2023 IL 126852
Ill.2023Background
- In June 2017 police removed Servetus Brown from a parked car and recovered a loaded handgun; Brown was tried for being an armed habitual criminal and possession of a controlled substance.
- During January 2018 jury selection the court conducted voir dire in open court but then held eight off‑the‑record sidebar/in‑chambers conferences where counsel exercised challenges; Brown was absent from those conferences.
- The court placed on the record the peremptory strikes and agreed cause challenges after jury selection concluded; Brown’s trial proceeded and he was convicted of armed habitual criminal and sentenced to 10 years.
- On direct appeal Brown argued ineffective assistance of counsel for failing to object to the off‑record sidebars excluding him; the appellate court affirmed, finding no prejudice from counsel’s conduct.
- The Illinois Supreme Court granted leave to appeal to decide whether counsel’s failure to object to off‑the‑record juror challenges held outside Brown’s presence constituted ineffective assistance and whether Brown has a constitutional right to be present for juror strikes.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Brown) | Held |
|---|---|---|---|
| Whether a defendant has a constitutional right to be present when counsel and the court exercise juror challenges (peremptory and for cause) | No per se right; presence at questioning (voir dire) is critical, but striking/accepting jurors need not occur in defendant’s presence if he had opportunity to consult with counsel | Brown: the right to be present for jury selection includes presence at juror challenges; absence from sidebars denied a critical stage | Court: declines to expand Bean; overrules Oliver to the extent it held a per se right — striking/accepting jurors is not a guaranteed right to presence in Illinois (lead opinion) |
| Whether defense counsel performed deficiently by agreeing to off‑the‑record sidebars and not objecting to Brown’s absence | Counsel acted within prevailing professional norms; prior Illinois appellate cases supported conferring in chambers if defendant heard voir dire and could consult counsel | Counsel was deficient for agreeing to a procedure that excluded Brown from a critical stage without waiver | Court: no deficient performance shown on this record; defense counsel strongly presumed competent; claim can be raised in postconviction to develop facts (lead opinion) |
| Whether prejudice should be presumed because sidebars were off the record and no court reporter was used | No automatic presumption of prejudice; defendant must show actual prejudice when ineffective‑assistance claim is asserted | Brown: off‑the‑record sidebars prevented an adequate appellate record so prejudice should be presumed | Court: no presumption of prejudice; because Brown failed to show deficient performance or actual prejudice, claim fails; postconviction remains available if facts outside the record exist |
| Standard of review and burden when absence is unpreserved | If preserved, State must prove harmless beyond a reasonable doubt; if unpreserved, defendant bears burden under plain‑error review to show prejudice | Brown did not object at trial or in posttrial motion, so he must show plain error/prejudice | Court: affirmed — Brown forfeited presence claim and cannot meet the plain‑error prejudice burden (lead opinion). Justice Neville would treat juror challenges as a critical stage but concurred because Brown conceded no prejudice |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑pronged ineffective‑assistance standard: deficient performance and prejudice)
- People v. Bean, 137 Ill. 2d 65 (Ill. 1990) (defendant has general right to be present at trial and voir dire; absence reviewed for effect on substantial rights/plain error)
- Kentucky v. Stincer, 482 U.S. 730 (U.S. 1987) (right to be present arises from due process and applies when presence bears reasonably substantial relation to defendant’s opportunity to defend)
- United States v. Gagnon, 470 U.S. 522 (U.S. 1985) (federal right to presence inferred from confrontation and due process clauses)
- People v. McLaurin, 235 Ill. 2d 478 (Ill. 2009) (preservation: preserved errors get State’s harmless‑beyond‑a‑reasonable‑doubt burden; unpreserved errors reviewed for plain error with defendant bearing burden)
- People v. Spears, 169 Ill. App. 3d 470 (Ill. App. 1988) (absence during peremptory challenges not reversible where defendant consulted with counsel and suffered no prejudice)
- People v. Beacham, 189 Ill. App. 3d 483 (Ill. App. 1989) (similar: sidebars to exercise challenges permissible if defendant participated in voir dire and could consult counsel)
- People v. Gentry, 351 Ill. App. 3d 872 (Ill. App. 2004) (defendant not deprived of presence where venire questioned in his presence and nothing prevented consultation with counsel)