NOTICE: Under Supreme Court Rule 367 a party has 21 days after the
filing of the opinion to request a rehearing. Also, opinions are
subject to modification, correction or withdrawal at anytime prior
to issuance of the mandate by the Clerk of the Court. Therefore,
because the following slip opinion is being made available prior to
the Court's final action in this matter, it cannot be considered
the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of
Decisions in the Official Reports advance sheets following final
action by the Court.
Docket No. 79044--Agenda 5--May 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ISRAEL VARGAS,
Appellant.
Opinion filed November 21, 1996.
JUSTICE McMORROW delivered the opinion of the court:
The question presented in this case is whether a trial judge's
absence from the courtroom during a portion of the cross-
examination of a witness at a murder jury trial constitutes per se
reversible error, or whether prejudice to defendant must be shown
in order to warrant reversal. We hold that judicial absence during
a felony trial constitutes per se reversible error.
Background
The record in the present case reveals that in December 1990,
defendant, Israel Vargas, was tried and convicted by a jury in the
circuit court of Cook County for first degree murder on an
accountability theory. The State's evidence at trial was
essentially as follows. On January 17, 1990, at approximately 9:30
p.m., defendant, Raphael Padilla, and James Kallenborn, all members
of the Satan Disciples street gang, discussed "putting a hit" on a
member of the Vice Lords, a rival gang, in retaliation for a
previous shooting incident between the two gangs. Later that
evening, shortly before 10 p.m., the three men were walking along
63rd Street toward Artesian Avenue when they saw the victim, Alvin
Gill, in front of a residence located on Artesian. Defendant,
Padilla, and Kallenborn believed that the victim was a member of
the Vice Lords because the bill of the victim's cap was positioned
off to the left, indicating to them that he was a member of a rival
gang.
Upon seeing the victim, Padilla pulled out a gun and fired a
shot at the victim. In response, the victim turned to one side and
ran eastbound into an alley. Defendant, Padilla, and Kallenborn
chased the victim into the alley, where the victim was shot again.
The victim died from gunshot wounds inflicted by Padilla.
The trial judge's absence in this case occurred as testimony
was being elicited from Assistant State's Attorney Michael Vittori.
During the State's direct examination of Vittori, Vittori read into
evidence a handwritten statement taken by him from defendant
wherein defendant describes, in detail, his involvement in the
victim's murder. Shortly after defendant's attorney began his
cross-examination of Vittori, the trial judge briefly excused
himself from the courtroom. On this matter, the record reveals that
the following occurred:
"THE COURT: Excuse me, Mr. Flanagan [defense
counsel]. I have Judge Brady on the phone. You can
continue. If you need me, let me know.
(Judge exited.)
MR. FLANAGAN: Q. Now, your job as a State's Attorney
is to prosecute for the People of the State of Illinois,
is that correct?
A. That is correct.
Q. And that is what you were doing January 18th of
1990, isn't that right?
A. I was a prosecutor at that time, yes.
Q. And you were working in Felony Review?
Q. And I believe you told the ladies and gentlemen
of the jury that when you work Felony Review you assist
in the investigation of cases, isn't that right?
A. Yes.
Q. And you gather evidence?
A. Yes. We talk to witnesses, we talk to defendants
if they are willing to talk with us.
Q. And the purpose of that is ultimately to be used
in court, isn't that right?
Q. That is what you told [defendant] when you spoke
to him on January 18th, isn't that right, anything that
he'd say would be used in court, didn't you tell him
that?
A. That['s] right. I did inform him of, yes.
Q. And that is part of your job, isn't it?
Q. So when you were talking to [defendant] you were
acting as an attorney for the State of Illinois and not
as his attorney?
A. Yes. That is what I told him.
Q. And your job as a State's Attorney was to gather
evidence to prosecute [defendant], isn't that right?
A. No. We gather information--
MS. RODI [prosecutor]: Objection.
MR. FLANAGAN: Miss Court Reporter, could you make a
note of where that is and then I can continue along
another line.
Any objection counsel?
MS. RODI: No.
MR. FLANAGAN: Q. Now, in January of this year how
long had you been working as a State's Attorney?
A. In January of 1990 I had been working, it wasn't
four years yet because I started in June of 1986.
(Judge entered.)
MR. FLANAGAN: Judge, we did have an objection and it
was one question ago. Maybe we could go back to that
question. I would respectfully ask for your ruling.
THE COURT: You ask for what?
MR. FLANAGAN: Your ruling.
THE COURT: Well, what is the question?
MR. FLANAGAN: If the court reporter can read it
back?
THE COURT: All right.
(The Court Reporter read the record.)
And there was an objection to that?
MR. FLANAGAN: Yes.
THE COURT: Overruled. He may answer."
After Vittori's testimony, the State rested its case in chief.
The defense rested without presenting any evidence. Following
closing arguments, the jury found defendant guilty of first degree
murder. The court subsequently sentenced defendant to serve a term
of 35 years' imprisonment.
Defendant sought review of his conviction in the appellate
court arguing, inter alia, that the trial judge's absence during a
portion of the cross-examination of Vittori was plain error which
mandated a reversal of his conviction. The appellate court held
that the trial judge's absence was error, but determined that the
error was harmless. 271 Ill. App. 3d at 341. We subsequently
granted defendant's petition for leave to appeal. 155 Ill. 2d R.
315.
Analysis
The sole issue which defendant asks us to review is the
correctness of the appellate court's conclusion that the trial
judge's absence during Vittori's cross-examination was harmless
error. Defendant's position on this issue is twofold. Defendant
contends that a trial judge's absence during the presentation of
evidence at a felony criminal jury trial constitutes per se
reversible error. In the alternative, defendant argues that even
assuming that such absence does not amount to per se reversible
error, reversal is still warranted because a trial judge's absence
is error and, in the present case, defendant suffered prejudice
from that error.
Defendant's contention that the trial judge's absence in this
case constitutes per se reversible error is based in large part on
the defendant's theory that a trial judge's presence throughout the
trial is necessary to preserve the integrity and reputation of the
judicial process. Defendant argues that the judge's presence is
required to prevent inattentiveness on the part of jurors, improper
conduct by the attorneys, and general disorderliness in the
courtroom during a criminal jury trial, which have the potential of
prejudicing defendant. Defendant further maintains that jurors
expect that a judge will always be present during the course of the
proceedings and that the judge's absence may cause jurors to
believe that evidence presented during the judge's absence is, in
the judge's opinion, of lesser importance.
Defendant contends that even if the absence of the trial judge
did not constitute per se reversible error, defendant's conviction
should be reversed because Vittori "was the single most important
witness in this case, for he testified to a statement supposedly
made to him by [defendant], and the State's claim of accountability
rested primarily on this statement." Defendant argues that the
judge's decision to leave the courtroom in order to take a phone
call during the cross-examination of Vittori prejudiced defendant
by creating the impression that the judge did not consider the
cross-examination to be significant. Defendant also claims that any
inattention or distraction by the jurors which might have been
caused by the judge's absence during the cross-examination of this
critical witness was likely to prejudice defendant.
The State initially counters that defendant has waived review
of the trial judge's absence. The State points out that defendant
did not object to the judge's absence at trial but instead
proceeded, in the trial judge's absence, to continue with the
cross-examination of Vittori. The State also points out that
defendant did not raise an objection to the trial judge's absence
in a post-trial motion. The State argues that these inactions,
either individually or collectively, are sufficient to preclude our
review of defendant's challenge to the trial judge's absence.
In the alternative, the State contends that even if
defendant's objection to the trial judge's absence in the instant
case is reviewable, the appellate court correctly held that such
absence did not amount to reversible error. The State disagrees
with defendant's position that the trial judge's absence
constitutes per se reversible error in the present case. Instead,
the State argues that the appellate court correctly interpreted the
decisions of this court to conclude that a trial judge's absence
during a portion of a criminal jury trial, without a showing of
prejudice to defendant, is harmless error. The State maintains
that, in the present case, the trial judge's absence from the bench
was harmless error because defendant was actively proceeding with
the cross-examination of Vittori in the trial judge's absence, the
trial judge was in effective control of the proceedings during his
absence from the bench, and nothing prejudicial to defendant
happened during the judge's absence from the bench. The State
maintains that considering the judge's absence in this light, the
trial judge's absence in the instant case was harmless error.
We begin our analysis by noting that the State is correct in
its assertion that any error arising from defendant's failure to
object to the trial judge's absence would generally be considered
waived. Ordinarily, a defendant must object to alleged errors at
trial and include the objection in a post-trial motion in order to
preserve the issue for appellate review. People v. Enoch, 122 Ill.
2d 176, 186 (1988). In this case, defendant did not object to the
judge's absence either at trial or in a post-trial motion and, as
a result, review of such absence would normally be deemed waived.
The waiver doctrine, however, is not absolute. Supreme Court
Rule 615(a) provides that plain errors affecting substantial rights
may be reviewed on appeal, though not objected to at trial and in
a post-trial motion. 134 Ill. 2d R. 615(a). The purpose of the
plain error rule is to afford certain protections to the accused by
correcting serious injustices and to preserve the integrity and
reputation of the judicial process. See People v. Young, 128 Ill.
2d 1, 46 (1989). This court has observed that the plain error rule
may be invoked in criminal cases in two limited circumstances. See
People v. Hobley, 159 Ill. 2d 272, 310 (1994); People v. Herrett,
137 Ill. 2d 195, 209 (1990); Young, 128 Ill. 2d at 47; People v.
Carlson, 79 Ill. 2d 564, 576-77 (1980). First, where the evidence
is closely balanced, a reviewing court may consider a claimed error
which was not properly preserved, so as to preclude argument that
an innocent person may have been wrongly convicted. See Hobley, 159
Ill. 2d at 310; Herrett, 137 Ill. 2d at 209; Young, 128 Ill. 2d at
47; Carlson, 79 Ill. 2d at 576. Second, a reviewing court may
invoke the plain error rule to review waived errors which are of
such magnitude that there is a substantial risk that the accused
was denied a fair and impartial trial, and remedying the error is
necessary to preserve the integrity of the judicial process. See
Hobley, 159 Ill. 2d at 310; Herrett, 137 Ill. 2d at 214; Young, 128
Ill. 2d at 47; Carlson, 79 Ill. 2d at 576-77.
Although the evidence in the case sub judice is not closely
balanced, we believe that the second prong of the plain error rule
should be invoked to review the judge's absence from the bench. The
plain error rule permits a reviewing court "to take notice of
errors appearing upon the record which deprive the accused of
substantial means of enjoying a fair and impartial trial." People
v. Howell, 60 Ill. 2d 117, 121 (1975); see also People v. Sanders,
99 Ill. 2d 262, 273 (1983); People v. Pickett, 54 Ill. 2d 280, 283
(1973). A reviewing court will grant relief under the second prong
of the plain error rule only if the error is so fundamental to the
integrity of the judicial process that the trial court could not
cure the error by sustaining an objection or instructing the jury
to disregard the error. See Herrett, 137 Ill. 2d at 215; Carlson,
79 Ill. 2d at 577.
In our view, two policy concerns support the conclusion that
the judge's absence from the bench in the present case is
reviewable under the plain error rule. First, a judge's active
presence on the bench during a criminal jury trial is an essential
safeguard which aids in providing a defendant with a fair trial.
Second, we believe that a judge's absence from the bench might
unduly influence the attitude of jurors so as to deny defendant an
impartial trial. We discuss each of these points in turn.
During a criminal jury trial, a necessary function of the
trial judge is to supervise the courtroom, rule on objections as
they arise during the course of the proceedings, and deter any
objectionable conduct to the detriment of the defendant. In this
regard, a trial judge's active presence on the bench helps to
ensure that the defendant will have a fair trial. This court has
observed that without the trial judge's presence in the courtroom,
there is no judicial authority which can observe, cure, and deter
objectionable conduct which may have the effect of prejudicing the
defendant in the minds of the jury. See People v. Chrfrikas, 295
Ill. 222, 228-29 (1920). In Chrfrikas, while the trial judge was
out of the courtroom, the prosecutor referred to a well-known
atrocious crime of that era. This court concluded that the
reference was likely to inflame the passions and prejudices of the
jury to the detriment of defendant. In reversing defendant's
conviction and ordering a new trial, this court observed that a
trial judge's presence during the proceedings is necessary to
ensure that defendant receives a fair trial. The court noted that
"[t]he trial judge should not be even temporarily absent from the
court room while the trial of a case proceeds" because " `[i]t is
the duty of the court, on its own motion, to promptly suppress any
attempt on the part of counsel to drag irrelevant matters into a
case merely for the purpose of exciting the prejudices of the
jury.' " Chrfrikas, 295 Ill. at 228, quoting Earll v. People, 99
Ill. 123, 136 (1881). This court stated:
"Even though the trial judge was within hearing of what
was going on in the court room, he could not promptly
have stopped the remarks of the prosecuting attorney on
his own motion. It would be necessary first for him to
return to the court room. *** The fact that the statement
of the prosecutor was stricken out, on motion, after the
judge returned to the court room could not take from the
minds of the jurors the effect of the speech any more
than the placing of a blotter upon an ink blot could
remove entirely the effects of the blot of ink from a
clean white sheet." Chrfrikas, 295 Ill. at 228-29.
A judge's absence from the bench during the course of the
trial may create a negative impression in the minds of the jury to
the detriment of the defendant. This court has explained that
"[j]urors are ever watchful of the attitude of the trial judge and
his influence upon them is necessarily and properly of great
weight, thus his lightest word or intimation is received with
deference and may prove controlling." People v. Marino, 414 Ill.
445, 450-51 (1953); see also People v. Sprinkle, 27 Ill. 2d 398,
403 (1963). In Durden v. People, 192 Ill. 493, 508 (1901), the
trial judge, after presiding over the trial up to and including a
portion of defense counsel's closing argument, absented himself
from the proceedings and did not return until the hearing on the
motion for a new trial. Without prior notice to the parties,
another judge presided over the proceedings during the interim
period. See Durden, 192 Ill. at 508. In holding that the presiding
judge's absence from the proceedings required an automatic reversal
of defendant's conviction, this court in Durden observed that
because a single judge had presided over the most of the trial,
that judge's absence may have created a negative impression in the
minds of the jurors:
"It is impossible for us to say that no injury
resulted to [defendant] from the substitution, in the
manner heretofore indicated, of one judge for another
during the trial of the cause. *** It cannot be known
what impression this change may have made upon the minds
of the jury to the prejudice of [defendant]." Durden, 192
Ill. at 507.
We are of the view that just as an unwarranted substitution of
judges after most of the trial has transpired has the potential of
affecting the jury's impartiality to the detriment of the
defendant, the sudden absence of the trial judge in the present
case had similar potency. In this case, the presiding trial judge
totally absented himself from the proceedings during the testimony
of the final witness in defendant's trial. As in Durden, we cannot
say that the presiding judge's sudden absence did not affect the
impartiality of the jurors and thereby result in prejudice to
defendant. Therefore, we are persuaded that the presiding trial
judge's total absence from a portion of the proceedings during
defendant's murder trial must be viewed as so detrimental to the
integrity and reputation of the judicial process as to constitute
plain error and require reversal for new trial.
We have set forth above the policy reasons why we view the
trial judge's absence from the bench during defendant's prosecution
as plain error requiring relaxation of the waiver doctrine. For
similar reasons of policy we also hold that the nature of the
error--total judicial absence for a portion of a felony trial--is
per se reversible because such error is inherently prejudicial, not
only to defendant's right to a fair trial but also to the integrity
of the judicial process.
The appellate court relied on precedent from this court in
support of its conclusion that error arising from the judge's
absence from the courtroom should be subject to harmless error
analysis requiring a specific showing of prejudice to defendant.
Accordingly, we examine the prior cases of this court, dating back
to the nineteenth century, which have considered issues involving
judges' absence from court proceedings.
In reaching its conclusion that the trial judge's absence in
the present case was harmless error, the appellate court stated
that "in each case where the supreme court has had occasion to
address the issue of a judge's absence from the bench, the court,
while specifically disapproving of the practice, has reversed only
where the defendant suffered prejudice as a result of the judge's
absence." 271 Ill. App. 3d at 341. The appellate court concluded
that the trial judge's absence during Vittori's cross-examination
in the case at bar was harmless error because, in its view,
defendant suffered no demonstrable prejudice resulting from the
judge's absence.
We disagree with the appellate court's holding that Illinois
precedent compels the conclusion that the trial judge's absence
during a portion of defense counsel's cross-examination of Vittori
amounted to harmless error. The appellate court misinterpreted this
court's decisions in Meredeth v. People, 84 Ill. 479, 482-83
(1877), Thompson v. People, 144 Ill. 378, 381 (1893), and Schintz
v. People, 178 Ill. 320, 326 (1899), as having established a
harmless error standard by which to measure the legal effect of a
trial judge's absence from the bench.
In Meredeth, this court held that a judge's absence from a
murder trial during two successive days of closing argument was so
fundamentally irregular and improper as to warrant automatic
reversal of defendant's conviction, notwithstanding evidence
indicating that the judge's absence was by consent of defense
counsel. Meredeth declined to view the judge's absence during
closing argument as harmless because "[i]f [the judge] could be
absent during any part of the trial *** on the same principle his
absence during the entire trial might be justified." Meredeth, 84
Ill. at 482. Significantly, the Meredeth court did not base its
reasoning on facts which indicated that serious misconduct had
occurred during the trial judge's absence; on the contrary, the
Meredeth opinion expressly stated that "whether or not [defendant
was prejudiced], the absence of the judge from the court room ***
CAN NOT BE JUSTIFIED ON ANY PRINCIPLE OR FOR ANY CAUSE." (Emphasis
added.) Meredeth, 84 Ill. at 482. It is evident that Meredeth
cannot fairly be read as approving a harmless error standard of
review for a judge's absence during trial. Subsequently, in
Thompson, this court again reversed a conviction because of the
judge's absence, and reiterated as conclusive the rule announced in
Meredeth, that "the presence of the judge during the argument of a
criminal case could not even be dispensed with by consent of the
parties." Thompson, 144 Ill. at 381. In Thompson, the trial judge
remained in his chambers during the entirety of the State's closing
argument to the jury and did not hear the argument during his
absence from the bench. After holding that the judge's inability to
hear the closing argument required reversal as a matter of law, the
Thompson court remarked in passing that "[h]ad the judge stepped
out of the court-room into his private room for a short time, where
he could still hear the argument and where he would have been in a
position to pass upon any question which might properly arise in
the argument, we are not prepared to say that an error would have
occurred." Thompson, 144 Ill. at 381-82.
The quoted dictum from Thompson may be reasonably interpreted
as excusing a judge's brief absence from the bench if the judge is
constructively present, i.e., close enough to hear the proceedings
and rule on objections. Indeed, in the subsequent decision in
Schintz, this court adopted such an approach. In Schintz, the trial
judge remained in his chambers, a room adjacent to the courtroom,
during most of defense counsel's argument to the jury. The judge,
however, left the door to his chambers open and actually listened
to defense counsel's argument while he was physically absent from
the bench. Relying on the quote from Thompson, Schintz held that
the judge's absence from the bench in the case before it was
harmless error because "[t]he judge was within hearing and no
questions were raised to be passed upon by the judge." Schintz, 178
Ill. at 326. Thus, in Schintz, this court applied Thompson's
differentiation between the per se reversible error caused by a
complete abdication of judicial presence from the proceedings and
the lesser degree of harm resulting where a judge is physically
absent from the courtroom but is nonetheless nearby and listening
to the proceedings from an anteroom. See also People v. Bolton, 324
Ill. 322, 330 (1927); Quigg v. People, 211 Ill. 17, 23 (1904). The
harmless error approach of Schintz may be understood as a practical
concession to the reality that a trial judge is not truly absent,
and may in fact be constructively present, when he or she is off
the bench but able to listen and participate in proceedings from a
nearby anteroom. Cf. Chrfrikas, 295 Ill. at 228 (even though judge
was within hearing of courtroom proceedings, he could not promptly
have stopped the prejudicial remarks of the prosecutor). We note
that Schintz, Bolton, and Quigg do not address how the jurors might
be affected by the judge's physical absence from the courtroom
notwithstanding the judge's nearby presence in another room.
In the case at bar, the trial judge was completely absent for
a portion of the trial proceedings and therefore the "constructive
presence" approach of Schintz has no application. Nor do we find
persuasive other cases, decided after Schintz, in which a harmless
error standard of review was employed to excuse errors involving
judicial absence. For example, in People v. Berkowitz, 369 Ill.
197, 203 (1938), a majority of this court held that the trial
judge's error in leaving his courtroom did not require reversal
because such error was subsumed in the face of overwhelming
evidence of defendant's guilt. The analysis of the court in
Berkowitz, signalled a departure from the prior harmless error
cases involving judicial absence because Berkowitz minimized the
policy implications of judicial absence and instead relied almost
exclusively on what it characterized as overwhelming evidence of
defendant's guilt. We disagree with the Berkowitz approach to
errors involving judicial absence. If such errors could never be
held reversible as long as evidence of defendant's guilt is deemed
overwhelming, there would be little need for courts of review to
concern themselves with the fairness of prosecutions and the
integrity of the judicial process. We decline to follow the
aberrant precedent of Berkowitz.
We reaffirm the view of Meredeth, Thompson, and Durden that a
presiding trial judge's total absence from the proceedings is per
se reversible error because the judge's presence is vital to the
preservation of the integrity of the justice system and the
defendant's right to a fair trial. These cases decline to search
for or require a defendant to demonstrate actual prejudice arising
from the trial judge's disappearance during trial, but instead
assume that such absence is inherently prejudicial. See, e.g.,
Meredeth, 84 Ill. at 482 (parties' consent to judge's absence was
unavailing; such absence could not be justified on any principle);
Thompson, 144 Ill. at 382 (unavailability of judge to rule on
objections during closing argument in felony trial was error of
sufficient magnitude to reverse for new trial; Durden, 192 Ill. at
497 (error arising from original judge's absence from end of trial
"requires a reversal of the cause, and therefore we pass no opinion
upon the facts"). In the case at bar, the presiding trial judge was
not only physically absent from the courtroom during a portion of
defense counsel's cross-examination of Vittori, but also did not
hear the proceedings and was not in any position to rule on
objections during his absence. Indeed, the record reveals that when
the judge returned to the courtroom, defendant's attorney advised
the judge that, during his absence, an objection had been raised to
a question. In response, the judge asked for the question to be
read back before making a ruling on the objection. This complete
abdication of judicial presence from even a portion of defendant's
jury trial renders the harmless error approach taken by Schintz
inapposite. Accordingly, we hold that in the instant case, as in
Meredeth, Thompson, and Durden, the presiding trial judge's
complete absence from the proceedings during a portion of
defendant's felony jury trial constitutes per se reversible error,
which presumes prejudice, and, as such, warrants granting the
defendant a new trial. Because prejudice is inherent when felony
trials continue in the absence of the presiding judge, we regard
any showing of demonstrable prejudice, or lack thereof, to
defendant either resulting from, or during, the judge's absence as
immaterial to the disposition of this issue.
We conclude that, because of the significant public and
private interests involved in a criminal jury trial, a harmless
error rule standard of reviewing a judge's complete absence from
the bench is ill-advisable in felony cases. A defendant's liberty,
as well as the State's interest in convicting the guilty, are at
stake in every criminal trial. A presiding judge's supervision over
every stage of the proceedings precludes speculation that jurors
may perceive evidence received in the judge's absence as less
significant, and impresses upon jurors the importance of the
interests of the State and the defendant. A rule that a trial
judge's absence from the proceedings is harmless would open the
door to abuses which could hinder those interests and undermine
public confidence in judicial proceedings. In our view, only a rule
which requires reversal when a judge totally absents himself or
herself from the proceedings will effectively remove any incentive
which might otherwise exist for the judge to disregard the
significant interests involved in a criminal trial. Therefore, we
join hands with this court's prior decisions which have observed
that "the presence of the judge can not be dispensed with."
Thompson, 144 Ill. at 381.
For the foregoing reasons, the judgments of the circuit and
appellate courts are reversed and this cause is remanded to the
circuit court for a new trial.
Appellate court judgment reversed;
circuit court judgment reversed;
cause remanded.
CHIEF JUSTICE BILANDIC, dissenting:
I agree that it is error for a trial judge to leave the bench
during a felony trial without first calling a recess. I cannot
agree, however, with the majority's adoption of a rule which makes
such an error per se reversible. In my view, reversal in this
situation should be predicated on whether the defendant was
prejudiced by the trial judge's absence. I would find in this case
that the trial judge's absence from the bench caused no prejudice
to the defendant and does not require reversal of his conviction.
The majority concludes that a rule of per se reversal is
required by this court's prior precedent. To the contrary, this
court's precedent clearly supports a rule that requires reversal
only where the defendant has been prejudiced as a result of the
In People v. Berkowitz, 369 Ill. 197 (1938), this court was
called upon to determine whether a trial judge's absence required
reversal of the defendant's conviction. In Berkowitz, during the
prosecution's closing argument, the trial judge left the bench and
went into his chambers to prepare jury instructions. While the
judge was absent, the prosecutor made comments that the defendant
claimed were prejudicial because they implicitly referred to the
defendant's failure to testify. Upon the judge's return to the
court room, defense counsel raised an objection to the improper
argument. The judge, after instructing the court reporter to read
back the objected-to remarks, sustained the objection and cautioned
the jury to disregard the remarks. Berkowitz, 369 Ill. at 203.
On appeal, the defendant argued that the trial judge's absence
required reversal of his conviction. This court agreed that the
judge's temporary absence was error, but went on to evaluate the
record to determine if the defendant was prejudiced by the absence.
Finding no prejudice, this court held that reversal of the
defendant's conviction was not warranted. Berkowitz, 369 Ill. at
203-05; see also People v. Bolton, 324 Ill. 322 (1927) (reversal
not required where the trial judge was absent during part of jury
voir dire and part of closing arguments but was nearby and was
available to rule upon objections and other matters).
The majority acknowledges the Berkowitz decision, but labels
it "aberrant precedent" and declines to follow it. When this
court's prior precedent is objectively reviewed, however, it is
apparent that Berkowitz may not be so easily disregarded. Berkowitz
did not represent a dramatic change in this court's precedent. This
court in earlier cases had conducted prejudice evaluations when
determining whether a trial judge's absence required reversal. See
Bolton, 324 Ill. 322; Schintz v. People, 178 Ill. 320, 325-26
(1899). Even the three cases relied upon by the majority, Meredeth
v. People, 84 Ill. 479 (1877), Thompson v. People, 144 Ill. 378
(1893), and Durden v. People, 192 Ill. 493 (1901), support the
proposition that reversal is not automatic where a trial judge is
temporarily absent from the bench and that the circumstances of the
absence should be considered in deciding whether to reverse. A
review of each of those cases reveals that reversal was required
because the defendant had been prejudiced by the judge's absence.
In Meredeth, the trial judge was absent from the bench for
almost two days during arguments in the defendant's murder trial,
and the judge's place on the bench was occupied successively by two
members of the bar. More importantly, order was not maintained in
the courtroom. Specifically, the record showed that, during the
trial, no bullet had been found in the body of the victim and
defendant's counsel based his argument on that fact. After the
defense argument concluded, and while the trial judge was absent,
a bystander in the courtroom discovered what appeared to be a
bullet in a piece of the victim's skull. It was established that,
during the judge's absence:
"evidence [was] allowed to be handled in the sight
and nearly in the hearing of the jury, and that, when the
shot was discovered in the skull, it was seized by the
spectators, and passed from one excited group to another,
and the party making the affidavit states he `believes
that their words, eyes, conversations and excited
gesticulations exercised a great influence on the
jury.' " Meredeth, 84 Ill. at 481.
Reversal in Meredeth was thus warranted by the prejudice the
defendant suffered as a result of the trial judge's absence from
the proceedings.
Similarly, in Thompson, the circumstances of the trial judge's
absence supported a finding that the defendant had been prejudiced
by the absence. In that case, the trial judge left the bench during
closing arguments, during which time repeated objections were made
by the defense. As a result of the judge's absence, no rulings were
ever obtained on these objections. This court determined that
reversal of the defendant's conviction was warranted by the judge's
absence. In reaching this holding, however, this court acknowledged
that the circumstances of the judge's absence will dictate whether
reversal is warranted. Specifically, the court noted that a
different result might have been reached had the judge, during his
absence, remained in a position to pass upon questions raised
during the arguments. Thompson, 144 Ill. at 381-82. Thus, Thompson,
like Berkowitz, supports the position that a judge's absence from
trial will not always require reversal.
The third case relied upon by the majority, Durden, addressed
a situation entirely different from that presented here. In Durden,
the alleged error was not the absence of the trial judge, but the
substitution of a new judge in the trial judge's place midway
through the defendant's trial. In that case, the trial judge
vacated the bench (and, in fact, the county) during the defendant's
trial and took no further part in the proceedings until the hearing
on a motion for a new trial. Another judge sat in the trial judge's
place after the trial judge left the bench. On appeal, this court
reversed the defendant's conviction, finding that the defendant was
"entitled to the judgment of the judge, who has heard the evidence
in the case, and conducted the trial thereof." Durden, 192 Ill. at
498. This court justified the reversal by noting that the new judge
was required to determine what jury instructions would be given,
even though that judge had not heard the evidence to which the
instructions were to be applied. Additional prejudice was
demonstrated by the fact that, during the prosecutor's closing
argument, a dispute arose between the parties as to the testimony
of one of the witnesses, and the new judge was unable to determine
what the testimony had been. Durden, 192 Ill. at 499. Durden is
thus factually distinguishable from the instant case. Moreover,
even if Durden were relevant here, the court in Durden clearly
considered the prejudicial impact on the defendant in holding that
reversal was required.
Accordingly, in each case the majority cites as support for
its holding that reversal is required regardless of prejudice,
there was prejudice to the defendant, and it was that prejudice
which justified reversal of the defendant's conviction. Admittedly,
some dicta in Meredeth could be read to suggest that the lack of
prejudice would not preclude reversal. See Meredeth, 84 Ill. at
482. Berkowitz, however, post-dated Meredeth by 61 years. In
Berkowitz, this court clarified that a trial judge's absence would
not warrant reversal unless there was prejudice to the defendant.
In sum, the majority's attempt to justify a rule of per se
reversal on the basis of this court's past precedent is unavailing.
Our precedent shows that reversal is appropriate only where the
defendant has been prejudiced. Moreover, I believe that predicating
reversal on a finding of prejudice is the better reasoned approach.
Where a trial judge is temporarily absent from the bench but the
circumstances demonstrate that no prejudice accrued to the
defendant, no justification exists for reversing the defendant's
conviction and granting a new trial. The defendant has received a
fair trial, and a new trial would unjustly reward the defendant and
constitute an unnecessary waste of judicial resources. A scenario
may easily be envisioned where a trial judge leaves the bench for
only the slightest period of time, during which time only the most
inconsequential of proceedings take place. One such situation could
arise, for instance, where, during the judge's absence, a witness
is sworn and asked to state his or her name for the record. To
suggest that a new trial is automatic in this scenario without any
inquiry into whether the defendant was prejudiced by the judge's
absence is absurd. Yet, the majority's rule, which deems prejudice
to the defendant irrelevant, would seem to require such a holding.
I would therefore hold that a trial judge's temporary absence
from a felony trial may be considered harmless error where the
defendant has not been prejudiced by the absence. Applying this
standard, I would find the error in this case to be harmless. The
circumstances of the trial judge's absence here reveal that no
prejudice to the defendant resulted. The trial judge's absence
occurred during the defendant's cross-examination of the assistant
State's Attorney who took the defendant's written confession. A
total of 11 questions were asked of the witness during the judge's
absence. The text of this questioning is set out in the majority
opinion. All of the questions sought to determine the witness' job
duties in the felony review unit of the State's Attorney's office
and whether those duties included the gathering of evidence for
criminal prosecutions. No objections were made by the State to any
of the questions until the tenth question. The judge apparently
returned to the courtroom moments later, after only one additional
question had been asked. Upon his return, the judge immediately
ruled on the objection, overruling it.
These facts show that the judge was not absent from the
proceedings for a significant period of time. To the contrary, the
judge was absent long enough only for 11 brief questions to be
asked, which could not have been more than a few minutes. Also, the
questions asked during the absence were merely background
questions, and did not go to the heart of the witness' testimony,
i.e., the defendant's confession and the circumstances surrounding
it. Further, the trial judge remained nearby and was available to
rule upon objections. In fact, the judge told the parties, "If you
need me, let me know." Only one objection was made during the
judge's absence and that objection was ruled upon one question
later, pursuant to a procedure suggested by defense counsel.
It is also significant that defense counsel made no complaint
about the judge's absence in the trial court nor otherwise made any
record that anything prejudicial to the defendant had occurred
during the judge's absence. Obviously, defense counsel did not
consider the judge's absence to be a significant event. This
circumstance should certainly be considered probative of whether
anything occurred during the judge's absence that adversely
affected the defendant's interests. Presumably, had the courtroom
erupted into chaos during the judge's absence, defense counsel
would have noted it for the record. Moreover, as the majority
concedes, the evidence in this case was not closely balanced. Slip
op. at 6.
In conclusion, the circumstances present in this case
demonstrate that the defendant was not prejudiced by the trial
judge's brief absence. I would therefore affirm the defendant's
conviction.
For the foregoing reasons, I respectfully dissent.
JUSTICE NICKELS joins in this dissent.