People v. Heiman ( 1996 )


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  • FOURTH DIVISION
    DECEMBER 26, 1996
    No. 1--95--3549
    THE PEOPLE OF THE STATE OF ILLINOIS,
    Plaintiff-Appellee,
    v.
    NICHOLAS HEIMAN,
    Defendant-Appellant.)
    )
    )
    )
    )
    )
    )
    )
    )Appeal from the
    Circuit Court of
    Cook County
    No. 94--CR--20387
    Honorable
    Ronald A. Himel,
    Judge Presiding.
    JUSTICE CERDA delivered the opinion of the court:
    Following a bench trial, defendant, Nicholas Heiman, was
    convicted of the first-degree murder (720 ILCS 5/9-1(a)(2)(West
    1992) of Erven Etcheson and was sentenced to 55 years'
    imprisonment.  On appeal, he asserts that (1) he was not proven
    guilty beyond a reasonable doubt; (2) he did not receive a fair
    trial because of the trial court's bias toward him and his
    witnesses; (3) he was denied effective assistance of counsel
    because the trial court would not allow his attorney to present a
    proper closing argument; and (4) the trial court made findings of
    fact not supported by the evidence.  We reverse and remand for a
    new trial because the trial court's conduct denied defendant a
    fair trial.
    Norma Hampton, the victim's fiance, testified that she and
    Etcheson met defendant and his wife, Twila, at a neighborhood bar
    at 7 p.m. on July 9, 1994.  After drinking and socializing for a
    couple of hours, Hampton and Twila drove defendant home because
    he said he was drunk, then met Etcheson at another bar.  When
    they arrived, Etcheson was talking to Dennis King, whom Hampton
    had never met.  After that bar closed, King, Etcheson, and the
    two women went to another bar, where they stayed until 3:40 a.m.
    King drove everyone home.  When he arrived at Twila's
    apartment building, defendant was standing on the corner.
    Defendant dragged Twila from the car, then punched her a couple
    of times causing her to fall to the ground.  King grabbed a tire
    iron from under the car seat, got out of the car, and tried to
    hit defendant with the tire iron, but defendant grabbed it from
    him, then chased him back to his car.
    After King sped away, defendant returned to the location
    where Hampton and Etcheson were attending to Twila.  Etcheson
    remarked, "Nick, don't you think that's enough," and defendant
    struck him with the tire iron using a round, sweeping, sidearm
    action.  The two men were facing each other and the blow landed
    at the rear base of Etcheson's skull, causing him to fall.
    Hampton ran to call 911.  When she returned, defendant was
    cussing at her from across the street and Twila was holding
    Etcheson's head.  Etcheson was unconscious and having
    convulsions.  The next night, defendant left a message on
    Hampton's answering machine, "Bitch, you're dead, bitch."
    Dr. Cynthia Porterfield, the Cook County Deputy Medical
    Examiner who performed the autopsy on Etcheson, testified that
    the only external injury was an abrasion on the back of the right
    side of his head.  There was no skull fracture, but there was
    bleeding between the scalp and the skull on the back of his head.
    On the right side of his brain was a small subdural hematoma,
    which is bleeding between the membranes surrounding the brain.
    There was also swelling of the brain and blood in the brain's
    ventricles.  It was Dr. Porterfield's opinion that death resulted
    from cerebral injuries caused by blunt trauma to the head and
    Etcheson's wounds were consistent with his being struck with a
    tire iron.
    Chicago Police Detective John Boyle was assigned on July 11,
    1994, to investigate an aggravated battery on Etcheson.  He
    testified that he interviewed Hampton and Twila, but could not
    find defendant.  Five days after Etcheson died, defendant called
    Boyle and admitted being involved in the incident.  He told Boyle
    that he did not intend to kill Etcheson, who was a friend, and
    had thrown the tire iron on the roof of the building across the
    street from the incident.
    Defendant tendered Dr. Paul W. Geiger, a general
    practitioner and the father of defendant's attorney, as an expert
    in the field of emergency medical care, which Dr. Geiger
    practiced intermittently during his 29 years as a physician.
    Although the trial court expressed reservations about Dr.
    Geiger's relationship to the defense attorney, he was
    nevertheless qualified as an emergency medical care expert.  The
    court stated as follows:
    "I certainly find a vast amount of training here.  I am
    more bothered by the relationship which shows an
    interest or bias.
    I am going to let him testify with the thought in
    mind that my wife, my son, or my father could not
    practice in this courtroom, nor do I think it is a
    proper thing to -- you know, especially if you are not
    even going to pay your dad, to have him come in and
    testify.  It certainly does show to me at least an
    indication that it might be a little more favorable to
    the son's position.  But I will allow you to ask
    questions of your father as an expert in emergency
    care."
    The defense attorney then attempted to question Dr. Geiger
    about any remuneration the defense attorney was receiving for his
    services.  The assistant State's Attorney objected on the basis
    of relevancy and the defense counsel countered that it went to
    the witness's credibility.  The court sustained the objection and
    stated:
    "I don't think it goes to his credibility.  What you
    have been paid I don't think goes to your dad's
    credibility."
    Dr. Geiger's testimony was based on his review of the
    hospital records and autopsy findings, which indicated that the
    only external injury was the abrasion at the back of Etcheson's
    head.  Dr. Geiger estimated that he had treated five to 15
    persons who had been hit by a tire iron.  The trauma flow sheet
    indicated that Etcheson had a three inch hematoma at the back of
    his head, but did not mention any laceration or skull fracture.
    Dr. Geiger explained that the hematoma could not be seen, but
    could be felt under the skin.  Dr. Geiger testified that every
    person he had ever treated for a tire iron injury to the head had
    scalp lacerations that required stitches.  The following then
    occurred:
    "[DEFENSE ATTORNEY]:  Within a reasonable degree of
    medical certainty, if you and I are facing each other
    and I swing this at you, can I inflict that abrasion
    wound on you?
    [ASSISTANT STATE'S ATTORNEY]:  Objection.  He is not an
    expert in the field of forensic pathology.  He is going
    way far afield.
    [DEFENSE ATTORNEY]:  This is not a question regarding
    forensic pathology.
    THE COURT:  I want to hear the answer.  I want to hear
    what he bases the answer on.  I want to hear how
    counsel can make the statement that -- so far it's
    clear to me that no one knows how the tire iron, other
    than it was a roundhouse swinging, where the tire iron
    landed; what part of the tire iron landed on the head,
    if in fact it did; if it was a glancing blow; if it was
    thrown; if it hit in one place and that touched the
    skull first, and then another portion, as could happen
    if it was in a twisting fashion.
    There are so many possibilities that I am really
    dying to hear how this expert can render this opinion."
    Dr. Geiger then stated that it was his opinion that someone
    facing Etcheson could not have caused the abrasion, which was
    larger than the surface of the tire iron, by striking him in the
    back of the head with the tire iron.  When asked whether the blow
    had to be a glancing blow that dragged across the surface of the
    skin, Dr. Geiger testified that he could not imagine that
    happening.  The trial court interrupted the questioning to
    remark:
    "THE COURT:  Well, why don't you just take the tire
    iron, swing it, and have it hit the table in front of
    you, and see all the different ways it can bounce off
    the wood, and how many marks are going to be made on
    it; if that is what your [sic] basing your opinion on,
    gee whiz."
    [DR GEIGER]:  I am sorry.  I don't understand.
    THE COURT:  Nor do I understand your testimony here."
    Dr. Geiger then stated that the abrasion was consistent with
    a fall on a flat object and Etcheson's CT scan showed blood in
    his sinuses, which would have been caused by a blow to his face.
    Dr. Geiger thought it would be extremely unusual for a blow to
    the back of the head to cause bleeding in the sinuses because the
    sinuses are separated from the brain by a quarter-inch thick
    bone.
    Dennis King, an eyewitness, testified that he met Etcheson
    at a bar around 8:30 or 9 p.m. on July 8, 1994.  Etcheson was
    alone, but was later joined by Hampton and Twila.  A few hours
    later, King, Etcheson, Hampton, and Twila went to another bar,
    where they stayed until 3:30 a.m.
    King drove the others home.  When they arrived in front of
    Twila's apartment building, King saw defendant yelling from a
    third floor window before he approached the car.  After Etcheson,
    Hampton, and Twila got out, King drove away and circled the area.
    He returned to see defendant, Twila, Hampton, and Etcheson
    arguing.  Defendant hit Twila, knocking her to the ground, and
    fought off Hampton, who was trying to keep him away from Twila.
    King sped away again, but parked on the side of the street, where
    Etcheson approached him asking for help.  King got out of his car
    and pulled out a knife while Etcheson grabbed a tire iron from
    under the car seat.
    According to King, he changed his mind and decided to leave
    because the altercation was none of his business.  But, before he
    left, he saw Etcheson approach defendant from behind and raise
    the tire iron as he yelled out defendant's name.  Defendant
    turned around just as Etcheson swung the tire iron at him, caught
    Etcheson's arm in midair, then punched him in the face.  Etcheson
    fell to his knees and onto the ground, immobile.  King claimed
    that he left the scene because he was afraid of defendant, who
    was standing over Etcheson with the tire iron in his hand.  King
    testified that he did not see defendant strike Etcheson with the
    tire iron, but admitted that he initially told the police that he
    had seen defendant strike Etcheson with the tire iron.
    A month later, King contacted the police after learning that
    they were looking for him.  King testified that both Chicago
    Police Detective Victor Gutierrez, with whom he spoke on the
    telephone, and the assistant State's Attorney to whom he spoke at
    the police station knew that he had outstanding bond forfeiture
    warrants on driving under the influence (DUI) charges.  Gutierrez
    told him that everything would be taken care of and the assistant
    State's Attorney, without making any promises, said that possibly
    something could be worked out.  While at the police station, King
    identified defendant from a lineup and gave a statement, which
    was not recorded.
    Although no promises had been made, King left the police
    station thinking that his outstanding warrants had been lifted,
    but several days later, he was arrested and held in jail on the
    warrants.  After being contacted, Gutierrez refused to help King.
    On March 29, 1995, while in jail, King gave a written
    statement to defendant's attorney stating that defendant did not
    strike Etcheson with the tire iron.  But, on April 6, 1995, King
    wrote a letter to assistant State's Attorney Lu Ann Rodi, who was
    the prosecutor in this case, offering to testify against
    defendant if the State's Attorney's Office got him out of jail.
    At trial, King said that he was trying to do anything to get out
    of jail.
    A couple of weeks later, King met with Rodi, who served a
    subpoena on him and told him that she wanted only his truthful
    testimony.  King told her he would not testify because he feared
    for his safety in jail.  He also said that he had been held for
    40 days on a single DUI warrant, in which he had blown a .000 on
    his breathalyzer test.  He had offered to plead guilty in that
    case, but had to have an alcohol evaluation before the plea would
    be accepted.  He missed his evaluation, however, because of his
    meeting with Rodi.
    Rodi told him that if this case were the only thing holding
    him in jail, she would tell the prosecutors in his DUI case that
    he had no bond set in this case.  Rodi also said that she would
    have his warrant case advanced so that he would be not be in
    custody when this case came to trial.  The following week, King's
    warrant case was SOL'ed and he was released.
    Prior to King's cross-examination, the defense attorney
    objected to the trial court that he had not been given any notice
    of the State's treatment of King.  The trial court responded as
    follows:
    "Nor did I. Basically, most of the testimony are things
    he imagined happened.  I don't know.  But his testimony
    is clear that he thinks things happen that don't
    happen."
    Following those remarks, King was cross-examined.  Following
    King's testimony, the defense attorney attempted to admit
    evidence of the document King's signed while in jail.  The trial
    court made the following statements:
    "[King] has pretty much admitted to all of
    the testimony [sic] prior testimony, prior
    inconsistencies, prior consistencies.  So
    pretty much everything is in the record along
    with some of the things that make up the
    witness' ability to tell the truth, which is
    pretty clear.
    What I am saying is the witness you put up has the
    tendency, which is clear from his testimony, to take
    whichever position, even going into his testimony about
    the occurrence.  He pretty much takes the position that
    is best for him at the particular point in time he's
    testifying.   That's what I find from his testimony.
    *     *   *
    [I]t shows that he will turn on anyone.
    *    *    *
    What I find from the witness' complete
    testimony is his nature in protecting
    himself, including the fact that much of the
    testimony I heard about the tire iron would
    incriminate him.  And yet the man has taken
    steps to insure a long distance away from
    that tire iron other than it being in his
    car."
    Next, defendant testified on his own behalf.  He stated that
    he fell asleep on the couch after Twila and Hampton had brought
    him home from the bar.  When he awoke shortly before 4 a.m., he
    heard women's voices outside.  Looking out the window, he saw a
    drunken Twila stumbling out of a car.  Angry, he yelled, "I'm
    gonna kill you, you bitch" and ran downstairs.  He pulled Twila
    out of the car and a physical fight ensued between them.
    Defendant admitted hitting Twila in the face and fighting with
    Hampton, who was trying to stop him from hitting Twila.
    According to defendant, Etcheson approached him and called
    out his name.  As he turned, he saw that Etcheson was going to
    hit him with the tire iron, so he blocked the blow and punched
    Etcheson in the eye, then threw the tire iron on the roof of a
    nearby building.  Immediately after the punch, Etcheson fell to
    his knees, then backwards, striking his head on the street.
    Defendant stated that he did not intend to hurt Etcheson, but was
    trying to defend himself.
    After allowing the State to present its closing argument
    with one minor interruption, the trial court interrupted the
    defense attorney 45 times during his closing argument.  Almost
    immediately, the trial court interrupted the defense attorney's
    argument, which was that it was almost impossible for defendant
    to swing the tire iron while facing Etcheson and strike the back
    of Etcheson's head.  The trial court interrupted:
    "THE COURT:  Let's address the practical impossibility.
    Is that what the pathologist said in this case?
    [DEFENSE COUNSEL]:  She didn't say it was impossible.
    THE COURT:  That is your opinion. You're basing your
    argument then not on any evidence in this case; not on
    any reasonable inferences to be drawn from the
    evidence.  It's just what you want me to believe as
    opposed to what the evidence showed in this case."
    The exchange between the trial court and the defense
    attorney continued until the attorney changed the subject and
    stated:
    "[DEFENSE COUNSEL]:  Back to Norma Hampton.  Norma
    admitted she had eight drinks."
    Again, the trial court interrupted, remarking:
    "THE COURT:  Actually, the three people out there were
    drinking.  The only one that didn't seem to be drunk
    was the witness that you called, Dennis King.
    [DEFENSE COUNSEL]:  Dennis King, correct.
    THE COURT:  He was out as long as everyone else was
    out.  He is the one who had the warrants out for the
    drunk driving, and he is the one that -- everyone else
    was drunk except him.  Everyone else did something
    except him."
    Further in the defense's closing argument, the defense
    attorney argues that it was unusual for an innocent defendant to
    help the police in finding the murder weapon.  The court
    interrupted:
    "THE COURT:  Why is that unusual?  The argument --
    somewhere along the line, you're missing -- are you
    saying the police don't acquire evidence in cases from
    the defendants themselves?
    [DEFENSE COUNSEL]:  No, I am not saying that.
    THE COURT:  What is the argument?  How unlogical it is
    for the defendant to turn over the murder weapon in
    this case?
    [DEFENSE COUNSEL]:  Yes.  Yes, I am saying that a
    guilty person does not call the police and say here's
    where it is, tells them where to find it.  If he had
    hit --
    THE COURT:  Would you say it's also logical for an
    innocent person to stick around for the police [sic]
    come and talk to them?  And that is something that this
    innocent client that you say you represent didn't do,
    which represents what an innocent person might do.
    If that is your argument about the tire iron, why
    didn't he stick around for the police when they came if
    this innocent, self-defense person that injured
    somebody in the course of self-defense --"
    When the defense counsel remarked that there was no blood in
    Etcheson's sinuses, the trial court interrupted:
    "It doesn't take a rocket scientist to know
    that if you are hit in the back of the head
    with an object such as used in this case
    which caused the damage that caused to the
    skull, that the blow alone could cause the
    movement which would cause blood in the
    sinuses.
    [DEFENSE COUNSEL]:  Without a laceration and --
    THE COURT:  Without all those things.  It doesn't take
    a rocket scientist.
    [DEFENSE COUNSEL]:  The medical examiner
    never testified that blood in the sinuses
    could be caused by a blow to the back of the
    head.
    THE COURT:  You know, I don't think that is
    correct.  Okay, I am just going on common
    sense and everyday experiences in life.
    [DEFENSE COUNSEL]: Common sense says you are going to
    be cut if someone hits you with a tire iron.
    THE COURT:  The problem is that in all cases you're
    stuck with the facts that are presented.  And you can
    say all those things and you can bring your dad in
    who's a doctor, which I think was a mistake on your
    part.  But I just don't think we get any good evidence
    when we bring in someone who is so closely related to
    you to testify in a case where he has very limited
    experience.  I allowed you to do it.  I can't for a
    second imagine, think that you would rely or ask me to
    rely very heavily on that testimony when all it is is
    an opinion from your father, the doctor, based upon a
    case that you're handling.
    [DEFENSE COUNSEL]:  Are you suggesting that he is
    lying?
    THE COURT:  No, I am suggesting that he has no personal
    knowledge of what he testified to.  That is what I
    [sic] suggesting.
    [DEFENSE COUNSEL]:  No expert is going to have personal
    knowledge.
    THE COURT:  I am thinking that there is a reason for
    him to have this opinion.
    [DEFENSE COUNSEL]:  I put him on --
    THE COURT:  For whatever it was worth.
    [DEFENSE COUNSEL]:  -- because he agreed to do it for
    free, just like I am doing.
    THE COURT:  To me, I think it was a mistake."
    The court later continued his remarks about Dr. Geiger:
    THE COURT:  On that particular point, your dad is going
    to have to bring in his 15.  Because I don't think your
    dad has treated fifteen people with injuries from tire
    irons.  I think the testimony was based upon you being
    the lawyer, and the escalation in the amount of tire
    iron cases he handled in his life.
    [DEFENSE COUNSEL]:  He said between five and fifteen.
    THE COURT:  And I think the fifteen is a little bit a
    coloration of the testimony because he is your dad.
    And I think it was a mistake for you to call your dad
    as a witness in this case.
    [DEFENSE COUNSEL]:  I didn't have any money to spend,
    zero.  I received nothing.  He received nothing.
    THE COURT:  I don't know what that means.  You think
    that is a plus?"
    When the defense counsel began his remarks about the
    credibility of the witnesses, the trial court stated:
    "Well, you want to talk about Dennis King?  Did you
    believe anything Dennis King said with all the
    inconsistencies, with all the motivation.
    *    *    *
    It's so clear to everyone else in this room that the
    reason he changed his story is because the State didn't
    fulfill their obligation and didn't take care of the
    drunk driving, the 00.  At the time he told them what
    happened, he was under the assumption that the State
    was going to do something for him.  When they didn't,
    that little sneak decided to tell a different story.
    That little piece of garbage who came in here and swore
    under oath to a lot of things that weren't true,
    including the fact that the deceased in plain view got
    the tire iron from underneath the car, that is the
    biggest lie your witness told.  That is so glaring and
    so totally wrong based upon the totality of the
    circumstances, it is the lead-in as to why anything
    that that individual says was so far from the truth,
    it's ridiculous."
    Following the closing arguments, the trial court found
    defendant guilty of first-degree murder, and sentenced him to 55
    years' imprisonment.
    Defendant's first assertion is that he was denied a fair
    trial because the trial court was biased against him and his
    witnesses.  We will consider his arguments even though they were
    not raised in his motion for a new trial.  In furtherance of our
    responsibility to provide a just result, this court can override
    considerations of waiver.  In re C.R.H., 
    163 Ill. 2d 263
    , 274,
    
    644 N.E.2d 1153
    (1994).  Because of the fundamental importance of
    a fair trial and the practical difficulties involved in objecting
    to the trial court's conduct, application of the waiver rule is
    less rigid if the basis for the objection is the trial court's
    conduct in a bench trial.  People v. Nevitt, 
    135 Ill. 2d 423
    ,
    455, 
    553 N.E.2d 368
    (1990); People v. Davilla, 
    236 Ill. App. 3d 367
    , 380, 
    603 N.E.2d 666
    (1992).
    After carefully considering the trial court's comments about
    defense witnesses Dr. Geiger and King, particularly those prior
    to King's cross-examination, and its comments during the defense
    counsel's closing arguments, we conclude that the trial court was
    prejudiced against defendant and his witnesses.
    Although the trial court may comment on the credibility of
    the witnesses at the close of the evidence (People v. Kennedy,
    
    191 Ill. App. 3d 86
    , 91, 
    547 N.E.2d 634
    (1989)), in this case,
    the court improperly commented prior to the close of evidence.
    During Dr. Geiger's testimony, the trial court made sarcastic
    comments about the doctor's testimony and questioned his
    knowledge even though it had earlier stated that Dr. Geiger had
    "a vast amount of training" when he was qualified him as an
    expert witness.  During closing argument, the court stated that
    it was a mistake for the defense counsel to call his own father
    as an expert.
    In addition, the trial court made negative comments about
    King even prior to his being cross-examined.  The court expanded
    those comments at the end of King's testimony.  The trial court
    also made excessive and exaggerated derogatory comments about
    defendant during the defense's closing argument.
    Moreover, the trial court did not allow the defense attorney
    an adequate opportunity to present his closing argument.  The
    trial court's 40 to 50 interruptions and arguments with the
    defense counsel during his closing argument indicated that the
    trial court had already decided the case and was not interested
    in any argument from the defense.  In contrast, the trial court
    made only one small comment during the State's entire closing
    argument.
    In a criminal case, the trial must include an opportunity
    for the defense counsel to argue the defendant's cause.  People
    v. Smith, 
    205 Ill. App. 3d 153
    , 156-57, 
    562 N.E.2d 553
    (1990).
    It is not unheard of for the court to change its initial
    impression following arguments by either the defense counsel or
    prosecutor.  
    Smith, 205 Ill. App. 3d at 157
    .  Although the
    closing argument is not evidence, the trial judge has a duty to
    be attentive, patient, and impartial.  
    Smith, 205 Ill. App. 3d at 157
    .
    Even though Smith, 
    205 Ill. App. 3d 153
    , is factually
    dissimilar because the defense counsel was not allowed to argue
    more than one sentence, the same principle is involved in both
    cases.  In Smith, the defendant's conviction was reversed because
    the trial court mistakenly believed that it did not have to
    listen to the closing argument.  Similarly, in this case, the
    trial court did not listen to the defense counsel's closing
    argument.  Even though the trial court allowed the defense
    attorney to argue more than one sentence, it repeatedly
    interrupted and argued with him.  The attorney could not present
    any argument fully before the trial court interrupted him,
    challenging him at every turn.
    It is our opinion that the trial court harbored preconceived
    notions regarding defendant and his witnesses, which led it to
    reject defendant's claim of self-defense even before defendant
    presented all his evidence.  After careful consideration of the
    trial court's remarks in context, it is evident that the court
    was evaluating the merit of the defense even before that defense
    had been presented.  People v. McDaniels, 
    144 Ill. App. 3d 459
    ,
    463, 
    494 N.E.2d 1275
    (1986).  The trial court's premature and
    clearly biased remarks denied defendant a fair and impartial
    trial.  
    McDaniels, 144 Ill. App. 3d at 462
    .
    "The right of a defendant to an unbiased, open-minded
    trier of fact is so fundamental to our system of
    jurisprudence that it should not require either
    citation or explanation.  It is rooted in the
    constitutional guaranty of due process of law (See
    People  v. Diaz (1971), 
    1 Ill. App. 3d 988
    , 992, 
    275 N.E.2d 210
    , 212), and entitles a defendant to a fair
    and impartial trial before a court 'which proceeds not
    arbitrarily or capriciously, but upon inquiry, and
    renders judgment only after trial***.'  (City of
    Chicago v. Cohn (1927), 
    326 Ill. 372
    , 374, 
    158 N.E. 118
    , 120.)  It is axiomatic that "[P]re-judgment is the
    antithesis of a fair trial."  (People v. Diaz (1971), 
    1 Ill. App. 3d 988
    , 992, 
    275 N.E.2d 210
    , 212.)  These
    standards of impartiality apply to both judges and
    juries; one does not waive his right to an impartial
    trial by waiving his right to a jury.  (People v. Diaz
    (1971), 
    1 Ill. App. 3d 988
    , 993, 
    275 N.E.2d 210
    , 213.)
    If this most basic and fundamental right is not
    afforded a defendant during trial, that defendant has
    been denied due process of law and is entitled to a new
    trial.  People v. Diaz (1971), 
    1 Ill. App. 3d 988
    , 993,
    
    275 N.E.2d 210
    , 213."  
    McDaniels, 144 Ill. App. 3d at 462
    .
    Pursuant to People v. Taylor, 
    76 Ill. 2d 289
    , 
    391 N.E.2d 366
    (1979), we are required to consider defendant's contention
    that he was not proven guilty beyond a reasonable doubt.  After
    reviewing the record in the light most favorable to the
    prosecution, we conclude that a rational trier of fact could have
    found the essential elements of first-degree murder beyond a
    reasonable doubt.  People v. Rivera, 
    166 Ill. 2d 279
    , 287, 
    652 N.E.2d 307
    (1995).
    Based on the foregoing, we reverse the circuit court's
    judgment and remand this cause for a new trial.
    Reversed and remanded.
    GREIMAN, J., concurs.
    TULLY, P.J., dissents
    JUSTICE TULLY, dissenting:
    I must respectfully disagree with my colleagues' decision to
    reverse defendant's conviction and remand the cause for a new
    trial.  I believe that the trial judge's comments were innocuous
    at best and surely did not amount to reversible error.  Moreover,
    defendant was proven guilty of first-degree murder beyond a
    reasonable doubt.  Aside from my trouble with the majority's
    reasoning in this case, I am particularly disturbed by the tone
    of its opinion which comes close to being a personal attack on
    the trial judge, an experienced circuit court judge with over a
    decade of experience in the criminal division.  Accordingly, I
    would affirm the trial court's ruling for the reasons which
    follow.
    Initially, I take issue with the majority's application of
    the waiver rule to this case.  Speaking to this question, the
    supreme court of Illinois has repeatedly held that absent plain
    error, "[b]oth a trial objection and a written post-trial motion
    raising the issue are required for alleged errors that could have
    been raised during trial."  People v. Enoch, 
    122 Ill. 2d 176
    , 186
    (1988); see also People v. Adams, 
    109 Ill. 2d 102
    , 116 (1985).
    In People v. Caballero, 
    102 Ill. 2d 23
    , 31 (1984), our supreme
    court stated the reasons for the waiver rule as follows:
    "Failure to raise issues in the trial court
    denies that court the opportunity to grant a
    new trial, if warranted.  This casts a
    needless burden of preparing and processing
    appeals upon appellate counsel for the
    defense, the prosecution, and upon the court
    of review.  Without a post-trial motion
    limiting the consideration to errors
    considered significant, the appeal is open-
    ended.  Appellate counsel may comb the record
    for every semblance of error and raise issues
    on appeal whether or not trial counsel
    considered them of any importance."  
    102 Ill. 2d
    at 31-32.
    This rule is both simple to understand and apply.  In the case
    sub judice, defendant did not include any of the alleged errors
    in his post-trial motion and, as I shall explain infra, there was
    no plain error.  Thus, all of defendant's issues are waived and
    therefore not cognizable on review.  
    Enoch, 122 Ill. 2d at 176
    -
    77.
    In order to evade the clear mandate of Caballero, Enoch and
    their progeny the majority by necessity cites to cases which
    soften the waiver doctrine in situations of alleged improper
    judicial conduct in a bench trial.  See People v. Nevitt, 
    135 Ill. 2d 423
    (1990); People v. Davilla, 
    236 Ill. App. 3d 367
    (1992).  While I have no quarrel with the import of those cases;
    they are simply inapplicable here.  In order for a trial judge's
    comments to constitute reversible error, a defendant must show
    that the remarks were prejudicial and that he was harmed by them.
    People v. Westfield, 
    207 Ill. App. 3d 772
    , 778 (1990).  In other
    words, the defendant needs to establish that the comments were a
    material factor in his conviction.  People v. Garrett, 276 Ill.
    App. 3d 702 (1995).  Where is the proof of harm in this case?  I
    cannot find it.  In addition, the majority completely omits any
    discussion of the long line of cases which hold that where a
    defendant receives a bench trial, not a jury trial, the danger of
    prejudice due to judicial questioning decreases sharply.  People
    v. Griffin, 
    194 Ill. App. 3d 286
    , 296 (1990).
    The majority's opinion painstakingly quotes various comments
    made by the trial court out-of-context and then through the use
    of its clairvoyant powers and judicial prestidigitation concludes
    that the trial judge was biased against defendant and his
    witnesses from almost the beginning of the trial.  The truth of
    the matter is that the trial judge merely commented on the
    credibility of the witnesses based on their testimony, rather
    that on any preconceived notions as the defense would have us
    believe.  A circuit court is free to examine witnesses in its
    discretion, provided it does not become an advocate, thereby
    abandoning its function as an impartial tribunal.  People v.
    White, 
    249 Ill. App. 3d 57
    , 61 (1993).  The relevant inquiry in a
    non-jury trial is whether the tenor of the court's questioning
    indicates that the court has prejudged the verdict before hearing
    all the evidence.  People v. 
    Griffin, 194 Ill. App. 3d at 296
    .
    The court may be justified in making such inquiries as a seeker
    of the truth 
    (White, 249 Ill. App. 3d at 61
    ) or to clarify
    material issues which seem obscure.  People v. Wesley, 
    18 Ill. 2d 138
    (1959).
    A careful review of the record reveals that the comments
    made about Dennis King's testimony were not improper, since the
    trial judge found his testimony incredible and further emphasized
    that "[King] thinks things happen that don't happen."  This, I
    find, was an isolated comment, one that surely does not prejudice
    defendant.  After the cross-examination of this witness, it
    became clear that Dennis King changed his story several times.
    The record demonstrates that King testified at trial that he
    never saw defendant strike the victim with the tire iron.  Yet,
    upon cross-examination, he admitted that he told police that he
    did see defendant strike the victim with the tire iron.
    Furthermore, the record shows that while King was in jail for
    outstanding DUI warrants, King wrote a letter to an assistant's
    State's Attorney stating that he would testify against defendant
    if a deal could be worked out.  Yet, he also met with defense
    counsel while in jail and told him he would testify for
    defendant.  At trial, King admitted that he was trying to get out
    of jail at any cost.  It was then that the trial judge told
    defense counsel that King can turn on anyone in order to protect
    himself.  Clearly, Mr. King was an individual who had some
    problems getting his story straight and with the truth in
    general.  The judge's comments did not express a prejudgment of
    the case.  Rather, his comments were based on the evidence the
    trial judge had before him.  Thus, I cannot say that his
    extensive comments on the credibility of King was reversible
    error.
    Additionally, the interruption and comments during closing
    arguments were hardly detrimental to defendant's rights of having
    a fair trial.  The majority erroneously divined that the trial
    judge was "not interested in any argument from the defense" since
    he "had already decided on the case."  That is simply not the
    case.  In this bench trial, the judge was attempting to get to
    the truth and to clarify many of defense counsel's points.  We
    must remember that the test is whether the trial judge had become
    an advocate and abandoned his function as an impartial tribunal.
    People v. 
    Griffin, 194 Ill. App. 3d at 296
    .  Here, the judge was
    not an advocate.  Expressing skepticism and becoming an advocate
    are entirely different matters.
    Appellate defense claims that the trial judge interrupted
    trial counsel's closing arguments over 40 times, yet does not
    cite to the 40 so-called interruptions as error.  Only a very few
    are actually challenged by defendant.  The majority bases its
    decision in this matter on People v. Smith, 
    205 Ill. App. 3d 153
    (1990), while noting that the case is factually dissimilar, in
    other words, not on point.  In Smith, the defendant's conviction
    was reversed based on the trial court's improper conduct.  
    Smith, 205 Ill. App. 3d at 157
    .  The defense counsel did not get to
    utter more than a sentence of her closing argument before the
    trial judge cut her off, stating that he was not required to
    listen to her arguments.  
    Smith, 205 Ill. App. 3d at 156
    .  Unlike
    Smith, the trial court here did give defense counsel an ample
    opportunity to argue.
    Moreover, I do not believe that the trial judge's comments
    about defendant were derogatory when stating "less than human" or
    "macho man."  At one point during closing arguments, the trial
    judge noted that defendant himself "admitted acting less than
    human on this occasion when his wife was out drinking with
    friends; acting less than what we would expect from a law-abiding
    citizen[.]"  This comment was based on defendant's own
    admissions.  It was defendant that testified to striking his wife
    which caused her to fall to the ground, and yelling "I'm going to
    kill you, you bitch."  Comments based on the evidence and
    defendant's own admission cannot be considered prejudicial.
    As to the questioning of Dr. Geiger, I do believe that the
    comments made by the trial judge were prejudicial and
    unwarranted.  However, based on the overwhelming evidence in the
    record proving defendant's guilt, I do not believe that those
    comments, standing alone, constitute prejudicial error.
    In sum, it has often been held that a criminal defendant is
    entitled to a fair trial and not a perfect one.  See, e.g.,
    United States v. Hastings, 
    461 U.S. 499
    , 508-09, 
    103 S. Ct. 1974
    ,
    1980 (1983).  In a bench trial, it is the function of the trial
    court to determine the credibility of the witnesses, the weight
    to be given their testimony and the inferences to be drawn from
    the evidence.  See People v. 
    Westfield, 207 Ill. App. 3d at 778
    .
    I believe that defendant did not meet his burden in establishing
    that the trial judge was biased.  The trial court, despite
    comment and questions, found defendant guilty based on the
    evidence and testimony.  The opinion of the majority needlessly
    launches this case on another journey through the trial court,
    which will come back again to the appellate court.  This
    additional caseload should not be imposed upon the judicial
    system of this State where it is clear that the totality of the
    trial judge's comments did not rise to the level of reversible
    error.    Accordingly, I would without hesitation affirm
    defendant's conviction.