SECOND DIVISI ON June 22, 2010

No. 1-09-0131
THE PEOPLE OF T HE STATE OF I LLINOI S,

Plaintiff-Appellee,
v. CYNTHIA

FARIA, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County

Honor able Berti na E. Lampk in, Judge Presiding.

JUSTICE KARNE ZIS delivered the opinion of the court: Following a bench trial, defendant Cynthia Faria was found guilty of possession of a stolen m otor vehicle (625 ILCS 5/4-103(a)(1) (West 2008)) and was sentenced to a term of six

years' impr isonm ent, tobe followed by a two -year pe riod of m andatory sup erv ised rele ase . O n ap pea l, de fen dan t co nte ndsshew as d enie d th e rig ht to a f air trial because the trial court: (1) limited defense counsel's ability to cross-examine the State's w itnesses and advocated f or the State by taking over the cross-ex amination of the State's w itnesses; (2) dem onstrated bias against defense couns el that evidenced a1-09-0131

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prejudgm ent of defendant's guilt; and (3) denied her right to m aking a closing argument by interr upting and challe nging defe nse counsel' s remarks. For the foll owing reasons, we affirmthe judgm ent of the trial court. The recor

d indicatesthat on January 14, 200 8, at ab out 5:3 0 a.m ., the victim 's
car , a b lack

198 9 B MW, was s tole n. T he v icti m , R ocioEs cam illa C ruz , sp oke only limited Engl ish and testi fied thro ugh an inte rpreter. Cruz sta ted that she had just par ked her

car outsidea ba ker

y locate d in C hica go a nd h ad le ft t he c ar r unn ing w hile she went inside. She also left her purse in the car. As Cruz entered the bake ry, she
saw a m an and a woman standing on the sidewalk. When she exited the bakery , her
car was missing and the m an and wom an were gone. Later that day, s he and a friend drove around looking for her car and saw it parked with tw

o individuals i nside. Cruz called 9-1-1 and flagged down a sheriff's car tha t happened to be passing by. Deputy Sheriff Ernesto Leon testified that he approached Cruz's ca r and detained defendant as defendant ex ited the car. Chicago police officers also responded to the s cene and arreste d defend ant. C ruz's iden tification ca rd and c ar keyswer e found in defenda nt's coat pocket. C ruz identified defendant as the woman she had seen in front of the bakery that m orning. Chicago police officer Susana Lacasa test ified that after defendant was arrested and given Miranda warnings, she as ked defendant if defendant knew thecar wasstolen. Defendant told her, "Yes, I knew but was - - was n ot m e the one who to ok the car fromthe bakery. It w as m y friend Eric. I was with him but I knew the car w as s tole n." When th e of fice r as ked def

end ant if s he k new

tha t th e ca r's rad io1-09-0131

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w as m iss ing, def

end ant rep lied, "Y eah . E ric took it. Er ic t ook

therad io tosell it, to s ell it in [sic] the west s ide of Chicago." After the c lose of evidence, the trial court found defendant guilty. Defendant now appeals. On appeal, defendant raises several issues regarding the propriety of the trial court's com ment

s and interjections during pretrial and trial proceedings. She m aintains that because of the court's actions she w as denied the right to a fair trial. Initiall y, we note that defense co unsel neither objected to the court's actions, neither at trial nor in a posttrial motion. Therefore, defendant's content ions are forfeited. See People v. Herron , 215 Ill. 2d 167, 17 5 (2005) (a defen dant fo rfeits rev iew of errors unless s he m akes an obj ection du ring trial and ra ises the issue in a p osttrial m otion). Defendant asks t his court to review her c laim for tw o different reasons. First, she argues that w

e should relax the forfeiture rule because the e rror concerns the trial court's conduct. S econd, she argues w e should consider the error under the second prong of the plain error exception becausethe error wasso serious she w as denied a fair trial. Our suprem e court has recently discussed forfeiture and the plain error doctrine in Pe ople v. Mc Lau rin , 235 Ill. 2d 478 (2009). In Mc Lau rin , the court first noted that the application of the forfeiture rule is less rigi d where the basis for the obj ection is the trial judge's con duct, citing to People v. Kliner , 185 Ill. 2d 81, 161 (1998), and People v. Sp rink le , 27 Ill. 2d 398 (1963). However, courts generally only relax application of the forfeiture rule in the "most compelling of situations," such as w hen a trial judge m akes1-09-0131

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inappropriate remarks to t he jury or in cas es involving capital punishment. Mc Lau rin , 235 Ill. 2d at 488. In Mc Lau rin , the court determ ined that the defendant had not presented an ex

traordinary or com pelling reason to relax the forfeiture rule because the defendant did not claim "tha t the trial court overstepped its authority in the presence o f the jury" or that counsel's obj ection to the trial court's conduct "'w ould have fallen on deaf ears.'" Mc Lau rin , 235 Ill. 2d at 488. Here, as in Mc Lau rin , defendant has not es tablished that an extraordinary or
com pelling reason exists to relax application o f the f

orfeiture r ule. First, defenda nt's trial was a bench trial and not a j ury trial. Therefore, there was n o jury tohear or be influenced by the court's rem arks. Had this been a j ury trial, we m ay well have reached a different decision. Second, the reco rd does not show that defendant's obj ections
wou ld have fa llen on deaf ears. Th e trial court neither ac

ted in def

ense co unsel's absence nor prevented defe nse counsel from ma king an objection. We decline to relax the forfeiture rule in this case. W e next ex

amine defendant 's contentions pursuant to theplain error doctrine. Plain error applies to a forfeited error affecting the substantial rights of a defendant when: (1) the eviden ce in a case i s so closel y balanced th at the guil ty verdict may have resulted from the error and not the evidence; or (2) t he error is so serious that the defendant was denied a substantial right, and thus a fair trial. Herron , 215 Ill. 2d at 178-79. To establish the first prong of plain error, the defendant m ust show both that there was plain error and that the evidence wasso closely balanced that the error1-09-0131

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alone severely threatened to tip the scales of j ustice against him. Herron , 215 Ill. 2d at 187. To establish the second prong of plain error, defendant mus t establish that the
error was so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process. Herron , 215 Ill. 2d at 187. Defendant h as the burden of persuasion of establishing plain error. People v. Naylor , 229 Ill. 2d 584, 593 (2008). W e first note that defendant w ould not be able to establish plain error under the first prong of the plain error analysis because the evidence w as not closely balanced. The evidence presented at trial established that defendant w as found sitting in the victim's car and made an inculpatory statem ent that she knew the car had been stolen. Needless to say, this w as not a close case. W ith respect to the second prong of plain error, we m ust first consider whe ther defendant established that a clear or obvious error occurred. Defendant first contends the trial court limited defense counsel's ability to cross-examine the S tate's witnesse s and advocated for the State by taking ove r counsel' s cross-examination. Specifi cally, defendant argues the court limited counsel's ability to cross-exam ine all three of the State's w itnesses; Cruz, Deput y Sheriff Leon and Officer Lacas a. A defendant's ri ght to cross-examine a witness concerni ng possibl e biases, prejudices, or ulterior m otives is protected by both the federal and state constitutions. People v. Ram ey , 152 Ill. 2d 41, 67 (1992). The right to confront adverse witnesses cannot be denied by the trial court, but the court is granted latitude in certain instances.1-09-0131

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Pe ople v. Nutall , 312 Ill . App. 3d 620, 627 (200 0). For example, the court may interject to avoid repetitive or unduly harassing interrogation. Nutall , 312 Ill. App. 3d at 627. Furthermore, a tri al court i s justified i n questioni ng witnesses when the court's pur pose is to clarify issues. People v. Heim an , 28 6 Ill. Ap p. 3 d 10 2, 1 15 ( 199 6). Thisflow s in conjunct ion with the trial court's responsibility to achieve prompt an d convenient dispatch of court proceedings. People v. Thigpen , 306 Ill. App. 3d 29, 40 (1999). Also, the trial court's latitude to question witnesses on m aterial issues is enhanced in the context of a bench trial because the danger of p rejudice to the def endant is lessened. People v. Palm er , 27 Ill . 2d 311, 314-15 (1963). However, the court must always remain im partial and cannot assum e the role of an advocate. Pe ople v. Cof ield , 9 I ll. App. 3d 1048, 1051 (1973). Def end ant poin ts to nu m ero us s pec ific instanc es o f th e co urt

inte rru ptin g his
cross-exam ination of Cruz. We hi ghlight a few of the instances below. "MR. DOU GLASS [defense counsel]: When you rode by at that time, you couldn't see any faces in the car, correct? MS. C RUZ: The one to this side I could see. Q. W hat side? THE COUR

T: W hat side of what ? A. The left side. MR. DOU GLASS: W hat side of what ? THE COUR

T: Just, Ma'am , because I can't s tand the way you do1-09-0131

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this Mr. Douglass, it's going to m ake m e scream . Ma'am , you said you could see somebody in the car. W hat seat were they sitti ng in? The face you could see, w hat seat was the person sitting in?" W hen defense counsel w as attem pting to impeach C ruz, the following colloquy occurred. "MR. DOUG LASS : When you rem em ber tes tifying - -

THE COUR

T: It's not w hen you rem ember testifying. Ask her the question and the answ er that you're challenging. MR. DOU GLASS: Okay. Let m e ask this question first, Judge. Q. Do you rem ember when you spoke in court that in court did you raise your hand to take an oath and swear to tell the truth? A. Yes. Q. Just like you did today, right? THE COURT: She doesn't have to go over that. She said sh e rose her hand. MR. DOU GLASS: I'll move on. THE C OURT: Mr. D ouglass, you j ust w aste tim e and it's unbelievable. * * * MR. DOU GLASS: Judge, I don't think that an swer is responsive to my question. I'd ask that t he court ask her to an swer m y question.1-09-0131

8 THE COURT: I don't thi nk she understand s because it' s a language p roblem and you 're not t rying to m ake it eas ier. Ma 'am - - MR. DOU GLASS: Judge, you w ant to see the transc ript? THE C OURT: I don't n eed to s ee it. I n eed to a sk thequestion - - MR. DOU GLASS: Okay. THE COUR

T: - - of som ebody who speaks a different language as you know

she does. M a'am, he's not asking you w hat you saw at the time. H e's asking you w hen you testified, whe n som ebody posed a question to you, did you answ er it the way t hat he is saying you answ ered it. And the question is were you asked 'and you d idn't see anyone's faces then, did you' and your answ er was 'no.' I s that w hat you said? A. Yes. THE COUR

T: Okay. You can go on." Defendant also cites to seve ral pages of the record in wh ich the trial court made various interjections w hen defense counsel w as cross-examining Deputy S heriff Leon and Officer Lacasa. For ex ample, during Deputy

Sheriff Leon's cross-ex amination, when defens e counsel m isstated Deputy S heriff Leon's testimo ny, the court interrupted counsel stating, "[w] ell, don't say som ething he hasn't said. I'm listening. I can't stand it." Additionally, during Officer Lacasa's cross-exam ination, the court interrupted defense counsel num erous timeswhen his quest ions were repetitive. For example, the1-09-0131

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court stated, "[n]o. W e will not ask that again. You 've asked it now three times ." The court later com mented to counsel, "[y]ou're taking this inch by inch, step by step, second by second." A lso, at t he conc lusion of Of ficer Lac asa's t estim ony, th e court not ed t hat

theoff icer spo ke w ith a n "e xceed ingly str ong accent ," d id no t qu ite s pea k in full sentences and it was clear that English was not her first language. Here, the record reflects that the trial court's numerous inter jections of defense counsel's cross-examination of the S tate's witnesse s was for the purpose of clarification and m oving the proceedings along. It was especially important to avo id confusion when Cruz

and Officer Lacasa testified since Cruz w as testifying through an interpreter and Officer Lacasa w

as not fully proficient in English. Also, it was im portant for the court to correct defens e counsel's m isstatem ent of Deputy S heriff Leon's testimo ny. W e do not find that the court limited defense counsel's ability to cross-examine the State's w itnesses or that the court's actions rose to the level of becom ing an advocate for the State. Next, defendant contends thetrial court's bias toward defense counsel caused the court to pre-j udge defendant's guilt. Defendant points to the court's following pre tria l rem arks tocou nse l.

"THE COUR

T: Mr. Douglass, I am going to have your supervisor down here, be cause I'm ma king a record. I think every cas e that you have had set for the last two m onths for trial, you have not had the witness here. They have not been serve d. I m ean, it could not1-09-0131

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continual ly be somebody else's er ror. Just five minutes ag o, I had a case here with seven witnesses. MR. DOU GLASS: Judge, I'm not denying that. THE CO UR T: N ow

on t his o ne, you say

sev en d aysbef

ore tria l, well, first you shouldn't be issuing a subpoena seve n days before trial. This case was set May 15t h for trial. You had 50 days or s o to subpoena the witness. You don't wait seven da ys before tri al to subpoe na a witness and not follow thr oug h on it. I am

not tole rat ing t his a ny lo nge r. Y ou a ll can st ep away. I n eed a su pervisor. * * * And it's not the investigator's fault, it's Mr. D ouglass, for giving the investigator a request seven days before jury trial is set when he had a mont h and a half to do so." As a result, the court had to postpone the trial until the next da y in an attem pt to allow defense counsel to bring in the w itness to testify in defendant's defens e. Ultimately, how

ever, the w itness was u navailable and did not testify. Defendant also points to the cou rt's num erous rem arks to defense cou nsel throughout trial as evidence of the court's bias.

"MR. DOU GLASS: That person you've j ust described and the
wom an you j ust des cribed - - THE COUR

T: She didn't describe a woman. She j ust described a1-09-0131

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man. MR. DOU GLASS: I'm sorry. You're right, Judge. THE COUR

T: I know . And don't even start. Don't do that

. MR. DOU GLASS: Okay. THE C OURT: Okay. There's a languageproblem clearly so don't try to confuse by

putting different things together. Don't do t hat." Defendant al so notes the court' s follo wing remarks at trial, " [y]ou may not m ake a novel ou t of a q uestion"; "[y]ou 're taking forever to ask a sim ple quest ion"; "[y ]ou're just redund ant"; and "don't go over thes e useless questions." Defendant nex

t points to the court's interruptions of defens e counsel's closing argument as further evi dence of the court' s prejudgment of defendant's gui lt. Defense counsel was po inting out discrepancies in the State's w itnesses' testim ony, com ment ing that it did not m ake sense, w hen the court responded, "it doesto m e." Defendant also refers to the following colloquy. "M R. DOU GLASS : A nd I 'll fin ish. We believe th at t her e is reasonable doubt, that the S tate has not m et their burden on each and every elemen t of this case. We ask that you find [defendant] not guilty of this crime. THE COURT: Okay. I would normally l et you argue, [def ense counsel], but I can't sta nd it so I have to actua lly go on. The State does not have to prove the plate number. The State does not have to prove the1-09-0131

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VIN num ber. The State has to prove that the defen dant possessed a car knowing that it w

as stolen. They have proved that she possess ed a car knowing that it w

as stolen." A t rial j udg e is pre sum ed to be im par tial, and thebur

den of o ver

com ing t his presum ption rests on the party m aking the charge of prej udice. Eychaner v. Gross , 202 Ill. 2d 2 28, 280 (20 02) . A llega tion s of j udic ial bia s or

pre j udic e m ust

be v iewed in context and should be evaluated in term s of the trial judge's s pecific reaction to the events taking place. People v. Jackson , 205 Ill. 2d 247, 277 (2001). A j udge's display of displeasure or irritation with an attorney's behavior is not necessarily evidence of judicial bias against the defendant or his counsel. Jackson , 205 Ill. 2d at 277. Here, w hen the trial court'scom m ents ar e viewed w ithin the co ntex t they were made, they do not evidence a bias or prej udice against defense counsel. If any thing, they show

the trial court's impatience w ith defense counsel's lack of preparedness f or trial regarding t he subp oena, t he court 's atte m pt to correct d efense counse l's misstatement

of the evidence and the court's attem pt to m ove the proceedings along when couns el asked redundant or unclear questions. This show ing of impatience, w ith nothing more, does not lead this court to conclude that the trial court was biased against def ense counsel or defendant. Perha ps the court coul d have shown a touch more p atience when dealing w ith defense counsel; however, a defendant is entitled to a fa ir tr ial an d no t a p erf ect tria l. D efe nda nt' s tr ial m ay n ot h ave bee n pe rfe ct, but it was fair. Therefore, w

e find that defendant has not overcom e her burden of1-09-0131

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challenging the court's presumpt ion of impartiality. Lastly, defendant contendsshe was denied the right to a fair trial when the trial court limited defense coun sel's closing argument by interrupting and challenging counsel's rem arks. Specifically, the trial court challenged defense counsel's argument that it did not make sense that Deput y Sheriff Leon w

ould turn over defendant's arrest to t he Chicago polic e de par

tm ent rat her tha n m ake thearr

est him self . Th e co urt

com m ent ed t hat

it made sense to her because in he r experience i t was rare that a sherif f made an arrest when the C hicago police department w as also involved. Defense counsel further argued that the State had not proven de fendant gui lty because the State faile d to prove that th e vehicle iden tification nu m ber (VI N) from the recovered car m atched the vict im's car. The court com mented both before and after counsel concluded his argumen t that the State did not have to prove the VIN and the victim 's testimo ny that the recovered
car was her car wassufficient. Defense couns el concluded his closing argument by stating that the State had not proven defendant guilty beyond a reasonable doubt. A defendant has aconstitutional right to present a closing argument

. Herring v. New York , 422 U.S. 85 3, 45 L. Ed. 2d 593, 95 S. Ct . 2550 (1975). How ever, the trial court has broad discretion in regards to limiting the argum ent. Herring , 422 U.S. at 862 -65 , 45L. E d. 2 d at 600 -02 , 95S. Ct . at

255 5-5 7. A ltho ugh theclos ing a rgu m ent is not evidence, the trial court has a duty to be attentive, patient, and im partial. People v. Sm ith , 205 Ill. App. 3d 153, 157 (1990).1-09-0131

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Here, defense couns el presented a full closing argument to the court. Although his remarkswere challenged by the court, he wa s perm itted to argue his theory of the case to the court. He was neithe r given a ti me limit nor pressured by the court to fini sh premat urely. Counsel finished his argument by stating that the Sta te had not proven each elem ent of t he charg ed offe nse beyond a rea sonable do ubt and asked t he court to find defendant not guilty. W e are not persuaded by def endant's reliance on People v. Heim an , 28 6 Ill. App. 3d 102 (1996), and People v. Stevens , 338 Ill. App. 3d 806 (2003). In Heiman , the cause w

as reversed and rem anded for a new trial because the court m ade "excess ive and exaggerated deroga tory" com ments about the defendant during closing argument

as well as negative com ments about a defense w itness prior to and after the witness's cros s-exam ination. Heiman , 286 Ill. App. 3d at 112. This court found on appeal that the trial court's 40 to 50 interruptions and argum ents with defens e counsel during closing argument indicated that the trial court had already decided the case and was not interested in any argum ent from the defense. Heiman , 286 Ill. App. 3d at 112. In Stevens , the trial court repeated ly inte rrupted defe nse counsel, e xhibited i mpatience by telling counsel he had two m inutes left to argue and then im mediately telling counsel he had o verrun h is tim e, and s how ed a prej udgm ent of t he caseby rem arking bef ore counsel concluded that the court w as convinced the State had proven the defendan t guilty. Stevens , 338 Ill. App. 3d at 810. U nlike in Heiman and Stevens , the t rial court here did not make derogatory comm ents about defend ant, did not cut short defense1-09-0131

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counsel' s argument with a time limitation and did not show a prejudgment of the case before counsel concluded his argum ent. For the foregoing reasons, we find that no clear or obvious error occurred. Therefore, defendant has failed to m eet his burden of establishing plain error. Defendant's claims

are forfeited. Accordingly, we af

firm the j udgme nt of the trial court. Affirme d. HOFFM AN an d THEI S, JJ ., conc ur.1-09-0131

16 REPORTER OF DECISIONS - ILLINOIS APP ELLATE COURT

THE PE OPLE OF THE STATE OF ILLI NOIS,

Plaintiff-Appellee, v. CYNTHIA

FARIA, Defendant-Appellant.
No. 1-09-0131 Ap pella te C our

t of Illin ois First District, Second Division June 22, 2010
JUSTICE KARNE ZIS delivered the opinion of the court.

HOFFMAN and THEIS, JJ., concur. Appeal from the Circui t Court of Cook County. The Honorable Bertina E. Lam pkin, Judge Presiding.

For APPELLANT, DePaul Univer sity Legal Clini c, Chicago, IL (Pro fessor Andrea D. Lyon, Assoc iate Dean for Clinical Programs, and Frank Cesarone, law student) For APPE LLEE, A nita Alvarez, State's A ttorney of Cook C ounty (Alan J. Spellberg, Tasha-Marie Kelly, Jacqueline Jam es, Assistant S tate's Attorneys, of counsel).