Third Division
October 8, 2003

No. 1-00-3672

JUSTICE HALL delivered the opinion of the court:

Following a bench trial, defendant Cecil D. Crawford, alsoknown as Dowell, was found guilty of aggravated criminal sexualassault. On October 12, 2000, he was sentenced to 18 years'imprisonment. Defendant filed his timely notice of appeal onOctober 17, 2000.

On appeal, defendant contends that: (1) his constitutionalright to effective assistance of counsel was violated by thetrial court's repeated interruptions of defense counsel's closingargument; (2) the trial court's repeated interruptions of defensecounsel's closing argument revealed that the court was biasedagainst him so as to deny him a fair trial; (3) he was denied afair trial by the trial judge's inaccurate memory regarding theexamining doctor's testimony pertaining to a vaginal abrasion;(4) the trial court failed to conduct an adequate inquiry intohis pro se posttrial allegation of ineffective assistance ofcounsel; and (5) his mittimus should be corrected. Defendantalso raises two issues regarding his sentence.

Based upon our decision as to defendant's second issue, weneed not address the rest of the issues raised by defendant. Forthe reasons that follow, we reverse and remand.

FACTUAL BACKGROUND

I.R., the alleged victim, was 18 years old at the time ofthe incident; defendant was 55 years old. I.R. testified thatshe had known defendant since she was a small child and that heraunt was married to defendant's brother. I.R. testified that onthe night of March 29, 1999, defendant picked her up from theapartment she shared with her mother, uncle and his wife anddaughter, and she and defendant traveled to "Ricky's" apartment. They arrived at the apartment at about midnight. No one was inthe apartment. I.R. testified that defendant briefly left her inthe apartment and went out to purchase some beers. Whendefendant returned to the apartment, I.R. and defendant sat downto drink the beers and I.R. took out some marijuana to smoke. Atabout 3 a.m., I.R. testified that she realized it was gettinglate, so she asked if she could call a cab.

I.R. testified that when she asked to call a cab defendanttold her to take off her clothes. She testified that when sherefused the request, defendant grabbed her by the neck, pulledher into the bedroom and pulled her pants down. I.R. testifiedthat once her pants were pulled down, defendant inserted hispenis into her vagina for a couple of minutes as she attempted tofight him off. She testified that when she pulled back fromdefendant, he began choking her and threatening her life.

I.R. testified that defendant then told her to perform oralsex on him. She testified that she complied because she wasscared. I.R. testified that defendant continued choking heruntil she jumped off the bed. She then asked to use thebathroom. She testified that she took a cigarette defendantoffered her and went into the bathroom. Once in the bathroom,I.R. began throwing objects out of the bathroom window in anattempt to get someone's attention.

I.R. testified that as she was exiting the bathroom,defendant walked in to use the bathroom. She told defendant thatshe was going to call a cab. She testified that defendantreplied, "well, hurry up because I'm not through with you." I.R.testified that instead of calling a cab, she called 911 and toldthe operator that she had just been raped and to send help. Shetestified that she hung up the phone when she thought she hearddefendant leaving the bathroom. She then dialed a randomtelephone number so that defendant could not press redial anddiscover that she had called the police.

I.R. testified that she unlocked the front door to theapartment while defendant was still in the bathroom. Whendefendant exited the bathroom, he told her to "come on." Shetestified that she told defendant to wait because she needed someair since he had choked her. She then stood by the window. I.R.testified then when she saw the police arrive, she called out thewindow for help. She testified that when defendant discoveredthat she was calling for help, he grabbed her by the neck andthreatened to kill her. I.R. testified that the police soonarrived in the apartment and took defendant into custody. Shewas transported to St. Mary's Hospital for examination.

Detective Terrence Hart testified that he arrived at thescene after responding to a radio call and saw I.R. at a second-floor window yelling for help. As the detective ascended thestairs toward the second floor, he heard a woman scream, and thenthe scream abruptly stopped.

Detective Hart testified that when he entered the apartmenthe saw defendant choking I.R. The detective pulled his servicerevolver, pointed it at defendant, and ordered defendant to takehis hands off of I.R. Defendant complied. I.R. then ran to thedetective, gasping and crying. She told Detective Hart that shehad been raped by the defendant. Defendant was arrested andtaken into custody. The detective testified that he observedredness or bruising near I.R.'s eye and redness and scrapesaround her neck.

Doctor Jose Yanong testified that on March 30, 1999, atapproximately 4 a.m., he examined I.R. at St. Mary's Hospital'semergency room. The doctor testified that I.R. had bruising onher face. The doctor testified that he performed a pelvicexamination on I.R. which revealed redness and a small abrasionon the labia or lips of her vagina. He testified that hisdiagnosis was alleged sexual assault.

On cross-examination, Dr. Yanong testified that there weremany causes for redness and abrasion in a woman's vaginal area,some of which do not involve any type of sexual penetration orconduct. The doctor also confirmed that his diagnosis wasalleged sexual assault rather than sexual assault.

Dino Lucchesi and Charles Crawford testified on defendant'sbehalf. Lucchesi testified that he had known defendant for about20 years and had known I.R. all of her life. Lucchesi owned aneighborhood bar called Dino's Tap Bar. Defendant had worked atthe bar. Lucchesi testified that I.R. frequently called the barasking to speak to defendant.

Charles Crawford, defendant's brother, testified that he hadknown I.R. all of her life. He testified that two or threemonths before the incident occurred, he had seen defendant andI.R. together on two occasions. On one occasion, he went to theapartment I.R. shared with her mother and saw I.R. and defendantlying in bed together watching television. On the secondoccasion, he saw I.R. and defendant together outside Dino's bar.

Defendant testified on his own behalf. He testified thatprior to the incident, he and I.R. had been dating for two orthree months and had lived together in I.R.'s aunt's apartment.Defendant testified that on the afternoon preceding the incident,I.R. called him at Dino's bar asking to borrow $40. Defendanttraveled to I.R.'s uncle's home, gave I.R. the money sherequested and left. Defendant testified that about 4:30 p.m.,I.R. paged him asking to be picked up from a pizza parlor.

Defendant testified that he picked up I.R. along with hergrandmother and her aunt's two children and drove them all to theaunt's house. He testified that later that evening at about 10p.m., he took a cab to I.R.'s apartment and afterwards they lefttogether and took a cab to the apartment where the incidentoccurred. Defendant used a cab because he did not have access tothe vehicle he had driven earlier that day. He and I.R. arrivedat the apartment at about 1:30 a.m. Defendant testified thatI.R. was planning to spend the week with him at the apartment.

Defendant testified that when he and I.R. arrived at theapartment she asked him to go to the liquor store to purchasesome liquor. He responded that the liquor store was closed, butremembered that his downstairs neighbor had some beer. Defendanttestified that after he returned to the apartment with the beer,I.R. asked him to catch a cab with her to go over to the "drugspot" to obtain some drugs. Defendant testified that after herefused I.R.'s request, they both sat down and drank the beer andafterwards went to bed.

Defendant testified that shortly after they went to bed,I.R. again requested that they catch a cab together and go to the"drug spot." When defendant again refused, I.R. got angry andtold defendant that she wanted to go back to her mother's house. Defendant testified that he told I.R. to go and catch a cab. According to defendant, I.R. responded that he should go withher. Defendant testified that when he refused, I.R. got out ofthe bed and left the bedroom. Defendant testified that hethought that I.R. had left to call a cab.

Defendant testified that he got out of the bed and went intothe dining room to give I.R. money for a cab and saw that she wastalking out the window to someone. He testified that when hewalked up behind I.R. and asked her who she talking to, sheturned around and slapped him. He testified that he whenattempted to grab I.R. by her arms to keep her from slapping himagain, a detective came through the apartment's front door withhis revolver drawn. The detective pointed the revolver atdefendant and ordered him to put his hands on the dining roomtable. Defendant testified that he did not force I.R. to placeher mouth on his penis or to engage in intercourse.

On cross-examination, defendant testified that before theincident occurred, I.R. drank beer but did not smoke marijuana inthe apartment. He testified that I.R. had smoked crack cocaineat her mother's apartment just before going with him to theapartment where the incident occurred.

Detective Hart testified in rebuttal for the State. Hetestified that he had three separate conversations with defendantat police headquarters. The detective testified that during oneconversation, the defendant stated that he had informed I.R.'sfamily that she was staying at the apartment with him, but thathe had never discussed this with I.R. The detective alsotestified that defendant stated that he had never actually seenI.R. in possession of illegal drugs or that she was high on drugsprior to accompanying him to the apartment. Regarding theincident, the detective testified that defendant stated that hegot angry with I.R. when he saw her yelling out of the window.

On cross-examination, Detective Hart conceded that althoughdefendant stated that he had never actually seen I.R. inpossession of drugs, defendant did state that he had given hermoney to purchase cocaine. The detective acknowledged that onthe date of the incident, he never asked I.R. if she had takenany illegal narcotics. He also acknowledged that defendantstated that he and I.R. had engaged in sexual relations onprevious occasions, but on the night of the incident, theirsexual activity was limited to "kissing different parts."

ANALYSIS

The sole issue addressed in this appeal is defendant'ssecond issue wherein he contends that the trial court's repeatedinterruptions of defense counsel's closing argument revealed thatthe court was biased against him so as to deny him a fair trial. We agree with defendant.

As a preliminary matter, we find that defendant did notwaive his right to assert this issue on appeal by failing toobject at trial, since the application of the waiver rule isrelaxed when the trial judge's conduct would have been the basisof the objection. See People v. Westfield, 207 Ill. App. 3d 772,778, 566 N.E.2d 392 (1990) (stating that the waiver rule isrelaxed when the trial judge's conduct is the basis of theobjection because of the fundamental importance of a fair trialand the practical difficulties in objecting to the conduct of thetrial judge); People v. Rowjee, 308 Ill. App. 3d 179, 185, 719N.E.2d 255 (1999) (same); People v. Primm, 319 Ill. App. 3d 411,425, 745 N.E.2d 13 (2000) (same).

Regarding the substantive arguments pertaining todefendant's claim, the State makes three principal contentions. First, the State contends that defendant cannot complain that hewas prejudiced by defense counsel's failure to complete closingargument because this was a bench trial and evidence ofdefendant's guilt was overwhelming and therefore the trial courthad the discretion to refuse to hear defense counsel's closingargument altogether. Second, the State contends that the trialcourt did not improperly curtail defense counsel's closingargument but rather interrupted defense counsel only to clarifythe argument and to prevent misrepresentation of the evidence. Third and finally, the State contends that the trial court didnot prejudge the merits of the case or show bias toward defendantbecause the trial court's comments were made during closingargument and not during the taking of testimony. We must rejecteach of the State's contentions.

First, the United States Supreme Court and this court havedetermined that even in a bench trial, a trial court does nothave the discretion to deny a defendant the right to make aproper closing argument. Herring v. New York, 422 U.S. 853, 856-65, 45 L. Ed. 2d 593, 597-602, 95 S. Ct. 2550, 2552-57 (1975);People v. Smith, 205 Ill. App. 153, 156-57, 562 N.E.2d 553(1990); People v. Heiman, 286 Ill. App. 3d 102, 112, 675 N.E.2d200 (1996). This right is rooted in the sixth amendment right tocounsel. Herring, 422 U.S. at 856-57, 45 L. Ed. 2d at 597, 95 S.Ct. at 2552-53. Therefore, in the present case, defendant wasentitled to an opportunity to make a proper closing argument evenif he elected to have a bench trial.

The State next contends that the trial court did notimproperly curtail defense counsel's closing argument but ratherinterrupted defense counsel to clarify the argument and toprevent misrepresentation of the evidence. The record does notsupport the State's assertions. The record does not show thatthe trial court attempted to assist defense counsel in refininghis argument. Rather, the record demonstrates that the trialcourt repeatedly interrupted defense counsel each time counselspoke and that the court expressed a belief that defense counselwas misrepresenting the evidence. The record shows the followingexchange between the trial judge and defense counsel duringdefense counsel's closing argument:

"[Defense counsel]: Judge, you heard a substantialamount of testimony in this case, beginning with a doctorwho testified that he saw no type of trauma of any sort toher vaginal area; that the injuries that he saw were to her--bruises on her face, some redness and some abrasions, whichshe testified could be indicative of both nonconsensual sex,as well as consensual sex, and he had other explanationsthat had nothing to do with sex for those particularfindings. He had a finding of alleged sexual assault.

THE COURT: You mean to tell me that you'd want thedoctor to testify that what they saw was not an allegedsexual assault but a sexual assault? You think because thedoctor used the word 'alleged,' that helps you?

[Defense counsel]: Yes, I do. Obviously, you don't,but I do.

THE COURT: Go ahead. I mean, the facts are the facts. The person wasn't there. What she [he] observed wasconsistent with sexual assault.

[Defense counsel]: And she [he] also testified it wasnot with--not sexual assault.

THE COURT: But there is redness and abrasions, you willadmit to that?

[Defense counsel]: Of course, Judge.

THE COURT: Go ahead.

[Defense counsel]: Thank you, Judge. Thank you. Youhave heard testimony from the young lady that she--shestates that she arrives there at approximately midnight, hertestimony. From Ms. Maldonado, that they arrived there atapproximately 1:00 in the morning. You heard testimony fromthis young lady, she had never had any real contact with myclient alone, never made phone calls. You heard testimonyfrom the owner of the bar, yes, there have been numerousphone calls.

Judge, what we have here is not what the young ladywould have you to believe, that this was a situation wheremy client is just attacking her. We have a young lady goingover there to get high, to have beer, to get--to havemarijuana.

THE COURT: So it's okay. Then it's okay. If she's--ifshe's some trollop that's going around smoking crack or weedor drinking beer, and she's not old enough, she has no rightto say no.

[Defense counsel]: I'm saying she didn't say no becausenothing occurred, Judge.

THE COURT: Oh.

[Defense counsel]: I know your Honor, please-

THE COURT: When the police are called and the person ischoking the lady, and she's screaming 'I have just beenraped,' and now you are telling me it had never happened, itnever happened, the expectations of a man in pursuit neverhappened; right?

[Defense counsel]: That is our allegation, Judge, yes. Made [may] I continue?

THE COURT: I would hope so.

[Defense counsel]: Thank you Judge. As I stated,Judge, you have got no physical corroboration of theseactions.

THE COURT: No physical corroboration. Why would yousay something like that?

[Defense counsel]: Because I'm a Public Defender. I amnot a State's Attorney.

THE COURT: So you are Public Defender and you are not aState's Attorney, so you misrepresent the evidence?

[Defense counsel]: I have a job to do.

THE COURT: Don't misrepresent the evidence. Talk aboutthe theory of Defense and not say there is no corroboration. We have pictures. We have doctor's testimony, and you aresaying there's no corroboration.

[Defense counsel]: Yes, I am Judge. Whether you likeme saying it or not, I am saying it. That is my job. Iwill do my job.

THE COURT: That is not your job, to lie about the evidence.

[Defense counsel]: I am not lying.

THE COURT: What are you saying? You aremisrepresenting the argument. You are arguingcircumstances.

[Defense counsel]: That's what I am trying to do, ifyou would let me.

THE COURT: You can't say there's nothing to corroboratewhen the physical evidence in the case does corroborate thetheory.

[Defense counsel]: In your opinion, yes, it does.

THE COURT: You have the police officer's testimony thathe saw him choke the woman. You have the doctor's testimonythat he observed the bruises and abrasions, which areconsistent with what the observations are, immediate outcryof rape.

[Defense counsel]: We have no further argument. Wewill be asking for a finding of not guilty."

The exchange between the trial judge and defense counselclearly shows that the trial judge improperly curtailed defensecounsel's closing argument. The trial judge repeatedlyinterrupted defense counsel, argued with counsel, challenging himat every turn and even characterized defense counsel's argumentas a misrepresentation of the evidence.

In general, wide latitude is afforded counsel in closingargument. People v. Carter, 177 Ill. App. 3d 593, 601, 532 N.E.2d531 (1988). Argument and statements that are based upon thefacts in evidence, or upon reasonable inferences drawn therefrom,are within the scope of proper closing argument. People v. Brown,275 Ill. App. 3d 1105, 1114, 657 N.E.2d 642 (1995); People v.Simmons, 331 Ill. App. 3d 416, 421, 770 N.E.2d 1271 (2002). Inlight of the inconsistencies between I.R.'s and defendant'stestimony, defense counsel's argument that the physical evidencedid not necessarily corroborate the charge of aggravated criminalsexual assault was a permissible inference from the evidencerather than a misrepresentation of the evidence. See People v.McInnis, 88 Ill. App. 3d 555, 574-75, 411 N.E.2d 26 (1980) (concluding that defendant's contention that different andreasonable inference may be drawn from the same evidence did notmake inference which the State chose to argue improper orimpossible).

In a criminal case, the trial must include an opportunityfor the defense counsel to argue the defendant's cause. Heiman,286 Ill. App. 3d at 112; Smith, 205 Ill. App. 3d at 156-57. Itis not uncommon for a trial court to change its initialimpression following argument by defense counsel or theprosecutor. Heiman, 286 Ill. App. 3d at 112; Smith, 205 Ill. App.3d at 157. Even though closing argument is not evidence, a trialjudge has an obligation to be attentive, patient and impartial.Heiman, 286 Ill. App. 3d at 112. Here, the record indicates thatthe trial judge was neither patient nor impartial.

When a defendant in a criminal case waives trial by jury andsubmits his rights and liberty to a trial judge, that judge is inthe identical position of a jury and all recognized rules forprotection of the defendant's rights apply with equal force.People v. Rivers, 410 Ill. 410, 419, 102 N.E.2d 303 (1951);People v. Diaz, 1 Ill. App. 3d 988, 993, 275 N.E.2d 210 (1971);People v. McDaniels, 144 Ill. App. 3d 459, 462, 494 N.E.2d 1275(1986); People v. Phuong, 287 Ill. App. 3d 988, 993, 679 N.E.2d425 (1997). The trial judge's comments and repeatedinterruptions of defense counsel's closing argument reveal thatthe court was biased against defendant so as to deny him a fairtrial.

The State maintains that Heiman and Smith are inapplicablebecause in Heiman defense counsel's closing argument wasinterrupted 45 times and the trial judge made various derogatoryand sarcastic remarks and in Smith the trial judge interrupteddefense counsel's closing argument after defense counsel had onlyuttered one sentence. Even though Heiman and Smith are factuallydissimilar, the same principle that was applied in these casesregarding a trial judge's conduct during closing argument appliesin the present case. See Heiman, 286 Ill. App. 3d at 112-13(concluding that even though the facts in Smith were dissimilarto those in Heiman, in that defense counsel in Smith was notallowed to argue more than one sentence, the same principleapplied in both cases where the trial judge in Heiman repeatedlyinterrupted and argued with defense counsel).

Moreover, the interruptions and comments the trial judgemade in the instant case are qualitatively similar to thecomments the trial judges made in Heiman and Smith. For example,in the instant case, the record shows that the trial judgeinterrupted defense counsel after just the first two sentences ofclosing argument. The trial judge commented that just becausethe examining doctor used the word "alleged" in relation to thesexual assault charge, this did not help defendant. Thereafter,defense counsel got out only four sentences of argument beforethe trial judge again interrupted, commenting: "So it's okay. Then it's okay. If she's--if she's some trollop that's goingaround smoking crack or weed or drinking beer, and she's not oldenough, she has no right to say no." After a second exchange,defense counsel moved to another point of argument. The trialjudge again interrupted for a third time accusing defense counselof misrepresenting the evidence. Thus, most of defense counsel'sclosing argument was interrupted.

The State also contends that the trial judge's comments madeduring defense counsel's opening argument did not demonstratethat the court was biased toward defendant because the commentswere made to clarify the charge of aggravated criminal sexualassault. Again, we must reject the State's contention.

In his opening statement, defense counsel stated that theevidence would not show a sexual assault but, rather, a fightbetween defendant and I.R. An opening statement may include adiscussion of the evidence and matters that may reasonably beinferred from the evidence. People v. Warmack, 83 Ill. 2d 112,126, 413 N.E.2d 1254 (1980). However, before defense counselcould finish completing his opening statement, the trial judgeinterrupted stating, "[w]ell, wait a second. He's not chargedwith fighting but the allegations are that he forcibly had arelationship with this young lady and the police observed thisfight but you're saying that doesn't corroborate theallegations?" The trial judge's comment suggests that the courthad prejudged the merits of defendant's case before defensecounsel presented any evidence regarding his theory of the case.

Here, the trial judge expressed opposition to defense counsel'sargument that the fighting did not corroborate the allegations ofaggravated criminal sexual assault before counsel presented anyevidence on the issue.

Contrary to the States' assertion, the trial judge's commentdoes not indicate that the court was attempting to clarify thecharge of aggravated criminal sexual assault. Rather, the trialjudge's comment was more in the form of a rebuttal and expressionof the court's opposition to defense counsel's argument that thefighting did not corroborate the allegations of the charge. Thisis readily apparent when the comment is compared with similarcomments the trial judge eventually makes during defensecounsel's closing argument.

The trial judge's comments made during defense counsel'sclosing argument further demonstrated the court's bias towarddefendant. For example, during defense counsel's closingargument counsel argued that the small abrasion and rednessobserved during I.R.'s vaginal examination could have been causedby consensual as well as nonconsensual sexual intercourse andthat therefore this physical evidence did not necessarilycorroborate the allegations of aggravated criminal sexualassault. The trial judge interrupted and stated that what thedoctor observed was consistent with sexual assault. When defensecounsel attempted to interject that the medical findings werealso consistent with consensual sexual conduct the trial judgeagain interrupted and commented, "[b]ut there is redness andabrasions, you will admit to that?"

When defense counsel attempted to discuss the priorrelationship between I.R. and defendant and argued that on thedate of the incident I.R. willingly accompanied defendant to theapartment to drink beer and use illegal drugs, the trial judgeagain interrupted defense counsel stating, "[s]o it's okay. Thenit's okay. If she's--if she's some trollop that's going aroundsmoking crack or weed or drinking beer, and she's not old enough,she has no right to say no." Defense counsel responded byarguing that I.R. did not say "no" because nothing occurred. Thetrial judge stated, "oh," but then followed this up by stating,"[w]hen the police are called and the person is choking the lady,and she's screaming 'I have just been raped,' and now you aretelling me it had never happened, it never happened, theexpectations of a man in pursuit never happened; right?" Finally, when defense counsel attempted to argue that there wasno physical corroboration of an aggravated criminal sexualassault, the trial judge accused defense counsel ofmisrepresenting the evidence.

The trial judge's comments made during defense counsel'sopening and closing arguments clearly reveal the court's biasagainst defendant. The State contends that the trial court'scomments do not show that the trial court was biased againstdefendant because the comments were not made during thepresentation of any evidence. Again we must reject the State'scontention. In Heiman, we determined that the law requires atrial court to remain impartial until the close of trial, whichincluded closing arguments, since it is not uncommon for a trialcourt to change its initial impression following closingargument. Heiman, 286 Ill. App. 3d at 112. The right to closingargument would be virtually meaningless if we were to find itappropriate for a trial court to make comments evaluating theevidence and otherwise showing bias toward a defendant -- priorto the end of closing argument.

Accordingly, for the reasons set forth above, because therewas sufficient evidence in the record to support defendant'sconviction (People v. Taylor, 76 Ill. 2d 289, 309-10, 391 N.E.2d366 (1979)), defendant's conviction is reversed and the cause isremanded to the circuit court of Cook County for a new trial.

Reversed and remanded.

HOFFMAN, P.J., and SOUTH, J., concur.