People v. Martinez

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Appellate Court Date: 2022.07.08
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People v. Martinez, 2021 IL App (1st) 172097Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption MIGUEL MARTINEZ, Defendant-Appellant.
District & No. First District, Second Division
No. 1-17-2097
Filed March 16, 2021
Decision Under Appeal from the Circuit Court of Cook County, No. 12-CR-22749; the
Review Hon. Paula M. Daleo, Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd, Douglas R. Hoff, and Kieran M. Wiberg, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
Phyllis Warren, and Aileen Bhandari, Assistant State’s Attorneys, of
counsel), for the People.
Panel JUSTICE PUCINSKI delivered the judgment of the court, with
opinion.
Presiding Justice Fitzgerald Smith and Cobbs concurred in the
judgment and opinion.
OPINION
¶1 Following a bench trial, defendant, Miguel Martinez, was convicted of predatory criminal
sexual assault and aggravated criminal sexual abuse and was sentenced to 50 years’
imprisonment. On appeal, defendant seeks reversal of his convictions and the sentence
imposed thereon, arguing that his trial was conducted in contravention of his constitutional
right to be present for all critical phases of his trial as well as in violation of his rights to
confrontation and a public trial. For the reasons explained herein, we affirm the judgment of
the circuit court.
¶2 I. BACKGROUND
¶3 Defendant was charged with multiple sex offenses including predatory criminal sexual
assault and aggravated criminal sexual abuse based on evidence that he engaged in
inappropriate sexual contact with his eight-year-old minor daughter, B.M.
¶4 Prior to trial, the State sought leave to permit B.M. to testify via a closed-circuit television
at the upcoming trial. The State’s request was made pursuant to the recommendation of Illinois
Department of Child and Family Services (DCFS) personnel who believed that it would be
psychologically damaging to B.M. to require her to testify against her father in his presence.
The circuit court presided over a hearing on the matter and heard testimony from a clinical
psychologist treating B.M. who opined that that it would be detrimental to B.M.’s mental
health if she were required to confront her father in person and that testimony via closed-circuit
television would provide B.M. with “some semblance of safety.” Defense counsel, in turn,
acknowledged that he did not object to the State’s request to permit B.M. to testify via closed-
circuit television “as long as [defendant’s] rights [we]re protected” during the upcoming trial.
Ultimately, after considering the testimony of B.M.’s psychologist and the positions of the
parties, the court granted the State’s motion. In doing so, the court expressly found that
allowing “closed circuit questioning of the complaining witness” would protect defendant’s
rights. Thereafter, defendant waived his right to a jury trial, electing instead to proceed by way
of a bench trial.
¶5 Prior to opening statements, the assistant state’s attorney (ASA) prosecuting the case
informed the court, defendant, and defense counsel how the closed-circuit television system
had been set up in anticipation of B.M.’s testimony. The ASA explained that television screen
had been set up in a nearby room where defendant could sit and hear his daughter’s testimony
while she testified in the courtroom. The room was also equipped with an “intercom phone”
that would allow defendant the opportunity to communicate in real time with his attorney.
When asked if the set up was “satisfactory,” defense counsel responded “yes.” Defendant also
acknowledged that he understood the procedure. The court then suggested that defendant
relocate to the other room during oral arguments to ensure that the system was in proper
working order prior to B.M.’s testimony. After opening arguments concluded, defense counsel
went to speak to defendant, who reported that he had been unable to hear the opening
statements. The sheriff’s deputy who remained in the room with defendant during opening
statements confirmed that the statements had been inaudible. The ASA increased the volume
of the microphone, and defense counsel indicated that would he stand closer to the microphone
when he cross-examined B.M. Thereafter, the sheriff’s deputy indicated that he could hear
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defense counsel “just fine.” Accordingly, the State requested the court to clear the courtroom
of all nonessential court personnel, and B.M. was then called upon to testify.
¶6 B.M., who was 13 years old and in the care of a foster family at the time of trial, detailed
the sexual abuse she suffered at the hands of defendant from January 2011 to November 2012.
When the abuse started, B.M. was eight years old, and she was living in an apartment with her
two sisters, three brothers, defendant, and her mother. At the apartment, her three brothers
shared a room and her mother slept in another room with B.M.’s two sisters. B.M., in turn,
shared a room with defendant. She explained that her father would sleep on the bed while she
slept on a cushion on the floor. There were certain times, however, that defendant “call[ed]”
her to the bed.
¶7 B.M. testified that defendant first abused her when her mom was shopping with B.M.’s
three brothers and one of her sisters. B.M. and her youngest sister, who was a baby at the time,
were left behind with defendant. B.M. explained that she had been unable to accompany her
mother shopping because she had not been able to find her shoes. While her mother and
siblings were out shopping, defendant called B.M. to the bed and showed her an
“inappropriate” video. The adults in the video were naked and “doing things” to each other.
Defendant taught her that her “private area” was called a “pussy” and referred to her chest area
as “boobs.” He also taught her that his penis was called a “dick.”
¶8 B.M. testified that on the occasions in which she was called to the bed with defendant, he
touched her “pussy” with his “dick.” Neither of them would be wearing underwear. Defendant
also attempted to put his “dick” in her “pussy,” which B.M. found to be “uncomfortable.” She
also found it “uncomfortable” when defendant tried to put his finger in her “pussy.” B.M.
testified that defendant made her touch his “dick” with her mouth and ordered her to “suck it.”
Defendant also touched her boobs with his hands and his mouth. He instructed her “not to tell
anybody” about their interactions. B.M. explained that she followed defendant’s instructions
because he was her father. The abuse stopped when she was examined by a doctor and removed
from the care of her parents.
¶9 On cross-examination, B.M. testified that, although she knew defendant first abused her
when she was eight years old, she did not remember specific details about the time of the year
or day of the week that the first incidence of abuse occurred. She testified that defendant used
his “flip phone” to show her the inappropriate video. After that, he tried to put his “dick” and
his finger in her “pussy” but was unsuccessful. B.M. also admitted she did not recall how much
time passed before defendant abused her again. She did recall that the second time occurred
after defendant showed her another inappropriate video on the television that was in the family
room. Nobody else was home, and she did not tell her mother, siblings, or teacher what had
occurred. She did not recall how many times defendant touched her inappropriately but
testified that the abuse occurred on more than those two occasions. B.M. further testified that
she was unaware that there were problems in her parents’ marriage, and she did not know why
she slept in defendant’s room while her mother slept in another room with her sisters.
¶ 10 Dolly Martinez (Martinez), B.M.’s biological mother and defendant’s ex-wife, admitted
that she pled guilty to permitting the sexual abuse of a minor in connection with the events that
occurred between B.M. and defendant. She also acknowledged that none of her six biological
children were currently in her custody and care. Back in 2012, however, she was residing in a
Cicero apartment with her six children and defendant. Martinez confirmed that she and
defendant had slept in different rooms in the apartment. She slept in a room with two of her
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daughters and her youngest son. Although she invited B.M. to sleep with her, B.M. told her
that she would “rather” sleep with defendant in his room. Martinez testified that she first
became aware of B.M.’s abuse on November 4, 2012, when she arrived home to the apartment
and opened defendant’s bedroom door. When she did so, she observed defendant on the bed
with B.M. Defendant was lying on top of B.M. Neither of them was wearing clothes. Martinez
became mad and scared when she saw defendant having sex with their daughter. Martinez
testified that she attempted to speak to defendant and B.M. later that day about what she had
observed; however, defendant “just ignored” her and B.M. “would not open up to” her. She
did not let B.M. sleep in defendant’s room after that day. Martinez acknowledged, however,
that she did not immediately contact police about what she had seen and that she had not taken
her daughter to the hospital to be examined. Instead, she took B.M. to her mother’s house.
¶ 11 Although Martinez admitted that she spoke to detectives and an ASA about the November
4, 2012, incident and provided them with a signed statement on November 11, 2012, she did
not remember telling them that she had prior knowledge of defendant’s inappropriate sexual
behavior with their daughter before she observed them in bed together. Specifically, Martinez
did not recall telling the authorities that she had a conversation with B.M. “about a month”
earlier during which B.M. reported that she did not want to be around defendant because he
was “hurting” her and “always trying” to put his “dick” and finger in her. Martinez
acknowledged that defendant owned a “flip phone” that had been provided to him through a
government program but testified that it was not capable of playing videos. He also owned
another cellular phone, but she did not know if it could play videos. Martinez did recall
observing images of defendant and B.M. on one of his phones but denied she observed
anything sexually explicit. She admitted, however, that defendant deleted the pictures on his
phone after she told him that she had looked at them. When asked to describe the pictures she
did observe on defendant’s phone, Martinez testified that she saw a picture of B.M. with her
“eyes up in the air”; however, she denied that she told detectives that she observed a picture of
B.M. with defendant’s penis in her mouth.
¶ 12 On cross-examination, Martinez testified that she only observed one instance of sexual
contact between defendant and B.M. and that her daughter had not told her about any other
incidents.
¶ 13 Jennifer Dobinson, a registered nurse employed by MacNeal Hospital, testified that she
was working in the emergency room on November 10, 2012, when she encountered B.M., who
was brought to the hospital by her mother and grandmother at the request of DCFS at
approximately 12:24 p.m. Dobinson and Dr. Diana Goodwine interviewed B.M. in a “private
location” in the hospital’s emergency department. Based on the information that B.M. relayed
during the interview, Dobinson and Dr. Goodwine escorted B.M. to a private patient room and
administered a sexual assault kit, which involved a full body examination and DNA collection.
After conducting a full body examination and observing no visible signs of physical injury,
Dobinson collected B.M.’s underwear, placed it into a bag, which she then sealed. Dobinson
then took an oral swab and a blood sample from B.M. Because B.M. was eight years old and
a preadolescent, the doctor did not perform a speculum examination of her vaginal area;
instead, in accordance with protocol, Dr. Goodwine performed a “blind sweep” of B.M.’s
vaginal area with a sterile Q-tip. Dobinson testified that all of the evidence that was collected
during B.M.’s examination was put into separate bags, which were then individually sealed
and put into the rape kit. The rape kit was also then sealed and was subsequently turned over
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to Cicero police officer Edgar Vera. B.M.’s family did not consent to any pictures being taken
of her for evidentiary purposes.
¶ 14 When asked additional details about her encounter with B.M., Dobinson testified that when
she presented at the emergency room, B.M. “did not appear to be female.” She explained that
B.M.’s “hair was short, almost like in a boy haircut. She was not in female-looking clothing.
She almost looked like she was a boy.” During the interview, B.M. relayed that she had taken
a bath and had urinated and defecated before arriving at the emergency room. Six days had
passed from the date of B.M.’s last sexual assault to the time that she was brought to the
emergency room.
¶ 15 Dr. Goodwine confirmed that she and nurse Dobinson interviewed and examined B.M. on
November 10, 2012, at MacNeal Hospital. B.M. relayed that she had been penetrated vaginally
on Sunday and that her father had tried to rape her, but he was unsuccessful. B.M. further
relayed that the abuse had been occurring since 2011 and that she had been “too ashamed” to
tell anybody. B.M. stated that defendant placed his finger inside her, “kissed her down there”
and put his penis in her on “multiple occasions.” In addition, defendant also made B.M. kiss
his private part and his mouth. During the interview, B.M. denied that defendant engaged in
similar conduct with any of her siblings. During the physical examination that followed, Dr.
Goodwine observed an abnormality in B.M.’s genitourinary area. Specifically, she observed a
small red bump on B.M.’s internal labia, which is not something she normally observed in an
eight-year-old child. In addition, B.M.’s hymen was partially torn and there was a superficial
tear and abrasions around her vaginal opening. Although such findings were consistent with
the activities described by B.M. during her interview, Dr. Goodwine acknowledged that other
activities could cause those abnormalities, including a biking accident or a fall from a horse.
¶ 16 On cross-examination, Dr. Goodwine acknowledged that it was not entirely abnormal for
an eight-year-old girl to have a tear in her hymen. She further acknowledged that the small red
bump, like the one that she observed on B.M.’s labia, was not necessary caused by sexual
trauma.
¶ 17 Officer Robert DeCianni, a detective with the Cicero Police Department, testified that he
and his partner, Detective Juan Soto were assigned to collect a biological sample from
defendant on November 12, 2012. After obtaining defendant’s written consent authorizing the
collection, Detective DeCianni used two swabs to collect DNA from the side and back of
defendant’s mouth, placed the swabs into bags, and sealed them. Detective DeCianni then sent
the swabs to the Illinois State Police crime lab to be tested.
¶ 18 Detective DeCianni’s partner, Soto, confirmed that they were assigned to investigate
B.M.’s sexual assault and interviewed defendant during the course of their investigation on
November 12, 2012, at the Cicero Police Department. Detective DeCianni advised defendant
of his Miranda rights (see Miranda v. Arizona, 384 U.S. 436 (1966)) and obtained a signed
and initialed form from defendant waiving those rights. Thereafter, the officers asked
defendant a series of questions. Defendant’s responses to those questions were reduced to a
typewritten statement, which defendant then signed.
¶ 19 In his statement, defendant admitted that he “rubbed [B.M.’s] vagina with his hands on
three occasions” and that she was not wearing any underwear when he did so. Defendant
further admitted that he “ma[d]e [B.M.] kiss his penis on two or three occasions.” Defendant
also admitted that he used his phone to take two pictures of B.M. kissing his penis. Defendant,
however, denied that he ever had sexual intercourse with B.M. He also denied that he ever
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kissed B.M.’s vagina or her nipples. His sexual encounters with his daughter occurred between
October 22, 2012, and October 31, 2012. Although defendant did not know why he engaged
in sexual contact with B.M., he classified himself as a “very horny guy” and admitted that he
“made a huge mistake.” Defendant denied that he engaged in inappropriate sexual contact with
any of his other children.
¶ 20 On cross-examination, Detective Soto admitted that defendant’s interview was not video
recorded. He also admitted that no inappropriate pictures of B.M. were recovered from
defendant’s phone but explained that defendant admitted that he had deleted the images.
¶ 21 Tom Plach testified that, in 2012, he was a licensed clinical social worker employed by
Presence Behavioral Health at the Proviso Children’s Advocacy Center. On November 11,
2012, he conducted a forensic victim sensitive interview (VSI) with B.M., which he described
as an “information gathering” mechanism employed during a sexual assault investigation. The
VSI took place in a room outfitted with electronic recording equipment and a one-way mirror.
Before engaging in substantive conversation, Plach ensured that B.M. knew the difference
between the truth and a lie and explained that it was okay if she did not know the answer to
any of his questions. During his interview with B.M., which was recorded, Plach used diagrams
that depicted anatomically correct “boy” and “girl” figures. B.M. drew circles on certain parts
of the diagrams during the interview when describing her interactions with defendant. After
Plach confirmed that the recording of his interview with B.M. accurately depicted his
conversation with her, the court stated that it would watch the video in chambers.
¶ 22 ASA Sarah Karr testified that she was assigned to observe Plach’s forensic interview with
B.M. on November 11, 2012. After doing so, she relocated to the Cicero Police Department,
where she took a written statement from Martinez, B.M.’s mother. Detective Soto was also
present for the statement. In the statement, Martinez admitted she discovered three sexually
explicit photographs of B.M. on defendant’s phone. In the pictures, defendant’s penis was in
B.M.’s mouth and B.M. appeared to be “upset” in the photographs. When Martinez confronted
defendant about the pictures and asked him “why he was doing that with his daughter,” he took
the phone and deleted the pictures. Karr testified that she returned to the Cicero Police
Department the following day and interviewed defendant. Detective Soto was also present for
that interview as well. After he was advised of and waived his Miranda rights, defendant
provided a statement in which he admitted to engaging in sexual contact with B.M.
Specifically, he admitted that on more than one occasion, he removed B.M.’s pajama bottoms
and touched her vagina with his hands; however, he denied that he inserted his fingers into her
vagina. Defendant also admitted that he had B.M. kiss his penis on two occasions. On both
occasions, B.M. kissed his penis with a closed mouth. Defendant further admitted that he used
his phone to take two pictures of B.M. kissing his penis. He claimed he did so because B.M.
was “curious.” He then showed the pictures to B.M. She was the only person to whom he
showed the photographs. Defendant did not know when Martinez saw the pictures. He denied
that his wife observed him and B.M. naked and in bed together on November 4, 2012.
Defendant described himself as a “very horny guy” and stated that Martinez had stopped
engaging in sexual intercourse with him two years ago. Defendant’s statement was reduced to
writing, and he signed the statement, thereby acknowledging that the details included therein
were accurate. Karr acknowledged that she did not use audio or video equipment to record her
interview with defendant.
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¶ 23 Kenan Hasanbegovic, a forensic scientist with the Illinois State Police crime lab and an
expert in the field of forensic biological analysis, testified that he conducted testing on the
evidence included in B.M.’s rape kit, which he received in a sealed condition. He first
conducted testing on B.M.’s underwear, which contained several bodily fluid stains. One of
those stains tested positive for the presence of semen and was preserved for DNA analysis.
Hasanbegovic acknowledged he did not know when or how the sperm cells appeared on the
underwear that he examined.
¶ 24 Megan Neff, a forensic scientist with the Illinois State Police and an expert in the field of
forensic DNA analysis, testified that she performed testing on the samples collected in
connection with the case. She first generated DNA profiles from the preserved buccal swab
standards that were collected from defendant and B.M. She then conducted testing on the
semen stain that was present on B.M.’s underwear. Neff testified that the underwear contained
a DNA mixture from two people, one of whom was male. The male DNA profile that she
discovered “match[ed]” defendant’s DNA profile. She explained that the male profile that she
identified would be expected to occur in approximately 1 in 97 quintillion African Americans,
1 in 2.6 quintillion whites, and 1 in 6.2 quintillion Hispanic unrelated individuals.
¶ 25 After presenting the aforementioned evidence, the State rested its case. Defendant’s motion
for a directed finding was denied, and defendant elected to testify. When asked by his attorney
if he ever touched B.M. “inappropriately,” defendant testified, “Not really. I never did.” He
then specifically denied that he ever touched his daughter’s vagina or chest. He also denied
that he ever had his daughter touch his penis. Although he acknowledged that he owned a cell
phone, defendant testified that the phone did not have Internet access and that he never had
pornography or inappropriate pictures of B.M. on his phone. He also denied that he ever
showed his daughter pornography. Defendant admitted that he and Martinez had relationship
“problems” in 2011 and 2012 and that he knew she wanted to leave him. Defendant also
admitted that he signed a statement at the Cicero Police Department; however, he testified that
he only did so because the officers told him he could leave once he signed the document. He
classified the officers’ actions as a “setup” and testified that he “never” told the officers that
he ever touched his daughter in an inappropriate sexual manner. Defendant denied that he was
ever provided with his Miranda rights and testified that he never read the statement that he
signed. Defendant also testified that the underwear with the semen stain that the State
introduced into evidence belonged to Martinez, not his daughter.
¶ 26 Following defendant’s testimony, the defense rested. The parties then delivered closing
arguments. After considering the evidence and the arguments of the parties, the court found
defendant guilty of multiple counts of predatory criminal sexual assault, criminal sexual
assault, and aggravated criminal sexual abuse. In doing so, the court found that B.M. “was a
much more credible witness than her father.” Moreover, the court noted that B.M.’s testimony
at trial and during her VSI was corroborated by the physical evidence detailed by Dr. Goodwine
as well as by defendant’s own statement. In contrast, found defendant’s testimony “totally
incredible” and noted that his claim that that the underwear that was introduced at trial
belonged to Martinez was refuted by the DNA evidence. Moreover, the fact that defendant’s
semen was found on that underwear that he claimed belonged to Martinez was inconsistent
with his testimony that they had not had intercourse in two years.
¶ 27 Defendant’s posttrial motion was denied, and the cause proceeded to a sentencing hearing,
where the court, after considering the evidence presented in aggravation and mitigation,
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sentenced defendant to a total of 50 years’ imprisonment. This appeal followed.
¶ 28 II. ANALYSIS
¶ 29 A. Defendant’s Absence During Opening Statements
¶ 30 On appeal, defendant argues that his trial was conducted in contravention of a number of
his constitutional rights. He first argues that he was denied his constitutional right to be present
for all critical stages of his trial when he was absent from the courtroom during opening
statements. Although he was taken to another room to listen to and observe the statements, the
audio equipment was not calibrated properly, and he was unable to hear those statements.
¶ 31 The State, in turn, responds that defendant waived his right to be present when he agreed
to view the opening statements via closed-circuit television and, as such, may not avail himself
of the plain error doctrine. Alternatively, the State observes that defendant failed to raise this
issue in a posttrial motion and submits that he is not entitled to relief under the plain error
doctrine because “his physical absence in the courtroom did not result in an unfair trial or a
violation of an underlying substantial right.”
¶ 32 As a threshold matter, defendant acknowledges that he failed to properly preserve his
claims that his trial was conducted in contravention of his constitutional rights. Specifically,
he failed to object to each of the purported constitutional violations at trial and failed to include
them in a posttrial motion. See People v. Enoch, 122 Ill. 2d 176, 186 (1988) (recognizing that
to properly preserve an issue for appeal, a defendant must object to the purported error at trial
and specify the error in a posttrial motion and that his failure to satisfy both requirements
results in forfeiture of appellate review of his claim). In an effort to avoid forfeiture, however,
defendant invokes the plain error doctrine, which provides a limited exception to the forfeiture
rule and allows for review of forfeited issues on appeal if the evidence is closely balanced or
the error is of such a serious magnitude that it affected the integrity of the judicial process and
deprived the defendant of his right to a fair trial. Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967); People
v. Belknap, 2014 IL 117094, ¶ 48; People v. Sargent, 239 Ill. 2d 166, 189 (2010); People v.
Piatkowski, 225 Ill. 2d 551, 564-65 (2007).
¶ 33 The plain error doctrine, however, only applies to claims that are forfeited, not waived.
People v. Schoonover, 2019 IL App (4th) 160882, ¶ 15. Although sometimes mistakenly used
interchangeably, the doctrines of waiver and forfeiture are distinct. People v. Sophanavong,
2020 IL 124337, ¶ 20. Waiver differs from forfeiture in that waiver “ ‘is an intentional
relinquishment or abandonment of a known right or privilege’ ” whereas forfeiture is the
“ ‘failure to make the timely assertion of [a] right’ ” or privilege. Id. (quoting People v. Lesley,
2018 IL 122100, ¶¶ 36-37). When constitutional rights are implicated, waivers “ ‘not only must
be voluntary but must be knowing, intelligent acts done with sufficient awareness of the
relevant circumstances and likely consequences.’ ” People v. Johnson, 75 Ill. 2d 180, 187
(1979) (quoting Brady v. United States, 397 U.S. 742, 748 (1970)). Unlike waiver, “[f]orfeiture
results in the loss of a right regardless of the defendant’s knowledge thereof and irrespective
of whether the defendant intended to relinquish the right.” Lesley, 2018 IL 122100, ¶ 37.
¶ 34 In this case, prior to trial, the court held that B.M. would be permitted to testify via closed-
circuit television. In accordance with the court’s prior ruling, a television was set up in a room
close to the courtroom where defendant could observe his daughter’s testimony. The room was
also equipped with an intercom phone that defendant could use to communicate with his
attorney during his daughter’s testimony. The setup was explained to defendant and defense
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counsel immediately before the trial began. When the court inquired whether the setup was
“satisfactory,” defense counsel responded, “yes.” The court then addressed defendant to assess
whether he understood the process by which he would be viewing his daughter’s testimony,
and he responded, “yes.” Thereafter, to ensure that the equipment was in proper working order,
the trial court suggested that defendant observe opening statements from that room. Neither
defendant nor his attorney voiced any objection to the court’s suggestion, and defendant left
the courtroom to listen to and observe opening statements via the closed-circuit television
system. After opening statements concluded, the court and the attorneys were informed that
defendant had been unable to hear the statements. The lack of audio was also corroborated by
the sheriff’s deputy who was monitoring defendant. Accordingly, the parties examined the
audio equipment and adjusted the microphone settings, and defense counsel indicated he would
stand closer to the microphone when he spoke in the courtroom.
¶ 35 Based on these facts, we do not find that defendant waived his claim pertaining to his
absence during opening statements. Although defendant apparently willingly exited the
courtroom to listen to, and view, opening statements, he was never specifically advised of his
constitutional right to be present. Moreover, there is no dispute that he was unable to hear those
statements due to problems with the audio portion of the closed-circuit television system. His
apparent willingness to absent himself from the courtroom during oral arguments was based
upon an implied understanding that he would actually be able to see and hear those arguments.
That, however, did not occur. Mindful that the principles of waiver should be liberally
construed in favor of a defendant (People v. Phipps, 238 Ill. 2d 54, 62 (2010)), we do not find
that the record supports a finding that defendant knowingly and voluntarily waived his right to
be physically present for opening statements. See, e.g., People v. Stroud, 208 Ill. 2d 398, 403,
409 (2004) (declining to find that the defendant waived his right to be present for plea
proceedings where he was not specifically informed of his right to be present and thus “did not
specifically waive his right to be bodily in the courtroom”). Accordingly, we will review his
claim for plain error. The first step in any plain error analysis is to determine whether any error
actually occurred. Piatkowski, 225 Ill. 2d at 565; People v. Rinehart, 2012 IL 111719, ¶ 15. If
an error is discovered, defendant then bears the burden of persuasion to show that the error
prejudiced him. Sargent, 239 Ill. 2d at 189-90. Keeping this standard in mind, we turn now to
evaluate the merit of defendant’s claim.
¶ 36 The federal and Illinois state constitutions both “afford criminal defendants the general
right to be present, not only at trial, but at all critical stages of the proceedings, from
arraignment to sentencing.” People v. Lindsey, 201 Ill. 2d 45, 55 (2002). A defendant’s right
to be present, however, is not considered to be a substantial constitutional right; rather, it is a
“ ‘lesser right’ that is intended to secure the substantial rights of a defendant, such as the right
to confront witnesses, the right to present a defense, or the right to an impartial jury.” People
v. Johnson, 238 Ill. 2d 478, 487 (2010). In addition to being a lesser right, a defendant’s right
to be present is not absolute. Lindsey, 201 Ill. 2d at 56; People v. Lucas, 2019 IL App (1st)
160501, ¶ 12. “ ‘[The] privilege of presence is not guaranteed “when presence would be
useless, or the benefit but a shadow” ’ ”; however, “ ‘due process clearly requires that a
defendant be allowed to be present “to the extent a fair and just hearing would be thwarted by
his absence.” ’ ” Lindsey, 201 Ill. 2d at 56-57 (quoting Kentucky v. Stincer, 482 U.S. 730, 745
(1987)). Moreover, a defendant can waive his right to be present by consenting to be absent
for a portion of a proceeding or through his own misconduct. Id. at 56. Accordingly, “even
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where a defendant has the general right to be present because the proceeding is a ‘critical’
stage, a defendant’s absence is not a per se constitutional violation.” Id. at 57. Instead, the
defendant’s right to be present will be found to be violated “only if the record demonstrates
that defendant’s absence caused the proceeding to be unfair or if his absence resulted in a denial
of an underlying substantial right.” Id.; see also People v. Hood, 2016 IL 118581, ¶ 31
(categorizing the right to be present as a “ ‘lesser right,’ meaning that the right is violated only
when the defendant’s absence results in the loss of an underlying substantial right or in an
unfair proceeding”). Whether a defendant’s absence affected the fairness of his trial depends
on a review of the record as a whole and depends upon the specific nature of the proceeding
from which he was absent. Lucas, 2019 IL App (1st) 160501, ¶ 13.
¶ 37 In this case, although we do not condone the procedure by which the court and the parties
tested the closed-circuit television system, which resulted in defendant being unable to hear
the parties’ opening statements, we do not find that defendant’s absence from the courtroom
during opening statements and his inability to hear those statements resulted in an unfair trial
or the denial of an underlying substantial right. While defendant suggests that his inability to
hear the State “announce its chosen theory of the case” during opening statements resulted in
him being “deprived of necessary information to allow him to intelligently exercise his right
to testify, or to refrain from testifying, on his own behalf,” we cannot agree. It is true that a
defendant should be made aware of “all of the State’s evidence” when exercising his right to
decide whether or not to testify on his own behalf. (Emphasis in original.) Id. ¶ 19. Opening
statements, however, are not evidence (People v. Jaimes, 2014 IL App (2d) 121368, ¶ 56);
rather, opening statements serve to outline the expected evidence and the reasonable inferences
that may be drawn from that evidence (People v. Arroyo, 339 Ill. App. 3d 137, 149 (2003)).
Here, there is no dispute that defendant heard all of the State’s evidence against him prior to
exercising his right to testify. That is, defendant made his decision to testify after hearing
testimony from his daughter, his ex-wife, medical personnel, forensic scientists, and police
detectives. As such, his absence from the courtroom during opening statements and his
inability to hear those statements did not prevent him from making a fully informed decision
as to whether or not to testify. Because defendant’s absence from the courtroom during opening
statements did not result in an unfair trial or result in the denial of an underlying substantial
right, we find no constitutional violation. See, e.g., Lindsey, 201 Ill. 2d at 60 (finding the
defendant’s absence during his arraignment and jury waiver did not amount to a constitutional
violation where it did not cause the proceedings to be unfair or result in a denial of an
underlying constitutional right). Having found no error, there can be no plain error. Hood, 2016
IL 118581, ¶ 18.
¶ 38 B. Defendant’s Absence From the Courtroom During B.M.’s Testimony
¶ 39 In a related claim, defendant next challenges the procedure by which the court permitted
B.M. to testify. Although he acknowledges that section 106B-5 of the Code of Criminal
Procedure of 1963 (Code) (725 ILCS 5/106B-5 (West 2012)) provides a mechanism by which
minor victims of sexual assault may testify via closed-circuit television, he argues that the
circuit court failed to follow the procedure outlined in the statute. Defendant submits that the
court’s failure to abide by the statute resulted in the denial of his right to be present at every
critical stage of his trial, “which in turn infringed on his underlying substantial rights to
confrontation and the assistance of counsel.”
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¶ 40 The State again argues that defendant waived his claim because he acquiesced to the
manner in which B.M. was permitted to testify, which resulted in his exclusion from the
courtroom. On the merits, the State contends that defendant’s “viewing of B.M.’s testimony
via closed-circuit television did not violate his right to be present, nor infringe on his
underlying substantial rights to confrontation and the assistance of counsel.”
¶ 41 Having already discussed the relevant law concerning a criminal defendant’s right to be
present for all critical stages of his trial, we will now set forth the relevant law concerning a
defendant’s right to confrontation, which is provided for in both the federal and Illinois state
constitutions. U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8 (amended 1994). “The central
concern of the confrontation clause is to ensure the reliability of the evidence against a criminal
defendant by subjecting it to rigorous testing in the context of an adversary proceeding before
the trier of fact.” People v. Lofton, 194 Ill. 2d 40, 56 (2000). The constitutional right to
confrontation includes the right to hear and view a witness as he or she testifies and to aid in
counsel’s cross-examination of that witness. Id. at 60; see also Hood, 2016 IL 118581, ¶ 19
(“The confrontation clause ‘provides two types of protections for a criminal defendant: the
right physically to face those who testify against him, and the right to conduct cross-
examination’ ” (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987) (opinion of Powell,
J., joined by Rehnquist, C.J., and White and O’Connor, JJ.))). Although the constitutional right
to confrontation includes a preference for face-to-face confrontation, testimony delivered
through electronic means does not necessarily result in a violation of a defendant’s
constitutional right. See Maryland v. Craig, 497 U.S. 836, 851-52 (1990) (holding that the “use
of the one-way closed circuit television procedure, where necessary to further an important
state interest, does not impinge upon the truth-seeking or symbolic purposes of the
Confrontation Clause”); see also People v. Cuadrado, 214 Ill. 2d 79, 89 (2005) (recognizing
that “[w]hile the confrontation clause represents a preference for face-to-face confrontation,
that preference ‘must occasionally give way to considerations of public policy and the
necessities of the case’ ” (internal quotation marks omitted)).
¶ 42 In Illinois, section 106B-5 of the Code, provides a mechanism through which minor victims
of sex crimes can testify electronically outside of the immediate physical presence of a criminal
defendant. Specifically, the statute provides as follows:
“(a) In a proceeding in the prosecution of [certain enumerated sex offenses], a court
may order that the testimony of a victim who is a child under the age of 18 years ***
be taken outside the courtroom and shown in the courtroom by means of a closed circuit
television if:
(1) the testimony is taken during the proceeding; and
(2) the judge determines that testimony by the child victim *** in the courtroom
will result in the child *** suffering serious emotional distress ***.
***
(f) The defendant shall be allowed to communicate with the persons in the room
where the child *** is testifying by any appropriate electronic method.” 725 ILCS
5/106B-5 (West 2012).
¶ 43 Initially, we note that defendant does not contest the propriety of the court’s ruling allowing
B.M. to testify via closed-circuit television to prevent her from experience adverse
psychological effects if forced to confront him in person; rather, he simply challenges the
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manner in which B.M.’s closed-circuit television testimony took place. We agree with
defendant that the specific procedure outlined in section 106B-5 was not followed. As
explained above, the statute permits a minor to testify “outside the courtroom and” have his or
her testimony “shown in the courtroom by means of a closed[-]circuit television.” Id. § 106B-
5(a). In this case, however, B.M. testified in the courtroom and defendant was relocated to a
nearby room to view her testimony via closed-circuit television.
¶ 44 Although the procedure outlined in section 106B-5 was not adhered to, the State argues
that defendant and defense counsel were aware of, and agreed to, the manner in which the
closed-circuit television system was set up. Indeed, the record reveals that, prior to trial, the
ASA explained the setup and offered to have the court and defense counsel inspect it. The court
then asked defense counsel whether the setup was “satisfactory,” and defense counsel,
responded, “Yes, your Honor.” The court next addressed defendant and asked whether he
understood the procedure, and defendant responded, “Sure.” The court went on to explain,
“[F]or at least one witness, you will be in the back. All other witnesses, we’ll have you out
here. Okay?” Defendant, in turn, responded, “Sure.” He then left the courtroom to view B.M.’s
testimony from the other room. Based on these facts, the State argues that that defendant
waived rather than forfeited his challenge to the manner in which the closed-circuit television
system was employed in this case. That is, by failing to raise any objection and voluntarily
leaving the courtroom will full knowledge of the manner in which he would be observing
B.M.’s testimony, the State argues that defendant knowingly and voluntarily waived his right
to be present in court for her testimony. We disagree. Although the record clearly demonstrates
that defendant was aware of the process through which B.M. would be testifying and raised no
objection, he was never specifically advised of his constitutional right to be present. We
reiterate that the principles of waiver should be liberally construed in favor of a defendant
(Phipps, 238 Ill. 2d at 62) and conclude that the record does not support a finding that defendant
knowingly and voluntarily waived his right to be physically present for B.M.’s testimony. See,
e.g., People v. Salgado, 2012 IL App (2d) 100945, ¶ 17 (finding that the defendant did not
waive his right to be physically present during the minor victim’s testimony where “nothing in
the record shows that defendant understood that he had a right to be present”).
¶ 45 Having found that defendant forfeited rather than waived his claim, we still nonetheless
conclude that he is not entitled to any relief under the plain error doctrine because he is unable
to show that his absence from the courtroom resulted in an unfair proceeding or caused him to
be denied an underlying substantial constitutional right. Although defendant argues that his
absence from the courtroom during B.M.’s testimony infringed on his constitutional right to
confrontation and to assist in his own defense, courts have held that a defendant’s constitutional
right to confrontation is not violated when the defendant is permitted to cross-examine the
child who is testifying via closed circuit television in accordance with the protections afforded
by section 106B-5 of the Code. See, e.g., Lofton, 194 Ill. 2d at 59-60 (recognizing that a
statutory scheme that permits a child victim to testify via closed-circuit television does not
violate a defendant’s right to confrontation where the child testifies under oath and under the
“ ‘watchful eyes of the parties and the fact finder’ ” and is subject to contemporaneous cross-
examination (quoting People v. Van Brocklin, 293 Ill. App. 3d 156, 169 (1997))); People v.
Pope, 2020 IL App (4th) 180773, ¶ 38 (holding that “[a] defendant’s confrontation clause
rights are not violated when the defendant is allowed to cross-examine the witnesses testifying
pursuant to section 106B-5”).
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¶ 46 Here, there is no dispute that B.M. testified under oath under the watchful eyes of the
parties and the fact-finder and was subject to contemporaneous cross-examination. Unlike the
problems that arose during opening statements, there is no evidence in the record that defendant
was unable to see or hear B.M.’s testimony. Although defendant suggests that there is no
evidence that the intercom phone that was available to him to converse with his attorney and
assist in counsel’s cross-examination of his daughter was “even operable,” we emphasize that
there is nothing in the record to suggest that the intercom system was not in proper working
order. See In re Linda B., 2017 IL 119392, ¶ 43 (noting that “on appeal, the party claiming
error has the burden of showing any irregularities that would justify reversal” and that “[e]rror
is never presumed by a reviewing court; it must be affirmatively shown by the record”).
Defendant, however, also suggests that the fact that there was a sheriff’s deputy in the room
where he watched B.M.’s testimony further impaired his ability to communicate with counsel
and assist in his defense. We note, however, that even if defendant had been in the courtroom
during B.M.’s testimony, other people would have also been located in close proximity to him
if and when he conferred with counsel, including the ASA prosecuting the case and the sheriff’s
deputy in charge of securing the courtroom. In either instance, defendant would be required to
speak quietly to avoid being overheard. Ultimately, based on the record, there is no evidence
that defendant’s absence from the courtroom significantly impaired his right to communicate
with counsel and assist in his own defense or violated his constitutional confrontation rights.
See, e.g., Lindsey, 201 Ill. 2d at 60 (recognizing that while the use of a closed-circuit system
affected the defendant’s ability to confer privately with counsel, the record did not support a
finding that the defendant was denied adequate representation due to his absence from the
courtroom). Indeed, there is no evidence that defendant’s absence from the courtroom during
B.M.’s testimony resulted in an unfair proceeding or resulted in the denial of an underlying
substantial right. Accordingly, we find no constitutional violation. See id. Absent a violation,
there is no plain error. Hood, 2016 IL 118581, ¶ 18.
¶ 47 C. Exclusion of Other Individuals From the Courtroom During B.M.’s Testimony
¶ 48 Defendant next argues that he was denied his right to a public trial when the court excluded
members of the public from the courtroom during B.M.’s testimony pursuant to section 115-
11 of the Code (725 ILCS 5/115-11 (West 2012)).
¶ 49 The State again responds that defendant waived review of his claim because he did not
object to the court’s decision to exclude certain individuals from the courtroom during B.M.’s
testimony. On the merits, the State submits that the partial closing of the courtroom did not
violate defendant’s constitutional right to a public trial.
¶ 50 As a threshold matter, we note that there is no dispute that defendant failed to object to the
exclusion of several individuals from the courtroom during B.M.’s testimony. We decline,
however, the State’s invitation to equate defendant’s failure to object as an affirmative
acquiescence and waiver of his right to a public trial. See Sophanavong, 2020 IL 124337, ¶ 20
(explaining that waiver “ ‘is an intentional relinquishment or abandonment of a known right
or privilege’ ” whereas forfeiture is the “ ‘failure to make the timely assertion of [a] right’ ” or
privilege (emphasis added) (quoting Lesley, 2018 IL 122100, ¶¶ 36-37)). Accordingly, we will
review his claim for plain error.
¶ 51 Criminal defendants are afforded a constitutional right to a public trial. U.S. Const.,
amends. VI, XIV; Ill. Const. 1970, art. I, § 8 (amended 1994). The right to a public trial
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encompasses the right to publicly present evidence and witnesses. People v. Groebe, 2019 IL
App (1st) 180503, ¶ 37. This right, which exposes the legal process, is designed primarily to
protect the accused (id. ¶ 32), but it also serves to protect interests that do not belong solely to
a defendant, including the general public and the press (People v. Radford, 2020 IL 123975,
¶ 25). For example, the “[o]penness in court proceedings may improve the quality of testimony,
induce unknown witnesses to come forward with relevant testimony, cause all trial participants
to perform their duties more conscientiously, and generally give the public an opportunity to
observe the judicial system.” Gannett Co. v. DePasquale, 443 U.S. 368, 383 (1979).
¶ 52 Section 115-11 of the Code allows for the “limited” exclusion of witnesses during the
testimony of a minor victim of certain sex offenses (People v. Williams, 2016 IL App (3d)
130901, ¶ 19) and provides as follows:
“In a prosecution for [certain sex offenses, including predatory sexual assault of a
child], where the alleged victim of the offense is a minor under 18 years of age, the
court may exclude from the proceedings while the victim is testifying, all persons, who,
in the opinion of the court, do not have a direct interest in the case, except the media.”
725 ILCS 5/115-11 (West 2012).
¶ 53 The plain language of the statute places three conditions on a partial courtroom closure
during a minor victim’s testimony: (1) the trial court cannot exclude the media, (2) the trial
court may only exclude persons who do not have a direct interest in the case, and (3) the
exclusion of individuals without a direct interest in the case cannot extend beyond the minor
victim’s testimony. Schoonover, 2019 IL App (4th) 160882, ¶ 23. Persons with a direct interest
in the case include a defendant’s immediate family. See People v. Falaster, 173 Ill. 2d 220,
228 (1996). Courts have held that a defendant’s right to a public trial is not violated when the
circuit court adheres to the narrow exclusionary powers outlined in the statute. Id.; see also
Schoonover, 2019 IL App (4th) 160882, ¶ 43 (“an order by the trial court excluding spectators
from the proceeding is sufficient where it satisfies section 115-11 of the Code”); Williams,
2016 IL App (3d) 130901, ¶ 20 (“[A]n exclusionary order under section 115-11 of the Code is
valid if it meets the requirements of the statute.”).
¶ 54 Here, prior to B.M.’s testimony, the following discussions were had about excluding
witnesses during B.M.’s testimony:
“[ASA]: Judge, at this time, we would ask for the child’s testimony, that the
courtroom be cleared of everyone, non-essential court personnel, except for her
therapist, the victim witness assistant from the State’s Attorney’s Office, and her foster
family, if they choose to stay.
THE COURT: Who are those people then that you’re asking to stay in? Just that
back row there?
[ASA]: If the family chooses to stay, I guess just those four individuals back there.
Or actually just the three. I don’t know that—
THE COURT: Why is she—off the record for a moment.
(Whereupon a discussion was had off the record.)
“THE COURT: I want you two ladies to sit outside. Do you want to call your first
witness?
[ASA]: Yes, Judge. Coming in right now.
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THE COURT: [B.M.], come on up. For the record, I’ve asked the mom’s family to
leave but the other person can stay.”
¶ 55 Defendant argues that the ambiguity of the aforementioned exchange and the lack of clarity
as to the identities of the excluded persons and whether or not they had a direct interest in the
case justifies a finding that his right to a public trial was violated. We disagree. Although we
acknowledge the lack of clarity in the record as to exact identities of the excluded individuals,
it is evident that the court engaged in a discussion off the record, after which it directed two of
the three individuals seated in the back row of the courtroom to “sit outside” during B.M.’s
testimony. Those two individuals were apparently members of “the mom’s family.” Because
B.M. was living with a foster family, the court could have either been referring to family
members of B.M.’s foster mother, or family members of B.M.’s biological mother. Either way,
it is clear that the individuals excluded were not members of defendant’s immediate family
who necessarily have a direct interest in the case. See, e.g., Falaster, 173 Ill. 2d at 225, 228(recognizing that persons with a direct interest in the case include a defendant’s immediate
family and concluding that the circuit court did not err in excluding “two nephews of the
defendant and the grandfather of one of the nephews” because they were “not members of the
defendant’s immediate family and thus did not have a direct interest in the outcome of the
case”). Indeed, defendant has not identified any person with a direct interest in the case who
was improperly excluded.
¶ 56 We acknowledge that the court’s decision to exclude two of the three persons seated in the
back of the courtroom was made following an off the record discussion and emphasize that the
better practice would undoubtably be for the trial court to make its findings on the record.
Nonetheless, because the trial court is presumed to know and follow the law absent evidence
to the contrary (In re Jonathon C.B., 2011 IL 107750, ¶ 72), we necessarily presume that the
court properly ascertained whether or not the persons seated in the courtroom had a direct
interest in the case and excluded only those individuals who did not. Accordingly, because the
record does not support a finding that the court violated the requirements of section 115-11 of
the Code, we reject defendant’s argument that he was denied his constitutional right to a public
trial. See Williams, 2016 IL App (3d) 130901, ¶ 22 (rejecting the defendant’s argument that he
was denied the right to a public trial where the court conducted a discussion off the record prior
to excluding certain individuals during the minor victim’s testimony, reasoning: “Since trial
judges are presumed to follow the law [citation], we presume that the judge allowed all those
identified with a direct interest in the case to be present during [the minor-victim’s] testimony.
While a better practice would have been to make those findings on the record, we cannot say
that the trial court abused its discretion.”).
¶ 57 In so finding, we are unpersuaded by defendant’s reliance on Schoonover, 2019 IL App
(4th) 160882. In that case, the Fourth District found that the trial court violated the defendant’s
right to a public trial when it sua sponte excluded individuals from the courtroom during the
minor-victim’s testimony without first determining whether they had a direct interest in the
case and thus failed to comply with the requirements of section 115-11 of the Code. Id. ¶ 26.
Although defense counsel “brought the presence of defendant’s ‘family members’ to the
court’s attention,” the record showed that the court directed them out of the courtroom “without
making any inquiry into those individuals or their interest in the case.” Id. ¶ 29. The Fourth
District concluded: “The court’s failure to make any inquiry indicates that it did not make an
informed decision as to whether the family members brought to its attention had a direct
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interest in the proceedings prior to excluding them. Such action amounted to a blanket
exclusion *** and constituted a violation of statutory requirements.” Id.
¶ 58 Unlike the situation in Schoonover, where the record definitively showed that the circuit
court failed to abide by the stringent requirements of section 115-11 of the Code prior to
excluding individuals from the courtroom during the minor victim’s testimony, the record in
this case contains no such evidence. Therefore, we do not find that Schoonover compels a
different result. Accordingly, we reject defendant’s claim that the circuit court deprived him
of his right to a public trial when it excluded certain individuals from the courtroom during
B.M.’s testimony. Absent error, there is no plain error. Hood, 2016 IL 118581, ¶ 18.
¶ 59 D. Court’s Decision to View B.M.’s VSI Video Outside of the Courtroom
¶ 60 Defendant next argues that the circuit court also violated his right to be present and his
right to a public trial when it viewed the video of B.M.’s VSI outside of the courtroom and
outside of the presence of him and his attorney.
¶ 61 The State again argues that defendant waived appellate review of his claim because he
failed to object and through his conduct, “affirmatively acquiesced to the circuit court’s
viewing of the properly admitted VSI interview outside of the courtroom.” On the merits, the
State contends that “defendant’s rights to be present and to a public trial were not implicated,
much less violated where the court viewed B.M.’s properly admitted VSI video outside of the
courtroom.”
¶ 62 The record shows that prior to trial, the parties litigated the admissibility of the recording
of B.M.’s VSI. After a hearing on the merits, the circuit court found the recording admissible.
Thereafter, at trial, licensed clinical social worker Plach testified that he conducted a forensic
VSI with B.M. on November 11, 2012. The VSI was recorded, and Plach confirmed that the
recording accurately depicted his interview with B.M. The video was then entered into
evidence. Thereafter, the following discussions were had about the video:
“[ASA]: [D]o you want me to publish the video today? That would take about 54
minutes.
THE COURT: I’m not going to sit here and watch it.
[ASA]: Okay. You’ll watch it in chambers then.
THE COURT: Yes. Because, obviously this is going to be more than one court date.
So, I could view the video in chambers unless, you want to put it back in front of—
[ASA]: I don’t. I just wanted to take the Court’s temperature on that. Then, I would
ask for a ten-minute recess, Judge.
THE COURT: Okay. All right we’ll take ten minutes.”
¶ 63 Thereafter, at the conclusion of the first day of trial, the parties again discussed the VSI,
and the court ensured that defendant would have the opportunity to view the VSI before the
second day of trial resumed. The following discussion was had on the record.
“THE COURT: So we’re going to stop the witness testimony today. I believe that
the defendant should be able to view the VSI which is about an hour long.
[ASA]: Approximately 54 minutes.
THE COURT: Okay. And I don’t care where that takes place as long as [defense
counsel] is with him.
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[DEFENSE COUNSEL]: And the deputy sheriff, I assume.
THE COURT: And the deputy sheriff. So they can either be here in the room or in
the back room or in the back room where the TV is set up. Whatever your pleasure is.
*** All I’m concerned about is that the defendant view the VSI. He has a right to view
it. I don’t have to be here for that. The State doesn’t necessarily have to be here for that
because there’s no questioning that’s going on. It just has to be published, and he has
to view it. And I have more than enough time to view it again, even though I did view
it once before in the motion, prior to the next date where we’re going to have
testimony.”
¶ 64 The trial was then continued for several weeks. When the trial resumed, defense counsel
addressed the court as follows:
“Judge, on the last court date, you wanted me to sit with my client with the Victim
Sensitive Interview in the jury room. We did do that after court broke for the day;
watched it all the way through with the sheriff. I just wanted to put it on the record he
has seen it.”
No further discussions were had on the record about the VSI until the court delivered its guilty
verdict. In finding defendant guilty, the court expressly found B.M.’s trial testimony and her
statements in her VSI to be credible and supported by the physical evidence.
¶ 65 Although there is no dispute that defendant did not object to court’s decision to view the
VSI in chambers, we again decline the State’s invitation to equate a lack of objection to an
affirmative acquiescence. As such, we find that defendant forfeited rather than waived his
claim, and we will review his claim for plain error. See generally Sophanavong, 2020 IL
124337, ¶ 20.
¶ 66 Although the right to a public trial encompasses the right to publicly present evidence and
witnesses, this court has held that a defendant’s right to a public trial is not implicated when
properly admitted evidence is viewed outside the courtroom by the trier of fact. See Groebe,
2019 IL App (1st) 180503. In Groebe, the defendant, who was on trial for DUI, challenged the
circuit court’s decision to view the video recording of the defendant’s traffic stop and field
sobriety tests in chambers during a break in the bench trial, arguing that manner in which the
court viewed the video violated her constitutional right to a public trial. Id. ¶ 31. On review,
we observed that “cases addressing a defendant’s right to a public trial have largely involved
the trial court’s actual closure of the courtroom for some portion of the trial or the exclusion
of some individuals from the courtroom” and that there were no cases finding that a defendant’s
right to a public trial was violated when a court viewed publicly admitted evidence privately
in chambers. Id. ¶ 36. We emphasized that although the court did not view the video in open
court, the officer who conducted the defendant’s traffic stop testified in open court that he had
reviewed the video of the stop and that it accurately depicted the stop and the defendant’s
performance of the field sobriety tests. Id. ¶ 37. Accordingly, we concluded that the court’s
viewing of the traffic stop video in chambers “did not implicate defendant’s right to a public
trial” (id. ¶ 38) because
“there was no closure of the courtroom or exclusion of the public from the courtroom.
Rather, the foundation for the video of defendant’s traffic stop was laid in open court,
and the video was proffered into evidence in open court. The right to a public trial is
not implicated where evidence is presented in open court, and that right does not extend
to the viewing of exhibits by the public” (id. ¶ 40).
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This court further found that the trial court’s viewing of the traffic stop video in chambers did
not violate the defendant’s right to be present for all critical stages of her trial either as there
was no evidence that the defendant’s absence rendered the proceedings unfair or resulted in
the denial of a substantial right. Id. ¶ 51. In so finding, we reasoned that the defendant’s
substantial underlying right to confrontation was not violated because the officer who
conducted the traffic stop depicted in the video was subject to cross-examination in open court.
Id. ¶¶ 51-52. In addition, there was no evidence that the court’s private viewing of the video
prejudiced the defendant’s underlying substantial right to assist in her own defense and decide
whether to testify. Id. ¶ 52. Accordingly, we rejected the defendant’s claims of constitutional
error. Id.
¶ 67 Here, as in Groebe, the video at issue was authenticated by a witness who testified in open
court and the video was then admitted into evidence. Specifically, Plach, the clinical social
worker who conducted B.M.’s VSI, testified in open court that he reviewed the recording and
that it accurately portrayed his encounter with B.M. The court then viewed the publicly
admitted video privately in chambers. Based on these facts, defendant’s claim that the circuit
court’s private viewing of the VSI violated his constitutional right to a public trial lacks merit.
See id. ¶ 40. Moreover, as in Groebe, there is no evidence that circuit court’s viewing of the
video privately in chambers resulted in a violation of defendant’s right to be present for all
critical stages of his trial, as there is no evidence that the procedure resulted in an unfair trial
or the denial of an underlying substantial constitutional right. Because Plach was subject to in-
court cross examination about the video, defendant’s underlying substantial right to
confrontation was not violated. See id. ¶¶ 51-52. Moreover, given that defendant viewed the
VSI and was aware of the contents thereof prior to deciding to exercise his right to testify in
his own defense, there is no evidence that circuit court’s private viewing of the VSI video
prevented him from assisting in his own defense or from making a fully informed decision to
exercise his right to testify. See id. ¶ 52.
¶ 68 In so finding, we do not find that this court’s decision in Lucas, 2019 IL App (1st) 160501,
compels a different result. In that case, the circuit court, like the court in Groebe, viewed a
video of the defendant’s traffic stop in chambers outside of the presence of the defendant. Id.
¶¶ 5-6. After viewing the video in chambers outside of the defendant’s presence, the court then
admitted the video into evidence and expressly relied on the video to find the defendant guilty
of DUI and several other offenses. Id. ¶¶ 6-7. On review, we found that the manner in which
the circuit court viewed the video of the defendant’s traffic stop amounted to a violation of her
right to be present for all critical stages of the proceeding because it infringed on her underlying
right to “view the evidence against her and aid in her own defense.” Id. ¶ 14. In so finding, we
emphasized that the traffic stop video “involved a significant portion of the evidence against”
the defendant and that there was no “affirmative evidence” that the defendant had ever seen
the video. Id. ¶¶ 15-16. Without viewing the video, we found that the defendant could not have
made a fully informed decision whether to exercise her constitutional right to testify. Id. ¶¶ 19-
20. Accordingly, because we concluded that the court’s viewing of the video at issue outside
of the defendant’s presence had a “cascading impact on [her other] fundamental rights,” we
reversed the defendant’s conviction and remanded the cause for a new trial. Id. ¶ 21.
¶ 69 The facts in this case differ markedly from the facts in Lucas because the record is clear
that defendant viewed the video at issue. After Plach authenticated B.M.’s video and it was
admitted into evidence, the circuit court ensured that defendant viewed the video before the
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State presented any additional evidence. Defense counsel confirmed on the record that
defendant had viewed the video in his presence. Unlike Lucas, defendant was thus aware of all
the evidence against him prior to exercising his right to testify. Therefore, the court’s private
viewing of the video in chambers did not impact the fairness of defendant’s trial or violate any
of defendant’s substantial constitutional rights. Having found no error, there is no plain error.
Hood, 2016 IL 118581, ¶ 18.
¶ 70 Moreover, having rejected each of defendant’s individual claims of constitutional error, we
necessarily reject his claim that he is entitled to a new trial based on the “cumulative effect” of
the purported errors. See People v. Green, 2017 IL App (1st) 152513, ¶ 118 (“There generally
is no cumulative error where the alleged errors do not amount to reversible error on any
individual issue.”). Our review of the record shows that defendant’s trial was not conducted in
contravention of any of his constitutional rights. We therefore affirm the judgment of the circuit
court.
¶ 71 III. CONCLUSION
¶ 72 The judgment of the circuit court is affirmed.
¶ 73 Affirmed.
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