People v. Berry

609 N.E.2d 900, 241 Ill. App. 3d 993, 182 Ill. Dec. 366, 1993 Ill. App. LEXIS 84
CourtAppellate Court of Illinois
DecidedJanuary 28, 1993
Docket1-89-2922
StatusPublished
Cited by10 cases

This text of 609 N.E.2d 900 (People v. Berry) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Berry, 609 N.E.2d 900, 241 Ill. App. 3d 993, 182 Ill. Dec. 366, 1993 Ill. App. LEXIS 84 (Ill. Ct. App. 1993).

Opinion

PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

Following a jury trial, the defendant Terry Berry was convicted of aggravated criminal sexual assault and attempted robbery. He was sentenced to concurrent prison terms of 60 years for aggravated criminal sexual assault and five years for attempted robbery, to be served concurrently with a 60-year sentence from another case. The defendant contends on appeal that his motion for a substitution of judges was erroneously denied and that he was denied a fair trial based on the prosecutor’s introduction of “non-identification testimony,” i.e., evidence that the victim failed to identify a suspect other than the defendant, as well as by improper comments made by the prosecutor during closing arguments. The defendant further contends that his conviction for attempted robbery should be vacated and that the cause should be remanded for resentencing because the court relied upon a one-year-old presentence investigation report which had been prepared in connection with a different case.

The charges in the instant cause stemmed from an attack upon the complainant, L.D., on August 11, 1986. The defendant requested a jury trial, and the cause was assigned to Judge Suria. Prior to trial, the defendant moved for a substitution of judges, alleging that Judge Suria was prejudiced against him because he had presided over a prior jury trial in which the defendant was convicted of committing an aggravated criminal sexual assault upon another complainant, A.M. The motion stated that during the previous trial Judge Suria had heard the testimony of L.D., the complainant in the case at bar, which was offered as evidence of modus operandi. The motion further stated that Judge Suria sentenced the defendant to a 60-year prison term in the prior case and encouraged the State and the defense to dispose of the present case prior to trial because he did not wish to see L.D. be required to repeat her “traumatic” testimony.

A hearing on the motion was held before Judge Neville. At the hearing, defense counsel represented to the court that when Judge Suria was asked if he was prejudiced against the defendant, he responded only that “he had an idea how the jury might rule.” Judge Neville ruled that the defendant did not sustain his burden of proving prejudice. He denied the motion without prejudice, stating that it could be renewed if the defendant decided to request a bench trial.

At trial, L.D. testified that she was walking to a friend’s house at approximately 12 a.m. on August 11, 1986, when the defendant approached her and began asking for directions. L.D. attempted to back away from him, but he grabbed her and announced a robbery. She emptied her purse as directed, after which the defendant demanded sex. He dragged L.D. into a gangway and forced her to perform acts of oral and vaginal intercourse. L.D. testified that the area where the defendant first approached her was well lighted and that she was able to see his face. The incident lasted between 30 and 45 minutes. When it was over, L.D. ran to her friend’s house and called the police. L.D. described her attacker to the police who responded as being 5 feet 8 to 5 feet 10 inches tall, weighing 175 to 180 pounds with a Gheri Curl hair style. She also described what he was wearing. After broadcasting the description, the police were informed about a possible suspect and took L.D. to view the suspect. Without objection from the defendant, L.D. testified that she did not identify the suspect as her attacker. A few days after the incident, L.D. recalled that her attacker had a mustache. She called the police and gave them this additional information.

A.M., the complainant in the defendant’s previous trial, testified that just after midnight on July 24, 1986, she was robbed and sexually assaulted by the defendant. Her testimony was admitted as evidence of modus operandi.

On December 18, 1986, L.D., A.M. and a third woman were taken to the police station to view a lineup. L.D. and A.M. both identified the defendant as the man who attacked them; the third woman was unable to make an identification.

Officer Lundin testified that she responded to the call in the instant cause and that she had also made a police report regarding the earlier attack on A.M. In response to the prosecutor’s questions, Lundin explained the procedures that occur during the shift change between the first watch, which begins at 11 p.m., and the third watch, which ends at midnight.

The defendant presented an alibi defense through the testimony of his brother and two sisters. They testified that one of the sisters was moving from one town to another in Missouri and that several family members, including the defendant, were present to help her move. The witnesses testified that the defendant did not return to Chicago until approximately 3 a.m. on August 11, 1986.

The facts underlying the defendant’s claims of improprieties in closing argument and sentencing will be detailed later in connection with our discussion of those issues.

The defendant first contends that the denial of his motion for a substitution of judges constituted error. He contends on appeal that Judge Suria’s statement that he had an idea how the jury might rule established that he had prejudged the case and was no longer impartial.

In order to warrant a substitution of judges, the defendant bears the burden of proving that the judge assigned to his case harbors actual prejudice. (People v. Nickols (1976), 41 Ill. App. 3d 974, 979, 354 N.E.2d 474.) To sustain this burden, the defendant must show more than the fact that the judge convicted the defendant in a previous case. (People v. Vance (1979), 76 Ill. 2d 171, 178, 390 N.E.2d 867.) In Vance, the supreme court stated that disqualifying a judge because of prejudice is not a judgment to be lightly made. Rather, the court stated that “ ‘something more’ — a showing of animosity, hostility, ill will, or distrust towards this defendant” must be made in order to conclude that the judge harbored actual prejudice which would interfere with a fair determination of the defendant’s guilt or innocence. Vance, 76 Ill. 2d at 181, 390 N.E.2d at 872.

In the case at bar, Judge Suria presided over an earlier jury trial in which the defendant was convicted of sexually assaulting A.M. The complainant in this cause, L.D., testified concerning the attack on her as a means of establishing the defendant’s modus operandi. When asked by defense counsel in this cause whether or not he was prejudiced against the defendant, Judge Suria’s only response was that he had an idea of how the jury might rule. The defendant interprets this response as an indication that Judge Suria had already determined that the defendant would be convicted and that he could accordingly no longer be impartial.

We disagree with the defendant’s conclusion. Unlike the situation in People v. Robinson (1974), 18 Ill. App. 3d 804, 310 N.E.2d 652, cited by the defendant, the trial judge here did not express a personal opinion prior to trial that the defendant was in fact guilty.

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Cite This Page — Counsel Stack

Bluebook (online)
609 N.E.2d 900, 241 Ill. App. 3d 993, 182 Ill. Dec. 366, 1993 Ill. App. LEXIS 84, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-berry-illappct-1993.