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                              Appellate Court                          Date: 2018.02.08
                                                                       12:40:20 -06'00'




                   People v. Sheley, 2017 IL App (3d) 140659



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           NICHOLAS T. SHELEY, Defendant-Appellant.



District & No.    Third District
                  Docket No. 3-14-0659



Filed             October 27, 2017



Decision Under    Appeal from the Circuit Court of Whiteside County, No. 08-CF-402;
Review            the Hon. Jeffrey W. O’Connor, Judge, presiding.



Judgment          Affirmed.


Counsel on        Michael J. Pelletier, Thomas A. Lilien, and Fletcher P. Hamill, of
Appeal            State Appellate Defender’s Office, of Elgin, for appellant.

                  Lisa Madigan, Attorney General, of Chicago (Garson S. Fischer,
                  Assistant Attorney General, of counsel), for the People.



Panel             JUSTICE SCHMIDT delivered the judgment of the court, with
                  opinion.
                  Presiding Justice Holdridge specially concurred, with opinion.
                  Justice O’Brien dissented, with opinion.
                                              OPINION

¶1       Defendant, Nicholas T. Sheley, appeals his conviction of four counts of first degree
     murder. Specifically, defendant contends that the circuit court erred in denying his motion for a
     mistrial because reversible error occurred when the judge fell asleep during the jury trial. We
     affirm.

¶2                                               FACTS
¶3       The State charged defendant with 15 counts of first degree murder (720 ILCS 5/9-1(a)(1),
     (a)(2) (West 2008)) for causing the deaths of Dayan Blake, Brock Branson, Kilynna Blake, and
     Kenneth Ulve. With regard to the murder of Dayan, the indictment alleged that Dayan was
     under 12 years old and his death resulted from exceptionally brutal or heinous behavior
     indicative of wanton cruelty as set forth in section 9-1(b)(7) of the Criminal Code of 1961 (720
     ILCS 5/9-1(b)(7) (West 2008)).
¶4       A jury trial was held. The evidence at trial showed that the four victims were last seen alive
     in their apartment in Rock Falls, Illinois, on the evening of June 28, 2008. Two days later, the
     bodies of the victims were found in their apartment. The victims had been bludgeoned to death.
¶5       The State also presented evidence that on the morning of June 28—prior to the murders of
     the victims in the instant case—defendant stole a truck, a work shirt, and a hat from Illinois Oil
     Products in Rock Island, Illinois. Defendant drove the truck to Galesburg, where he murdered
     Ronald Randall and then stole Randall’s truck. The State presented a videotaped deposition of
     Pamela Sebben. Sebben was a gas station clerk who sold cigarettes to defendant on June 28 in
     Galesburg.
¶6       When the police searched the victims’ apartment, officers found the work shirt that
     defendant stole from Illinois Oil Products. The shirt contained DNA consistent with that of
     defendant and was stained with Randall’s blood. The officers also found pair of khaki shorts in
     the apartment. Testing revealed that the inside of the waistband of the shorts contained
     defendant’s DNA. The shorts were stained with Ulve’s and Randall’s blood. Additionally,
     officers found two cigarette butts that contained defendant’s DNA.
¶7       Two shirts and a pair of shorts belonging to Branson were missing from the apartment. A
     police officer found those items in a dumpster in Festus, Missouri. The clothing contained
     DNA consistent with that of defendant. One of the shirts contained several bloodstains. Testing
     showed that the bloodstains contained the DNA of Ulve, Branson, and Kilynna. The State also
     introduced photographs of defendant in St. Louis, Missouri, on June 29. In those photographs,
     defendant was wearing one of Branson’s missing shirts.
¶8       Officer Brad Cirimotich testified regarding security camera footage purportedly showing
     defendant in Galesburg on June 28. Cirimotich testified regarding the contents of the security
     camera footage while the videotapes were being played. After the videos ended, the following
     exchange occurred:
                 “MR. ELWARDS [sic] [Assistant Attorney General]: Judge, we can have the lights
              back up.
                 MR. KARLIN [defense counsel]: Judge?
                                (Counsel Karlin approached the bench.)
                 MR. KARLIN: Judge O’Connor?

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                               (Counsel Elward approached the bench.)
                 MR. ELWARD: Judge, could we get the lights back on?
                 THE COURT: Hmm.
                 MR. ELWARD: We need the lights back on.
                                          (The Court complies.)
                 MR. ELWARD: Thank you.
                 Judge, I’ve got some chain exhibits that I need to do with Detective Cirimotich,
             perhaps this might be a good time for us to break for lunch and bring the jury back after
             that.
                 THE COURT: Excellent time.
                 Jeremy, 1:15?
                 MR. KARLIN: Sure.”
¶9       A lunch recess was taken, and then the following proceedings were held while the jury was
     out of the courtroom:
                 “MR. KARLIN: Judge, I apologize for having to do this, but as you can appreciate
             the position that I’m in, I have to make a record of this.
                 There was a point at the ending of the hearing or the trial session this morning when
             the video was being played and Officer Cirimotich was testifying on, I think it was
             apparent that you had fallen asleep.
                 I, I wrote down on my notes that I called twice from counsel—when I observed that
             you had fallen asleep, and I don’t know how long you were, that I called, I said, Judge,
             from counsel table, I believe, twice. That at then when you did not respond I was
             concerned. I came to the bench, I called, I said Judge, to you again, you, and after that
             was when the clerk either, I think poked you and then you awoke.
                 Frankly, this is not the first time that I’ve observed this, but certainly not to the
             degree that I observed this morning and I have to make a record of that.
                 THE COURT: Understandable. Did your suggestion disrupt in any way the
             video[?]
                 MR. KARLIN: I believe, Judge, at that point we had, we reached a breaking point
             of the video.
                 MR. ELWARD: That is correct, Judge.
                 MR. KARLIN: And you were not called upon to make any evidentiary rulings
             during the playing of the video.
                 I think we—yeah, I think those two things are accurate.
                 THE COURT: Comments from the State?
                 MR. ELWARD: Judge, I share Mr. Karlin’s observations. I was focused on
             Detective Cirimotich. I would just inquire as to the Court’s health, if you are okay, we
             can proceed. It is of concern, obviously, just want to, just wanted to make sure that we
             are good to go for this afternoon.
                                                  ***
                 THE COURT: Okay.



                                                 -3-
                   I will speak to the record that I have no physical inabilities at this point, that I’m
               aware of and, if the record shows no objections that I was required to respond to, while
               the videos were going on, and I don’t think there were any or I would have been aware
               of them. Your observation is noted for the record.”
¶ 10       On the next day of trial, defense counsel made an oral motion for a mistrial based on the
       incident where the judge appeared to have fallen asleep during Cirimotich’s testimony.
       Defense counsel noted that he did not believe that was the first time the judge had “drifted off.”
       The State agreed that the judge “appeared to be asleep during the examination of Brad
       Cirimotich.” The State argued that defendant’s motion for a mistrial was inappropriate because
       the occurrence of the judge falling asleep did not constitute “anything fundamental that
       affect[ed] this Defendant’s rights.” The circuit court denied the motion for a mistrial.
¶ 11       The jury ultimately found defendant guilty of first degree murder for all four murders. The
       circuit court sentenced defendant to four consecutive sentences of natural life imprisonment
       without parole.
¶ 12       Defendant filed a motion for a new trial arguing, inter alia, that the court erroneously
       denied his motion for a mistrial “for allegations that the judge fell asleep on multiple occasions
       and appeared to be confused for the reasons stated verbally and/or in writing to the court.” The
       circuit court denied the motion. The court explained:
                   “This phrase in here ‘on multiple occasions’, I regard as gratuitous, because
               nowhere in this record did the defense make any objection whatsoever to multiple
               occasions of what they perceived. On the one occasion that they did make a record on
               what their perceptions were I want to explain the circumstances. It was a video
               deposition. There was nothing evidentiary about the video aspect of this other than an
               above-the-waist head and shoulders shot of the witness that was testifying. No
               evidentiary value of that at all.
                   If the jury, who are fact-finders in this case, chose to assess her credibility on based
               [sic] what they viewed, so be it, but they are the finders of fact.
                   So if I was not looking at the video, that does not mean that I was not listening and
               hearing everything that was being said, and I find that the allegations that I fell asleep
               on multiple occasions to be feckless, factually unsupported, and, in fact, factually
               inaccurate, because I am the one that knows. And frankly, the insertion in this motion
               for new trial for the first time an allegation of multiple occasions, which does not
               appear anywhere else in this record, I find to be a desperate claim of error by a
               desperate defense on that particular issue.
                   The test on that is whether the judge ever lost control of the courtroom in these
               proceedings, and the answer to that is absolutely not. No one spoke in the courtroom
               during this deposition. There were no objections, there was nothing for the Court to
               rule on other than to sit there and listen to what this deposition witness had to say, and
               that was the end of that.
                   And the press had a field day with that one. I don’t like to think that all journalists
               are yellow journalists, but to pick that out, when most of the reporters weren’t even
               present here, and then run with it in the press, I found to be a little bit out of bounds. So,
               the issue there was not the deposition. It was not the evidence that was heard. It’s this
               assertion that I was asleep. And it’s feckless, it’s inaccurate, and that’s my record for


                                                     -4-
              the appellate court. I find it disgusting.”

¶ 13                                            ANALYSIS
¶ 14       Defendant argues that the circuit court abused its discretion in denying his motion for a
       mistrial because per se reversible error occurred when the trial judge fell asleep during
       Cirimotich’s testimony. We find that a judge falling asleep during a trial does not constitute
       per se reversible error. After a review of the totality of the circumstances, we find that the
       circuit court did not abuse its discretion because defendant failed to show that he was
       prejudiced.
¶ 15       “Generally, a mistrial should be awarded where there has been an error of such gravity that
       it has infected the fundamental fairness of the trial, such that continuation of the proceeding
       would defeat the ends of justice.” People v. Sims, 167 Ill. 2d 483, 505 (1995). A circuit court’s
       decision to deny a motion for a mistrial is reviewed for abuse of discretion. Id.
¶ 16       “[A]utomatic reversal is only required where an error is deemed ‘structural,’ i.e., a
       systemic error which serves to ‘erode the integrity of the judicial process and undermine the
       fairness of the defendant’s trial.’ ” People v. Glasper, 234 Ill. 2d 173, 197-98 (2009) (quoting
       People v. Herron, 215 Ill. 2d 167, 186 (2005)). An error is structural “only if it necessarily
       renders a criminal trial fundamentally unfair or an unreliable means of determining guilt or
       innocence.” People v. Thompson, 238 Ill. 2d 598, 609 (2010).
               “[M]ost errors of constitutional dimension are subject to a harmless error analysis.
               Only those constitutional violations that are ‘structural defects in the constitution of the
               trial mechanism,’ such as total deprivation of the right to trial counsel or absence of an
               impartial trier of fact, are per se error that necessitate remandment for a new
               proceeding.” People v. Shaw, 186 Ill. 2d 301, 344-45 (1999) (quoting Arizona v.
               Fulminante, 499 U.S. 279, 309 (1991)).
¶ 17       We hold that a judge falling asleep for a portion of a trial does not rise to the level of
       structural error. That is, such an error does not “necessarily render[ ] a criminal trial
       fundamentally unfair or an unreliable means of determining guilt or innocence.” Thompson,
       238 Ill. 2d at 609. Rather, such an error is subject to harmless error analysis. We find support
       for our holding in the decisions of other jurisdictions, which held that a judge falling asleep
       during trial did not constitute reversible error unless the defendant could establish prejudice.
       Lampitok v. State, 817 N.E.2d 630, 641 (Ind. Ct. App. 2004); United States v. White, 589 F.2d
       1283, 1289 (5th Cir. 1979).
¶ 18       Having found that the issue of a judge falling asleep during trial is subject to harmless error
       analysis, we determine that the judge’s falling asleep in the instant case was harmless. It is
       undisputed that neither party called upon the judge to make any evidentiary rulings during that
       time. Additionally, the evidence of defendant’s guilt was overwhelming. Police officers
       discovered cigarettes and clothing containing defendant’s DNA in the victims’ apartment.
       Some of the clothing was stained with the victims’ blood. Additionally, officers found clothing
       containing defendant’s DNA and the victims’ blood in the dumpster in Festus. The State also
       introduced photographs of defendant wearing one of the victims’ shirts the day after the
       murders.
¶ 19       When ruling on defendant’s posttrial motion, the trial judge noted that defense counsel
       made a record of his observations that the trial judge had fallen asleep on only one occasion,


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       which occurred during a video deposition. Presumably, the circuit court was referring to
       Sebben’s video deposition. However, the record shows that the incident of which defense
       counsel made a record occurred during Cirimotich’s testimony when security camera videos
       were being played. It is unclear whether the judge was merely mistaken as to which video was
       playing when he fell asleep or whether he fell asleep on both occasions. We note, however, that
       neither party called upon the judge to make any evidentiary rulings while Sebben’s video
       deposition played. Additionally, neither party stated on the record that the judge had fallen
       asleep at that time.
¶ 20        We note that defendant argues the record “strongly suggests” that the judge fell asleep on
       multiple occasions during trial, though the occasion during Cirimotich’s testimony was the
       most egregious instance. Defendant bases this argument on defense counsel’s repeated
       statements that he believed he had observed the judge fall asleep more than once. However,
       defendant provides no further details regarding these incidents. Thus, defendant has not shown
       that he was prejudiced by these alleged additional incidents.
¶ 21        Because the evidence in this case was overwhelming and the parties did not call upon the
       trial judge to make any evidentiary rulings at a time when the judge was asleep, the judge
       falling asleep was harmless error. Thus, the circuit court did not abuse its discretion on denying
       defendant’s motion for a mistrial.
¶ 22        In reaching our holding, we reject defendant’s reliance on People v. Vargas, 174 Ill. 2d 355
       (1996). In Vargas, the judge left the bench during a jury trial to take a phone call while a
       witness continued testifying. Id. at 358-60. The Vargas court held that “the nature of the
       error—total judicial absence for a portion of a felony trial—is per se reversible because such
       error is inherently prejudicial, not only to defendant’s right to a fair trial but also to the integrity
       of the judicial process.” Id. at 366. The court reasoned that the following policy concerns
       supported its holding:
                “First, a judge’s active presence on the bench during a criminal jury trial is an essential
                safeguard which aids in providing a defendant with a fair trial. Second, we believe that
                a judge’s absence from the bench might unduly influence the attitude of jurors so as to
                deny defendant an impartial trial.” Id. at 364.
¶ 23        In rejecting the State’s argument that harmless error analysis should apply, the court
       reasoned:
                    “We conclude that, because of the significant public and private interests involved
                in a criminal jury trial, a harmless error rule standard of reviewing a judge’s complete
                absence from the bench is ill-advisable in felony cases. A defendant’s liberty, as well as
                the State’s interest in convicting the guilty, are at stake in every criminal trial. A
                presiding judge’s supervision over every stage of the proceedings precludes
                speculation that jurors may perceive evidence received in the judge’s absence as less
                significant, and impresses upon jurors the importance of the interests of the State and
                the defendant. A rule that a trial judge’s absence from the proceedings is harmless
                would open the door to abuses which could hinder those interests and undermine public
                confidence in judicial proceedings. In our view, only a rule which requires reversal
                when a judge totally absents himself or herself from the proceedings will effectively
                remove any incentive which might otherwise exist for the judge to disregard the
                significant interests involved in a criminal trial.” Id. at 371-72.


                                                      -6-
¶ 24       We find that the policy concerns underlying the holding in Vargas do not apply in
       situations, as in the instant case, where a judge falls asleep on the bench. The Vargas court
       refused to apply harmless error analysis, in large part, to deter judges from abusing such a rule.
       See id. Unlike physically leaving the bench, which is always a voluntary act, falling asleep is
       often inadvertent. Thus, a rule of per se reversible error for a judge falling asleep during a trial
       would not have the same deterrent effect as in a situation where a judge chooses to physically
       leave the bench.
¶ 25       Additionally, a judge falling asleep during trial is far less likely to send a message to the
       jury that that portion of the trial is unimportant than a judge that physically leaves the bench.
       Jurors are more likely to attribute a judge falling asleep to the judge’s health or other physical
       factors. See White, 589 F.2d at 1289. In the instant case, for example, the judge fell asleep
       while the lights were turned off and a video was playing. Assuming that the jury was even
       aware that the judge fell asleep, it likely attributed it to the darkness of the room and fatigue
       rather than to lack of interest in the proceedings. There is nothing in the record to indicate that
       the jury was aware of the incident.

¶ 26                                        CONCLUSION
¶ 27      For the foregoing reasons, we affirm the judgment of the circuit court of Whiteside County.

¶ 28      Affirmed.

¶ 29        PRESIDING JUSTICE HOLDRIDGE, specially concurring.
¶ 30        I concur in the judgment and opinion of the court. I write separately because I would find
       that the defendant has waived his only issue on appeal by failing to properly address the issue
       during trial. The defendant claims that his counsel observed the judge fall asleep on “multiple
       occasions” with the Cirimotich testimony being only the most egregious instance. Assuming
       the defendant’s statement that his counsel observed the judge sleeping on “multiple occasions”
       is true, the defendant has failed to explain why his counsel took no steps after any occasion to
       rectify this problem. There is no indication in the record that defense counsel tried to bring the
       issue to the attention of the judge at any time prior to his desire to “make a record” of the judge
       falling asleep during the Cirimotich video. The defendant would have this court believe that his
       counsel was powerless to bring his observations to the court at any time prior to making a
       record to preserve the issue for appeal. I disagree.
¶ 31        Defense counsel’s tactic of not addressing the apparent problem of the judge falling asleep
       until it was time to “make a record” leads me to conclude that defense counsel was deliberately
       building error into the record, without giving the court any opportunity to address or prevent
       the error. The practice of deliberately building error into the record, a practice commonly
       known as “sandbagging,” is strongly disfavored by our courts. People v. David, 96 Ill. App. 3d
       419, 422 (1981); Minemyer v. R-Boc Representatives, Inc., 283 F.R.D. 392, 397 (N.D. Ill.
       2012). Sandbagging can result in the waiver or forfeiture of all issues, including purported
       violations of constitutional rights. Stern v. Marshall, 564 U.S. 462, 482 (2011) (“the
       consequences of ‘a litigant … “sandbagging” the court—remaining silent about his objection
       and belatedly raising the error only if the case does not conclude in his favor’ [citation]—can
       be particularly severe”).


                                                    -7-
¶ 32       Given the facts here, I find that defense counsel “sandbagged” the trial judge by not
       bringing his observation of the trial judge’s condition to immediate attention. I would further
       find that the only reason counsel did not address the issue at the soonest point possible, was his
       desire to “make a record.” For this reason, I would find that the defendant invited the error that
       he claims on appeal requires a new trial. I would affirm the defendant’s conviction.

¶ 33        JUSTICE O’BRIEN, dissenting.
¶ 34        I respectfully dissent. I would hold that a judge falling asleep for a portion of a trial
       constitutes per se reversible error under our supreme court’s holding in Vargas. In Vargas, the
       judge left the bench during a portion of a criminal jury trial to take a phone call. Vargas, 174
       Ill. 2d at 358-60. The Vargas court reasoned that this occurrence was per se reversible error
       based on policy concerns that (1) “a judge’s active presence on the bench during a criminal
       jury trial is an essential safeguard which aids in providing a defendant with a fair trial,” and (2)
       “a judge’s absence from the bench might unduly influence the attitude of jurors so as to deny
       defendant an impartial trial.” Id. at 364.
¶ 35        I believe that the judge falling asleep in the instant case was tantamount to the judge
       physically leaving the bench in Vargas. When a judge is asleep—just as when a judge is
       physically absent—the judge is unable “to supervise the courtroom, rule on objections as they
       arise during the course of the proceedings, and deter any objectionable conduct to the
       detriment of the defendant.” Id. Without the “essential safeguard” of the “judge’s active
       presence,” a defendant’s right to a fair trial is threatened. Id. A judge cannot be actively present
       on the bench when he is asleep.
¶ 36        Additionally, like when a judge is physically absent, a judge falling asleep during a
       witness’s testimony “may create a negative impression in the minds of the jury to the detriment
       of the defendant.” Id. at 365. Contrary to the majority’s assertion, I believe that it is highly
       unlikely that the jury did not notice the judge falling asleep during Officer Cirimotich’s
       testimony. Counsel called for the judge several times with no response. Defense counsel
       indicated that the judge was not roused until his clerk poked him. The judge falling asleep
       could have given the jurors the impression that the trial was unimportant or that they did not
       need to pay close attention to the testimony of the witness.
¶ 37        Because the same policy concerns underlying the court’s holding in Vargas are equally
       applicable in the instant case, I believe that harmless error analysis is inappropriate. As the
       Vargas court reasoned, “[i]f such errors could never be held reversible as long as evidence of
       defendant’s guilt is deemed overwhelming, there would be little need for courts of review to
       concern themselves with the fairness of prosecutions and the integrity of the judicial process.”
       Id. at 370.
¶ 38        Although I believe that Vargas controls the disposition of this case and that it is
       unnecessary to look to the holdings of other jurisdictions, I note the recent decision of the
       Court of Appeals of Kansas in State v. Johnson, 391 P.3d 711 (Kan. Ct. App. 2017). In finding
       that a judge falling asleep during a criminal trial constituted structural error, the Johnson court
       reasoned as follows:
                “[T]here can be no court without a judge. How can the public have confidence in the
                outcome of a trial if the trial judge is napping? This is not an error in the presentation of
                evidence, nor is it an error in the instruction of the jury, nor is it like other trial issues
                where we examine them to see if they are harmless. This error affected the framework

                                                      -8-
                of the entire trial. Our citizens expect a fully awake trial judge presiding over a criminal
                trial. This was structural error.” Id. at 717-18.
¶ 39        In the instant case, per se reversible error occurred when the judge fell asleep during
       defendant’s murder trial. Because this error infected the fundamental fairness of the trial, the
       trial court erred in denying defendant’s motion for a mistrial. Therefore, I would reverse and
       remand for a new trial.
¶ 40        For the above reasons, I respectfully dissent.




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