2022 IL App (3d) 190635
Opinion filed August 24, 2022 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of the 13th Judicial Circuit, ) Grundy County, Illinois Plaintiff-Appellee, ) ) Appeal No. 3-19-0635 v. ) Circuit No. 18-CF-155 ) ERIC M. BARTELS, ) Honorable ) Lance R. Peterson, Defendant-Appellant. ) Judge, Presiding ____________________________________________________________________________
PRESIDING JUSTICE O’BRIEN delivered the judgment of the court, with opinion. Justice Hauptman concurred in the judgment and opinion. Justice McDade specially concurred, with opinion. ____________________________________________________________________________
OPINION
¶1 Defendant was charged with a number of offenses resulting from an incident at the Shell
gas station in Morris, where defendant strangled and stabbed his girlfriend. He was found guilty
following a bench trial of attempted first degree murder and two counts of aggravated domestic
battery and sentenced to a 14-year term of imprisonment. He appealed. We affirm.
¶2 I. BACKGROUND
¶3 Defendant Eric M. Bartels was arrested after an incident at the Shell station in Morris in
which he strangled and stabbed his girlfriend, Kimberly Ready. He was charged by indictment with armed violence (720 ILCS 5/33A-2(a) (West 2018)), attempted first degree murder (id. §§ 8-
4(a), 9-1(a)(1)), two counts of aggravated domestic battery (id. § 12-3.3(a)), and unlawful restraint
(id. § 10-3(a)). The armed violence and unlawful restraint charges were thereafter dismissed.
¶4 A bench trial took place. The State presented the following witnesses. Tamara
Chamberlain, the manager of the Shell station in Princeton, testified regarding her interaction with
Ready and defendant when they came into the gas station to make some purchases the day of the
Morris incident. Ready was crying and upset and struggled to make the debit transaction. The
station was equipped with video cameras and the video recordings from the interaction with Ready
and defendant fairly and accurately depicted the interaction at the gas station.
¶5 Louis Sims, a commercial truck driver, testified. He had parked his semitractor trailer in
the Shell station parking lot in Morris while he patronized the bank across the street. He saw
defendant and Ready in the Shell parking lot, where he heard Ready say, “he’s trying to kill me.”
When he observed defendant choking Ready, he intervened and pulled defendant off her. He
viewed the video recordings from the Shell station in preparation for trial and expressed that they
were fair and accurate depictions of the events at issue.
¶6 Terry Scholz, who was at the Morris Shell station to purchase gasoline, thought he heard
Ready say, “he’s going to kill me” as she exited the building, but he was not sure. He then saw
Ready and defendant argue while seated in their car and noticed Ready try to exit the vehicle. She
was screaming, “he’s going to kill me” before defendant pulled her back into the car. Scholz saw
defendant punching Ready and observed that he had one hand on her throat. It appeared defendant
had something in his hand that was moving back and forth toward Ready’s neck. The truck driver
was helping her when Ready fled from the car. The video recordings of the parking lot accurately
depicted the scene.
2 ¶7 Nicholas Thomas, an off-duty Shell station employee who had stopped to fill up his
Mountain Dew mug, heard screaming at the pumps and saw Ready’s leg sticking out from the car.
He told the clerk on duty to call 911. Ready ran toward him and he took her in the bathroom and
helped her with her wounds. He retrieved the station’s video recordings per the request of law
enforcement. He reviewed them and stated they were a fair and accurate depiction of the events.
¶8 Joseph Cromwell, a Morris resident, testified that the Nest security camera at his house
captured defendant speeding down the street in Ready’s vehicle. He stated the video recording was
a fair and accurate depiction.
¶9 Law enforcement personnel from the Morris Police Department testified as to their roles
in the investigation. The doctor who treated Ready at the hospital testified regarding Ready’s
injuries.
¶ 10 Ready testified. She described her relationship with the defendant and the events leading
up to the incident at issue. She explained defendant called her 72 times from the jail. She spoke to
him on some calls and other calls he left voice messages for her.
¶ 11 The recordings of the calls from the jail and the video recordings from the gas stations were
admitted into evidence.
¶ 12 Following testimony of the State’s witnesses, the defense attorney recommended that the
trial court view the video recordings and listen to the audio recordings in chambers and offered
that the parties could return to court in the morning when the State would rest. The following
morning, the trial court informed the parties that it had watched the video recordings and listened
to the audio recordings. However, the court could not review two of the three video recordings
from the Morris Shell station. The court then took a short recess to watch the two video recordings
again in chambers using the defense attorney’s laptop. When court was back in session, the State
3 rested. The defense offered a stipulation by agreement and rested. The trial court found defendant
guilty of all three remaining charges: attempted first degree murder and two counts of aggravated
domestic battery. It considered the jail phone calls to reflect consciousness of defendant’s guilt
and noted the phone calls reflected a textbook depiction of the cycle of abuse.
¶ 13 Defendant moved for a new trial, arguing he was not proven guilty beyond a reasonable
doubt, his trial was not fair, he was denied due process and equal protection, the court allowed
prejudicial testimony and evidence, and the court erred in denying his motion for judgment of
acquittal, in denying his motion in limine to prevent admission of his prior bad acts of domestic
violence and in granting the State’s motion in limine to allow Ready to testify about prior bad acts
of domestic violence defendant perpetrated on her. The trial court denied the motion for a new
trial, finding in part that the evidence against defendant was overwhelming.
¶ 14 Defendant filed a second motion for a new trial, arguing that he was denied due process
and equal protection when the trial court watched the video recordings and listened to the audio
recordings in chambers and out of defendant’s presence. A hearing took place on the motion,
following which the trial court denied the motion. Sentencing took place and the trial court
sentenced defendant to a 14-year term of imprisonment. He appealed.
¶ 15 II. ANALYSIS
¶ 16 Defendant argues the trial court violated his due process rights when the court viewed a
thumb drive of admitted evidence outside his presence. The thumb drive included video recordings
capturing the defendant and Ready at gas stations in Princeton and Morris, the latter of which also
partially depicted the events in the parking lot when defendant attacked Ready. The thumb drive
also included audio recordings of defendant’s phone calls to Ready from the jail and voice
messages he left for her.
4 ¶ 17 A criminal defendant has a right to be present at all critical stages of the proceedings against
him. U.S. Const., amend. XIV, § 1; Ill. Const. 1970, art. I, § 8. The United States Constitution
provides: “nor shall any State deprive any person of life, liberty, or property, without due process
of law.” U.S. Const., amend. XIV, § 1. The Illinois Constitution of 1970 states that “[i]n criminal
prosecutions, the accused shall have the right to appear and defend in person and by counsel.” Ill.
Const. 1970, art. I, § 8. The right to be present is an implied right under the federal constitution
and an express right under the state constitution. People v. Lindsey, 201 Ill. 2d 45, 55 (2002). The
right of presence under both documents is designed to protect a substantial right. Id. at 57.
¶ 18 The federal and state constitutions provide for limited circumstances where a violation of
a defendant’s right to be present amounts to a constitutional deprivation. People v. Bean, 137 Ill.
2d 65, 80 (1990). Federal due process is violated when a defendant’s absence results in an unfair
and unjust trial. People v. Bull, 185 Ill. 2d 179, 201 (1998). Due process is violated under the
Illinois Constitution when a defendant’s absence results in a denial of an underlying substantial
right. Id. Although the constitutional language is framed differently, both documents provide that
a defendant is entitled to a fair and just trial in which his substantial rights are protected. Lindsey,
201 Ill. 2d at 57.
¶ 19 A defendant has a right to be present whenever his presence impacts his ability to defend
himself. United States v. Gagnon, 470 U.S. 522, 526 (1985) (per curiam). The right to be present
is not absolute and no rights are violated when defendant’s “ ‘presence would be useless, or the
benefit but a shadow.’ ” People v. Lofton, 194 Ill. 2d 40, 67 (2000) (quoting Snyder v.
Massachusetts, 291 U.S. 97, 106-07 (1934)). “The question is not whether ‘but for’ the outcome
of the proceeding the defendant would have avoided conviction but whether the defendant’s
presence at the proceeding would have contributed to his opportunity to defend himself against the
5 charges.” Id. This court reviews de novo whether a defendant’s due process rights have been
violated. People v. O’Quinn, 339 Ill. App. 3d 347, 358 (2003).
¶ 20 We begin with a discussion about whether defendant waived his right to be present when
the trial court viewed the video recordings and listened to the audio recordings alone in chambers.
Defendant asserts that he could not waive a right about which he had no knowledge, and because
the court failed to admonish him regarding his right to be present, his waiver could not be knowing
and voluntary.
¶ 21 Waivers of constitutional rights must be knowing and voluntary. People v. Reid, 2014 IL
App (3d) 130296, ¶ 11 (citing People v. McClanahan, 191 Ill. 2d 127, 137 (2000)). A defendant’s
waiver of his right to be present must be an intentional relinquishment or abandonment of a known
right. Id. Defendant relies on People v. Lucas, 2019 IL App (1st) 160501, to support his claim that
he did not knowingly and voluntarily waive his right to be present. Lucas involved a traffic stop
and subsequent conviction for driving under the influence, as well as other offenses resulting from
the stop. Id. ¶ 4. Because the courtroom was not equipped for viewing video recordings, the court’s
standard procedure was to watch the video recordings in chambers with counsel present, but
without the defendant. Id. ¶ 5. The court explained the process to the defendant and defense
counsel reiterated that he had also informed the defendant regarding the procedure. Id. The
defendant stated she understood the procedure and there were no objections. Id. The trial court
viewed the video recordings outside the defendant’s presence and thereafter found the defendant
guilty, relying in part on the squad car video evidence it viewed in chambers. Id. ¶ 7. The reviewing
court found that the defendant was not informed that she had a right to be present when the court
viewed the squad car videos. Id. ¶ 14. Because she was not aware of the right, she could not
knowingly and voluntarily waive it. Id. The Lucas court concluded that the defendant’s absence
6 impacted her ability to consider the evidence and aid in her defense, thus affecting the fairness of
the trial and violating her rights to due process. Id.
¶ 22 In Lofton, 194 Ill. 2d at 66, on which defendant also relies, the reviewing court addressed
the defendant’s claim that his due process rights were violated when a section 115-10 hearing (725
ILCS 5/115-10 (West 1996)) took place in his absence. As in Lucas, substantive evidence was
presented at the hearing where the child victim and her mother testified. Lofton, 194 Ill. 2d at 68-
69. The reviewing court found defendant’s absence negatively impacted his ability to defend
himself. Id. at 72. The court stated that the defendant’s absence was not cured by the presence of
his counsel because counsel could not waive the defendant’s right to be present. Id. at 71-73.
¶ 23 In reliance on Lucas and Lofton, defendant maintains his attorney could not waive his right
to be present. The court in People v. Young, 2013 IL App (4th) 120228, reached the opposite
conclusion. The Young court addressed the defendant’s claim that his attorney could not waive his
right to be present. Id. ¶ 22. On the State’s suggestion during a section 115-10 hearing, and with
the defense counsel’s agreement, the trial court viewed the victims’ recorded interviews in
chambers at the court’s “leisure.” Id. ¶ 7. After watching the recordings in chambers, the trial court
thereafter found the defendant guilty. Id. ¶ 16. The reviewing court rejected the defendant’s
argument that his right to be present could not be waived by counsel’s affirmative acquiescence to
the court’s actions. Id. ¶ 22. The reviewing court reasoned that defendant’s presence during the
viewing of the tapes would not have contributed to his opportunity to defend himself. Id. ¶ 24. He
had been present at the section 115-10 hearing and was aware of the evidence against him. Id. It
was the section 115-10 hearing the court found to be a critical stage of the proceedings against the
defendant. Id. The trial court’s viewing of the interviews in chambers was not a vital or critical
stage and thus defendant could affirmatively waive his presence. Id. ¶ 25. The court further found
7 that because the in-chamber viewing did not affect a fundamental right, counsel could also waive
defendant’s presence. Id. Defendant had appeared at all critical stages and was bound by his
attorney’s waiver of the right to be present when the court reviewed the interview DVDs. Id. ¶ 26.
¶ 24 The courts in Lucas, Lofton and Young considered more than the defendant’s physical
absence in determining whether any due process violations occurred. In considering whether the
defendant’s absence affected the trial’s fairness, the analysis turns on the nature of the hearing.
Lucas, 2019 IL App (1st) 160501, ¶ 13 (citing Lofton, 194 Ill. 2d at 68). Unlike the facts in Lucas
and Lofton, in the instant case the presentation of evidence was not new, testimony was not
presented and argument was not made. Defendant was aware of the evidence against him. The trial
court was alone in chambers and merely watched the video recordings and listened to the audio
recordings. These facts align with those in Young, where the court viewed evidence of which the
defendant was aware and familiar. As in Young, the court examined evidence that had been
presented through testimony for which the defendant was present. The Young court determined
that because the in-chambers viewing was not a critical stage of the proceedings, defendant’s
attorney could waive his presence. Young, 2013 IL App (4th) 120228, ¶ 25. We, too, find the in-
chambers viewing was not a critical stage of the process to which defendant’s right to be present
attached and thus, defense counsel could waive defendant’s right. Defendant’s presence in
chambers would not have impacted his decision to testify or present his case as he knew all the
evidence against him that was contained on the thumb drive.
¶ 25 Defendant asserts that his absence deprived him of the ability to gauge the trial court’s
reaction to the recordings, affecting his ability to determine whether to testify on his own behalf
and thus negatively impacting a substantial right and affecting his right to a fair trial. We reject
this argument. The defendant in Bull, 185 Ill. 2d at 201-02, asserted the same claim, arguing that
8 his absence during voir dire of one venireperson prevented him from gauging the juror’s reaction
to questioning. The reviewing court found the defendant’s claim unavailing as he did not show he
received a partial jury or unfair trial. Id. at 202-03. Defendant’s claim here is also unavailing. The
trial court stated that had it viewed the evidence in open court it would have stoically watched and
listened such that defendant would not have observed any reaction. The trial court explained that
had the video recordings been viewed and the audio recordings heard in the courtroom, “[t]here
would not have been interaction” or “litigation,” “examination,” or “Cross Examination.” The
court stated: “It was just this Court absorbing evidence that was agreed to and fully reviewed by
both sides.” Without reason and contrary to the record, the special concurrence doubts the trial
court’s assurance that it would impartially watch and listen to the evidence. We take the trial court
at its word.
¶ 26 Had defendant been present in chambers while the tapes were played, he would not have
had an opportunity to participate in any fashion in the presentation of the evidence. Under these
circumstances, defendant was not prevented from making a fully informed decision regarding his
right to testify. We find defendant’s absence did not prejudice him as his absence did not result in
an unfair trial or a denial of his substantive rights. See Lindsey, 201 Ill. 2d at 57 (absence must
prejudice defendant and where there are no negative consequences from defendant’s physical
absence there was no denial of his rights).
¶ 27 We are further convinced that defendant waived his right to be present because of the
manner in which the in-chambers viewing was suggested. In Young, the State volunteered the in-
chambers procedure, while in the instant case, defense counsel suggested it. Thus, counsel here
did more than acquiesce in the procedure now complained about; counsel recommended it. We
note that after the trial court reviewed the recordings, it informed the parties the following morning
9 that it was not able to access two of the video recordings. Defense counsel provided his laptop to
the court to enable the court to watch the video recordings, which the court recessed to chambers
to view. The defendant was also present during this exchange and did not object. We consider that
defendant twice affirmatively waived his right to be present.
¶ 28 Lastly, we address and reject defendant’s request that trial courts should admonish
defendants regarding their right to be present prior to any waiver of the right. Certain
admonishments are required by the trial court, including regarding the defendant’s rights to
counsel and to a jury. See Ill. S. Ct. R. 401 (eff. July 1, 1984); R. 402 (eff. July 1, 2012). The right
to be present is afforded defendants so they can protect their other rights, such as the right to testify.
Lindsey, 201 Ill. 2d at 57 (“ ‘[The right to be present] is a lesser right the observance of which is a
means to securing the substantial rights of a defendant.’ ” (quoting Bean, 137 Ill. 2d at 81)). It is
those rights about which a defendant should be admonished. Requiring the court to admonish
defendants regarding the right to be present does not advance the substantial other rights.
¶ 29 We do not believe the disposition in this case puts us “on our way down a slippery slope
to a place we ought not want to be,” as the special concurrence worries will occur. Infra ¶ 34.
Defendant has not demonstrated that his right to testify, or any other substantial right, was violated
because he was not present during the trial court’s in-chambers examination of the evidence. We
find defendant was not deprived of his constitutional right to be present when the trial court viewed
the gas station video recordings and listened to the audio recordings of the phone calls defendant
made from the jail to Ready. His claim of a due process violation fails.
¶ 30 III. CONCLUSION
¶ 31 For the foregoing reasons, the judgment of the circuit court of Grundy County is affirmed.
¶ 32 Affirmed.
10 ¶ 33 JUSTICE McDADE, specially concurring:
¶ 34 This is a special concurrence because I acknowledge that, despite some switching between
cases involving trials and those addressing other critical stages of a criminal prosecution, the
majority’s decision is consistent with existing caselaw. Nonetheless I write separately to express
my concern that we appear to be on our way down a slippery slope to a place we ought not want
to be.
¶ 35 I disagree with the twin determinations, reached in reliance on the reasoning in People v.
Young, 2013 IL App (4th) 120228, that
“the in-chambers viewing [of trial evidence] was not a critical stage of the process
to which defendant’s right to be present attached, and thus, defense counsel could
waive defendant’s right. Defendant’s presence in chambers would not have
impacted his decision to testify or present his case, as he knew all the evidence
against him that was contained on the thumb drive.” Supra ¶ 24.
And, in reliance on Bull, 185 Ill. 2d at 201-03, the majority’s conclusion that “[d]efendant[’s]
assert[ion] that his absence deprived him of the ability to gauge the trial court’s reaction to the
recordings, affecting his ability to determine whether to testify in his behalf and thus negatively
impacting a substantial right and affecting his right to a fair trial”
“is also unavailing. The trial court stated that had it viewed the evidence in open
court, it would have stoically watched and listened such that defendant would not
have observed any reaction. The trial court explained that had the video recordings
been viewed and the audio recordings heard in the courtroom, ‘[t[here would not have
been interaction,’ or ‘litigation,’ ‘examination’ or ‘Cross Examination.’ The court
11 stated: ‘It was just this Court absorbing evidence that was agreed to and fully
reviewed by both sides.’ ” Supra ¶ 25.
¶ 36 I wonder how many steps it will take, using this precise reasoning, to conclude that, once
a bit of evidence has been testified to by one witness in defendant’s presence, defendant loses the
“right” to be present if that same evidence, or a variant of it, is testified to by another witness.
Apparently, the caselaw would require us to find that the subsequent testimony is no longer a
“critical stage” because defendant was already aware of it.
¶ 37 And how many more steps will it take, again using the same reasoning, to decide that
anything given to defendant in discovery is known to him and its presentation can no longer be
deemed a critical stage? Therefore, there is no need for defendant to be present or represented
when that evidence is presented.
¶ 38 And how many more steps, using this same reasoning, until we find if the evidence of
defendant’s guilt is “overwhelming,” and there is nothing he or she can advance that can change
the outcome, so the entire trial is no longer a critical stage and there is no right or need for defendant
to either be present or to be represented by counsel? This, of course, also begs the very interesting
question of who decides if the evidence is overwhelming.
¶ 39 These seemingly absurd but—as we can already see, increasingly possible—results flow,
inexorably in my opinion, from two “errors.” First, from a misunderstanding of where trials fit into
“critical stage” theory. The United States Supreme Court has found that the trial, in its entirety—
both the guilt and sentencing phases—is itself a critical stage of defendant’s criminal prosecution.
There is no constitutional support for the parsing of the trial into ad hoc subcritical stages. And the
second error is a belief defendant’s right to be present and to be represented by counsel is grounded
in his ability to actually change the outcome. That is not correct. The right is rooted in defendant’s
12 opportunity to confront his accusers and to formulate and present a defense. It is for defendant and
his counsel, not us, to determine what constitutes that defense how it may be derived, and how it
is best implemented.
¶ 40 Turning to the instant case, the parties were engaged in the guilt phase of defendant’s
trial—a uniformly recognized critical stage of his criminal prosecution. The evidence at issue
consisted of video and audio tapes, which the trial court—the finder of fact—would be seeing and
hearing for the first time. It is not clear to me why the court found it necessary to view this evidence
in chambers rather than in open court, but it does not matter; 1 the issue of defendant’s presence
and his representation are easily resolved by bringing him and his counsel into chambers. Clearly
this constitutes the presentation at defendant’s bench trial of factual evidence to the finder of fact—
a quintessential part of the trial and undeniably a critical stage of defendant’s prosecution. But our
opinion finds it not to be a critical stage, and it does so on two grounds, neither of which I believe
to be valid. First, defendant has already seen and heard the tapes, so even though they are
important and the trial court needs to see and hear them, there is neither a right nor a need for
defendant and his attorney to be present while this evidence is presented to the court. And second,
the trial judge has a subjective conviction that his face will remain so inscrutable while viewing
the evidence that defendant could not possibly glean anything from it that would be helpful to his
defense. Our opinion finds that significant and acceptable, without considering the possibility that
the inscrutability itself might lead defendant or counsel to revise their strategy on some issue.
1 I agree that defense counsel’s role in actually proposing that the trial court handle it that way presents a procedural hurdle for defendant, but it, too, does not matter in terms of the point I am attempting to make. 13 ¶ 41 I believe this decision is wrong at its core and that it undermines the most fundamental
tenets of our criminal justice system and contributes to the incremental erosion of our foundational
right to due process and a fair and open trial.
14 People v. Bartels, 2022 IL App (3d) 190635
Decision Under Review: Appeal from the Circuit Court of Grundy County, No. 18-CF- 155; the Hon. Lance R. Peterson, Judge, presiding.
Attorneys Kevin Sanborn, of Johnson Law Group LLC, of Bloomington, for for appellant. Appellant:
Attorneys Jason Helland, State’s Attorney, of Morris (Patrick Delfino, for Thomas D. Arado, and Nicholas A. Atwood, of State’s Appellee: Attorneys Appellate Prosecutor’s Office, for counsel), for the People.