                                          2017 IL App (3d) 140659

                               Opinion filed October 27, 2017
     _____________________________________________________________________________

                                                   IN THE

                                    APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                    2017

     THE PEOPLE OF THE STATE OF             )     Appeal from the Circuit Court
     ILLINOIS,                              )     of the 14th Judicial Circuit,
                                            )     Whiteside County, Illinois.
           Plaintiff-Appellee,              )
                                            )
           v.                               )     Appeal No. 3-14-0659
                                            )     Circuit No. 08-CF-402
     NICHOLAS T. SHELEY,                    )
                                            )     Honorable Jeffrey W. O’Connor,
           Defendant-Appellant.             )     Judge, Presiding.
     _____________________________________________________________________________

               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


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     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?

                          (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.



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                           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.

                                                     4
                              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.

                              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.

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¶ 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


                                                          6
                      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 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.




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¶ 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 constituted reversible error unless the defendant could establish prejudice. Lampitok v.


                                                        8
       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,

       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


                                                        9
       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


                                                        10
                      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.

¶ 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.


                                                        11
       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.




                                                        12
¶ 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”).

¶ 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




                                                        13
       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. at 364. 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.


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¶ 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 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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