People v. Sheley , 2017 IL App (3d) 140659 ( 2018 )

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Appellate Court Date: 2018.02.08
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People v. Sheley, 2017 IL App (3d) 140659
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption NICHOLAS T. SHELEY, Defendant-Appellant.
District & No. Third District
Docket No. 3-14-0659
Filed October 27, 2017
Decision Under Appeal from the Circuit Court of Whiteside County, No. 08-CF-402;
Review the Hon. Jeffrey W. O’Connor, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Thomas A. Lilien, and Fletcher P. Hamill, of
Appeal State Appellate Defender’s Office, of Elgin, for appellant.
Lisa Madigan, Attorney General, of Chicago (Garson S. Fischer,
Assistant Attorney General, of counsel), for the People.
Panel JUSTICE SCHMIDT delivered the judgment of the court, with
opinion.
Presiding Justice Holdridge specially concurred, with opinion.
Justice O’Brien dissented, with opinion.
OPINION
¶1 Defendant, Nicholas T. Sheley, appeals his conviction of four counts of first degree
murder. Specifically, defendant contends that the circuit court erred in denying his motion for a
mistrial because reversible error occurred when the judge fell asleep during the jury trial. We
affirm.
¶2 FACTS
¶3 The State charged defendant with 15 counts of first degree murder (720 ILCS 5/9-1(a)(1),
(a)(2) (West 2008)) for causing the deaths of Dayan Blake, Brock Branson, Kilynna Blake, and
Kenneth Ulve. With regard to the murder of Dayan, the indictment alleged that Dayan was
under 12 years old and his death resulted from exceptionally brutal or heinous behavior
indicative of wanton cruelty as set forth in section 9-1(b)(7) of the Criminal Code of 1961 (720
ILCS 5/9-1(b)(7) (West 2008)).
¶4 A jury trial was held. The evidence at trial showed that the four victims were last seen alive
in their apartment in Rock Falls, Illinois, on the evening of June 28, 2008. Two days later, the
bodies of the victims were found in their apartment. The victims had been bludgeoned to death.
¶5 The State also presented evidence that on the morning of June 28—prior to the murders of
the victims in the instant case—defendant stole a truck, a work shirt, and a hat from Illinois Oil
Products in Rock Island, Illinois. Defendant drove the truck to Galesburg, where he murdered
Ronald Randall and then stole Randall’s truck. The State presented a videotaped deposition of
Pamela Sebben. Sebben was a gas station clerk who sold cigarettes to defendant on June 28 in
Galesburg.
¶6 When the police searched the victims’ apartment, officers found the work shirt that
defendant stole from Illinois Oil Products. The shirt contained DNA consistent with that of
defendant and was stained with Randall’s blood. The officers also found pair of khaki shorts in
the apartment. Testing revealed that the inside of the waistband of the shorts contained
defendant’s DNA. The shorts were stained with Ulve’s and Randall’s blood. Additionally,
officers found two cigarette butts that contained defendant’s DNA.
¶7 Two shirts and a pair of shorts belonging to Branson were missing from the apartment. A
police officer found those items in a dumpster in Festus, Missouri. The clothing contained
DNA consistent with that of defendant. One of the shirts contained several bloodstains. Testing
showed that the bloodstains contained the DNA of Ulve, Branson, and Kilynna. The State also
introduced photographs of defendant in St. Louis, Missouri, on June 29. In those photographs,
defendant was wearing one of Branson’s missing shirts.
¶8 Officer Brad Cirimotich testified regarding security camera footage purportedly showing
defendant in Galesburg on June 28. Cirimotich testified regarding the contents of the security
camera footage while the videotapes were being played. After the videos ended, the following
exchange occurred:
“MR. ELWARDS [sic] [Assistant Attorney General]: Judge, we can have the lights
back up.
MR. KARLIN [defense counsel]: Judge?
(Counsel Karlin approached the bench.)
MR. KARLIN: Judge O’Connor?
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(Counsel Elward approached the bench.)
MR. ELWARD: Judge, could we get the lights back on?
THE COURT: Hmm.
MR. ELWARD: We need the lights back on.
(The Court complies.)
MR. ELWARD: Thank you.
Judge, I’ve got some chain exhibits that I need to do with Detective Cirimotich,
perhaps this might be a good time for us to break for lunch and bring the jury back after
that.
THE COURT: Excellent time.
Jeremy, 1:15?
MR. KARLIN: Sure.”
¶9 A lunch recess was taken, and then the following proceedings were held while the jury was
out of the courtroom:
“MR. KARLIN: Judge, I apologize for having to do this, but as you can appreciate
the position that I’m in, I have to make a record of this.
There was a point at the ending of the hearing or the trial session this morning when
the video was being played and Officer Cirimotich was testifying on, I think it was
apparent that you had fallen asleep.
I, I wrote down on my notes that I called twice from counsel—when I observed that
you had fallen asleep, and I don’t know how long you were, that I called, I said, Judge,
from counsel table, I believe, twice. That at then when you did not respond I was
concerned. I came to the bench, I called, I said Judge, to you again, you, and after that
was when the clerk either, I think poked you and then you awoke.
Frankly, this is not the first time that I’ve observed this, but certainly not to the
degree that I observed this morning and I have to make a record of that.
THE COURT: Understandable. Did your suggestion disrupt in any way the
video[?]
MR. KARLIN: I believe, Judge, at that point we had, we reached a breaking point
of the video.
MR. ELWARD: That is correct, Judge.
MR. KARLIN: And you were not called upon to make any evidentiary rulings
during the playing of the video.
I think we—yeah, I think those two things are accurate.
THE COURT: Comments from the State?
MR. ELWARD: Judge, I share Mr. Karlin’s observations. I was focused on
Detective Cirimotich. I would just inquire as to the Court’s health, if you are okay, we
can proceed. It is of concern, obviously, just want to, just wanted to make sure that we
are good to go for this afternoon.
***
THE COURT: Okay.
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I will speak to the record that I have no physical inabilities at this point, that I’m
aware of and, if the record shows no objections that I was required to respond to, while
the videos were going on, and I don’t think there were any or I would have been aware
of them. Your observation is noted for the record.”
¶ 10 On the next day of trial, defense counsel made an oral motion for a mistrial based on the
incident where the judge appeared to have fallen asleep during Cirimotich’s testimony.
Defense counsel noted that he did not believe that was the first time the judge had “drifted off.”
The State agreed that the judge “appeared to be asleep during the examination of Brad
Cirimotich.” The State argued that defendant’s motion for a mistrial was inappropriate because
the occurrence of the judge falling asleep did not constitute “anything fundamental that
affect[ed] this Defendant’s rights.” The circuit court denied the motion for a mistrial.
¶ 11 The jury ultimately found defendant guilty of first degree murder for all four murders. The
circuit court sentenced defendant to four consecutive sentences of natural life imprisonment
without parole.
¶ 12 Defendant filed a motion for a new trial arguing, inter alia, that the court erroneously
denied his motion for a mistrial “for allegations that the judge fell asleep on multiple occasions
and appeared to be confused for the reasons stated verbally and/or in writing to the court.” The
circuit court denied the motion. The court explained:
“This phrase in here ‘on multiple occasions’, I regard as gratuitous, because
nowhere in this record did the defense make any objection whatsoever to multiple
occasions of what they perceived. On the one occasion that they did make a record on
what their perceptions were I want to explain the circumstances. It was a video
deposition. There was nothing evidentiary about the video aspect of this other than an
above-the-waist head and shoulders shot of the witness that was testifying. No
evidentiary value of that at all.
If the jury, who are fact-finders in this case, chose to assess her credibility on based
[sic] what they viewed, so be it, but they are the finders of fact.
So if I was not looking at the video, that does not mean that I was not listening and
hearing everything that was being said, and I find that the allegations that I fell asleep
on multiple occasions to be feckless, factually unsupported, and, in fact, factually
inaccurate, because I am the one that knows. And frankly, the insertion in this motion
for new trial for the first time an allegation of multiple occasions, which does not
appear anywhere else in this record, I find to be a desperate claim of error by a
desperate defense on that particular issue.
The test on that is whether the judge ever lost control of the courtroom in these
proceedings, and the answer to that is absolutely not. No one spoke in the courtroom
during this deposition. There were no objections, there was nothing for the Court to
rule on other than to sit there and listen to what this deposition witness had to say, and
that was the end of that.
And the press had a field day with that one. I don’t like to think that all journalists
are yellow journalists, but to pick that out, when most of the reporters weren’t even
present here, and then run with it in the press, I found to be a little bit out of bounds. So,
the issue there was not the deposition. It was not the evidence that was heard. It’s this
assertion that I was asleep. And it’s feckless, it’s inaccurate, and that’s my record for
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the appellate court. I find it disgusting.”
¶ 13 ANALYSIS
¶ 14 Defendant argues that the circuit court abused its discretion in denying his motion for a
mistrial because per se reversible error occurred when the trial judge fell asleep during
Cirimotich’s testimony. We find that a judge falling asleep during a trial does not constitute
per se reversible error. After a review of the totality of the circumstances, we find that the
circuit court did not abuse its discretion because defendant failed to show that he was
prejudiced.
¶ 15 “Generally, a mistrial should be awarded where there has been an error of such gravity that
it has infected the fundamental fairness of the trial, such that continuation of the proceeding
would defeat the ends of justice.” People v. Sims, 167 Ill. 2d 483, 505 (1995). A circuit court’s
decision to deny a motion for a mistrial is reviewed for abuse of discretion. Id.
¶ 16 “[A]utomatic reversal is only required where an error is deemed ‘structural,’ i.e., a
systemic error which serves to ‘erode the integrity of the judicial process and undermine the
fairness of the defendant’s trial.’ ” People v. Glasper, 234 Ill. 2d 173, 197-98 (2009) (quoting
People v. Herron, 215 Ill. 2d 167, 186 (2005)). An error is structural “only if it necessarily
renders a criminal trial fundamentally unfair or an unreliable means of determining guilt or
innocence.” People v. Thompson, 238 Ill. 2d 598, 609 (2010).
“[M]ost errors of constitutional dimension are subject to a harmless error analysis.
Only those constitutional violations that are ‘structural defects in the constitution of the
trial mechanism,’ such as total deprivation of the right to trial counsel or absence of an
impartial trier of fact, are per se error that necessitate remandment for a new
proceeding.” People v. Shaw, 186 Ill. 2d 301, 344-45 (1999) (quoting Arizona v.
Fulminante, 499 U.S. 279, 309 (1991)).
¶ 17 We hold that a judge falling asleep for a portion of a trial does not rise to the level of
structural error. That is, such an error does not “necessarily render[ ] a criminal trial
fundamentally unfair or an unreliable means of determining guilt or innocence.” Thompson,
238 Ill. 2d at 609. Rather, such an error is subject to harmless error analysis. We find support
for our holding in the decisions of other jurisdictions, which held that a judge falling asleep
during trial did not constitute reversible error unless the defendant could establish prejudice.
Lampitok v. State, 817 N.E.2d 630, 641 (Ind. Ct. App. 2004); United States v. White, 589 F.2d
1283, 1289 (5th Cir. 1979).
¶ 18 Having found that the issue of a judge falling asleep during trial is subject to harmless error
analysis, we determine that the judge’s falling asleep in the instant case was harmless. It is
undisputed that neither party called upon the judge to make any evidentiary rulings during that
time. Additionally, the evidence of defendant’s guilt was overwhelming. Police officers
discovered cigarettes and clothing containing defendant’s DNA in the victims’ apartment.
Some of the clothing was stained with the victims’ blood. Additionally, officers found clothing
containing defendant’s DNA and the victims’ blood in the dumpster in Festus. The State also
introduced photographs of defendant wearing one of the victims’ shirts the day after the
murders.
¶ 19 When ruling on defendant’s posttrial motion, the trial judge noted that defense counsel
made a record of his observations that the trial judge had fallen asleep on only one occasion,
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which occurred during a video deposition. Presumably, the circuit court was referring to
Sebben’s video deposition. However, the record shows that the incident of which defense
counsel made a record occurred during Cirimotich’s testimony when security camera videos
were being played. It is unclear whether the judge was merely mistaken as to which video was
playing when he fell asleep or whether he fell asleep on both occasions. We note, however, that
neither party called upon the judge to make any evidentiary rulings while Sebben’s video
deposition played. Additionally, neither party stated on the record that the judge had fallen
asleep at that time.
¶ 20 We note that defendant argues the record “strongly suggests” that the judge fell asleep on
multiple occasions during trial, though the occasion during Cirimotich’s testimony was the
most egregious instance. Defendant bases this argument on defense counsel’s repeated
statements that he believed he had observed the judge fall asleep more than once. However,
defendant provides no further details regarding these incidents. Thus, defendant has not shown
that he was prejudiced by these alleged additional incidents.
¶ 21 Because the evidence in this case was overwhelming and the parties did not call upon the
trial judge to make any evidentiary rulings at a time when the judge was asleep, the judge
falling asleep was harmless error. Thus, the circuit court did not abuse its discretion on denying
defendant’s motion for a mistrial.
¶ 22 In reaching our holding, we reject defendant’s reliance on People v. Vargas, 174 Ill. 2d 355
(1996). In Vargas, the judge left the bench during a jury trial to take a phone call while a
witness continued testifying. Id. at 358-60. The Vargas court held 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.” Id. at 366. The court reasoned that the following policy concerns
supported its holding:
“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.” Id. at 364.
¶ 23 In rejecting the State’s argument that harmless error analysis should apply, the court
reasoned:
“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.” Id. at 371-72.
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¶ 24 We find that the policy concerns underlying the holding in Vargas do not apply in
situations, as in the instant case, where a judge falls asleep on the bench. The Vargas court
refused to apply harmless error analysis, in large part, to deter judges from abusing such a rule.
See id. Unlike physically leaving the bench, which is always a voluntary act, falling asleep is
often inadvertent. Thus, a rule of per se reversible error for a judge falling asleep during a trial
would not have the same deterrent effect as in a situation where a judge chooses to physically
leave the bench.
¶ 25 Additionally, a judge falling asleep during trial is far less likely to send a message to the
jury that that portion of the trial is unimportant than a judge that physically leaves the bench.
Jurors are more likely to attribute a judge falling asleep to the judge’s health or other physical
factors. See White, 589 F.2d at 1289. In the instant case, for example, the judge fell asleep
while the lights were turned off and a video was playing. Assuming that the jury was even
aware that the judge fell asleep, it likely attributed it to the darkness of the room and fatigue
rather than to lack of interest in the proceedings. There is nothing in the record to indicate that
the jury was aware of the incident.
¶ 26 CONCLUSION
¶ 27 For the foregoing reasons, we affirm the judgment of the circuit court of Whiteside County.
¶ 28 Affirmed.
¶ 29 PRESIDING JUSTICE HOLDRIDGE, specially concurring.
¶ 30 I concur in the judgment and opinion of the court. I write separately because I would find
that the defendant has waived his only issue on appeal by failing to properly address the issue
during trial. The defendant claims that his counsel observed the judge fall asleep on “multiple
occasions” with the Cirimotich testimony being only the most egregious instance. Assuming
the defendant’s statement that his counsel observed the judge sleeping on “multiple occasions”
is true, the defendant has failed to explain why his counsel took no steps after any occasion to
rectify this problem. There is no indication in the record that defense counsel tried to bring the
issue to the attention of the judge at any time prior to his desire to “make a record” of the judge
falling asleep during the Cirimotich video. The defendant would have this court believe that his
counsel was powerless to bring his observations to the court at any time prior to making a
record to preserve the issue for appeal. I disagree.
¶ 31 Defense counsel’s tactic of not addressing the apparent problem of the judge falling asleep
until it was time to “make a record” leads me to conclude that defense counsel was deliberately
building error into the record, without giving the court any opportunity to address or prevent
the error. The practice of deliberately building error into the record, a practice commonly
known as “sandbagging,” is strongly disfavored by our courts. People v. David, 96 Ill. App. 3d
419, 422 (1981); Minemyer v. R-Boc Representatives, Inc., 283 F.R.D. 392, 397 (N.D. Ill.
2012). Sandbagging can result in the waiver or forfeiture of all issues, including purported
violations of constitutional rights. Stern v. Marshall, 564 U.S. 462, 482 (2011) (“the
consequences of ‘a litigant … “sandbagging” the court—remaining silent about his objection
and belatedly raising the error only if the case does not conclude in his favor’ [citation]—can
be particularly severe”).
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¶ 32 Given the facts here, I find that defense counsel “sandbagged” the trial judge by not
bringing his observation of the trial judge’s condition to immediate attention. I would further
find that the only reason counsel did not address the issue at the soonest point possible, was his
desire to “make a record.” For this reason, I would find that the defendant invited the error that
he claims on appeal requires a new trial. I would affirm the defendant’s conviction.
¶ 33 JUSTICE O’BRIEN, dissenting.
¶ 34 I respectfully dissent. I would hold that a judge falling asleep for a portion of a trial
constitutes per se reversible error under our supreme court’s holding in Vargas. In Vargas, the
judge left the bench during a portion of a criminal jury trial to take a phone call. Vargas, 174
Ill. 2d at 358-60. The Vargas court reasoned that this occurrence was per se reversible error
based on policy concerns that (1) “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,” and (2)
“a judge’s absence from the bench might unduly influence the attitude of jurors so as to deny
defendant an impartial trial.” Id. at 364.
¶ 35 I believe that the judge falling asleep in the instant case was tantamount to the judge
physically leaving the bench in Vargas. When a judge is asleep—just as when a judge is
physically absent—the judge is unable “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.” Id. Without the “essential safeguard” of the “judge’s active
presence,” a defendant’s right to a fair trial is threatened. Id. A judge cannot be actively present
on the bench when he is asleep.
¶ 36 Additionally, like when a judge is physically absent, a judge falling asleep during a
witness’s testimony “may create a negative impression in the minds of the jury to the detriment
of the defendant.” Id. at 365. Contrary to the majority’s assertion, I believe that it is highly
unlikely that the jury did not notice the judge falling asleep during Officer Cirimotich’s
testimony. Counsel called for the judge several times with no response. Defense counsel
indicated that the judge was not roused until his clerk poked him. The judge falling asleep
could have given the jurors the impression that the trial was unimportant or that they did not
need to pay close attention to the testimony of the witness.
¶ 37 Because the same policy concerns underlying the court’s holding in Vargas are equally
applicable in the instant case, I believe that harmless error analysis is inappropriate. As the
Vargas court reasoned, “[i]f 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.”
Id. at 370.
¶ 38 Although I believe that Vargas controls the disposition of this case and that it is
unnecessary to look to the holdings of other jurisdictions, I note the recent decision of the
Court of Appeals of Kansas in State v. Johnson, 391 P.3d 711 (Kan. Ct. App. 2017). In finding
that a judge falling asleep during a criminal trial constituted structural error, the Johnson court
reasoned as follows:
“[T]here can be no court without a judge. How can the public have confidence in the
outcome of a trial if the trial judge is napping? This is not an error in the presentation of
evidence, nor is it an error in the instruction of the jury, nor is it like other trial issues
where we examine them to see if they are harmless. This error affected the framework
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of the entire trial. Our citizens expect a fully awake trial judge presiding over a criminal
trial. This was structural error.” Id. at 717-18.
¶ 39 In the instant case, per se reversible error occurred when the judge fell asleep during
defendant’s murder trial. Because this error infected the fundamental fairness of the trial, the
trial court erred in denying defendant’s motion for a mistrial. Therefore, I would reverse and
remand for a new trial.
¶ 40 For the above reasons, I respectfully dissent.
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