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                               Appellate Court                            Date: 2017.08.16
                                                                          15:19:59 -05'00'




                    People v. Evans, 2017 IL App (1st) 150091



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            KEYWANI EVANS, Defendant-Appellant.



District & No.     First District, Second Division
                   Docket No. 1-15-0091



Filed              June 27, 2017
Rehearing denied   July 13, 2017



Decision Under     Appeal from the Circuit Court of Cook County, No. 13-CR-20680; the
Review             Hon. James B. Linn, Judge, presiding.



Judgment           Affirmed.


Counsel on         Michael J. Pelletier, Patricia Mysza, and Kieran M. Wiberg, of State
Appeal             Appellate Defender’s Office, of Chicago, for appellant.

                   Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
                   Miles J. Keleher, and Brian A. Levitsky, Assistant State’s Attorneys,
                   of counsel), for the People.



Panel              PRESIDING JUSTICE HYMAN delivered the judgment of the court,
                   with opinion.
                   Justices Neville and Mason concurred in the judgment and opinion.
                                               OPINION

¶1       After a bench trial, defendant Keywani Evans was convicted of one count of unlawful
     possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2012)) and sentenced to four
     years’ imprisonment. Evans appeals his conviction, arguing that he was denied a fair trial when
     the trial court asked the State to present more evidence after it had rested both its case-in-chief
     and its rebuttal case. In affirming the judgment of the trial court, we hold that the trial court did
     not abandon its role as neutral arbiter and assume the role of prosecutor by requesting to see
     evidence that the State did not produce in its case-in-chief.

¶2                                          BACKGROUND
¶3       Evans was charged with two counts of unlawful possession of a weapon by a felon (720
     ILCS 5/24-1.1(a) (West 2012)) and two counts of aggravated unlawful use of a weapon (720
     ILCS 5/24-1.6 (a)(1), (a)(2) (West Supp. 2013)). Evans waived a jury trial.
¶4       Officer Ron Bialata testified that, on September 10, 2013, he and his partner, Officer
     Dennis O’Brien, were patrolling the area of 82nd Street and South Coles Avenue in response to
     a homicide that occurred the day before. (The record reflects different spellings of “Bialata.”)
     While driving through the area, Bialata saw a man, whom he identified as Evans, walking in
     the street while looking at his cell phone. The man was wearing a “white track jacket.” Bialata
     drove past Evans but reversed so he and his partner could approach Evans. When O’Brien got
     out, Evans fled through a vacant lot. Bialata was able to see Evans for “a few seconds” before
     he ran off. O’Brien went after Evans on foot. Bialata initially tried to track Evans in the police
     cruiser but eventually left the cruiser and continued on foot. During the chase, Evans jumped
     over a fence and dropped his cell phone. He then scaled a second fence, at the top of which his
     white jacket got stuck. Evans jumped down to the other side, leaving his jacket snagged on the
     fence.
¶5       The officers were not able to catch Evans. But they recovered the jacket from the fence.
     When handling the jacket, Bialata felt a hard object in the right pocket. There he recovered a
     .32-caliber handgun, containing four live rounds of ammunition. From the left pocket, Bialata
     recovered a wallet. In the wallet was a state identification card bearing Evans’s name and
     picture, a Link card, and $24. The officers issued an investigative alert for Evans. On
     September 16, 2013, Bialata learned that Evans had been arrested and identified him as the
     person he saw jump the fence. On cross-examination, Bialata testified that he was able to view
     Evans for a few seconds before he ran from the officers.
¶6       Officer Christopher Maraffino testified that on October 16, 2013, he was assigned to
     respond to the area of 7555 South Langley Avenue to follow up on an active investigative alert
     for Evans. Maraffino and his partner conducted surveillance of the address and eventually saw
     Evans walking on the east side of South Langley Avenue. When the officers approached Evans
     and announced themselves, he ran into the building. Officers apprehended Evans and
     transported him to a police station.
¶7       The State entered into evidence a certified copy of Evans’s 2009 felony conviction for
     robbery and a self-authenticating document indicating that Evans did not have a Firearm
     Owner’s Identification (FOID) card. The State then closed its case-in-chief.



                                                   -2-
¶8          Evans moved for a directed finding, arguing that the identification of Evans was not
       reliable, as the officer viewed the individual only for a few seconds and the identification was
       not corroborated by physical evidence. The trial court denied the motion.
¶9          Evans testified that on the night of September 10, 2013, he was elsewhere than around
       South Coles Avenue. And on cross-examination, he stated that the white jacket, wallet, and his
       state identification card were not left at that location by him and the gun was not his.
¶ 10        After Evans rested his case, this exchange took place:
                    “THE COURT: Rebuttal?
                    [Assistant State’s Attorney]: State rest[s] in rebuttal.
                    THE COURT: I think I would like to see the wallet. Do you have it?
                    [Assistant State’s Attorney]: I do not, Judge. I’d have to have the officer bring it in
               from ERPS.
                    THE COURT: Is that something we can do today or something we would have to
               wait another day [sic]?
                    [Assistant State’s Attorney]: Let me check. He can go get it right now if you want.
                    THE COURT: Do you want [to] wait an hour today or tomorrow or another date?
                    [Defense attorney]: That’s the only thing you want to look at.
                    [Assistant State’s Attorney]: He’s [g]oing to bring the jacket too.
                    THE COURT: Well, I’d like to see the wallet. We [c]an get an hour or come back
               another date.
                    [Defense attorney]: My experience over the years is that an hour is a lot longer than
               that.
                    THE COURT: Tell me what you want to do.
                    [Defense attorney]: We can *** do it tomorrow.
                    THE COURT: 11:00 o’clock tomorrow. See you then.”
¶ 11        The following day, the trial court went on the record, saying “[w]e’re here in the midst of a
       trial and an issue came up about some evidence that was recovered and the State now has that
       evidence. Are you going to call a witness?”
¶ 12        The State recalled Officer Bialata, who again identified Evans as the man that he saw and
       pursued. He also identified a white track jacket as the jacket that Evans had been wearing
       before it got stuck on the fence that he was climbing. Further, Bialata identified a wallet as the
       wallet that he found in the pocket of the white track jacket and the items in the wallet—Evans’s
       state identification card, a Link card and bus card, and $24.
¶ 13        Evans moved to strike the officer’s rebuttal testimony, stating that “there wasn’t any
       testimony from [Evans] concerning the element that he wasn’t there.” The trial court denied
       the motion on the basis that the officer’s testimony “goes to [Evans’s] presence” because the
       officer originally stated he found a wallet with an identification card in the jacket with the
       weapon. The trial court went on to say, “[n]ow the ID is something relevant. I want to see it. I
       thought it was important. I’m not striking the testimony.”
¶ 14        Evans, in sur-rebuttal, testified that the wallet and state identification card belonged to him
       but that he had lost this wallet before September 10, 2013. For this reason, he had applied for a
       new state identification card and received one before September 10. Evans explained on
       cross-examination that his new identification was taken by officers when he was arrested and

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       that he lost his wallet while he was moving furniture into and out of his apartment. He also
       stated that the bus fare card did not belong to him.
¶ 15        After closing arguments, the trial court found Evans “guilty as charged.” The trial court
       noted that Evans was identified as the person running from the officers and that the jacket
       recovered after the chase contained a gun and “identification pieces that [Evans] acknowledges
       are his.” The trial court also stated that it did not find Evans’s testimony that he had lost his
       wallet to be credible but found the officers’ testimony both credible and “compelling beyond a
       reasonable doubt.”
¶ 16        Evans filed a motion for a new trial, arguing that “the Court allowed over [d]efendant’s
       objection the State to put into the trial evidence that was highly prejudicial rebuttal unrelated to
       [Evans’s] testimony in [his] case in chief.” The trial court denied Evans’s motion for a new
       trial and later sentenced Evans to four years’ imprisonment. (The mittimus reflects that the
       sentence was imposed on count I for unlawful use or possession of a weapon by a felon (720
       ILCS 5/24-1.1(a) (West 2012)). The information charged two counts of unlawful possession of
       a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2012)) and two counts of aggravated
       unlawful use of a weapon (720 ILCS 5/24-1.6 (a)(1), (a)(2) (West Supp. 2013)). On this
       record, it is unclear when or if the remaining three charges were dropped by the State or
       merged by the trial court.)

¶ 17                                             ANALYSIS
¶ 18       Evans appeals, arguing that he did not receive a fair trial because the trial court departed
       from the role of a neutral magistrate and took on the role of a prosecutor when it requested the
       State to present corroborating evidence (the wallet) after the State had closed both its
       case-in-chief and rebuttal case.
¶ 19       As an initial matter, the State argues that Evans has forfeited the issue by failing to make a
       timely objection at trial and by failing to make the same arguments in his motion for a new trial
       as he makes on appeal. Generally, an issue is forfeited if the defendant does not raise it in a trial
       objection and a written posttrial motion. People v. Abrams, 2015 IL App (1st) 133746, ¶ 49.
       We note that Evans did not object when the trial court granted a continuance so the State could
       bring in the wallet, nor object before or during Officer Bialata’s testimony in rebuttal. After
       Officer Bialata finished testifying, Evans moved to strike the testimony as improper rebuttal
       evidence. See Spurgeon v. Mruz, 358 Ill. App. 3d 358, 360 (2005) (“Timeliness requires that
       objections to evidence be made at the time the evidence is offered or as soon as grounds for the
       objection become apparent.”). In his motion for a new trial, Evans argues that “the Court
       allowed over [d]efendant’s objection the State to put into the trial evidence that was highly
       prejudicial rebuttal unrelated to [Evans’s] testimony in [his] case in chief.” On appeal, he
       argues that the trial court assumed the role of a prosecutor by requesting production of the
       wallet by the State.
¶ 20       Evans argues that the issue is not forfeited. First, citing People v. Heider, 231 Ill. 2d 1, 18
       (2008), Evans argues that a reviewing court can review “the same essential claim” on appeal if
       the issue is not “completely different” than the one raised at trial. In Heider, our supreme court
       held, “where the trial court clearly had an opportunity to review the same essential claim that
       was later raised on appeal, this court has held that there was no forfeiture.” Id.
¶ 21       Evans next cites People v. White, 249 Ill. App. 3d 57, 60 (1993), for the proposition that the
       forfeiture rule should be relaxed where the issue on appeal involves the trial court’s own

                                                     -4-
       conduct. This concept is known as the Sprinkle doctrine, as it arises from People v. Sprinkle, 27
       Ill. 2d 398, 401 (1963), in which our supreme court held that less rigid application of the
       forfeiture rule “should prevail where the basis for the objection is the conduct of the trial
       judge.” In the context of a bench trial, this less rigid forfeiture rule should be applied “when
       counsel has been effectively prevented from objecting because it would have ‘ “fallen on deaf
       ears.” ’ ” People v. Thompson, 238 Ill. 2d 598, 612 (2010) (quoting People v. Hanson, 238 Ill.
       2d 74, 118 (2010), quoting People v. McLaurin, 235 Ill. 2d 478, 488 (2009)). But our supreme
       court has also called for applying this exception only in “extraordinary circumstances, such as
       when a trial judge makes inappropriate remarks to a jury [citation] or relies on social
       commentary, rather than evidence, in sentencing a defendant to death [citation].” McLaurin,
       235 Ill. 2d at 488. And “[t]hat we have seldom applied Sprinkle to noncapital cases further
       underscores the importance of uniform application of the forfeiture rule except in the most
       compelling of situations.” Id.
¶ 22        In any event, forfeited issues can be considered under the plain error doctrine. The plain
       error doctrine allows us to consider unpreserved error when a clear or obvious error occurred
       and (i) the evidence is so closely balanced that the error alone threatened to tip the scales of
       justice against the defendant or (ii) the error is so serious that it affected the fairness of the
       defendant’s trial and challenged the integrity of the judicial process, regardless of the closeness
       of the evidence. People v. Nowells, 2013 IL App (1st) 113209, ¶ 18. Under either prong of the
       plain error doctrine, the burden of persuasion remains the defendant’s. People v. Lewis, 2014
       IL App (1st) 122126, ¶ 27. A reviewing court conducting plain error analysis must first
       determine whether an error occurred. People v. McGee, 398 Ill. App. 3d 789, 794 (2010)
       (“Without reversible error, there can be no plain error.”).
¶ 23        Whether or not we conclude that Evans forfeited the issue, the result would be the same, as
       we find no error.
¶ 24        Generally, a trial judge may aid in bringing out the truth in a fair and impartial manner.
       People v. Kuntz, 239 Ill. App. 3d 587, 591 (1993). Illinois courts have recognized that the
       proper function of a judge includes a duty to ensure that justice is done in criminal trials when,
       for instance, “ ‘ “a certain fact has not been developed or a certain line of inquiry has not been
       pursued,” ’ ” as long as the judge does not in any way become an advocate for one side or the
       other. People v. Taylor, 357 Ill. App. 3d 642, 648 (2005) (quoting People v. Rega, 271 Ill. App.
       3d 17, 23 (1995), quoting People v. Lurie, 276 Ill. 630, 641 (1917)).
¶ 25        To this end, a trial court may, sua sponte, call its own witnesses and question witnesses
       called by either party. Ill. R. Evid. 614(a), (b) (eff. Jan. 1, 2011). What a trial court may not do
       is assume the role of an advocate. People v. Smith, 299 Ill. App. 3d 1056, 1064 (1998). But, a
       suggestion that the State present evidence proving essential elements of an offense is not an
       assumption of the role of a prosecutor. People v. Robinson, 236 Ill. App. 3d 313, 317 (1992). A
       trial court has discretion to permit the State to reopen its case to present additional proof and
       may reopen a case on its own motion where a sound basis for it appears in the record. Kuntz,
       239 Ill. App. 3d at 591-92. The propriety of the judicial examination depends on the
       circumstances of each case and rests largely in the trial court’s discretion. Robinson, 236 Ill.
       App. 3d at 317.
¶ 26        We conclude that the trial court did not abandon its role as neutral arbiter and assume the
       role of a prosecutor. The trial court stated that it wanted to see the wallet and granted the State
       a continuance to admit the wallet into evidence. This was not an extraordinary course of action,

                                                    -5-
       and it was done in a fair and impartial manner. And, as this was a bench trial, the court
       possessed wide latitude, the question related to its fact-finding role, and the risk of prejudice to
       Evans was low. See Obernauf v. Haberstich, 145 Ill. App. 3d 768, 771-72 (1986).
¶ 27       Contrary to Evans’s argument, Kuntz is not “nearly identical.” In Kuntz, the appellate court
       found reversible error where the trial court sua sponte granted a continuance for the State to
       reopen its case. Kuntz, 239 Ill. App. 3d at 588. The defendant presented evidence in a hearing
       to rescind a summary suspension of his driver’s license that was sufficient to survive the
       State’s motion for a directed finding. Id. at 589. The State then presented an officer who
       testified that he pulled over the defendant after he saw his car twice cross the centerline. Id. On
       pulling the defendant over, the officer noticed that he smelled strongly of alcohol. Id. The
       officer took defendant to the station and administered a Breathalyzer test. Id. Crucially,
       however, the State rested without the officer testifying that he calibrated the machine before he
       tested the defendant, a necessary step for the State to lay a proper foundation of the test results.
       Id. at 589-90.
¶ 28       During his closing and rebuttal arguments, defendant argued that there was no evidence
       that the Breathalyzer machine had been calibrated or was properly working before the officer
       administered the test. Id. at 590. The trial court interrupted defendant’s rebuttal argument and
       sua sponte asked the State whether it wanted a continuance to present additional evidence. Id.
       A continuance was granted, and the next day the State presented evidence that the machine had
       been calibrated two weeks before defendant’s arrest and the machine had been “purged” with
       an air sample before defendant was tested. Id. With this evidence, the trial court denied the
       defendant’s motion to rescind the statutory summary suspension. Id.
¶ 29       The defendant appealed, arguing that it was an abuse of discretion for the trial court to
       sua sponte grant the State a continuance to reopen its case. Id. In reversing the trial court’s
       denial of the defendant’s motion to rescind summary suspension, the appellate court held,
       “[u]nder the circumstances,” the trial court “impermissibly acted as an advocate when he
       prompted the State to seek a continuance and present additional evidence the following day.”
       Id. at 592. The appellate court noted that “but for the court’s intervention, the State would have
       failed to rebut the defendant’s prima facie case and the petition to rescind the summary
       suspension would had to have been granted.” Id.
¶ 30       We find Kuntz distinguishable. Unlike in Kuntz, the trial court here did not decide after
       hearing Evans’s arguments that the State needed to present more evidence and then order the
       State to produce it. Rather, the trial court asked to see evidence before argument and, crucially,
       the wallet was not necessary to prove the State’s case. Although the identification in the wallet
       bolstered Officer Bialata’s testimony that the loaded gun was found in the jacket with the
       wallet belonging to Evans, his testimony alone was sufficient to establish that the items were
       found together. This evidence, coupled with Officer Bialata’s identification of Evans as the
       man who left the jacket behind, sufficed to support a finding that Evans, a convicted felon,
       possessed the gun and ammunition without a FOID card. The production of the wallet was not
       necessary to that determination. Unlike in Kuntz, the State would have made its case without
       the court’s intervention.
¶ 31       We find that the trial court did not abuse its discretion in requesting to see evidence that the
       State did not produce in its case-in-chief or abandon its role as neutral arbiter and assume the
       role of a prosecutor by requesting that the State produce the wallet.


                                                    -6-
¶ 32   Affirmed.




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