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No. 2--03--0625

JUSTICE GROMETER delivered the opinion of the court:

Following a jury trial in the circuit court of Winnebago County, defendant, William J. Buck,was convicted of first-degree murder (720 ILCS 5/9--1(a)(1) (West 2000)). Although the Statesought the death penalty, the jury did not find defendant death-eligible, and the trial court sentenceddefendant to 60 years' imprisonment. Defendant appeals his conviction, arguing that the trial judgeshould have been disqualified because: (a) prior to becoming a member of the bench, he told amember of the media that the death penalty was "appropriate" for the type of crime committed bydefendant; (b) the prosecutor supported the judge's election campaign; and (c) the judge had beenendorsed by police associations. Defendant also urges reversal of his conviction on the bases that (1)he should have received a pretrial hearing on his death-eligibility; (2) the jury should not have beenexposed to the victim's status as a police officer at the guilt-innocence phase of the trial; and (3) thetrial court erred in failing to instruct the jury regarding the reliability of electronically recordedconfessions. For the reasons that follow, we affirm.

I. BACKGROUND

During the early morning hours of August 3, 2001, Kevin Rice, an off-duty Rockford policeofficer, was shot and killed while seated in his parked car. A multiple-count indictment was returnedcharging defendant with, among other things, first-degree murder in violation of section 9--1(a)(1)of the Criminal Code of 1961 (Code) (720 ILCS 5/9--1(a)(1) (West 2000)). The State sought thedeath penalty on the basis that Rice was "a peace officer *** killed in the course of performing hisofficial duties *** and the defendant knew or should have known that the murdered individual wasa peace officer" (720 ILCS 5/9--1(b)(1) (West 2000)). The case was assigned to Judge Kapala, whoappointed a public defender to represent defendant. Judge Kapala later transferred the case to JudgePeterson.

Judge Peterson presided over hearings on several motions, including one in which thedefendant sought to demonstrate that the State could not meet its burden of proving any death-eligibility factor. However, on June 13, 2002, prior to issuing a ruling on that motion, Judge Petersonannounced that the case would be reassigned because he would be unable to complete the trial priorto his anticipated retirement.

Chief Judge Grubb assigned the matter to Judge Zenoff. Judge Zenoff alerted the parties thatshe had presided over a felony case involving Vincent Holmes, a material witness in the case. Inaddition, Judge Zenoff disclosed that she handled some juvenile matters involving defendant. JudgeZenoff nevertheless believed that she could remain impartial. On July 2, 2002, defendant sought andreceived clarification of Judge Zenoff's disclosures. Defendant stated that he was not willing to signa remittal of disqualification. See 188 Ill. 2d R. 63(D). Judge Zenoff then recused herself from thecase and set the matter for reassignment.

Chief Judge Grubb assigned the case to Judge Vidal. However, the State filed a motion forsubstitution of judge, which was granted. Chief Judge Grubb noted that the only remaining judgesin the criminal division were himself, Judge Collins, and Judge McGraw. Chief Judge Grubb assignedthe case to Judge Collins. When the parties appeared before her, Judge Collins informed them ofseveral "potential conflicts" she had with the case. Defendant filed instanter a motion for substitutionof judge, naming both Judge Collins and Chief Judge Grubb. See 725 ILCS 5/114--5(a) (West 2000).Judge Collins granted the motion, and the case was assigned to Judge McGraw.

Defendant then filed a motion for substitution of judge for cause against Judge McGraw. See725 ILCS 5/114--5(d) (West 2000). In the motion, defendant alleged that Judge McGraw and MarkKarner, the assistant State's Attorney on the case, had a close personal and professional relationship. Defendant also alleged that Judge McGraw, while in private practice, granted an interview to atelevision journalist in which he deemed the State's decision to seek the death penalty againstdefendant as "very appropriate."⁽¹⁾ The motion for substitution of judge for cause was assigned toJudge Peterson. Judge McGraw filed an affidavit in response to defendant's motion. In the affidavit,dated July 24, 2002, Judge McGraw stated that 13 years earlier, he and Karner were colleagues inthe State's Attorney's office and that the two men have remained friends since. Judge McGraw statedthat his relationship with Karner was not so close that he could not fairly rule on the issues in thecase. With respect to the remarks to the media, Judge McGraw stated that his comments were notdirected against defendant. Rather, their purpose was to explain the proper role of the State'sAttorney in determining whether to seek the death penalty in certain types of cases. Judge McGrawaverred that the statements were made in the abstract and not based on the merits of defendant's case.

At the hearing on the motion, defendant conceded that at the time that Judge McGraw spoketo the media, he was not seeking judicial office. Nevertheless, defendant suggested that JudgeMcGraw was campaigning for a seat on the bench, and defendant pointed out that Supreme CourtRule 67 (155 Ill. 2d R. 67) prohibits candidates from making statements that commit or appear tocommit the candidate on issues that are likely to come before the court. Permitting Judge McGrawto remain on the case, defendant asserted, would reflect negatively on the judicial system. JudgePeterson took the matter under advisement.

On August 5, 2002, Judge Peterson denied defendant's motion for substitution of JudgeMcGraw for cause. Judge Peterson explained that mere friendship is not a basis for granting a motionfor substitution of judge for cause. Judge Peterson opined that defendant's statement that JudgeMcGraw was running for election was "conclusory and without merit." With respect to the televisionreport, Judge Peterson noted that the law allows the State to seek the death penalty under certaincircumstances when a police officer is killed. Judge Peterson interpreted Judge McGraw's commentsas "a statement of what the law allows." He noted that the legal and ethical duties of a State'sAttorney are to evaluate the facts and, if appropriate, to pursue the death penalty under certaincircumstances. Judge Peterson also explained that Judge McGraw did not offer an opinion about theevidence or facts of defendant's case and that his tone in delivering the statement was "calm[]" and"without rhetorical flurry." Thus, Judge Peterson concluded that there was no showing of actualprejudice or the appearance of impropriety.

At a hearing on September 9, 2002, Judge McGraw heard arguments on defendant's motionto bar death-penalty proceedings on the basis that the State would be unable to prove the existenceof the statutory aggravating factor, i.e., that Rice was a police officer killed in the course ofperforming his official duties. Alternatively, defendant sought a pretrial evidentiary hearing on thematter. The State opposed defendant's motion, arguing that there was evidence that defendant knewRice's status as a police officer. The trial court ultimately denied defendant's requests, ruling thatwhether Rice was a police officer acting in the course of his official duties was a question of fact forthe jury. On the same day, the court also denied a defense motion to preclude the prosecution fromintroducing evidence at trial that the deceased was a police officer. The court determined that thevictim's status was relevant to motive.

On September 27, 2002, defendant filed a "Motion to Recuse." In his motion, defendantalleged that Judge McGraw was running for circuit judge in an election scheduled for November 5,2002. Defendant further alleged that, on September 20, 2002, defense counsel became aware ofbillboards throughout Winnebago County "trumpeting the fact that Judge McGraw has been endorsedfor election by the police associations of Rockford and Winnebago County, and contain[ing]representations of policemen in squad cars." Defendant alleged that since this case involves the deathof a policeman and many police officers are expected to testify at defendant's trial, the billboards callinto question Judge McGraw's ability to remain impartial. The motion also alleged that AssistantState's Attorney Karner was involved in Judge McGraw's election campaign, but that neither Karnernor Judge McGraw disclosed this fact. At the hearing on the motion, the State responded thatalthough Karner did attend a "handful" of campaign meetings, he did not donate any money oractively campaign for Judge McGraw. Moreover, the State told the court that once Karner becameaware that Judge McGraw would be assigned to defendant's case, his involvement in Judge McGraw'scampaign was terminated and all communications he had with Judge McGraw were in open court. The State observed that judges in Illinois are elected and that campaigning is inevitable. Inherent incampaigning, the State maintained, is the use of billboards informing the public of any endorsements. The State claimed that there was nothing about the billboards that suggested that Judge McGrawcould not be impartial. Judge McGraw denied the motion. He informed defendant that Karner's rolein the election campaign ceased prior to the time that Judge McGraw was assigned to defendant'scase. He also stated that his endorsement by the law-enforcement community "does not contain acorresponding promise or quid pro quo to ratify their conduct."

On October 4, 2002, defendant filed another "Motion for Substitution of Judge" pursuant tosection 114--5(d). In the motion, defendant reiterated the points made in his previous motion forsubstitution and his motion to recuse. Following a hearing, Judge Timothy Gill, who was assignedto hear the motion, denied it.

The case proceeded to the guilt-innocence phase of the trial, after which the jury returned averdict of guilty of first-degree murder. At the death-eligibility phase, the State argued that defendantwas eligible for the death penalty on the basis that he killed a person who was a peace officer actingin the course of performing his official duties and that defendant knew or should have known that themurdered individual was a peace officer. Following deliberations, the jury was unable to unanimouslyagree that defendant was eligible for a sentence of death. Defendant then filed various posttrialmotions, which were denied. After a sentencing hearing, the trial court sentenced defendant to a termof 60 years' imprisonment. This appeal followed the denial of defendant's postsentencing motions.

II. ANALYSIS

A. Disqualification Issues

Defendant's first contentions of error revolve around his claim that Judge McGraw shouldhave disqualified himself from presiding over defendant's trial. First, defendant cites a remarkattributed to Judge McGraw, made prior to his election to the bench, informing the media that heconsidered the death penalty "very appropriate" for the type of crime with which defendant wascharged. Second, defendant notes that the assistant State's Attorney who prosecuted defendant's casesupported Judge McGraw's election campaign. Third, defendant points out that, during JudgeMcGraw's election campaign, billboards told voters that Judge McGraw had been endorsed by policeassociations. According to defendant, these revelations called into question Judge McGraw's abilityto remain impartial and, under Supreme Court Rule 63(C)(1)(a) (188 Ill. 2d R. 63(C)(1)(a)), requiredJudge McGraw's disqualification.

Initially, the State argues that defendant should be estopped from raising this argument. TheState correctly notes that pursuant to section 114--5(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/114--5(a) (West 2000)), defendant was entitled to the automatic substitution of up totwo judges upon the timely filing of a proper written motion for substitution. People v. Ryan, 264Ill. App. 3d 1, 3 (1994). The State asserts, however, that defendant "apparently felt that he wouldbe able to seek the substitution of Judge McGraw for cause, thereby allowing him to substitute threejudges, rather than the two allowed by statute." According to the State, defendant's "attempt tomanipulate" the substitution process "represents a distortion of the statute." However, the State'sposition ignores a separate provision of the substitution-of-judge statute that allows a party to "moveat any time for substitution of judge for cause." 725 ILCS 5/114--5(d) (West 2000). The purposeof section 114--5(d) is to "act[] as a necessary fail-safe measure to preserve a defendant's right to afair trial in situations where a defendant can show a judge's actual bias." People v. Jones, 197 Ill. 2d346, 355 (2001). Section 114--5(d) applies "in addition to *** subsection[] (a)" (725 ILCS 5/114--5(d) (West 2000)), and it does not limit the number of motions for cause that a party may file (725ILCS Ann. 5/114--5, Committee Comments--1963, at 607 (Smith-Hurd 1992) (referring to thensubsection (c))). Thus, contrary to the State's position, defendant was entitled to the automaticsubstitution of up to two judges under section 114--5(a) as well as an unlimited number of motionsfor substitution of judge for cause under section 114--5(d).

Having rejected the State's estoppel theory, we turn to the merits of defendant's argument. In support of his argument, defendant cites Supreme Court Rule 63(C)(1)(a) (188 Ill. 2d R.63(C)(1)(a)), also known as Canon 3 of the Illinois Code of Judicial Conduct. That rule provides inrelevant part:

"(1) A judge shall disqualify himself or herself in a proceeding in which the judge'simpartiality might reasonably be questioned, including but not limited to instances where:

(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer,or personal knowledge of disputed evidentiary facts concerning the proceeding[.]" 188 Ill.2d R. 63(C)(1)(a).

This rule requires a judge to recuse himself when his participation might reasonably give rise toquestions regarding his impartiality, including situations involving the appearance of impropriety. People v. McLain, 226 Ill. App. 3d 892, 902 (1992). For instance, our supreme court has recognizedthat a judge should recuse himself where he has knowledge outside the record concerning the truthor falsity of allegations, where the judge may be called as a material witness, or where the judge hasa direct, personal, and substantial pecuniary interest in the litigation. People v. Thompkins, 181 Ill.2d 1, 22 (1998). Defendant does not suggest that any of these circumstances are present in this case.

We noted in McLain that Rule 63(C)(a)(1) does not state or imply that the mere appearanceof impropriety, by itself, is sufficient to find that a defendant is entitled to a new trial. McLain, 226Ill. App. 3d at 902. Defendant asserts that the actual prejudice/appearance of impropriety distinctionwas rejected by the Supreme Court in Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847,100 L. Ed. 2d 855, 108 S. Ct. 2194 (1988). In Liljeberg, the Supreme Court held that the trial courtjudge should have recused himself even though he did not have actual knowledge of the facts thatgave rise to the appearance of impropriety. Liljeberg, 486 U.S. at 867-68, 100 L. Ed. 2d at 877, 108S. Ct. at 2206. The Court concluded that the proper remedy was to vacate the judgment. Liljeberg,486 U.S. at 868-70, 100 L. Ed. 2d at 877-78, 108 S. Ct. at 2207. The State asserts that Liljeberg isdistinguishable in that Liljeberg interpreted the federal judicial recusal statute (28 U.S.C.