People v. Smart

2022 IL App (2d) 210531, 213 N.E.3d 919, 464 Ill. Dec. 547

• Court: Appellate Court of Illinois
• Decided: November 29, 2022
• Docket: 2-21-0531
• Status: Published

Opinion

2022 IL App (2d) 210531 No. 2-21-0531 Opinion filed November 29, 2022 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 20-CF-654 ) WILLIE L. SMART, ) Honorable ) David P. Kliment, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

PRESIDING JUSTICE BRENNAN delivered the judgment of the court, with opinion. Justices Schostok and Hudson concurred in the judgment and opinion.

OPINION

¶1 Following a jury trial, defendant, Willie L. Smart, was found guilty of two counts of

domestic battery (720 ILCS 5/12-3.2(a)(1), (2) (West 2020)). The trial court sentenced him to five

years in prison. On appeal, defendant contends that he was denied his constitutional right to a fair

trial by an impartial jury when the trial court required that all jurors wear masks during voir dire.

We affirm.

¶2 I. BACKGROUND

¶3 A. Response to COVID-19 Emergency

¶4 On March 17, 2020, in response to the COVID-19 emergency, the Illinois Supreme Court

ordered all Illinois courts “to establish and periodically update, as necessary, temporary procedures 2022 IL App (2d) 210531

to minimize the impact of COVID-19 on the court system, while continuing to provide access to

justice.” Ill. S. Ct., M.R. 30370 (eff. Mar. 17, 2020). In response, the supreme court issued a series

of orders governing court functions. For instance, on March 20, 2020, the supreme court ordered

that “the Chief Judges of each circuit may continue trials for the next 60 days.” Ill. S. Ct., M.R.

30370 (eff. Mar. 20, 2020). On April 7, 2020, the supreme court modified its earlier order to

specify that the circuit courts “may continue trials until further order of [the] Court.” Ill. S. Ct.,

M.R. 30370 (eff. Apr. 7, 2020). On May 20, 2020, the supreme court ordered that,

“[e]ffective June 1, 2020, *** each circuit may return to hearing court matters,

whether in person or remotely, according to a schedule to be adopted for each county by

the chief judge in each circuit. The circuit courts shall continue, to the extent possible, to

allow for appropriate social distancing and attempt to reduce the number of persons

appearing personally for court appearances.” Ill. S. Ct., M.R. 30370 (eff. May 20, 2020).

On August 27, 2020, the supreme court prohibited “[i]ndividuals, including judges, court staff,

parties, attorneys, jurors and witnesses,” from entering any courthouse if they “are not wearing a

mask or face covering.” Ill. S. Ct., M.R. 30370 (eff. Aug. 27, 2020). The supreme court’s order

further provided: “Masks or face coverings should be worn at all times while in the courthouse

unless the person is (1) otherwise instructed by court personnel; (2) under the age of 2; or

(3) incapacitated, having trouble breathing, or otherwise unable to remove the mask without

assistance.” Id.

¶5 Based on the supreme court’s directive, the chief judge of the Sixteenth Judicial Circuit

entered numerous orders that established evolving COVID-19 procedures impacting court

operations. As is relevant here, on May 26, 2020, the chief judge entered General Order 20-22,

effective June 1, 2020 (Kane County Cir. Ct. G.O. 20-22 (June 1, 2020)). It provided that

-2- 2022 IL App (2d) 210531

“[c]riminal jury trials will begin on August 3, 2020, subject to limitations on the number that can

be accommodated.” Id. On July 17, 2020, the chief judge entered General Order 20-24 (Kane

County Cir. Ct. G.O. 20-24 (July 17, 2020)), imposing a mask requirement in all courthouse

locations. It provided:

“1) Anyone over the age of two entering and occupying public areas of the

courthouse must wear a mask/face covering, unless excused by the presiding judge; and

2) The mask/face covering must be well-secured and worn in such a manner as to

cover both the mouth and nose of the individual; and

3) Individuals are encouraged to wear their own mask/face covering. If an

individual does not have a mask/face covering, one may be provided to them, if available.

If a mask/face covering is not available, the individual will not be allowed to enter the

courthouse; and

4) If an individual refuses to wear a mask/face covering, he/she will be denied

entry; and

5) Reasonable accommodations will be provided for individuals with medical

conditions or disabilities that prevent them from safely wearing masks/face coverings. ***;

and

6) Once inside the courthouse, if an individual refuses to wear a mask/face covering

as prescribed in this Order, they will be asked to put one on or adjust their current mask/face

covering accordingly. ***; and

7) All judges, judicial staff, courthouse employees, attorneys and members of the

general public must wear masks/face coverings when inside the public spaces of the

-3- 2022 IL App (2d) 210531

courthouses, at all times, including the lobby, elevators, restrooms, public corridors, and

courtrooms, regardless of whether the courtroom is open to the public; and

8) In limited situations where appropriate social distancing can be maintained, the

presiding judge of the courtroom may remove his/her mask/face covering if necessary to

make an appropriate record and to conduct court proceedings; and

9) In limited situations where appropriate social distancing can be maintained, the

presiding judge of the courtroom may grant permission to the attorneys and/or litigants

appearing in front of him/her to remove their mask/face covering to be heard in a court

proceeding. If permission is granted, the attorney or litigant must place their mask/face

coverings back on immediately upon the conclusion of the hearing; and

10) In limited situations during hearings and trials, where appropriate social

distancing can be maintained, the presiding judge of the courtroom may grant permission

to witnesses to remove their mask/face coverings while testifying.” Id.

¶6 B. Indictment and Pretrial Motions

¶7 On August 12, 2020, the State indicted defendant on two counts of domestic battery. 720

ILCS 5/12-3.2(a)(1), (2) (West 2020). Both counts alleged that defendant committed domestic

battery on April 1, 2020, by striking Melanie Banner, a family or household member, about the

head. Count I alleged that “defendant knowingly caused bodily harm.” See id. § 12-3.2(a)(1).

Count II alleged that “defendant knowingly made physical conduct of an insulting or provoking

nature.” See id. § 12-3.2(a)(2).

¶8 The trial court set a jury trial for September 24, 2020. Meanwhile, the State filed several

motions in limine. In addition, defendant filed a motion in limine seeking to preclude evidence of

-4- 2022 IL App (2d) 210531

his prior convictions. On September 24, 2020, the trial court ruled on the motions and continued

the case, on the State’s motion, to September 28, 2020.

¶9 On September 28, 2020, the parties answered ready for trial. However, the trial court

continued the case to October 15, 2020, due to “facilities limitations at the Kane County Judicial

Center” resulting from the COVID-19 pandemic.

¶ 10 On October 15, 2020, both parties answered ready for trial. The trial court advised the

parties that the case would start the following week “with jury selection on Monday or

Wednesday” but that it did not know “for sure which date.” The court continued the matter to

Monday, October 19, 2020, and then to Wednesday, October 21, 2020.

¶ 11 Before trial, on October 20, 2020, defense counsel filed a 26-paragraph “Motion for Jury

Trial in Compliance with the Sixth Amendment,” raising issues concerning “certain procedures

for jury trials to cope with the demands and recommendations from the CDC [(Centers for Disease

Control)] and Kane County Health Department concerning indoor gatherings.” As is relevant here,

in a section titled “Venire/Voir Dire,” counsel cited paragraphs 8 and 9 of General Order 20-24

and argued:

“9. Based on this general order and social distancing trial procedures, the venire

members are masked throughout voir dire. The defendant’s rights to effective assistance

of counsel in voir dire and to an impartial jury, are violated by this trial procedure. Defense

counsel cannot meaningfully ask and challenge jurors without being able to see their

demeanor. Nor can counsel guarantee a fair and impartial jury when their entire voir dire

testimony is from behind a mask. Additionally, there is no uniformity of masks. Different

masks will conceal different amounts of jurors’ faces but all will be concealed below the

eyes rendering demeanor judgment useless. Without the knowledge of the potential jurors’

-5- 2022 IL App (2d) 210531

demeanor while answering voir dire questions defense counsel is deprived of critical

context and non-verbal information necessary to make peremptory and for cause

challenges.”

In addition, defense counsel noted that social distancing requirements would prevent the entire

venire from being present in the courtroom during voir dire. Therefore, even if the prospective

jurors outside the courtroom could observe the in-court proceedings, counsel would not be “able

to see their reactions or hear comments that [they] may be making in regard to the courtroom

dialogue.” Counsel further asserted that, “with only a certain number of the venire of potential

jurors in the courtroom,” she would “not be able to determine whether she should exercise more

challenges to attempt to get those other jurors on the jury or rather, not exercise challenges to keep

them off.”

¶ 12 Counsel also asserted that, “[t]hrough investigation,” she learned of several exemptions for

potential jurors that could be unfavorable to the defense. First, a potential juror aged 65 and older

who claims a preexisting health condition could be released from service. Second, a potential juror

under age 65 with a preexisting health condition confirmed by a doctor’s note could also be

released from service. Third, an individual of any age claiming “that due to the pandemic he or

she is not comfortable with appearing for jury service” could be deferred from service for six

months. According to counsel, these exemptions would “severely limit[ ] the reflection of the

community in the venire and as such, improperly effect[ ] [sic] defendant’s right to an impartial

and fair jury, and to a jury of his or her peers.”

¶ 13 Additionally, counsel challenged certain “social distancing procedures.” Counsel claimed

that procedures affecting how the jurors would be seated during trial would negatively impact

counsel’s ability to see the jurors while questioning witnesses and the jurors’ ability to see the

-6- 2022 IL App (2d) 210531

witnesses. She also argued that requiring the public to view the trial from a remote location would

prevent the jurors from seeing the members of the public who have come to support defendant.

Counsel also argued that the “[potential] juror[s’] attitudes about service *** may be hindered by

the aura of danger that surrounds public service at a public accommodation—the courthouse.”

“Potential jurors may feel anxious to spend as little time as possible in deliberation or awaiting the

evidence to conclude so that they are clear to return to their homes.” Consequently, voir dire is

important for counsel “to gauge the attitudes of potential jurors” about jury service during the

pandemic.

¶ 14 Counsel also raised issues concerning witnesses, arguing that “[t]he witness must testify

without a mask so that he/she can be confronted face to face.” Thus, a witness must not be allowed

to insist on wearing a mask during the witness’s testimony.

¶ 15 In conclusion, counsel argued, “a jury trial with social distancing procedures violates the

defendant’s constitutional rights.” To remedy the issue, defendant requested the following:

“(1) The venue for the trial should be moved out of the courthouse and into a

structure that is large enough so that the jury can sit, socially distanced, in one area. This

will allow all jurors essentially the same view of the proceedings, and all the parties have

the same view of the jurors;

(2) The venue should be large enough to include an audience area for public access;

[and]

(3) If these changes are impossible, defendant would request a release on a personal

recognizance and would consent to a continuation of the trial for the purpose of allowing

the public health emergency to abate.”

-7- 2022 IL App (2d) 210531

¶ 16 Defendant also filed a “Motion for Reconsideration,” asking the trial court to reconsider

its ruling on one of the State’s motions in limine.

¶ 17 C. Jury Trial

¶ 18 On October 21, 2021, the parties appeared and answered ready for trial. Thereafter, the

following colloquy occurred:

“MR. WERDERICH [(DEFENSE COUNSEL)]: *** One thing I would like to

make of record is that following the pretrial there were two motions that were filed and we

would like to have those heard, if possible.

THE COURT: I am not hearing them now. I will get to it if I can. We don’t do

motions the day of trial.

I have one of them. What’s the other one?

MS. LEDER [(CODEFENSE COUNSEL)]: Judge, there is a motion in regard to a

reconsideration on something that was ruled on.

THE COURT: That I have.

MS. LEDER: And then the motion about the COVID trial standards and prejudice.

THE COURT: I will address those when we have time, if we have time.”

After a short discussion about other matters, the State commented: “[I]n terms of the defense

motion to reconsider, I think we can address that in about two or three minutes. I can—I think

that’s just a misunderstanding amongst the counsel.” The court resolved the issue for the parties

and, thereafter, stated: “Bring up the jurors.”

¶ 19 As the prospective jurors gathered, the trial court quickly explained the voir dire procedure

to the parties: (1) 16 prospective jurors would be put in the back gallery, (2) the court would

question all 16 prospective jurors at once, (3) 4 prospective jurors would be put in the jury box for

-8- 2022 IL App (2d) 210531

continued questioning, (4) the parties would use peremptory challenges in the normal fashion,

(5) the parties would approach the bench to strike a prospective juror for cause, and (6) no “back-

striking” would be allowed.

¶ 20 When the prospective jurors entered the courtroom, the trial court first thanked them for

coming and then stated:

“As you can see or I hope you have seen so far, we have done our best to make sure

that we space people out, wear masks. I am not wearing a mask now but that’s because I

am going to do a lot of talking. But I have it up here for when I need it and I am far enough

away from everybody that everybody should be safe from me.”

¶ 21 During voir dire, the trial court and both parties questioned the venire members. Defense

counsel inquired specifically into the venire’s feelings about the COVID-19 procedures. Ten jurors

were chosen from the first group of sixteen prospective jurors, and two jurors were chosen from

the second group.

¶ 22 Three witnesses testified on behalf of the State: Banner and two police officers.

Defendant’s mother, Loretta Smart, and defendant testified for the defense.

¶ 23 The evidence generally established the following. On April 1, 2020, at about 2:30 a.m.,

Banner, who was living with and engaged to defendant, called the police. The police arrived, spoke

to Banner, and left about 10 minutes later. Banner testified that defendant was mad at her for

calling the police on him, and they had an argument. Banner had to leave for work at 5 a.m., so

she took a shower. As she was exiting the shower, defendant hit her twice in the face. Banner

testified that the blows to her face upset and physically hurt her. Banner called the police, and

defendant left. Two police officers arrived on the scene. Both officers testified that they observed

-9- 2022 IL App (2d) 210531

redness on Banner’s cheek. Banner was upset and “a little bit shaken.” Banner did not appear to

be under the influence of alcohol.

¶ 24 Defendant testified that, on March 31, 2020, he and Banner worked until 4 p.m. After work,

they stopped at a store, where defendant bought three mini bottles of alcohol and two packs of

cigarettes. At Banner’s request, he also purchased her a pint of alcohol. They went home, ate, and

drank, and defendant fell asleep around 8 or 9 p.m. Defendant woke up at midnight, and Banner

was still awake and drinking. Banner asked defendant for a cigarette. When he refused to give her

one, she tried grabbing cigarettes from his pocket and threatened to call the police. The police

arrived at his apartment and spoke with defendant and Banner. After the police left, he fell asleep.

He woke up about 15 minutes before Banner got out of the shower. When she did, she yelled at

him about talking to other women, and he left. He eventually went home and made up with Banner.

Later that evening, he was arrested.

¶ 25 Loretta testified that Banner called her at 11 p.m. on April 1, 2020. Banner told Loretta that

defendant did not hit her but that the police said he did.

¶ 26 The jury found defendant guilty of both counts of domestic battery (720 ILCS 5/12-

3.2(a)(1), (2) (West 2020)).

¶ 27 D. Posttrial Proceedings and Sentencing

¶ 28 On November 20, 2020, defendant filed a “Motion for Judgment Notwithstanding the

Verdict or a New Trial.” He argued that the trial court erred in “not hearing [his] motion for a jury

trial in compliance with the sixth amendment.” He complained that the trial court erred in how it

conducted voir dire. More specifically, he complained that (1) the whole venire was not seated in

the courtroom, which prevented counsel from seeing the entire venire at once; (2) the jurors were

required to wear masks, which prevented counsel from ascertaining “nonverbal context” of jurors;

- 10 - 2022 IL App (2d) 210531

(3) the juror pool was not an accurate reflection of the community, because some jurors were

released if uncomfortable with serving; and (4) social distancing requirements deprived him of a

fair trial.

¶ 29 Following a hearing on April 14, 2021, the trial court denied the motion, stating:

“With respect to the jury pool, first there’s been no showing that the defendant was

prejudiced in any way. Certain people were allowed to opt out. There’s no indication

anyone did opt out. There were plenty of jurors here to select from. The complaint about

not being able to talk to the jurors or they had masks on and so forth, questioning was never

stopped by me. You could have asked questions for as long as you wanted to about the

jurors to learn whatever you needed to learn. Certainly enough of their facial features were

available or visible that you could tell what you needed to tell about the jurors as you were

selecting them.

So I don’t think there was anything wrong with the jury pool or the procedures that

we followed. The fact that they were not all in the room together matters at all [sic]. They

were all asked the same questions by me. And if counsel chose to ask different questions

of different groups, that’s fine. That’s their choice.”

¶ 30 The matter proceeded to sentencing. The trial court sentenced defendant to five years in

prison on count I; however, no sentence was entered on count II. Defendant moved for

reconsideration of his sentence, and the trial court denied his motion. This timely appeal followed.

¶ 31 II. ANALYSIS

¶ 32 Defendant contends that the trial court’s requirement that the jurors wear masks during

voir dire denied him his right to a fair trial. According to defendant, the mask requirement

“prevented *** defendant and defense counsel from seeing the jurors’ facial expressions to

- 11 - 2022 IL App (2d) 210531

effectively ascertain what reaction they had to important legal principles and questions posed to

them.” Thus, defendant lacked “reasonable assurance that prejudice in the jury pool would be

discovered.” The State responds that the trial court did not abuse its discretion in complying with

the courthouse mask mandate and that the jurors’ wearing of masks during voir dire did not violate

defendant’s right to a fair trial. We agree with the State.

¶ 33 A criminal defendant’s right to trial by a fair and impartial jury is guaranteed by both the

United States and Illinois Constitutions. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I,

§§ 8, 13; People v. Moon, 2022 IL 125959, ¶¶ 32-37. “ ‘The purpose of voir dire is to ascertain

sufficient information about prospective jurors’ beliefs and opinions so as to allow removal of

those members of the venire whose minds are so closed by bias and prejudice that they cannot

apply the law as instructed in accordance with their oath.’ ” People v. Encalado, 2018 IL 122059,

¶ 24 (quoting People v. Cloutier, 156 Ill. 2d 483, 495-96 (1993)). “The manner, extent, and scope

of voir dire examination rests within the discretion of the trial court.” Id. ¶ 25. “ ‘An abuse of

discretion occurs when the conduct of the trial court thwarts the purpose of voir dire

examination—namely, the selection of a jury free from bias or prejudice.’ ” Id. (quoting People v.

Rinehart, 2012 IL 111719, ¶ 16).

¶ 34 While Illinois courts have not yet addressed the issue, a survey of decisions by our sister

state and federal courts discloses that every jurisdiction that has so far considered the issue has

upheld COVID-19-related policies requiring or permitting potential jurors to wear masks. See,

e.g., Prince v. State, No. 106, 2022 WL 14707014 (Md. Ct. Spec. App. Oct. 26, 2022); Guerin v.

Commonwealth, No. 2021-CA-0952-MR, 2022 WL 5265083 (Ky. Ct. App. Oct. 7, 2022);

Commonwealth v. Davis, 2022 PA Super 71, 273 A.3d 1228, 1239-41; United States v. Ayala-

Vieyra, No. 21-1177, 2022 WL 190756 (W.D. Mich. Jan. 21, 2022); United States v. Watkins, No.

- 12 - 2022 IL App (2d) 210531

18-CR-32-A, 2021 WL 3732298 (W.D.N.Y. Aug. 24, 2021); Commonwealth v. Delmonico, 2021

PA Super 85, 251 A.3d 829; United States v. Tagliaferro, 531 F. Supp. 3d 844, 851 (S.D.N.Y.

2021); United States v. Thompson, 543 F. Supp. 3d 1156, 1164 (D.N.M. 2021); United States v.

Robertson, No. 17-CR-02949-MV-1, 2020 WL 6701874 (D.N.M. Nov. 13, 2020); United States

v. James, No. CR-19-08019-001-PCT-DLR, 2020 WL 6081501 (D. Ariz. Oct. 15, 2020); United

States v. Trimarco, No. 17-CR-583 (JMA), 2020 WL 5211051 (E.D.N.Y. Sept. 1, 2020); United

States v. Crittenden, No. 4:20-CR-7 (CDL), 2020 WL 4917733 (M.D. Ga. Aug. 21, 2020). Because

this court may consider cases from federal and foreign jurisdictions as persuasive authority when

there is no Illinois authority on a particular issue, we consider a representative sample of these

cases for guidance. See People v. Bensen, 2017 IL App (2d) 150085, ¶ 30.

¶ 35 In March 2021, the United States District Court for the Southern District of New York held

that the district court’s mask mandate did not hinder jury selection, noting that “[b]eing able to see

jurors’ noses and mouths is not essential for assessing credibility because demeanor consists of

more than those two body parts since it includes the language of the entire body.” (Internal

quotation marks omitted.). Tagliaferro, 531 F. Supp. 3d at 851. Recently, the Kentucky Court of

Appeals relied on Tagliaferro in rejecting the defendant’s argument that the state’s mask mandate

“unconstitutionally hindered jury selection.” Guerin, 2022 WL 5265083, at *2. The Kentucky

court noted that “nothing in the record indicates that [the defendant] was not given an opportunity

to submit proposed voir dire questions for the trial court to ask prospective jurors.” Id.

¶ 36 The Superior Court of Pennsylvania has twice rejected a challenge to voir dire where

potential jurors wore masks. In Delmonico, 2021 PA Super 85, 251 A.3d at 840, the reviewing

court rejected the defendant’s argument that, by requiring the prospective jurors to “wear face

coverings” and “spread out over a vast distance,” the trial court was “unable to fully examine the

- 13 - 2022 IL App (2d) 210531

prospective jurors’ conduct and demeanor in determining their credibility and fitness to serve, and

consequently, [the defendant] was not ensured the empaneling of a competent, fair, impartial, and

unprejudiced jury.” (Internal quotation marks omitted.) The reviewing court held that “the masking

and social distancing of prospective jurors [(during voir dire)] did not interfere with the sole

purpose of voir dire: the empaneling of a competent, fair, impartial, and unprejudiced jury capable

of following the instructions of the trial court.” (Internal quotation marks omitted.) Id. at 842. In

Commonwealth v. Davis, 2022 PA Super 71, 273 A.3d at 1239-41, the reviewing court relied on

Delmonico to reject the defendant’s claim that the trial court abused its discretion in permitting

prospective jurors to wear face masks in accordance with the recommendations of court

administration. The court found that “there [was] no evidence [that] the trial court’s discretion in

permitting the prospective jurors to wear masks interfered with the sole purpose of voir dire.” Id.

at 1241.

¶ 37 We agree with the reasoning of the above cases. Here, there is no evidence that the wearing

of face masks “ ‘thwart[ed] the purpose of voir dire examination—namely, the selection of a jury

free from bias or prejudice.’ ” Encalado, 2018 IL 122059, ¶ 25 (quoting Rinehart, 2012 IL 111719,

¶ 16). The trial court, which “is in the best position to observe the demeanor of potential jurors”

(People v. Mitchell, 152 Ill. 2d 274, 296 (1992)), specifically found that “enough of [the jurors’]

facial features were available or visible that you could tell what you needed to tell about the jurors

as you were selecting them.” The court further noted that counsel “could have asked questions for

as long as [they] wanted to about the jurors to learn whatever [they] needed to learn.” In addition,

as the State notes, there are a multitude of ways by which counsel can observe a prospective juror’s

demeanor without viewing the juror’s nose and mouth. See People v. Fauntleroy, 224 Ill. App. 3d

- 14 - 2022 IL App (2d) 210531

140, 159 (1991) (and cases cited therein). Thus, we find no abuse of discretion or evidence that

the court’s requirement that the jurors wear masks denied defendant a fair and impartial.

¶ 38 Defendant’s reliance on Mitchell does not warrant a different conclusion. In Mitchell, the

defendant argued that the State engaged in purposeful discrimination by using three peremptory

challenges to exclude black venirepersons from the jury. Mitchell, 152 Ill. 2d at 291. In justifying

its use of the preemptory challenge to one of the jurors, the State asserted that it challenged her

because (1) she had expressed a strong desire not to miss work for jury service and, (2) when the

State informed her that the death penalty would be sought, she “ ‘puckered up and made a sour

face as if that was distasteful to her.’ ” Id. at 301-02. The supreme court affirmed the trial court’s

finding that the State’s challenge to the juror was not racially motivated. Id. at 304. Although

Mitchell supports defendant’s assertion that a juror’s facial expression can be a proper basis for

excluding a juror, it does not stand for the proposition that a facial covering over a juror’s mouth

and nose prevents a defendant from “ ‘ascertain[ing] sufficient information about prospective

jurors’ beliefs and opinions so as to allow removal of those members of the venire whose minds

are so closed by bias and prejudice that they cannot apply the law as instructed in accordance with

their oath.’ ” Encalado, 2018 IL 122059, ¶ 24 (quoting Cloutier, 156 Ill. 2d at 495-96); see also

Tagliaferro, 531 F. Supp. 3d at 851 (“Being able to see jurors’ noses and mouths is not essential

for assessing credibility because demeanor consists of more than those two body parts since it

includes the language of the entire body.” (Internal quotation marks omitted.)).

¶ 39 We are also not persuaded by the remaining cases relied on by defendant, as they concern

testifying witnesses, not jurors, and are otherwise readily distinguishable. See People v. Sammons,

478 N.W.2d 901, 908-09 (Mich. Ct. App. 1991) (allowing the prosecution’s chief witness to testify

while wearing a mask that covered his face and head violated the defendant’s confrontation rights);

- 15 - 2022 IL App (2d) 210531

Bowser v. State, 2009 WY 54, ¶ 14, 205 P.3d 1018 (2009 (seating arrangement that obstructed the

defendant’s view of the victim during her testimony at her videotaped deposition violated the

defendant’s confrontation rights); United States v. Walker, 772 F.2d 1172, 1179 (5th Cir. 1985)

(holding that the trial court should have allowed the defendant to testify after the close of evidence

and noting that “ ‘[t]he facial expressions of a witness may convey much more to the trier of facts

than do the spoken words’ ” (quoting United States v. Irvin, 450 F.2d 968, 971 (9th Cir. 1971)

(Kilkenny, J., dissenting)). As defendant acknowledges, a defendant does not have the same right

to confront a juror as he does a witness.

¶ 40 Finally, we note that defendant also suggests that “it was an abuse of discretion for the trial

court to refuse to address the defendant’s pretrial motion regarding the masking of jurors.”

However, to the extent that defendant raises the court’s refusal to rule on this issue as a separate

basis for reversal, defendant has forfeited this argument by failing to cite authority to support it.

See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020); Victor Township Drainage District 1 v. Lundeen

Family Farm Partnership, 2014 IL App (2d) 140009, ¶ 37.

¶ 41 Accordingly, based on the foregoing, we hold that the trial court did not abuse its discretion

in how it conducted voir dire. Thus, defendant was not denied his constitutional right to a fair trial

by an impartial jury.

¶ 42 III. CONCLUSION

¶ 43 For the reasons stated, we affirm the judgment of the circuit court of Kane County.

¶ 44 Affirmed.

- 16 - 2022 IL App (2d) 210531

People v. Smart, 2022 IL App (2d) 210531

Decision Under Review: Appeal from the Circuit Court of Kane County, No. 20-CF-654; the Hon. David P. Kliment, Judge, presiding.

Attorneys James E. Chadd, Thomas A. Lilien, and Erin S. Johnson, of State for Appellate Defender’s Office, of Elgin, for appellant. Appellant:

Attorneys Jamie L. Mosser, State’s Attorney, of St. Charles (Patrick for Delfino, Edward R. Psenicka, and Victoria E. Jozef, of State’s Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

- 17 -