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 )

ILLINOIS, ) 

 ) 

Plaintiff-Appellee, ) 

 ) 

 v. ) 

 ) 

NICHOLAS T. SHELEY, ) 

 ) 

Defendant-Appellant. ) 

Appeal from the Circuit Court

of the 14th Judicial Circuit, 

Whiteside County, Illinois. 

Appeal No. 3-14-0659 

Circuit No. 08-CF-402 

Honorable Jeffrey W. O’Connor, 

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 
2 

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 
3 

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.
4 

 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.
5 

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.
6 

¶ 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-thewaist 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 
7 

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. 
8 

¶ 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. 
9 

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 
10 

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 
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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. 
12 

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. 
13 

¶ 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 
14 

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. 
15 

¶ 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.