                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Oliver, 2012 IL App (1st) 102531




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    ALOYSIUS OLIVER, Defendant-Appellant.



District & No.             First District, Third Division
                           Docket No. 1-10-2531


Filed                      May 9, 2012
Rehearing denied           June 13, 2012


Held                       Defendant’s postconviction petition alleging that he did not authorize his
(Note: This syllabus       counsel to waive his presence during an in camera discussion of jury
constitutes no part of     selection, that the unauthorized waiver amounted to ineffective assistance
the opinion of the court   on the part of his trial counsel and that his appellate counsel was
but has been prepared      ineffective in failing to raise the unauthorized waiver on direct appeal
by the Reporter of         was properly dismissed as frivolous, since defendant failed to make any
Decisions for the          allegations that he arguably suffered prejudice due to the alleged errors
convenience of the         of his trial or appellate counsel.
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 01-CR-22680; the
Review                     Hon. Timothy Joseph Joyce, Judge, presiding.


Judgment                   Affirmed.
Counsel on                  Michael J. Pelletier, Alan D. Goldberg, and Robert Hirschhorn, all of
Appeal                      State Appellate Defender’s Office, of Chicago, for appellant.

                            Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                            Michelle Katz, and Tasha-Marie Kelly, Assistant State’s Attorneys, of
                            counsel), for the People.


Panel                       JUSTICE NEVILLE delivered the judgment of the court, with opinion.
                            Justices Murphy and Salone concurred in the judgment and opinion.


                                              OPINION

¶1          A jury found the defendant, Aloysius Oliver, guilty of murder, and the trial court
        sentenced him to life in prison. On the direct appeal, the appellate court affirmed the trial
        court’s judgment. Oliver then filed the postconviction petition that is the subject of this
        appeal. Oliver alleged that he did not authorize his trial counsel to waive his presence during
        jury selection. He argued that the unauthorized waiver of his presence during a conference
        in camera on jury selection amounted to ineffective assistance of trial counsel, and the failure
        to raise the issue of the unauthorized waiver on the direct appeal shows that he had
        ineffective assistance of appellate counsel. We find that Oliver has not alleged any facts that
        could support the conclusion that the court empaneled a biased jury, and, therefore, we hold
        that Oliver has not stated the gist of a claim that a violation of his constitutional rights might
        warrant a new trial. Accordingly, we affirm.

¶2                                         BACKGROUND
¶3          On August 19, 2001, Officers Vincent Barner, Andre Green and Eric Lee, wearing plain
        clothes, sat in an unmarked police car on Chicago’s south side, watching for signs of illegal
        drug transactions. They heard a commotion coming from a nearby alley, so they went to
        investigate. They saw some men hitting another man. Some of the combatants ran from the
        scene. As the officers gave chase, two bullets struck and killed Lee. Barner arrested Oliver
        in a nearby gangway.
¶4          Police officers made a video recording of a statement Oliver made at the police station
        later that night. Oliver said he saw Lamar Logan urinating in Oliver’s yard, so Oliver and his
        cousin started hitting and kicking Logan. Oliver ran off when he saw men coming up the
        alley. When one of the men pointed a gun at Oliver, Oliver fired his gun so that he could
        escape from the scene. He did not intend to shoot Lee. Prosecutors charged Oliver with the
        murder of Lee, the aggravated battery of Logan, and aggravated assault for his conduct at the
        time Barner arrested him.
¶5          The trial court denied Oliver’s motion to suppress his statement. At the trial, the judge
        conducted voir dire in open court, with Oliver present. The judge asked the attorneys to come

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       into chambers for the attorneys to decide whom they wanted to exclude from the jury. At the
       outset of the discussion in chambers, the judge said:
                “So the record is clear, we are in chambers for the purpose of selection. *** The
            Defendant has been consulted with by his attorneys, and his appearance is waived. Is that
            correct, counsel?
       Defense counsel answered, “Correct.”
¶6          In the course of the discussion, defense counsel moved for a mistrial due to the
       prosecution’s exercise of its peremptory challenges to exclude several black venire members
       from the jury. The trial court denied the motion, noting that the prosecution had at that point
       accepted only four jurors, and three of the four were black. The court empaneled a jury
       without any further discussion of the motion for mistrial.
¶7          Green testified that when he saw Oliver and Oliver’s cousin hitting Logan, Green yelled,
       “stop, police.” Green saw Oliver run, and then he saw Oliver turn and fire shots at Lee.
¶8          Barner testified that he caught up to Oliver and again identified himself as a police
       officer. Oliver pointed a gun at Barner and the two of them struggled until another police
       officer tackled Oliver.
¶9          The court permitted the prosecution to show the jury the videotape of the statement
       Oliver made at the police station. The defense presented evidence that the officers never
       identified themselves as police, and Oliver feared for his life when he fled and fired the gun.
¶ 10        The trial court instructed the jury on both first and second degree murder, as well as
       aggravated battery and aggravated assault. The jury found Oliver guilty of first degree
       murder, aggravated battery and aggravated assault. The trial court sentenced Oliver to natural
       life in prison.
¶ 11        On the direct appeal, appellate counsel argued “(1) defendant’s failure to renew his
       motion to suppress his statement prejudiced defendant; (2) the judge’s answer to the jury’s
       note require[d] a new trial; (3) the judge’s failure to question jurors about a newspaper article
       was an abuse of discretion; (4) the prosecution’s closing arguments denied defendant a fair
       trial; (5) denial of defense access to disciplinary records of Officer Barner was error; (6) it
       was an abuse of discretion not to order [two other police officers] to submit to depositions;
       (7) the prosecution’s late discovery tender prejudiced defendant; and (8) the dismissal of
       defendant’s section 2-1401 petition should be reversed and discovery should be re-opened.”
       Appellate counsel did not raise any issue concerning the exclusion of Oliver from the
       conference in chambers for jury selection. This court affirmed the trial court’s judgment.
       People v. Oliver, Nos. 1-04-3078, 1-06-0047 cons. (2009) (unpublished order under Supreme
       Court Rule 23).
¶ 12        On May 4, 2010, Oliver filed the pro se postconviction petition that is the subject of this
       appeal. Oliver raised eight separate arguments in his petition, and the trial court found them
       all frivolous and patently without merit. Oliver now challenges that ruling on only one of the
       issues. He asserted in his verified petition that he never gave his trial counsel permission to
       waive his presence at the jury selection conference in chambers. He contended in the
       postconviction petition that appellate counsel provided ineffective assistance when counsel
       failed to argue on the direct appeal that trial counsel provided ineffective assistance by

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       improperly waiving Oliver’s presence at this critical stage of the trial.
¶ 13        The trial court found that Oliver had shown a violation of the constitutional right to
       appear only if Oliver’s absence from the jury selection conference “result[ed] in a denial of
       an underlying substantial right, in other words, a constitutional right.” People v. Bean, 137
       Ill. 2d 65, 81 (1990). Applying the standard articulated in Bean, the trial court held:
       “Petitioner has failed to show that his absence from proceedings in chambers when
       challenges to the venire were made constituted an instance where his absence resulted in the
       denial of a constitutional (or any) right.” The court dismissed the petition as frivolous. Oliver
       now appeals.

¶ 14                                          ANALYSIS
¶ 15       We review de novo the dismissal of a postconviction petition at the first stage of
       postconviction proceedings. People v. Coleman, 183 Ill. 2d 366, 387-89 (1998). At this stage
       of proceedings, “a petition alleging ineffective assistance may not be summarily dismissed
       if (i) it is arguable that counsel’s performance fell below an objective standard of
       reasonableness and (ii) it is arguable that the defendant was prejudiced.” People v. Hodges,
       234 Ill. 2d 1, 17 (2009).
¶ 16       We assume the truth of all facts alleged in the postconviction petition, unless the record
       contradicts the allegations. Coleman, 183 Ill. 2d at 385. Here, trial counsel said she consulted
       with Oliver and she waived his appearance. Oliver alleged that he did not authorize trial
       counsel to waive his appearance at the jury selection conference. Because Oliver did not
       himself waive his appearance on the record, we find that the record does not contradict
       Oliver’s allegation. We assume, for purposes of this appeal, that Oliver and counsel
       misunderstood one another, and counsel waived Oliver’s appearance at the selection
       conference when Oliver had not authorized her to do so.
¶ 17       We agree with the trial court that our supreme court’s decisions in Bean and People v.
       McLaurin, 235 Ill. 2d 478 (2009), control our consideration of the underlying issue here. In
       Bean, the defendant claimed that the trial court violated his constitutional rights when it
       excluded the defendant from in camera voir dire of six members of the venire. Defense
       counsel, without consulting the defendant, used a peremptory challenge to excuse one of the
       venire members from the jury. None of the venire members interviewed in chambers served
       on the jury. Because the defendant did not raise the issue at trial, our supreme court reviewed
       the issue only for plain error. The Bean court said:
                “In the past we have declared that the broad ‘right to be present at trial’ is not itself
           a substantial right under the Illinois Constitution. [Citation.] Instead, it is a lesser right
           the observance of which is a means to securing the substantial rights of a defendant. Thus
           a defendant is not denied a constitutional right every time he is not present during his
           trial, but only when his absence results in a denial of an underlying substantial right, in
           other words, a constitutional right; and it is only in such a case that plain error is
           committed. [Citations.] Some of these substantial rights are the right to confront
           witnesses, the right to present a defense, and the right to an impartial jury. In the present
           case, the right to an impartial jury is the only substantial right possibly denied defendant.

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                 We conclude that no plain error occurred because, although defendant’s broad right
            of presence was improperly denied and could have affected the impartiality of the jury,
            defendant’s absence from the in camera voir dire did not, in fact, have the slightest effect
            on the impartiality of the jury selected. Indeed, even defendant does not claim that his
            jury was not impartial.” Bean, 137 Ill. 2d at 80-81.
¶ 18        The trial court interpreted Bean to mean that a defendant who shows only that the trial
       court excluded him from a critical stage of the trial has not shown a constitutional violation.
       Before the trial court can find a violation of the defendant’s constitutional right to presence
       at trial, the defendant must meet his burden of showing further “that his absence resulted in
       unfair proceedings that denied him substantial rights.” People v. Burnett, 385 Ill. App. 3d
       610, 617 (2008), aff’d, 237 Ill. 2d 381 (2010).
¶ 19        The appellate court observed, in Burnett, that the analysis of the constitutional right to
       presence at trial presented in Bean appears to conflict with the analysis of the same right
       presented in People v. Childs, 159 Ill. 2d 217 (1994). The Childs court held that the trial
       court violated the defendant’s constitutional right to presence at trial when the judge
       communicated ex parte with the jury, and because of the exclusion of the defendant from that
       critical stage of the trial, “the burden [was] on the State to prove beyond a reasonable doubt
       that the error was harmless.” Childs, 159 Ill. 2d at 228. Thus, under Childs, the trial court
       violates the defendant’s constitutional rights whenever the court conducts proceedings at a
       critical stage of the criminal trial in the defendant’s absence, unless the defendant has waived
       or forfeited his right to appear at the proceedings. The Bean court, on the other hand,
       appeared to hold that the trial court does not violate the defendant’s constitutional right to
       appear at the trial unless the defendant proves that his absence resulted in unfair proceedings
       that denied him rights other than the right to appear.
¶ 20        Our supreme court addressed this apparent conflict in McLaurin, 235 Ill. 2d 478. In that
       case, the defendant had failed to preserve for review an issue concerning his exclusion from
       discussions about how to respond to notes from the jury. The court held that the defendant
       did not meet his burden of showing that his absence from that part of the proceedings had
       any prejudicial effect. The defendant argued that under Childs, the State had the burden of
       proving that the constitutional violation amounted to harmless error. Our supreme court
       responded:
            “Defendant acknowledges the requirement of prejudice in Childs and McDonald, but he
            argues that the burden is on the State to prove beyond a reasonable doubt that no
            prejudice occurred. This argument ignores the crucial difference between an error a
            defendant has properly preserved for review and one which the defendant has forfeited.
            *** [W]here the defendant has made a timely objection and properly preserved an error
            for review, the reviewing court conducts a harmless-error analysis in which the State has
            the burden of persuasion with respect to prejudice. [Citation.] However, where the
            defendant fails to make a timely objection and therefore forfeits review, the reviewing
            court will examine the record only for plain error. In a plain-error review, the burden of
            persuasion remains on the defendant. [Citation.] *** [The defendant in Childs] properly
            preserved [his] claims for review, and this court applied a harmless error analysis,
            placing the burden on the State. As we have discussed, however, defendant in the present

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            case did not properly preserve his objections. Because he has forfeited his claims, we
            review them only for plain error, and the burden of persuasion remains on defendant to
            show prejudice.” McLaurin, 235 Ill. 2d at 495-96.
¶ 21        Thus, under the reasoning of McLaurin, when a defendant who has not waived or
       forfeited his right to be present shows that the court has conducted a critical stage of the trial
       in the defendant’s absence, the defendant has shown a violation of his constitutional rights.
       If he properly preserves the issue for review, the State must prove the violation harmless
       beyond a reasonable doubt. See Childs, 159 Ill. 2d at 228. The Bean analysis, placing the
       burden on the defendant to further show prejudice due to the violation of his constitutional
       right to presence at trial, applies only when the defendant has failed to preserve the issue for
       review, so that the defendant must prove that the constitutional error amounted to plain error.
       McLaurin, 235 Ill. 2d at 495-96.
¶ 22        The Bean court held that jury selection is a critical stage of the criminal trial. Bean, 137
       Ill. 2d at 84. Thus, Oliver has adequately stated a claim that his trial counsel violated his
       constitutional right by waiving his presence for part of jury selection, when he had not
       authorized his counsel to waive his presence. However, Oliver did not preserve the issue for
       review on the direct appeal. See People v. Oliver, Nos. 1-04-3078, 1-06-0047 cons. (2009)
       (unpublished order under Supreme Court Rule 23). To show that the violation might warrant
       a new trial, he must further state the gist of a claim that his absence from the in camera jury
       selection conference prejudiced him. Hodges, 234 Ill. 2d at 17.
¶ 23        The record shows that 12 qualified jurors decided that the evidence proved Oliver guilty
       as charged. Oliver, in his petition and in his argument on this appeal, offers nothing–no
       evidence in the record, no affidavits, and not even any naked assertions in his postconviction
       petition–to support a finding that his absence from the in camera jury selection proceedings
       led the court to empanel a biased jury. Thus, the record and the facts asserted in the petition
       do not even arguably support a finding that Oliver suffered any prejudice due to trial
       counsel’s error. Without any evidence that the jurors harbored prejudices against Oliver,
       Oliver’s appellate counsel had no grounds to claim that Oliver’s exclusion from the jury
       selection conference gave the appellate court grounds to reverse the trial court’s judgment,
       especially because Oliver had not preserved the issue for appellate review. See McLaurin,
       235 Ill. 2d at 492-96. Thus, Oliver’s petition does not state the gist of a claim that his trial
       counsel’s error or his appellate counsel’s choice of issues to raise on the direct appeal
       provided grounds for the trial court to grant him a new trial. See Hodges, 234 Ill. 2d at 17.
       Accordingly, because Oliver has not presented even allegations to show that he arguably
       suffered prejudice due to trial counsel’s alleged error, or that his appellate counsel arguably
       erred by choosing not to raise on the direct appeal any issue concerning Oliver’s exclusion
       from the in camera discussion of jury selection, we must affirm the dismissal of his
       postconviction petition. See McLaurin, 235 Ill. 2d at 492-96.

¶ 24       Affirmed.




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