Nos. 1-13-3033 & 1-13-3107 (Consolidated) September 1, 2015

SECOND DIVISION

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) Of Cook County. Plaintiff-Appellee, ) ) v. ) No. 11 CR 5697 ) MARCUS WIGGINS and ANDRE SWIFT, ) ) The Honorable Defendant-Appellant. ) Thomas Arthur Hill, Judge Presiding.

JUSTICE NEVILLE delivered the judgment of the court, with opinion. Justice Simon concurred in the judgment and opinion. Justice Liu dissented, with opinion.

OPINION

¶1 A jury found Marcus Wiggins and Andre Swift, guilty of attempting to murder Robert

Barnes by shooting him. Barnes admitted at trial that he signed a statement in which he

identified Wiggins as the shooter and Swift as the person who ordered the shooting, but he

testified that he lied when he signed that statement. On appeal, Wiggins and Swift argue that

the trial judge acted as a prosecutor when the judge asked Barnes questions designed to

impeach Barnes's testimony at trial. Wiggins argues that the judge's other actions further

signaled to the jury the judge's preference for the prosecution. We find that the judge Nos. 1-13-3033 & 1-13-3107 (Cons.)

abandoned his role as a neutral arbiter and his acts prejudiced the defense. Accordingly, we

reverse the convictions and remand for new trials.

¶2 BACKGROUND

¶3 On March 18, 2011, Robert Barnes and Miguel Ruffin walked to the corner of 51st Street

and Ada Street in Chicago. Some men started arguing with Barnes. A man shot Barnes four

times in the leg. The shooter and the other men left the scene. Police arrived a few minutes

later and an ambulance took Barnes to a hospital.

¶4 In the hospital, Barnes told police that members of the Blackstones gang shot him.

Assistant State's Attorney Jennifer Hamelly (ASA Hamelly) wrote out, and Barnes signed, a

statement about the shooting. Barnes checked himself out of the hospital later the same day.

Based on Barnes's statement, police arrested Wiggins and Swift and charged them with

attempted murder.

¶5 A single jury heard the evidence against both Wiggins and Swift. At the trial, Barnes

testified that the shooting arose out of a disagreement about which gang controlled drug sales

on the corner of 51st and Ada. Barnes, a member of the Latin Kings, said that on March 18,

2011, the day before the shooting, he went to the corner of 51st and Ada to sell drugs. Swift,

of the Blackstones, drove up in a white van and told Barnes not to sell drugs on that corner,

because Blackstones controlled that area.

¶6 Barnes testified that on March 19, 2011, he returned to the corner of 51st and Ada, this

time coming to the corner with Ruffin, who was a former member of the Latin Kings. A

white van passed them and stopped. Barnes testified that Al Clark and two other Blackstones

got out of the van. A masked man shot Barnes and got into a green van, while the others left

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the scene in the white van. Barnes testified that he did not see Swift at the scene of the

shooting, and he did not know whether Swift held any rank in the Blackstones.

¶7 Barnes admitted at trial that the statement he signed told a different story. According to

the statement, Barnes knew that Swift was a general in the Blackstones. Swift and Wiggins

got out of the white van on March 19, 2011. After arguing with Barnes about the drug sales,

Swift said to Wiggins, "handle this." Barnes told ASA Hamelly that Wiggins, who wore no

mask, then shot him.

¶8 Barnes testified that he lied to police and to ASA Hamelly about the shooting. He knew

some Blackstones shot at him, so he named some Blackstones as the persons responsible,

even though he had not seen them at the scene. Barnes said that he later called Swift's

attorney. He went to the attorney's office, where he signed a statement admitting that he lied

to police.

¶9 The trial judge interrupted the assistant State's Attorney's questioning of Barnes to ask:

"This version of the events contained in the document that you signed as

prepared by [Swift's attorney], did you ever reach out to the police and tell them

about the facts contained in that document?"

Barnes admitted he did not so tell the police. The judge followed with the

question: "Did you ever contact the Cook County State's Attorney's Office and tell

them about the facts contained in that affidavit?"

¶ 10 Again, Barnes admitted he did not.

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¶ 11 On recross examination, Swift's attorney asked Barnes a question about the statement

Hamelly wrote out. This colloquy followed:

"[Prosecutor]: Objection, Your Honor.

THE COURT: Basis.

[Prosecutor]: Impeaching.

THE COURT: Well, the Court's question is is it within the scope of what we just

did?"

¶ 12 The judge then sustained his own objection to the question as beyond the scope of

redirect examination.

¶ 13 Ruffin's testimony at trial largely corroborated Barnes's trial testimony, and conflicted

with the statement ASA Hamelly prepared for Barnes's signature. Ruffin testified that he

saw two or three Blackstones get out of the white van, but he could not identify any of those

gang members. Ruffin thought something bad would happen so he walked away quickly.

He did not see the shooting. Some of the Blackstones got back in the white van, while others

left in a car. Ruffin remembered that he spoke to police and ASA Hamelly after the

shooting, but he did not remember what he said.

¶ 14 ASA Hamelly testified that Ruffin signed a statement she prepared. In the statement,

Ruffin identified Swift as a general in the Blackstones and as the driver of the white van.

Ruffin told ASA Hamelly he saw Swift, Wiggins, and another member of the Blackstones get

out of the van. Swift told Barnes not to sell drugs in Blackstones territory. Barnes said Swift

"can't tell [Latin Kings] what to do." Swift told Wiggins to "handle this." Wiggins took a

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gun from his waistband. Ruffin started running before he heard the shots. Swift, Wiggins

and the third Blackstone got in the white van and drove off.

¶ 15 Al Clark also testified at trial. He admitted that he was a member of the Blackstones, and

he had two convictions for possession of controlled substances. He was still serving his

prison sentence for those convictions at the time of trial.

¶ 16 Clark testified that on March 19, 2011, he drove a green car to 51st and Ada, where he

saw Swift and Wiggins get out of the white van and walk up to Barnes. Swift argued with

Barnes about drug sales on the block. Wiggins started shooting. The prosecutor asked, "And

before the shooting began, did you hear [Swift] say anything to [Wiggins]?" Clark answered,

"Not quite." Clark took off when the shooting started. Clark admitted that at the police

station he signed a written statement which said he heard Swift say to Wiggins, "handle this."

¶ 17 On cross-examination, Swift's attorney showed Clark a copy of the written statement

Clark signed at the police station. The prosecutor objected that the copy counsel used bore

counsel's notes and other markings not on the original. The judge permitted defense counsel

to use the copy, but the judge said, in the presence of the jury, "Well, okay, tell you what,

watch yourself, man."

¶ 18 The prosecutor sought leave to have an assistant State's Attorney read to the jury the

entirety of the written statement Clark signed at the police station. Both defendants objected.

After listening to the parties' arguments, the court said:

"The State has already taken the position, and I agree with it, that in this

circumstance this witness when he testified, and I'll just use the one operative sort

of fact and there may be other facts less operative, I'll say, regarding what, if

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anything, *** Mr. Swift[] might have said. His testimony was 'not quite' or 'not

exactly.' He has acknowledged that he gave a statement to the assistant state's

attorney that was more definitive where he specifically *** told her that Swift

said, 'Handle it.'

The Court is going to allow the assistant state's attorney who took that

statement to talk about the entirety of it to put everything in context. There is an

inconsistency here and the jury, I think, is entitled to hear everything that was said

from the assistant state's attorney's standpoint to juxtapose that with the live

testimony here about what Mr. Clark says he heard or didn't hear on the street."

¶ 19 According to the written statement, Clark drove to the corner of 51st and Ada, where he

saw Swift pull up in a white van. Clark saw Swift and Wiggins approach Barnes. Swift

argued with Barnes about who could sell drugs on that corner. Clark heard Swift say,

"handle this," and then Wiggins started shooting.

¶ 20 Swift's attorney sought to establish, through cross-examination of the assistant State's

Attorney, that police had not adequately investigated the shooting, as they made no effort to

interview several eyewitnesses to the shooting. The judge interrupted the questioning to say:

"Let me jump in here because *** the witness cannot speak for someone else. The whole

series of questions about what the police could do and [the assistant State's Attorney] is not a

police officer and so I'm going to sustain my own objection."

¶ 21 Wiggins cousin, Donnell Gardner, testified that on March 19, 2011, Wiggins spent the

day with him.

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¶ 22 In rebuttal argument, the prosecutor said to the jury that the defense attorneys were

"selling you a bill of goods because that is their job." The trial court sustained counsel's

prompt objection to the remark.

¶ 23 The jury found both Swift and Wiggins guilty of attempted murder, specifically finding

that Wiggins personally discharged a firearm and caused great bodily harm to Barnes.

¶ 24 At the sentencing hearing, Wiggins presented extensive evidence of his considerable

academic achievements. He received several awards for exceptional academic performance.

Wiggins, who was 18 years old on March 19, 2011, had no prior convictions.

¶ 25 Swift's prior convictions start in 1996. He had two convictions for battery, followed by

convictions for possession of controlled substances in 1998, aggravated vehicular hijacking

in 2003, unlawful use of a weapon by a felon in 2005, and possession of a fraudulent

identification card in 2008. He had only a brief period of lawful employment outside of

prison.

¶ 26 The trial judge sentenced Wiggins to 50 years in prison and Swift to 45 years. The court

denied their motions for new trial and for reconsideration of the sentences. Wiggins and

Swift now appeal.

¶ 27 ANALYSIS

¶ 28 Wiggins' Appeal

¶ 29 Wiggins argues (1) the State failed to prove him guilty; (2) the trial judge should not have

allowed into evidence the written statement Clark signed; (3) the judge acted as an advocate

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for the State; (4) Wiggins' trial counsel provided ineffective assistance; and (5) the judge

imposed an excessive sentence.

¶ 30 Sufficiency of the Evidence

¶ 31 We will not reverse a conviction for insufficient evidence as long as any rational trier of

fact could find that the State proved all the elements of the charged offense beyond a

reasonable doubt. People v. Baskerville,

.

¶ 32 The State relied on three witnesses in support of the convictions. Barnes signed a

statement which said Barnes heard Swift say, "handle this," and then Wiggins pulled out a

gun and shot Barnes. At trial, Barnes renounced the written statement, testifying that the

shooter wore a mask and Barnes did not see Swift at the scene. Ruffin signed a statement

which said Ruffin saw Wiggins with a gun, and he heard Swift say, "handle this," before

Ruffin heard shots. Ruffin, like Barnes, renounced the written statement at trial. Ruffin

testified that he did not see who shot Barnes, and he could not identify Swift or Wiggins as

the Blackstones he saw at the scene.

¶ 33 Only Clark testified to facts largely consistent with the facts in the written statement he

signed. He testified, in accord with the written statement, that he heard Swift argue with

Barnes, and he saw Wiggins pull out a gun and start to shoot. Clark testified that he did

"[n]ot quite" hear Swift say anything to Wiggins before the shooting. In the written

statement, Clark said he heard Swift say, "handle this."

¶ 34 The trial judge correctly found that the jury could use the prior inconsistent statements of

Barnes and Ruffin as substantive evidence. See People v. McCarter,

(2008); 725 ILCS 5/115-10.1 (West 2012). According to the written statements, Barnes

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and Ruffin saw Wiggins pull out a gun right before they heard gunshots. Barnes said he saw

Wiggins shooting. Clark testified that he saw Wiggins shoot Barnes. Despite the

renunciation of the written statements, and Clark's motive, as a prisoner, to give the

testimony the State sought, we find the evidence sufficient to support the conviction. See

People v. Graham,

(2009).

¶ 35 Clark's Written Statement

¶ 36 We review the ruling on the written statement Clark signed for abuse of discretion.

People v. Donegan,

. Section 115-10.1 of the Code of

Criminal Procedure of 1963 (725 ILCS 5/115-10.1 (West 2012)) governs the use of prior

inconsistent statements as substantive evidence. Section 115-10.1 "required *** the trial

court to determine whether the written statement *** was inconsistent with [the witness's]

trial testimony and to admit only those portions which were actually inconsistent." People v.

Lawrence,

(1994). The trial judge here made no effort to follow

the statutory strictures. The judge permitted the prosecution to read to the jury the entirety of

the statement Clark signed, when that statement repeated his trial testimony in all significant

respects but one. According to the signed statement, Clark heard Swift say, "handle this." At

trial, Clark testified that he did "[n]ot quite" hear Swift speak right before Wiggins started

shooting. The trial judge abused his discretion when he permitted the prosecutor to read to

the jury the prior consistent statements in the written statement Clark signed.

¶ 37 The dissent argues that the trial court properly admitted Clark's prior consistent statement

to rebut a charge that he recently fabricated his testimony. Neither the trial court nor the

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prosecution advanced this theory to justify the use of Clark's statement. A brief review of the

record shows why.

¶ 38 Clark testified at trial about the circumstances under which he signed the statement at the

police station. Four days after the shooting, on March 23, 2011, Clark went to his girlfriend's

home. Police climbed into the bedroom through a window late that night. They took Clark

to the police station, where they kept him in a small windowless room for several hours.

Clark knew he was not free to leave. When police questioned Clark, they told him a witness

had already identified him in connection with the shooting. Clark then signed the statement

identifying Wiggins as the shooter and stating that Swift told Wiggins to "handle this"

problem.

¶ 39 The dissent correctly recites both the general principle that the court should not permit

parties to introduce prior consistent statements from witnesses, and the narrow exception for

prior statements used to rebut an inference that the witness recently fabricated the testimony

or that the witness had a motive to testify falsely. Ill. R. Evid. 613(c) (eff. Jan. 6, 2015).

"Under these circumstances, a prior consistent statement may be admissible, but only if the

witness ma[de] the prior consistent statement before the motive to fabricate arose." People v.

Heard,

(1999).

¶ 40 Once police brought Clark to the police station for questioning and told him that a

witness identified him in connection with the shooting, Clark had a motive to fabricate a

story blaming someone else for the shooting. See Heard,

. Because Clark

signed the statement after the motive to lie arose, the narrow exception the dissent cites does

not apply. Ill. R. Evid. 613(c) (eff. Jan. 6, 2015); People v. Terry,

, 995

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(2000) (the prior consistent statements were not made until after the witness arguably had a

motive to testify falsely-upon his questioning at the police station over a two day period,

which may have meant he was a suspect). The State and the trial court cannot justify the

introduction of the prior consistent statement into evidence under the exception for

statements used to rebut an inference of recent fabrication or that the witness had a motive to

testify falsely. See Heard,

; Terry,

; People v.

McWhite,

(2010). The dissent's posited reason for the statement

does not change our conclusion: the trial court abused its discretion when it permitted the

prosecution to read to the jury the entirety of the statement Clark signed.

¶ 41 Courts exclude prior consistent statements because of their unfair prejudicial effect:

"The danger in prior consistent statements is that a jury is likely to attach

disproportionate significance to them. People tend to believe that which is

repeated most often, regardless of its intrinsic merit, and repetition lends

credibility to testimony that it might not otherwise deserve. [Citation.] For this

reason, several courts have found that the erroneous admission of a prior

consistent statement constitutes reversible error. [Citations.]

The admission of a statement used to bolster the sagging credibility of a

witness is reversible error when the witness' in-court testimony is crucial."

People v. Smith,

(1985).

¶ 42 We need not here decide whether the erroneous admission of the written statement into

evidence, standing alone, amounts to reversible error. We will assess the prejudicial effect of

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the error in light of the cumulative effect of all trial errors. People v. Fultz,

.

¶ 43 Judge as Advocate

¶ 44 Wiggins points to three instances in which the trial judge acted more as an advocate for

the State than as an impartial arbiter. Twice the judge interposed objections on behalf of the

State, and both times he sustained his own objections. The judge also completed the State's

examination of Barnes, asking Barnes if he ever brought to the attention of police or the

State's Attorney's Office the facts stated in the statement Barnes signed in the office of

Swift's attorney. The judge further signaled to the jury his attitude towards the defense when

he referred to the prosecution's redirect examination of Barnes as "what we just did," and

when he said to Swift's counsel, in front of the jury, "watch yourself, man."

¶ 45 The State contends that we should not review the judge's conduct because defense

counsel did not object at trial to the judge's comments and actions. Our supreme court

confronted a similar situation in People v. Sprinkle,

(1963). The Sprinkle court

said:

"The conduct complained of here consists of actions of the trial judge. The making

of an objection to questions or comments by a judge poses a practical problem for

the trial lawyer. It can prove embarrassing to the lawyer, but, more importantly,

assuming that most juries view most judges with some degree of respect, and

accord to them a knowledge of law somewhat superior to that of the attorneys

practicing before the judge, the lawyer who objects to a comment or question by

the judge may find himself viewed with considerable suspicion and skepticism by

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the very group whom he is trying to convert to his client's view of the facts, thereby

perhaps irreparably damaging his client's interests. If he fails to object, he may, on

appeal, be faced, as defendant here is, with the claim that his failure to act has

precluded consideration of the error, and it is not always a sufficient answer to this

situation to say that the objection can be made and ruling secured outside the

hearing of the jury. It is particularly incumbent upon the trial judge to exercise a

higher degree of care in his comments regarding, or interrogations of, witnesses

before a jury in order to avoid influencing the jurors to any extent, and we therefore

hold that a less rigid application of the rule requiring timely and proper objection

and preservation of rulings thereon should prevail where the basis for the objection

is the conduct of the trial judge than is otherwise required." Sprinkle,

.

The objectionable comments here all took place in open court where timely objections may

have biased the jury against the defense attorneys and their clients. Following Sprinkle, we

will review the alleged errors despite the failure to object, because a fair trial before a neutral

arbiter "is a fundamental requirement in a criminal prosecution and when such requirement is

not met, it amounts to a denial of due process of law." People v. Finn,

(1959).

¶ 46 The trial judge has discretion to raise objections and to question witnesses. People v.

Marino,

(1953). However,

"While the court had a wide discretion in the conduct of a trial, it must not

invade the province of the jury by making comments, insinuations or suggestions

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indicative of belief or disbelief in the integrity or credibility of a witness.

[Citations.] In all criminal prosecutions, the accused persons, guilty or innocent,

are entitled to a fair and impartial trial by jury. A fair trial contemplates that the

jury will, alone, fulfill its duty of determining the facts, and it is not the province of

the judge, in a criminal case, to express by word or indicate by conduct, in the

jury's hearing, any opinion upon the facts. [Citation.] While it is true that a judge

has a right to question witnesses or call other witnesses to the stand in order to

elicit the truth or to bring enlightenment on material issues which seem obscure, he

must do it in a fair and impartial manner, without showing bias or prejudice against

either party. [Citation.] Jurors are ever watchful of the attitude of the trial judge

and his influence upon them is necessarily and properly of great weight, thus his

lightest word or intimation is received with deference and may prove controlling. In

a criminal trial, a hostile attitude toward an accused, or his witnesses, is very apt to

influence the jury in arriving at its verdict." Marino,

.

¶ 47 The judge's questions here did not clarify Barnes's testimony about the shooting and what

Barnes saw on March 19, 2011. The questions only presented to the jury a new basis for

finding Barnes's testimony at trial less credible.

¶ 48 The dissent finds that the judge's sua sponte objections properly ensured that the jury

heard only admissible evidence. During recross-examination of Barnes, the prosecutor

objected to one of defense counsel's questions as "[i]mpeaching." The objection made no

sense. A defense attorney may try to impeach a witness for the State through cross-

examination. People v. Collins,

(1985). Rather than ruling on the

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objection, the judge raised his own objection to the question as beyond the scope of redirect

examination. Scope objections prevent the jury from hearing relevant, admissible testimony,

as a sustained scope objection precludes the testimony solely on the basis of the attorney's

failure to ask the question at the correct time. See People v. Chambers,

(1989). The court's first sua sponte objection helped the prosecutor find a way to

prevent the jury from hearing relevant, admissible evidence defense counsel sought to elicit.

¶ 49 The judge's second sua sponte objection arose during cross-examination of an assistant

State's Attorney, when defense counsel sought to show that investigators quickly curtailed

investigation into the shooting without interviewing the available witnesses. The court did

not question the witness about whether she knew about the proper procedure for conducting

investigations. This court lacks the assurance the trial judge showed in asserting that an

assistant State's Attorney, whose work always closely involves the police and their

investigations, lacks sufficient knowledge to testify about proper investigatory procedures.

See People v. Brown,

(1993). Again, the judge did not design the

objection to prevent the jury from hearing inadmissible evidence–he foreclosed any effort to

find out the extent of the witness's knowledge, when such an effort could have shown that

defense counsel's questions would elicit admissible testimony. The judge's sua sponte

objection precluded the jury from hearing potentially admissible evidence that might have

helped defense counsel make a better case for the defense.

¶ 50 We find that the trial judge abandoned his role as neutral arbiter, when he interposed

objections on behalf of the State (see Pavilon v. Kaferly,

(1990)),

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and when he questioned Barnes in a manner designed to impeach Barnes's trial testimony.

See Sprinkle,

. We find that he further indicated to the jury a preference

for the prosecution when he said to defense counsel, "watch yourself, man," and when he

referred to the State's redirect examination of Barnes as "what we just did."

¶ 51 The dissent finds that "we" could refer to both parties' attorneys and the court

collectively. But when "what we just did" refers to the questioning that preceded defense

counsel's recross-examination of the witness, the phrase establishes an opposition between

"what we just did" and what defense counsel is doing–implicitly making defense counsel and

the defendant not part of "we."

¶ 52 To determine the prejudicial effect of the judge's conduct, we consider the cumulative

effect of (1) the interposed objections, (2) the impeachment of Barnes, (3) the remarks to

defense counsel, (4) the suggestion that the judge identified himself as part of the

prosecution, and (5) the admission into evidence of Clark's prior statement, in its entirety,

about the incident. See People v. Whitlow,

(1982). No physical evidence

tied either Swift or Wiggins to the crime scene. Two of the State's three key witnesses

renounced the statements they signed and gave testimony that did not support a finding that

Wiggins or Swift committed the crime charged. The State's third key witness, Clark, altered

one significant detail from his written statement. To find Wiggins guilty, the jury needed to

rely either on the testimony of Clark, or on the statements Barnes and Ruffin signed at the

police station. The court admitted inadmissible evidence when it permitted the prosecution

to read to the jury Clark's statement to bolster his testimony, increasing the likelihood the

jury would think it credible and thereby prejudicing Wiggins. For the jury to rely on the

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signed statements of Barnes and Ruffin, the jury needed to reject their trial testimony

disavowing those statements. Thus, the jury would need to find both that Barnes and Ruffin

lied when they testified under oath, and that Barnes and Ruffin were sufficiently reliable that

the jurors could believe their signed statements.

¶ 53 We find the evidence closely balanced. The judge's errors of acting as advocate for the

State, interposing objections for the State, completing the State's impeachment of a witness,

and subtly threatening defense counsel before the jury, while permitting the State to read into

evidence all of the extensive portions of a key witness's out-of-court statement consistent

with that witness's trial testimony, served to deprive Wiggins of a fair trial. We reverse

Wiggins' conviction and remand for a new trial. In light of our resolution of this issue, we

need not address Wiggins' arguments about ineffective assistance of counsel or his sentence.

¶ 54 Swift's Appeal

¶ 55 Most of the considerations concerning Wiggins' trial apply equally to Swift's trial, as the

State chose to try the two defendants simultaneously before a single jury. However, Swift's

attorney has not raised on appeal the issues raised by Wiggins' appellate counsel. Swift

contends (1) the State failed to present sufficient evidence to justify the conviction; (2)

prosecutorial misconduct in closing argument denied him a fair trial; (3) the trial judge

improperly questioned Barnes; and (4) the trial judge imposed an excessive sentence.

¶ 56 Sufficiency of the Evidence

¶ 57 We find the evidence against Swift sufficient to support his conviction for the same

reason we found the evidence against Wiggins sufficient. The jury could use the testimony

of Clark and the signed statements of Barnes, Ruffin and Clark as substantive evidence.

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According to those statements, Swift argued with Barnes about which gang could sell drugs

at 51st and Ada, and when they failed to reach an agreement, Swift said to Wiggins, "handle

this." In the context of the dispute, the jurors could infer that Swift intended for Wiggins to

handle the matter by killing Barnes. The evidence supports holding Swift accountable for the

attempt to murder Barnes. See People v. Roppo,

(1992).

¶ 58 Closing Argument

¶ 59 Swift points to a single remark in closing argument as grounds for reversal. The

prosecutor accused Swift's counsel of trying to sell the jury "a bill of goods." The trial judge

sustained defense counsel's prompt objection to the remark. As our supreme court said in

People v. Moore,

(1996), "[t]he act of sustaining an objection and

properly admonishing the jury is usually viewed as sufficient to cure any prejudice." We do

not see the single remark in this argument as so severely prejudicial as to require a retrial,

especially because the trial court sustained a prompt objection to the remark.

¶ 60 Questioning Barnes

¶ 61 Swift argues that the judge became an advocate for the State when the judge questioned

Barnes as to whether he told police and the State's Attorney that the statement he signed at

the police station included lies. We find the questions improper, as the judge showed that he

did not believe Barnes's testimony at trial by seeking to impeach it. In the context of the

entire trial, where the trial judge sustained his own objections to defense counsel's questions,

and said to defense counsel, before the jury, "watch yourself, man," and unfairly permitted

the prosecutor to read to the jury prior consistent statements of a key witness, we find that the

questioning of Barnes could have weighed heavily with the jury.

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¶ 62 The evidence against Swift balances very closely with the evidence in his favor. Neither

Ruffin nor Barnes testified that Swift appeared at the scene of the shooting. Clark saw Swift

there, but did "[n]ot quite" hear him say anything to Wiggins before Wiggins started

shooting. The jurors could rely on the out-of-court statements of all three witnesses–but to

do so, the jurors needed to find credible the statements of three witnesses who willingly lied

under oath at trial. Because of the closely balanced evidence, we find that the questioning of

Barnes requires reversal of the conviction.

¶ 63 Because the trial judge's advocacy for the State also requires reversal of Swift's

conviction, we need not address Swift's arguments for reversal of the sentence.

¶ 64 CONCLUSION

¶ 65 In this case with closely balanced evidence against both defendants, the trial judge

committed reversible error by permitting the prosecution to read to the jury the prior

consistent parts of the statement Clark signed; by interposing and sustaining his own

objections to defense questions; by saying to defense counsel, in front of the jury, "watch

yourself, man"; by signaling to the jury the judge's identification with the prosecution; and by

questioning a witness in a manner that conveyed his disbelief in the witness's testimony in

court. We find the evidence sufficient to sustain the convictions of both defendants.

Accordingly, we reverse the convictions and remand for new trials.

¶ 66 Reversed and remanded.

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¶ 67 Liu, J., dissenting:

¶ 68 I agree with the majority that the evidence was sufficient to sustain the convictions of

both defendants and that the State's remark in closing argument did not deprive defendants of a

fair trial. With respect to the remainder of the majority's conclusions, however, I do not agree

that the court erred in admitting Clark's statement or that it abandoned its role as neutral arbiter.

¶ 69 A. Admission of Clark's Statement

¶ 70 First, the majority assigns error to the trial court's admission of the typewritten statement

that Clark signed after relaying his account of the shooting to Assistant State's Attorney (ASA)

Krystyn Dilillo on March 22, 2011, because most of the statement was consistent with his

testimony at trial. As a general rule, evidentiary rulings are within the trial court's sound

discretion and will only be reversed for abuse of discretion, where the ruling is "arbitrary,

fanciful, unreasonable, or where no reasonable person would take the view adopted by the trial

court." People v. Caffey,

(2001). In reviewing the document that the court

admitted, I agree with the majority's finding that Clark's testimony was "largely consistent" with

the content of his typewritten statement. Taking all of the circumstances surrounding Clark's

testimony into perspective, however, the record supports a finding that the trial court did not

abuse its discretion by admitting the statement in its entirety.

¶ 71 Out-of-court statements made prior to trial are generally inadmissible for the purpose of

corroborating trial testimony or rehabilitating a witness. People v. McWhite,

(2010) (citing People v. Cuadrado,

(2005); People v. Heard,

(1999)). This rule is necessary precisely for the reason pointed out by the majority:

because a jury may "tend to believe that which is repeated most often, regardless of its intrinsic

20 Nos. 1-13-3033 & 1-13-3107 (Cons.)

merit, and repetition lends credibility to testimony that it might not otherwise deserve." People v.

Smith,

(1985). A narrow exception exists, however, which permits the

admission of prior consistent statements to rebut a charge or an inference that the witness

recently fabricated trial testimony or had a motive to testify falsely. People v. Williams,

(1991); McWhite,

. Here, that exception applied. The trial

court's admission of Clark's prior consistent statement was not unreasonable because it served to

rebut a charge or an inference that his testimony was of recent fabrication or that he was

motivated to testify falsely.

¶ 72 During the trial, defense counsel questioned Clark extensively on a possible recent

motive to testify falsely. On cross-examination, Clark admitted that he was convicted possession

of a controlled substance in 2010, that he was sentenced to probation, and that at the time of trial

he was charged with a violation of that probation. The following exchange then occurred

between Wiggins' defense counsel and Clark:

"Q. In fact, you're scheduled to stand trial tomorrow on a

criminal trespass to land case; is that right?

A. Correct.

Q. And so we're clear, since you are accused of violating

your probation, you stand the possibility of being resentenced on

the case that you are on probation for; is that right?

A. Correct.

Q. That could be anywhere from one to six years in prison;

is that right?

21 Nos. 1-13-3033 & 1-13-3107 (Cons.)

A. Correct.

Q. You don't want to go to prison, do you?

A. Whatever my judge sentence [sic]. It's up to my judge.

Q. But being honest today, you don't want to go to prison;

is that right?

A. Correct.

Q. It behooves you to make the State happy today; is that

right?

A. Correct.

Q. Because you're on trial tomorrow; is that right?

A. Correct.

***

Q. After you gave your statement [to the police], you were

allowed to leave that little small room you described earlier; is that

correct?

A. Correct.

Q. So what what [sic] you aimed to accomplish worked,

you got to go home; is that right?

A. Correct.

Q. It's your goal tomorrow to go home, too, isn't it?

A. Incorrect."

22 Nos. 1-13-3033 & 1-13-3107 (Cons.)

¶ 73 Upon redirect, Clark acknowledged that he did not have any deal with the State in

exchange for his testimony at trial. Thereafter, during recross examination, a similar exchange

again occurred between Wiggins' defense counsel and Clark:

"Q. In about 20 hours, you stand the possibility of being

told you have to go to prison for one to six years; is that right?

A. Tomorrow is—the case I'll be tried for tomorrow is

criminal trespassing.

Q. When do you go back to court in front of the Judge upon

which you're on probation?

A. The 3rd, December 3rd.

Q. That's next week; is that right?

A. Correct.

Q. At that time, you stand the very real possibility of going

to prison from one to six years; is that right?

A. Possibility, correct.

Q. You don't want that to happen; is that right?

A. That's right."

¶ 74 Presumably, the purpose of this line of questioning was to elicit Clark's acknowledgment

that he was going to be prosecuted in two matters within days after testifying in defendants' trial.

In addition, Clark's admissions that: (1) after he gave a statement implicating defendants in the

shooting he was "allowed to leave that little room" and "got to go home"—which was what his

goal was during the time he provided his statement to the assistant State's Attorney; (2) he was

23 Nos. 1-13-3033 & 1-13-3107 (Cons.)

facing the "very real possibility of going to prison from one to six years"; and (3) it "behoove[d]

[him] to make the State happy" during the State's prosecution of defendants in this trial, gave rise

to an inference that Clark had a motive to testify falsely to curry favor with the State. See

Williams,

(observing that the defense "[c]learly *** raised an inference that [a

witness's] trial testimony was motivated by expectations of leniency and was of recent

fabrication"). Under these circumstances, the trial court did not err in admitting Clark's statement

because it allowed the State to rebut the charge or inference of fabricated or false testimony

based on Clark's motivation to avoid jail or a conviction. I cannot conclude that no reasonable

trial judge would have admitted Clark's prior consistent statement and, therefore, I find that the

court did not abuse its discretion. "Reasonable minds can disagree about whether certain

evidence is admissible without requiring a reversal of a trial court's evidentiary ruling under the

abuse of discretion standard." People v. Chambers,

.

¶ 75 B. The Trial Court as Neutral Arbiter

¶ 76 Second, the majority finds that, instead of limiting its role as an impartial arbiter during

the proceedings, it acted improperly as an advocate for the State and deprived defendants of a

fair trial. Although defendants did not object to the court's alleged improprieties during the trial,

the majority correctly reviews the question of the court's impartiality under the Sprinkle doctrine.

People v. Sprinkle,

(1963). Notwithstanding, I respectfully disagree with

the majority's conclusion that "the trial judge abandoned his role as neutral arbiter" when the

judge: (1) directed questions to the witness; (2) interposed objections during impeachment of the

witness; (3) referred to the examination of the witness as "what we just did"; and (4) gave an

admonishment through the statement, "watch yourself, man."

24 Nos. 1-13-3033 & 1-13-3107 (Cons.)

¶ 77 1. Cross-examination of Barnes

¶ 78 According to the majority, the trial court inserted itself into Barnes's cross-examination

by asking questions that "did not clarify Barnes's testimony about the shooting and what Barnes

saw on March 19, 2011" and were, instead, "designed to impeach Barnes's trial testimony." The

trial court has the authority to question witnesses in order to elicit the truth or to bring

enlightenment on material issues that seem obscure. People v. Palmer,

(1963); see also Ill. R. Evid. 614(b) (eff. Jan. 1, 2011) ("The court may interrogate witnesses,

whether called by itself or by a party."). Whether such examination has been properly conducted,

however, "must be determined by the circumstances of each case, and rests largely in the

discretion of the trial court." Palmer,

. Given the nature of the trial court's

questions, it was not unreasonable for the court to elicit information that related directly to, or

clarified, Barnes's immediately preceding testimony.

¶ 79 On direct examination, Barnes testified that, in his interview with police and Assistant

State's Attorney Hamelly (who took his statement), he identified Wiggins as the shooter and

Swift as the person who ordered the shooting. Barnes indicated, however, that he subsequently

contacted Swift's counsel and signed another document that contained the "truth." This led to the

following exchange between the prosecutor and Barnes and, later, between the trial court and

Barnes:

"Q. What's contained in that document, that's not what you

told the detectives; is it?

A. No, it is not.

Q. It is not what you told ASA Jen Hamelly; is it?

25 Nos. 1-13-3033 & 1-13-3107 (Cons.)

A. No.

STATE: One moment, your Honor.

THE COURT: Okay. This version of the events contained

in the document that you signed as prepared by [Swift's counsel],

did you ever reach out to the police and tell them about the facts

contained in the document?

A. No, I never told the police anything.

Q. Did you ever contact the Cook County State's Attorney's

Office and tell them about the facts contained in that affidavit?

A. No."

¶ 80 The majority finds that the trial court's questions "did not clarify Barnes's testimony

about the shooting and what Barnes saw on March 19, 2011." I disagree. The testimony elicited

by the court specifically addressed a question left open by the State's examination: whether the

police or the State's Attorney's office had been informed that the victim had changed his story.

The State's questions focused on whether Barnes presented his "alternative" account of the

shooting during his initial interview with the detectives and ASA Hamelly, and Barnes admitted

that he did not. The trial court then asked whether Barnes informed the police or the State's

Attorney's office at any time that he had an "alternative" account of the shooting incident. The

trial court's questions were a natural follow-up to the State's two questions. Furthermore,

Barnes's responses to the trial court's questions clarified for the jury what information the

authorities were acting on and provided context for the jury to evaluate the account Barnes later

gave to defense counsel. The trial court did not " 'assume the role of prosecutor merely because

26 Nos. 1-13-3033 & 1-13-3107 (Cons.)

[its] questions solicit[ed] evidence material to the State's case.' " (Internal quotation marks

omitted.) People v. Harris,

(2008) (quoting People v. Smith,

(1998)).

¶ 81 I believe that Sprinkle, relied upon by the majority, is distinguishable from this case as

the trial court's questioning of Barnes did not at all resemble the conduct of the trial court in

Sprinkle. In Sprinkle, the trial court told a witness, " 'I think you are marvelous.' " Sprinkle,

. Then, when the witness was unable to identify the defendant, the court stated that

" '[t]he first time you have seen this man, since that time, was today,' " which implied that the

witness had seen the defendant previously, i.e., during the crime, and suggested "that the

defendant was actually the criminal." (Emphasis added.)

Adding to the cumulative impact of

the judge's questionable remarks in Sprinkle were instances in which the judge asked the

defendant's father, " 'How many times has your son been in a lawsuit?' " and stated, " 'You are

quite familiar with court procedure, how trials are conducted?' "

. The court's comments

in Sprinkle collectively served to draw attention to the fact "that the defendant was a frequent

law violator, and that the father was well acquainted with trial court procedure."

In contrast,

here, the trial court simply asked two questions designed to elicit the truth and the court did not

abandon its role as neutral arbiter in asking these questions.

¶ 82 2. The trial court's sua sponte objections

¶ 83 The majority also finds that the court advocated for the State when it twice interposed

objections on behalf of the State and sustained those objections. I disagree with the conclusion

that the court acted improperly in ruling on the admissibility of certain testimony, even if the

objection was raised by the court sua sponte. "[A] court is permitted to make rulings without

27 Nos. 1-13-3033 & 1-13-3107 (Cons.)

objections from counsel." People v. Thigpen,

(1999). As such, the court is

authorized to intervene when necessary to ensure that only admissible evidence goes before the

jury.

¶ 84 Defendants' reliance on People v. Kuntz,

(1993), is unavailing. In

that case, defense counsel argued in closing that the State failed to establish that a breathalyzer

machine was working properly when it was administered to defendant.

The trial court, sua

sponte, asked the State if it wanted a continuance to bring in the testing logs and allowed the

State to reopen its case and present additional evidence.

On review, we found that "the trial

judge impermissibly acted as an advocate when he prompted the State to seek a continuance and

present additional evidence the following day."

.

¶ 85 In this case, the trial court sustained an objection by the State on the grounds that the

question was beyond the scope of the redirect examination, even though the State had objected to

the question on different grounds, i.e., that the question was impeaching. The court then

sustained its own objection when a witness was asked to testify to matters beyond her

knowledge. Because the court was authorized to determine whether the evidence being

introduced was admissible, I find no error in the court's ruling or in its conduct.

¶ 86 3. The trial court's remarks

¶ 87 Lastly, the majority finds that certain remarks of the court showed that the judge was

acting as an advocate for the State as opposed to a neutral arbiter. According to the majority,

"[t]he judge *** signaled to the jury his attitude towards the defense when he referred to the

prosecution's redirect examination of Barnes as 'what we just did,' and when he said to Swift's

counsel, in front of the jury, 'watch yourself, man.' " In context, the first of these remarks was

28 Nos. 1-13-3033 & 1-13-3107 (Cons.)

innocuous, while the second was warranted based on counsel's prior conduct. I cannot agree with

the majority's conclusion that these comments were error.

¶ 88 During defense counsel's recross examination of Barnes, Swift's defense counsel asked a

question about Barnes's handwritten statement to the Assistant State's Attorney. The State

objected and the following exchange occurred:

"STATE: Objection, your Honor.

THE COURT: Basis.

STATE: Impeaching.

THE COURT: Well, the Court's question is[,] is it within

the scope of what we just did?

DEFENSE COUNSEL: Yes, I think.

THE COURT: Okay. State, what is your response?

STATE: It is not.

THE COURT: I am going to rule it is beyond the scope. I

am going to sustain the objection at this time."

The majority interprets the court's use of the term "we" as a subtle indication to the jury that the

court was aligned with the State. In this instance, however, the interpretation of the court's

reference to the word "we" should be framed within the context of the entire phrase, "what we

just did"—specifically, the direct examination that had just taken place in front of the jury.

Therefore, the word "we" was used to connote the attorneys and the court collectively.

¶ 89 The majority next finds that the trial court showed disdain for the defense when it said

"watch yourself, man" to defense counsel during his direct examination of Clark. Again, the

29 Nos. 1-13-3033 & 1-13-3107 (Cons.)

comment must be evaluated properly in the actual context in which it was made. During cross-

examination, counsel for Swift said he was showing Clark the statement he had given to the

ASA. The State objected and the following exchange occurred:

"STATE: Objection.

THE COURT: Basis?

STATE: Your Honor, I don't believe he has the actual

statement. I have not seen what he is showing the witness. I don't

know if it's marked.

THE COURT: So everybody, any lawyer who is going to

approach a witness with an exhibit needs to show opposing counsel

what they got, just so there [are] no surprises.

STATE: Judge, I would object. This has a number of

counsel's notes and markings on it.

THE COURT: [to defense counsel] *** [I]t has notes and

markings on it?

DEFENSE COUNSEL: It's my exhibit.

THE COURT: Yeah. Well, okay, tell you what, watch

yourself, man.

I'm going to let you use this right now. Go ahead."

The record shows that this was the second time in which counsel sought to show a witness a

document—albeit one designated a trial exhibit—that contained counsel's personal notes and

markings. Earlier, during his cross-examination of Barnes, counsel purported to show Barnes a

30 Nos. 1-13-3033 & 1-13-3107 (Cons.)

copy of People's Exhibit No. 7, which was the handwritten statement that Barnes had given the

Assistant State's Attorney. At that time, too, the State objected and the following exchange

occurred:

"THE COURT: Basis.

STATE: The document that Counsel is showing to the

witness is not People's 7. If Counsel would like People's 7, I can

certainly given him People's 7.

THE COURT: Let's use the one that has actually been

admitted into evidence, just so there is no confusion.

DEFENSE COUNSEL: Doesn't have my highlighted stuff.

THE COURT: I know that's a problem for you, but that's

okay. Let's use the actual exhibit."

¶ 90 Based on this prior exchange with counsel, the trial court's admonishment does not seem

impartial or arbitrary; it appears, instead, to be a warning about what was perceived to be a

pattern of conduct. I do, nonetheless, share in the concern expressed by defendants that "telling a

defense attorney to 'watch it' and referring to him as 'man' " may be "highly demeaning." It is

essential that a criminal defendant receives "a fair and impartial trial by jury which is free from

improper and prejudicial comments on the part of the trial judge." People v. Anderson,

(1993). This does not mean, however, that the court's disdain for certain acts

during the proceedings results in a show of bias and impartiality that will influence a jury's

opinion of the accused. As we have observed:

"Allegations of judicial bias or prejudice must be viewed in

context and should be evaluated in terms of the trial judge's 31 Nos. 1-13-3033 & 1-13-3107 (Cons.)

specific reaction to the events taking place. [Citation.] A judge's

display of displeasure or irritation with an attorney's behavior is

not necessarily evidence of judicial bias against the defendant or

his counsel." People v. Faria,

(2010).

While Faria involved a bench trial and did not present the distinct concern for influencing the

jury, the comments made during the trial were not dissimilar in tone, as the trial court

admonished the defense counsel: "And don't even start. Don't do that." A judge is obligated to

use reasonable efforts to avoid "interjecting opinions, comments, or insinuations reflecting bias

toward or against any party." People v. Garrett,

(1995). No prejudice

or bias results where a judge's comments serve a valid purpose, such as cautioning an attorney

about certain conduct or representations. See

(Finding no impropriety where judge told

counsel " 'Close out your argument, sir. You're wasting your time.' ").

¶ 91 Accordingly, I find that the trial court's admission of Clark's typewritten statement was

permissible and the court's conduct during the proceedings was fair and impartial. The judge did

not abuse his discretion or abandon his role as a neutral arbiter. Our task is to review the

judgment of the trial court, not just the reasoning, and we may affirm the court's judgment on any

basis supported by the record. People v. Rajagopal,

(2008). I would

address the remainder of the defendants' claims. For these reasons, I respectfully dissent.

32