{ "id": 223622, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ISRAEL VARGAS, Appellant", "name_abbreviation": "People v. Vargas", "decision_date": "1996-11-21", "docket_number": "No. 79044", "first_page": "355", "last_page": "378", "citations": [ { "type": "official", "cite": "174 Ill. 2d 355" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "year": 1988, "pin_cites": [ { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "128 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3228708 ], "weight": 4, "year": 1989, "pin_cites": [ { "page": "46" }, { "page": "47" }, { "page": "47" }, { "page": "47" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/128/0001-01" ] }, { "cite": "211 Ill. 17", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3308227 ], "year": 1904, "pin_cites": [ { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/ill/211/0017-01" ] }, { "cite": "159 Ill. 2d 272", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 781338 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "310" }, { "page": "310" }, { "page": "310" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/159/0272-01" ] }, { "cite": "137 Ill. 2d 195", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3251719 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "209" }, { "page": "209" }, { "page": "214" }, { "page": "215" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/137/0195-01" ] }, { "cite": "79 Ill. 2d 564", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3069192 ], "weight": 4, "year": 1980, "pin_cites": [ { "page": "576-77" }, { "page": "576" }, { "page": "576-77" }, { "page": "577" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/79/0564-01" ] }, { "cite": "60 Ill. 2d 117", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5414856 ], "year": 1975, "pin_cites": [ { "page": "121" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/60/0117-01" ] }, { "cite": "99 Ill. 2d 262", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3163268 ], "year": 1983, "pin_cites": [ { "page": "273" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/99/0262-01" ] }, { "cite": "54 Ill. 2d 280", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2933485 ], "year": 1973, "pin_cites": [ { "page": "283" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/54/0280-01" ] }, { "cite": "295 Ill. 222", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5064906 ], "weight": 4, "year": 1920, "pin_cites": [ { "page": "228-29" }, { "page": "228" }, { "page": "228-29" }, { "page": "228", "parenthetical": "even though judge was within hearing of courtroom proceedings, he could not promptly have stopped the prejudicial remarks of the prosecutor" } ], "opinion_index": 0, "case_paths": [ "/ill/295/0222-01" ] }, { "cite": "99 Ill. 123", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2830329 ], "year": 1881, "pin_cites": [ { "page": "136" } ], "opinion_index": 0, "case_paths": [ "/ill/99/0123-01" ] }, { "cite": "414 Ill. 445", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5314057 ], "year": 1953, "pin_cites": [ { "page": "450-51" } ], "opinion_index": 0, "case_paths": [ "/ill/414/0445-01" ] }, { "cite": "27 Ill. 2d 398", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5360433 ], "year": 1963, "pin_cites": [ { "page": "403" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/27/0398-01" ] }, { "cite": "192 Ill. 493", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5578017 ], "weight": 4, "year": 1901, "pin_cites": [ { "page": "508" }, { "page": "508" }, { "page": "507" }, { "page": "497", "parenthetical": "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\"" } ], "opinion_index": 0, "case_paths": [ "/ill/192/0493-01" ] }, { "cite": "84 Ill. 479", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2655936 ], "weight": 4, "year": 1877, "pin_cites": [ { "page": "482-83" }, { "page": "482" }, { "page": "482" }, { "page": "482", "parenthetical": "parties' consent to judge's absence was unavailing; such absence could not be justified on any principle" } ], "opinion_index": 0, "case_paths": [ "/ill/84/0479-01" ] }, { "cite": "144 Ill. 378", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3079890 ], "weight": 5, "year": 1893, "pin_cites": [ { "page": "381" }, { "page": "381" }, { "page": "381-82" }, { "page": "382" }, { "page": "381" } ], "opinion_index": 0, "case_paths": [ "/ill/144/0378-01" ] }, { "cite": "178 Ill. 320", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3146278 ], "weight": 2, "year": 1899, "pin_cites": [ { "page": "326" }, { "page": "326" } ], "opinion_index": 0, "case_paths": [ "/ill/178/0320-01" ] }, { "cite": "324 Ill. 322", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2442430 ], "year": 1927, "pin_cites": [ { "page": "330" } ], "opinion_index": 0, "case_paths": [ "/ill/324/0322-01" ] }, { "cite": "369 Ill. 197", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2564793 ], "year": 1938, "pin_cites": [ { "page": "203" } ], "opinion_index": 0, "case_paths": [ "/ill/369/0197-01" ] }, { "cite": "192 Ill. 493", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5578017 ], "weight": 3, "year": 1901, "pin_cites": [ { "page": "498" }, { "page": "499" } ], "opinion_index": 1, "case_paths": [ "/ill/192/0493-01" ] }, { "cite": "84 Ill. 479", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2655936 ], "weight": 3, "year": 1877, "pin_cites": [ { "page": "481" }, { "page": "482" } ], "opinion_index": 1, "case_paths": [ "/ill/84/0479-01" ] }, { "cite": "144 Ill. 378", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3079890 ], "weight": 2, "year": 1893, "pin_cites": [ { "page": "381-82" } ], "opinion_index": 1, "case_paths": [ "/ill/144/0378-01" ] }, { "cite": "178 Ill. 320", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3146278 ], "year": 1899, "pin_cites": [ { "page": "325-26" } ], "opinion_index": 1, "case_paths": [ "/ill/178/0320-01" ] }, { "cite": "324 Ill. 322", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2442430 ], "weight": 2, "year": 1927, "pin_cites": [ { "parenthetical": "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" } ], "opinion_index": 1, "case_paths": [ "/ill/324/0322-01" ] }, { "cite": "369 Ill. 197", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2564793 ], "weight": 3, "year": 1938, "pin_cites": [ { "page": "203" }, { "page": "203-05" } ], "opinion_index": 1, "case_paths": [ "/ill/369/0197-01" ] } ], "analysis": { "cardinality": 1254, "char_count": 41100, "ocr_confidence": 0.786, "pagerank": { "raw": 4.1789516585618137e-07, "percentile": 0.9124860175245738 }, "sha256": "73dea0d3abffe6ece5393491c958815c13e0c150dea157e371fc987d9afc7ae6", "simhash": "1:4f20a70678326bec", "word_count": 6755 }, "last_updated": "2023-07-14T18:45:59.454651+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ISRAEL VARGAS, Appellant." ], "opinions": [ { "text": "JUSTICE McMORROW\ndelivered the opinion of the court:\nThe question presented in this case is whether a trial judge\u2019s 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.\nBackground\nThe 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\u2019s 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\u201d 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\u2019s cap was positioned off to the left, indicating to them that he was a member of a rival gang.\nUpon 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.\nThe trial judge\u2019s absence in this case occurred as testimony was being elicited from Assistant State\u2019s Attorney Michael Vittori. During the State\u2019s 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\u2019s murder. Shortly after defendant\u2019s 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:\n\"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.)\nMR. FLANAGAN: Q. Now, your job as a State\u2019s Attorney is to prosecute for the People of the State of Illinois, is that correct?\nA. That is correct.\nQ. And that is what you were doing January 18th of 1990, isn\u2019t that right?\nA. I was a prosecutor at that time, yes.\nQ. And you were working in Felony Review?\nA. That is correct.\nQ. 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\u2019t that right?\nA. Yes.\nQ. And you gather evidence?\nA. Yes. We talk to witnesses, we talk to defendants if they are willing to talk with us.\nQ. And the purpose of that is ultimately to be used in court, isn\u2019t that right?\nA. Yes.\nQ. That is what you told [defendant] when you spoke to him on January 18th, isn\u2019t that right, anything that he\u2019d say would be used in court, didn\u2019t you tell him that?\nA. That[\u2019s] right. I did inform him of, yes.\nQ. And that is part of your job, isn\u2019t it?\nA. Yes.\nQ. So when you were talking to [defendant] you were acting as an attorney for the State of Illinois and not as his attorney?\nA. Yes. That is what I told him.\nQ. And your job as a State\u2019s Attorney was to gather evidence to prosecute [defendant], isn\u2019t that right?\nA. No. We gather information\u2014\nMS. RODI [prosecutor]: Objection.\nMR. FLANAGAN: Miss Court Reporter, could you make a note of where that is and then I can continue along another line.\nAny objection counsel?\nMS. RODI: No.\nMR. FLANAGAN: Q. Now, in January of this year how long had you been working as a State\u2019s Attorney?\nA. In January of 1990 I had been working, it wasn\u2019t four years yet because I started in June of 1986.\n(Judge entered.)\nMR. 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.\nTHE COURT: You ask for what?\nMR. FLANAGAN: Your ruling.\nTHE COURT: Well, what is the question?\nMR. FLANAGAN: If the court reporter can read it back?\nTHE COURT: All right.\n(The Court Reporter read the record.)\nAnd there was an objection to that?\nMR. FLANAGAN: Yes.\nTHE COURT: Overruled. He may answer.\u201d\nAfter Vittori\u2019s 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\u2019 imprisonment.\nDefendant sought review of his conviction in the appellate court arguing, inter alia, that the trial judge\u2019s 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\u2019s absence was error, but determined that the error was harmless. 271 Ill. App. 3d at 341. We subsequently granted defendant\u2019s petition for leave to appeal. 155 Ill. 2d R. 315.\nAnalysis\nThe sole issue which defendant asks us to review is the correctness of the appellate court\u2019s conclusion that the trial judge\u2019s absence during Vittori\u2019s cross-examination was harmless error. Defendant\u2019s position on this issue is twofold. Defendant contends that a trial judge\u2019s 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\u2019s absence is error and, in the present case, defendant suffered prejudice from that error.\nDefendant\u2019s contention that the trial judge\u2019s absence in this case constitutes per se reversible error is based in large part on the defendant\u2019s theory that a trial judge\u2019s presence throughout the trial is necessary to preserve the integrity and reputation of the judicial process. Defendant argues that the judge\u2019s 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\u2019s absence may cause jurors to believe that evidence presented during the judge\u2019s absence is, in the judge\u2019s opinion, of lesser importance.\nDefendant contends that even if the absence of the trial judge did not constitute per se reversible error, defendant\u2019s 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\u2019s claim of accountability rested primarily on this statement.\u201d Defendant argues that the judge\u2019s 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\u2019s absence during the cross-examination of this critical witness was likely to prejudice defendant.\nThe State initially counters that defendant has waived review of the trial judge\u2019s absence. The State points out that defendant did not object to the judge\u2019s absence at trial but instead proceeded, in the trial judge\u2019s 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\u2019s absence in a post-trial motion. The State argues that these inactions, either individually or collectively, are sufficient to preclude our review of defendant\u2019s challenge to the trial judge\u2019s absence.\nIn the alternative, the State contends that even if defendant\u2019s objection to the trial judge\u2019s 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\u2019s position that the trial judge\u2019s 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\u2019s 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\u2019s absence from the bench was harmless error because defendant was actively proceeding with the cross-examination of Vittori in the trial judge\u2019s 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\u2019s absence from the bench. The State maintains that considering the judge\u2019s absence in this light, the trial judge\u2019s absence in the instant case was harmless error.\nWe begin our analysis by noting that the State is correct in its assertion that any error arising from defendant\u2019s failure to object to the trial judge\u2019s 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\u2019s absence either at trial or in a post-trial motion and, as a result, review of such absence would normally be deemed waived.\nThe 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 errors 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.\nAlthough 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\u2019s 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.\u201d 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.\nIn our view, two policy concerns support the conclusion that the judge\u2019s absence from the bench in the present case is reviewable under the plain error rule. First, a judge\u2019s 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\u2019s 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.\nDuring 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\u2019s 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\u2019s 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\u2019s conviction and ordering a new trial, this court observed that a trial judge\u2019s 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\u201d 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.\u2019 \u201d Chrfrikas, 295 Ill. at 228, quoting Earll v. People, 99 Ill. 123, 136 (1881). This court stated:\n\"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.\u201d Chrfrikas, 295 Ill. at 228-29.\nA judge\u2019s 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 \"Qjurors 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.\u201d 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\u2019s 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\u2019s absence from the proceedings required an automatic reversal of defendant\u2019s conviction, this court in Durden observed that because a single judge had presided over the most of the trial, that judge\u2019s absence may have created a negative impression in the minds of the jurors:\n\"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].\u201d Durden, 192 Ill. at 507.\nWe 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\u2019s 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\u2019s trial. As in Durden, we cannot say that the presiding judge\u2019s 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\u2019s total absence from a portion of the proceedings during defendant\u2019s 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 a new trial.\nWe have set forth above the policy reasons why we view the trial judge\u2019s absence from the bench during defendant\u2019s prosecution as plain error requiring relaxation of the waiver doctrine. For similar reasons of policy we also hold that the nature of the error \u2014 total judicial absence for a portion of a felony trial \u2014 is per se reversible because such error is inherently prejudicial, not only to defendant\u2019s right to a fair trial but also to the integrity of the judicial process.\nThe appellate court relied on precedent from this court in support of its conclusion that error arising from the judge\u2019s 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\u2019 absences from court proceedings.\nIn reaching its conclusion that the trial judge\u2019s 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\u2019s 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\u2019s absence.\u201d 271 Ill. App. 3d at 341. The appellate court concluded that the trial judge\u2019s absence during Vittori\u2019s cross-examination in the case at bar was harmless error because, in its view, defendant suffered no demonstrable prejudice resulting from the judge\u2019s absence.\nWe disagree with the appellate court\u2019s holding that Illinois precedent compels the conclusion that the trial judge\u2019s absence during a portion of defense counsel\u2019s cross-examination of Vittori amounted to harmless error. The appellate court misinterpreted this court\u2019s 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\u2019s absence from the bench.\nIn Meredeth, this court held that a judge\u2019s 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\u2019s conviction, notwithstanding evidence indicating\nthat the judge\u2019s absence was by consent of defense counsel. Meredeth declined to view the judge\u2019s 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.\u201d 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\u2019s 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.\u201d (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\u2019s absence during trial.\nSubsequently, in Thompson, this court again reversed a conviction because of the judge\u2019s 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.\u201d Thompson, 144 Ill. at 381. In Thompson, the trial judge remained in his chambers during the entirety of the State\u2019s closing argument to the jury and did not hear the argument during his absence from the bench. After holding that the judge\u2019s 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.\u201d Thompson, 144 Ill. at 381-82.\nThe quoted dictum from Thompson may be reasonably interpreted as excusing a judge\u2019s 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\u2019s argument to the jury. The judge, however, left the door to his chambers open and actually listened to defense counsel\u2019s argument while he was physically absent from the bench. Relying on the quote from Thompson, Schintz held that the judge\u2019s 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.\u201d Schintz, 178 Ill. at 326. Thus, in Schintz, this court applied Thompson\u2019s 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\u2019s physical absence from the courtroom notwithstanding the judge\u2019s nearby presence in another room.\nIn the case at bar, the trial judge was completely absent for a portion of the trial proceedings and therefore the \"constructive presence\u201d 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\u2019s error in leaving his courtroom did not require reversal because such error was subsumed in the face of overwhelming evidence of defendant\u2019s 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\u2019s 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\u2019s 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.\nWe reaffirm the view of Meredeth, Thompson, and Durden that a presiding trial judge\u2019s total absence from the proceedings is per se reversible error because the judge\u2019s presence is vital to the preservation of the integrity of the justice system and the defendant\u2019s right to a fair trial. These cases decline to search for or require a defendant to demonstrate actual prejudice arising from the trial judge\u2019s disappearance during trial, but instead assume that such absence is inherently prejudicial. See, e.g., Meredeth, 84 Ill. at 482 (parties\u2019 consent to judge\u2019s 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\u2019s absence from end of trial \"requires a reversal of the cause, and therefore we pass no opinion upon the facts\u201d). In the case at bar, the presiding trial judge was not only physically absent from the courtroom during a portion of defense counsel\u2019s 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\u2019s 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\u2019s 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\u2019s complete absence from the proceedings during a portion of defendant\u2019s 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\u2019s absence as immaterial to the disposition of this issue.\nWe 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\u2019s complete absence from the bench is ill-advisable in felony cases. A defendant\u2019s liberty, as well as the State\u2019s interest in convicting the guilty, are at stake in every criminal trial. A presiding judge\u2019s supervision over every stage of the proceedings precludes speculation that jurors may perceive evidence received in the judge\u2019s 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\u2019s 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\u2019s prior decisions which have observed that \"the presence of the judge can not be dispensed with.\u201d Thompson, 144 Ill. at 381.\nFor 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.\nAppellate court judgment reversed; circuit court judgment reversed; cause remanded.", "type": "majority", "author": "JUSTICE McMORROW" }, { "text": "CHIEF JUSTICE BILANDIC,\ndissenting:\nI 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\u2019s 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\u2019s absence. I would find in this case that the trial judge\u2019s absence from the bench caused no prejudice to the defendant and does not require reversal of his conviction.\nThe majority concludes that a rule of per se reversal is required by this court\u2019s prior precedent. To the contrary, this court\u2019s precedent clearly supports a rule that requires reversal only where the defendant has been prejudiced as a result of the judge\u2019s absence.\nIn People v. Berkowitz, 369 Ill. 197 (1938), this court was called upon to determine whether a trial judge\u2019s absence required reversal of the defendant\u2019s conviction. In Berkowitz, during the prosecution\u2019s 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\u2019s failure to testify. Upon the judge\u2019s 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.\nOn appeal, the defendant argued that the trial judge\u2019s absence required reversal of his conviction. This court agreed that the judge\u2019s 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\u2019s 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).\nThe majority acknowledges the Berkowitz decision, but labels it \"aberrant precedent\u201d and declines to follow it. When this court\u2019s 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\u2019s precedent. This court in earlier cases had conducted prejudice evaluations when determining whether a trial judge\u2019s 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\u2019s absence.\nIn Meredeth, the trial judge was absent from the bench for almost two days during arguments in the defendant\u2019s murder trial, and the judge\u2019s 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\u2019s 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\u2019s skull. It was established that, during the judge\u2019s absence:\n\"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.\u2019 \u201d Meredeth, 84 Ill. at 481.\nReversal in Meredeth was thus warranted by the prejudice the defendant suffered as a result of the trial judge\u2019s absence from the proceedings.\nSimilarly, in Thompson, the circumstances of the trial judge\u2019s 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\u2019s absence, no rulings were ever obtained on these objections. This court determined that reversal of the defendant\u2019s conviction was warranted by the judge\u2019s absence. In reaching this holding, however, this court acknowledged that the circumstances of the judge\u2019s 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\u2019s absence from trial will not always require reversal.\nThe 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\u2019s place midway through the defendant\u2019s trial. In that case, the trial judge vacated the bench (and, in fact, the county) during the defendant\u2019s 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\u2019s place after the trial judge left the bench. On appeal, this court reversed the defendant\u2019s 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.\u201d 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\u2019s 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.\nAccordingly, 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\u2019s 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\u2019s absence would not warrant reversal unless there was prejudice to the defendant.\nIn sum, the majority\u2019s attempt to justify a rule of per se reversal on the basis of this court\u2019s 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\u2019s 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\u2019s 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\u2019s absence is absurd. Yet, the majority\u2019s rule, which deems prejudice to the defendant irrelevant, would seem to require such a holding.\nI would therefore hold that a trial judge\u2019s 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\u2019s absence here reveal that no prejudice to the defendant resulted. The trial judge\u2019s absence occurred during the defendant\u2019s cross-examination of the assistant State\u2019s Attorney who took the defendant\u2019s written confession. A total of 11 questions were asked of the witness during the judge\u2019s absence. The text of this questioning is set out in the majority opinion. All of the questions sought to determine the witness\u2019 job duties in the felony review unit of the State\u2019s Attorney\u2019s 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.\nThese 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\u2019 testimony, i.e., the defendant\u2019s 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.\u201d Only one objection was made during the judge\u2019s absence and that objection was ruled upon one question later, pursuant to a procedure suggested by defense counsel.\nIt is also significant that defense counsel made no complaint about the judge\u2019s absence in the trial court nor otherwise made any record that anything prejudicial to the defendant had occurred during the judge\u2019s absence. Obviously, defense counsel did not consider the judge\u2019s absence to be a significant event. This circumstance should certainly be considered probative of whether anything occurred during the judge\u2019s absence that adversely affected the defendant\u2019s interests. Presumably, had the courtroom erupted into chaos during the judge\u2019s absence, defense counsel would have noted it for the record. Moreover, as the majority concedes, the evidence in this case was not closely balanced. 174 Ill. 2d at 363.\nIn conclusion, the circumstances present in this case demonstrate that the defendant was not prejudiced by the trial judge\u2019s brief absence. I would therefore affirm the defendant\u2019s conviction.\nFor the foregoing reasons, I respectfully dissent.\nJUSTICE NICKELS joins in this dissent.", "type": "dissent", "author": "CHIEF JUSTICE BILANDIC," } ], "attorneys": [ "Michael J. Pelletier, Deputy Defender, Alan D. Goldberg, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, and Rudy Renfer, law student, for appellant.", "James Ryan, Attorney General, of Springfield, and Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Arleen Anderson, Assistant Attorney General, of Chicago, and Renee Goldfarb, Susan R. Schierl, Robert Robertson and Michael P. Golden, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "(No. 79044.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ISRAEL VARGAS, Appellant.\nOpinion filed November 21, 1996.\nBILANDIC, C.J., joined by NICKELS, J., dissenting.\nMichael J. Pelletier, Deputy Defender, Alan D. Goldberg, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, and Rudy Renfer, law student, for appellant.\nJames Ryan, Attorney General, of Springfield, and Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Arleen Anderson, Assistant Attorney General, of Chicago, and Renee Goldfarb, Susan R. Schierl, Robert Robertson and Michael P. Golden, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0355-01", "first_page_order": 365, "last_page_order": 388 }