{ "id": 25444, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY HAYDEN, Defendant-Appellant", "name_abbreviation": "People v. Hayden", "decision_date": "2003-03-26", "docket_number": "No. 5-00-0492", "first_page": "298", "last_page": "316", "citations": [ { "type": "official", "cite": "338 Ill. App. 3d 298" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "177 Ill. 2d 389", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 317111 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/ill-2d/177/0389-01" ] }, { "cite": "282 Ill. App. 3d 278", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 159560 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/282/0278-01" ] }, { "cite": "166 Ill. 2d 461", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198918 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ill-2d/166/0461-01" ] }, { "cite": "162 Ill. 2d 450", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477551 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ill-2d/162/0450-01" ] }, { "cite": "173 Ill. 2d 151", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 147602 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/ill-2d/173/0151-01" ] }, { "cite": "189 Ill. 2d 312", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1224783 ], "weight": 7, "year": 2000, "pin_cites": [ { "page": "330" }, { "page": "329" }, { "page": "329" }, { "page": "332" }, { "page": "333" }, { "page": "334" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/189/0312-01" ] }, { "cite": "232 Ill. App. 3d 198", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498562 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-app-3d/232/0198-01" ] }, { "cite": "234 Ill. App. 3d 880", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5188852 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "898" }, { "page": "898" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/234/0880-01" ] }, { "cite": "262 Ill. App. 3d 836", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2851074 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-app-3d/262/0836-01" ] }, { "cite": "129 Ill. 2d 265", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5567220 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "275" }, { "page": "275" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/129/0265-01" ] }, { "cite": "226 Ill. App. 3d 892", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5240034 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "902" }, { "page": "902" }, { "page": "902" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/226/0892-01" ] }, { "cite": "256 Ill. App. 3d 38", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5383367 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ill-app-3d/256/0038-01" ] }, { "cite": "267 Ill. App. 3d 954", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 333167 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "958" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/267/0954-01" ] }, { "cite": "244 Ill. App. 3d 460", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5099716 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/244/0460-01" ] }, { "cite": "189 Ill. 2d 401", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1224813 ], "weight": 13, "year": 2000, "pin_cites": [ { "page": "411" }, { "page": "411" }, { "page": "411" }, { "page": "412" }, { "page": "412" }, { "page": "413" }, { "page": "413" }, { "page": "411" }, { "page": "411" }, { "page": "411" }, { "page": "411" }, { "page": "411" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/189/0401-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 6, "year": 1984, "pin_cites": [ { "page": "697" }, { "page": "699" }, { "page": "2069" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "183 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209989 ], "weight": 4, "year": 1998, "pin_cites": [ { "page": "186" }, { "page": "187" }, { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0176-01" ] }, { "cite": "183 Ill. 2d 366", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209962 ], "weight": 11, "year": 1998, "pin_cites": [ { "page": "381" }, { "page": "381" }, { "page": "382" }, { "page": "385" }, { "page": "382" }, { "page": "381" }, { "page": "381" }, { "page": "381" }, { "page": "381" }, { "page": "381" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0366-01" ] }, { "cite": "288 Ill. App. 3d 1076", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1596909 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/ill-app-3d/288/1076-01" ] } ], "analysis": { "cardinality": 1247, "char_count": 41838, "ocr_confidence": 0.774, "pagerank": { "raw": 5.3430235726826605e-08, "percentile": 0.3360394756605501 }, "sha256": "24750a057b74ecbc198ce177457c73d6a580aadd63cc0bb08f8b73a0910dcbc2", "simhash": "1:333dd5a4f71c7bdb", "word_count": 6840 }, "last_updated": "2023-07-14T21:28:15.941926+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY HAYDEN, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE HOPKINS\ndelivered the opinion of the court:\nThis case comes before this court for the third time. Defendant appealed following his conviction by a jury for the murder of his estranged wife, Tracy Hayden, and this court affirmed defendant\u2019s conviction. People v. Hayden, No. 5 \u2014 91\u20140560 (1993) (unpublished order under Supreme Court Rule 23 (134 Ill. 2d R. 23)). Subsequently, defendant filed a postconviction petition in October 1994 and a supplemental postconviction petition in February 1995. The State moved to dismiss both petitions. The trial court denied the State\u2019s motion to dismiss and granted defendant a new trial. This court reversed the trial court\u2019s order granting defendant a new trial, finding that after the denial of the State\u2019s motion to dismiss, the State should have been allowed to answer the petitions. We remanded this case for further proceedings in conformance with section 122 \u2014 5 of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 \u2014 5 (West 1992)). People v. Hayden, 288 Ill. App. 3d 1076 (1997).\nOn remand, defendant filed an amended and a supplemental post-conviction petition. Defendant attached an affidavit to the amended postconviction petition. The State filed motions to dismiss and answers to defendant\u2019s postconviction petitions. On August 2, 2000, the trial court dismissed defendant\u2019s postconviction petitions without conducting an evidentiary hearing.\nOn appeal, defendant contends that the trial court erred for the following reasons in denying his postconviction petitions without an evidentiary hearing:\n1. The court denied his constitutional right to a public trial when it excluded his siblings from the courtroom during voir dire, trial counsel was ineffective for failing to object to the closure, and appellate counsel was ineffective for not raising trial counsel\u2019s failure.\n2. The trial judge erred in fading to recuse himself from the trial sua sponte, trial counsel was ineffective for failing to make a timely motion to substitute the judge, and appellate counsel was ineffective for not raising the issue.\n3. The Belleville police department destroyed exculpatory evidence, i.e., fingerprint evidence on the victim\u2019s vehicle and evidence pertaining to defendant\u2019s bicycle, in bad faith, and trial counsel was ineffective for failing to object to the destruction of the exculpatory evidence.\n4. The State spoliated evidence essential to his defense by wiping the knife used in the murder clean of fingerprints and blood, trial counsel was ineffective for failing to make a timely objection to the spoliation of the evidence, and appellate counsel was ineffective for not raising trial counsel\u2019s failure to raise the issue and for not raising the issue on appeal.\n5. A hearing should have been conducted concerning defendant\u2019s fitness to stand trial because it was apparent from the record that defendant was ingesting psychotropic medication at the trial and sentencing, trial counsel was ineffective for failing to request a fitness hearing, and appellate counsel was ineffective for failing to raise the issue of trial counsel\u2019s ineffectiveness.\n6. Trial counsel was ineffective because he withheld exculpatory evidence from defendant during the trial.\n7. Trial counsel was ineffective for not filing a motion to reconsider sentence, and appellate counsel was ineffective for failing to raise trial counsel\u2019s failure.\nFACTS\nThe facts adduced at the trial are as follows. Defendant and his wife Tracy separated in late May 1990. Tracy took the couple\u2019s two children with her. On the evening of July 27, 1990, Tracy went to Dundee\u2019s, a bar, where she met 10 to 12 other women for a mini reunion. That evening, defendant was riding his bicycle in the area. Defendant saw James Fogarty, Tracy\u2019s brother, and asked Fogarty for a ride to a park. Defendant\u2019s remarks to Fogarty raised the inference that defendant was looking for Tracy. Defendant ultimately went to Dundee\u2019s, where he saw Tracy, but he did not approach her. Tracy and the women with her prepared to leave Dundee\u2019s. Defendant left Dundee\u2019s before them, so Tracy stayed, not wanting to encounter defendant outside in the parking lot.\nAfter leaving Dundee\u2019s, defendant went to a nearby bar, Crehan\u2019s, where he asked the barmaid, Judy Gamble, for a knife \u201cto fix a tire.\u201d When Judy gave defendant a butter knife, he refused the knife, saying it was not sharp enough. Judy gave defendant a butcher knife, which was six to eight inches long and had a brown wooden handle.\nDefendant rode his bicycle back to Dundee\u2019s. Defendant went inside and approached Tracy, who was sitting down, and asked her if he could talk to her. Tracy said no. Defendant pushed Tracy out of her chair onto the floor and jumped on top of her. Witnesses stated that defendant\u2019s arm went up and down several times. Tracy crawled away from defendant when several persons restrained him until the police arrived. Defendant was lying facedown on the floor when the police handcuffed and arrested him. When the police lifted defendant from the floor, there was a knife lying underneath him. The knife was taken by the police as evidence. Judy Gamble identified the knife as the one she had given defendant the night of Tracy\u2019s murder.\nThe evidence revealed that Tracy was dead when the police arrived at Dundee\u2019s. The pathologist testified that Tracy died of a knife wound to her chest because her aorta, the main blood vessel of the body, was pierced. The pathologist also stated that Tracy had a total of seven stab wounds to her body.\nAt the time of the crime, there were approximately 25 to 30 persons present at Dundee\u2019s. The two women with Tracy testified that they did not see a weapon in defendant\u2019s hand when he approached Tracy. Two employees of Dundee\u2019s and a patron also testified that they did not see a knife in defendant\u2019s hands when he approached Tracy; however, one of the witnesses thought that defendant had a gun in his hand. All of the eyewitnesses testified that they saw defendant on top of Tracy and that it appeared that defendant was striking her.\nA friend of defendant\u2019s, Ron Ulrich, testified that defendant came to his home on June 29, 1990, a month before Tracy\u2019s death. Defendant was upset about Tracy leaving him and taking the children. Defendant told Ulrich that Tracy was not letting him see the children and that he would kill her before she would \u201cget away with that.\u201d\nMental health experts testified for both defendant and the State. Their testimony established that defendant suffers from major depression, panic disorder, alcohol dependence, drug abuse, and borderline personality disorder. The experts found that defendant has a mental illness but that he was sane at the time of the incident. Defendant\u2019s expert testified that he did not think defendant was able to form the intent to commit murder.\nThe jury found defendant guilty of first-degree murder. The court sentenced defendant to 55 years\u2019 imprisonment.\nDISCUSSION\nStandard of Review\nThe standard of review for a postconviction petition dismissed without conducting an evidentiary hearing is de novo plenary review. People v. Coleman, 183 Ill. 2d 366 (1998). An evidentiary hearing for a postconviction petition is not a matter of right but is only required when a petitioner makes a substantial showing of a violation of constitutional rights. Coleman, 183 Ill. 2d at 381. A petitioner\u2019s allegations in the postconviction petition must be supported by the record in the case or by accompanying affidavits; however, nonfactual and nonspecific assertions that amount to conclusions are not sufficient to require a hearing under the Act. Coleman, 183 Ill. 2d at 381. Where the allegations in a postconviction petition are contradicted by the trial record, the dismissal of the petition is proper. Coleman, 183 Ill. 2d at 382. Well-pleaded facts that are not positively rebutted by the record are to be taken as true at the dismissal stage of a postconviction proceeding. Coleman, 183 Ill. 2d at 385.\nA postconviction petition is a collateral attack on a judgment, enabling the defendant to challenge a conviction or sentence for a violation of constitutional rights. People v. Johnson, 183 Ill. 2d 176 (1998). Issues considered on direct appeal are res judicata regarding matters actually decided, and issues that could have been raised in an earlier proceeding, but were not, are considered waived. Johnson, 183 Ill. 2d at 186.\nMany of defendant\u2019s issues claim the ineffective assistance of trial counsel and appellate counsel. To succeed on an ineffective-assistance-of-counsel claim, a defendant must show that his counsel was deficient and that he was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); People v. Richardson, 189 Ill. 2d 401 (2000). To show a deficiency, a defendant must overcome the strong presumption that counsel\u2019s action or inaction was the product of sound trial strategy. Richardson, 189 Ill. 2d at 411. To show prejudice, a defendant must prove that there is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different. Richardson, 189 Ill. 2d at 411. Both prongs of the Strickland test, deficiency and prejudice, must be shown to establish the ineffective assistance of counsel, and the failure to establish either of these will be fatal to a defendant\u2019s claim. Richardson, 189 Ill. 2d at 411.\nThe Strickland test is also applied to test the adequacy of appellate counsel. Richardson, 189 Ill. 2d at 412. Effective assistance of counsel does not mandate that appellate counsel raise every conceivable argument, and appellate counsel is not constitutionally deficient unless patently wrong. Richardson, 189 Ill. 2d at 412. Appellate counsel is not ineffective if he does not argue a waived issue (Richardson, 189 Ill. 2d at 413) or where the underlying claim lacks merit (Johnson, 183 Ill. 2d at 187). With these principles in mind, we consider the issues raised on appeal.\nRight to a Public Trial\nDefendant claims that he was denied his constitutional right to an open and public trial when the trial court excluded his family members from voir dire. Further, defendant argues that his counsel was ineffective because he failed to object to the closure and that appellate counsel was ineffective for not raising trial counsel\u2019s failure. We find that defendant waived the issue.\nAt the trial, the following colloquy took place prior to voir dire:\n\u201cMR. HAIDA [State\u2019s Attorney]: And during the voir dire, the\u2014 some of the interested family members have requested to sit in the courtroom. Do you have a problem with that?\nMR. GOMRIC [defense counsel]: I would object to that because my people made the same request. I don\u2019t want to put the two of them together at this point. I would\u2014\nMR. HAIDA: I didn\u2019t encourage it, but they asked me if there was anything improper about it. I said I would run it by the Court. That\u2019s why I\u2019m doing it now. Personally, I don\u2019t think it\u2019s a good idea, but they \u2014 I mean[,] I don\u2019t know how I can really stop them if you tell me they should be in there.\n* * *\nTHE COURT: *** I have attempted to set up this jury selection process so that I can accommodate people that want to be in there without infringing upon the jurors, but given the profile of this and the \u2014 the\u2014I imagine there is serious animosity between these families. I\u2019m not sure that it\u2019s a real good idea to have them in during the selection process, and I don\u2019t know if it may have a tendency to make the selection process a little more difficult. The jurors may be a little bit more comfortable coming in if we did not have both families in there. I\u2019ll exclude the families during the voir dire process. They will not be permitted in the courtroom.\n* * *\nTHE COURT: I\u2019m not going to exclude reporters. Reporters can be in there if they want, but I\u2019m excluding families. Is that sufficient? I don\u2019t know how extensive these families are.\u201d\nFrom this colloquy, it is apparent that defense counsel agreed that defendant\u2019s family, as well as the victim\u2019s family, should be excluded from voir dire.\nThe constitutional right to a public trial under the sixth amendment (U.S. Const., amend. VI) extends to voir dire. People v. Taylor, 244 Ill. App. 3d 460 (1993). The right to a public trial belongs to the accused and not the public. People v. Webb, 267 Ill. App. 3d 954 (1994). While there is the presumption that all trials are open to the public, the presumption is not absolute because it must yield to an overriding interest that is specifically articulated. Taylor, 244 Ill. App. 3d at 468. Further, the right to a public trial can be waived by counsel (Webb, 267 Ill. App. 3d at 958) or by a defendant\u2019s failure to object to the closure at the trial (People v. Lane, 256 Ill. App. 3d 38 (1993)).\nHere, counsel agreed to the partial closure, i.e., only family members of defendant and the victim were excluded, because of the animosity between the two families. Counsel\u2019s agreement waived defendant\u2019s right to a public trial because he did not want both families together at that stage of the proceedings. The court agreed that it would make jury selection more difficult if both families were present. Although defendant claims that he did not agree to counsel\u2019s waiver, at no point in the trial proceedings or in a posttrial motion did defendant object to his counsel\u2019s waiver. Defendant waived his objection to the court\u2019s partial closure of voir dire. Because defendant waived this issue, appellate counsel was not ineffective for not raising the issue on appeal. See Richardson, 189 Ill. 2d at 413.\nDefendant\u2019s claim of ineffective counsel based on the exclusion of his siblings from voir dire is not supported by the record. Further, defendant\u2019s affidavit attached to his postconviction petition contains no facts to support this claim. Accordingly, the court did not err in not holding an evidentiary hearing on this issue. Coleman, 183 Ill. 2d at 381.\nRecusal of Trial Judge\nDefendant contends that the trial judge erred in not recusing himself sua sponte from presiding over defendant\u2019s trial. Additionally, defendant claims that his trial counsel was ineffective for not filing a timely motion for substitution of judge and that his appellate counsel was ineffective for not raising the issue.\nThe first prong of defendant\u2019s argument, that the trial judge erred in not recusing himself sua sponte from presiding at his trial, is based upon defendant\u2019s interpretation of Canon 3(C)(1) of the Code of Judicial Conduct (188 Ill. 2d R. 63(C)(1)). Defendant supports his claim by asserting the following as evidence of the trial judge\u2019s bias and partiality: (1) that the judge\u2019s wife sat with Tracy\u2019s family during the hearing on defendant\u2019s motion for a change of venue, (2) that the judge\u2019s wife attended defendant\u2019s trial on a daily basis and sat with Tracy\u2019s family, (3) that the judge\u2019s wife called defense counsel on \u201cthe eve of sentencing\u201d and told counsel that she would not have anything of benefit to say concerning defendant (apparently the judge\u2019s wife was subpoenaed by defense counsel for the sentencing hearing) and that she and \u201cothers\u201d were disappointed in defense counsel\u2019s \u201cantics,\u201d (4) that the judge failed to order a fitness evaluation and hearing for defendant, (5) that the judge explained that the severe sentence imposed upon defendant was necessary to protect defendant\u2019s children, and (6) that the trial process was \u201cstudded with discretionary decision-making by the trial judge\u201d and that it is impossible to know whether any of those decisions were influenced by the judge\u2019s bias against defendant.\nThe court in People v. McLain, 226 Ill. App. 3d 892 (1992), noted that Canon 3 requires a judge to recuse himself when his participation might reasonably give rise to questions regarding his impartiality. McLain, 226 Ill. App. 3d at 902. However, the McLain court also noted that Canon 3 does not state or imply that the mere appearance of impropriety is, by itself, sufficient to find that a defendant is entitled to a new trial. McLain, 226 Ill. App. 3d at 902. Generally, when a trial judge has a personal, substantial pecuniary interest in reaching a conclusion against a party in a case, then the trial judge should recuse himself. People v. Del Vecchio, 129 Ill. 2d 265 (1989). \u201cAnother guiding principle on the issue of judicial bias is whether the case involves a possible temptation such that the average person, acting as judge, could not hold the balance nice, clear[,] and true between the State and the accused.\u201d Del Vecchio, 129 Ill. 2d at 275. The supreme court in Del Vecchio also stated, \u201c[0]nly under the most extreme cases would disqualification on the basis of bias or prejudice be constitutionally required.\u201d Del Vecchio, 129 Ill. 2d at 275.\nIn the instant case, nothing alleged by defendant established the trial judge\u2019s actual prejudice or bias against defendant. Nor do defendant\u2019s allegations raise the mere appearance of impropriety, because most of the bias alleged by defendant is the judge\u2019s wife\u2019s bias and not the judge\u2019s bias. The only specific allegations concerning the trial judge\u2019s bias are the trial judge\u2019s failure to order a fitness evaluation and hearing for defendant and the judge\u2019s statements at sentencing. As will be discussed later, the trial court\u2019s action concerning defendant\u2019s fitness evaluation and hearing was proper, so this allegation does not support defendant\u2019s assertion. Further, the record reflects that, at sentencing, the trial court considered aggravating factors other than the impact a sentence would have on defendant\u2019s children. The court stated at sentencing that defendant\u2019s sentence was needed to protect society, which included defendant\u2019s children. The court\u2019s statement concerning defendant\u2019s children was brief. The record reflects that the trial court considered proper aggravating factors when imposing sentence and that the sentence was within the range allowed by statute. Even if the court\u2019s remarks were improper, which we do not so find, a remark made in passing is not prejudicial to a defendant so that a new sentencing hearing is required. People v. Westbrook, 262 Ill. App. 3d 836 (1992). Defendant\u2019s allegation concerning the judge\u2019s statement at sentencing as evidence of the judge\u2019s prejudice and bias against him is not supported by the record.\nDefendant\u2019s allegations to support his assertion that the trial judge should have sua sponte recused himself are not extreme or factually defined enough to constitutionally require the disqualification of the trial judge for bias or prejudice.\nDefendant asserts that his trial counsel was ineffective for failing to timely move for a substitution of judge and that appellate counsel was ineffective for failing to raise the issue. We note that the issue of the court\u2019s denial of defendant\u2019s motion for a substitution of judge because it was untimely was raised on direct appeal. Hayden, order at 20. Because only the timeliness of the motion was considered on appeal and not the merits of the motion, this issue is not res judicata for purposes of this appeal.\nPrior to defendant\u2019s trial, defense counsel and the State\u2019s Attorney met with the judge in chambers to discuss a letter sent to defense counsel concerning defendant\u2019s father\u2019s request that defense counsel move for a substitution of the judge. In defendant\u2019s father\u2019s letter to defense counsel, dated December 24, 1990, defendant\u2019s father raised the following as \u201cdefinite conflicts\u201d involving the judge: that the judge\u2019s wife, a \u201cclose friend of [Tracy\u2019s] family,\u201d attended the hearing on the request for a change of venue; that the judge discussed defendant\u2019s case with a witness, Ron Vitale; that the judge plays softball and racquetball and has breakfast often with Ron Vitale; that the judge\u2019s mother- and father-in-law are friends of defendant\u2019s parents; that the judge\u2019s mother-in-law had a bridal shower for defendant\u2019s sister; and that the judge\u2019s wife discussed defendant\u2019s trial with Tom Mabry, one of her coworkers, in early January (which is after the date of defendant\u2019s father\u2019s letter). Defendant\u2019s father sent defense counsel a second letter on April 6, 1991, asking counsel again to move for a substitution of the judge. In the April 1991 letter, defendant\u2019s father asserted no basis for the motion. Defendant claims that since defense counsel knew of the judge\u2019s conflicts prior to the trial, his counsel was ineffective for not filing a motion to substitute the judge earlier than just prior to sentencing.\nSection 114 \u2014 5(d) of the Code of Criminal Procedure of 1963 (Code) provides for the substitution of a judge for cause. 725 ILCS 5/114 \u2014 5(d) (West 2000) (formerly Ill. Rev. Stat. 1991, ch. 38, par. 114 \u2014 5(d)). A defendant has no absolute right to a substitution of a judge for cause. People v. Wright, 234 Ill. App. 3d 880 (1992). It is the defendant\u2019s burden to establish actual prejudice. McLain, 226 Ill. App. 3d at 902. The defendant must show that bias or prejudice stemmed from an extrajudicial source and that the bias produced an opinion on the merits by the judge that was based on other than what the judge had learned from his participation in the case. Wright, 234 Ill. App. 3d at 898. A trial judge is in the best position to determine whether he has become prejudiced. Wright, 234 Ill. App. 3d at 898.\nAs noted previously, defense counsel and the State\u2019s Attorney met with the trial judge in chambers prior to defendant\u2019s trial to discuss defendant\u2019s father\u2019s letter of December 24, 1990. Defense counsel did not file a motion pursuant to section 114 \u2014 5 at that time but simply discussed the matter with opposing counsel and the judge. Defendant\u2019s father\u2019s letters were the only basis for a motion to substitute the judge for cause prior to the trial. These letters were insufficient to provide a basis for a substitution for cause, because there is no allegation of actual prejudice by the judge. The December 1990 letter asserts allegations about the judge\u2019s wife\u2019s relationship with Tracy\u2019s family, but there is no affidavit from anyone other than defendant and no evidence contained in the record that shows that the judge was prejudiced against defendant. The allegations concerning the judge and Ron Vi-tale are not substantiated by an affidavit by Ron Vitale, state no facts showing actual prejudice, and are mere conjecture. Defendant\u2019s father\u2019s letter also establishes that the judge\u2019s extended family had a friendly relationship with defendant\u2019s extended family. It is clear that the judge was familiar, on some level, with both Tracy\u2019s family and defendant\u2019s family, but such familiarity does not establish actual prejudice for either side. Defendant\u2019s father\u2019s assertion that the judge\u2019s wife talked to a coworker about defendant\u2019s case has no bearing on whether the judge was prejudiced against defendant. The judge\u2019s wife is a different individual from the judge, and we will not ascribe another person\u2019s feelings, actions, or relationship, without more, to find actual prejudice on the part of the judge.\nDefendant points to no particular ruling on the part of the judge that shows that the judge had actual bias or prejudice towards defendant. Because nothing of record shows that defense counsel had proof of actual prejudice on the part of the judge either prior to or during defendant\u2019s trial, defense counsel was not ineffective for failing to move to substitute the judge either before or during the trial. Defendant was not prejudiced. Defendant\u2019s claim of ineffective assistance of counsel fails because it is not supported by the record. See Coleman, 183 Ill. 2d at 382. Because trial counsel was not ineffective for not moving in a more timely manner to substitute the judge, it follows that appellate counsel was not ineffective for not raising this issue. Because defendant has not met his burden of showing actual prejudice by the judge, the trial court did not err in denying defendant an evidentiary hearing on the issue concerning a recusal and substitution of the judge. See Coleman, 183 Ill. 2d at 381.\nDestruction of Exculpatory Evidence by Police\nDefendant asserts that he was denied due process of law because the Belleville police department acted in bad faith when it destroyed exculpatory evidence. Specifically, defendant claims that the police department removed his bicycle from its location near Tracy\u2019s car the night of Tracy\u2019s murder without documenting the location. Defendant also alleged that fingerprint evidence from Tracy\u2019s vehicle was not preserved. Defendant\u2019s argument in his brief only concerns his bicycle. Because defendant presents no argument concerning the fingerprints on Tracy\u2019s car, pursuant to Supreme Court Rule 341(e)(7) (188 Ill. 2d R. 341(e)(7)), this court need not consider this aspect of the issue. See People v. Hartfield, 232 Ill. App. 3d 198 (1992).\nDefendant contends that the location of his bicycle would support his version of events, i.e., that he was angry with Tracy that night, that he had obtained the knife with the \u201cintent\u201d of slashing Tracy\u2019s tires, that he was known for his proclivity to slash people\u2019s tires when he was angry, that he had no intent to stab Tracy when he entered the bar, that he approached her and she \u201clunged\u201d at him and grabbed the knife, and that in the ensuing struggle, Tracy was wounded. Therefore, defendant claims that the failure to photograph his bicycle near Tracy\u2019s car or to document the location of the bicycle in any police reports resulted in the destruction of exculpatory evidence. Again, defendant contends that his trial counsel was ineffective for not raising this issue at the trial or in a posttrial motion and that his appellate counsel was ineffective for not raising his trial counsel\u2019s failure.\nDefendant\u2019s claim is not supported by the record. Although defendant claims that the evidence concerning his bicycle would have supported his claim that he intended to slash Tracy\u2019s tires, there was no evidence presented showing that Tracy\u2019s tires had been slashed, and defendant\u2019s assertion in his postconviction petition is that he abandoned this intent when he arrived at Dundee\u2019s. It is irrelevant what defendant intended but did not do. The crucial fact is what defendant actually did: he stabbed Tracy in Dundee\u2019s in front of 25 to 30 witnesses. Further, although defendant claims that Tracy \u201clunged\u201d at him and that during the struggle she was stabbed, the record does not support his version of events. Witnesses testified that Tracy was sitting in a chair when defendant approached her. None of the witnesses testified that Tracy \u201clunged\u201d at defendant. All of the witnesses testified that defendant pushed Tracy to the floor from her chair. The witnesses also testified that defendant was on top of Tracy and that his arm was moving in an up-and-down motion indicative of defendant striking Tracy. Even if defendant had presented his version of events, such a version can best be described as incredible against the numerous eyewitnesses who testified otherwise.\nDefendant\u2019s claim is not supported by the evidence in the trial record, and defendant suffered no prejudice. Thus, his counsel was not ineffective for failing to raise the theory at trial, and defendant\u2019s claim fails. See Richardson, 189 Ill. 2d at 411. Similarly, because trial counsel was not ineffective for failing to object at the trial or raising the issue in a posttrial motion, appellate counsel was not ineffective. Because defendant\u2019s claim is not supported by the trial record or by affidavit, the trial court properly dismissed this claim without conducting an evidentiary hearing. See Coleman, 183 Ill. 2d at 381.\nSpoliation of Evidence\nSimilarly, defendant claims that the State spoliated evidence essential to his defense, i.e., the knife presented at the trial was wiped clean of fingerprints and blood. Additionally, defendant argues that his trial counsel was ineffective for not making a timely objection to the spoliation of the evidence and that appellate counsel was ineffective on direct appeal for not raising trial counsel\u2019s failure.\nThe evidence that defendant claims supports his spoliation argument is as follows. A crime scene report dated July 27, 1990, states that the knife recovered from the scene appeared to have a \u201csmall amount of reddish stain\u201d on the blade. The crime laboratory reports concerning the knife indicated that no detectable blood or latent fingerprints suitable for comparison had been found on the knife. Because the crime lab found no detectable evidence on the knife and the crime scene report indicated there was a small \u201creddish\u201d stain on the blade, defendant assumes that the State wiped the blade clean.\nAt the trial, defense counsel questioned the police officer in charge of the knife, Officer Rokita, whether the police had washed the knife before submitting it to the crime lab. Officer Rokita denied such an allegation. Defense counsel also called Dennis Aubuchon, the State crime lab\u2019s forensic examiner who analyzed the knife, to testify that he had found no blood on the knife. Lastly, defense counsel objected to the admission of the knife into evidence and to the testimony concerning the knife, on the basis that there was no conclusive evidence that the knife was the murder weapon. Trial counsel exerted every effort feasible to prevent the admission of the knife into evidence. Further, the jury was aware that there was no incriminating evidence on the knife itself, but it still resolved the matter against defendant.\nHowever, regardless of the crime lab\u2019s test results, the evidence was unrebutted that defendant had obtained a knife from Crehan\u2019s the night of the murder; that when he was lifted from the floor after stabbing Tracy, there was a knife underneath him; that the knife was identified at the trial by Judy Gamble, the barmaid at Crehan\u2019s, as the knife given to defendant the night of the crime; and that there was a proper chain of custody of the knife by the police. Again, defendant\u2019s claim in his postconviction petition is not supported by the record or by his affidavit. Trial counsel was not ineffective for not objecting to the spoliation of evidence or for failing to raise the issue in a posttrial motion, because the evidence would not support such a motion. Thus, defendant suffered no prejudice. See Richardson, 189 Ill. 2d at 411. Similarly, appellate counsel was not ineffective for failing to raise this issue on appeal, because the issue would have been without merit. The trial court did not err in failing to conduct an evidentiary hearing on this issue, because the claim was not supported by the record or an affidavit. See Coleman, 183 Ill. 2d at 381.\nFailure to Conduct a Fitness Evaluation and Hearing\nDefendant claims that the trial court should have ordered a fitness evaluation and hearing to determine his competence to stand trial because the trial record is replete with evidence that he was taking psychotropic medication both at the trial and at sentencing. Defendant asserts that if a timely fitness hearing had been conducted, it would have resulted in a finding that he was not competent to stand trial. Defendant also contends that his trial counsel was ineffective for not filing a motion for a fitness hearing to determine defendant\u2019s competence to stand trial and that his appellate counsel was ineffective for failing to raise trial counsel\u2019s ineffectiveness.\nAs defendant asserts, the record reflects that the court, defense counsel, and the State were aware that defendant was taking psychotropic medications at the time of the trial and sentencing and that defendant began taking these medications soon after he was placed in jail. Defendant stated in his affidavit attached to his postconviction petition that because of these medications he \u201cwas extremely sleepy and had geat [sic] difficulty concentrating, forming thoughts of [his] own, and comprehending what others said to [him].\u201d Defendant also cites to Monsignor Schwaegel\u2019s testimony that when he visited defendant, defendant was sometimes so groggy that communication with him was impossible.\nSection 104 \u2014 21(a) of the Code concerns taking psychotropic medications during the trial and the sentencing. 725 ILCS-5/104\u2014 21(a) (West 2000). At the time of defendant\u2019s trial in 1991, section 104 \u2014 21(a) stated, in pertinent part:\n\u201c(a) A defendant who is receiving psychotropic drugs or other medications under medical direction is entitled to a hearing on the issue of his fitness while under medication.\u201d HI. Rev. Stat. 1991, ch. 38, par. 104 \u2014 21(a).\nThe current version, applicable at the time of defendant\u2019s postconviction petition, states:\n\u201c(a) A defendant who is receiving psychotropic drugs shall not be presumed to be unfit to stand trial solely by virtue of the receipt of those drugs or medications.\u201d 725 ILCS 5/104 \u2014 21(a) (West 2000).\nThe change in the statute reflects the progress of the case law concerning this statute.\nThis issue is governed by the holding in People v. Mitchell, 189 Ill. 2d 312 (2000). In Mitchell, the supreme court determined that its prior holdings concerning a section 104 \u2014 21(a) fitness hearing were erroneous. Specifically, the supreme court stated that the holdings in People v. Nitz, 173 Ill. 2d 151 (1996), People v. Brandon, 162 Ill. 2d 450 (1994), and People v. Gevas, 166 Ill. 2d 461 (1995), that the taking of medications was equated with a bona fide doubt of a defendant\u2019s fitness and that a defendant was deprived of due process if he did not receive a fitness hearing when it was shown that he was taking psychotropic medication, were erroneous. Mitchell, 189 Ill. 2d at 330. The supreme court then held that section 104 \u2014 21(a) confers simply a statutory right and that the failure to conduct a fitness hearing simply because a defendant was taking psychotropic medications was not a violation of due process. Mitchell, 189 Ill. 2d at 329. Thus, the failure to conduct a fitness hearing because defendant was taking psychotropic medications did not violate his right to due process as he alleged in his postconviction petition. See Mitchell, 189 Ill. 2d at 329.\nHowever, the ineffective assistance of counsel is a constitutional issue that can be raised in a postconviction petition. As in Mitchell, at the time of defendant\u2019s trial, there was no case law that established that a court\u2019s failure to sua sponte order a section 104 \u2014 21(a) fitness hearing was a violation of defendant\u2019s due process rights. See Mitchell, 189 Ill. 2d at 332. Therefore, the trial court had no basis for sua sponte ordering a fitness hearing, and defendant\u2019s due process rights were not violated by the trial court\u2019s failure. Further, the court in Mitchell held that appellate counsel would have had no basis to raise the issue on appeal and that to do so would have been meritless, so appellate counsel was not ineffective for failing to raise this issue on appeal. Mitchell, 189 Ill. 2d at 333. The same is true for defendant in the case sub judice.\nHowever, as in Mitchell, we must still consider whether trial counsel was ineffective for failing to move for a fitness hearing under section 104 \u2014 21(a). To prevail on an ineffective-assistance-of-counsel claim for failing to file a motion for a fitness hearing, i.e., to show prejudice, it must be shown that if the defendant had received a hearing to which he was entitled, he would have been found unfit to stand trial. Mitchell, 189 Ill. 2d at 334.\nHere, the trial record does not support a finding that even if defendant had received a hearing concerning his fitness, he would have been found to be unfit. In his report, Dr. Cuneo, defendant\u2019s expert, indicates that at the time of his five interviews with defendant, defendant was oriented to person, time, and place, i.e., he knew who he was, knew where he was, and could correctly identify the day, month, and year. According to Dr. Cuneo, while in jail defendant reported hearing his children\u2019s voices but knew the voices were not real. Dr. Cuneo determined that defendant had impaired judgment at the time of the offense but that defendant was able to conform his conduct to the requirements of the law. Dr. Cuneo further stated in his report, \u201c[Defendant] did have the ability to know right from wrong and could have controlled his behavior if he so desired.\u201d Dr. Cuneo did not express an opinion on whether defendant was fit to stand trial.\nIn his report, Dr. Dinwiddie indicated that it was his opinion that defendant was competent to stand trial and was not insane at the time of the crime. Dr. Dinwiddle\u2019s report stated that defendant understood that he was charged with first-degree murder; that the possible penalties he could receive were from 20 years\u2019 to fife imprisonment or possibly the death penalty; that defendant understood the roles of the people in the courtroom {i.e., the judge, the State\u2019s Attorney, defense counsel, and the jury); that defendant knew that witnesses could be called to testify; that defendant knew his right to not incriminate himself; that he knew that he could plead guilty, not guilty, or not guilty by reason of insanity; and that defendant should be able to assist in his own defense.\nWhenever defendant was questioned in court by the trial judge, defendant\u2019s answers appeared coherent. The judge, prior to the trial, found there was no bona fide doubt of defendant\u2019s fitness. Given the above evidence, nothing in the record supports a finding that defendant was unfit to stand trial. Thus, defense counsel was not ineffective for failing to move for a fitness hearing pursuant to section 104 \u2014 21(a), because defendant suffered no prejudice. See Richardson, 189 Ill. 2d at 411. Similarly, appellate counsel was not ineffective for failing to raise the issue on appeal. See Johnson, 183 Ill. 2d at 187. Because the record does not support defendant\u2019s claim that his constitutional rights were violated by a failure to have a fitness hearing because he was taking psychotropic medications, the trial court did not err in failing to conduct an evidentiary hearing on this issue. See Coleman, 183 Ill. 2d at 381.\nTrial Counsel Withheld Evidence\nDefendant claims that his trial counsel was ineffective because counsel withheld exculpatory evidence from him during the court proceedings. Specifically, defendant contends that trial counsel withheld the crime scene report dated July 27, 1990, which stated that the knife had a \u201csmall amount of reddish stain\u201d; an evidence receipt dated August 3, 1990, which had questions on it about what the forensic examination should be; the forensic examiners\u2019 reports of August 6, 1990, and October 11, 1990, revealing their test results concerning the knife; and three April 4, 1991, photographs of defendant\u2019s bicycle.\nIf the prejudice prong of the two-prong test concerning ineffective assistance of counsel is not met, the defendant\u2019s claim that counsel was ineffective fails. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069. The trial evidence against defendant was overwhelming. The outcome of defendant\u2019s trial would not have been different. Further, trial counsel questioned witnesses thoroughly concerning the knife submitted into evidence. Defendant has not shown prejudice by counsel\u2019s alleged withholding of the stated evidence. Thus, defendant\u2019s claim that counsel was ineffective for allegedly withholding evidence from defendant fails. See Richardson, 189 Ill. 2d at 411.\nMotion to Reconsider Sentence\nDefendant also argues that his counsel was ineffective for failing to file a motion to reconsider sentence and that his appellate counsel was ineffective for failing to raise trial counsel\u2019s failure as an issue on direct appeal.\nIn People v. Reed, 282 Ill. App. 3d 278 (1996), aff\u2019d, 177 Ill. 2d 389 (1997), the appellate court noted that the statute requiring a postsentencing motion to preserve sentencing errors did not become effective until August 1993. Reed, 282 Ill. App. 3d at 280. In the instant case, defendant was sentenced in June 1991, before the statute changed. Therefore, because a postsentencing motion was not required to preserve sentencing issues at the time defendant was sentenced, it cannot be concluded that trial counsel was ineffective for not filing a motion to reconsider sentence. Because sentencing issues were not waived or lost by trial counsel\u2019s alleged failure, defendant suffered no prejudice. With no showing of prejudice, defendant\u2019s ineffective-assistance-of-counsel claim fails. See Richardson, 189 Ill. 2d at 411.\nDefendant also claims that appellate counsel was ineffective for not raising as an issue on appeal trial counsel\u2019s failure to file a motion to reconsider sentence. Since trial counsel was not ineffective, it follows that appellate counsel was not ineffective for failing to raise an issue of trial counsel\u2019s ineffectiveness.\nBecause defendant\u2019s claims of ineffective assistance of trial counsel and appellate counsel have no merit, the trial court did not err in not conducting an evidentiary hearing on this issue. See Coleman, 183 Ill. 2d at 381.\nCONCLUSION\nFor the foregoing reasons, the judgment of the circuit court of St. Clair County dismissing defendant\u2019s postconviction petition without an evidentiary hearing is affirmed.\nAffirmed.\nWELCH and GOLDENHERSH, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE HOPKINS" } ], "attorneys": [ "Timothy Hayden, of Centralia, appellant pro se.", "Robert Haida, State\u2019s Attorney, of Belleville (Norbert J. Goetten, Stephen E. Norris, and Rebecca E. McCormick, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY HAYDEN, Defendant-Appellant.\nFifth District\nNo. 5\u201400\u20140492\nOpinion filed March 26, 2003.\nRehearing denied April 29, 2003.\nTimothy Hayden, of Centralia, appellant pro se.\nRobert Haida, State\u2019s Attorney, of Belleville (Norbert J. Goetten, Stephen E. Norris, and Rebecca E. McCormick, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0298-01", "first_page_order": 316, "last_page_order": 334 }