                          NO. 4-04-0471        Filed: 5/22/06

                     IN THE APPELLATE COURT

                           OF ILLINOIS

                         FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,    ) Appeal from
          Plaintiff-Appellee,           ) Circuit Court of
          v.                            ) Champaign County
MICHAEL J. COOPER,                      ) No. 03CF1406
          Defendant-Appellant           )
                                        ) Honorable
                                        ) Heidi Ladd,
                                        ) Judge Presiding.
_________________________________________________________________

          JUSTICE KNECHT delivered the opinion of the court:

          In March 2004, a jury found defendant, Michael J.

Cooper, guilty of involuntary manslaughter based on his partici-

pation in the beating of Frederick McNeal, which led to McNeal's

death (720 ILCS 5/9-3(a) (West Supp. 2003)).   In April 2004, the

trial court sentenced defendant to five years in prison.    Defen-

dant appeals, arguing he was denied his right to an open trial.

We affirm.

                          I. BACKGROUND

          In September 2003, the State charged defendant with

five counts of first degree murder for his involvement in

McNeal's death (720 ILCS 5/9-1(a)(1), (a)(2) (West 2002)).      In

March 2004, the cause proceeded to trial.   On March 11 (the third

day evidence was presented), during the first break of the day,

the following colloquy took place:

               "MR. ROSENBAUM [defendant's counsel]:

          Judge, there is something I wanted to bring

          to the record's attention I suppose. My cli-
ent and [codefendant's] family.     They have

family here in court.     They've been watching

the proceedings.    I've been told during the

break that they're not being allowed to re-

turn.    Obviously [codefendant's counsel] and

I[,] we've talked about this.     We don't know

what's going on because we're obviously look-

ing forward at the trial and what's going on.

 We've been told that they may have been dis-
ruptive.    We don't know at whose request this

has been, what the observations have been,

whether it's one particular person or if it's

been all of them together.     And I would just

like to inquire for the record why they're

being left out and if there is any other

option in terms of perhaps an admonition to
them or excluding only the people who, in

fact, have been causing the disruption.

        THE COURT: I was informed by the offi-

cers that I believe there were four people.

        Is that correct, Officer Sherrick?

        Five people that have been making audi-

ble sounds and tisks and disagreeing audibly

and loudly with the witnesses to the point

where two of the officers in the courtroom

noticed that the four jurors on the end


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turned and visibly looked at the people mak-

ing the sounds.   The officers have repeatedly

admonished these people not to make any

sounds or any editorial comments of that

nature.   They persisted in doing it yesterday

and again today, and I will not have anyone

in the audience make any disruptive noises or

gestures or commentaries on anything that

transpires in the courtroom so those five
people are now not allowed in the courtroom.

 They were warned by the officers.     They per-

sisted in doing it.

     Anyone else may come in if they conduct

themselves appropriately. I don't know who

the five were or who they're affiliated with.

 I'm not going to have anybody carrying on in
my courtroom.

     MR.ROSENBAUM: May I just step in the

hallway because I think there may have been

more than five excluded and in particular I'm

thinking of my client's mother.     If she was

not involved, I would ask that she come in.

     May I have just one moment to see?

     THE COURT: You may.      Certainly.

     MR. ROSENBAUM: Thank you, Judge.      We

have to take it up later.     Some of them are


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          not right in the hallway so.

               THE COURT: All right."

          Later that day, following the conclusion of the presen-

tation of evidence, defense counsel again raised the issue with

the trial court, stating:

               "MR. ROSENBAUM: Judge, I would ask that

          the [c]ourt revisit the issue of my client's

          family and I suppose [codefendant's] family

          as well.   I spoke with his mother in particu-
          lar and one other woman who was here, I think

          another relative, who indicated to me in the

          hallway that they in particular did not make

          any noises or talk at all and I'm at least a

          little concerned that perhaps all five were

          taken as a group whereas maybe one or two did

          not specifically make any noises.
               I would ask that the [c]ourt consider

          perhaps if they were allowed into the court-

          room tomorrow at 8:30 to listen to closing

          arguments with an admonition of the [c]ourt

          that should for any reason they make any

          noises, signs, or anything they would be

          escorted out without any questions.   I would

          simply ask the [c]ourt to reconsider that.

               THE COURT: Thank you, Mr. Rosenbaum.

               I have considered that.   I didn't know


                               - 4 -
          who they were affiliated with, but they were

          admonished repeatedly by the officers.         Both

          the officers were very clear as to who vio-

          lated that and that their noises were audible

          and disrupted the jury.        There will be no way

          to put that cat back in the bag if it happens

          during closing arguments.        I appreciate the

          issues, but they were given every opportunity

          and that is unfair to any of the parties or
          to the jurors to have that disruption affect-

          ing them so I am not going to let them back

          in.   They were given repeated opportunities

          to address those concerns.

                  MR. ROSENBAUM: I completely appreciate

          the [c]ourt's concern.     I just wish the court

          officers had told me yesterday and I could
          have confronted the family and we never would

          have reached this point.        I apologize.

                  THE COURT: There is no need to apolo-

          gize.    It was out of your control, and the

          officers are--they were given their chance."

          The jury found defendant guilty of involuntary man-

slaughter, and the trial court sentenced defendant as stated. In

April 2004, the court held a hearing on defendant's posttrial

motion.

          In addressing the public-trial issue raised in the


                                 - 5 -
motion, the trial court noted only those spectators who were

disruptive were barred from reentering the courtroom.     The court

stated it was informed by the court officer and a correctional

officer the individuals were "making comments, gesture[s], loud

noises, facial expressions, and commenting on the testimony of

witnesses; generally disrupting the proceedings."     Both officers

reported the jurors were clearly distracted and on multiple

occasions turned to look at the noisy spectators.     The court

noted the officers were positioned several feet away from the
disruptive spectators.    The court stated it also heard noise

coming from that general area but was unable to identify the

source because it was too far away and was concentrating on the

proceedings.   The court indicated it also noticed jurors looking

in the direction of the noise.    The court stated it authorized

the officers to bar the disruptive spectators because they

persisted in acting inappropriately after repeated warnings, on
two separate days, by the officers.      The court stated it had a

duty to maintain an orderly proceeding free from outside influ-

ence on the jurors, and the barred spectators had proved them-

selves "untrustworthy."    The court denied the posttrial motion.

This appeal followed.

                            II. ANALYSIS

          On appeal, defendant argues the trial court abused its

discretion and violated his right to a public trial when it

denied defendant's mother and another woman entry into the

courtroom for the remainder of the trial and closing arguments.


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            The sixth amendment of the United States Constitution

guarantees a defendant the right to a public trial.       U.S. Const.,

amend. VI.    This guarantee is for the benefit of the accused and

"is a safeguard against any attempt to employ the courts as

instruments of persecution."     People v. Seyler, 144 Ill. App. 3d

250, 252, 494 N.E.2d 267, 268-69 (1986); Waller v. Georgia, 467

U.S. 39, 46, 81 L. Ed. 2d 31, 38, 104 S. Ct. 2210, 2215 (1984)

             While a presumption exists that all trials are open,

the right is not absolute.    Waller, 467 U.S. at 45, 81 L. Ed. 2d

at 38, 104 S. Ct. at 2215.    However, the presumption of openness

will yield only to an "overriding interest" that is specifically

articulated.     People v. Taylor, 244 Ill. App. 3d 460, 468, 612
N.E.2d 543, 549 (1993).    "[T]he party seeking to close the

hearing must advance an overriding interest that is likely to be

prejudiced, the closure must be no broader than necessary to

protect that interest, the trial court must consider reasonable

alternatives to closing the proceeding, and it must make findings

adequate to support the closure."        Waller, 467 U.S. at 48, 81 L.

Ed. 2d at 39, 104 S. Ct. at 2216.

            Neither the press nor members of the general public

were excluded from the courtroom, so the limited exclusion of the

disruptive spectators from the courtroom was a partial closure of

the trial proceedings.    Taylor, 244 Ill. App. 3d at 464, 612
N.E.2d at 546.    The "overriding interest" test applies to partial

closures.    Taylor, 244 Ill. App. 3d at 467, 612 N.E.2d at 548.

            The defendant is not required to prove specific preju-


                                 - 7 -
dice to obtain relief for a violation of his right to a public

trial (Waller, 467 U.S. at 49, 81 L. Ed. 2d at 40, 104 S. Ct. at

2217), nor is the right subject to harmless-error analysis

(Arizona v. Fulminante, 499 U.S. 279, 310, 113 L. Ed. 2d 302,

331, 111 S. Ct. 1246, 1265 (1991)).     The sixth amendment protects

all portions of the trial and not just the right to publicly

present evidence and witnesses.    People v. Willis, 274 Ill. App.

3d 551, 554, 654 N.E.2d 571, 574 (1995).    "The standard to be

applied in determining whether there is a sufficient record to

support a trial judge's finding that grounds exist to exclude

spectators from a courtroom is whether there has been an abuse of

discretion."    Seyler, 144 Ill. App. 3d at 252, 494 N.E.2d at 269.
          The trial court, through the court officers, barred re-

entry of five individuals known to have caused repeated distur-

bances.   Defendant does not dispute maintaining proper courtroom

decorum is an overriding interest or that this interest was not

likely to be prejudiced in this case.    Instead, defendant con-

tends (1) the court failed to insure the closure was no broader

than necessary to protect that interest, (2) the court did not

consider alternatives, and (3) the court's findings of fact were

inadequate.    We disagree.

              In barring reentry of the five disruptive individu-

als, the trial court properly relied on information provided by

the officers and the officers' identification of the individuals.

 The officers were within a few feet of the disruptive spectators

and warned the individuals on numerous occasions to cease their


                                - 8 -
conduct.   In addition, the court heard noises coming from the

general area indicated by the officers and observed several

jurors looking in that direction.        However, the court could not

clearly identify who was responsible for the disturbances because

it was too far away and was concentrating on the proceedings.

             Contrary to defendant's assertion, the trial court did

not have to conduct a hearing on the issue.       Defense counsel

presented defendant's mother's account that she was not involved

in the disturbances.    However, the court clearly believed the
officers were able to identify the offenders.       In light of the

two officers' close proximity and repeated interaction with the

individuals over the course of two days, the court could reason-

ably rely on the officers' identification of the parties respon-

sible.   Because only those spectators known to have caused the

disturbances were excluded, the closure was no broader than

necessary.
             Defendant's assertion the trial court did not consider

alternatives to excluding the spectators is without merit.       After

the close of the evidence, defense counsel suggested the individ-

uals be allowed to enter the courtroom for closing arguments with

an admonishment that they would be escorted out for any more

disturbances.    The court expressly stated it had considered this

option but rejected it in light of the individuals' refusal to

comply with the officers' numerous requests to cease their

inappropriate conduct.    The disruptive parties were repeatedly

warned by the court officers about their behavior over two days


                                 - 9 -
of proceedings, yet continued to be disruptive.    The court found

the parties' continued disruptions and refusal to heed the

officers' warnings made them "untrustworthy."    The court consid-

ered defendant's right to an open trial but found the spectators'

refusal to comply with the officers' request put the fairness of

the proceeding at stake.

          The fact the officers warned the problematic spectators

multiple times before barring them from the courtroom shows the

trial court not only considered but also implemented an alterna-
tive to partially closing the proceedings.    The disruptive

spectators were given ample opportunities to correct their

behavior but simply refused to conduct themselves accordingly.

          The trial court's findings were sufficient to support

excluding the disruptive spectators and partially closing the

proceedings.   The record shows the officers repeatedly warned

these individuals their conduct was inappropriate, yet they
continued to be disruptive.   The court indicated it and the

officers observed several jurors become distracted and look

toward the disruptive spectators.    The court indicated it also

heard noises coming from the area indicated by the officers.

Although the judge was not personally able to identify the

problematic individuals, the officers could.    The information

before the court was adequate to support the closure and the

court did not have to conduct a hearing in spite of some of the

spectators' denials of wrongdoing.

          Court officers and bailiffs need the ability to evict


                              - 10 -
or limit entrance to disruptive spectators.    The court must also

carefully guard the fairness of the trial.    No error occurred

here, but the trial court should have provided a more complete

record of what transpired and should have investigated further

when defense counsel advised the barred spectators were family

members of the defendant and codefendant.

          Even though it would have required more court time, it

would have been prudent for the trial court to be certain the

individuals who were barred entrance were correctly identified
and that only those specific individuals identified by the court

officers were the ones barred from entrance.    It would have been

helpful if defense counsel had offered the names of the individu-

als who believed they had been barred from the proceedings.

          It is understandable both counsel and the trial court

were focused on the trial itself rather than this distraction.

However, the right to a public trial is important and this
unfortunate distraction deserved the personal attention of the

court.

          It would have been preferable for the trial court to

have confronted the individuals outside the presence of the jury

and entered an order barring them from the proceedings after

their identification was confirmed by the court officers.

          We do not believe the trial court was required to

conduct an evidentiary hearing or to permit the identified

spectators to speak on their own behalf.    The record is clear

disruptive spectators were repeatedly warned and they continued


                             - 11 -
their behavior over the course of two days.    A trial judge

managing a jury trial must rely on the court officers to assist

in maintaining decorum.    The trial judge appropriately relied

upon the officers, but once defense counsel raised a concern, the

trial judge should have created a record as to who was barred.

                           III. CONCLUSION

            For the reasons stated, we affirm the trial court's

judgment.

            Affirmed.
            APPLETON and COOK, JJ., concur.




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