People v. Sheley

2017 IL App (3d) 140659

90 N.E.3d 493

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Nicholas T. SHELEY, Defendant–Appellant.

Appeal No. 3–14–0659

Appellate Court of Illinois, Third District.

Opinion filed October 27, 2017

Michael J. Pelletier, Thomas A. Lilien, and Fletcher P. Hamill, of 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.

JUSTICE SCHMIDT delivered the judgment of the court, with 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?

(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.

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 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...