People v. Matthews ( 2018 )

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Appellate Court Date: 2018.02.20
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People v. Matthews, 2017 IL App (4th) 150911Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption BRANDON MATTHEWS, Defendant-Appellant.
District & No. Fourth District
Docket No. 4-15-0911
Filed December 19, 2017
Decision Under Appeal from the Circuit Court of Sangamon County, No. 14-CF-884;
Review the Hon. John P. Schmidt, Judge, presiding.
Judgment Affirmed in part and vacated in part.
Counsel on Michael J. Pelletier, Jacqueline L. Bullard, and Salome Kiwara-
Appeal Wilson, of State Appellate Defender’s Office, of Springfield, for
appellant.
John C. Milhiser, State’s Attorney, of Springfield (Patrick Delfino,
David J. Robinson, and Thomas R. Dodegge, of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE DeARMOND delivered the judgment of the court, with
opinion.
Presiding Justice Turner and Justice Harris concurred in the judgment
and opinion.
OPINION
¶1 In August 2015, a jury found defendant Brandon Matthews guilty of one count of
unlawful delivery of a controlled substance. The trial court sentenced him to 9½ years in
prison.
¶2 On appeal, defendant argues (1) the trial court erred in admitting hearsay testimony,
(2) the court erred in barring defense counsel from asking about the identity of the
confidential source, (3) the court erred in requiring the jury to view videos in the courtroom
during deliberations, and (4) certain fines improperly imposed by the circuit clerk should be
vacated. We affirm in part and vacate in part.
¶3 I. BACKGROUND
¶4 In September 2014, the grand jury indicted defendant on one count of unlawful delivery
of a controlled substance (720 ILCS 570/401(c)(2) (West 2014)), alleging he knowingly and
unlawfully delivered to a confidential source more than 1 gram but less than 15 grams of a
substance containing cocaine. Defendant pleaded not guilty.
¶5 Defendant’s jury trial commenced in August 2015. Springfield police officer Timothy
Zajicek testified he developed a plan for a confidential source to conduct a controlled drug
buy on June 10, 2014. Zajicek stated the male individual had “previously provided
information about criminal activity.” Prior to the controlled buy, Zajicek searched the source
and provided him with $500 in prerecorded funds. Zajicek also searched the source’s vehicle
and installed two covert video-recording devices.
¶6 Zajicek stated the source had arranged for the controlled buy to take place at a gas
station. The source sat in the driver’s seat, and Zajicek sat in the front passenger seat. While
waiting for the seller to arrive, the source told Zajicek that the seller called and said he only
had $400 worth of cocaine to sell. The seller arrived and sat in the rear passenger seat. The
source and the seller engaged in an exchange, with the source receiving a Baggie of crack
cocaine. Zajicek was unable to see the seller’s face because he was sitting right behind him.
After looking at the video from the hidden cameras, Zajicek identified the seller as defendant.
The source drove away and then handed the Baggie of crack cocaine to Zajicek.
¶7 On cross-examination, Zajicek stated the video did not capture the actual drug transaction
between defendant and the source, as the exchange took place “off-frame.” Zajicek stated the
video showed defendant’s left hand, holding what appears to be a plastic Baggie, move
forward and then back, with the Baggie no longer visible. Defense counsel asked Zajicek for
the name of the source, but the trial court sustained the State’s objection. Zajicek stated the
source sought consideration on a traffic citation. The $400 in prerecorded funds was not
recovered from defendant.
¶8 Kristin Stiefvater, a forensic scientist with the Illinois State Police, testified she
conducted tests on an off-white chunky substance, which she found to be 4.9 grams of
cocaine.
¶9 Following closing arguments, the jury retired to deliberate and later sent a note asking to
view the video. The State indicated it had two views that could be shown. Defense counsel
stated the jurors saw the video during the evidentiary portion of the trial, as well as during the
State’s closing argument, and they should abide by the instruction to rely on their memories
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and notes. The trial court had the jury return to the courtroom to watch the videos. After the
conclusion of the videos, the court directed the jury to return to the jury room to continue
deliberating. The jury found defendant guilty.
¶ 10 In September 2015, defendant filed a posttrial motion, arguing, inter alia, the State failed
to prove him guilty beyond a reasonable doubt and the trial court erred in barring the defense
from learning the identity of the confidential source at trial. The court denied the motion.
¶ 11 At the October 2015 sentencing hearing, the trial court sentenced defendant to 9½ years
in prison. The court also ordered defendant to pay a $2000 mandatory drug assessment, a
$100 crime lab fee, a $100 Trauma Center Fund fee, a $5 Spinal Cord Injury Fund fee, a $25
Criminal Justice Information Projects Fund fee, a $20 Prescription Pill and Drug Disposal
Fund fee, and a $490 street-value fine. The court awarded defendant $575 in presentence
credit for 115 days spent in custody. This appeal followed.
¶ 12 II. ANALYSIS
¶ 13 A. Hearsay Testimony
¶ 14 Defendant argues the trial court erred in admitting hearsay testimony from Officer
Zajicek over defense counsel’s objection and in failing to conduct a hearing pursuant to
People v. Cameron, 189 Ill. App. 3d 998, 546 N.E.2d 259 (1989), on the scope and need for
the hearsay testimony.
¶ 15 Initially, we note defendant acknowledges trial counsel did not raise this issue in a
posttrial motion. Thus, the issue is forfeited on appeal. See People v. Hestand, 362 Ill. App.
3d 272, 279, 838 N.E.2d 318, 324 (2005) (a defendant must object at trial and raise the issue
in a posttrial motion to preserve the issue for review). Defendant, however, asks this court to
review the issue as a matter of plain error.
¶ 16 The plain-error doctrine allows a court to disregard a defendant’s forfeiture and consider
unpreserved error in two instances:
“(1) where a clear or obvious error occurred and the evidence is so closely balanced
that the error alone threatened to tip the scales of justice against the defendant,
regardless of the seriousness of the error and (2) where a clear or obvious error
occurred and that error is so serious that it affected the fairness of the defendant’s trial
and challenged the integrity of the judicial process.” People v. Belknap, 2014 IL
117094, ¶ 48, 23 N.E.3d 325.
¶ 17 Under both prongs of the plain-error analysis, the burden of persuasion remains with the
defendant. People v. Wilmington, 2013 IL 112938, ¶ 43, 983 N.E.2d 1015. As the first step in
the analysis, we must determine whether any error occurred at all. People v. Eppinger, 2013
IL 114121, ¶ 19, 984 N.E.2d 475. “If error did occur, we then consider whether either prong
of the plain-error doctrine has been satisfied.” People v. Sykes, 2012 IL App (4th) 111110,
¶ 31, 972 N.E.2d 1272.
¶ 18 “The hearsay rule generally prohibits the introduction of an out-of-court statement
offered to prove the truth of the matter asserted therein.” People v. Williams, 238 Ill. 2d 125,
143, 939 N.E.2d 268, 278 (2010). “The fundamental reason for excluding hearsay is the lack
of an opportunity to cross-examine the declarant.” People v. Jura, 352 Ill. App. 3d 1080,
1085, 817 N.E.2d 968, 973-74 (2004). Courts are often confronted with hearsay when police
officers testify about their investigation of the defendant’s alleged crime.
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“A police officer may testify as to the steps taken in an investigation of a crime
‘where such testimony is necessary and important to fully explain the State’s case to
the trier of fact.’ [Citation.] ‘[O]ut-of-court statements that explain a course of
conduct should be admitted only to the extent necessary to provide that explanation
and should not be admitted if they reveal unnecessary and prejudicial information.’
[Citation.] Testimony about the steps of an investigation may not include the
substance of a conversation with a nontestifying witness.” (Emphasis in original.)
People v. Boling, 2014 IL App (4th) 120634, ¶ 107, 8 N.E.3d 65.
¶ 19 In Cameron, 189 Ill. App. 3d at 1004, 546 N.E.2d at 263, this court discussed the theory
involving the admission of out-of-court statements to explain a course of police conduct and
the danger of their misuse.
“ ‘In criminal cases, an arresting or investigating officer should not be put in the false
position of seeming just to have happened upon the scene; he should be allowed some
explanation of his presence and conduct. His testimony that he acted “upon
information received,” or words to that effect, should be sufficient. Nevertheless,
cases abound in which the officer is allowed to relate historical aspects of the case,
replete with hearsay statements in the form of complaints and reports, on the ground
that he was entitled to give the information upon which he acted. The need for the
evidence is slight, the likelihood of misuse great.’ ” Cameron, 189 Ill. App. 3d at
1004, 546 N.E.2d at 263 (quoting Edward W. Cleary, McCormick on Evidence § 249,
at 734 (3d ed. 1984)).
¶ 20 When confronted with this type of situation, we stated “the trial court must carefully
assess such testimony to ensure that it does not include more than is necessary to explain
police conduct.” Cameron, 189 Ill. App. 3d at 1004, 546 N.E.2d at 263. The court can do this
by conducting “a hearing out of the presence of the jury to determine both the scope of these
third-party out-of-court statements and the need for the jury to hear them.” (Emphases in
original.) Cameron, 189 Ill. App. 3d at 1005, 546 N.E.2d at 264; see also Boling, 2014 IL
App (4th) 120634, ¶ 115, 8 N.E.3d 65 (stating the trial court may conduct a Cameron hearing
sua sponte). The court can then prevent the introduction of improper testimony, “thereby
permitting the State to provide its legitimate explanations for police conduct, while
protecting the defendant against prejudicial hearsay statements.” Cameron, 189 Ill. App. 3d
at 1005, 546 N.E.2d at 264.
¶ 21 In this case, defendant contends the trial court erred in admitting hearsay testimony from
Officer Zajicek in two instances. In the first instance, the following exchange occurred
between the prosecutor and Zajicek:
“Q. Now after installing the video equipment and looking in the car, what did you
do?
A. We then proceeded to the location where the controlled buy was planned to
have occurred.
Q. Where was that location?
A. At the Mobil gas station located on Stevenson Drive and Westlake Drive in
Springfield, Illinois.
Q. Is that in Sangamon County?
A. Yes, it is.
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Q. And how did you know to go there?
A. The [source] had arranged the controlled buy with the target and that was a
location that the [source] was comfortable with.”
Defense counsel then made a hearsay objection, which the court overruled.
¶ 22 We find no error in Officer Zajicek’s answers. Zajicek simply explained the course of
conduct he undertook in preparing for the controlled drug buy and in arriving at the location.
See People v. Simms, 143 Ill. 2d 154, 174, 572 N.E.2d 947, 955 (1991) (stating “a police
officer may testify about his conversations with others, such as victims or witnesses, when
such testimony is not offered to prove the truth of the matter asserted by the other, but is used
to show the investigative steps taken by the officer”). Moreover, Zajicek’s answers did not
relate the substance of any conversation with defendant but merely explained how he and the
source ended up at the gas station.
¶ 23 Even if we found Zajicek’s answers improper, we find defendant has failed to establish
he was prejudiced. See People v. Herron, 215 Ill. 2d 167, 187, 830 N.E.2d 467, 479 (2005)
(stating the defendant must prove the error was prejudicial under the first prong of the
plain-error analysis); see also People v. Shorty, 408 Ill. App. 3d 504, 512, 946 N.E.2d 474,
482 (2011) (“The admission of hearsay evidence is harmless error where there is no
reasonable probability that the jury would have acquitted defendant absent the hearsay
testimony.”). Here, Zajicek had already testified he worked to develop a plan for a controlled
drug buy with the help of a confidential source on the day in question and they proceeded to
the location where the buy was to take place. Zajicek did not say the source identified
defendant as “the target.” Instead, Zajicek testified an individual appeared at the location, an
exchange occurred, and the individual left. After viewing the hidden-video footage, Zajicek
later identified defendant as the individual who entered the car and made the exchange with
the source. As the fact established by the contested testimony was established by other
evidence, we find no prejudice.
¶ 24 In the second instance, the following exchange occurred:
“Q. When you got to the Mobil gas station here in Sangamon County, did
anything in particular happen to change the plan?
A. While waiting for the target to arrive, the confidential source had attempted
phone contact with the target and was initially unsuccessful. And later contact was
made. I was advised by the [source] that the target—
MR. WYKOFF [(defense counsel)]: Objection, hearsay, Your Honor.
THE COURT: I need to hear what they’re going to say first. Go ahead.
THE WITNESS: I was advised by the confidential source that the target had
phoned him and told him that he only had $400 worth of cocaine to sell and not $500.
THE COURT: Just a minute. Overruled. Go ahead.”
¶ 25 Here, while Zajicek did not say the source identified defendant, the testimony regarding
the future sale of $400 worth of cocaine elicited by the prosecutor went beyond what was
necessary to explain police conduct. Thus, it was hearsay, and the trial court erred when it
overruled defense counsel’s objection.
¶ 26 Now that we have found error in this instance, the next and only question centers on
whether the evidence is closely balanced. People v. Sebby, 2017 IL 119445, ¶ 69. A
defendant must show prejudice in “that the evidence is so closely balanced that the alleged
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error alone would tip the scales of justice against him, i.e., that the verdict ‘may have resulted
from the error and not the evidence’ properly adduced at trial.” People v. White, 2011 IL
109689, ¶ 133, 956 N.E.2d 379 (quoting Herron, 215 Ill. 2d at 178, 830 N.E.2d at 475). In
conducting an analysis to determine whether the evidence was closely balanced, “a reviewing
court must evaluate the totality of the evidence and conduct a qualitative, commonsense
assessment of it within the context of the case.” Sebby, 2017 IL 119445, ¶ 53.
¶ 27 We find the evidence was not closely balanced in this case. The evidence indicated
Zajicek searched the confidential source and provided him with prerecorded funds. The
source drove to the buy location with Zajicek sitting in the front passenger seat. The seller
arrived and sat in the rear passenger seat. The source and the seller engaged in an exchange,
and the source received a Baggie of crack cocaine. After the seller left and the source drove
away, the source handed the Baggie of crack cocaine to Zajicek. While the hidden video did
not capture the hand-to-hand drug transaction, Zajicek was able to identify the seller as
defendant. The State also presented evidence the off-white chunky substance was 4.9 grams
of cocaine. Given the nature of the evidence, defendant cannot show the improper hearsay
testimony severely threatened to tip the scales of justice against him.
¶ 28 Defendant argues that without the inadmissible hearsay, the State failed to prove the
element of knowledge beyond a reasonable doubt. However, “[k]nowledge may be, and
ordinarily is, proven circumstantially.” People v. Ortiz, 196 Ill. 2d 236, 260, 752 N.E.2d 410,
425 (2001). “A sale of narcotics *** is always an intentional affirmative act, which, by its
very nature, creates a reasonable inference that the seller knows the nature of the thing he is
selling.” People v. Castro, 10 Ill. App. 3d 1078, 1086, 295 N.E.2d 538, 544 (1973). Zajicek’s
testimony established defendant exchanged a Baggie of cocaine for $400 during a controlled
drug buy. The jury could reasonably infer defendant knowingly and unlawfully delivered a
controlled substance in this case. As the evidence was not closely balanced, plain error has
not been established.
¶ 29 B. Confidential Source
¶ 30 Defendant argues the trial court erred in barring the defense from questioning Officer
Zajicek about the identity of the confidential source. We disagree.
¶ 31 Illinois Supreme Court Rule 412(j)(ii) (eff. Mar. 1, 2001) provides “[d]isclosure of an
informant’s identity shall not be required where his identity is a prosecution secret and a
failure to disclose will not infringe the constitutional rights of the accused.” See also People
v. Criss, 294 Ill. App. 3d 276, 280, 689 N.E.2d 645, 648 (1998) (noting “[t]he State may
refuse to disclose the identity of law enforcement informants, so long as the nondisclosure
will not deny an accused his constitutional rights”). “[T]he propriety of disclosing the
informant’s identity must be decided on a case-by-case basis, balancing the public interest in
protecting informants against the right of the accused to prepare a defense.” People v. Ofoma,
242 Ill. App. 3d 697, 704, 610 N.E.2d 738, 743 (1993).
“Courts may consider several factors in applying this balancing test and determining
whether fundamental fairness demands disclosure: ‘(1) whether the request for
disclosure relates to the fundamental question of guilt or innocence rather than to the
preliminary issue of probable cause; (2) whether the informant played an active role
in the criminal act by participating in and/or witnessing the [event]; (3) whether the
informant assisted in setting up its commission as opposed to being merely a tipster;
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and (4) whether it has been shown that the informant’s life or safety would likely be
jeopardized by disclosure of his identity.’ *** [Citation.]” People v. Hannah, 2013 IL
App (1st) 111660, ¶ 35, 991 N.E.2d 412.
See also People v. Rose, 342 Ill. App. 3d 203, 206, 794 N.E.2d 1004, 1006-07 (2003) (“When
an informant is alleged to have participated in, witnessed, or helped to arrange the crime and
disclosure will not jeopardize the informant’s safety, the privilege will generally give way to
a defendant’s right to prepare his defense.”). The defendant bears the burden of showing
disclosure of the source’s identity is necessary to help prepare his defense. People v. Clark,
2013 IL App (2d) 120034, ¶ 33, 987 N.E.2d 503.
¶ 32 Here, defense counsel asked Officer Zajicek for the identity of the confidential source.
The State objected based on relevance and the need “for a formal hearing to decide whether
or not disclosure is necessary for the case.” At a sidebar conference, the following exchange
occurred:
“THE COURT: Did you make a motion to disclose?
MR. WYKOFF: Not pretrial, Your Honor. But I didn’t care about the confidential
informant pretrial. Now that we are in trial, he enjoys the right to confront, which is a
different right. I was at pretrial Your Honor, we are asking for disclosure, there’s no
guarantees that the matter is going to proceed to trial or anything of the sort. So
there’s—the State has a vested interest in preserving that identity. But once we fall
within the confines of the trial, Your Honor, the defendant has an absolute right to
confront the accuser on that point.
THE COURT: So the answer is no, you didn’t file a pretrial motion?
MR. WYKOFF: No, I did not, Your Honor.”
The court sustained the objection and stated “[w]e’re not going to talk about the identity
anymore.”
¶ 33 We find defendant has failed to meet his burden to show disclosure of the source’s
identity was necessary to prepare his defense. While defense counsel argued defendant has a
right to confront his accuser, defendant does not have an absolute right to learn the identity of
a confidential source. Moreover, counsel undoubtedly had the State’s discovery and was
aware the informant was the source of the information contained in the answers given by
Officer Zajicek. Section 8-802.3 of the Code of Civil Procedure (735 ILCS 5/8-802.3 (West
2014)) clearly provides the procedure for counsel to use when seeking the identity of a
confidential source. Instead of raising this matter before trial, where both parties and the trial
court could fully address the issue, counsel chose to raise it midtrial, when the court had to
weigh the effects of a delay on the jury and the progress of the trial while attempting to make
evidentiary rulings on the fly. It behooves us as a court of review to point out the inherent
problems with such a tactic.
¶ 34 Counsel’s explanation for waiting until midtrial was disingenuous at best. Counsel stated
he “didn’t care about the confidential informant pretrial,” but at trial, defendant “enjoys the
right to confront, which is a different right.” What purpose do pretrial proceedings and
pretrial discovery pursuant to Illinois Supreme Court Rule 412 (eff. Mar. 1, 2001) and
Illinois Supreme Court Rule 413 (eff. July 1, 1982) have other than to prepare for trial?
Using counsel’s logic, the State had no need to tender discovery before trial since it was not
relevant until then. It is difficult to believe counsel would not have realized the significance
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of the confidential source’s identity until trial. As counsel did not demonstrate the disclosure
of the source’s identity was necessary to prepare a defense or was beyond the desire to
cross-examine, the trial court did not err in denying counsel’s request to learn the source’s
identity from Officer Zajicek.
¶ 35 C. Jury Deliberations
¶ 36 Defendant argues the trial court committed reversible error when it required the jury to
watch the surveillance video of the controlled drug buy during its deliberations while in the
presence of the parties, court personnel, and the court. Although acknowledging he has
forfeited this issue by failing to object at trial or raise it in a posttrial motion, defendant asks
this court to review his claim under the second prong of the plain-error doctrine.
¶ 37 After the jury sent its note requesting to see the video and the discussion between the
prosecutor and defense counsel, the trial court stated it would bring the jurors into the
courtroom and “show them exactly what they saw in court again.” After the jurors entered
the courtroom, the court stated, in part, as follows:
“What I will do is I’ve asked the State to play the two views of the video, the
exact same thing you saw in court in evidence that is going to be played for you.
We’ll play one. When that is done, I will have them play the other. When that is done,
I will take—have the deputy return you to the jury room to continue your
deliberations.”
After the video was played, the court stated:
“Ladies and gentlemen, you have now seen the video as it was seen in the court
yesterday, the exhibit. You now may return to the jury room and continue your
deliberations.”
¶ 38 Courts have found it “a basic principle of our justice system that jury deliberations shall
remain private and secret.” People v. Johnson, 2015 IL App (3d) 130610, ¶ 17, 46 N.E.3d
274; see also United States v. Olano, 507 U.S. 725, 737 (1993). The sanctity of jury
deliberations is a fundamental tenet of our criminal justice system. United States v. Schwarz,
283 F.3d 76, 97 (2d Cir. 2002). “[T]he primary if not exclusive purpose of jury privacy and
secrecy is to protect the jury’s deliberations from improper influence.” Olano, 507 U.S. at
737-38; Johnson, 2015 IL App (3d) 130610, ¶ 17, 46 N.E.3d 274. “Although the presence of
a third party impinges on the privacy and secrecy of deliberations, reversal is not warranted if
no harm resulted from the intrusion.” Johnson, 2015 IL App (3d) 130610, ¶ 17, 46 N.E.3d
274.
¶ 39 In People v. Rouse, 2014 IL App (1st) 121462, ¶ 67, 16 N.E.3d 97, the jury asked during
deliberations to watch surveillance footage, and the trial court granted the request by having
the jury view the video in the courtroom in the presence of both parties and the court. On
appeal, the First District noted a trial court has discretion to grant or deny a jury’s request to
review evidence. Rouse, 2014 IL App (1st) 121462, ¶ 77, 16 N.E.3d 97. In that case, the trial
court considered all reasonable alternatives in accommodating the jury’s request, it stated the
jury could view the recording as often as it wished, and it “cautioned the jury not to engage
in deliberations or discussions while in the courtroom.” Rouse, 2014 IL App (1st) 121462,
¶ 78, 16 N.E.3d 97. After noting no one communicated with the jurors during the viewing
and they returned to the jury room to deliberate once the recording was shown, the First
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District found the court’s decision did not amount to an abuse of discretion, finding “no
indicia of prejudice or anything improper having occurred during the replay of the
surveillance footage.” Rouse, 2014 IL App (1st) 121462, ¶ 79, 16 N.E.3d 97.
¶ 40 In Johnson, 2015 IL App (3d) 130610, ¶¶ 9-10, 46 N.E.3d 274, the jury asked to view a
video during deliberations, and the trial court allowed it to watch the video in the courtroom
with the court, the parties, and counsel present during the viewing. The parties were
admonished not to verbally communicate with the jury during the viewing, and the jury
retired to the jury room after the conclusion of the video. Johnson, 2015 IL App (3d) 130610,
¶ 20, 46 N.E.3d 274. On appeal, the Third District, with one justice dissenting, found the
defendant failed to demonstrate the court’s decision to allow the jury to view the video in the
courtroom resulted in prejudice. Johnson, 2015 IL App (3d) 130610, ¶ 20, 46 N.E.3d 274.
The majority noted “[n]othing in the record suggests that the judge, the prosecutor, or
defense counsel affected the jury’s ability to analyze the video evidence.” Johnson, 2015 IL
App (3d) 130610, ¶ 20, 46 N.E.3d 274. In a dissent, Justice McDade contended the jury’s
viewing of the video in the trial court’s presence intruded on the private and secret nature of
jury deliberations, which “compellingly justifie[d] a finding of presumed prejudice.”
Johnson, 2015 IL App (3d) 130610, ¶ 49, 46 N.E.3d 274 (McDade, P.J., dissenting).
¶ 41 In People v. McKinley, 2017 IL App (3d) 140752, ¶ 14, 74 N.E.3d 482, the defendant
argued the trial court erred in allowing the jury, during deliberations, to view a video of a
traffic stop in the courtroom and in the presence of the defendant, the attorneys, the judge,
and the bailiff. Prior to viewing the video, the judge instructed the jurors that no one would
make any additional comments about the video, there would be no questioning of the
attorneys, and the jurors could “ ‘make whatever observations [they] would choose to
make.’ ” McKinley, 2017 IL App (3d) 140752, ¶ 11, 74 N.E.3d 482. No one spoke to the
jurors while the video was shown, and the judge stated if they had any further questions, they
could provide them to the bailiff. McKinley, 2017 IL App (3d) 140752, ¶ 23, 74 N.E.3d 482.
¶ 42 In a fractured opinion, only Justice Carter found the court did not abuse its discretion.
McKinley, 2017 IL App (3d) 140752, ¶ 23, 74 N.E.3d 482. In her specially concurring
opinion, Justice O’Brien stated the court’s requirement that the jury view the video in the
courtroom and in the presence of the parties was improper. McKinley, 2017 IL App (3d)
140752, ¶ 35, 74 N.E.3d 482 (O’Brien, J., specially concurring). However, Justice O’Brien
concurred in the majority’s decision to affirm the defendant’s conviction because the error
did not rise to the level of plain error under either the first or second prongs. McKinley, 2017
IL App (3d) 140752, ¶ 36, 74 N.E.3d 482 (O’Brien, J., specially concurring). In a dissent,
Justice Holdridge found the trial court’s instruction lacked specificity and was confusing, and
thus the “presumed prejudice *** justifie[d] a finding that the error was structural in nature.”
McKinley, 2017 IL App (3d) 140752, ¶ 44, 74 N.E.3d 482 (Holdridge, P.J., dissenting).
¶ 43 In this case, even if we agreed with defendant that the trial court erred in allowing the
jury to view the video in the courtroom during deliberations, we find the alleged error does
not rise to the level of structural error under the plain-error doctrine. We note our supreme
court has “equated the second prong of plain-error review with structural error, asserting that
‘automatic reversal is only required where an error is deemed “structural,” i.e., a systemic
error which serves to “erode the integrity of the judicial process and undermine the fairness
of the defendant’s trial.” ’ [Citations.]” People v. Thompson, 238 Ill. 2d 598, 613-14, 939
N.E.2d 403, 413 (2010). “An error is typically designated as structural only if it necessarily
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renders a criminal trial fundamentally unfair or an unreliable means of determining guilt or
innocence.” Thompson, 238 Ill. 2d at 609, 939 N.E.2d at 410. Structural errors have been
found only in a limited class of cases, including those involving “a complete denial of
counsel, trial before a biased judge, racial discrimination in the selection of a grand jury,
denial of self-representation at trial, denial of a public trial, and a defective reasonable doubt
instruction.” Thompson, 238 Ill. 2d at 609, 939 N.E.2d at 411; see also In re Samantha V.,
234 Ill. 2d 359, 378-79, 917 N.E.2d 487, 499 (2009) (finding error under the second prong
based on the trial court’s failure to apply the one-act, one-crime rule); People v. Walker, 232
Ill. 2d 113, 131, 902 N.E.2d 691, 700 (2009) (finding error under the second prong based on
the trial court’s failure to exercise discretion in denying a continuance).
¶ 44 Defendant has failed to establish the alleged error in this case amounts to structural error,
as the trial court’s decision did not affect the fairness of defendant’s trial and did not
challenge the integrity of the judicial process. See McKinley, 2017 IL App (3d) 140752,
¶¶ 27, 36, 74 N.E.3d 482 (finding this issue did not amount to a structural error). While
defendant asks this court to declare the alleged error here to be structural in nature, we find
such a determination is best left to our supreme court. Accordingly, we hold defendant to his
forfeiture of this issue.
¶ 45 D. Fines Imposed by the Circuit Clerk
¶ 46 Defendant argues this court should vacate various fines improperly imposed by the circuit
clerk. We agree.
¶ 47 This court has previously addressed the impropriety of the circuit clerk imposing judicial
fines. See People v. Larue, 2014 IL App (4th) 120595, ¶¶ 55-73, 10 N.E.3d 959. “Although
circuit clerks can have statutory authority to impose a fee, they lack authority to impose a
fine, because the imposition of a fine is exclusively a judicial act.” (Emphases omitted.)
People v. Smith, 2014 IL App (4th) 121118, ¶ 18, 18 N.E.3d 912. Thus, “any fines imposed
by the circuit clerk are void from their inception.” Larue, 2014 IL App (4th) 120595, ¶ 56, 10
N.E.3d 959. The propriety of the imposition of fines and fees presents a question of law,
which we review de novo. People v. Guja, 2016 IL App (1st) 140046, ¶ 69, 51 N.E.3d 970.
¶ 48 In the case sub judice, the State concedes the following fines imposed by the circuit clerk
must be vacated as void: (1) $50 for “Court Systems,” (2) $10 for “Child Advocacy,” (3) $15
for the “ISP OP Assistance Fund,” (4) $5 for the “Drug Court Program,” and (5) $100 for the
“Victims Assist[ance] Fund.” We agree and vacate these fines.
¶ 49 III. CONCLUSION
¶ 50 For the reasons stated, we affirm in part and vacate in part. As part of our judgment, we
award the State its $50 statutory assessment against defendant as costs of this appeal.
¶ 51 Affirmed in part and vacated in part.
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