People v. Martinez
Opinion
2021 IL App (1st) 172097 No. 1-17-2097
SECOND DIVISION March 16, 2021 ____________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ____________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) v. ) No. 12CR22749 ) MIGUEL MARTINEZ, ) ) The Honorable Defendant-Appellant. ) Paula M. Daleo, ) Judge Presiding.
____________________________________________________________________________
JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Cobbs concurred in the judgment and opinion of the court.
OPINION
¶1 Following a bench trial, defendant, Miguel Martinez, was convicted of predatory
criminal sexual assault and aggravated criminal sexual abuse and was sentenced to 50 years’
imprisonment. On appeal, defendant seeks reversal of his convictions and the sentence imposed
thereon, arguing that his trial was conducted in contravention of his constitutional right to be
present for all critical phases of his trial as well as in violation of his rights to confrontation and a
public trial. For the reasons explained herein, we affirm the judgment of the circuit court.
¶2 I. BACKGROUND 1-17-2097
¶3 Defendant was charged with multiple sex offenses including predatory criminal sexual
assault and aggravated criminal sexual abuse based on evidence that he engaged in inappropriate
sexual contact with his eight-year-old minor daughter, B.M.
¶4 Prior to trial, the State sought leave to permit B.M. to testify via a closed-circuit television
at the upcoming trial. The State’s request was made pursuant to the recommendation of Illinois
Department of Child and Family Services (DCFS) personnel who believed that it would be
psychologically damaging to B.M. to require her to testify against her father in his presence. The
circuit court presided over a hearing on the matter and heard testimony from a clinical psychologist
treating B.M. who opined that that it would be detrimental to B.M.’s mental health if she were
required to confront her father in person and that testimony via closed-circuit television would
provide B.M. with “some semblance of safety.” Defense counsel, in turn, acknowledged that he
did not object to the State’s request to permit B.M. to testify via closed-circuit television “as long
as [defendant’s] rights [we]re protected” during the upcoming trial. Ultimately, after considering
the testimony of B.M.’s psychologist and the positions of the parties, the court granted the State’s
motion. In doing so, the court expressly found that allowing “closed circuit questioning of the
complaining witness” would protect defendant’s rights. Thereafter, defendant waived his right to
a jury trial, electing instead to proceed by way of a bench trial.
¶5 Prior to opening statements, the assistant state’s attorney (ASA) prosecuting the case
informed the court, defendant, and defense counsel how the closed-circuit television system had
been set up in anticipation of B.M.’s testimony. The ASA explained that television screen had
been set up in a nearby room where defendant could sit and hear his daughter’s testimony while
she testified in the courtroom. The room was also equipped with an “intercom phone” that would
allow defendant the opportunity to communicate in real time with his attorney. When asked if the
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set up was “satisfactory,” defense counsel responded “yes.” Defendant also acknowledged that he
understood the procedure. The court then suggested that defendant relocate to the other room
during oral arguments to ensure that the system was in proper working order prior to B.M.’s
testimony. After opening arguments concluded, defense counsel went to speak to defendant, who
reported that he had been unable to hear the opening statements. The sheriff’s deputy who
remained in the room with defendant during opening statements confirmed that the statements had
been inaudible. The ASA increased the volume of the microphone, and defense counsel indicated
that would he stand closer to the microphone when he cross-examined B.M. Thereafter, the
sheriff’s deputy indicated that he could hear defense counsel “just fine.” Accordingly, the State
requested the court to clear the courtroom of all nonessential court personnel, and B.M. was then
called upon to testify.
¶6 B.M., who was 13 years old and in the care of a foster family at the time of trial, detailed
the sexual abuse she suffered at the hands of defendant from January 2011 to November 2012.
When the abuse started, B.M. was eight years old, and she was living in an apartment with her two
sisters, three brothers, defendant, and her mother. At the apartment, her three brothers shared a
room and her mother slept in another room with B.M.’s two sisters. B.M., in turn, shared a room
with defendant. She explained that her father would sleep on the bed while she slept on a cushion
on the floor. There were certain times, however, that defendant “call[ed]” her to the bed.
¶7 B.M. testified that defendant first abused her when her mom was shopping with B.M.’s
three brothers and one of her sisters. B.M. and her youngest sister, who was a baby at the time,
were left behind with defendant. B.M. explained that she had been unable to accompany her mother
shopping because she had not been able to find her shoes. While her mother and siblings were out
shopping, defendant called B.M. to the bed and showed her an “inappropriate” video. The adults
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in the video were naked and “doing things” to each other. Defendant taught her that her “private
area” was called a “pussy” and referred to her chest area as “boobs.” He also taught her that his
penis was called a “dick.”
¶8 B.M. testified that on the occasions in which she was called to the bed with defendant, he
touched her “pussy” with his “dick.” Neither of them would be wearing underwear. Defendant
also attempted to put his “dick” in her “pussy,” which B.M. found to be “uncomfortable.” She also
found it “uncomfortable” when defendant tried to put his finger in her “pussy.” B.M. testified that
defendant made her touch his “dick” with her mouth and ordered her to “suck it.” Defendant also
touched her boobs with his hands and his mouth. He instructed her “not to tell anybody” about
their interactions. B.M. explained that she followed defendant’s instructions because he was her
father. The abuse stopped when she was examined by a doctor and removed from the care of her
parents.
¶9 On cross-examination, B.M. testified that, although she knew defendant first abused her
when she was eight years old, she did not remember specific details about the time of the year or
day of the week that the first incidence of abuse occurred. She testified that defendant used his
“flip phone” to show her the inappropriate video. After that, he tried to put his “dick” and his finger
in her “pussy” but was unsuccessful. B.M. also admitted she did not recall how much time passed
before defendant abused her again. She did recall that the second time occurred after defendant
showed her another inappropriate video on the television that was in the family room. Nobody else
was home, and she did not tell her mother, siblings, or teacher what had occurred. She did not
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2021 IL App (1st) 172097 No. 1-17-2097
SECOND DIVISION March 16, 2021 ____________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ____________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) v. ) No. 12CR22749 ) MIGUEL MARTINEZ, ) ) The Honorable Defendant-Appellant. ) Paula M. Daleo, ) Judge Presiding.
____________________________________________________________________________
JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Cobbs concurred in the judgment and opinion of the court.
OPINION
¶1 Following a bench trial, defendant, Miguel Martinez, was convicted of predatory
criminal sexual assault and aggravated criminal sexual abuse and was sentenced to 50 years’
imprisonment. On appeal, defendant seeks reversal of his convictions and the sentence imposed
thereon, arguing that his trial was conducted in contravention of his constitutional right to be
present for all critical phases of his trial as well as in violation of his rights to confrontation and a
public trial. For the reasons explained herein, we affirm the judgment of the circuit court.
¶2 I. BACKGROUND 1-17-2097
¶3 Defendant was charged with multiple sex offenses including predatory criminal sexual
assault and aggravated criminal sexual abuse based on evidence that he engaged in inappropriate
sexual contact with his eight-year-old minor daughter, B.M.
¶4 Prior to trial, the State sought leave to permit B.M. to testify via a closed-circuit television
at the upcoming trial. The State’s request was made pursuant to the recommendation of Illinois
Department of Child and Family Services (DCFS) personnel who believed that it would be
psychologically damaging to B.M. to require her to testify against her father in his presence. The
circuit court presided over a hearing on the matter and heard testimony from a clinical psychologist
treating B.M. who opined that that it would be detrimental to B.M.’s mental health if she were
required to confront her father in person and that testimony via closed-circuit television would
provide B.M. with “some semblance of safety.” Defense counsel, in turn, acknowledged that he
did not object to the State’s request to permit B.M. to testify via closed-circuit television “as long
as [defendant’s] rights [we]re protected” during the upcoming trial. Ultimately, after considering
the testimony of B.M.’s psychologist and the positions of the parties, the court granted the State’s
motion. In doing so, the court expressly found that allowing “closed circuit questioning of the
complaining witness” would protect defendant’s rights. Thereafter, defendant waived his right to
a jury trial, electing instead to proceed by way of a bench trial.
¶5 Prior to opening statements, the assistant state’s attorney (ASA) prosecuting the case
informed the court, defendant, and defense counsel how the closed-circuit television system had
been set up in anticipation of B.M.’s testimony. The ASA explained that television screen had
been set up in a nearby room where defendant could sit and hear his daughter’s testimony while
she testified in the courtroom. The room was also equipped with an “intercom phone” that would
allow defendant the opportunity to communicate in real time with his attorney. When asked if the
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set up was “satisfactory,” defense counsel responded “yes.” Defendant also acknowledged that he
understood the procedure. The court then suggested that defendant relocate to the other room
during oral arguments to ensure that the system was in proper working order prior to B.M.’s
testimony. After opening arguments concluded, defense counsel went to speak to defendant, who
reported that he had been unable to hear the opening statements. The sheriff’s deputy who
remained in the room with defendant during opening statements confirmed that the statements had
been inaudible. The ASA increased the volume of the microphone, and defense counsel indicated
that would he stand closer to the microphone when he cross-examined B.M. Thereafter, the
sheriff’s deputy indicated that he could hear defense counsel “just fine.” Accordingly, the State
requested the court to clear the courtroom of all nonessential court personnel, and B.M. was then
called upon to testify.
¶6 B.M., who was 13 years old and in the care of a foster family at the time of trial, detailed
the sexual abuse she suffered at the hands of defendant from January 2011 to November 2012.
When the abuse started, B.M. was eight years old, and she was living in an apartment with her two
sisters, three brothers, defendant, and her mother. At the apartment, her three brothers shared a
room and her mother slept in another room with B.M.’s two sisters. B.M., in turn, shared a room
with defendant. She explained that her father would sleep on the bed while she slept on a cushion
on the floor. There were certain times, however, that defendant “call[ed]” her to the bed.
¶7 B.M. testified that defendant first abused her when her mom was shopping with B.M.’s
three brothers and one of her sisters. B.M. and her youngest sister, who was a baby at the time,
were left behind with defendant. B.M. explained that she had been unable to accompany her mother
shopping because she had not been able to find her shoes. While her mother and siblings were out
shopping, defendant called B.M. to the bed and showed her an “inappropriate” video. The adults
-3- 1-17-2097
in the video were naked and “doing things” to each other. Defendant taught her that her “private
area” was called a “pussy” and referred to her chest area as “boobs.” He also taught her that his
penis was called a “dick.”
¶8 B.M. testified that on the occasions in which she was called to the bed with defendant, he
touched her “pussy” with his “dick.” Neither of them would be wearing underwear. Defendant
also attempted to put his “dick” in her “pussy,” which B.M. found to be “uncomfortable.” She also
found it “uncomfortable” when defendant tried to put his finger in her “pussy.” B.M. testified that
defendant made her touch his “dick” with her mouth and ordered her to “suck it.” Defendant also
touched her boobs with his hands and his mouth. He instructed her “not to tell anybody” about
their interactions. B.M. explained that she followed defendant’s instructions because he was her
father. The abuse stopped when she was examined by a doctor and removed from the care of her
parents.
¶9 On cross-examination, B.M. testified that, although she knew defendant first abused her
when she was eight years old, she did not remember specific details about the time of the year or
day of the week that the first incidence of abuse occurred. She testified that defendant used his
“flip phone” to show her the inappropriate video. After that, he tried to put his “dick” and his finger
in her “pussy” but was unsuccessful. B.M. also admitted she did not recall how much time passed
before defendant abused her again. She did recall that the second time occurred after defendant
showed her another inappropriate video on the television that was in the family room. Nobody else
was home, and she did not tell her mother, siblings, or teacher what had occurred. She did not
recall how many times defendant touched her inappropriately but testified that the abuse occurred
on more than those two occasions. B.M. further testified that she was unaware that there were
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problems in her parents’ marriage, and she did not know why she slept in defendant’s room while
her mother slept in another room with her sisters.
¶ 10 Dolly Martinez (Martinez), B.M.’s biological mother and defendant’s ex-wife, admitted
that she pled guilty to permitting the sexual abuse of a minor in connection with the events that
occurred between B.M. and defendant. She also acknowledged that none of her six biological
children were currently in her custody and care. Back in 2012, however, she was residing in a
Cicero apartment with her six children and defendant. Martinez confirmed that she and defendant
had slept in different rooms in the apartment. She slept in a room with two of her daughters and
her youngest son. Although she invited B.M. to sleep with her, B.M. told her that she would
“rather” sleep with defendant in his room. Martinez testified that she first became aware of B.M.’s
abuse on November 4, 2012, when she arrived home to the apartment and opened defendant’s
bedroom door. When she did so, she observed defendant on the bed with B.M. Defendant was
lying on top of B.M. Neither of them was wearing clothes. Martinez became mad and scared when
she saw defendant having sex with their daughter. Martinez testified that she attempted to speak
to defendant and B.M. later that day about what she had observed; however, defendant “just
ignored” her and B.M. “would not open up to” her. She did not let B.M. sleep in defendant’s room
after that day. Martinez acknowledged, however, that she did not immediately contact police about
what she had seen and that she had not taken her daughter to the hospital to be examined. Instead,
she took B.M. to her mother’s house.
¶ 11 Although Martinez admitted that she spoke to detectives and an ASA about the November
4, 2012, incident and provided them with a signed statement on November 11, 2012, she did not
remember telling them that she had prior knowledge of defendant’s inappropriate sexual behavior
with their daughter before she observed them in bed together. Specifically, Martinez did not recall
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telling the authorities that she had a conversation with B.M. “about a month” earlier during which
B.M. reported that she did not want to be around defendant because he was “hurting” her and
“always trying” to put his “dick” and finger in her. Martinez acknowledged that defendant owned
a “flip phone” that had been provided to him through a government program but testified that it
was not capable of playing videos. He also owned another cellular phone, but she did not know if
it could play videos. Martinez did recall observing images of defendant and B.M. on one of his
phones but denied she observed anything sexually explicit. She admitted, however, that defendant
deleted the pictures on his phone after she told him that she had looked at them. When asked to
describe the pictures she did observe on defendant’s phone, Martinez testified that she saw a
picture of B.M. with her “eyes up in the air”; however, she denied that she told detectives that she
observed a picture of B.M. with defendant’s penis in her mouth.
¶ 12 On cross-examination, Martinez testified that she only observed one instance of sexual
contact between defendant and B.M. and that her daughter had not told her about any other
incidents.
¶ 13 Jennifer Dobinson, a registered nurse employed by MacNeal Hospital, testified that she
was working in the emergency room on November 10, 2012, when she encountered B.M., who
was brought to the hospital by her mother and grandmother at the request of DCFS at
approximately 12:24 p.m. Dobinson and Dr. Diana Goodwine interviewed B.M. in a “private
location” in the hospital’s emergency department. Based on the information that B.M. relayed
during the interview, Dobinson and Dr. Goodwine escorted B.M. to a private patient room and
administered a sexual assault kit, which involved a full body examination and DNA collection.
After conducting a full body examination and observing no visible signs of physical injury,
Dobinson collected B.M.’s underwear, placed it into a bag, which she then sealed. Dobinson then
-6- 1-17-2097
took an oral swab and a blood sample from B.M. Because B.M. was eight years old and a
preadolescent, the doctor did not perform a speculum examination of her vaginal area; instead, in
accordance with protocol, Dr. Goodwine performed a “blind sweep” of B.M.’s vaginal area with
a sterile Q-tip. Dobinson testified that all of the evidence that was collected during B.M.’s
examination was put into separate bags, which were then individually sealed and put into the rape
kit. The rape kit was also then sealed and was subsequently turned over to Cicero police officer
Edgar Vera. B.M.’s family did not consent to any pictures being taken of her for evidentiary
purposes.
¶ 14 When asked additional details about her encounter with B.M., Dobinson testified that when
she presented at the emergency room, B.M. “did not appear to be female.” She explained that
B.M.’s “hair was short, almost like in a boy haircut. She was not in female-looking clothing. She
almost looked like she was a boy.” During the interview, B.M. relayed that she had taken a bath
and had urinated and defecated before arriving at the emergency room. Six days had passed from
the date of B.M.’s last sexual assault to the time that she was brought to the emergency room.
¶ 15 Dr. Goodwine confirmed that she and nurse Dobinson interviewed and examined B.M. on
November 10, 2012, at MacNeal Hospital. B.M. relayed that she had been penetrated vaginally on
Sunday and that her father had tried to rape her, but he was unsuccessful. B.M. further relayed that
the abuse had been occurring since 2011 and that she had been “too ashamed” to tell anybody.
B.M. stated that defendant placed his finger inside her, “kissed her down there” and put his penis
in her on “multiple occasions.” In addition, defendant also made B.M. kiss his private part and his
mouth. During the interview, B.M. denied that defendant engaged in similar conduct with any of
her siblings. During the physical examination that followed, Dr. Goodwine observed an
abnormality in B.M.’s genitourinary area. Specifically, she observed a small red bump on B.M.’s
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internal labia, which is not something she normally observed in an eight-year-old child. In addition,
B.M.’s hymen was partially torn and there was a superficial tear and abrasions around her vaginal
opening. Although such findings were consistent with the activities described by B.M. during her
interview, Dr. Goodwine acknowledged that other activities could cause those abnormalities,
including a biking accident or a fall from a horse.
¶ 16 On cross-examination, Dr. Goodwine acknowledged that it was not entirely abnormal for
an eight-year-old girl to have a tear in her hymen. She further acknowledged that the small red
bump, like the one that she observed on B.M.’s labia, was not necessary caused by sexual trauma.
¶ 17 Officer Robert DeCianni, a detective with the Cicero Police Department, testified that he
and his partner, Detective Juan Soto were assigned to collect a biological sample from defendant
on November 12, 2012. After obtaining defendant’s written consent authorizing the collection,
Detective DeCianni used two swabs to collect DNA from the side and back of defendant’s mouth,
placed the swabs into bags, and sealed them. Detective DeCianni then sent the swabs to the Illinois
State Police crime lab to be tested.
¶ 18 Detective DeCianni’s partner, Soto, confirmed that they were assigned to investigate
B.M.’s sexual assault and interviewed defendant during the course of their investigation on
November 12, 2012, at the Cicero Police Department. Detective DeCianni advised defendant of
his Miranda rights (see Miranda v. Arizona, 384 U.S. 436 (1966)) and obtained a signed and
initialed form from defendant waiving those rights. Thereafter, the officers asked defendant a
series of questions. Defendant’s responses to those questions were reduced to a typewritten
statement, which defendant then signed.
¶ 19 In his statement, defendant admitted that he “rubbed [B.M.’s] vagina with his hands on
three occasions” and that she was not wearing any underwear when he did so. Defendant further
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admitted that he “ma[d]e [B.M.] kiss his penis on two or three occasions.” Defendant also admitted
that he used his phone to take two pictures of B.M. kissing his penis. Defendant, however, denied
that he ever had sexual intercourse with B.M. He also denied that he ever kissed B.M.’s vagina or
her nipples. His sexual encounters with his daughter occurred between October 22, 2012, and
October 31, 2012. Although defendant did not know why he engaged in sexual contact with B.M.,
he classified himself as a “very horny guy” and admitted that he “made a huge mistake.” Defendant
denied that he engaged in inappropriate sexual contact with any of his other children.
¶ 20 On cross-examination, Detective Soto admitted that defendant’s interview was not video
recorded. He also admitted that no inappropriate pictures of B.M. were recovered from defendant’s
phone but explained that defendant admitted that he had deleted the images.
¶ 21 Tom Plach testified that, in 2012, he was a licensed clinical social worker employed by
Presence Behavioral Health at the Proviso Children’s Advocacy Center. On November 11, 2012,
he conducted a forensic victim sensitive interview (VSI) with B.M., which he described as an
“information gathering” mechanism employed during a sexual assault investigation. The VSI took
place in a room outfitted with electronic recording equipment and a one-way mirror. Before
engaging in substantive conversation, Plach ensured that B.M. knew the difference between the
truth and a lie and explained that it was okay if she did not know the answer to any of his questions.
During his interview with B.M., which was recorded, Plach used diagrams that depicted
anatomically correct “boy” and “girl” figures. B.M. drew circles on certain parts of the diagrams
during the interview when describing her interactions with defendant. After Plach confirmed that
the recording of his interview with B.M. accurately depicted his conversation with her, the court
stated that it would watch the video in chambers.
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¶ 22 ASA Sarah Karr testified that she was assigned to observe Plach’s forensic interview with
B.M. on November 11, 2012. After doing so, she relocated to the Cicero Police Department, where
she took a written statement from Martinez, B.M.’s mother. Detective Soto was also present for
the statement. In the statement, Martinez admitted she discovered three sexually explicit
photographs of B.M. on defendant’s phone. In the pictures, defendant’s penis was in B.M.’s mouth
and B.M. appeared to be “upset” in the photographs. When Martinez confronted defendant about
the pictures and asked him “why he was doing that with his daughter,” he took the phone and
deleted the pictures. Karr testified that she returned to the Cicero Police Department the following
day and interviewed defendant. Detective Soto was also present for that interview as well. After
he was advised of and waived his Miranda rights, defendant provided a statement in which he
admitted to engaging in sexual contact with B.M. Specifically, he admitted that on more than one
occasion, he removed B.M.’s pajama bottoms and touched her vagina with his hands; however, he
denied that he inserted his fingers into her vagina. Defendant also admitted that he had B.M. kiss
his penis on two occasions. On both occasions, B.M. kissed his penis with a closed mouth.
Defendant further admitted that he used his phone to take two pictures of B.M. kissing his penis.
He claimed he did so because B.M. was “curious.” He then showed the pictures to B.M. She was
the only person to whom he showed the photographs. Defendant did not know when Martinez saw
the pictures. He denied that his wife observed him and B.M. naked and in bed together on
November 4, 2012. Defendant described himself as a “very horny guy” and stated that Martinez
had stopped engaging in sexual intercourse with him two years ago. Defendant’s statement was
reduced to writing, and he signed the statement, thereby acknowledging that the details included
therein were accurate. Karr acknowledged that she did not use audio or video equipment to record
her interview with defendant.
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¶ 23 Kenan Hasanbegovic, a forensic scientist with the Illinois State Police crime lab and an
expert in the field of forensic biological analysis, testified that he conducted testing on the evidence
included in B.M.’s rape kit, which he received in a sealed condition. He first conducted testing on
B.M.’s underwear, which contained several bodily fluid stains. One of those stains tested positive
for the presence of semen and was preserved for DNA analysis. Hasanbegovic acknowledged he
did not know when or how the sperm cells appeared on the underwear that he examined.
¶ 24 Megan Neff, a forensic scientist with the Illinois State Police and an expert in the field of
forensic DNA analysis, testified that she performed testing on the samples collected in connection
with the case. She first generated DNA profiles from the preserved buccal swab standards that
were collected from defendant and B.M. She then conducted testing on the semen stain that was
present on B.M.’s underwear. Neff testified that the underwear contained a DNA mixture from
two people, one of whom was male. The male DNA profile that she discovered “match[ed]”
defendant’s DNA profile. She explained that the male profile that she identified would be expected
to occur in approximately 1 in 97 quintillion African Americans, 1 in 2.6 quintillion whites, and 1
in 6.2 quintillion Hispanic unrelated individuals.
¶ 25 After presenting the aforementioned evidence, the State rested its case. Defendant’s motion
for a directed finding was denied, and defendant elected to testify. When asked by his attorney if
he ever touched B.M. “inappropriately,” defendant testified, “Not really. I never did.” He then
specifically denied that he ever touched his daughter’s vagina or chest. He also denied that he ever
had his daughter touch his penis. Although he acknowledged that he owned a cell phone, defendant
testified that the phone did not have Internet access and that he never had pornography or
inappropriate pictures of B.M. on his phone. He also denied that he ever showed his daughter
pornography. Defendant admitted that he and Martinez had relationship “problems” in 2011 and
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2012 and that he knew she wanted to leave him. Defendant also admitted that he signed a statement
at the Cicero Police Department; however, he testified that he only did so because the officers told
him he could leave once he signed the document. He classified the officers’ actions as a “setup”
and testified that he “never” told the officers that he ever touched his daughter in an inappropriate
sexual manner. Defendant denied that he was ever provided with his Miranda rights and testified
that he never read the statement that he signed. Defendant also testified that the underwear with
the semen stain that the State introduced into evidence belonged to Martinez, not his daughter.
¶ 26 Following defendant’s testimony, the defense rested. The parties then delivered closing
arguments. After considering the evidence and the arguments of the parties, the court found
defendant guilty of multiple counts of predatory criminal sexual assault, criminal sexual assault,
and aggravated criminal sexual abuse. In doing so, the court found that B.M. “was a much more
credible witness than her father.” Moreover, the court noted that B.M.’s testimony at trial and
during her VSI was corroborated by the physical evidence detailed by Dr. Goodwine as well as by
defendant’s own statement. In contrast, found defendant’s testimony “totally incredible” and noted
that his claim that that the underwear that was introduced at trial belonged to Martinez was refuted
by the DNA evidence. Moreover, the fact that defendant’s semen was found on that underwear
that he claimed belonged to Martinez was inconsistent with his testimony that they had not had
intercourse in two years.
¶ 27 Defendant’s posttrial motion was denied, and the cause proceeded to a sentencing hearing,
where the court, after considering the evidence presented in aggravation and mitigation, sentenced
defendant to a total of 50 years’ imprisonment. This appeal followed.
¶ 28 II. ANALYSIS
¶ 29 A. Defendant’s Absence During Opening Statements
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¶ 30 On appeal, defendant argues that his trial was conducted in contravention of a number of
his constitutional rights. He first argues that he was denied his constitutional right to be present
for all critical stages of his trial when he was absent from the courtroom during opening
statements. Although he was taken to another room to listen to and observe the statements, the
audio equipment was not calibrated properly, and he was unable to hear those statements.
¶ 31 The State, in turn, responds that defendant waived his right to be present when he agreed
to view the opening statements via closed-circuit television and, as such, may not avail himself
of the plain error doctrine. Alternatively, the State observes that defendant failed to raise this
issue in a posttrial motion and submits that he is not entitled to relief under the plain error
doctrine because “his physical absence in the courtroom did not result in an unfair trial or a
violation of an underlying substantial right.”
¶ 32 As a threshold matter, defendant acknowledges that he failed to properly preserve his
claims that his trial was conducted in contravention of his constitutional rights. Specifically, he
failed to object to each of the purported constitutional violations at trial and failed to include
them in a posttrial motion. See People v. Enoch, 122 Ill. 2d 176, 186 (1988) (recognizing that to
properly preserve an issue for appeal, a defendant must object to the purported error at trial and
specify the error in a posttrial motion and that his failure to satisfy both requirements results in
forfeiture of appellate review of his claim). In an effort to avoid forfeiture, however, defendant
invokes the plain error doctrine, which provides a limited exception to the forfeiture rule and
allows for review of forfeited issues on appeal if the evidence is closely balanced or the error is
of such a serious magnitude that it affected the integrity of the judicial process and deprived the
defendant of his right to a fair trial. Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967); People v. Belknap,
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2014 IL 117094, ¶ 48; People v. Sargent, 239 Ill. 2d 166, 189 (2010); People v. Piatkowski, 225
Ill. 2d 551, 564-65 (2007).
¶ 33 The plain error doctrine, however, only applies to claims that are forfeited, not waived.
People v. Schoonover, 2019 IL App (4th) 160882, ¶ 15. Although sometimes mistakenly used
interchangeably, the doctrines of waiver and forfeiture are distinct. People v. Sophanavong, 2020
IL 124337, ¶ 20. Waiver differs from forfeiture in that waiver “ ‘is an intentional relinquishment
or abandonment of a known right or privilege’ ” whereas forfeiture is the “ ‘failure to make the
timely assertion of [a] right’ ” or privilege. Id. (quoting People v. Lesley, 2018 IL 122100, ¶¶ 36-
37). When constitutional rights are implicated, waivers “ ‘not only must be voluntary but must be
knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely
consequences.’ ” People v. Johnson, 75 Ill. 2d 180, 187 (1979) (quoting Brady v. United States,
397 U.S. 742, 748 (1970)). Unlike waiver, “[f]orfeiture results in the loss of a right regardless of
the defendant’s knowledge thereof and irrespective of whether the defendant intended to
relinquish the right.” Lesley, 2018 IL 122100, ¶ 37.
¶ 34 In this case, prior to trial, the court held that B.M. would be permitted to testify via
closed-circuit television. In accordance with the court’s prior ruling, a television was set up in a
room close to the courtroom where defendant could observe his daughter’s testimony. The room
was also equipped with an intercom phone that defendant could use to communicate with his
attorney during his daughter’s testimony. The setup was explained to defendant and defense
counsel immediately before the trial began. When the court inquired whether the setup was
“satisfactory,” defense counsel responded, “yes.” The court then addressed defendant to assess
whether he understood the process by which he would be viewing his daughter’s testimony, and
he responded, “yes.” Thereafter, to ensure that the equipment was in proper working order, the
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trial court suggested that defendant observe opening statements from that room. Neither
defendant nor his attorney voiced any objection to the court’s suggestion, and defendant left the
courtroom to listen to and observe opening statements via the closed-circuit television system.
After opening statements concluded, the court and the attorneys were informed that defendant
had been unable to hear the statements. The lack of audio was also corroborated by the sheriff’s
deputy who was monitoring defendant. Accordingly, the parties examined the audio equipment
and adjusted the microphone settings, and defense counsel indicated he would stand closer to the
microphone when he spoke in the courtroom.
¶ 35 Based on these facts, we do not find that defendant waived his claim pertaining to his
absence during opening statements. Although defendant apparently willingly exited the
courtroom to listen to, and view, opening statements, he was never specifically advised of his
constitutional right to be present. Moreover, there is no dispute that he was unable to hear those
statements due to problems with the audio portion of the closed-circuit television system. His
apparent willingness to absent himself from the courtroom during oral arguments was based
upon an implied understanding that he would actually be able to see and hear those arguments.
That, however, did not occur. Mindful that the principles of waiver should be liberally construed
in favor of a defendant (People v. Phipps, 238 Ill. 2d 54, 62 (2010)), we do not find that the
record supports a finding that defendant knowingly and voluntarily waived his right to be
physically present for opening statements. See, e.g., People v. Stroud, 208 Ill. 2d 398, 403, 409
(2004) (declining to find that the defendant waived his right to be present for plea proceedings
where he was not specifically informed of his right to be present and thus “did not specifically
waive his right to be bodily in the courtroom”). Accordingly, we will review his claim for plain
error. The first step in any plain error analysis is to determine whether any error actually
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occurred. Piatkowski, 225 Ill. 2d at 565; People v. Rinehart, 2012 IL 111719, ¶ 15. If an error is
discovered, defendant then bears the burden of persuasion to show that the error prejudiced him.
Sargent, 239 Ill. 2d at 189-90. Keeping this standard in mind, we turn now to evaluate the merit
of defendant’s claim.
¶ 36 The federal and Illinois state constitutions both “afford criminal defendants the general
right to be present, not only at trial, but at all critical stages of the proceedings, from arraignment
to sentencing.” People v. Lindsey, 201 Ill. 2d 45, 55 (2002). A defendant’s right to be present,
however, is not considered to be a substantial constitutional right; rather, it is a “ ‘lesser right’
that is intended to secure the substantial rights of a defendant, such as the right to confront
witnesses, the right to present a defense, or the right to an impartial jury.” People v. Johnson, 238
Ill. 2d 478, 487 (2010). In addition to being a lesser right, a defendant’s right to be present is not
absolute. Lindsey, 201 Ill. 2d at 56; People v. Lucas, 2019 IL App (1st) 160501, ¶ 12. “ ‘[The]
privilege of presence is not guaranteed “when presence would be useless, or the benefit but a
shadow” ’ ”; however, “ ‘due process clearly requires that a defendant be allowed to be present
“to the extent a fair and just hearing would be thwarted by his absence” ’ ” Lindsey, 201 Ill. 2d at
56-57 (quoting Kentucky v. Stincer, 482 U.S. 730, 745 (1987)). Moreover, a defendant can waive
his right to be present by consenting to be absent for a portion of a proceeding or through his
own misconduct. Id. at 56. Accordingly, “even where a defendant has the general right to be
present because the proceeding is a ‘critical’ stage, a defendant’s absence is not a per se
constitutional violation.” Id. at 57. Instead, the defendant’s right to be present will be found to be
violated “only if the record demonstrates that defendant’s absence caused the proceeding to be
unfair or if his absence resulted in a denial of an underlying substantial right.” Id.; see also
People v. Hood, 2016 IL 118581, ¶ 31 (categorizing the right to be present as a “ ‘lesser right,’
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meaning that the right is violated only when the defendant’s absence results in the loss of an
underlying substantial right or in an unfair proceeding”). Whether a defendant’s absence affected
the fairness of his trial depends on a review of the record as a whole and depends upon the
specific nature of the proceeding from which he was absent. Lucas, 2019 IL App (1st) 160501,
¶ 13.
¶ 37 In this case, although we do not condone the procedure by which the court and the parties
tested the closed-circuit television system, which resulted in defendant being unable to hear the
parties’ opening statements, we do not find that defendant’s absence from the courtroom during
opening statements and his inability to hear those statements resulted in an unfair trial or the
denial of an underlying substantial right. While defendant suggests that his inability to hear the
State “announce its chosen theory of the case” during opening statements resulted in him being
“deprived of necessary information to allow him to intelligently exercise his right to testify, or to
refrain from testifying, on his own behalf,” we cannot agree. It is true that a defendant should be
made aware of “all of the State’s evidence” when exercising his right to decide whether or not to
testify on his own behalf. (Emphasis in original.) Id. ¶ 19. Opening statements, however, are not
evidence (People v. Jaimes, 2014 IL App (2d) 121368, ¶ 56); rather, opening statements serve to
outline the expected evidence and the reasonable inferences that may be drawn from that
evidence (People v. Arroyo, 339 Ill. App. 3d 137, 149 (2003)). Here, there is no dispute that
defendant heard all of the State’s evidence against him prior to exercising his right to testify.
That is, defendant made his decision to testify after hearing testimony from his daughter, his ex-
wife, medical personnel, forensic scientists, and police detectives. As such, his absence from the
courtroom during opening statements and his inability to hear those statements did not prevent
him from making a fully informed decision as to whether or not to testify. Because defendant’s
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absence from the courtroom during opening statements did not result in an unfair trial or result in
the denial of an underlying substantial right, we find no constitutional violation. See, e.g.,
Lindsey, 201 Ill. 2d at 60 (finding the defendant’s absence during his arraignment and jury
waiver did not amount to a constitutional violation where it did not cause the proceedings to be
unfair or result in a denial of an underlying constitutional right). Having found no error, there can
be no plain error. Hood, 2016 IL 118581, ¶ 18.
¶ 38 B. Defendant’s Absence from the Courtroom During B.M.’s Testimony
¶ 39 In a related claim, defendant next challenges the procedure by which the court permitted
B.M. to testify. Although he acknowledges that section 106B-5 of the Code of Criminal
Procedure of 1963 (Code) (725 ILCS 5/106B-5 (West 2012)) provides a mechanism by which
minor victims of sexual assault may testify via closed-circuit television, he argues that the circuit
court failed to follow the procedure outlined in the statute. Defendant submits that the court’s
failure to abide by the statute resulted in the denial of his right to be present at every critical
stage of his trial, “which in turn infringed on his underlying substantial rights to confrontation
and the assistance of counsel.”
¶ 40 The State again argues that defendant waived his claim because he acquiesced to the
manner in which B.M. was permitted to testify, which resulted in his exclusion from the
courtroom. On the merits, the State contends that defendant’s “viewing of B.M.’s testimony via
closed-circuit television did not violate his right to be present, nor infringe on his underlying
substantial rights to confrontation and the assistance of counsel.”
¶ 41 Having already discussed the relevant law concerning a criminal defendant’s right to be
present for all critical stages of his trial, we will now set forth the relevant law concerning a
defendant’s right to confrontation, which is provided for in both the federal and Illinois state
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constitutions. U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8 (amended 1994). “The central
concern of the confrontation clause is to ensure the reliability of the evidence against a criminal
defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the
trier of fact.” People v. Lofton, 194 Ill. 2d 40, 56 (2000). The constitutional right to confrontation
includes the right to hear and view a witness as he or she testifies and to aid in counsel’s cross-
examination of that witness. Id. at 60; see also Hood, 2016 IL 118581, ¶ 19 (“The confrontation
clause ‘provides two types of protections for a criminal defendant: the right physically to face
those who testify against him, and the right to conduct cross-examination’ ” (quoting Pennsylvania
v. Ritchie, 480 U.S. 39, 51 (1987) (opinion of Powell, J., joined by Rehnquist, C.J., and White and
O’Connor, JJ.))). Although the constitutional right to confrontation includes a preference for face-
to-face confrontation, testimony delivered through electronic means does not necessarily result in
a violation of a defendant’s constitutional right. See Maryland v. Craig, 497 U.S. 836, 851-52
(1990) (holding that the “use of the one-way closed circuit television procedure, where necessary
to further an important state interest, does not impinge upon the truth-seeking or symbolic purposes
of the Confrontation Clause”); see also People v. Cuadrado, 214 Ill. 2d 79, 89 (2005) (recognizing
that “[w]hile the confrontation clause represents a preference for face-to-face confrontation, that
preference ‘must occasionally give way to considerations of public policy and the necessities of
the case’ ” (internal quotation marks omitted)).
¶ 42 In Illinois, section 106B-5 of the Code, provides a mechanism through which minor victims
of sex crimes can testify electronically outside of the immediate physical presence of a criminal
defendant. Specifically, the statute provides as follows:
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“(a) In a proceeding in the prosecution of [certain enumerated sex offenses], a court may
order that the testimony of a victim who is a child under the age of 18 years *** be taken
outside the courtroom and shown in the courtroom by means of a closed circuit television if:
(1) the testimony is taken during the proceeding; and
(2) the judge determines that testimony by the child victim *** in the courtroom will
result in the child *** suffering serious emotional distress ***.
***
(f) The defendant shall be allowed to communicate with the persons in the room where the
child *** is testifying by any appropriate electronic method.” 725 ILCS 5/106B-5 (West 2012).
¶ 43 Initially, we note that defendant does not contest the propriety of the court’s ruling allowing
B.M. to testify via closed-circuit television to prevent her from experience adverse psychological
effects if forced to confront him in person; rather, he simply challenges the manner in which B.M.’s
closed-circuit television testimony took place. We agree with defendant that the specific procedure
outlined in section 106B-5 was not followed. As explained above, the statute permits a minor to
testify “outside the courtroom and” have his or her testimony “shown in the courtroom by means
of a closed[-]circuit television.” Id. § 106B-5(a). In this case, however, B.M. testified in the
courtroom and defendant was relocated to a nearby room to view her testimony via closed-circuit
television.
¶ 44 Although the procedure outlined in section 106B-5 was not adhered to, the State argues
that defendant and defense counsel were aware of, and agreed to, the manner in which the closed-
circuit television system was set up. Indeed, the record reveals that, prior to trial, the ASA
explained the setup and offered to have the court and defense counsel inspect it. The court then
asked defense counsel whether the setup was “satisfactory,” and defense counsel, responded, “Yes,
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your Honor.” The court next addressed defendant and asked whether he understood the procedure,
and defendant responded, “Sure.” The court went on to explain, “[F]or at least one witness, you
will be in the back. All other witnesses, we’ll have you out here. Okay?” Defendant, in turn,
responded, “Sure.” He then left the courtroom to view B.M.’s testimony from the other room.
Based on these facts, the State argues that that defendant waived rather than forfeited his challenge
to the manner in which the closed-circuit television system was employed in this case. That is, by
failing to raise any objection and voluntarily leaving the courtroom will full knowledge of the
manner in which he would be observing B.M.’s testimony, the State argues that defendant
knowingly and voluntarily waived his right to be present in court for her testimony. We disagree.
Although the record clearly demonstrates that defendant was aware of the process through which
B.M. would be testifying and raised no objection, he was never specifically advised of his
constitutional right to be present. We reiterate that the principles of waiver should be liberally
construed in favor of a defendant (Phipps, 238 Ill. 2d at 62) and conclude that the record does not
support a finding that defendant knowingly and voluntarily waived his right to be physically
present for B.M.’s testimony. See, e.g., People v. Salgado, 2012 IL App (2d) 100945, ¶ 17 (finding
that the defendant did not waive his right to be physically present during the minor victim’s
testimony where “nothing in the record shows that defendant understood that he had a right to be
present”).
¶ 45 Having found that defendant forfeited rather than waived his claim, we still nonetheless
conclude that he is not entitled to any relief under the plain error doctrine because he is unable to
show that his absence from the courtroom resulted in an unfair proceeding or caused him to be
denied an underlying substantial constitutional right. Although defendant argues that his absence
from the courtroom during B.M.’s testimony infringed on his constitutional right to confrontation
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and to assist in his own defense, courts have held that a defendant’s constitutional right to
confrontation is not violated when the defendant is permitted to cross-examine the child who is
testifying via closed circuit television in accordance with the protections afforded by section 106B-
5 of the Code. See, e.g., Lofton, 194 Ill. 2d at 59-60 (recognizing that a statutory scheme that
permits a child victim to testify via closed-circuit television does not violate a defendant’s right to
confrontation where the child testifies under oath and under the “ ‘watchful eyes of the parties and
the fact finder’ ” and is subject to contemporaneous cross-examination (quoting People v. Van
Brocklin, 293 Ill. App. 3d 156, 169 (1997))); People v. Pope, 2020 IL App (4th) 180773, ¶ 38
(holding that “[a] defendant’s confrontation clause rights are not violated when the defendant is
allowed to cross-examine the witnesses testifying pursuant to section 106B-5”).
¶ 46 Here, there is no dispute that B.M. testified under oath under the watchful eyes of the
parties and the fact-finder and was subject to contemporaneous cross-examination. Unlike the
problems that arose during opening statements, there is no evidence in the record that defendant
was unable to see or hear B.M.’s testimony. Although defendant suggests that there is no evidence
that the intercom phone that was available to him to converse with his attorney and assist in
counsel’s cross-examination of his daughter was “even operable,” we emphasize that there is
nothing in the record to suggest that the intercom system was not in proper working order. See
In re Linda B., 2017 IL 119392, ¶ 43 (noting that “on appeal, the party claiming error has the
burden of showing any irregularities that would justify reversal” and that “[e]rror is never
presumed by a reviewing court; it must be affirmatively shown by the record”). Defendant,
however, also suggests that the fact that there was a sheriff’s deputy in the room where he watched
B.M.’s testimony further impaired his ability to communicate with counsel and assist in his
defense. We note, however, that even if defendant had been in the courtroom during B.M.’s
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testimony, other people would have also been located in close proximity to him if and when he
conferred with counsel, including the ASA prosecuting the case and the sheriff’s deputy in charge
of securing the courtroom. In either instance, defendant would be required to speak quietly to avoid
being overheard. Ultimately, based on the record, there is no evidence that defendant’s absence
from the courtroom significantly impaired his right to communicate with counsel and assist in his
own defense or violated his constitutional confrontation rights. See, e.g., Lindsey, 201 Ill. 2d at 60
(recognizing that while the use of a closed-circuit system affected the defendant’s ability to confer
privately with counsel, the record did not support a finding that the defendant was denied adequate
representation due to his absence from the courtroom). Indeed, there is no evidence that
defendant’s absence from the courtroom during B.M.’s testimony resulted in an unfair proceeding
or resulted in the denial of an underlying substantial right. Accordingly, we find no constitutional
violation. See id. Absent a violation, there is no plain error. Hood, 2016 IL 118581, ¶ 18.
¶ 47 C. Exclusion of Other Individuals from the Courtroom During B.M.’s Testimony
¶ 48 Defendant next argues that he was denied his right to a public trial when the court
excluded members of the public from the courtroom during B.M.’s testimony pursuant to section
115-11 of the Code (725 ILCS 5/115-11 (West 2012)).
¶ 49 The State again responds that defendant waived review of his claim because he did not
object to the court’s decision to exclude certain individuals from the courtroom during B.M.’s
testimony. On the merits, the State submits that the partial closing of the courtroom did not
violate defendant’s constitutional right to a public trial.
¶ 50 As a threshold matter, we note that there is no dispute that defendant failed to object to
the exclusion of several individuals from the courtroom during B.M.’s testimony. We decline,
however, the State’s invitation to equate defendant’s failure to object as an affirmative
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acquiescence and waiver of his right to a public trial. See Sophanavong, 2020 IL 124337, ¶ 20
(explaining that waiver “ ‘is an intentional relinquishment or abandonment of a known right or
privilege’ ” whereas forfeiture is the “ ‘failure to make the timely assertion of [a] right’ ” or
privilege (emphasis added) (quoting Lesley, 2018 IL 122100, ¶¶ 36-37)). Accordingly, we will
review his claim for plain error.
¶ 51 Criminal defendants are afforded a constitutional right to a public trial. U.S. Const.,
amends. VI, XIV; Ill. Const. 1970, art. I, § 8 (amended 1994). The right to a public trial
encompasses the right to publicly present evidence and witnesses. People v. Groebe, 2019 IL App
(1st) 180503, ¶ 37. This right, which exposes the legal process, is designed primarily to protect the
accused (id. ¶ 32), but it also serves to protect interests that do not belong solely to a defendant,
including the general public and the press (People v. Radford, 2020 IL 123975, ¶ 25). For example,
the “[o]penness in court proceedings may improve the quality of testimony, induce unknown
witnesses to come forward with relevant testimony, cause all trial participants to perform their
duties more conscientiously, and generally give the public an opportunity to observe the judicial
system.” Gannett Co. v. DePasquale, 443 U.S. 368, 383 (1979).
¶ 52 Section 115-11 of the Code allows for the “limited” exclusion of witnesses during the
testimony of a minor victim of certain sex offenses (People v. Williams, 2016 IL App (3d) 130901,
¶ 19) and provides as follows:
“In a prosecution for [certain sex offenses, including predatory sexual assault of a child],
where the alleged victim of the offense is a minor under 18 years of age, the court may
exclude from the proceedings while the victim is testifying, all persons, who, in the opinion
of the court, do not have a direct interest in the case, except the media.” 725 ILCS 5/115-
11 (2012).
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¶ 53 The plain language of the statute places three conditions on a partial courtroom closure
during a minor victim’s testimony: (1) the trial court cannot exclude the media, (2) the trial court
may only exclude persons who do not have a direct interest in the case, and (3) the exclusion of
individuals without a direct interest in the case cannot extend beyond the minor victim’s
testimony. Schoonover, 2019 IL App (4th) 160882, ¶ 23. Persons with a direct interest in the
case include a defendant’s immediate family. See People v. Falaster, 173 Ill. 2d 220, 228 (1996).
Courts have held that a defendant’s right to a public trial is not violated when the circuit court
adheres to the narrow exclusionary powers outlined in the statute. Id.; see also Schoonover, 2019
IL App (4th) 160882, ¶ 43 (“an order by the trial court excluding spectators from the proceeding
is sufficient where it satisfies section 115-11 of the Code”); Williams, 2016 IL App (3d) 130901,
¶ 20 (“[A]n exclusionary order under section 115-11 of the Code is valid if it meets the
requirements of the statute.”).
¶ 54 Here, prior to B.M.’s testimony, the following discussions were had about excluding
witnesses during B.M.’s testimony:
“[ASA]: Judge, at this time, we would ask for the child’s testimony, that the
courtroom be cleared of everyone, non-essential court personnel, except for her therapist,
the victim witness assistant from the State’s Attorney’s Office, and her foster family, if
they choose to stay.
THE COURT: Who are those people then that you’re asking to stay in? Just that back
row there?
[ASA]: If the family chooses to stay, I guess just those four individuals back there. Or
actually just the three. I don’t know that—
THE COURT: Why is she—off the record for a moment.
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(Whereupon a discussion was had off the record.)
“THE COURT: I want you two ladies to sit outside. Do you want to call your first
witness?
[ASA]: Yes, Judge. Coming in right now.
THE COURT: [B.M.], come on up. For the record, I’ve asked the mom’s family to
leave but the other person can stay.”
¶ 55 Defendant argues that the ambiguity of the aforementioned exchange and the lack of
clarity as to the identities of the excluded persons and whether or not they had a direct interest in
the case justifies a finding that his right to a public trial was violated. We disagree. Although we
acknowledge the lack of clarity in the record as to exact identities of the excluded individuals, it
is evident that the court engaged in a discussion off the record, after which it directed two of the
three individuals seated in the back row of the courtroom to “sit outside” during B.M.’s
testimony. Those two individuals were apparently members of “the mom’s family.” Because
B.M. was living with a foster family, the court could have either been referring to family
members of B.M.’s foster mother, or family members of B.M.’s biological mother. Either way, it
is clear that the individuals excluded were not members of defendant’s immediate family who
necessarily have a direct interest in the case. See, e.g., Falaster, 173 Ill. 2d at 225, 228
(recognizing that persons with a direct interest in the case include a defendant’s immediate
family and concluding that the circuit court did not err in excluding “two nephews of the
defendant and the grandfather of one of the nephews” because they were “not members of the
defendant’s immediate family and thus did not have a direct interest in the outcome of the case”).
Indeed, defendant has not identified any person with a direct interest in the case who was
improperly excluded.
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¶ 56 We acknowledge that the court’s decision to exclude two of the three persons seated in
the back of the courtroom was made following an off the record discussion and emphasize that
the better practice would undoubtably be for the trial court to make its findings on the record.
Nonetheless, because the trial court is presumed to know and follow the law absent evidence to
the contrary (In re Jonathon C.B., 2011 IL 107750, ¶ 72), we necessarily presume that the court
properly ascertained whether or not the persons seated in the courtroom had a direct interest in
the case and excluded only those individuals who did not. Accordingly, because the record does
not support a finding that the court violated the requirements of section 115-11 of the Code, we
reject defendant’s argument that he was denied his constitutional right to a public trial. See
Williams, 2016 IL App (3d) 130901, ¶ 22 (rejecting the defendant’s argument that he was denied
the right to a public trial where the court conducted a discussion off the record prior to excluding
certain individuals during the minor victim’s testimony, reasoning: “Since trial judges are
presumed to follow the law [citation], we presume that the judge allowed all those identified with
a direct interest in the case to be present during [the minor-victim’s] testimony. While a better
practice would have been to make those findings on the record, we cannot say that the trial court
abused its discretion.”).
¶ 57 In so finding, we are unpersuaded by defendant’s reliance on Schoonover, 2019 IL App
(4th) 160882. In that case, the Fourth District found that the trial court violated the defendant’s
right to a public trial when it sua sponte excluded individuals from the courtroom during the
minor-victim’s testimony without first determining whether they had a direct interest in the case
and thus failed to comply with the requirements of section 115-11 of the Code. Id. ¶ 26.
Although defense counsel “brought the presence of defendant’s ‘family members’ to the court’s
attention,” the record showed that the court directed them out of the courtroom “without making
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any inquiry into those individuals or their interest in the case.” Id. ¶ 29. The Fourth District
concluded: “The court’s failure to make any inquiry indicates that it did not make an informed
decision as to whether the family members brought to its attention had a direct interest in the
proceedings prior to excluding them. Such action amounted to a blanket exclusion *** and
constituted a violation of statutory requirements.” Id.
¶ 58 Unlike the situation in Schoonover, where the record definitively showed that the circuit
court failed to abide by the stringent requirements of section 115-11 of the Code prior to
excluding individuals from the courtroom during the minor victim’s testimony, the record in this
case contains no such evidence. Therefore, we do not find that Schoonover compels a different
result. Accordingly, we reject defendant’s claim that the circuit court deprived him of his right to
a public trial when it excluded certain individuals from the courtroom during B.M.’s testimony.
Absent error, there is no plain error. Hood, 2016 IL 118581, ¶ 18.
¶ 59 D. Court’s Decision to View B.M.’s VSI Video Outside of the Courtroom
¶ 60 Defendant next argues that the circuit court also violated his right to be present and his
right to a public trial when it viewed the video of B.M.’s VSI outside of the courtroom and
outside of the presence of him and his attorney.
¶ 61 The State again argues that defendant waived appellate review of his claim because he
failed to object and through his conduct, “affirmatively acquiesced to the circuit court’s viewing
of the properly admitted VSI interview outside of the courtroom.” On the merits, the State
contends that “defendant’s rights to be present and to a public trial were not implicated, much
less violated where the court viewed B.M.’s properly admitted VSI video outside of the
courtroom.”
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¶ 62 The record shows that prior to trial, the parties litigated the admissibility of the recording
of B.M.’s VSI. After a hearing on the merits, the circuit court found the recording admissible.
Thereafter, at trial, licensed clinical social worker Plach testified that he conducted a forensic
VSI with B.M. on November 11, 2012. The VSI was recorded, and Plach confirmed that the
recording accurately depicted his interview with B.M. The video was then entered into evidence.
Thereafter, the following discussions were had about the video:
“[ASA]: [D]o you want me to publish the video today? That would take about 54
minutes.
THE COURT: I’m not going to sit here and watch it.
[ASA]: Okay. You’ll watch it in chambers then.
THE COURT: Yes. Because, obviously this is going to be more than one court date.
So, I could view the video in chambers unless, you want to put it back in front of—
[ASA]: I don’t. I just wanted to take the Court’s temperature on that. Then, I would
ask for a ten-minute recess, Judge.
THE COURT: Okay. All right we’ll take ten minutes.”
¶ 63 Thereafter, at the conclusion of the first day of trial, the parties again discussed the VSI,
and the court ensured that defendant would have the opportunity to view the VSI before the
second day of trial resumed. The following discussion was had on the record.
“THE COURT: So we’re going to stop the witness testimony today. I believe that the
defendant should be able to view the VSI which is about an hour long.
[ASA]: Approximately 54 minutes.
THE COURT: Okay. And I don’t care where that takes place as long as [defense
counsel] is with him.
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[DEFENSE COUNSEL]: And the deputy sheriff, I assume.
THE COURT: And the deputy sheriff. So they can either be here in the room or in the
back room or in the back room where the TV is set up. Whatever your pleasure is. ***
All I’m concerned about is that the defendant view the VSI. He has a right to view it. I
don’t have to be here for that. The State doesn’t necessarily have to be here for that
because there’s no questioning that’s going on. It just has to be published, and he has to
view it. And I have more than enough time to view it again, even though I did view it
once before in the motion, prior to the next date where we’re going to have testimony.”
¶ 64 The trial was then continued for several weeks. When the trial resumed, defense counsel
addressed the court as follows:
“Judge, on the last court date, you wanted me to sit with my client with the Victim
Sensitive Interview in the jury room. We did do that after court broke for the day;
watched it all the way through with the sheriff. I just wanted to put it on the record he has
seen it.”
No further discussions were had on the record about the VSI until the court delivered its guilty
verdict. In finding defendant guilty, the court expressly found B.M.’s trial testimony and her
statements in her VSI to be credible and supported by the physical evidence.
¶ 65 Although there is no dispute that defendant did not object to court’s decision to view the
VSI in chambers, we again decline the State’s invitation to equate a lack of objection to an
affirmative acquiescence. As such, we find that defendant forfeited rather than waived his claim,
and we will review his claim for plain error. See generally Sophanavong, 2020 IL 124337, ¶ 20.
¶ 66 Although the right to a public trial encompasses the right to publicly present evidence and
witnesses, this court has held that a defendant’s right to a public trial is not implicated when
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properly admitted evidence is viewed outside the courtroom by the trier of fact. See Groebe,
2019 IL App (1st) 180503. In Groebe, the defendant, who was on trial for DUI, challenged the
circuit court’s decision to view the video recording of the defendant’s traffic stop and field
sobriety tests in chambers during a break in the bench trial, arguing that manner in which the
court viewed the video violated her constitutional right to a public trial. Id. ¶ 31. On review, we
observed that “cases addressing a defendant’s right to a public trial have largely involved the
trial court’s actual closure of the courtroom for some portion of the trial or the exclusion of some
individuals from the courtroom” and that there were no cases finding that a defendant’s right to a
public trial was violated when a court viewed publicly admitted evidence privately in chambers.
Id. ¶ 36. We emphasized that although the court did not view the video in open court, the officer
who conducted the defendant’s traffic stop testified in open court that he had reviewed the video
of the stop and that it accurately depicted the stop and the defendant’s performance of the field
sobriety tests. Id. ¶ 37. Accordingly, we concluded that the court’s viewing of the traffic stop
video in chambers “did not implicate defendant’s right to a public trial” (id. ¶ 38) because
“there was no closure of the courtroom or exclusion of the public from the courtroom.
Rather, the foundation for the video of defendant’s traffic stop was laid in open court, and
the video was proffered into evidence in open court. The right to a public trial is not
implicated where evidence is presented in open court, and that right does not extend to
the viewing of exhibits by the public” (id. ¶ 40).
This court further found that the trial court’s viewing of the traffic stop video in chambers did
not violate the defendant’s right to be present for all critical stages of her trial either as there was
no evidence that the defendant’s absence rendered the proceedings unfair or resulted in the denial
of a substantial right. Id. ¶ 51. In so finding, we reasoned that the defendant’s substantial
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underlying right to confrontation was not violated because the officer who conducted the traffic
stop depicted in the video was subject to cross-examination in open court. Id. ¶¶ 51-52. In
addition, there was no evidence that the court’s private viewing of the video prejudiced the
defendant’s underlying substantial right to assist in her own defense and decide whether to
testify. Id. ¶ 52. Accordingly, we rejected the defendant’s claims of constitutional error. Id.
¶ 67 Here, as in Groebe, the video at issue was authenticated by a witness who testified in
open court and the video was then admitted into evidence. Specifically, Plach, the clinical social
worker who conducted B.M.’s VSI, testified in open court that he reviewed the recording and
that it accurately portrayed his encounter with B.M. The court then viewed the publicly admitted
video privately in chambers. Based on these facts, defendant’s claim that the circuit court’s
private viewing of the VSI violated his constitutional right to a public trial lacks merit. See id.
¶ 40. Moreover, as in Groebe, there is no evidence that circuit court’s viewing of the video
privately in chambers resulted in a violation of defendant’s right to be present for all critical
stages of his trial, as there is no evidence that the procedure resulted in an unfair trial or the
denial of an underlying substantial constitutional right. Because Plach was subject to in-court
cross examination about the video, defendant’s underlying substantial right to confrontation was
not violated. See id. ¶¶ 51-52. Moreover, given that defendant viewed the VSI and was aware of
the contents thereof prior to deciding to exercise his right to testify in his own defense, there is
no evidence that circuit court’s private viewing of the VSI video prevented him from assisting in
his own defense or from making a fully informed decision to exercise his right testify. See id.
¶ 52.
¶ 68 In so finding, we do not find that this court’s decision in Lucas, 2019 IL App (1st)
160501, compels a different result. In that case, the circuit court, like the court in Groebe,
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viewed a video of the defendant’s traffic stop in chambers outside of the presence of the
defendant. Id. ¶¶ 5-6. After viewing the video in chambers outside of the defendant’s presence,
the court then admitted the video into evidence and expressly relied on the video to find the
defendant guilty of DUI and several other offenses. Id. ¶¶ 6-7. On review, we found that the
manner in which the circuit court viewed the video of the defendant’s traffic stop amounted to a
violation of her right to be present for all critical stages of the proceeding because it infringed on
her underlying right to “view the evidence against her and aid in her own defense.” Id. ¶ 14. In so
finding, we emphasized that the traffic stop video “involved a significant portion of the evidence
against” the defendant and that there was no “affirmative evidence” that the defendant had ever
seen the video. Id. ¶¶ 15-16. Without viewing the video, we found that the defendant could not
have made a fully informed decision whether to exercise her constitutional right to testify. Id.
¶¶ 19-20. Accordingly, because we concluded that the court’s viewing of the video at issue
outside of the defendant’s presence had a “cascading impact on [her other] fundamental rights,”
we reversed the defendant’s conviction and remanded the cause for a new trial. Id. ¶ 21.
¶ 69 The facts in this case differ markedly from the facts in Lucas because the record is clear
that defendant viewed the video at issue. After Plach authenticated B.M.’s video and it was
admitted into evidence, the circuit court ensured that defendant viewed the video before the State
presented any additional evidence. Defense counsel confirmed on the record that defendant had
viewed the video in his presence. Unlike Lucas, defendant was thus aware of all the evidence
against him prior to exercising his right to testify. Therefore, the court’s private viewing of the
video in chambers did not impact the fairness of defendant’s trial or violate any of defendant’s
substantial constitutional rights. Having found no error, there is no plain error. Hood, 2016 IL
118581, ¶ 18.
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¶ 70 Moreover, having rejected each of defendant’s individual claims of constitutional error,
we necessarily reject his claim that he is entitled to a new trial based on the “cumulative effect”
of the purported errors. See People v. Green, 2017 IL App (1st) 152513, ¶ 118 (“There generally
is no cumulative error were the alleged errors do not amount to reversible error on any individual
issue.”). Our review of the record shows that defendant’s trial was not conducted in
contravention of any of his constitutional rights. We therefore affirm the judgment of the circuit
court.
¶ 71 III. CONCLUSION
¶ 72 The judgment of the circuit court is affirmed.
¶ 73 Affirmed.
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2021 IL App (1st) 172097 (People v. Martinez) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.