*1 on their for visitation is unconstitutional bring petition court, their face, dismissing the order of the circuit its is affirmed. petition,
Affirmed. (No. 89138.
THE ILLINOIS, PEOPLE OF THE STATE OF Appel-
lee, LINDSEY, v. WILLIE E. Appellant.
Opinion June 2002. filed *2 Agostinelli, Defender, Robert and Kenneth Deputy D. Marche, Defenders, Brown and Carrie B. Assistant of the Office of Defender, Ottawa, the State of for Appellate ap- pellant. General, E. Ryan, Attorney
James of and Springfield, (Joel Kick, Attorney, Michael State’s of Kankakee D. Ber- tocchi, General, Solicitor and and William L. Browers Benton, General, Attorneys Russell K. Assistant of counsel), Chicago, People. for the opinion JUSTICE McMORROW delivered the of the court:
Defendant, Lindsey, charged by Willie was indictment with one count of a controlled possession unlawful (cocaine) (720 substance with the intent to deliver ILCS 570/401(c)(2) (West 1996)) and one count of unlawful (720 possession of cannabis with the intent to deliver 550/5(d) (West 1996)). trial Following ILCS bench County, the circuit court of Kankakee defendant was and later guilty charged found of the offenses sentenced periods to concurrent terms of for of 10 imprisonment years years, and respectively. appeal appellate
Direct was taken to the court. There argued, appearances time, for the first that his in the trial court via closed-circuit television at the time waiver violated his constitutional statutory right present. appellate to be rejected arguments and affirmed defendant’s App. convictions and sentences. 309 Ill. 3d 1031. petition appeal. We allowed defendant’s for leave follow, 177 Ill. R. 315. For reasons we affirm the judgment appellate court.
BACKGROUND p.m., police On October at about 9 Kankakee officers executed a search warrant at the home of girlfriend, Nikeya Hairston. In the course of police drugs drug parapherna- search, recovered present during lia. Both Hairston and defendant were the search and both were arrested.
The record that, shows 9, 1997, on October an containing charges against information copy was filed with the court and a furnished to defen- *3 hearing A held, dant. was at which time defendant was penalties, advised of the minimum and maximum right jury right to a trial and the court, counsel. The request, appointed public at defender’s represent office to defendant. It is unclear from the appeared person record whether defendant hearing. closed-circuittelevision for this grand jury On 17, 1997, October returned a bill against of indictment defendant and on October arraigned. arraignment, defendant was At defendant represented by present counsel, was who was appeared Defendant, courtroom. however, via closed- jail. circuit television from the Defense counsel acknowl- edged receipt of the indictment, waived its formal read- ing, requested statutory discovery, jury and demanded a trial. the court held a
Immediately following arraignment, on defendant’s bond-reduction motion. Defen- hearing television support dant testified via closed-circuit the court denied hearing testimony, the motion. After in custody. motion and defendant remained that, The record shows between hearings trial, eight pretrial the circuit court conducted not physically defendant’s case. Defendant was regarding hearings. these any in the courtroom present hearings at the via closed- Instead, “appeared” defendant county jail. from a room within the circuit counsel, however, in the courtroom. appeared Defense immedi- opportunity and counsel had no for Defendant other, each unless it was done ate communication with system, which meant through the closed-circuit attorneys could hear their conversation. judge and other had defendant, defense counsel privately To with speak defendant tele- to leave the courtroom and contact separate, The record does not disclose whether phone. aside for this purpose. secure lines were set telephone February 4, on hearings One of the occurred pretrial had set for trial on that Although the case been 1998. because certain date, the State moved for continuance granted After the court were unavailable. witnesses defendant, closed- continuance, who was via attorney. his The television, speak asked to circuit telephone could recessed so that defense counsel case was recalled, the court was the case was defendant. When his defendant wanted to waive by counsel advised court, jury speaking to a trial. right admonished system, the closed-circuit across Finding that defendant to a trial. regarding his voluntarily by jury to trial was understood accepted right, giving up *4 signed by A form was then jury waiver waiver. to the court. and later transmitted jail at the After accepted, inquired waiver was Defense conferred possible stipulations. about counsel publicly system. with defendant across The following colloquy place: took Judge Lindsey I
“[DEFENSE COUNSEL]: think —Mr. asking you Judge the lab. about Yeah. DEFENDANT LINDSEY: [DEFENSE COUNSEL]: Since our defense does not saying involve that not—that this is the materials were alleged cocaine, found not—I to be [szc] were believe it’s they materials, you any but rather were not our do have objection stipulating what the that substance police [szc]found was in fact cocaine? Well, your Honor,
DEFENDANT I a— LINDSEY: have you your lawyer’s— THE COURT: Do understand report right DEFENDANT LINDSEY:That here. Right, [DEFENSE COUNSEL]: but it makes a differ- scheduling ence in if they bring personnel need to lab testify they down here that tested the materials and it positive tested for presence agree If we cocaine. testing positive cocaine, was done and it as returned for they then bring personnel don’t need to those lab down here. Right. according
DEFENDANT LINDSEY: Well to these they already. documents tested it Right, [DEFENSE asking COUNSEL]: but what I’m you you agree is if enter will and will into is called a what stipulation say, for Judge, for Court and the record we dispute they positive we don’t it and tested it tested words, having for cocaine. In other rather than the lab person testify who tested it come here down as to the performed test and the results of those that it tests was cocaine, positive just for would introduced agreement. Court ofway up
THE It you’re fight- COURT: the trial if shortens ing Lindsey. about or not was whether it cocaine Mr. Do you that? understand
DEFENDANT LINDSEY:Yes.” agreed Defendant to the evidence and stipulate lab the trial February 9, date was continued to 1998. On that *5 requested continuance because another
date, the State grant- yet fingerprint Before was not available. evidence possibility ing the of motion, the court discussed the fingerprint proceeding evidence to trial, with to colloquy presented followed: date. This at a later be Lindsey, you under- Mr. do COUNSEL]: “[DEFENSE be a asking about? It would judge what stand today. They put on would proceeding. We’d start bifurcated relating fingerprints to except any evidence evidence baggies. Do found on these might not have been might or you understand? *** Yes, sir. LINDSEY: DEFENDANT starting be without COUNSEL]: So we’d
[DEFENSE on there. any fingerprints there is the results of whether objection that? any to youDo have privately? him to talk to THE You want COURT: Sure, Judge. COUNSEL]: [DEFENSE Lind- go phone, Mr. Why you to the don’t THE COURT: on that. privately confer your lawyer can sey You and *** Okay” LINDSEY: DEFENDANT telephone defen- left the courtroom Counsel then informed reconvened, defense counsel court dant. When proceed to trial not would that defendant against knowing him. The the evidence all of without objection granted over defendant’s continuance set. trial date was and a new April 10, on trial commenced bench Defendant’s appeared for his counsel in court with Defendant 1998. linking presented defendant evidence The State trial. drug drugs paraphernalia Hair- recovered from hearing evidence, circuit all of the home. After ston’s possession guilty of a controlled court found (cocaine) possession to deliver with intent substance does Defendant deliver. intent to cannabis with presented sufficiency question evidence against him. challenged appealed time, and, for the first
Defendant appearances at his closed-circuit and jury argued waiver. Defendant stages” proceed- waiver are “critical criminal that, ings against him and an express the absence of waiver, he physically had constitutional to be present at hearings. these also statutory
Defendant maintained that his be the trial court at the time of his arraign- ment and waiver was violated. Section 113—1 of the (Code) of Criminal Code Procedure of provides: any person “Before is tried for the of an commission of- court, fense he be open shall called into informed of the charge against him, plead upon and called thereto. If the requests charge so the formal shall read to *6 added.) him required plead.” (Emphasis before he is to (West 1998). ILCS 5/113—1 Similarly, section 103—6 of the Code of Criminal provides: Procedure
“Every person accused of an offense shall have the (i) by jury trial by unless understanding^ waived added.) open (Emphasis court ***.” 725 ILCS (West 1998). 5/103—6 argued Defendant that his appearances via closed- circuit television at the time of his arraignment and jury did satisfy waiver not the statutory requirement that he “open at proceedings. court” these Finally, defendant maintained that the circuit court had no authority to any pretrial proceedings hold via television the had because court the adopted regarding rules use of closed-circuit televi- sion, as required by section 106D—1 the Code. Section 106D—1 provides:
“When personal appearance a defendant’s is not re- quired by the Constitution of the United or States Illinois Constitution, the person- court allow the ally appear any pre-trial at post-trial proceeding by way of closed circuit television when:
(a) court has authorized the use of closed circuit type television has rule or set order out may be closed circuit conducted television; and
(b) incarcerated; the defendant (c) Corrections, sheriff or other Director are for authority has certified that facilities available (West 1998). purpose.” this 725 ILCS 5/106D —1 rejected appellate claims, find court ing alleged procedurally defaulted that the errors were object failed to to his closed-circuit because defendant hearings appearances time of allege post-trial in a After failed the error motion. plain appellate reviewing error, the the claims for procedural not be default should concluded that closely balanced excused the evidence was not because rights were not violated. and defendant’s constitutional Additionally, appellate App. Ill. 3d at 1034-35. statutory The court assumed court found no violations. statutory complied that the circuit court had with its concerning duty promulgate closed- rules use of presented defendant had not circuit television because any contrary. App. 3d to the 309 Ill. clear evidence Accordingly, appellate defen court affirmed 1036. App. Ill. 3d at dant’s convictions and sentences.1 1036. appeal. petition granted for leave to
We Ill. R. 315.
ANALYSIS his court, this defendant maintains Before arraignment appearance at his closed-circuit television right to be his constitutional waiver violated stage” proceed- every present at “critical in court argument presented appeal, an 1In direct defendant also his days of monetary credit for 218 concerning entitlement to a his $1,090 granted custody. appellate defendant presentence court monetary drug The amount of against fee. credit his assessment this court. appeal is before credit not at issue
53 (U.S. Const., VI, XIV; ings him amends. Ill. Const. against 1970, I, 8),§ his to be causing right art. counsel impaired. statutory Defendant also maintains that his (725 at his present open to be 1998)) (725 (West ILCS waiver hearing 5/113—1 (West 1998)) ILCS violated because he was was 5/103—6 hearings. Finally, in court for these physically present maintains trial that the court was not autho hearings rized to conduct via closed-circuit to adopt regulating because failed rules the use television, of closed-circuit required by as state law. 725 (West 1998). ILCS Defendant contends 5/106D —1 regarding validity his claims of his jury waiver should be substantively reviewed because he never expressly waived the physically present be hearings. alternative, these defendant asks that the error be plain considered as error.
The State asks this court to affirm the appellate court’s judgment, finding that alleged by errors been procedurally have defaulted and that the error plain doctrine does not As the State apply. correctly out, points objected defendant never appearances his via closed-circuit television or requested physically be Further, courtroom. defendant did not al lege Thus, this error in post-trial motion. it clear that defendant has properly preserve alleged failed to errors for Casillas, 461, review. v. 2d People Ill. (2000) (to preserve an issue for review a defendant must both object specifically trial and include objection motion); in a post-trial v. 194 Ill. 2d People Chapman, (2000); Enoch, People Ill. 615(a) Illinois Court Rule Supreme provides “notice taken error, defect, of ‘[a]ny irregularity, or variance’ though which affects rights’ ‘substantial such was not ‘brought to the attention of the trial ” court.’
54 Keene, 1, v. (1995), quoting 169 Ill. 2d 16-17 People 615(a). Thus, affecting rights, substantial Ill. 2d R. errors 615(a), errors, to Rule may pursuant or be reviewed plain objected during have not even when those errors been R.A.B., motion. In re in a presented post-trial trial or (2001). 358, determine whether “[T]o Ill. 2d 362-63 look at ‘plain’ requires error is substantive purported if, end, error found not to rise to the it. But in the the is 615(a), by Rule the plain contemplated level of a error as Keene, 2d 169 Ill. procedural default must be honored.” at 17. cases, rule be invoked plain
In criminal the error “(1) is where the evidence limited circumstances: two (2) balanced; are of when the errors such closely impartial a fair and that defendant was denied magnitude necessary preserve error remedying trial and is Nieves, v. judicial process.” People integrity (2000), citing People Vargas, 2d 502-03 192 Ill. bar, defendant case at Ill. the evidence or claim sufficiency does not contest balanced. guilt closely of his was evidence he denied due Rather, was contends physically present he process because was Thus, jury his and waiver. during courtroom considering whether review is restricted our justifying application limited circumstance second Furthermore, we shall present. error doctrine is plain via closed- appearance only whether consider waiver at the arraignment circuit television argues that error since defendant constitutes present right his to be stages it critical these attached.
A. Constitutional Violation
via
appearance
first claim is that
Defendant’s
for his
right
his federal
state constitutional
waiver violated
disagree.
stages of trial. We
all critical
present to be
is not an
under
express
Constitution,
arising
implied,
United States
but is
from the due
clause of the fourteenth amend
process
XIV
Const.,
1;
Stincer,
Kentucky
§
*9
ment. U.S.
amend.
v.
730, 745,
631, 647,
2658,
482
96 L. Ed. 2d
107 S. Ct.
U.S.
(1987);
526,
522,
2667
United States v.
470 U.S.
Gagnon,
486, 490,
1482,
84
Ed. 2d
(1985); Sny
L.
105 S. Ct.
1484
Massachusetts,
97, 105-06,
674,
der v.
U.S.
L.
291
78
Ed.
(1934).
678,
330,
I,
S.
8,
54 Ct.
332
Article
of the
section
grants
Illinois Constitution
criminal
defendants
express
and
in
right
appear
“to
defend
and
person
1970,
I, §
counsel.” Ill.
8. Accordingly,
Const.
art.
both
the federal constitution
our
state constitution afford
right
criminal defendants the general
present,
to be
trial,
only at
but at all critical
stages
proceedings,
arraignment
from
v.
sentencing.
Allen,
Illinois
397
337, 338,
353, 356,
U.S.
L. Ed. 2d
1057,
25
90 S. Ct.
1058
(1970);
Bull,
(1998);
People v.
Defendant
he
right
physically
that
had a
to be
present at
his
and jury
they
waiver because
are
stages
“critical”
of the proceedings against him. This
court and the United States Supreme
long
Court have
recognized that arraignment
stage
is a critical
of the
proceedings.
Alabama,
criminal
Powell v.
45, 57,
287 U.S.
158, 164,
55,
77 L. Ed.
(1932);
53 S. Ct.
59
People v. Hes
(1970).
senauer,
63,
45
2d
Ill.
67-68
Arraignment
is the
step
first
prosecution and,
the criminal
as
“far
such,
from a mere formalism.” Kirby
Illinois,
682,
v.
406 U.S.
689,
418,
L.
2d 411,
1877,
32
Ed.
92 Ct.
S.
1882
Due
the significance
of arraignment,
a defendant’s
right
Williams,
to counsel attaches at this time.
v.
Brewer
398,
387,
424,
430
51
436,
1232,
U.S.
L. Ed. 2d
S.
97 Ct.
(1977);
Alabama,
52,
1239
Hamilton v.
368 U.S.
7 L. Ed.
2d 114,
(1961); Powell,
82 S.
157
57,
Ct.
287
L.
U.S.
Ed. at
Although any court is unaware of case which this proceed as a of the jury stage” defines a waiver “critical any been ings, recognized proceeding it has where rights may be defendant asserts or waives constitutional People Young, v. Ill. App. deemed “critical.” 3d (1990). Moreover, Scott, held in People this (1999), insuf jury 186 Ill. a written waiver is by jury. to trial prove right ficient to a valid waiver stated, We jury found the de
“We have never a valid waiver where waiver, open present fendant was not court when Scott, 186 Ill. otherwise, was at least discussed.” written 2d at 285. in Scott for a defen- necessary we it
Because
found
“in
court”
acknowledge
knowing
dant
open
understanding
jury,
of his
to trial
waiver
“critical,”
least
the extent
proceeding
to be
attaches.
defendant’s constitutional
“criti
waiver are
Finding that
*10
our
however.
stages
inquiry,
cal”
of trial does not end
stage
a
The
to be
even at
critical
right
present,
Allen,
constitution, Bean, was defined in Bean. we said: right present]
“[The
to be
right
is a lesser
the observance
securing
of which is a means to
rights
the substantial
of a
defendant. Thus a defendant is not denied a constitutional
right every time he
present during
trial,
is not
only
but
when his absence
underlying
results
a denial of an
right,
words,
substantial
in other
right;
a constitutional
only
and it is
plain
such a case that
error is committed.
[Citations.] Some of
rights
these substantial
right
are the
witnesses,
right
defense,
confront
a
impartial
Bean,
to an
jury.”
the trial was not
in
from a
of his trial
‘must be determined
portion
” Bean,
(quot
of the whole record.’
137 Ill.
at 84
light
106-07, 115,
678,
ing Snyder,
While defendant was waiver, and neither courtroom for his Defendant entirely proceedings. he absent from these was proceedings through audio-visual participated transmission. The record indicates and ability defendant with the to hear system provided and, taking the courtroom proceedings place see time, persons and other judge the same allowed defendant. The record the courtroom to hear see to interact with demonstrates that defendant was able It from the appears the court with relative ease. also of the nature record that defendant was aware solemnity of the and the overall significance proceedings of the was preserved. that, at counsel waived formal arraignment,
It is true However, does not indictment. reading of the him charges against contend that he was unaware of received already had and the record shows that defendant hearing preliminary information at a copy Fur- arraignment. prior had with counsel consulted *12 arraignment, simply thermore, at the counsel entered not-guilty plea accepting and demanded trial. When plea, the court did not need to assess defendant’s ability against demeanor. Defendant’s charges to defend by physical was unaffected his from the absence during arraignment. courtroom jury hearing, As for the waiver it was defendant who proceeding initiated the after he had consulted with by telephone. upon counsel Defendant was then called address the court and state his intention to trial waive by jury. voluntary knowing clearly His waiver was conveyed. Defendant does not contend otherwise. Nor right does defendant demonstrate how his to a fair and just hearing by was thwarted his absence from the Finding stemming courtroom. no inherent unfairness physically present from the fact that defendant was not by jury, in the courtroom when he waived trial we process conclude that defendant was not denied due simply right jury he because waived his to a trial via closed-circuittelevision.
Moreover, the record does not establish that defen underlying rights dant’s constitutional were violated physically present the fact that he was not at his ar raignment waiver. Defendant’s sixth amend implicated ment to confront witnesses was not because there were no witnesses to confront at proceedings. acknowledge We that defendant’s absence impact from the courtroom had some on ac defendant’s attorney ap cess to counsel. Because defendant and his peared separate during locations ability freely waiver, defendant’s to communicate impaired through with counsel was —communication system privately and, closed-circuit could not be done speak privately, required counsel was to leave the by telephone. People courtroom to contact defendant See (2000) (defendant’s App. v. Guttendorf, 309 Ill. 3d 1044 inability freely to consult with counsel contributed to the unconstitutionality of defendant’s televi- appearance entering guilty plea). sion when Neverthe- less, that, cannot say arraign- we context of here, ment and jury waiver involved counsel was so from the impaired physical absence courtroom that he was denied the effective assistance of above, counsel. As noted at the counsel arraignment, entered The fact merely not-guilty plea. courtroom, physically present was not *13 side, had prejudicial counsel’s no effect on defendant’s note, too, waiving by jury, We trial plea. prior opportunity privately defendant had the to consult with record a support counsel. We conclude that does that, from the finding physical as result of his absence courtroom, adequate representa- defendant was denied regard tion with to his waiver. sum, appearances we hold that defendant’s via closed-circuit waiver did proceedings not render those unconstitutional. To present, show constitutional violation of the to be there must be evidence that defendant’s due process courtroom, rights were violated his absence from the i.e., from the physical proceed that defendant’s absence ings proceedings physi caused the to be unfair or that his cal absence from the resulted the denial right. an There been no underlying constitutional has find no showing Consequently, such on this record. we constitutional violation.3 in line holding today
We note that our
is
with
that,
improper
“even
exclusion of a
3It has also been held
portion of
trial
not automati-
defendant from a ‘critical’
does
reversal,
cally
particular
require
if in the
case the
beyond
doubt.” Polizzi v.
absence was harmless
a reasonable
(9th
1976),
States,
1133,
citing Rogers
Cir.
United
550 F.2d
2091,
35, 39-40,
1, 6,
States,
Ed. 2d
S.
422 U.S.
45 L.
95 Ct.
United
appear-
here
We do not consider
whether
of other
holdings
supreme
state
courts which have
considered the matter. See Commonwealth v. Ingram, 2001)
S.W.3d 569 (Ky.
(properly
ar-
functioning video
raignment
is the
equivalent
constitutional
of in-court ar-
raignment
if the video procedure
properly safeguarded
is
and no
constitutional
specific
violated);
has been
Larose v. Superintendent, Hillsborough County Correc-
(1997)
Administration,
tion
364,
142 N.H.
A.2d 1120 prejudice unconstitutional inherent television). appellant’s arraignment via
B. Statutory Violation We next consider whether defendant’s closed-circuit television appearances at arraignment and jury waiver violated statutory rights. Illinois law provides “[bjefore that any person is tried for the commission of an offense he shall be called open court, into informed of the charge against him, and called upon to plead thereto.” added.) (West 1998). (Emphasis 725 ILCS In 5/113 —1 addition, “[ejvery person accused of an offense shall have (i) a trial by jury unless understandingly anee was harmless error because we find no constitutional viola- tion occurred. open court ***.” (Emphasis in
waived (West 1998). added.) Defendant 725 ILCS 5/103 —6 the “open of a strict construction of argues favor He contained in these statutes. contends language court” proceeding legislature, by requiring pretrial that court,” that defendant intended place “open to take pres in the courtroom and that physically present be by a closed-circuit may ence not be satisfied requirement on As relies appearance. support, television v. United States District Court Valenzuela-Gonzalez for (9th Arizona, 1990), in the District F.2d 1276 Cir. 10 and of the Federal the court held that Rules which a a defendant with provides Rules of Criminal Procedure broader than the constitutional presence “Arraignment shall be right. provides Rule court,” entitled “Pres conducted in Rule open Defendant,” that “defendant shall provides ence of the held that arraignment.” at the The court physi a defendant’s language requires of the rules plain an via appearance cal and that presence television is not an authorized substitute closed-circuit However, the strict construction physical presence. for the Valenzuela-Gonzalez premised court was the rules had not on whether Congress spoken on the fact satisfy presence television could Valenzuela- authority, Absent requirement. legislative the clear Gonzalez ignore did not feel “free to Valenzuela-Gonzalez, of Rules 10 and 43.” instructions F.2d at 1281. expressed has contrast, legislature In the Illinois appearances to allow closed-circuit willingness in-court section appearances. for as substitute 1(a) a defen- Code, “[w]hen it states that 106D— by required is not appearance personal dant’s or Illinois Constitu- of the United States Constitution personally ap- the defendant tion, allow *15 pear any pre-trial post-trial by way proceeding or of (a) closed circuit television when: has autho rized the use of closed-circuit television and rule has type proceedings may or order out set of conducted closed circuit television ***.” 725 ILCS 1(a) (West 1998). Thus, a strict construction of 5/106D— “open language court” found in sections 103—6 and excluding appearances 113—1 as closed-circuittelevision Construing provisions is not warranted. of sections pari 103—6 and 113—1 in materia 1, with section 106D— legislature’s interpret “open we discern the intent to language broadly appearances by court” to include Application Judg closed-circuit television. See In re for Delinquent Properties ment & Sale the Tax Year for (1995) (Revenue 167 Ill. 2d 171-72 Act and pari section 16 are in materia and be construed together legislature). to determine the intent of the Consequently, appearance by we find that defendant’s arraignment closed-circuit television at his statutory requirement waiver satisfied the that he “be open called into court” for and waive his by jury open to trial “in court.” Parenthetically, even if it had been error to conduct arraignment by television, plain defendant would not have been able to demonstrate (725 error. Section 113—6 of the Code ILCS 5/113—6 (West 1998)) provides “[n]either arraign a failure to irregularity nor an in shall affect the validity any proceeding in the cause if the pleads charge proceeds object- to the to trial without ing irregularity.” any “irregular- to such failure or Thus, ity” conducting arraignment by closed- circuit television would have been waived once proceeded objection. to trial without
C. Circuit Court’s Violation of Section 106D—1 argument, As a final defendant contends that the Kankakee where the County, circuit court of *16 authority any in this case took had no to conduct place, televi proceedings by or closed-circuit pretrial post-trial statutory duty sion because the court failed to fulfill its out, order, rule that by type proceedings to set or by closed-circuit television. As noted could be conducted 1(a) that a earlier, provides section of the Code 106D— appear the defendant to “may personally allow of closed post-trial proceeding by way or any pre-trial *** the court has authorized the circuit television when by and has rule or order use of closed circuit television by conducted may out the that be type proceedings set 1(a) circuit television ***.” 725 ILCS closed 5/106D — 1998). (West court found that the record appellate The complied failed to disclose the circuit court with whether or orders concern statutory duty promulgate its to rules Ill. App. television. See 309 ing the use of closed-circuit that this court take However, defendant asks 3d at 1035. Practice Uniform Rules of judicial published notice of the Circuit, ap he has Twenty-First Judicial which for the that the circuit on as evidence pended appeal, to his brief duty. court failed to fulfill its notice judicial it to take agree appropriate that We Edgar, Murdy court’s rules. See published of the circuit (1984) (courts notice may judicial take 103 Ill. 2d known). Further, we commonly are of matters which compli the court’s that the rules do not evidence agree offers no statutory directive. State ance with Thus, that we must assume subject. on the argument failed the circuit court has is correct and the use formally to authorize statutory duty fulfill its rules or orders by setting forth television of closed-circuit by be conducted types proceedings to the as television. laxity the circuit court’s are disturbed We their discharge responsibility must caution that courts 106D—1 of required by rules as section promulgate Nevertheless, procedural we are constrained Code. not require of this case to find that the error does posture no error. Defendant was not plain reversal. There is the circuit right of a substantial because of deprived adopt failure to rules. court’s
CONCLUSION presented, appearance Under the facts via closed-circuit his waiver did not violate his federal or state constitutional or present impair represented to be The record by counsel. fails show from the due physical absence violated Further, denied him process rights. substantial we find that statutory right “open to be court” at waiver does not afford *17 defendant any rights broader than the federal and state stated, For the affirm the judg- constitutions. reasons we appellate ment of the court.
Affirmed. FREEMAN, dissenting: JUSTICE mandate, Contrary legislative the circuit court of Kankakee County adopt regulating has failed to rules use of setting type closed-circuit television or forth be conducted proceeding by closed-circuit televi- sion. At issue is whether the circuit-court could require via closed-circuit at ar- appear television waiver, at raignment jury without such rules. The holds that majority appearances via closed- circuit television at and at did waiver Further, not render proceedings those unconstitutional. majority holds that the circuit court’s failure to adopt regulating rules the use of closed-circuit television at require these does not reversal. Because such required by legislature safeguard rules are our as a rights, respectfully the defendant’s I dissent.
66
BACKGROUND Issues surrounding the use of closed-circuit television have arisen with some frequency the Third District of People Bouie, v. court. appellate See 327 Ill. 3d App. Caruth, v. (2001); People App. (2001); Ill. 3d 226 Dixon, v. People People v. (2001); 319 Ill. 3d 881 App. Mendez, v. (2001); 318 Ill. 3d 1145 People Speed, App. (2001); 318 Ill. 3d 910 People Guttendorf, 309 Ill. App. App. 3d 1044 The circuit courts of the Third District have allowed use of closed-circuit (Bouie, 243; Caruth, 327 Ill. App. 3d 226; Dixon, 881; Mendez, Ill. 3d App. App. 319 Ill. 3d Speed, 1145; Ill. 3d App. App. 910), jury 318 Ill. 3d waiver (Dixon, 881), 319 Ill. App. plea hearings (Speed, guilty 3d Guttendorf, 910; 318 Ill. 3d App. 1044), 309 Ill. 3d App. (Mendez, the return upon jury’s verdict 1145). Ill. App. instance, In each the defendant argued he had the to be present every stage critical the criminal In proceedings. instances, most the defen dant argued also the circuit court in failing erred promulgate rules governing use of closed-circuit date, television. To the circuit Third courts District have failed to promulgate governing rules the use of television. case, the circuit court convicted defendant of possession unlawful of a controlled sub- stance with intent to deliver and unlawful possession of cannabis with the intent to deliver. Defendant ap- pealed, claiming arraigning the court erred him and accepting waiver when defendant was present only by closed-circuit television. Defendant also *18 maintained the court was not authorized to hold pretrial proceedings via closed-circuit television because any regulating the court had failed to rules adopt type of to be conducted closed-circuit required by television as statute. See 725 ILCS 5/106D —1 (West 1998). defendant had waived noted that court appellate circuit court. 309 by failing object to
these issues determined that Further, Ill. 3d at 1033. App. to excuse waiver because appropriate it was not and defendant closely was not balanced guilt evidence of rights. constitutional not of substantial deprived was noted that at 1034-35. The court also App. Ill. 3d the circuit court had did not disclose whether record rules statutory duty promulgate its complied with pretrial television at the use of closed-circuit concerning In of a at 1035. the absence App. 309 Ill. 3d proceedings. record, that the circuit court the court assumed complete 309 Ill. 3d at 1036. necessary App. had rules. adopted Ill. App. The court affirmed defendant’s conviction. 309 3d at 1036. for petition
This court allowed defendant’s leave the use of closed- appeal propriety to consider the of circuit television waiver.
ANALYSIS court, the State notes that defendant did not this closed-circuit television. object appearances via Further, did allege post-trial error that defendant has Accordingly, argues motion. the State televi- any objection waived use of Additionally, any alleged sion. the State maintains constitutional impact right. error did not a substantial he any prejudice Defendant has not shown that suffered in the use of closed-circuit television. The State concludes this court should not excuse defendant’s waiver plain error doctrine. application limitation is, course, a on the The rule of waiver Co. and not the courts. Geise Phoenix parties (1994); v. Hosk Inc., People 159 Ill. 2d Chicago, ins, In the exercise of its Ill. a and the maintenance of responsibility just for result reviewing body precedent, sound and uniform *19 68
may consider
issues not properly preserved by the par
Wilson,
ties.
v.
People
374,
155 Ill. 2d
(1993),
379
citing
Raben,
Hux v.
2d
38 Ill.
In the present
case,
I believe this court
should excuse defendant’s
waiver for precisely
First,
these two reasons.
this court
may address
arguments
defendant’s
on the
in
merits
order
to foster uniformity
in our jurisprudence.
See
(1997)
Tooles,
v.
People
177 Ill. 2d
(addressing
arguments
substantive
questions
where
regarding the
failure
to secure
a written
jury waiver had arisen
in
frequently
appellate court); People
Smith,
v.
Ill.
(1985)
327, 333
(considering issue of jury waiver on its
given
merits
importance
its
and the frequency with which
(1978) (ad
arises);
Rehbein,
it
People
hint nor hearings. object circum these to the format of the Given just responsibility recalling result, for a stances, and our argu appropriate consider defendant’s I it believe (a Hoskins, 101 Ill. 2d at the merits. See ments on reviewing ignore in order to the waiver rule result). just achieve a *20 majority arguments under defendant’s
The reviews 615(a). plain Plain error 134 Ill. 2d R. the doctrine. See exception general a limited and narrow to the error is only rule, be is invoked where the evidence waiver closely alleged balanced, or error substantial the is so People deprived a v. the defendant of fair trial. that it present case, 2d In the the Bull, 185 Ill. guilt overwhelming. Further, of defendant’s is evidence in the defendant does not contend this court beyond prove guilt a was insufficient to evidence People Jackson, doubt. See 84 Ill. reasonable (1981). Consequently, application plain the error of upon deprivation rest a substantial doctrine must of right. majority alleged light of
The in considers errors ap majority holds that defendant’s this standard. arraignment pearances television at via closed-circuit and at waiver did not render those majority also that defendant unconstitutional. The holds deprived of was not of a substantial because adopt governing of rules the use circuit court’s failure to television.5 closed-circuit legislature arraignment “the as
Our has defined appearance 5Having found defendant’s via closed-circuit plain error, major arraignment did not constitute ity comments: “Parenthetically, it had to conduct even if been error television, by
defendant’s formal act of calling the defendant open court, into him informing of the offense with which is charged, he asking him whether he guilty not guilty.” (West 1998). ILCS Our legislature has also 5/102 —4 “[bjefore provided that any is tried person for com of an mission he shall called open court, offense into charge him, informed against upon and called (West 1998). plead thereto.” 725 ILCS Thus, 5/113 —1 our legislature seems to require presence Likewise, court our arraignment. legislature has provided that every person accused of an offense shall have the to a trial jury unless understandingly waived open defendant court. ILCS (West 1998). Again, legislature our seems to 5/103 —6 require presence in court whenever by jury.6 waives trial recognized This has heretofore that a defen- plain able would have been to demonstrate (725 (West error. Section 113—6 the Code ILCS 5/113—6 1998)) provides arraign ‘[n]either a failure to nor an irregularity validity shall affect *21 any proceeding pleads if cause the defendant to the charge proceeds objecting or to trial such failure without to Thus, irregularity.’ any ‘irregularity’ conducting or of arraignment by closed-circuit television would proceeded been have waived once defendant trial without objection.” 201 Ill. at 63. majority suggesting deprivation
To the extent that the is that a of rights plain fundamental if is error sanctioned the legislature, disagree I respectfully emphatically. most but provisions 6These in to section 109—1 of the stand contrast (West 1998). provides: Code. ILCS The latter 5/109—1 person “Whenever a arrested either with or without a judge, charge a required warrant is to be taken before a may by way two-way against person be filed such of a closed system, hearing deny except circuit that a bail may by way not be conducted closed (West 1998). circuit television.” 725 ILCS 5/109—1 jury required open presence at a waiver. in court is dant’s (1999); People Smith, People v. 2d 283 Scott, 186 Ill. Ill. 2d this Scott,
Initially, that section 103—6 this court noted by jury right may to trial held if the a trial that bench open understandingly in court. waived only jury if valid to a trial is Thus, a of the waiver (2) (1) open understandingly Next, in court. made jury a had never found valid court noted that it this open present in the defendant was not waiver where jury otherwise, was waiver, written court when jury Pointing statement least discussed. regarding that the revocation, this court stated waiver jury language waiver was created the inference that Thursday 1994. of December after the last irrevocable mention of in court at the The defendant’s silence that it was due to his belief trial have been bench jury refused to This court waiver. too late to revoke acquies constituted defendant’s silence hold that the jury Instead, court concluded this cence in the waiver. validly to a did not waive the defendant Accordingly, jury open affirmed this court trial court. reversing judg appellate judgment court, for a the cause court, and remanded ment of the circuit (consistent 2d at 334 Smith, 106 Ill. new trial. See also provisions, 103—6 trial section with constitutional court). open provides made in must be that a waiver *22 case, however, In the this majority eschews the requirement of physical at presence arraignment and at jury waiver. The majority explains: legislature expressed
“[T]he Illinois has a willingness to appearances allow closed-circuit television as a substitute 1(a) appearances. for in-court In section of the 106D— Code, ‘[w]hen it states that personal appear required by ance the is of the Constitution United Constitution, may States or Illinois defendant allow the personally appear any pre-trial post-trial (a) proceeding by way of closed circuit television when: the court has authorized use of the closed circuit television rule set type has or order out the of be conducted closed circuit television ***.’ Thus, ‘open [Citation.] a strict construction of the court’ language found in 103—6 excluding sections and 113—1 as appearances closed-circuit television is not warranted. Construing provisions the of sections 103—6 and 113—1 in pari materia with legisla section we discern the 106D— interpret ‘open language broadly ture’s intent to court’ appearances by to include closed-circuittelevision.” 201 Ill. 2d at 62-63. it is true
While that section 106D—1 contemplates the use of closed-circuit pretrial proceed- television at ings, equally it our legislature imposed true that has certain on the use of requirements closed-circuit televi- sion at pretrial proceedings. Section 106D—1 shows clearly legislature intended to protect rights defendant, of the placed charge upon judiciary implement rules the use regulating of closed-circuit Our legislature’s expressed willingness television. to al- is, low the of therefore, use closed-circuit entirely contingent judicial upon the implementation rules governing use of closed-circuit television. bar,
In circuit properly the case court did not safeguard rights. spite legislature’s implement securing rights command to rules this defendants, circuit to adopt other court failed any television. regulating rules use *23 imple to clarifies, court’s failure record the circuit As the negatively upon impacted requisite rules ment the spontaneously ability and communicate to defendant’s completely he to needed defense counsel. Whenever with interrupt had to counsel, defendant communicate with permission to and ask the court’s the court telephone line The did not have a dedicated do so. court private courtroom between communication in the for Instead, and defense counsel. defendant go telephone and await defendant to to a instructed instance, the told In one court call from counsel.7 defendant: he
“Why by phone. and When you go don’t over wait here, give you gets a break he’ll a call.” Perhaps egregious more were the between conversations transcripts of the defendant and counsel recorded in hearings. allowed These conversations all better discussed to hear matters which would have been Certainly, private. with counsel in the circuit court should appearance not have via closed- allowed defendant’s circuit television to substitute for consultation between defendant and his counsel. majority recognizes arraignment jury
The and that stages proceedings. are criminal waiver critical majority However, than does little more the circuit safeguard rights. majority The court to defendant’s notes: acknowledge “We defendant’s absence from impact to courtroom had some on defendant’s access attorney appeared counsel. Because defendant his waiver, separate during locations freely ability to communicate with counsel was my record, 7From of the I cannot determine what review length elapsed request of time from between each defendant For speak telephone with and counsel’s call defendant. counsel part, impossible the most it is also to ascertain whether defense telephoned telephone counsel from a outside telephone courtroom used a the courtroom.
impaired through the closed-circuit —communication system and, privately could not done speak privately, required counsel was to leave the courtroom contact Nevertheless, telephone. [Citation.] we can say that, context of here, waiver involved to counsel was so impaired by physical absence from the courtroom that he was denied the effective assistance of counsel. As noted above, arraignment, merely counsel entered defen not-guilty plea. dant’s fact defendant was not physically present courtroom, side, counsel’s had note, prejudicial plea. too, no effect on defendant’s We prior to waiving by jury, trial op defendant had the portunity to privately consult 201 Ill. with counsel.” 2d at 59-60.
Thus, according majority, to the an is noth- ing substance, of the at least when enters a plea guilty. majority gives greater of The substance waiver, prior to the requiring communication problem, however, between defendant and counsel. The is that majority telephone the assumes the conversation between defendant and private. counsel was There is no indication the record as to when where counsel was he call placed telephone the to defendant. is also There no indication the record as to where defendant was when he received the call telephone many guards or how were brief, with him. court informs this that one the telephone of conversations defense between counsel and defendant occurred over the courtroom telephone. fair, majority the recognize
To be does circuit duty court failed in to implement governing its rules use of closed-circuit The majority television. is “disturbed by laxity the circuit court’s that courts caution[s] discharge responsibility must their to promulgate rules by as 106D— 1 201 Ill. 2d required section of Code.” however, The majority’s concern, 64-65. is of no more substance than that the Third displayed by courts of above, I regarding District. As noted issues use of
75
frequency
arisen with some
have
television
closed-circuit
the Twelfth
courts of
The circuit
Third District.
use of
allowed the
have
districts
Twenty-first judicial
pretrial proceed-
of
at a number
closed-circuit
the use
regulating
rules
implementing
first
without
ings,
itself
has blinded
The
appellate
system.
of the
of the
notice
refusing
judicial
to take
practice
this
use
widespread
of the
light
courts. In
the circuit
rules of
command
television,
legislature’s
our
of closed-circuit
the use
governing
rules
adopt
courts
the circuit
supervisory
court’s
television, and this
state,
court is
this
the courts of this
over all
authority
rights
protect
do more to
called
upon
proceedings.
at pretrial
defendants
in line with
holding “is
its
majority
states
courts which have
supreme
of other state
holdings
Ingram,
v.
matter,”
Commonwealth
citing
considered
County
2001),
Hillsborough
v.
Larose
(Ky.
569
S.W.3d
A.2d 326
Administration,
142 N.H.
Correction
656 N.E.2d
74 Ohio 3d
(1997),
Phillips,
State v.
3.160(a),
Rules
Criminal
(1995), In
Rule
Florida
re
(Fla. 1988), and Com
Procedure,
528 So. 2d
511, 408 A.2d
Terenbieniec,
Super.
268 Pa.
monwealth
distinguishing
“Pursuant
to a
order of this
hearings
Hillsborough County may
ments and bail
system
conducted via a
installed
teleconference
between
courthouse,
superior
housing
in this instance the
Court,
Nashua District
and the
Police
Nashua
Station.
temporary procedure,
Under the
a defendant and his or
attorney
her
is able to view the courtroom on a television
sections,
displaying
divided
monitor
into four
each
a differ-
Similarly,
person
part
ent
courtroom.
district
judge
can
or her attorney
view defendant and his
on one
five
monitors mounted around the courtroom.”
added.) Larose,
365,
(Emphases
Thus, it that the defendant and counsel were at appears location, and, able presumably same to com were freely at the directly arraignment. municate In Ter enbieniec, 268 Pa. 408 A.2d Super. Pennsylvania Superior Court allowed the use of closed- arraignment. circuit television at the defendant’s Pennsylvania specifically require Consolidated Statutes that: operate
“The audio-video communication must so that the simultaneously judge can see each other counsel, If with each the defendant has converse other. *26 fully the defendant shall be allowed to communicate and confidentially attorney during proceeding.” with his (2001). § Pa. Cons. Stat. 8703 The Alabama Code of Criminal Procedure in provides part: judge
“The audio-video communication shall enable or magistrate simultaneously to see and converse with the de- person fendant or other operate and so that the defendant counsel, any, and his or her if privately, can communicate so the defendant and his or her counsel are both physically present place in during the same the audio-video (2001). § communication.” Ala. Code 15—26—1 The Kansas Code of Criminal provides Procedure in part: may
“The defendant accompanied by be the defendant’s during counsel arraignment. [audio-video] The defendant shall be informed of the defendant’s personally to be present in the during arraignment.” courtroom Kan. Stat. 3205(b) (2000). §Ann. 22—
The Mississippi Code of Criminal Procedure in provides part: physical
“When appearance person in court is required any person of represented by who is counsel and held in a place custody ***, of or confinement upon waiver any right person of may such physically present, have to be personal appearance such may be made means of closed circuit place television from custody confinement, or provided that such provide two-way facilities audio-visual communication between the court and the place custody or confinement and that a full record of proceedings such be split-screen made imaging and re- cording of in the courtroom and place of confinement custody in addition to such other record required as § ***.” Miss. Code Ann. 99—1—23 2001). (Supp. The Michigan Code of Criminal provides Procedure part:
“(1) Unless the requests physical presence court, before judge magistrate may or district court arraignments conduct initial criminal setting by 2-way bail closed circuit television communication be- jail, place facility prison, a court and a or other
tween *** person imprisoned or detained. where (3) law, Except provided by public shall as otherwise courtroom, ability to the with the to view have access *27 § proceedings.” Comp. hear the Mich. Laws 767.37a Procedure in provides The Montana Code of Criminal part:
“(4) in requires that a defendant a Whenever the law felony taken before a court for an misdemeanor or case be may, in the arraignment, requirement this the discretion of court, by physical ap- be satisfied either the defendant’s by two-way electronic audio- pearance before the court or The communication video communication. audio-video judge and the can see operate must so that the defendant other, simultaneously and converse with each so each other counsel, any, if and the defendant’s can that the defendant and so that the defendant and the privately, communicate physically present both in the same defendant’s counsel are during two-way electronic audio-video com- place the (2000). §Ann. 46—12—201 munication.” Mont. Code in provide part: Mexico Court Rules The New arraignment or first appearance. “H. The Audio-visual may be appearance of the defendant before if two-way communication through the use of a audio-video following are met: the conditions
(1) counsel are the defendant and the defendant’s appearance in one room at the time of the first together court; before the
(2) defendant are able to judge, legal counsel and the two-way audio- through each other communicate and see heard and system may also be viewed video which public; and courtroom members (3) except plea of not by the court plea no is entered 303(H) (2002). E guilty.” Dist. Ct. R. Crim. N.M. 5— in provide part: Carolina General Statutes The North “(b) noncapital case be in a An transmission between by an audio and video conducted parties can see in which the judge and the defendant counsel, the defen- If defendant has hear each other. fully allowed and confiden- dant shall be to communicate during tially attorney proceeding.” N.C. Gen. with his 941(b) (2002). § Stat. 15A— Oregon provide part: The Revised Statutes “[A]ppearance simultaneous television transmission permitted shall not the facilities enable the be unless used privately during defendant to consult with defense counsel § proceedings.” Or. Rev. Stat. 135.030 provide The Tennessee Rules of Criminal Procedure objectionby “in of an the absence the defendant” the ar raignment may through use of an electronic audio 43(e) (2002). visual device. Tenn. Crim. Proc. R. Superior Rules of Criminal Procedure for the Court of “ provide [television the State of Delaware monitors place shall be situated courtroom at the provide public, court, incarceration so as to proceedings.” the defendant with a view of Del. 10(b) (2000). Super. Lastly, R. Ct. Crim. the district court of the State of Louisiana allows the use of closed-circuit arraignment “except television at when the defense *28 requests appearance open counsel the defendant’s in court.” La. 22 Dist. Ct. R. XXI although clearly review, exhaustive,
This demon- jurisdictions strates that most which allow the use of attempted safeguard closed-circuittelevision have also to rights of the accused.
CONCLUSION Supreme This court the United States Court recognized step have is a in a critical proceeding. Kirby 682, criminal Illinois, v. U.S. L. (1972); People 411, Ed. 2d S. Hessenauer, 92 Ct. 1877 v. (1970). Kirby, 63, 45 Ill. 2d Supreme 67-68 In the United States explained: Court judicial initiation proceedings
“The of criminal is far starting point from a mere formalism. It our is the whole system justice. adversary only For then criminal it is government prosecute, has committed itself to only positions government then
and and defendant that the adverse It that a
have solidified. is then defendant prosecutorial finds himself faced with forces of organized society, and immersed the intricacies of Kirby, 406 procedural substantive and criminal law.” U.S. 417-18, 689, L. at 32 Ed. 2d at 92 Ct. at 1882. S. arraignment,
Because of the critical nature of the
counsel. Hamil
defendant
entitled to
assistance of
Alabama,
52,
114,
7 L.
2d
82 S.
ton v.
368 U.S.
Ed.
Ct.
(1961); Hessenauer,
This has the courts of this required by legislature, state. Where certain rules are our ensuring this court should take an role in active adopted. responsibility Further, rules are a this has just reviewing for a result in a decision of lower court. By case, In the the court fails in af- both duties. firming conviction, the court abandons the goal just Also, result. countenances comply legislative circuit court’s failure to with the Today’s provides mandate. decision little for incentive obey legislature our circuit courts to defeats legislature’s attempts safeguard rights of those ac- respectfully cused I of crimes. dissent.
CHIEF JUSTICE HARRISON and JUSTICE KIL- join BRIDE in this dissent.
(No. 91354. Appellees, RICHARD et al., JARVIS SOUTH OAK (Gold Key Appel DODGE, lant). et INC., Lease, al. Inc., Opinion June 2002. filed