dissenting:
Section 114 — 5(d) of the Code of Criminal Procedure does not permit a judge charged with prejudice to determine even the legal adequacy of the allegations in a motion for substitution of judge supported by affidavit. The trial court here had no authority to make the determination it made on the merits of the motion for substitution, and the failure to transfer the motion to another judge renders all of the trial court’s subsequent actions on the post-trial motions void. (Brim, 241 Ill. App. 3d at 249.) Therefore the issues raised in those motions are not properly before this court. I would remand for transfer of the motion for substitution to another judge without addressing the other issues raised in the briefs.
The majority cites several United States Supreme Court cases in support of its holding that the allegations here are legally inadequate. (Liteky, 510 U.S. 540, 127 L. Ed. 2d 474, 114 S. Ct. 1147; Grinnell Corp., 384 U.S. 563, 16 L. Ed. 2d 778, 86 S. Ct. 1698.) In those cases the court interprets the Federal judicial disqualification statute, which provides:
"Whenever a party *** files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.” 28 U.S.C. § 144 (1988).
The inclusion of the requirement of a sufficient affidavit is a crucial distinction between this statute and the Illinois statute, because under the Federal statute:
"Disqualification results only from the filing of a timely and sufficient affidavit. [Citations.]
It is the duty of the judge against whom a section 144 affidavit is filed to pass upon the legal sufficiency of the facts alleged.” United. States v. Townsend (3d Cir. 1973), 478 F.2d 1072, 1073.
The majority effectively reads into the Illinois statute language present in the Federal statute but not found in the Illinois statute. When the legislature acts within its constitutional authority, the courts’ "sole function is to determine and *** give effect to the intention of the lawmaking body. We will not and cannot inject provisions not found in a statute, however desirable or beneficial they may be.” (Droste v. Kerner (1966), 34 Ill. 2d 495, 504, 217 N.E.2d 73.) The Illinois statute requires the judge charged with prejudice to transfer for hearing any motion for substitution supported by affidavit, so that the other judge must decide the sufficiency of the allegations as well as the factual accuracy of those allegations.
The trial court, unlike the majority, did not decide that the allegations of the motion for substitution were legally insufficient; instead, the judge heard the motion and denied it because "there was no, absolutely n[o], prejudice or bias ***. Everyone who comes into this courtroom is presumed to be innocent unless he is proven guilty.” The statute requires a judge other than the judge accused of bias to make such a factual determination.
Even if the statute permitted the trial judge to determine the legal sufficiency of the allegations, the majority has not shown that the motion is insufficient. The majority addresses only 2 of defendant’s 25 allegations of incidents showing prejudice. The majority takes the two instances out of the context of the entire trial and then invokes the principle that judicial rulings do not generally show disqualifying bias. Federal courts have established "[a]n exception to the general rule *** where 'such pervasive bias and prejudice is shown by otherwise judicial conduct as would constitute bias against a party.’ ” (United States v. Meester (11th Cir. 1985), 762 F.2d 867, 885, quoting Davis v. Board of School Commissioners (5th Cir. 1975), 517 F.2d 1044, 1051.) Defendant alleges just such a course of conduct.
The majority asserts without citation to authority that the trial judge properly required defense counsel to make offers of proof before putting his witnesses on the stand. The testimony defendant sought to adduce concerning prior occurrences was admissible, as shown by the majority’s discussion of Suerth (97 Ill. App. 3d at 1012) and Montes (263 Ill. App. 3d at 691), yet the majority finds the requirement of offers of proof justified by the incorrect ruling excluding relevant evidence. Moreover, the trial court’s requirement of offers of proof was not a ruling on a motion: the judge sua sponte imposed the requirement without any motion from the prosecution.
The procedure the judge imposed forced defendant to reveal to the State the specific details of his trial strategy without causing the State to reveal any part of its strategy. On the basis of the improper exclusion of evidence of other occurrences, the trial judge, according to defendant, then took control of defendant’s presentation of his case by specifying the order in which he could call his witnesses. The majority does not address the consequences of the judge’s improper requirement of offers of proof based on its erroneous exclusion of relevant evidence.
The majority then finds inadequate the allegation that the judge said he would have convicted defendant of attempted first degree murder. The majority asserts that the statement showed only that the trial court deemed defendant to have committed perjury. The jury accepted defendant’s evidence that he was not guilty of attempted first degree murder. "[T]he resolution of the credibility of the various witnesses, including that of defendant ***, was for the jury.” (People v. Iverson (1973), 9 Ill. App. 3d 706, 708, 292 N.E.2d 908.) Where the jury has found a defendant credible, neither the trial court nor this court should supplant that finding. The trial court could not properly consider as perjury testimony the jury apparently believed to be true.
The majority invokes the presumption that the court relies on only proper considerations in sentencing. This presumption may be overcome by an express indication that the court based its sentence on improper considerations. (Phillips, 127 Ill. 2d at 537.) The record supplies just such an express indication here. At the hearing on defendant’s post-sentencing motion, the judge interrupted defense counsel’s argument concerning the severity of the sentence to ask: "You mean one fellow is entitled to an attempt to murder *** because he has no record?” The judge did not respond to counsel’s reminder that the jury found him not guilty on that charge. The trial judge’s remarks cited in the motion showed his inclination to sentence for attempted murder, and the comments after sentencing indicated that, despite the jury’s acquittal of defendant on that charge, the court did, in fact, sentence defendant for attempted murder.
Because the Illinois legislature directs a judge accused of bias to transfer the motion for hearing before another judge, I would find that the judge’s appraisal of the merits of the motion was error which rendered all subsequent rulings void. Even if the judge could appraise the legal sufficiency of the motion and its supporting affidavit, the allegations here are "not frivolous or fanciful, but substantial” (Berger v. United States (1921), 255 U.S. 22, 34, 65 L. Ed. 481, 486, 41 S. Ct. 230, 233), and sufficient to require a hearing before a judge not named in the motion. We have no valid decision of the trial court to review on any of the issues considered by the majority. Accordingly, I would vacate the judgment and remand for hearing before a different judge on the motion for substitution.