NOTICE 2023 IL App (4th) 210328-U FILED This Order was filed under Supreme Court Rule 23 and is March 13, 2023 NO. 4-21-0328 Carla Bender not precedent except in the limited circumstances allowed 4th District Appellate IN THE APPELLATE COURT Court, IL under Rule 23(e)(1). OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Logan County TAYLOR T. COPPINGER, ) No. 19CF108 Defendant-Appellant. ) ) Honorable ) Jonathan C. Wright, ) Judge Presiding.
JUSTICE CAVANAGH delivered the judgment of the court. Presiding Justice DeArmond and Justice Zenoff concurred in the judgment.
ORDER ¶1 Held: (1) By affirmative acquiescence, defendant waived the issue of whether he was denied the right to a public trial, and the doctrine of plain error cannot eliminate a waiver.
(2) By refraining from objecting to a practice that, at the time, was common in courtrooms in Illinois and throughout the United States, defense counsel did not render performance that fell outside the wide range of reasonable professional assistance.
¶2 The circuit court of Logan County sentenced defendant, Taylor T. Coppinger, to a
total of 30 years’ imprisonment for offenses of which a jury had found him guilty, namely, two
counts of aggravated criminal sexual assault (720 ILCS 5/11-1.30(a)(2) (West 2018)) and one
count of aggravated domestic battery (720 ILCS 5/12-3.3) Defendant appeals on two grounds.
¶3 First, defendant claims that the circuit court barred all but two of his family
members from the courtroom during his trial and thereby deprived him of his constitutional right to a public trial. See Presley v. Georgia, 558 U.S. 209, 211-12 (2010). We find that defendant has
waived this claim.
¶4 Second, defendant claims that defense counsel rendered ineffective assistance by
failing to object when the prosecutor asked the court to make a finding, in the hearing of the jury,
that a witness, Dr. Susan Harmon, was an “expert” in the field of medicine. See People v.
Pingelton, 2021 IL App (4th) 180751, ¶ 50. We find the omission of this objection to be within
the wide range of reasonable professional assistance.
¶5 Therefore, we affirm the judgment.
¶6 I. BACKGROUND
¶7 Before the jury trial began, the circuit court noted that the elevator in the courthouse
was out of order and that, consequently, the trial had been moved to a different location. The judge
further noted that, because of the COVID-19 pandemic, this different location had been set up for
social distancing.
¶8 After the jury was selected, but before the State began its case in chief, defense
counsel said:
“[DEFENSE COUNSEL]: Judge, the only request I have is my client’s
parents are here. They indicate that his sister may be coming this afternoon and if
they could add another chair. They talked to the deputies. The deputies said it would
have to be the State or the Court that would give permission to do that.
THE COURT: I don’t know if we have space. Since we have a limited
courtroom, I just try to divide equally between the defendant’s family and the
victim’s family; and so however many seats we have, we’ll just have to divide
accordingly.
-2- [DEFENSE COUNSEL]: Okay.”
¶9 On March 24, 2021, the second day of the jury trial, the State called Dr. Harmon,
who had performed a pelvic examination on the victim, H.R. Dr. Harmon described her training
and educational background. The prosecutor then said, “Your Honor, at this time I move to qualify
the witness as an expert in the field of medicine.” The circuit court asked defense counsel if he had
any questions for the witness. He answered he had no questions. The court then ruled, in the
hearing of the jury, “Dr. Harmon will be admitted as an expert witness in the field of medicine and
emergency medicine.”
¶ 10 II. ANALYSIS
¶ 11 A. The Right to a Public Trial
¶ 12 Defendant acknowledges a failure to preserve the issue of whether his right to a
public trial was violated. Defense counsel made no contemporaneous objection; nor did defense
counsel raise the issue in the posttrial motion. See People v. Enoch, 122 Ill. 2d 176, 186 (1988)
(holding that, to preserve an error for appellate review, a defendant must object to the error at trial
and raise the issue in a posttrial motion). Nevertheless, because the denial of the right to a public
trial is a structural error (see People v. Williams, 2016 IL App (3d) 130901, ¶ 18), defendant
contends that the doctrine of plain error should avert the forfeiture (see People v. Hillier, 237 Ill.
2d 539, 545 (2010)).
¶ 13 The State’s initial response is that waiver has taken this contention beyond the reach
of the plain-error doctrine. In this vein, the State quotes People v. Dunlap, 2013 IL App (4th)
110892, ¶ 12: “Plain-error analysis *** applies to cases involving procedural default ***, not
affirmative acquiescence. [Citation.]” (Internal quotation marks omitted.) The State argues that by
saying “ ‘[o]kay’ ” to the circuit court’s decision not to bring any more chairs into the courtroom,
-3- defense counsel affirmatively acquiesced in that decision and, as a result, the plain-error doctrine
is inapplicable. See Dunlap, 2013 IL App (4th) 110892, ¶ 12. Defendant disagrees. He contends
that by saying “ ‘[o]kay,’ ” defense counsel merely signified his acknowledgment of the court’s
decision.
¶ 14 The parties’ disagreement over the meaning of the word “okay” makes it necessary
to resort to the dictionary. “Okay” means “all right.” Merriam-Webster’s Collegiate Dictionary
863 (11th ed. 2020). “Okay” is what someone says “in assenting or agreeing” to something.
(Emphasis omitted.) Id. It is a word of affirmative acquiescence. The State is correct, therefore,
that the public-trial issue is waived, not merely forfeited, and that the doctrine of plain error does
not undo a waiver. See People v. Baker, 2022 IL App (4th) 210713, ¶ 61; Dunlap, 2013 IL App
(4th) 110892, ¶ 12.
¶ 15 B. Declaring, in the Jury’s Presence, That Dr. Harmon is an “Expert”
¶ 16 In Pingelton, 2021 IL App (4th) 180751, ¶ 51, the Fourth District cautioned, “When
a trial court uses the term ‘expert’ in front of a jury, it creates a danger that the court’s authority is
being associated with the expert’s authority.” Accordingly, the Fourth District advised:
“Instead of calling witnesses ‘experts’ or having the judge ‘certify’ a
witness as an expert in front of the jury, counsel should either (1) address the matter
with the trial court pretrial or (2) simply lay the proper foundation in open court
before the jury and then ask to approach the bench for a sidebar at which counsel
could ask the trial court if the court agrees that a sufficient foundation has been
established so that counsel could then ask the witness questions calling for
opinions.” Id. ¶ 55.
-4- Defendant accuses defense counsel of rendering ineffective assistance by failing to object to a
procedure whereby, in the jury’s hearing, the circuit court declared Dr. Harmon to be “an expert
witness in the field of medicine and emergency medicine.”
¶ 17 Defendant admits that, on March 24, 2021, when the circuit court so declared Dr.
Harmon, Pingelton was not yet decided.
Free access — add to your briefcase to read the full text and ask questions with AI
NOTICE 2023 IL App (4th) 210328-U FILED This Order was filed under Supreme Court Rule 23 and is March 13, 2023 NO. 4-21-0328 Carla Bender not precedent except in the limited circumstances allowed 4th District Appellate IN THE APPELLATE COURT Court, IL under Rule 23(e)(1). OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Logan County TAYLOR T. COPPINGER, ) No. 19CF108 Defendant-Appellant. ) ) Honorable ) Jonathan C. Wright, ) Judge Presiding.
JUSTICE CAVANAGH delivered the judgment of the court. Presiding Justice DeArmond and Justice Zenoff concurred in the judgment.
ORDER ¶1 Held: (1) By affirmative acquiescence, defendant waived the issue of whether he was denied the right to a public trial, and the doctrine of plain error cannot eliminate a waiver.
(2) By refraining from objecting to a practice that, at the time, was common in courtrooms in Illinois and throughout the United States, defense counsel did not render performance that fell outside the wide range of reasonable professional assistance.
¶2 The circuit court of Logan County sentenced defendant, Taylor T. Coppinger, to a
total of 30 years’ imprisonment for offenses of which a jury had found him guilty, namely, two
counts of aggravated criminal sexual assault (720 ILCS 5/11-1.30(a)(2) (West 2018)) and one
count of aggravated domestic battery (720 ILCS 5/12-3.3) Defendant appeals on two grounds.
¶3 First, defendant claims that the circuit court barred all but two of his family
members from the courtroom during his trial and thereby deprived him of his constitutional right to a public trial. See Presley v. Georgia, 558 U.S. 209, 211-12 (2010). We find that defendant has
waived this claim.
¶4 Second, defendant claims that defense counsel rendered ineffective assistance by
failing to object when the prosecutor asked the court to make a finding, in the hearing of the jury,
that a witness, Dr. Susan Harmon, was an “expert” in the field of medicine. See People v.
Pingelton, 2021 IL App (4th) 180751, ¶ 50. We find the omission of this objection to be within
the wide range of reasonable professional assistance.
¶5 Therefore, we affirm the judgment.
¶6 I. BACKGROUND
¶7 Before the jury trial began, the circuit court noted that the elevator in the courthouse
was out of order and that, consequently, the trial had been moved to a different location. The judge
further noted that, because of the COVID-19 pandemic, this different location had been set up for
social distancing.
¶8 After the jury was selected, but before the State began its case in chief, defense
counsel said:
“[DEFENSE COUNSEL]: Judge, the only request I have is my client’s
parents are here. They indicate that his sister may be coming this afternoon and if
they could add another chair. They talked to the deputies. The deputies said it would
have to be the State or the Court that would give permission to do that.
THE COURT: I don’t know if we have space. Since we have a limited
courtroom, I just try to divide equally between the defendant’s family and the
victim’s family; and so however many seats we have, we’ll just have to divide
accordingly.
-2- [DEFENSE COUNSEL]: Okay.”
¶9 On March 24, 2021, the second day of the jury trial, the State called Dr. Harmon,
who had performed a pelvic examination on the victim, H.R. Dr. Harmon described her training
and educational background. The prosecutor then said, “Your Honor, at this time I move to qualify
the witness as an expert in the field of medicine.” The circuit court asked defense counsel if he had
any questions for the witness. He answered he had no questions. The court then ruled, in the
hearing of the jury, “Dr. Harmon will be admitted as an expert witness in the field of medicine and
emergency medicine.”
¶ 10 II. ANALYSIS
¶ 11 A. The Right to a Public Trial
¶ 12 Defendant acknowledges a failure to preserve the issue of whether his right to a
public trial was violated. Defense counsel made no contemporaneous objection; nor did defense
counsel raise the issue in the posttrial motion. See People v. Enoch, 122 Ill. 2d 176, 186 (1988)
(holding that, to preserve an error for appellate review, a defendant must object to the error at trial
and raise the issue in a posttrial motion). Nevertheless, because the denial of the right to a public
trial is a structural error (see People v. Williams, 2016 IL App (3d) 130901, ¶ 18), defendant
contends that the doctrine of plain error should avert the forfeiture (see People v. Hillier, 237 Ill.
2d 539, 545 (2010)).
¶ 13 The State’s initial response is that waiver has taken this contention beyond the reach
of the plain-error doctrine. In this vein, the State quotes People v. Dunlap, 2013 IL App (4th)
110892, ¶ 12: “Plain-error analysis *** applies to cases involving procedural default ***, not
affirmative acquiescence. [Citation.]” (Internal quotation marks omitted.) The State argues that by
saying “ ‘[o]kay’ ” to the circuit court’s decision not to bring any more chairs into the courtroom,
-3- defense counsel affirmatively acquiesced in that decision and, as a result, the plain-error doctrine
is inapplicable. See Dunlap, 2013 IL App (4th) 110892, ¶ 12. Defendant disagrees. He contends
that by saying “ ‘[o]kay,’ ” defense counsel merely signified his acknowledgment of the court’s
decision.
¶ 14 The parties’ disagreement over the meaning of the word “okay” makes it necessary
to resort to the dictionary. “Okay” means “all right.” Merriam-Webster’s Collegiate Dictionary
863 (11th ed. 2020). “Okay” is what someone says “in assenting or agreeing” to something.
(Emphasis omitted.) Id. It is a word of affirmative acquiescence. The State is correct, therefore,
that the public-trial issue is waived, not merely forfeited, and that the doctrine of plain error does
not undo a waiver. See People v. Baker, 2022 IL App (4th) 210713, ¶ 61; Dunlap, 2013 IL App
(4th) 110892, ¶ 12.
¶ 15 B. Declaring, in the Jury’s Presence, That Dr. Harmon is an “Expert”
¶ 16 In Pingelton, 2021 IL App (4th) 180751, ¶ 51, the Fourth District cautioned, “When
a trial court uses the term ‘expert’ in front of a jury, it creates a danger that the court’s authority is
being associated with the expert’s authority.” Accordingly, the Fourth District advised:
“Instead of calling witnesses ‘experts’ or having the judge ‘certify’ a
witness as an expert in front of the jury, counsel should either (1) address the matter
with the trial court pretrial or (2) simply lay the proper foundation in open court
before the jury and then ask to approach the bench for a sidebar at which counsel
could ask the trial court if the court agrees that a sufficient foundation has been
established so that counsel could then ask the witness questions calling for
opinions.” Id. ¶ 55.
-4- Defendant accuses defense counsel of rendering ineffective assistance by failing to object to a
procedure whereby, in the jury’s hearing, the circuit court declared Dr. Harmon to be “an expert
witness in the field of medicine and emergency medicine.”
¶ 17 Defendant admits that, on March 24, 2021, when the circuit court so declared Dr.
Harmon, Pingelton was not yet decided. (The decision in Pingelton was issued on August 3, 2021.)
Even so, defendant points out that foreign authorities, such as United States v. Johnson, 488 F.3d
690, 697 (6th Cir. 2007), and a law journal article (Evan Bruno, Better Practice—Let a Witness’
Record Speak For Itself Without the Expert Label, Chicago Daily Law Bulletin (Aug. 19, 2014))
disapproved of the practice of certifying an expert in the jury’s hearing. As the State observes,
however, the now-disapproved practice was common in Illinois courts before Pingelton. For proof,
the State quotes from Pingelton:
“Concerning the proffer of expert testimony, attorneys and trial courts
frequently proceed as defendant on appeal suggests should have happened in this
case. First, the attorney seeking to present expert testimony typically lays the
foundation by asking a witness questions about the witness’s background,
education, training, and experience. Second, the attorney turns to the judge and
says, ‘Your Honor, the State tenders Dr. Smith as an expert in toxicology.’ Third,
the opposing party is given the opportunity to state that party’s objection, if any, or
alternatively to conduct a voir dire examination of the witness regarding the
witness’s qualifications. Last, the judge says, ‘The court finds a sufficient
foundation has been laid and accepts Dr. Smith as an expert in toxicology.’ And all
of this takes place in open court in front of the jury. While this course of action is
common practice in courtrooms in Illinois and throughout the country, we
-5- recommend against it.” (Emphases added.) Pingelton, 2021 IL App (4th) 180751,
¶ 49.
We cannot reasonably conclude that defense counsel went outside “the wide range of reasonable
professional assistance” (Strickland v. Washington, 466 U.S. 668, 689 (1984)) by refraining from
objecting to a “course of action [that was] common practice in courtrooms in Illinois and
throughout the country” (Pingelton, 2021 IL App (4th) 180751, ¶ 49).
¶ 18 III. CONCLUSION
¶ 19 For the foregoing reasons, we affirm the circuit court’s judgment.
¶ 20 Affirmed.
-6-