People v. Sheley, 2017 IL App (3d) 140659 (October). Episode 419 (Duration 14:30)
Judge falls asleep during a murder trial.
Defendant was on trial for the bludgeoning and killing of four people.
The circuit court sentenced defendant to four consecutive sentences of natural life imprisonment without parole. It was part of murderous rampage defendant went on in Illinois and Missouri.
Judge Falls Asleep
In this Illinois trial during the playing of a video the judge fell asleep.
Here’s how the defense attorney addressed the topic.
“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. 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.”
Motion For Mistrial
Motion for mistrial was denied. And just when you thought it would be handled cordially, the judge explained why he denied the motion:
“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 the appellate court. I find it disgusting.”
Law On Illinois Mistrial Requires Structural Error
“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).
“Automatic reversal is only required where an error is deemed ‘structural,’ i.e., a systematic 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).
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).
“[Most 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)).
Sleepy Judge Not Structural Error
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.” Rather, such an error is subject to harmless error analysis.
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.
It is undisputed that neither party called upon the judge to make any evidentiary rulings during that time.
When ruling on defendant’s post trial 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, 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.
Defense Failed To Make A Record
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.
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.
Briefly Falling Asleep
Is Not Like Leaving The Bench
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.
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.”
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.
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. 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.
Concurring Opinion Alleges “Sandbagging”a
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).
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”).
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.