                                    2017 IL App (1st) 143902

                                          No. 1-14-3902

                                 Order filed November 30, 2017 

                                                                                     Fourth Division
______________________________________________________________________________

                                    IN THE

                        APPELLATE COURT OF ILLINOIS

                                FIRST DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,                          )   Appeal from the
                                                              )   Circuit Court of
        Plaintiff-Appellee,                                   )   Cook County
                                                              )
     v. 	                                                     )   No. 11 CR 14718
                                                              )
MITCHELL BARNES,                                              )   Honorable
                                                              )   Bridget Jane Hughes,
        Defendant-Appellant.                                  )   Judge Presiding.



        PRESIDING JUSTICE BURKE delivered the judgment of the court, with opinion.
        Justices McBride and Ellis concurred in the judgment and opinion.

                                           OPINION

¶1      Following a jury trial, defendant Mitchell Barnes was found guilty of home invasion and

robbery, then sentenced by the trial court to consecutive terms of imprisonment of 18 years and 5

years, respectively. On appeal, defendant contends that (1) he was denied the right to a fair trial

where the court prohibited him from presenting evidence of the victim’s prior convictions to

support his claim of self-defense, (2) the court displayed “antagonism and bias” toward defense

counsel in the jury’s presence, and (3) the court increased his mandatory minimum sentence by

finding that he caused great bodily harm to the victim, even though that issue was not presented

to the jury for a finding beyond a reasonable doubt. Defendant also contends that his sentence is
No. 1-14-3902

excessive in light of his youth, lack of criminal background, and rehabilitative potential. For the

reasons that follow, we affirm the judgment of the circuit court.

¶2                                     I. BACKGROUND

¶3                                      A. State Witnesses

¶4      William Mallette testified that on August 12, 2011, he was staying in room 251 at the

Homestead Suites hotel in Schaumburg, Illinois. That night, he left the hotel at 9 p.m. for dinner,

returned to the hotel to change his clothes, and then left the hotel again to go to a bar. He

returned to the hotel that night and smoked a cigarette in the hotel’s designated smoking area.

Three males, two black and one white, were also in the smoking area. They were discussing

drugs, but Mallette told them that he was too old for that. He went back into the hotel, taking his

money clip out of his pocket to retrieve his hotel keycard, and then returned to his room where

he fell asleep.

¶5      He was awakened later that night by “very aggressive” knocking on his hotel room door.

The person knocking told him through the door that the hotel was on fire. Mallette opened the

door to his room where he saw a tall, black male, who punched him in the head. Mallette was not

sure if the black male was one of the people he had seen earlier that night while he was smoking

outside. The black male rushed the door, and a white male entered the room behind him. The two

males attacked Mallette with a “barrage of punches.” Mallette testified that he was being hit so

hard and fast that he went to the ground to try to protect himself. The fight started in the kitchen

area of Mallette’s hotel room, but the two males dragged him into the living area where they

continued to punch and kick him.

¶6      The black male punched him in the ribs, face, and kidneys, and Mallette asked them what

they wanted. The black male told him that they were there to “rob and kill [him].” The white

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male pinned Mallette on his stomach while the black male kicked him in the ribs and stomped on

the side of his face. The black male then got onto the bed and then jumped off the bed onto

Mallette’s lower back. Mallette lost track of the white male, and the black male threw Mallette

onto the bed face down. The black male got on top of Mallette and put his arms around his neck

and tried to twist it. Mallette testified that he felt like the black male was trying to “rip [his] neck

off [his] body.” The black male told Mallette that, if he stopped fighting, he would snap his neck,

and it would be over.

¶7     Mallette tried to bite the black male’s arm, which startled him, and Mallette was able to

break free from the chokehold. Mallette punched the black male in the face and in the groin.

However, the black male was able to put Mallette back into a chokehold and continued trying to

break his neck. Mallette lifted the black male up onto his back and tried to run through the

nearby window, but he did not make it out. The black male continued punching Mallette and

then threw him facedown onto the bed. The black male stood on top of the back of Mallette’s

head and neck and pushed off the ceiling, forcing Mallette’s face down into the mattress with his

foot. Mallette lost consciousness.

¶8     When he regained consciousness, there was no one else in the room. He called the front

desk of the hotel and the police and stated that he was in excruciating pain, could barely move,

and believed his lung was punctured. The police and paramedics transported him to the hospital,

where he stayed for one week. He discovered that his wallet, credit cards, driver’s license, and

cash were missing from his room. He testified that he has constant back pain as a result of the

injuries he suffered that night.

¶9     On cross-examination, Mallette stated that he did not have any drugs in his system on the

night of the incident but acknowledged that he drank several beers at dinner and at the bar that


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night. He denied offering defendant money for oral sex and denied touching any of the three

males he saw outside while he was smoking a cigarette before the incident. He further stated that

he had complained to the hotel management several times about the three males because they

would smoke marijuana and drink beer in the hotel.

¶ 10   Joseph Stein testified that there were charges pending against him in relation to the

incident with Mallette and that, in exchange for his testimony, he was agreeing to plead guilty to

a charge of robbery and all other charges against him would be dismissed and the State would

recommend a sentence of six years with boot camp. He testified that in August 2011 he was

homeless and was friends with Joseph Pinsel, who lived at the Homestead Suites in Schaumburg.

He testified that he would visit Pinsel at the Homestead Suites, where they would hang out with

Gerard Golston and defendant, who were both students at Harper College. On August 12, 2011,

he and Golston went to the Homestead Suites around 6 p.m. to visit Pinsel. They were drinking

alcohol and smoking marijuana in Pinsel’s room and then went outside to smoke cigarettes.

Golston and Stein testified that while they were in the hotel’s designed smoking area, Mallette

approached them.

¶ 11   Stein testified that Mallette made “racial remarks” toward Golston and then put his arms

around Stein and hold him that he was cute. Golston could not hear what Mallette said about

him, but saw him touching Stein. Stein told Mallette to leave him alone and that he was a

homophobe. Mallette asked Pinsel if he knew where he could get any cocaine and then showed

the group some cash in a money clip. Mallette went back into the hotel, and Stein, Pinsel, and

Golston returned to Pinsel’s room. Defendant joined them in Pinsel’s room, and Pinsel told him

about the money clip and said that he wanted to try to steal it. Golston testified, however, that it

was defendant’s idea to steal the money clip and that defendant was the first person to suggest


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robbing Mallette. Defendant started to formulate a plan to steal the money clip whereby

defendant would knock on Mallette’s hotel room door and tackle or hit him when he opened the

door. Then, Golston would go into the room and take the money clip while Stein waited outside

in case defendant needed help with Mallette. Pinsel was supposed to stay in the hallway and be a

lookout.

¶ 12   Defendant and Stein left the room, but Golston testified that he and Pinsel stayed in the

room because Golston did not want to take part in the plan. Once Golston saw defendant knock

on Mallette’s door, Golston ran out of the hotel and went to the convenience store across the

street. Stein testified that he was behind a wall when defendant knocked on the door, but after

Mallette opened the door, Stein testified that he heard a “boom,” as if defendant had tackled

Mallette. Stein entered the room and saw defendant and Mallette fighting. Defendant was

punching Mallette in the face and ribs and then started choking him. Stein grabbed the money

clip from the kitchen counter and told defendant to leave with him. Defendant did not stop

choking Mallette, however, and told Mallette that he was going to kill him. Stein ran outside to

the parking lot, and defendant came out 45 minutes later wearing different clothes and shoes.

Defendant told Stein that he changed clothes because he had blood on the clothes he had been

wearing. He also told Stein that he was not sure if he killed Mallette or if he just hurt him badly.

Stein observed that defendant had swollen knuckles and a bite mark on his arm.

¶ 13   Stein and defendant drove to a gas station and tried to use a credit card from Mallette’s

money clip to buy gas, but the card did not work. They then went to Denny’s and used a debit

card from the money clip to pay for their meal. When they returned to the Homestead Suites,

they saw a police vehicle or ambulance in the parking lot, so they parked in the parking lot

across the street from the hotel. They returned to the Homestead Suites after the emergency


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vehicle left, and Stein returned to Pinsel’s room while defendant went back to his own room.

Golston testified that later that night police officers knocked on Pinsel’s hotel room door and

they spoke to the officers. Golston further testified that the next day he saw defendant with

Mallette’s money clip. On cross-examination, Stein testified that after they saw Mallette outside

in the smoking area, Stein went to his room to apologize for telling him that he was a

homophobe. Stein stated that this was Pinsel’s idea because Pinsel wanted to see if he could see

the money clip inside the room so that they could steal it.

¶ 14   Schaumburg police officer Jim Hackett testified that on August 13, 2011, at 4:45 a.m., he

was assigned to a battery at the Homestead Suites hotel. When he arrived, he observed two

officers and paramedics were already with Mallette in room 251. He spoke with Mallete for less

than one minute and, as a result of the conversation, went to speak with the occupants of room

254. He spoke to Mallette later that day in the hospital and noticed injuries to his face and legs.

On cross-examination, Officer Hackett stated that Mallette told him he had “contact” with two

black males and one Hispanic male, but the 911 call said three black males had been involved in

the incident. He also stated that Mallette told him that “the black guy in room 254 just kicked my

ass.” Officer Hackett stated that he had an issue with Mallette’s timeline of the events because

Mallette told him the attack occurred 20 minutes before the 911 call at 4:45 a.m. but also said

that the attack occurred between 1:30 and 1:50 a.m.

¶ 15   Dr. Elizabeth Schupp was qualified as an expert in the field of critical care medicine and

pulmonary medicine and testified that she treated Mallette at the hospital on August 13, 2011.

She noted that he was having trouble moving his lower extremities and complained of chest pain.

Mallette told her that he had been assaulted in a hotel room, and she observed that he had the

imprint of the sole of a shoe near his right ear. He repeated the version of events as recounted in


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his testimony but told Dr. Schupp he had lain still on the ground because he thought the two men

would leave if he played dead and did not tell her that he lost consciousness. Dr. Schupp took an

X-ray of his chest and discovered a partially collapsed lung. Dr. Schupp could tell from the X-

ray that Mallette had previously sustained injuries to the right side of his chest and collarbone,

but he had recovered from those injuries.

¶ 16   Dr. Schupp noted that although Mallette denied drug use, his drug screen tested positive

for opiates. Dr. Schupp opined that the positive drug screen could be explained by the fact that

the paramedics gave Mallette a Fentanyl IV in the ambulance. Dr. Schupp took Computerized

Tomography (CT) scans of Mallette’s chest and back. She observed a contusion to his right lung

and fractures of the transverse L2 and L3 lumbar spine. Dr. Schupp testified that a lot of force,

200 or 300 pounds of force, is required to fracture the transverse spine. The chest CT also

showed a deflation of the right lung and three rib fractures. 1 Dr. Schupp also took a CT scan of

Mallette’s neck, which showed a fracture of the thyroid cartilage. Dr. Schupp testified that the

thyroid cartilage can be fractured when someone tries to choke another person. She also testified

that fractured thyroid cartilage is a very rare injury because it takes a lot of force to fracture the

cartilage. Dr. Schupp explained that a fractured thyroid cartilage can be a life-threatening injury.

¶ 17   Dr. Schupp learned that Mallette was HIV positive but did not believe his HIV status had

any effect on his injuries. She testified that she did not see very many people with the level of

trauma Mallette exhibited. She testified that she was particularly “impressed” with the fact that

Mallette had the imprint of a boot mark on his cheek because it meant that someone had stepped

down on him with a lot of force while he was lying down. She further testified that the


       1
          Dr. Schupp also observed two old rib fractures on Mallette’s CT scan that she testified were a
result of a motor vehicle accident Mallette had been injured in before the incident.

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information Mallette provided her about the incident was “very consistent” with the injuries he

exhibited. On cross-examination, Dr. Schupp acknowledged that at the time he arrived at the

hospital, Mallette’s blood alcohol concentration was 0.162, well above the legal limit of 0.08.

¶ 18   Schaumburg police sergeant Greg Klebba testified that he was previously a detective with

the criminal investigations bureau and was assigned to investigate the incident at issue in this

case. He read the reports of officers who had previously worked on the case and then began

looking for Mallette, defendant, and Pinsel. He spoke to Mallette at the hospital with his partner,

Detective Tillema. He then went to the Homestead Suites, where he learned that defendant and

Pinsel had been asked to leave the hotel. He went to defendant’s room and found a pair of high

top shoes with a red stain on them that Sergeant Klebba thought could have been blood. The

blood was later swabbed and sent to the Illinois State Police Crime Lab for testing in conjunction

with a buccal swab from Mallette. The testing showed that the blood on the shoes was consistent

with having originated from Mallette.

¶ 19   Sergeant Klebba learned that Pinsel was staying at another hotel in Hanover Park.

Another detective interviewed Pinsel, and while he did, Stein arrived. Both Stein and Pinsel were

taken to the Schaumburg police department, where Stein gave a statement to police. Pinsel

returned to the Schaumburg police department a few days later, and Sergeant Klebba learned that

defendant was staying at 5628 South Michigan Avenue in Chicago.

¶ 20   Sergeant Klebba and a team of officers and U.S. Marshals followed Pinsel to that

address. Sergeant Klebba observed defendant enter Pinsel’s vehicle, and U.S. Marshals

surrounded the vehicle. Sergeant Klebba arrested defendant and took him to the Schaumburg

police department. On cross-examination, Sergeant Klebba acknowledged that Mallette told him




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that he was unconscious after the attack and that Officer Hackett’s report of the incident was not

accurate.

¶ 21   Assistant State’s Attorney (ASA) Michael O’Malley testified that he met with defendant

at the Schaumburg police department on the evening of August 18, 2011. He gave defendant his

Miranda warnings, and defendant agreed to speak with him. Defendant’s account was

memorialized in a typewritten statement, which ASA O’Malley typed while defendant was

sitting next to him. ASA O’Malley testified that defendant reviewed the completed statement and

was able to make corrections, which were marked by defendant’s handwritten initials. ASA

O’Malley then published defendant’s statement to the jury.

¶ 22   In the statement, defendant acknowledged that he was smoking marijuana and drinking

alcohol in Pinsel’s hotel room with Golston and Stein on the night of the incident. Stein and

Pinsel told him that a “gay guy” (Mallette) had hit on Stein and said racist remarks to Golston.

Defendant also learned from them that Mallette had $500 in cash in a money clip and that he was

staying in the hotel room across the hallway from Pinsel’s room. Defendant stated that everyone

started talking about robbing Mallette and the plan was that defendant would knock on the door

and when Mallette opened the door, he and Stein would hold him or knock him out. Golston

would then enter the room and grab the money, and Pinsel would be the lookout.

¶ 23   Defendant knocked on Mallette’s hotel room door, and when Mallette answered,

defendant grabbed him, tackled him into the room, and put him into a chokehold, but Mallette

did not pass out. After a few minutes, Stein entered the room and kicked Mallette while

defendant was choking him. Stein grabbed something from inside the room, but defendant could

not see what it was. Stein then left the room, but defendant kept choking Mallette. Mallette tried

to bite him, so defendant briefly released him but then put him into another chokehold. Mallette


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then tried to grab defendant’s crotch, and defendant “freaked out” because he had been sexually

assaulted by his brother when he was younger. Defendant worried that he could not leave

Mallette conscious, so he clasped his hands together and slammed them down on the back of

Mallette’s neck and then started elbowing Mallette’s spine. Defendant told him that he was going

to knock him out and kept kicking and punching him while Mallette was on the floor. Defendant

then stomped on Mallette’s spine with the heel of his right foot “because [the heel] is the hardest

part of the foot.” Defendant also stomped on Mallette’s head with his heel. Mallette stopped

moving, and defendant left the room.

¶ 24   Defendant stated that the fight lasted about 30 minutes and, after he left Mallette’s hotel

room, he went back to his own room and changed his clothes, including the red shoes he had

been wearing during the fight. Defendant was worried he might have killed Mallette. After

changing clothes, he met up with Stein, and the two of them went to a gas station. They tried to

use the credit cards from Mallette’s money clip to pay for gas, but the cards did not work. They

then went to Denny’s and used one of the debit cards to pay for their food. Defendant stated that

Stein signed the receipt.

¶ 25                                   B. Defense Witnesses

¶ 26   Schaumburg police officer Troy Stanley testified on behalf of defendant that on August

13, 2011, he responded to a battery at the Homestead Suites hotel. There, he spoke with Mallette,

who told him that, after he heard a knock at his hotel room door, he looked though the peephole

and recognized a black male he had been smoking with outside earlier that night. He opened the

door, and the black male began punching him and demanded $1000. Officer Stanley

acknowledged that Mallette did not say anything about the black male choking him or trying to

break his neck. Mallette told Officer Stanley that the black male left the room after kicking him.


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No. 1-14-3902

On cross-examination, Officer Stanley stated that he was the first officer on the scene and arrived

before the paramedics. He also acknowledged that when he arrived, Mallette was bleeding and in

obvious pain.

¶ 27   Michael Hansen, a firefighter and paramedic for the village of Schaumburg, testified that

he treated Mallette before he was taken to the hospital. Hansen testified that Mallette told him

that he was assaulted by three people in his hotel room but did not mention anyone choking him

or trying to break his neck. Hansen noted that Mallette had swelling and a boot print on his face.

On cross-examination, Hansen stated that he gave Mallette a Fentanyl IV in the ambulance,

which is an opiate, and that Mallette complained of pain in his chest and back.

¶ 28   Defendant testified that in August 2011 he was attending Harper College in Palatine,

Illinois. He attended the college on a full-time sports and educational scholarship, and his father

paid the remainder of his expenses. Harper College did not have dorms but had an arrangement

with the Homestead Suites to offer Harper College students discounted rates. On August 12,

2011, he was speaking with Stein at the Homestead Suites, and as a result of their conversation,

defendant went to room 251 at the hotel. He knocked on the door, and Mallette opened it and

told him to come in. Mallette said “you finally made it,” but defendant had never seen Mallette

before. Mallette told defendant to “show [him] something,” and defendant removed his shirt.

Mallette started walking around and touching defendant.

¶ 29   Mallette then asked defendant to perform oral sex on him, and defendant agreed, but then

Mallette changed his mind and asked if defendant would have anal sex with him. Mallette told

defendant that if he did not want to, he would pay him to do so, but defendant stated that he did

not need any money. Mallette asked defendant if he would consider having sexual intercourse

with him without using a condom, but defendant said that he would not. Defendant started to


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leave, and Mallette asked him why he came up to his room. Mallette then grabbed defendant on

the arm and asked him where he was going. Defendant pushed Mallette in the chest, and Mallette

grabbed defendant’s neck and told him to get on the bed. Defendant testified that this interaction

brought back memories of when he was raped by his older brother when he was 10 years old.

¶ 30   Defendant was afraid Mallette was going to rape him, so he punched him in the nose.

Defendant kept punching him and fighting with him and was eventually able to leave the room.

Defendant called Stein, and the two of them went to Denny’s. Stein paid for their meal, and

defendant testified that he believed Stein had used his own credit card to pay. Defendant was

arrested on August 18, 2011, and taken to the police station.

¶ 31   The officers at the police station told defendant that he could go home if he signed a

statement admitting that he committed a robbery with Stein and Pinsel, but defendant refused to

sign the statement. Defendant testified that he was interviewed by multiple officers and

eventually an ASA walked into the interview room with a statement saying that defendant had

robbed and attacked Mallette. Defendant had not seen the statement before and did not agree

with its contents but signed it anyway because he thought he would be able to leave if he did so.

On cross-examination, defendant acknowledged that he did not call police after the incident with

Mallette.

¶ 32                                C. Verdict and Sentencing

¶ 33   Following closing argument, the jury found defendant guilty of home invasion and

robbery. At the subsequent sentencing hearing, defense counsel argued in mitigation that

defendant had no criminal background and noted defendant’s potential for rehabilitation based

on his supportive family. Defense counsel also pointed out defendant’s age, 22 years old at the

time of sentencing, and the fact that he was attending college at the time of offense. Defense

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counsel also noted defendant’s “troubled background,” which included being put up for adoption

by his birth parents and being molested at a young age by his older brother. Defense counsel also

acknowledged that, for purposes of sentencing, the court would have to determine whether

Mallette suffered great bodily harm and noted that, although the injuries in this case were severe,

they were not permanent. In aggravation, the State focused on Mallette’s injuries as detailed by

Dr. Schupp and contended that based on her testimony defendant caused serious harm, which

was a factor the court should consider.

¶ 34   In sentencing defendant, the court noted that it found the testimony of Dr. Schupp to be

particularly significant. The court noted that it already made a finding that Mallette suffered

great bodily injury, which allowed the court to consider home invasion as a triggering offense to

the robbery, so that the terms of imprisonment could be imposed consecutively. The court stated

that it had reviewed all the statutory factors in mitigation and aggravation. The court found that

“one of the most significant” factors in aggravation was the injuries to Mallette. The court also

found that defendant’s lack of criminal background was “the significant factor” in mitigation.

The court thus sentenced defendant, as a Class X offender, to consecutive terms of imprisonment

of 18 years for home invasion and 5 years for robbery, to be served at a minimum of 85% instead

of 50% time because of the court’s finding that defendant had caused great bodily harm to

Mallette. In denying defendant’s motion to reconsider his sentence, the court found the fact that

defendant caused great bodily harm was shown by the evidence.

¶ 35                                      II. ANALYSIS

¶ 36   On appeal, defendant raises four contentions. First, he asserts that the trial court erred in

prohibiting him from supporting his claim of self-defense by introducing evidence of Mallette’s

prior convictions for violent acts. Defendant also asserts that the court’s “antagonism and bias”


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against defense counsel in front of the jury deprived defendant of a fair and impartial trial where

the case was a “credibility contest” between defendant and the State’s witnesses. Defendant

further maintains that the court erred in finding that he caused great bodily harm to Mallette and

increasing his mandatory minimum sentence where that fact was not submitted to the jury and

found beyond a reasonable doubt. Finally, defendant contends that his sentence is excessive in

light of his young age, lack of criminal background, and other mitigating factors that demonstrate

his rehabilitative potential.

¶ 37                             A. Mallette’s Prior Convictions

¶ 38    Defendant first contends that the court erred in prohibiting him from supporting his

theory of self-defense by introducing evidence of Mallette’s prior convictions for violent acts.

Defendant asserts that his defense at trial was that it was Mallette who initiated the fight after

defendant refused his sexual advances and defendant injured Mallette while attempting to protect

himself. Defendant intended to support his defense, pursuant to People v. Lynch, 104 Ill. 2d 194

(1984), with evidence of Mallette’s prior criminal convictions from 1991 for battery and for

resisting arrest.

¶ 39                                  1. Standard of Review

¶ 40    A trial court’s ruling regarding the admission of evidence will not be reversed on appeal

absent an abuse of discretion. People v. Becker, 239 Ill. 2d 215, 234 (2010). A court abuses its

discretion where its decision is arbitrary, fanciful, or unreasonable, or where no reasonable

person would adopt the view taken by the trial court. Id.

¶ 41                                   2. People v. Lynch

¶ 42    Where a defendant raises a theory of self-defense, he may offer evidence of the victim’s

aggressive or violent character under one of two circumstances. Lynch, 104 Ill. 2d at 199-200. If

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the defendant knew of the victim’s violent character or prior criminal acts, the evidence may be

offered to support the defendant’s contention that he reasonably believed the use of force in self-

defense was justified. Id. at 200. That circumstance is not present in this case, as defendant never

claimed to be aware of Mallette’s criminal record prior to the incident in question. A defendant

may also present evidence of the victim’s violent character where there are conflicting witness

accounts about how the events in question transpired and the evidence proffered by the defendant

serves to bolster his claim that the victim was the initial aggressor. Id. Defendant asserts that this

second prong of Lynch applies in this case. Evidence under the second prong of Lynch is

admissible only if it constitutes “reasonably reliable evidence of a violent character.” Id. at 201.

This court has held that the supreme court in Lynch “stopped short of holding that refusal to

admit such evidence [of the victim’s prior convictions for violent crimes] is per se prejudicial

and, thus, preserved the trial court’s discretion to exclude it based upon the facts of each

case.” People v. Armstrong, 273 Ill. App. 3d 531, 534 (1995).

¶ 43                              3. Mallette’s Prior Convictions

¶ 44   Prior to trial, defendant filed a motion in limine, which contained his contentions

pursuant to Lynch. This motion, however, is not included in the record filed on appeal.

Nonetheless, our review of this issue is not hindered where there is sufficient information to

support the trial court’s ruling included in the report of proceedings. The court discussed the

prior convictions with defense counsel and the State prior to trial and instructed defense counsel

to get more information about the convictions but noted that the convictions occurred 21 years

before the incident. The court therefore granted the State’s request that defense counsel be

precluded from mentioning Mallette’s prior convictions in opening statements so that the court

could determine how relevant and probative the convictions were.


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¶ 45    Prior to cross-examining Mallette, the court held a sidebar outside the presence of the

jury where defense counsel informed the court about the circumstances leading to Mallette’s

convictions for resisting arrest and battery. 2 The two offenses precipitating the convictions

occurred “four or five days apart from each other” and were pled together. The complaint alleged

that police officers arrived at an apartment in response to a fight in progress between two male

subjects. The officers knocked on the apartment door, and Mallette answered and started yelling

at the officers. The officers attempted to enter the apartment, and Mallette closed the apartment

door on one officer’s hands. The officers then entered the apartment to handcuff Mallette, and he

“resisted some more.”

¶ 46    After hearing argument from both defense counsel and the State, the court ruled that it

was going to exclude the evidence of the prior convictions “simply on the basis that [they were]

21 years old.” The court noted that although there was battery against a police officer, the “sole

reason” the court was excluding the evidence of the prior convictions was the “remoteness in

time from the date that the incident [in this case] occurred and the date that [Mallette] was

convicted of [the prior] offense.” Defense counsel asked the court if length of time was another

element of Lynch, but the court stated that it was within its discretion to not allow the prior

convictions in as evidence. Following Mallette’s testimony, the court clarified its ruling, stating

that it did not allow evidence of the prior convictions to be presented to the jury because the only

evidence that had been presented at trial so far was Mallette’s testimony, which did not include

any indication that defendant acted in self-defense. The court also noted that the court in Lynch

        2
          We note that the State and defense counsel disagreed over whether the prior conviction was for
“straight battery” or for domestic battery. Defense counsel asserted that the complaint charged Mallette
with domestic battery, and in his brief before this court, defendant asserts that the prior conviction was for
domestic battery. The State maintains that the victim was a police officer and, therefore, the charge must
have been for battery. We find the distinction is not relevant to either the trial court’s ruling on this issue
or to our review of the court’s ruling.

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discussed the timing of the prior convictions, noting that the prior convictions in that case were

“very recent” in relation to the incident at issue. Accordingly, the court observed that because the

supreme court in Lynch considered the length of time that had passed since the prior convictions,

the trial court could do so as well in this case.

¶ 47                                 4. Remoteness Under Lynch

¶ 48    Defendant now contends that the court erred in excluding evidence of Mallette’s prior

convictions solely on the basis of their remoteness in time. Defendant asserts that the passage of

time is not a relevant consideration in determining whether to admit evidence pursuant to Lynch

and that it was proper for him to present evidence of Mallette’s violent character through the

prior convictions to support his claim that Mallette was the initial aggressor. Defendant

maintains that the age of the convictions is a consideration for the jury in determining the weight

of the evidence, rather than a consideration for the court in determining the admissibility of the

evidence.

¶ 49    Contrary to defendant’s contentions, in interpreting Lynch, both this court and our

supreme court have implicitly recognized that remoteness in time is a valid consideration in

determining whether it is reasonable for the trial court to allow the admission of evidence

pursuant to Lynch. See, e.g., People v. Morgan, 197 Ill. 2d 404, 455-57 (2001) (finding that the

court did not err in excluding Lynch evidence on the grounds of remoteness of the prior

conviction); People v. Ellis, 187 Ill. App. 3d 295, 301-02 (1989) (excluding evidence of a

victim’s prior convictions because the conviction occurred more than 10 years before the

defendant’s trial). Although defendant contends that neither Morgan nor Ellis stand for the

proposition that a circuit court may consider remoteness in time in determining admissibility

under Lynch, we decline to adopt defendant’s narrow reading of these cases.


                                                    - 17 ­
No. 1-14-3902

¶ 50   In Morgan, the supreme court noted that it failed to see how the testimony of a witness’s

childhood from “many years earlier” was relevant to the claim of self-defense. Morgan, 197 Ill.

2d at 457. Likewise, in Ellis, this court noted that under both Lynch and People v. Montgomery,

47 Ill. 2d 510, 516-19 (1971), “the court could have also excluded the admission of the victim’s

1972 conviction because it occurred more than 10 years before the trial in this matter.” Ellis, 187

Ill. App. 3d at 301-02. Although the court in Ellis was discussing the evidence under both the

Montgomery standard, which has an explicit 10-year limitation period, and the Lynch standard,

there is nothing in the decision to suggest that the remoteness analysis applied solely to the

evidence under Montgomery, as defendant suggests, and not under both standards.

¶ 51   Defendant, nonetheless, relies on People v. Gibbs, 2016 IL App (1st) 140785, ¶ 34, where

this court affirmed the trial court’s decision to allow the defendant to present evidence of the

victim’s 14-year-old conviction for domestic violence via stipulation. The defendant in Gibbs

sought to question the victim on cross-examination regarding the prior conviction, but the trial

court required the prior conviction to be introduced via stipulation only. Id. In affirming the trial

court’s ruling, this court found that the “[t]he trial court certainly could have exercised its

discretion to allow limited questioning of [the victim], but given the age of the conviction and its

factual dissimilarity to the charge in this case, it was likewise appropriate to address the matter

via stipulation.” (Emphasis added.) Id. Thus, although the court in Gibbs affirmed the trial

court’s ruling to allow admission of the evidence, the court also acknowledged that the age of the

conviction was a relevant factor for the trial court to consider in determining how the evidence

should have been presented at trial. The court also recognized that these considerations are

within the discretion of the trial court and the trial court’s ruling on these matters should not be

reversed absent an abuse of that discretion. Id. ¶ 33 (citing People v. Coleman, 347 Ill. App. 3d


                                               - 18 ­
No. 1-14-3902

266, 269 (2004)). Thus, the court deferred to the trial court’s discretion and affirmed its ruling

based on the specific factors present in that case. We find the same deference is warranted here.

See Armstrong, 273 Ill. App. 3d at 534.

¶ 52    Moreover, although the trial court in this case stated that its ruling was based solely on

the remoteness in time, we observe that the court also could have excluded the evidence of

Mallette’s prior convictions because of its lack of relevance. 3 Although the evidence may have

indicated that Mallette had a lack of respect for police officers or had the capacity to act

insolently, it did not indicate that Mallette was physically violent toward others. There was no

evidence that Mallette intentionally tried to attack the officers—the battery apparently occurred

when Mallette slammed the door on the officer’s hand—or anyone else or even threatened

violence. There was no evidence presented regarding the “fight in progress” between Mallette

and the other individual at his apartment. Thus, the proffer did not constitute reasonably reliable

evidence of Mallette’s violent character as required for admissibility under Lynch. Lynch, 104 Ill.

2d at 201. Accordingly, we cannot say that the trial court’s decision to preclude admission of

Mallette’s prior convictions was so arbitrary or fanciful that it constituted an abuse of the trial

court’s discretion. Because we find that the court did not err in excluding this evidence, we need

not address defendant’s contention that the court’s error was not a harmless error. See People v.

Nash, 2012 IL App (1st) 093233, ¶ 33.




        3
         Although the trial court did not rely on the lack of relevance of the prior convictions in
precluding defendant from introducing them as evidence, we note that we may affirm the trial court’s
ruling on any basis apparent from the record, regardless of whether it was relied upon by the trial court.
See People v. Gumila, 2012 IL App (2d) 110761, ¶ 56.

                                                  - 19 ­
No. 1-14-3902

¶ 53                                 B. The Trial Judge’s Bias

¶ 54   Defendant next contends that the trial judge’s “antagonism and bias” toward defense

counsel in front of the jury denied him a fair and impartial trial, where the case was a “credibility

contest” between defendant and the State’s witnesses and the trial judge’s comments to defense

counsel damaged defendant’s credibility in the eyes of the jury. Defendant asserts that following

an exchange outside of the jury’s presence, the trial judge displayed antagonism toward defense

counsel during defendant’s testimony. Defendant maintains that the trial judge’s “repeated[ ]

berating” of defense counsel in front of the jury was highly prejudical and suggested to the jury

that defendant’s testimony was not truthful.

¶ 55                                       1. Forfeiture

¶ 56   Initially, we observe that defendant has forfeited this issue for review. In order to

preserve an issue for appeal, defendant must specifically object at trial and raise the specific

issue again in a posttrial motion. People v. Woods, 214 Ill. 2d 455, 470 (2005). In this case,

defendant neither objected at trial, nor raised the issue in a posttrial motion. Defendant

acknowledges the forfeiture, but contends that we should review this issue under plain error.

¶ 57                                        Plain Error

¶ 58   The plain error rule allows a reviewing court to consider unpreserved claims of error

regardless of forfeiture. People v. Thompson, 238 Ill. 2d 598, 613 (2010). Plain error applies

when there is a clear or obvious error and the evidence is so closely balanced that the error would

change the outcome of the case or when there is a clear or obvious error that is so serious that it

affected the fairness of defendant’s trial. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007).

Defendant contends that both prongs of the plain error analysis could apply to our review of this

issue. The first consideration in addressing defendant’s plain error argument is determining

                                               - 20 ­
No. 1-14-3902

whether an error occurred, which requires a “ ‘ “substantive look” ’ ” at the issue. People v.

Hudson, 228 Ill. 2d 181, 191 (2008).

¶ 59                                   2. Standard of Review

¶ 60   Every defendant, regardless of the nature of the proof against him, is entitled to a trial

that is free from improper and prejudicial comments on the part of the trial judge. People v.

Stokes, 293 Ill. App. 3d 643, 648 (1997). Allegations of judicial bias or prejudice must be viewed

in context and should be evaluated in terms of the trial judge’s specific reaction to the events

taking place. People v. Jackson, 205 Ill. 2d 247, 277 (2001). Remarks belittling defense counsel

or demonstrating hostility to defense counsel may prevent the defendant from receiving a fair

trial. People v. Harris, 123 Ill. 2d 113, 137 (1988). However, the fact that a judge displays

displeasure or irritation with an attorney’s behavior is not necessarily evidence of judicial bias

against the defendant or his counsel. People v. Urdiales, 225 Ill. 2d 354, 426 (2007) (citing

Jackson, 205 Ill. 2d at 277). “[I]n order for a trial judge’s comments to constitute reversible

error, a defendant must demonstrate that the comments constituted a material factor in the

conviction or were such that an effect on the jury’s verdict was the probable result.” Harris, 123

Ill. 2d at 137. We review de novo the question of whether the trial judge’s conduct requires

reversal of the judgment. See People v. McLaurin, 235 Ill. 2d 478, 485 (2009).

¶ 61                           3. Discussion Before Defense Case

¶ 62   Defendant contends that the trial judge’s antagonism toward defense counsel began

following a discussion held outside the jury’s presence with the trial judge, defense counsel, and

the State. During this discussion, which took place after the close of the State’s case, defense

counsel informed the trial judge that it would be calling Officer Stanley, paramedic Hansen, and

defendant as witnesses. The trial judge noted that Hansen was not in court that day, but defense

                                              - 21 ­
No. 1-14-3902

counsel informed the trial judge that Hansen was on “phone hold” and that he would be at the

courthouse as soon as defense counsel called him. The trial judge told defense counsel to call

Hansen immediately and that defendant could testify second and Hansen last so that the court did

not have to stop the trial. Defense counsel objected, stating that such a decision would violate

defendant’s constitutional rights to present his defense. Defense counsel stated that he would call

Hansen now, and the trial judge told defense counsel to “[g]et him on the phone right now. Right

now. Go in there and get him on the phone. Right now. Call him. *** I want to see how far away

he is.”

¶ 63      Defense counsel then informed the trial judge that he was texting Hansen, and the trial

judge told defense counsel that he was “playing games” and that he should have had Hansen at

the courthouse ready to testify. After further colloquy, the trial judge asked defense counsel to

make an offer of proof as to what he believed Hansen would testify. Defense counsel informed

the trial judge that Hansen would testify that Mallette told him he was attacked by three men and

did not mention anyone choking him or trying to snap his neck. He would further testify that

Mallette seemed to be in good physical and mental condition. The following then took place:

                     “THE COURT: All right, listen. [Officer Stanley is] going to testify next. If

          [Hansen] is here or if he calls back and he’s in the building, he can go on next. If not, I’m

          not waiting. You can stip out the testimony. You can work out a stipulation as to what is

          in that report. [Defense counsel], he was here yesterday. I—

                     [Defense Counsel]: Judge, can I—

                     THE COURT: No, no, no, no, no. I’m talking now. Then you get to respond. I get

          to talk.

                                                  ***

                                                  - 22 ­
No. 1-14-3902

                THE COURT: All of you had time to speak with [Hansen when he was at the

         courthouse the day before] so it wasn’t—the State insisted in making him available to

         you. I saw you speak with him.

                I don’t know why he’s not here, but you should have called him over lunch. You

         just told me ten minutes ago that you hadn’t called him and he was on phone hold. I

         cannot stop a jury. I cannot release the jury today. I cannot stop them just to bring

         [Hansen] in when this testimony can easily be stipped out between the parties. So for that

         reason, I’m not going to wait for him.”

¶ 64     The trial judge then told defense counsel that his two options were to work out a

stipulation of Hansen’s testimony with the State or to have defendant testify after Officer Stanley

and have Hansen testify last. Defense counsel protested, stating that he preferred live witnesses

on the stand and should not be “forced” to stipulate to testimony if live testimony was available.

The trial judge told defense counsel that he was “holding this entire courtroom and a jury in a

hostage situation.” The trial judge noted that Hansen would testify consistently with the

information in his report and the State was willing to stipulate to all of his testimony. The trial

judge expressed her desire to keep the jury trial on schedule and have closing arguments and jury

deliberations the following day. The trial judge explained how she was considering the schedule

of all of the attorneys, the witnesses, and the jurors and stated that she had to make a “judgment

call.”

¶ 65     The ASA then informed the trial judge that court personnel had spoken to Hansen and

Hansen was “under the understanding that he was testifying [the following day.]” The trial judge

asked that ASA if she was saying that Hansen was never put on phone hold, and the ASA

confirmed that Hansen thought he would be testifying the following day. The trial judge


                                               - 23 ­
No. 1-14-3902

concluded the discussion by telling defense counsel that he was “lying to the court” and “playing

games.” The trial judge stated that “[t]he jury is going to know that this is the defense case, too,

that we’re stopping at the defense case. *** I’m not going to tell them. I’m not going to say a

word, but smart people figure these things out.” Defense counsel told the trial judge that he did

not mean any disrespect, but the trial judge replied that “[y]ou are disrespectful to the Court, and

you’re disrespectful to every person’s time in this room.” The trial judge informed defense

counsel that he had “caused significant damage to your reputation with me.” The trial then

resumed with Officer Stanley testifying for defendant. The case was continued until the

following morning where Hansen testified, followed by defendant.

¶ 66                          4. Comments During Defendant’s Testimony

¶ 67   Defendant contends that following this exchange, the trial judge displayed “antagonism

and bias” toward defense counsel in the presence of the jury. Defendant identifies several

statements made by the court to defense counsel during defendant’s testimony, which he

contends illustrate the trial judge’s bias and “repeated[ ] berating” of defense counsel. Defendant

presents many of these statements without context; however, as noted, allegations of judicial bias

or prejudice must be viewed in context and should be evaluated in terms of the trial judge’s

specific reaction to the events taking place. Jackson, 205 Ill. 2d at 277. Accordingly, we will

examine the trial judge’s comments to defense counsel in light of the context in which they were

said and the surrounding circumstances.

¶ 68   During defendant’s testimony, the trial judge repeatedly instructed defense counsel to

return to the podium while asking defendant questions and instructed defendant to speak louder

so that everyone could hear him. Defense counsel requested a sidebar in which he stated that the

trial judge had “displayed irritability to [defendant.]” The trial judge disagreed, stating that “I


                                               - 24 ­
No. 1-14-3902

asked him to speak up because he’s whispering ***. And the jury—I can see the jury straining to

hear him.” The trial judge further explained that she asked defense counsel to return to the

podium because she believed that it helps the witness speak louder when the attorney is further

away.

¶ 69    Following this sidebar, defendant specifically identifies several statements by the trial

judge that he believes demonstrated the trial judge’s antagonism and bias. The first instance

identified by defendant occurred when defense counsel was asking defendant about his

interactions with the officers in the vehicle after his arrest.

                “[Defense Counsel:] And what else was said to you [by the officers in the police

        vehicle]?

                THE COURT: [Defense counsel], you’re not laying a proper foundation.

                [Defense Counsel]: I’m sorry, Judge.

                [Defense Counsel]: What was the demeanor of the officers as they were talking to

        you?

                THE COURT: That is not foundation, ask a foundational question.

                [Defense Counsel]: Who was driving the vehicle? How many officers were in the

        car with you?

                [Defendant]: There were two officers.”

Defendant then testified regarding the circumstances leading to him being interviewed by

officers at the Schaumburg police department.

                “[Defense Counsel]: Did they ask you questions?

                [Defendant]: Yes


                                                 - 25 ­
No. 1-14-3902

                [Defense Counsel]: What were they telling you?

                [Assistant State’s Attorney]: Objection.

                THE COURT: Sustained.

                [Defense Counsel]: Did they ask you questions about your background?

                [Defendant]: Yes, they did.

                [Defense Counsel]: And did you tell them who you were and where you grew up?

                [Defendant]: Yes, I did.

                [Assistant State’s Attorney]: Objection.

                THE COURT: Sustained.

                [Defense Counsel]: At any point in time did the officers, any of those two officers

      in the first interview room with you, did they ever ask you anything related to this alleged

      crime that occurred?

                [Defendant]: Yes.

                [Defense Counsel]: And what were they telling you in relation to this alleged

      crime that occurred on August 13, 2011?

                [Assistant State’s Attorney]: Objection.

                THE COURT: Sustained.

                [Defense Counsel]: Were they asking you if you had committed a crime on

      August 13, 2011?

                [Defendant]: Yes.

                [Assistant State’s Attorney]: Objection.

                THE COURT: Sustained.

                                               - 26 ­
No. 1-14-3902

                [Defense Counsel]: Judge, sidebar.

                THE COURT: [Defense counsel], you have to lay a foundation. Ask a proper

      question. Rephrase it. And go back to the podium.

                                                  ***

                [Defense Counsel]: The two officers that were talking to you, where were they

      seated?

                [Defendant]: Well, they were seated on—one was seated across from me and one

      was like almost to the side at the table.

                Q. Which one of the officers was talking to you?

                A. Well, I don’t remember which one was actually questioning me.

                Q. Were both officers questioning you?

                A. Yes, both officers asked me questions.

                Q. And how was the demeanor of the officers as they were questioning you?

                A. They seemed upset.

                Q. Were you upset?

                A. I wasn’t really upset, no, I was really scared because they were telling me I

      committed a robbery and I have never been locked up before.

                [Assistant State’s Attorney]: Objection.

                THE COURT: [Defense counsel].

                [Defense Counsel]: Judge, I can’t move to strike the answer.

                THE COURT: No, you can’t[,] but you can ask proper questions, proper direct

      examination questions.


                                               - 27 ­
No. 1-14-3902

                [Defense Counsel]: I believe I have.

                Q. Mr. Barnes, when you—when the police officers accused you of being

       involved in this so-called crime, did you tell them—

                THE COURT: Stop for one second, I need to do this.

                The jury is not to consider what this defendant answered. The objection is

       sustained and the jury is to disregard the last answer the witness gave.”

¶ 70   Viewed in context, these comments by the trial judge do not suggest antagonism or bias

by the trial judge, but rather show the trial judge’s rulings on the State’s objections and her

repeated reminders to defense counsel to establish foundation for his questions. Laying a

foundation involves “[i]ntroducing evidence of certain facts needed to render later evidence

relevant, material or competent.” Black’s Law Dictionary (10th ed. 2014). Here, defense counsel

was skipping this crucial element of defendant’s testimony, and the trial judge was continually

reminding him to lay a proper foundation before posing further questions. Defense counsel failed

to lay a proper foundation and simply asked defendant what the officers told him while inserting

the relevant information into the question rather than allowing defendant to describe the relevant

information through his testimony. The State properly objected to these questions and the trial

judge ruled on the State’s objections, informing defense counsel that she was sustaining the

State’s objections because defense counsel had failed to lay a proper foundation. As this court

has recognized, the court may exercise its role to control the trial, and comments made with a

valid basis do not display a specific bias or prejudice against defense counsel. People v. Garrett,

276 Ill. App. 3d 702, 713 (1995). The same analysis applies to the other statements of the trial

judge identified by defendant.




                                              - 28 ­
No. 1-14-3902

¶ 71   Defendant refers to the trial judge’s comments later in his testimony admonishing defense

counsel for leading defendant and for testifying for defendant. Defendant asserts that these

comments were particularly damaging where they suggested to the jury that defendant was being

coached through his testimony and was not testifying truthfully. Like the trial judge’s other

comments, however, when viewed in context, they do not show the antagonism or bias that

defendant suggests. Rather, as with the previously examined comments, they show the trial judge

ruling on the State’s objections and informing defense counsel how to properly examine

defendant as a witness on direct examination.

                “[Defense Counsel]: At some point in time did you ask [sic] these officers that

       you wanted to speak to your coach?

                [Assistant State’s Attorney]: Objection.

                THE COURT: Sustained.

                [Defense Counsel]: Did you ask them—

                [Assistant State’s Attorney]: Objection.

                THE COURT: Sustained. [Defense Counsel], this is direct examination you can’t

       cross examine the witness.

                [Defense Counsel]: I’m sorry, Judge.

                THE COURT: Ask proper questions.

                [Defense Counsel]: Did you tell the police officers that you wanted to talk to

       anyone?

                [Defendant]: Yes.

                [Assistant State’s Attorney]: Objection.


                                                - 29 ­
No. 1-14-3902

                THE COURT: All right, the answer will stand. Ask another question. But please,

       [Defense Counsel], you can’t lead the witness.

                [Defense Counsel]: Judge, I’m not leading my witness.

                THE COURT: Ask him what he said if anything, please.

                                               ***

                [Defense Counsel]: At some point in time, Mr. Barnes, did you understand that

       the officers [were] referring to Mr. Mallette?

                [Assistant State’s Attorney]: Objection.

                THE COURT: Sustained. [Defense counsel], you cannot lead the witness on

       direct examination.

                [Defense Counsel]: Sorry, Judge.

                THE COURT: Please rephrase your question.

                [Defense Counsel]: Thank you. At some point in time did the officers tell you

       who the victim was?

                [Defendant]: Yes, they did.”

Defendant then testified that the officers left the interview room and an ASA entered the room

with a document detailing his involvement in the incident and asked defendant to sign the

statement. Defendant did not agree to the contents of the document so he refused to sign it, and

the ASA left the room and two other officers came into the room.

                “[Defense Counsel]: When the new police officers arrived after the attorney

       walked out, you said you weren’t sure how long had passed, did you sign some

       documents when they entered the room?


                                               - 30 ­
No. 1-14-3902

                [Assistant State’s Attorney]: Objection.


                [Defendant]: No. 


                THE COURT: The witness said no so the answer will stand. [Defense counsel].


                [Defense Counsel]: I’ll round it up, Judge. 


                THE COURT: No, you have to ask open-ended questions, you cannot testify for


       your client.

                [Defense Counsel]: Judge, I am not testifying for my client.

                THE COURT: Please rephrase the question.

                [Defense Counsel]: Judge, I’ll make a record. You made a record in front of the

       jury.

                THE COURT: Please rephrase the question.

                [Defense Counsel]: I am not testifying for my client.

                THE COURT: [Defense counsel], please rephrase your question.

                [Defense Counsel]: Mr. Barnes.

                [Defendant]: Yes, sir.

                [Defense Counsel]: Did you at any point in time sign any documents?

                [Defendant]: Yes, I did.”

¶ 72   Despite defendant’s contentions, it is clear from the record that rather than displaying

“antagonism and bias” toward defense counsel, that the trial judge was ruling on the State’s

objections and advising defense counsel how to properly question defendant on direct

examination. As the State’s objections suggest and the trial judge’s rulings show, defense

counsel was asking defendant improper leading questions on direct examination, i.e., his


                                               - 31 ­
No. 1-14-3902

questions were suggesting the answer by putting into defendant’s mind the words or thoughts of

the answer. See People v. Lane, 256 Ill. App. 3d 38, 59 (1993). Generally, it is improper to lead a

witness except on cross-examination (id. at 59-60), and we find nothing inappropriate about the

trial judge’s comments, which merely served to inform defense counsel of the reasons that the

trial judge was sustaining the State’s objections, to instruct defense counsel how to proceed to

avoid further objections, or to ask him to rephrase the question to avoid impropriety. The trial

judge’s comments, read in context, do not suggest that the trial judge was indicating to the jury

that defendant was falsifying his testimony with his counsel’s assistance, as defendant suggests,

but rather show the trial judge’s rebuking of defense counsel after repeatedly admonishing him to

not ask leading questions of defendant. As the record shows, the trial judge permitted defense

counsel to proceed uninterrupted when he asked defendant proper, open-ended questions.

¶ 73   Defendant identifies a final exchange between defense counsel and the trial judge, during

which defendant contends the trial judge exhibited “unprofessional sarcasm” toward defense

counsel. During the State’s cross-examination of defendant, defense counsel objected to the

relevance of one of the State’s questions. After the trial judge overruled defense counsel’s

objection, defense counsel stated: “Sidebar.” The trial judge responded, “Judge, please, could we

have a sidebar, is that what you meant to say?” The trial judge then held a sidebar after defense

counsel replied, “Excuse me, Judge, I want to have a sidebar.” This exchange does not represent

“repeated[ ] berating” of defense counsel as defendant suggests. More importantly, defendant

fails to establish how the trial judge’s “comments constituted a material factor in the conviction

or were such that an effect on the jury’s verdict was the probable result” (Harris, 123 Ill. 2d at

137), where the court merely ruled on the State’s objections and instructed defense counsel how




                                              - 32 ­
No. 1-14-3902

to proceed to avoid further objections. This exchange between the trial judge and defense

counsel does nothing to support defendant’s argument in this regard.

¶ 74   We also note that although defendant does not directly contest the sufficiency of the

evidence presented at trial to sustain his conviction, he repeatedly contends that the evidence at

trial was closely balanced and came down to a “credibility contest” between the State’s witnesses

and defendant. We believe defendant far overstates the closeness of the evidence presented.

Mallette’s version of the incident was corroborated by the expert testimony of Dr. Schupp

regarding Mallette’s injuries, the testimony of Stein and Golston, defendant’s statement to ASA

O’Malley, the testimony of the police officers, and the physical evidence including the blood on

the bottom of defendant’s shoe, which matched the buccal swab taken from Mallette.

Defendant’s version of the events was evidently rejected by the jury and defendant has failed to

demonstrate that the court’s comments to defense counsel influenced that result. Harris, 123 Ill.

2d at 137. We recognize the minor inconsistencies among the witnesses’ testimony that

defendant identifies, i.e., what time the attack occurred, how many people attacked Mallette, and

whether he was choked or not; however, these minor discrepancies do not create a reasonable

doubt as to defendant’s guilt, nor do they indicate that the evidence was closely balanced in light

of the other evidence presented. People v. Lee, 376 Ill. App. 3d 951, 956 (2007) (citing People v.

Crespo, 118 Ill. App. 3d 815, 819 (1983)).

¶ 75   We further find the authority relied upon by defendant in support of this contention

unpersuasive. In People v. Mitchell, 228 Ill. App. 3d 167, 169-70 (1992), the trial judge

“mock[ed]” defense counsel by commenting on his questions of the witnesses and remarking on

the physical evidence presented. In addition, the trial judge displayed “direct hostility” toward

the defendant during defense counsel’s direct examination and interrupted the defendant’s


                                              - 33 ­
No. 1-14-3902

testimony to interject the judge’s own opinion of the testimony. Id. at 170. Following the State’s

objection to one of defense counsel’s questions of defendant, the trial judge stated that “ ‘it’s

quite obvious there was no conversation like the one you just made up.’ ” Id. This court also

found that the trial judge’s bias was evident through his inconsistent rulings of law. Id. at 171.

During opening statements, the trial judge permitted the State to explain the legal standards to be

applied to the evidence but repeatedly interrupted defense counsel sua sponte when he tried to do

the same. Id.

¶ 76   Here, we cannot say the trial judge’s conduct in this case rose to the level of the conduct

found prejudicial in Mitchell. The trial judge here did not display hostility toward defendant, did

not make inconsistent rulings of law, and did not interrupt defense counsel sua sponte during

arguments. All of the trial judge’s remarks were made either in response to the State’s

objections, to ask defense counsel to rephrase a question into a proper form for direct

examination, or in response to defense counsel’s request for a sidebar. Crucially, the court made

no remarks on the evidence presented and only told defense counsel to stop testifying for

defendant in an effort to prevent defense counsel from asking leading questions on direct

examination. Following the court’s admonishments, the court permitted defense counsel to

properly elicit the testimony without comment.

¶ 77   We likewise find Stokes, 293 Ill. App. 3d at 648, distinguishable where in that case, the

trial judge interrupted defense counsel’s cross-examination of a witness and stated that the cross-

examination was driving him “ ‘crazy.’ ” The judge also suggested that maybe he could do a

better job than defense counsel and told the jury that they could ignore defense counsel’s cross-

examination of another witness: “ ‘I don’t know where we are going. I am telling you something




                                              - 34 ­
No. 1-14-3902

right now, ladies and gentlemen, when and if this is not tied up, all this stuff you can ignore.’ ”

Id. The trial judge then asked defense counsel if he was going to start crying. Id. at 649.

¶ 78   The trial judge’s comments in the case at bar are clearly distinguishable from the

comments made by the trial judge in Stokes that this court found served to “belittle[ ]” defense

counsel and suggest to the jury the judge’s opinion of defense counsel and the case. Id. As

discussed, the trial judge’s comments in this case served to exercise its role to control the trial by

ruling on the State’s objections and direct defense counsel how to proceed. The trial judge’s

comments were made with a valid basis (see Garrett, 276 Ill. App. 3d at 713), did not suggest the

trial judge’s opinion of the evidence being presented, and did not display a specific bias or

prejudice against defense counsel through unwarranted comments as in the cases cited by

defendant. Accordingly, we find no error warranting plain error review and honor defendant’s

forfeiture of this issue. See People v. Johnson, 238 Ill. 2d 478, 491 (2010).

¶ 79                                C. Section 5/3-6-3(a)(2)(iii)

¶ 80   Defendant next contends that the trial court erred when it sentenced him to serve his

consecutive sentences at 85% time, rather than 50% time, based on its finding that he caused

great bodily harm to Mallette. Defendant asserts that section 3-6-3(a)(2)(iii) of the Unified Code

of Corrections (Unified Code) (730 ILCS 5/3-6-3(a)(2)(iii) (West 2010)), which the trial court

used to determine that he should serve his sentence at 85% time, is unconstitutional on its face

following the United States Supreme Court’s ruling in Alleyne v. United States, 570 U.S. 99, 133

S. Ct. 2151 (2013), which expanded on the Supreme Court’s ruling in Apprendi v. New Jersey,




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530 U.S. 466 (2000). 4 Defendant contends that this section is unconstitutional because it allows

the trial court to use a fact in sentencing to increase his mandatory minimum sentence without

submitting that element to the jury to determine that the factual predicate exists beyond a

reasonable doubt.

¶ 81    In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490. The Court explained that

the difference between an element of an offense, for which defendant has a right to a jury trial

and proof beyond reasonable doubt, and a sentencing factor, which can be decided by a judge, is

whether “the required finding expose[s] the defendant to a greater punishment than that

authorized by the jury’s guilty verdict.” Id. at 478-79, 494. The Supreme Court expanded on

Apprendi more than a decade later in Alleyne. In Alleyne, the Supreme Court held that “any fact

that increases the mandatory minimum [sentence] is an ‘element’ [of the crime] that must be

submitted to the jury [and found beyond a reasonable doubt].” (Emphasis added.) Alleyne, 570

U.S. at ___, 133 S. Ct. at 2155. The Court explained that the “touchstone” for determining

whether a fact must be found by a jury beyond a reasonable doubt is “whether the fact constitutes

an ‘element’ or ‘ingredient’ of the charged offense.” Id. at ___, 133 S. Ct. at 2158 (Thomas, J.,

joined by Ginsburg, Sotomayor, and Kagan, JJ.). The court noted, however, that not all factual

findings that affect a sentence must be made by a jury:

        “Our ruling today does not mean that any fact that influences judicial discretion must be

        found by a jury. We have long recognized that broad sentencing discretion, informed by

        4
        Although defendant acknowledges that he forfeited this issue by failing to raise it before the trial
court, we recognize that defendant may challenge the facial constitutionality of a statute at any time.
People v. Wagener, 196 Ill. 2d 269, 279 (2001).

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         judicial factfinding, does not violate the Sixth Amendment. See, e.g, Dillon v. United

         States, [560 U.S. 817, 828-89 (2010)] (‘[W]ithin established limits[,] . . . the exercise of

         [sentencing] discretion does not contravene the Sixth Amendment even if it is informed

         by judge-found facts’ (emphasis deleted and internal quotation marks omitted));

         Apprendi, [530 U.S. at 481] (‘[N]othing in this history suggests that it is impermissible

         for judges to exercise discretion—taking into consideration various factors relating both

         to offense and offender—in imposing a judgment within the range prescribed by

         statute’).” (Emphasis in original.) Id. at ___, 133 S. Ct. at 2163 (majority op.).

¶ 82     Here, the trial court sentenced defendant to serve his consecutive 23-year term of

imprisonment for home invasion and robbery at 85% under section 3-6-3(a)(2)(iii) of the Unified

Code. That section is part of the “truth-in-sentencing” scheme that “the Department of

Corrections uses to calculate good-conduct credit.” People v. Salley, 373 Ill. App. 3d 106, 109

(2007). Under the Unified Code, an incarcerated individual generally receives day-for-day good-

conduct credit. 730 ILCS 5/3-6-3(a)(2.1) (West 2010)). If, however, defendant is convicted of

certain enumerated offenses, including home invasion, and the court finds that defendant caused

“great bodily harm” to a victim in the commission of that offense, the defendant will receive “no

more than 4.5 days of good conduct credit for each month of his or her sentence of

imprisonment.” 730 ILCS 5/3-6-3(a)(2)(iii) (West 2010)); Salley, 373 Ill. App. 3d at 109.

¶ 83     Defendant asserts that Section 3-6-3(a)(2)(iii) requires the trial court to determine

whether defendant caused “great bodily harm” upon its own review of the evidence. Defendant

contends that such a finding violates Alleyne because it raises the mandatory minimum sentence

defendant must serve by raising the “minimum floor for a defendant from 50% time to 85%

time.”


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¶ 84   Although this court has not addressed the constitutionality of section 3-6-3(a)(2)(iii) in

light of the Supreme Court’s ruling in Alleyne, we find this court’s analysis in its post-Apprendi

precedent relevant to the issue before us. In People v. Robinson, 383 Ill. App. 3d 1065, 1071

(2008), this court explained that section 3-6-3 “d[id] not change the prescribed maximum penalty

of the underlying offense” although we recognized that it “may well affect the sentence

defendant ultimately serves.” This court concluded that the statute did not violate Apprendi

because it did not affect the sentence imposed and that, because the statute concerns good-time

credit, “its application is not definite, immediate, or automatic.” Id. In essence, this court has

found that section 3-6-3(a)(2)(iii) does not “expose the defendant to a greater punishment than

that authorized by the jury’s guilty verdict.” Apprendi, 530 U.S. at 494. Robinson and other post-

Apprendi cases of this court have distinguished between findings of fact that impact the actual

jail time a defendant must serve and those that impact the sentence imposed. See, e.g., Robinson,

383 Ill. App. 3d at 1071; People v. Garry, 323 Ill. App. 3d 292, 299 (2001) (“[T]he finding of

great bodily harm simply had an impact upon the amount of time by which defendant—through

his own ‘good conduct’—could decrease his sentence” and did not “trigger any penalty for [the]

crimes.” (Emphases omitted.)). We find that the Supreme Court’s analysis in Alleyne does not

change our analysis with regard to section 3-6-3(a)(2)(iii). Although the finding of great bodily

harm by the court may change the actual amount of jail time defendant serves, it does not

increase defendant’s mandatory minimum sentence and thus does not violate Alleyne.

Accordingly, we find that section 3-6-3(a)(2)(iii) is not unconstitutional on its face.



¶ 85                                    1. Sixth Amendment




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¶ 86   For the same reasons, we find that the trial court’s sentence did not violate defendant’s

sixth amendment rights to due process or a trial by jury. The fourteenth amendment right to due

process and the sixth amendment right to a trial by jury, “[t]aken together, *** indisputably

entitle a criminal defendant to ‘a jury determination that he is guilty of every element of the

crime with which he is charged, beyond a reasonable doubt.’ ” Apprendi, 530 U.S. at 476-77

(quoting United States v. Gaudin, 515 U.S. 506, 510 (1995)). Defendant contends that, although

he failed to preserve this issue for review, we should review this issue under the plain error

doctrine, or, in the alternative, because his counsel was ineffective for failing to preserve the

issue for appeal. Defendant contends that he suffered prejudice where the cause and extent of

Mallette’s injuries were contested at trial. We disagree.

¶ 87   As discussed, the court’s finding that defendant caused great bodily harm was not an

element of the offense but rather was a sentencing element. We further recognize that the court’s

finding was supported by the record; particularly Dr. Schupp’s testimony that Mallette had

fractured ribs, fractures to his spine, a collapsed lung, fractured thyroid cartilage, and the imprint

of the bottom of a shoe on his face. Dr. Schupp testified that Mallette’s version of the events was

consistent with the injuries he exhibited, and Sergeant Klebba and Hansen both testified that

Mallette was in obvious pain when they arrived at the scene of the incident. Defendant did not

present any evidence to contest the extent of Mallette’s injuries but merely relies on the

testimony of Hansen and Officer Stanley that defendant did not mention to them that he had been

choked. This was insufficient to rebut the trial court’s finding that defendant caused great bodily

harm to Mallette. Accordingly, we find no error warranting plain error review and honor

defendant’s forfeiture of this issue. See Johnson, 238 Ill. 2d at 491. We likewise find defendant’s

claim of ineffective assistance of counsel unavailing. “[I]f the ineffective-assistance claim can be


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disposed of on the ground that the defendant did not suffer prejudice, a court need not decide

whether counsel’s performance was constitutionally deficient.” People v. Evans, 186 Ill. 2d 83,

94 (1999). Prejudice occurs where defendant demonstrates a reasonable probability that, but for

counsel’s deficient performance, the outcome of the proceedings would have been different.

People v. Richardson, 189 Ill. 2d 401, 411 (2000). As discussed, we find that the trial court did

not err in finding that defendant caused great bodily harm, and we therefore find no prejudice as

a result of defense counsel’s alleged deficient performance.

¶ 88                                   D. Excessive Sentence

¶ 89   Lastly, defendant contends that his sentence is excessive in light of his young age, lack of

criminal history, family background, and other factors that demonstrate his potential for

rehabilitation. Defendant asserts that the court improperly focused on one “most significant”

factor in aggravation and one in mitigation in determining his sentence, ignoring the remaining

mitigating factors presented. Defendant maintains that, given these mitigating factors, the

minimum term of imprisonment allowable by statute was appropriate in this case and the court

erred by sentencing him to a term of 23 years’ imprisonment.

¶ 90                                   1. Standard of Review

¶ 91   A reviewing court will not alter a defendant’s sentence absent an abuse of discretion by

the trial court. People v. Alexander, 239 Ill. 2d 205, 212 (2010). A trial court abuses its discretion

in determining a sentence where the sentence is greatly at variance with the spirit and purpose of

the law or if it is manifestly disproportionate to the nature of the offense. Id. The trial court is

afforded such deference because it is in a better position than the reviewing court to weigh the

relevant sentencing factors such as “ ‘defendant’s credibility, demeanor, general moral character,

mentality, social environment, and age.’ ” People v. Stevens, 324 Ill. App. 3d 1084, 1093-94

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(2001) (quoting People v. Streit, 142 Ill. 2d 13, 19 (1991)). In the absence of evidence to the

contrary, we presume that the sentencing court considered all mitigating evidence presented.

People v. Gordon, 2016 IL App (1st) 134004, ¶ 51.

¶ 92                                2. Defendant’s Sentence

¶ 93   Here, defendant was found guilty of robbery (720 ILCS 5/18-1(a) (West 2010)), and

home invasion (720 5/12-11(a)(2) (West 2010) (renumbered as 720 ILCS 5/19-6(a)(2) by Pub.

Act 97-1108 (eff. Jan. 1, 2013))). Robbery is a Class 2 felony, which carries a sentencing range

of three to seven years’ imprisonment (730 ILCS 5/5-4.5-35(a) (West 2010)). Defendant was

eligible for Class X sentencing for his conviction for home invasion because he intentionally

caused injury in the commission of the offense (720 5/12-11(a)(2), (c) (West 2010) (renumbered

as 720 ILCS 5/19-6(a)(2), (c) by Pub. Act 97-1108 (eff. Jan. 1, 2013))), which carries a

sentencing range of 6 to 30 years’ imprisonment (730 ILCS 5/5-4.5-25(a) (West 2010)). The

court sentenced defendant to consecutive terms of imprisonment of 5 years for robbery and 18

years for home invasion. Thus, the sentence imposed fell within the statutorily prescribed range.

¶ 94   Defendant contends, however, that the court abused its discretion in determining his

sentence by considering only the “most significant” factors in mitigation and aggravation instead

of considering all statutory factors. The record shows that in announcing defendant’s sentence,

the court stated that “one of the most significant” factors in aggravation was the injuries to

Mallette and that defendant’s lack of criminal background was “the significant factor” in

mitigation. Defendant construes this explanation by the court to indicate the court considered

only these factors in determining defendant’s sentence and ignored the other factors presented in

mitigation and aggravation. The record shows, however, that the court also stated that it had

“reviewed all the statutory factors in aggravation and mitigation.” (Emphasis added).


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No. 1-14-3902

¶ 95   The record shows that during the sentencing hearing, defense counsel identified the same

mitigating factors defendant brings to our attention on appeal, including defendant’s youth, lack

of criminal background, and rehabilitative potential. It is not our function to independently

reweigh these factors and substitute our judgment for that of the trial court. Alexander, 239 Ill.

2d at 214-15. Although the trial court did not specifically identify which factors it considered in

determining defendant’s sentence, we observe that a trial court is not required to specify on the

record the reasons for the sentence imposed (People v. Acevedo, 275 Ill. App. 3d 420, 426

(1995)) nor is it required to recite and assign value to each factor presented at the sentencing

hearing (People v. Baker, 241 Ill. App. 3d 495, 499 (1993)). Rather, it is presumed that the trial

court properly considered all mitigating factors and rehabilitative potential before it, and the

burden is on defendant to affirmatively show the contrary. People v. Brazziel, 406 Ill. App. 3d

412, 434 (2010). Here, defendant has failed to do so. Although we are cognizant of Justice

Hyman’s concurring opinion in People v. Bryant, 2016 IL App (1st) 140421, ¶ 26 (Hyman, J.,

specially concurring), which is cited by defendant and calls into question the practice of trial

courts not stating on the record the basis for their sentencing decision, it does not change our

well-established precedent.

¶ 96   We further find defendant’s reliance on Miller v. Alabama, 567 U.S. 460 (2012), Graham

v. Florida, 560 U.S. 48 (2010), and Roper v. Simmons, 543 U.S. 551 (2005) unpersuasive. This

line of Supreme Court cases has recognized the special characteristics of juvenile offenders,

including their lack of maturity, underdeveloped brains, and rehabilitative potential, and requires

sentencing courts to consider these factors in sentencing. See Roper, 543 U.S. at 569; Graham

560 U.S. at 68; Miller, 567 U.S. at 471. Defendant contends that under this precedent, the trial




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court did not adequately consider defendant’s age, 19 years old at the time of the incident, in


sentencing him to a term of imprisonment of 23 years. 


¶ 97   Our supreme court has repeatedly held, however, that the rationale of Miller, Roper, and


Graham applies “only in the context of the most severe of all criminal penalties,” namely capital


punishment, natural life imprisonment, or de facto life imprisonment. People v. Patterson, 2014 


IL 115102, ¶ 110; see also People v. Reyes, 2016 IL 119271, ¶ 9 (holding that 


under Miller, Roper, and Graham, a juvenile offender’s eighth amendment rights are violated


where the juvenile is sentenced to a mandatory term of imprisonment that has the functional


equivalent of life in prison without the possibility of parole). Here, defendant did not receive “the 


most severe of all criminal penalties.” His 23-year sentence does not amount to a de facto life 


sentence, and as such the rationale of Miller, Roper, and Graham does not apply to his sentence.


Even if defendant’s sentence were considered a de facto life sentence, this court has declined to


apply the rationale of Miller, Roper, and Graham, where, as here, defendant is an adult, i.e., over


the age of 18. See People v. Thomas, 2017 IL App (1st) 142557, ¶¶ 26-28. Accordingly, we find


no abuse of discretion where the sentence imposed was within the prescribed statutory range, 


does not greatly vary from the purpose of the law, and is not manifestly disproportionate to the


nature of the offense. Brazziel, 406 Ill. App. 3d at 433-34 (citing People v. Stacey, 193 Ill. 2d


203, 210 (2000)). 


¶ 98                                    III. CONCLUSION


¶ 99   For the reasons stated, we affirm the judgment of the circuit court of Cook County.


¶ 100 Affirmed.





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