett, 139 Ill. 2d at 200-01, 564 N.E.2d at 789.

Because it is understood that peremptory challenges facilitate discrimination, a prima facie case can be established by showing that the defendant belongs to a cognizable racial group, the State peremptorily excused individuals belonging to that group, and that those facts, as well as any other relevant circumstances, raise an inference of purposeful racial discrimination. (Garrett, 139 Ill. 2d at 203, 564 N.E.2d at 790.) Defense counsel’s identification, for the record, of the number and names of black venire members peremptorily excused is sufficient to establish all but the “other relevant circumstances” element in finding the existence of a prima facie case. (Garrett, 139 Ill. 2d at 203, 564 N.E.2d at 791.) “Other relevant circumstances” include the existence of a pattern of strikes against black individuals on the venire, the disproportionate use of strikes against such individuals, the level of black representation in the venire as compared to the jury, questions and statements made by the State, and the races of the defendant and victim or of the defendant and witnesses. Garrett, 139 Ill. 2d at 203, 564 N.E.2d at 791.

In People v. Nicholson (1991), 218 Ill. App. 3d 273, 577 N.E.2d 1313, the appellate court examined the above factors in a case presenting circumstances similar to those here. In Nicholson, the trial judge also questioned the venire and made the same general inquiries summarized above. The appellate court concluded that the State had exercised a pattern of exclusion because the State used five of six peremptory challenges to exclude black individuals. Although the court noted that the record and briefs did not reveal the total number of blacks in the venire, the court was able to determine that 7 of the 27 individuals questioned were black. Five of those seven individuals were excluded by the State. The remaining two black individuals were made part of the jury. Based on that determination, the court concluded the State used peremptory challenges to exclude a disproportionate number of black individuals. The record indicated the excluded individuals constituted a heterogeneous group having race as the sole common characteristic. The appellate court therefore determined a prima facie case of discrimination was established and remanded the matter for a hearing pursuant to Batson.

Although the State has argued here that the defendant waived the opportunity to assert purposeful discrimination because he did not adequately establish, in the record, the racial composition of the venire, the condition of the record is no less clear than in Nicholson. The record does not reveal the racial identity of the individuals whose names appear in the record as members of the venire. However, defendant’s counsel identified, by name, the racial identity of the individuals excused by the State in raising objection to the selection process. Further, we can determine that, allowing for the nine individuals excused by the trial judge for cause, the record indicates at least nine of the remaining individuals were black. Four black individuals were members of the jury and, in all, five black individuals were excluded by the State and defendant’s counsel.

Defense counsel’s citation of the number and names of black venire members peremptorily challenged by the State was sufficient to establish all elements of a prima facie case except for the critical “other relevant circumstances” element. As for those circumstances, there existed a pattern of strikes against black individuals. Four of the five peremptory challenges exercised by the State were used against black individuals. Use of four of five challenges constitutes a disproportionate use of challenges against black individuals. Finally, the black individuals excluded were a heterogeneous group and shared race as their only common characteristic. Dorothy Mae Dixon, a cashier for the Chicago Board of Education, was married and had three children. She lived on the city’s west side and had no prior experience with the legal system either as a juror or as a litigant. She had attended high school for three years. Annette Williams, a teacher, had earned a master’s degree in history. She was single and lived in a rented apartment. Betty Lee Holmes was 45 years old. She lived on the near north side of the city with her husband in a home that they owned. She had five children and had attended high school for two years. Leroy Hemingway, a widower with five children, was 61 years old and lived on the west side of the city. He had attended high school for two years. In short, there were differences in gender, age, location of residence, marital status, and education among the black individuals excluded by the State.

Therefore, we conclude that the determination that defendant did not establish a prima facie case of purposeful discrimination was against the manifest weight of the evidence. Accordingly, we remand the matter for further proceedings pursuant to Batson to provide the State an opportunity to provide race-neutral explanations for its use of peremptory challenges. Where such remand is necessary, the supreme court has directed, the appellate court should retain jurisdiction to review the determination on the subsequent Batson proceedings. (Garrett, 139 Ill. 2d at 193-95, 564 N.E.2d at 786-87.) In that way, the “murky” issue of post-remand appellate procedure encountered when the circuit court is instructed to enter judgments according to its disposition following the Batson proceedings on remand is avoided. Garrett, 139 Ill. 2d at 193-94, 564 N.E.2d at 786. But cf. People v. Nicholson (1991), 218 Ill. App. 3d 273, 577 N.E.2d 1313 (appellate court determined prima facie case established and remanded the matter with alternative directions to vacate defendant’s conviction or affirm according to whether the trial judge was satisfied that the State provided race-neutral explanations for exercising peremptory challenges).

For similar reasons, we decline, at this time, to address defendant’s challenge to the propriety of the length of his prison sentence. The correct procedure when a cause must be remanded for Batson proceedings, but other, unrelated issues raised by defendant remain to be decided by the appellate court, is for the court to withhold disposition of those issues, retaining jurisdiction to consider them when it reviews the subsequent Batson proceedings. (Garrett, 139 Ill. 2d at 195-96, 564 N.E.2d at 787.) In that way, any confusion as to “when the time for appeal begins and ends, to and from which court an appeal should be taken, and on what issues” is avoided. (Garrett, 139 Ill. 2d at 194, 564 N.E.2d at 786.) In the same way, judicial efficiency is promoted because the possibility of a piecemeal appeal in the supreme court is precluded as all issues can be presented at the same time. See Garrett, 139 Ill. 2d at 196, 564 N.E.2d at 787. But cf. People v. Suarez (1991), 238 Ill. App. 3d 110 (appellate court remanded relevant portion of case for a hearing pursuant to Batson while proceeding to consider other issues raised by defendant).

Reversed in part and remanded.

CAMPBELL and MANNING, JJ., concur.


author: JUSTICE SCARIANO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FREDDIE JEFFERSON, Defendant-Appellant.
    First District (2nd Division)
    No. 1—89—0308
    Opinion filed March 18, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Tina Liebling, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Randall E. Roberts, and Gigi Gilbert, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

Defendant Freddie Jefferson appeals from his conviction by a jury of the murder of Tammy Washington on the grounds that (1) the trial judge gave improper instructions on accomplice liability; (2) the prosecutor made inappropriate remarks during his closing argument; and (3) the trial judge improperly questioned the defendant and impermissibly commented on the evidence. Defendant seeks a reversal of his conviction with a remand for a new trial.

On the evening of June 14, 1987, defendant and his half-brother Fleener Jefferson drove to the 6800 block of South Winchester in Chicago where Eric Green lived. Green had been involved in a fight with Fleener’s half-brother Joe Jefferson that afternoon. When Fleener and defendant arrived, Fleener pointed to Green, who was walking into view, and identified him as Joe’s assailant. Defendant had Fleener’s loaded .32 caliber revolver, which Fleener had given to him before they left. After they had gotten out of their car, Green started running. According to defendant’s testimony, Fleener said “shoot, shoot,” and defendant fired “about three or four times.” Green testified that he heard about four shots and felt some bullets passing by. Tammy Washington, 13 years old, who was jumping rope on the sidewalk in front of her grandmother’s house at 6840 South Winchester, was shot and killed.

Defendant testified on direct examination that he shot “at the ground *** just to scare” Green; that he did not deliberately try to shoot or kill Eric Green; and that he was under a sudden and intense passion at the time of the shooting. However, on cross-examination, defendant admitted that he was not firing “up into the air” or “straight down into the ground.” He also admitted that he saw some people “behind Eric Green as he was running down the sidewalk.”

Three eyewitnesses, Brian Banks, Lena Robinson and Leon Coleman, testified as to the shooting. Banks testified that defendant “was standing in the middle of the street shooting, shooting, following Eric Green running.” Banks continued, “He was shooting across the street, Eric — because Eric was running he was following him shooting.” In demonstrating the manner in which defendant was shooting, the record reflects “that the [defendant] had his arm extended and his fingers in the shape of a gun moving back and forth.” Robinson testified that defendant “got out of the car and he aimed. He just started shooting bang, bang, bang.” She also stated that defendant’s arm was extended and that “his legs were bent” as he was firing. Robinson further testified that she “heard him shooting and saw him when he got out of the car and aiming the gun and shot,” that “he was not shooting at the ground,” and that there were bullet holes in the side of her house. Coleman’s testimony was that he “saw Freddie Jefferson shooting at Eric Green,” and in demonstrating the manner in which defendant was shooting, the record reflects that “the [defendant] had his arm extended and his hands and fingers positioned as a gun and going across in a shooting motion.”

Each of the three witnesses picked defendant out of a lineup and identified him in court. Green also picked defendant out of a lineup. In addition, the Cook County assistant medical examiner testified that Washington’s round wounds were not characteristic of ricochet wounds. However, she admitted on cross-examination that it would be possible for an imperfect or ricochet bullet to leave a round hole.

Defendant was charged with the attempted murder of Eric Green and the transferred intent murder of Tammy Washington. The jury convicted him on both charges. The trial judge vacated the conviction for attempted murder and sentenced defendant to 40 years’ imprisonment on the murder conviction. We affirm.

I

Defendant claims that the trial judge erred in instructing the jury on accomplice liability because he was the principal wrongdoer and not an accomplice. The instruction at issue was given as follows:

“A person is legally responsible for the conduct of another person when, either before or during the commission of an offense, and with intent to promote or facilitate the commission of that offense, he knowingly solicits, aids, abets, agrees to aid, or attempts to aid the other person in the planning or commission of the offense.”

Pursuant to the Illinois Pattern Jury Instructions (IPI) Committee Note to this instruction, the phrase “or one for whose conduct he is legally responsible” was inserted after the word “defendant” in each proposition of the issues instructions for the offenses of attempt murder, murder and involuntary manslaughter with which the defendant was charged. According to defendant, the jury understood the accountability instruction to mean that Fleener’s mental state could be held against him. In support of this claim defendant cites the following remarks, which were made by the trial judge outside the presence of the jury:

“THE COURT: [T]wo people [are] acting in concert with a conspiracy to commit a crime and they succeed.
* * *
So that what you are really doing is taking the conduct of both gentlemen and tag the intent of both gentlemen to decide whether Freddie is guilty of murder or not.
[DEFENSE]: The point that I am making, judge, is how can you hold Freddie accountable for Fleener’s state of mind? You can’t be held accountable for another man’s state of mind.
THE COURT: The idea is that they didn’t have a separate state of mind, that they both have the same state of mind and it’s by using both their actions you determine that state of mind.”

Defendant argues that the improper instruction allowed the jury to convict him “without making any finding as to his mental state” in violation of his right to due process of law. Carella v. California (1989), 491 U.S. 263, 265, 105 L. Ed. 2d 218, 221, 109 S. Ct. 2419, 2420 (“The Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense”); In re Winship (1970), 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068.

The State conceded during oral argument before this court that because defendant’s participation as principal was clearly established by his own testimony at trial, the judge’s giving of the accountability instruction to the jury was improper. (See People v. Lusietto (1976), 41 Ill. App. 3d 205, 207 (“guilt predicated on an accountability theory is proper only if the other evidence is inconclusive as to defendant’s direct participation in the crime”).) Defendant contends that the erroneous instruction constitutes reversible error. (See People v. Payne (1990), 194 Ill. App. 3d 238; People v. McCauley (1972), 2 Ill. App. 3d 734, 736 (“It is reversible error to inject into the case, by way of instruction, issues which are not properly before the jury. [Citation]”).) However, “[e]ven an inappropriately given accountability instruction does not constitute reversible error where, as here, sufficient evidence was adduced from which the jury could find defendant guilty as principal. (People v. Andrews (1981), 95 Ill. App. 3d 595, 598, 420 N.E.2d 509; People v. Lusietto (1976), 41 Ill. App. 3d 205, 208, 353 N.E.2d 385.)” People v. Faysom, (1985), 131 Ill. App. 3d 517, 528; see also People v. Finch (1946), 394 Ill. 183, 191, cert, denied (1946), 329 U.S. 786, 91 L. Ed. 673, 67 S. Ct. 298; People v. Lehner (1929), 335 Ill. 424, 429-30; People v. Batchelor (1990), 202 Ill. App. 3d 316, 332, appeal denied (1990), 135 Ill. 2d 559.

Because defendant claims that the improper instruction violated his fourteenth amendment right to due process of law, we assess the error under the harmless error standard enunciated in Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (Lusietto, 41 Ill. App. 3d at 208), which requires us to determine whether it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” (Chapman, 386 U.S. at 24, 17 L. Ed. 2d at 710-11, 87 S. Ct. at 828.) Recently, in Yates v. Evatt (1991), 500 U.S. 391, 114 L. Ed. 2d 432, 111 S. Ct. 1884, the Supreme Court had occasion to examine a jury instruction containing a mandatory presumption which unconstitutionally shifted the burden of proof of intent to the defendant. “The jury was told that ‘malice is implied or presumed’ from the ‘willful, deliberate, and intentional doing of an unlawful act’ and from the ‘use of a deadly weapon.’ ” (Yates, 500 U.S. at 401, 114 L. Ed. 2d at 447, 111 S. Ct. at 1891.) Although we do not believe that the erroneous accountability instruction given by the judge in the case at bar created a mandatory presumption, Yates is helpful in appraising the weight to be given the error especially since defendant claims that it enabled the State to convict him without proving his intent. (See Lusietto, 41 Ill. App. 3d at 207-08 (where the State attempted to change its burden of proving the requisite intent to commit burglary to a different burden of proving intent to promote a burglary through the use of an accountability theory).) According to Yates, “[t]o say that an error did not contribute to the verdict is *** to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.” Yates, 500 U.S. at 403, 114 L. Ed. 2d at 449, 111 S. Ct. at 1893.

“First, [the court] must ask what evidence the jury actually considered in reaching its verdict. *** In answering this question, a court does not conduct a subjective enquiry into the jurors’ minds. The answer must come, instead, from analysis of the instructions given to the jurors and from application of that customary presumption that jurors follow instructions and, specifically, that they consider relevant evidence on a point in issue when they are told that they may do so.
Once a court has made the first enquiry into the evidence considered by the jury, it must then weigh the probative force of that evidence as against the probative force of the presumption standing alone. To satisfy Chapman’s reasonable doubt standard, it will not be enough that the jury considered evidence from which it could have come to the verdict without reliance on the presumption. Rather, the issue under Chapman is whether the jury actually rested its verdict on evidence establishing the presumed fact beyond a reasonable doubt, independently of the presumption. Since that enquiry cannot be a subjective one into the jurors’ minds, a court must approach it by asking whether the force of the evidence presumably considered by the jury in accordance with the instructions is so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of the presumption.” Yates, 500 U.S. at 404-05, 114 L. Ed. 2d at 449, 111 S. Ct. at 1893-94.

Therefore, the “first step in determining whether [the accountability instruction] contributed to the jury’s verdict is to determine what evidence the jury considered on the issue of intent, independently of the [accountability instruction itself].” Yates, 500 U.S. at 408, 114 L. Ed. 2d at 452, 111 S. Ct. at 1895.

Defendant’s testimony that he fired the gun about three or four times just to scare Green clearly established his role as the principal wrongdoer. Although he testified that he sought only to scare Green, he admitted on cross-examination that he was not shooting “straight down into the ground” of “up into the air.” He also admitted that he saw people behind Eric Green. Detective Tuider testified that defendant told him he “shot at the dude.” Green testified that he felt the bullets passing by him. Robinson testified that he got out of the car, aimed the gun with his legs bent, and was not shooting at the ground. She also testified that there were bullet holes in her house. Banks and Coleman demonstrated how defendant was shooting with his arm extended. In addition, the medical examiner testified that Tammy Washington’s wounds indicated that she was not hit by a ricochet bullet. Moreover, defendant admitted on cross-examination that he received the gun from Fleener, put it in a holster before they left for their destination, and checked to see if it was loaded. Defendant also admitted that when he got out of the car, he did not try to talk to Green, but just started to fire.

“The intent to commit a crime can be inferred from the conduct of the accused and all the surrounding circumstances. (People v. Terrell (1984), 99 Ill. 2d 427, 459 N.E.2d 1337.)” (People v. Murray (1990), 194 Ill. App. 3d 653, 657.) “To prove the crime of murder, it is not necessary to show that the defendant has a specific intent to kill or do great bodily harm or that he knows with certainty that his acts will achieve those results.” (People v. Bartall (1983), 98 Ill. 2d 294, 307.) For example, in affirming the murder conviction in People v. Cannon (1971), 49 Ill. 2d 162, the “court observed that the defendant ‘intended to fire the gun and did in fact point it and shoot in the decedents’ general direction. This act, done voluntarily and wilfully, is sufficient evidence of the intent requisite to constitute the offense of murder.’ ” Bartall, 98 Ill. 2d at 307.

Yates next instructs us to weigh the probative force of the evidence of defendant’s intent against the probative force of the erroneous accountability instruction. As we have previously noted, the judge’s remarks about the accountability instruction were made outside the presence of the jury. Further, defendant was never charged on a conspiracy theory. He claims, however, that the prosecutor indirectly argued accountability to the jury when he said that defendant was “responsible for” the shooting. Defendant also contends that the evidence about Fleener’s anger toward Green in conjunction with the accountability instruction confused the jury in making the fine distinction between the intent required for murder as opposed to the intent required for involuntary manslaughter. The prosecutor stated to the jury, “you are here today to decide whether or not [Freddie Jefferson] is going to be held responsible, whether or not he is going to be held accountable for the death of Tammy Washington.”

We find the prosecutor’s use of the words “responsible” and “accountable” to be consistent with their commonly understood everyday meanings which could not have misled or confused the jury. Therefore, it does not appear that the prosecutor was arguing that Jefferson was liable as an accomplice. In fact, in his closing argument, the prosecutor, in addressing the issue of defendant’s intent at length, emphasized that “[t]he name of this case is the People of the State of Illinois versus Freddie Jefferson *** this man is charged with the murder and you are to decide if he is to be held responsible for his acts.” In weighing the probative force of the evidence relating to defendant’s intent against the probative force of the accountability instruction, we hold the error to be harmless when viewed in light of all of the evidence and the arguments the jury considered on this issue. Lusietto, 41 Ill. App. 3d at 208.

II

Defendant also contends that certain of the prosecutor’s remarks during closing arguments deprived him of a fair trial. He complains that the prosecutor misstated the elements of murder and that he improperly used evidence of his prior convictions to show his propensity to commit crime.

Defendant cites the following excerpt from the prosecutor’s closing remarks in support of the first part of his contention:

“[PROSECUTION]: If you look at all of that [testimony] it will show that all the pieces fit perfect, all the pieces show that he is in fact responsible for the death of Tammy Washington and should be held guilty for that—
[DEFENSE]: Objection, that is not the law.
* * *
[PROSECUTION]: Look at the court reported statement *** and use your own common sense as to the intent of the defendant and remember it" is not an intentional killing, it doesn’t make any difference, it is a general intent crime if you know what you are doing can cause the death of somebody else, boom, you are guilty of murder—
[DEFENSE]: Objection, that is not the law.
THE COURT: I will sustain the objection and ladies and gentlemen, it will be my instructions that you will follow in this regard.
* * *
[PROSECUTION]: [You were told] that the issue in this case is not who did it but what was intended. What was intended doesn’t matter, what happened does, that is what the law says and you will read the instructions on that— [DEFENSE]: Objection, that is not the law.
THE COURT: I will sustain the objection. Ladies and gentlemen, you will get my instructions and you are to follow my instructions.”

In contrast, the State maintains that the prosecutor was stating, albeit “unartfully,” the second prong of the Illinois murder statute, which provides in part:

“(a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
* * *
(2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another.” 111. Rev. Stat. 1985, ch. 38, par. 9 — 1(a)(2).

“Prosecutors are afforded wide latitude in closing argument, and improper remarks will not merit reversal unless they result in substantial prejudice to the defendant (People v. Pittman (1982), 93 Ill. 2d 169, 176), considering the context of the language used, its relationship to the evidence, and its effect on the defendant’s right to a fair and impartial trial. (People v. Bryant (1983), 94 Ill. 2d 514.)” (People v. Thompkins (1988), 121 Ill. 2d 401, 445, cert, denied (1988), 488 U.S. 871, 102 L. Ed. 2d 156, 109 S. Ct. 187.) “[A]bsent a clear abuse of discretion, the determination of the trial court as to the propriety of such argument should be followed. (People v. Smothers (1973), 55 Ill. 2d 172.)” Thompkins, 121 Ill. 2d at 445-46.

This case does not present a situation in any way similar to the one in People v. Starks (1983), 116 Ill. App. 3d 384, 395-96, appeal denied (1983), 96 Ill. 2d 548, on which defendant relies, where the conduct was so pervasive and severe that it led the trial court ineluctably to conclude that “any improper argument that was not made and any improper tactic that was not used would seem to have been omitted by inadvertence rather than by design.” In any event, the fact that the trial judge in the instant case sustained defendant’s timely objections to the latter two of the three remarks at issue is sufficient to cure the error in argument. In addition, the trial judge instructed the jury, at the end of the case, to disregard all questions to which objections were sustained. In People v. Harris (1989), 132 Ill. 2d 366, 386, cert, denied (1990), 496 U.S. 908, 110 L. Ed. 2d 275, 110 S. Ct. 2594, the court held that where the trial judge sustained objections to eight out of nine of the instances of error alleged by the defendant, such action was sufficient to cure the error committed in argument to the jury. Moreover, here, the trial court properly instructed the jury on the elements of murder including intent, the element which the prosecutor was attempting to describe in his last two remarks. In addition, the prosecutor alluded to the anticipated instruction in the last of the disputed remarks. These factors may also be considered by the court in determining whether or not the claimed error is harmless. See People v. Bell (1983), 113 Ill. App. 3d 588, 601.

The other part of defendant’s contention is that the prosecutor made the following improper statement to the jury regarding the defendant’s prior felony convictions:

“[Y]ou can use the facts that Freddie Jefferson is a 4 time convicted felon when you determine whether or not to believe him ***. If you are going to hire a baby sitter to watch your kids you check their background, you want to see whether or not you can trust them so when you determine whether or not you are going to trust or believe him from the witness stand consider the fact that he is a 4 time convicted felon.”

Defendant claims that because a background check is designed to uncover information about performance as well as credibility, the prosecutor’s analogy to such a procedure impermissibly allowed the jury to consider his prior convictions as evidence of his propensity to commit crime. The State correctly maintains that the defendant has waived any error by failing to object to the statement at trial. People v. Bartall (1983), 98 Ill. 2d 294.

Assuming arguendo that the defendant has not waived argument on this issue, we disagree with his contention. “It is a fundamental concept in our criminal justice system that evidence of past crimes is not admissible to prove the defendant’s disposition to commit the crime charged. [Citation.] If a prior conviction is for a felony or a crime involving dishonesty, the trial court has the discretion to allow the conviction to be introduced into evidence to impeach the defendant if the trial court believes the prejudicial effect of the impeachment is outweighed by its probative value on the issue of credibility. [Citation.]. Evidence of a conviction used to impeach a witness is not admissible if more than 10 years have elapsed since the date of the conviction or the release of the witness from confinement, whichever is the later date. [Citation.]” (People v. Lawler (1990), 194 Ill. App. 3d 547, 558-59, affd, (1991), 142 Ill. 2d 548.) In the instant case, the felony convictions were less than 10 years old and the trial judge carefully considered the arguments of both parties before reaching his decision. In exercising his discretion, the trial judge allowed the State to read into evidence that the defendant was convicted of five felonies and the date of those convictions, but he prevented the State from disclosing the charge or the sentence. Accordingly, we cannot conclude that the judge abused his discretion in finding that the probative value of defendant’s convictions outweighed their prejudicial effect. Moreover, it is clear from the prosecutor’s statement that the use of such evidence was proper in impeaching his credibility. Therefore, defendant’s reliance on Lawler is baseless, as the prosecutor’s remark in that case that “’if a person is willing *** to commit a felony, then the law presumes that he is willing to lie’ ” clearly distorted the law. Lawler, 194 Ill. App. 3d at 559.

Ill

Finally, defendant maintains that the trial judge improperly assumed the role of an advocate by questioning him and commenting on the evidence. Specifically, he complains that the judge should not have questioned him about his mental state and his relationship with Joe Jefferson.

While “[i]t is an abuse of discretion for the trial court to assume the role of an advocate” (People v. Murray (1990), 194 Ill. App. 3d 653, 658), “[a] trial court has the right to question witnesses in order to elicit truth or clarify material issues which seem obscure as long as he does so in a fair and impartial manner.” (People v. Gross (1988), 166 Ill. App. 3d 413, 422, appeal denied (1988), 121 Ill. 2d 576, cert, denied (1988), 488 U.S. 854, 102 L. Ed. 2d 115, 109 S. Ct. 142.) Moreover, “[i]t is the judge’s duty to see that justice is done, and where justice is liable to fail because a certain fact has not been developed or a certain line of inquiry has not been pursued it is his duty to interpose and either by suggestions to counsel or an examination conducted by himself avoid the miscarriage of justice.” People v. Franceschini (1960), 20 Ill. 2d 126, 132.

In Franceschini, for example, the court held that the trial judge’s suggestion to the prosecutor, after both sides had rested, that evidence be offered on how the defendant gained entrance to an apartment, was proper. (Franceschini, 20 Ill. 2d at 131-32.) The trial court does not assume the role of prosecutor “merely because its unbiased and impartial questions elicit evidence material to the State’s case.” Murray, 194 Ill. App. 3d at 658.

Defendant cites the following questions propounded by the trial court judge:

“THE COURT: When did you learn of the fight with Joe and Eric Green?
THE WITNESS: Joe came over to Fleener’s house.
THE COURT: What time was that?
THE WITNESS: Guess around 7:30.
THE COURT: Where is Joe today?
[DEFENSE]: Objection.
THE COURT: Overruled.
THE WITNESS: Last time I heard he moved to Milwaukee.
* * *
THE COURT: So at the present time you don’t know where he is at?
THE WITNESS: No.
THE COURT: Now, from the time that you learned about the beating or the fight between Joe and Eric Green and the time of the actual shooting how many minutes transpired?
THE WITNESS: About 15 or 20 minutes.
* * *
THE COURT: Where was the gun obtained from or where did you get the gun?
THE WITNESS: From [Fleener].
THE COURT: Do you know where he got it?
THE WITNESS: He come out the bedroom with it.
THE COURT: What were your intentions in relation to Eric Green when you fired?
THE WITNESS: Just to scare him so he’d stop messing with Joe.
* * *
THE COURT: Did you figure that he would know — get the meaning of that when you fired?
THE WITNESS: Yes.
THE COURT: Were you intending to inflict any injury on Eric Green?
THE WITNESS: No.
THE COURT: Were you angry when you fired?
THE WITNESS: I was a little upset.
THE COURT: Were you angry?
THE WITNESS: I would say yes.”

These questions led to the following re-cross-examination by the prosecutor:

“[PROSECUTION:] This is the guy you treated as your brother?
[WITNESS:] Yes.
[PROSECUTION:] And you haven’t talked to him since? [WITNESS:] No.
[PROSECUTION:] Have you talked to him since your case was set for trial?
[WITNESS:] No.
[DEFENSE:] Objection.
THE COURT: Overruled.
[PROSECUTION:] Have you tried to talk to him?
[WITNESS:] No.”

After several rounds of re-cross and redirect examination on this subject by counsel, the judge again questioned the witness.

“THE COURT: Did Fleener tell you whether Joe indicated who started the fight between him and Eric Green?
THE WITNESS: Yes.
THE COURT: What did Fleener tell you that Joe said?
THE WITNESS: He said that Joe said that it started over Eric Green’s girlfriend.
THE COURT: Well, did he say who started the fight?
THE WITNESS: No.
THE COURT: Did he indicate what weapons were used in the fight, if any?
THE WITNESS: He said they wasn’t no weapons used in the fight.
THE COURT: No weapons at all?
THE WITNESS: No.”

With respect to the State’s assertion, which was made for the first time at oral argument before this court, that defendant waived this issue, we note that although a standing objection would have been the preferred way of preserving the alleged error for appeal, defendant’s objection at the beginning of the court’s examination of the witness may have been sufficient. See People v. Sprinkle (1963), 27 Ill. 2d 398, 400-01.

The reason the judge gave for examining defendant was to determine the proper instructions to be given in the case. Despite his acknowledgement that the judge’s questions “elicited no new testimony” “about [his] state of mind,” defendant claims that “the court’s interrogation improperly emphasized testimony which pointed to guilt and *** cast *** discredit upon *** a key witness for the defense. ‘The witness had already testified to these facts on direct examination, and the matter was of importance only so far as it affected the credibility of the witness in the minds of the jurors.’ ” (People v. Santucci (1962), 24 Ill. 2d 93, 99.) However, Santucei is distinguishable from this case because there the court examined every witness and made hostile comments to the defense. Santucei, 24 Ill. 2d at 99.

People v. Enoch (1989), 189 Ill. App. 3d 535, appeal denied (1990), 129 Ill. 2d 567, relied on by the State, is also distinguishable. In that case the court questioned a witness in order to clarify his rapid, rambling and sometimes inaudible testimony. (Enoch, 189 Ill. App. 3d at 544, 546.) Although there is some indication in the record in this case that the judge could not hear defendant’s answers during the redirect examination proceeding his questioning of defendant, these answers were immediately clarified by the judge, who stated a different reason for his questions; and although the judge’s questions about defendant’s mental state had already been covered by defense counsel, it appears that the judge was attempting to clarify the material issue of the defendant’s intent. Therefore we cannot conclude that the judge was in error in his interrogation of the defendant.

As to the questions about his relationship with Joe Jefferson, defendant contends that they “further served to emphasize weaknesses in [the] defense and to cast doubt upon [defendant’s] veracity.” (People v. Tyner (1964), 30 Ill. 2d 101, 105.) However, Tyner is also distinguishable from the case at bar since there the court openly accused the witness of lying. (Tyner, 30 Ill. 2d at 104.) Defendant contends that the questions had “the effect of impeaching [his] testimony that Joe was like a brother to him and that he saw Joe practically every day.” According to defendant, “[t]he impeachment value of these questions was obvious to the prosecutor, who avidly pursued this line of questioning after it was suggested by the judge. Another result of the judge’s examination was that it forced defense counsel to bring out that [he] was incarcerated, and had been for some time, in an attempt to rebut the inference that Freddie didn’t care to talk to Joe.” In fact, as previously noted, these questions led to several rounds of re-cross and redirect on this subject.

Assuming without deciding that the judge was in error in asking these questions, we are of the opinion that such error does not mandate reversal, given the exceedingly formidable evidence of defendant’s guilt in this case and also because there is no indication that the judge’s colloquy with defendant formed the basis for the jury’s verdict. Enoch, 189 Ill. App. 3d at 544.

Defendant also claims that the court made the following improper comment to the jury:

“There is no evidence whatsoever as to the physical condition of Joe Jefferson after the fight and the only testimony [in] the record is that he was crying when he was seen by the defendant.”

According to defendant, this comment invaded the province of the jury whose function it is to determine the facts. In support of this argument defendant cites Tyner, in which the court stated:

“Rarely, if ever, is a judge called upon to comment on the evidence during trial except where necessary in ruling upon its admissibility, and under no circumstances should he express an opinion as to its veracity, for this is the province of the jury, and any intimation of such nature, however slight, may carry great weight with the jury and could prove controlling.” (Tyner, 30 Ill. 2d at 104.)

The State responds that the trial judge was merely explaining his ruling regarding the State’s objection to the defense counsel’s misstatement of the evidence. We agree.

Counsel for the defense told the jury that Joe Jefferson “was hit at least five times” and “was beaten so bad he couldn’t get up.” The State objected to this statement on the grounds that it was not supported by the evidence. At that point the judge made the remark in issue. Although Green testified that he hit Joe at least five times, it is clear that the judge was trying to prevent the defense from improperly arguing facts not in evidence as to Joe’s physical condition after the fight. (Babcock v. Chesapeake & Ohio Ry. Co. (1979), 83 Ill. App. 3d 919, 933.) The defendant himself testified that he did not see any marks on Joe Jefferson. We believe the judge’s remarks were necessary to explain his ruling on the State’s objection and were therefore proper. (See People v. Stack (1979), 71 Ill. App. 3d 356, 362-63.) Furthermore, given the overwhelming evidence of guilt, even if the remark did constitute error, it would not require reversal since it was not “a material factor in the defendant's conviction.” Enoch, 189 Ill. App. 3d at 543.

For all of the above reasons, the judgment of the circuit court is affirmed.

Affirmed.

DiVITO and McCORMICK, JJ., concur.

       The record indicates that, for some obscure reason, Joe is a Jefferson; however, only the defendant and Fleener have the same father; Fleener and Joe have the same mother.

       Although the judge mentioned five felony convictions, the State elected to introduce only four into evidence.


text:
    ILLINOIS SERVICE FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHICAGO, Plaintiff-Appellant, v. ACADEMY OF ST. JAMES COLLEGE PREPARATORY, a dissolved Illinois not-for-profit corporation, a/k/a St. James Parochial College Prep School, and a/k/a Academy of St. James Parochial School, et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—90—3029
    Opinion filed March 16, 1992.

      Donovan & Olsen, of Chicago (George H. Olsen, of counsel), for appellant.
    Martin S. Bieber, of Chicago, for appellees.
    Peterson & Ross, of Chicago (Larry A. Hoellwarth, of counsel), for third-party defendant-appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This appeal arises out of a property transaction which took place in May 1973. At that time, the Academy of St. James College Preparatory (Academy) purchased a building located at 7128 South Oglesby, Chicago, Illinois. On May 1, 1973, plaintiff, Illinois Service Federal Savings and Loan Association of Chicago (Illinois Service), extended a loan to the Academy in the amount of $27,200 and received a note and mortgage in its favor from the Academy. Illinois Service filed its mortgage on June 4, 1973, and the Academy began payments thereafter.

In 1974 or 1975, the Academy contracted with Eberson Roofing Company (Eberson) to have a new roof installed on the property. However, the Academy never paid Eberson, and Eberson subsequently commenced a breach of contract action in the circuit court. Eberson obtained a certificate of sale, and on June 11, 1976, the Cook County sheriff deeded the property to Eberson pursuant to the judgment and certificate of sale. Eberson recorded the sheriff’s deed on June 14, 1976.

Meanwhile, the Academy continued to make its mortgage payments to Illinois Service. In 1977, however, the payments became irregular. Illinois Service received its last payment from the Academy on October 13, 1977. The Academy continued to experience financial problems and on June 18, 1981, filed a voluntary petition of bankruptcy in Federal court. On June 16, 1986, Eberson quitclaimed the property back to the Academy, which had remained on the premises as a tenant throughout the period. Bankruptcy proceedings continued until July 15, 1986, when the action was dismissed.

Illinois Service filed the instant action for foreclosure on July 13, 1988. Subsequently, defendants Ralph Wright, Jewelene Wright, and South Chicago Savings Bank, as trustee under trust agreement dated May 27, 1988, and known as trust number 11 — 259 (collectively referred to as Wright), filed an answer and affirmative defenses alleging that they were the owners of the subject property by deed dated May 27, 1988, and that they had no notice of the mortgage interest of Illinois Service and that the foreclosure action was time barred by statute. Wright also filed a third-party complaint against Real Estate Index Company (REI) for failure to inform of the existence of the mortgage.

Illinois Service filed a motion for partial summary judgment, seeking a ruling by the circuit court that the automatic stay issued in bankruptcy court tolled the statute of limitations. Moreover, Illinois Service argued that Wright had a duty to search for Illinois Service’s properly recorded mortgage and could not now escape liability.

Wright and REI filed a joint motion for summary judgment, alleging that no material question of fact existed to preclude application of the summary judgment procedure. They contended that any stay in bankruptcy proceedings did not toll the limitation period for Illinois Service to commence its foreclosure action since Eberson had held the title to the property for a majority of the time the bankruptcy stay was in effect.

The circuit court granted Wright’s motion, ruling that Illinois Service failed to foreclose on its mortgage within the statutory time limit. This appeal followed.

I

Illinois Service initially argues that the circuit court failed to apply the automatic bankruptcy stay to the statute of limitations period at issue here. It maintains that the stay should have been calculated from June 18,1981, until January 16,1986.

Actions for foreclosure must be commenced within “10 years after the right of action or right to make such sale accrues.” (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 115.) Here, the parties agreed that December 31, 1977, was the latest date from which the period could be counted. However, Eberson’s acquisition of the property and the Academy’s subsequent bankruptcy proceeding had an effect on the limitations period. In 1976, Eberson took title of the property by virtue of the sheriff’s deed it acquired as a result of a breach of contract action with the Academy. The Academy, however, remained on the property and appears to have made mortgage payments to Illinois Service during this period.

According to the Federal Bankruptcy Code, the Academy’s 1981 filing of a petition for bankruptcy effected a stay for “property of the estate.” (11 U.S.C. §§362, 541 (1986).) Because Eberson had acquired the title of the property in June 1976, the property was not part of the Academy’s estate and was not subject to the bankruptcy stay. Illinois Service would have been able to bring its foreclosure action against Eberson at that time unhampered by the proceedings in bankruptcy court. However, once Eberson quitclaimed the title of the property back to the Academy, the property became subject to the stay, since after-acquired property becomes an asset of the bankruptcy debtor’s estate at the time the debtor becomes owner of such property. (In re Dakota Industries, Inc. (S.D. 1983), 31 Bankr. 23.) Thus, the stay in bankruptcy court as to the subject property lasted between January 16, 1986, and July 15, 1986, the date the case was dismissed. (See 11 U.S.C. §362(c)(2) (1988) (stay in proceedings “continues until the earliest of — (A) the time the case is closed; (B) the time the case is dismissed”).) The total time elapsed between the date of the default, December 31, 1977, and the date Illinois Service brought its action, July 13, 1988, was 10 years and 195 days. The period was tolled for 181 days due to the bankruptcy stay. Illinois Service filed its action 14 days late. Accordingly, the circuit court correctly calculated the length of the automatic stay as to the subject property.

II

Illinois Service also maintains that the sheriff’s deed was void as to all parties because it did not receive notice of the proceedings.

Regarding judicial sales, collateral attacks are limited to sales which are void because of a lack of jurisdiction of the court over the subject matter or person or due to fraud in procuring the sale. (City of Chicago v. Central National Bank (1985), 134 Ill. App. 3d 22, 479 N.E.2d 1040.) In cases of collateral attack, all presumptions are in favor of the validity of the attacked judgment and the face of the record. (Trustees of Central States, Southeast & Southwest Areas Pension Fund v. La Salle National Bank (1989), 185 Ill. App. 3d 734, 542 N.E.2d 30, appeal denied (1989), 128 Ill. 2d 663, 548 N.E.2d 1069.) Notice requirements for sales of real estate to satisfy judgments are found in section 12 — 115 of the Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, par. 12 — 115.) The statute makes no provision for notice to mortgagees. Notice is satisfied by publishing the particulars of the sale in a county newspaper for three successive weeks and by placing three printed notices in public places within the county where the subject real estate is located. (Ill. Rev. Stat. 1987, ch. 110, par. 12 — 115.) However, defective or insufficient notice does not render a judicial sale void, or even voidable, unless the purchaser has notice of the irregularity. City of Chicago v. Central National Bank, 134 Ill. App. 3d at 28.

Here, Illinois Service’s contentions are meritless because it was not the purchaser of the subject property. As the mortgagee, Illinois Service is not implicated in the notice procedure and has no standing to raise the notice argument since the purchaser, Eberson, did not claim to have had notice of any irregularity.

Illinois Service also argues that, even with the existence of the sheriff’s deed, the Academy still maintained an interest in the property since the Academy noted the mortgage’s existence in its reorganization plan filed in the bankruptcy proceedings.

Initially, it should be noted that the bankruptcy court did not approve or adopt the Academy’s reorganization plan. In any event, section 12 — 148 of the Code of Civil Procedure provides that a deed from a judicial sale transfers “all the title, estate and interest of the judgment debtor, of every nature and. kind, in and to the premises thereby conveyed” to the purchaser. (Ill. Rev. Stat. 1987, ch. 110, par. 12— 148.) Accordingly, the Academy retained no interest in the property after the sale. Indeed, a purchaser at a judicial sale takes property subject to all outstanding liens thereon. (Aetna Life Insurance Co. v. H.W. Stout & Associates, Inc. (1983), 112 Ill. App. 3d 570, 445 N.E.2d 1288.) The Bankruptcy Code defines “property of the estate” as “all legal or equitable interests of the debtor in property as of the commencement of the case.” (11 U.S.C. §541(a)(1) (1986).) Since the sheriff’s deed transferred all title to Eberson, the property does not fall under the property definition as set forth in the Bankruptcy Code. Illinois Service, therefore, could have undertaken its foreclosure action against Eberson notwithstanding the Academy’s bankruptcy proceedings.

Illinois Service further contends that the Academy’s possession of the property was an equitable interest under the Bankruptcy Code.

Although the bankruptcy court noted, in In re Maxwell (N.D. Ill. 1984), 40 Bankr. 231, 237, that “a debtor-tenant in possession does have a slight equitable interest under §541 which is protected by the automatic stay,” other courts have held that “[t]he debtor’s argument that his equitable possessory interests are protected by the automatic stay is totally without support.” (In re Neville (E.D.N.Y. 1990), 118 Bankr. 14, 18.) Moreover, in a case very similar to the present case, the interest in the property which had been previously conveyed from the mortgagor-debtor in possession was not considered “property of the estate” and was not subject to the automatic stay. (In re Crawley (Minn. 1990), 117 Bankr. 457, 460. See also Johnson v. First National Bank (8th Cir. 1983), 719 F.2d 270, 276, cert, denied (1984), 465 U.S. 1012, 79 L. Ed. 2d 245, 104 S. Ct. 1015.) Based on the foregoing, Illinois Service’s argument on this issue is unpersuasive.

Ill

Finally, Illinois Service contends that the circuit court erred by granting summary judgment to Wright and REI.

Section 2 — 1005 of the Code provides that summary judgment may be entered only if “there is no genuine issue as to any material fact and *** the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c).) Accordingly, the purpose of summary judgment is not to try a question of fact, but to determine whether one exists. (Addison v. Whittenberg (1988), 124 Ill. 2d 287, 294, 529 N.E.2d 552.) A motion for summary judgment is to be granted if the pleadings, depositions, affidavits and admissions filed reveal that no genuine issue as to any material fact exists. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1005.) Furthermore, the pleadings, affidavits and depositions must be construed against the movant and in favor of the opponent. In re Estate of Whittington (1985), 107 Ill. 2d 169, 177, 483 N.E.2d 210, cert, denied sub nom. Lyons v. Bute (1986), 475 U.S. 1016, 89 L. Ed. 2d 313,106 S. Ct. 1199.

Here, all the facts demonstrate that the statute of limitations had expired before Illinois Service filed its foreclosure action since the action was filed 10 years and 14 days after the right accrued. As a result, no question of fact exists to preclude the application of the summary judgment procedure. The circuit court’s determination will not be disturbed.

For the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

BUCKLEY, P.J., and MANNING, J., concur.

       Illinois Service regarded December 31, 1977, as the date of default in the circuit court and continues to do so in this appeal.


author: JUSTICE TULLY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VICTOR MUSSO, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—2683
    Opinion filed March 18, 1992.

      Michael J. Pelletier, Marc Davidson, and Barbara Kamm, all of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Linda D. Woloshin, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE TULLY

delivered the opinion of the court:

Following a jury trial in July 1988, defendant, Victor Musso, was convicted of armed robbery and sentenced to 14 years’ imprisonment by the Honorable Stephen A. Schiller. Prior to trial, defendant made several motions for substitution of the judge, based upon the appearance of impropriety created by the pending investigation of Judge Schiller’s deputy sheriff, who attempted to solicit a bribe from the defendant in June 1987. Defendant’s motion for substitution as well as a motion for recusal were both denied. On appeal, defendant argues that the failure of Judge Schiller to recuse himself created an “appearance of impropriety” which denied him a fair and impartial trial. Secondly, defendant contends that his 14-year sentence must be vacated and remanded for a new sentencing hearing, since the trial court relied upon an obsolescent psychological profile in determining the sentence.

Defendant was indicted on 10 separate counts, all pending before Judge Schiller. Following a jury trial in June 1987, defendant was found guilty of robbery on the first of these counts and sentenced to nine years’ imprisonment by Judge Schiller. Shortly thereafter, defendant was approached by the deputy sheriff, Andy Lakatos, who offered to “fix” the defendant’s remaining cases pending before Judge Schiller in exchange for $30,000. At the time, defendant was in the holding cell behind Judge Schiller’s courtroom. Lakatos explained that half of the money would be distributed to himself and certain jurors, and the remainder to Judge Schiller. He guaranteed that the remaining cases would result in either “not guilty” or a “hung jury.” Lakatos claimed that this method of funneling the money through the jury was used to distance Judge Schiller from the bribe operation.

Upon realizing that he could not obtain the requested money, the defendant feared the consequences of returning to Judge Schiller’s courtroom, since Judge Schiller had repeatedly said to the defendant that he could “get 60 years.” Defendant construed these statements by Judge Schiller as a threat, to be carried out if defendant did not cooperate with the bribe scheme. On June 24, 1987, defendant contacted United States Attorney Anton Valukas and the Federal Bureau of Investigation (FBI). The FBI enlisted the cooperation of defendant’s sister, Nancy Levita, who accompanied a female FBI agent to a fake court call. Equipped with a wire, Levita arranged to pay Lakatos $28,000. Lakatos apparently complained to the defendant that this would mean a lower payoff for himself, since Judge Schiller would still take “15 [thousand dollars] off the top.”

A few days later, defendant met with the State’s Attorney’s office and the United States Attorney General’s office to discuss leniency in exchange for the defendant’s help in the bribe investigation. Defendant proposed that his nine-year sentence for robbery be reduced to “time served” and that the pending armed robbery charges be dismissed. Defendant also requested placement in the Federal Witness Protection Program. In exchange for the sentence reduction, Musso promised additional information about a planned escape from the Cook County jail.

On July 29, 1987, defendant filed a complaint against Judge Schiller with the Judicial Inquiry Board. In a reply letter dated August 11, 1987, the Board informed Musso that his complaint had been “taken under advisement.”

On August 19, 1987, defendant attested to all of the foregoing facts at a hearing on his motion for substitution of judges. The Honorable Thomas Hett presided over the hearing. Defendant further testified that he believed the investigation of Judge Schiller by the Judicial Inquiry Board was still pending and that Lakatos had been indicted. Assistant Public Defender Marianne Burke, Musso’s new counsel, argued to Judge Hett that the defendant would be forced to take a jury trial on the remaining charges. In ruling on the motion, Judge Hett noted that no witnesses who testified at the hearing were able to corroborate the statements of the defendant relating to the bribery investigation and the actions of the deputy sheriff. In addition, the petition was neither verified nor supported by an affidavit.

On August 20, 1987, the defendant filed a motion for counsel other than the public defender and moved for Judge Schiller to recuse himself based upon the appearance of impropriety. Judge Schiller declined to recuse himself, stating that he felt no personal prejudice or animosity toward the defendant. A private attorney, Charles Murphy, was appointed thereafter to represent Musso.

On April 25, 1988, a motion to reconsider his previous ruling on defendant’s motion for substitution of judges was also denied by Judge Hett. The parties stipulated that Musso testified to essentially the same facts as those presented at the August 19, 1987, hearing. Additionally, Musso testified that he had read two newspaper articles concerning the bribery investigation of the deputy sheriff. Both articles mentioned that Judge Schiller was under investigation. Musso did not recall if he had initiated contact with the newspapers.

In denying the motion a second time, Judge Hett noted that it was unclear as to whether Musso had contacted the newspapers himself. In addition, Judge Hett stated that defendant failed to meet his burden of demonstrating actual prejudice by Judge Schiller and that an “appearance of impropriety” was insufficient to grant a motion for substitution of judges. Judge Hett advised the defendant that his “best avenue of attack” would be to request that Judge Schiller recuse himself. On April 29, 1988, Musso again requested that Judge Schiller recuse himself based upon an appearance of impropriety. The motion was again denied.

Musso first argues that Judge Schiller improperly failed to recuse himself based upon an appearance of impropriety allegedly created by the actions of the deputy sheriff. In support thereof, defendant relies upon this court’s ruling in People v. Bradshaw (1988), 171 Ill. App. 3d 971, 525 N.E.2d 1098. In Bradshaw, we held that the trial judge improperly failed to recuse himself after conducting a closed-door meeting with the victim’s mother in his chambers. We noted that the “appearance of impropriety” created by the judge’s conduct potentially damaged public confidence, even if no actual prejudice or bias existed. The proper test was set forth in People v. Austin (1983), 116 111. App. 3d 95,100-01, 451 N.E.2d 593:
“The appearance of bias or prejudice can be as damaging to public confidence in the administration of justice as would be the actual presence of bias or prejudice. [Citation.]
*** Nothing more can be suggested by way of guidance than that there be a concerned interest in ascertaining whether the public impression will be favorable, even though the judge is convinced of his own impartiality. The question never centers on the reasonableness or fairness of the image which is being created, but rather on the actual character of that image. [Citation.]”

The case sub judice can be factually distinguished from Bradshaw. Although both cases involve an appearance of impropriety, in Bradshaw, it was the judge himself who created such an appearance. In this case, the deputy sheriff and possibly the defendant created the improper impression. At the hearing on defendant’s motion for substitution of judges, the defendant could not recall if he had leaked the alleged bribe scheme to the press, nor were any witnesses available to corroborate defendant’s allegations that the deputy sheriff had implicated Judge Schiller in the scheme. The fact that the scheme involved a jury as opposed to a bench trial calls into question the ability of Judge Schiller to participate in such a scheme.

Illinois Supreme Court Rule 62 reads in part: “A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities.” (107 Ill. 2d R. 62.) This rule implies that it is the judge who must initiate the course of conduct which creates a dis-favorable public impression. The instant case is perhaps more akin to People v. Hall (1986), 114 Ill. 2d 376, 499 N.E.2d 1335, wherein the defendant struck the judge and subsequently argued on appeal that he was denied a fair and impartial trial because the judge failed to recuse himself. In rejecting this argument, the court stated “[t]o hold that the law requires a substitution of judges under circumstances similar or comparable to those here would invite misconduct toward judges and lawyers, and a practice would develop that the grosser the misconduct the better the chances to avoid trial with an undesired judge or lawyer.” 141 Ill. 2d at 407.

Applying the principles of Hall, the trial court properly refused to grant defendant’s motion for substitution, since it was unclear as to whether the defendant himself leaked the alleged bribe scheme to the newspapers. Judge Schiller did not recuse himself, stating that he was entirely unaware of the bribe offered by his deputy sheriff. There were no witnesses or other evidence to substantiate the allegation of the defendant that the deputy sheriff had implicated Judge Schiller in the bribe scheme. Moreover, the fact that defendant was to receive a jury trial belies such an allegation. Under the circumstances, we cannot say the trial judge committed reversible error in failing to recuse himself.

The second issue presented on appeal is whether the trial court improperly relied upon a 20-year-old military psychological profile in sentencing the defendant. It is the responsibility of the trial judge to shield his mind from the possible prejudicial effect of unreliable or improperly considered evidence. (People v. Crews (1967), 38 Ill. 2d 331, 231 N.E.2d 451.) If the defendant shows that he has been prejudiced by material considered by the trial court, in conducting its presentencing inquiry, the resultant penalty will not be allowed to stand. People v. McWilliams (1932), 348 Ill. 333, 180 N.E. 832.

Although the trial judge mentioned the psychological profile prior to sentencing, it is not clear whether the judge actually relied upon the report in determining the sentence. The judge noted that he had been able to personally observe the actions of the defendant in the multiple cases which were tried before him and that he observed defendant’s disrespect for authority. Moreover, a 14-year sentence out of a maximum of 60 years does not indicate any prejudice against the defendant. We, therefore, are not prepared to say that the sentence of the trial court was improper or prejudicial.

Conclusion

This case is a result of an attempted scheme by an employee of the sheriff’s department who used his position as a courtroom aide to a judge to embellish his plan. No evidence has been presented to the appellate court that this judge was in any way aware of the chicanery of the sheriff’s deputy. Based upon the evidence, the judge’s refusal to recuse himself was not error. This court is in no stronger position than the trial court to evaluate whether the defendant created an appearance of impropriety or whether the judge was, in fact, prejudiced against the defendant. Moreover, the sentence imposed tends to indicate that the defendant received a fair and impartial trial. Therefore, the decision of the Cook County court is hereby affirmed.

Affirmed.

GREIMAN, P.J., and CERDA, J., concur.