                                  Illinois Official Reports

                                          Appellate Court



                             People v. Williams, 2015 IL App (2d) 130585



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      TYRONE D. WILLIAMS, Defendant-Appellant.



District & No.               Second District
                             Docket No. 2-13-0585



Filed                        February 27, 2015



Held                         Defendant’s contention that his constitutional right to a public trial
(Note: This syllabus         was violated when the trial court excluded three spectators from the
constitutes no part of the   hearing on the revocation of his probation was rejected by the
opinion of the court but     appellate court and the appellate court affirmed the expulsion of the
has been prepared by the     spectators, even though an assistant State’s Attorney had asked the
Reporter of Decisions        court to admonish the three about talking to witnesses and that they be
for the convenience of       investigated with respect to witness intimidation, since the United
the reader.)                 States Supreme Court has held in Morrissey that the liberty interest of
                             a convicted offender who is on parole or probation is of a lower order
                             than that of an accused facing a criminal offense, and there is no
                             constitutional right to a public hearing on a petition to revoke
                             probation.



Decision Under               Appeal from the Circuit Court of Winnebago County, No.
Review                       10-CF-1361; the Hon. John R. Truitt, Judge, presiding.



Judgment                     Affirmed.
     Counsel on               Thomas A. Lilien and Richard C. Harris, both of State Appellate
     Appeal                   Defender’s Office, of Elgin, for appellant.

                              Joseph P. Bruscato, State’s Attorney, of Rockford (Lawrence M.
                              Bauer and Jay Paul Hoffmann, both of State’s Attorneys Appellate
                              Prosecutor’s Office, of counsel), for the People.



     Panel                    JUSTICE SPENCE delivered the judgment of the court, with opinion.
                              Justices Zenoff and Burke concurred in the judgment and opinion.




                                               OPINION

¶1         In November 2010, defendant, Tyrone D. Williams, pleaded guilty in the circuit court of
       Winnebago County to a single count of aggravated discharge of a firearm (720 ILCS
       5/24-1.2(a)(1) (West 2010)) and was sentenced to a 36-month term of probation. The State
       subsequently petitioned the trial court to revoke defendant’s probation, alleging, inter alia,
       that, on June 23, 2012, defendant committed the offenses of aggravated discharge of a firearm
       (720 ILCS 5/24-1.2(a)(2) (West 2012)) and unlawful possession of a weapon by a felon (720
       ILCS 5/24-1.1(a) (West 2012)). Following a hearing, the trial court revoked defendant’s
       probation and sentenced him to an 8½-year prison term. On appeal, defendant argues that, by
       excluding three spectators from the revocation hearing, the trial court violated his
       constitutional right to a public trial. We affirm.
¶2         The State’s evidence established that in the early morning hours of June 23, 2012, Antonio
       Williams was treated for gunshot wounds at a Rockford hospital. The State presented the
       testimony of seven witnesses during its case-in-chief at the revocation hearing. The third of
       those witnesses, Tiffany Seif, testified that on June 23, 2012, she and a number of other
       individuals, including defendant, had gathered outside an apartment building. At some point,
       defendant began to argue with Antonio Williams. After a few minutes Seif heard gunshots.
       Seif testified that she thought she saw someone known to her as “Rio” hand a gun to defendant.
       Seif then went to look for Antonio Williams, who had run away. Shortly after she located him,
       he collapsed. Two other individuals put Antonio Williams in Seif’s car, and she drove him to
       the hospital. At about 5:45 a.m., several Rockford police officers responded to a report of
       suspicious vehicles at 1200 South Court Street. Defendant was standing by one of the vehicles,
       which was occupied by two individuals. A 9-millimeter handgun was discovered in that
       vehicle. It was stipulated that forensic testing on shell casings found at the scene of the
       shooting established that they had been fired from that weapon.
¶3         After the State presented the final witness in its case-in-chief, the following exchange took
       place:


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     “MS. LARSON [Assistant State’s Attorney]: Judge, Wendy Larson for the People.
There are two black males and a black female seated in the second row of the gallery.
The People, along with the defense attorney, Mr. Taylor, made an offer to the Court of
an incident that happened after our civilian witness testified. We indicated to the Court
that the large black male and the smaller black male, somehow seemed to be following
our victim advocate along with the civilian witness as she left the courthouse. The
Court agreed that since she had already testified, there was not much that could or
should happen, although, prior to alerting the Court of this, *** I did have a
conversation here at counsel table quietly [with cocounsel and the victim advocate].
And it now appears that these individuals not only overheard our discussion but had a
discussion amongst themselves *** in which they were discussing what they should
tell the Court about why they were pursuing this witness, that they should merely say
that they were stepping out for some fresh air. I have a concern, Judge. I’m going to ask
that the gallery be cleared, that the Court admonish these people they are not to be
talking to witnesses. And I’m going to ask that officers from the County be called, that
we get these individuals’ names, and that an investigation of witness intimidation be
pursued by the County sheriff.
     MR. TAYLOR [defense attorney]: Judge, number one, if there’s going to be an
accusation made that’s going to be made in the context of this proceeding, as far as
what the State chooses to investigate on their own time, I don’t care. I don’t have a dog
in that fight. But it appears to me that with less than stellar evidence so far, they are now
trying to cast aspersions on my client based on unspecified accusations against people
that are here in the gallery, and I have a problem with that.
     THE COURT: Well, I don’t think it’s directed to your client at all.
     MR. TAYLOR: Okay. As long as–as long as there’s not–its clear that there’s no
accusation being made against him, and as long as–Your Honor can–I don’t really
think I have any kind of standing to respond as long as you’re not considering it any
kind of a piece of evidence against my client. I do, however, think before we start
accusing people of something if there’s going to be an accusation against anybody,
somebody who claims to have overheard something should be called and sworn and
testify to what they overheard. But if it’s not going to be–I don’t really want to
contaminate these proceedings with that if–as long as everybody is clear that my client
had nothing to do with it.
     THE COURT: Well, your client wasn’t a party to our conversation in the back.
     MR. TAYLOR: Sure.
     THE COURT: And your client certainly wasn’t in the courtroom whenever Ms.
Lalowski heard what she heard.
     MR. TAYLOR: And for the record, I was not–after our conversation, I never came
back in the courtroom before I did with Your Honor after having heard these
allegations were getting brought up. I was in the back trying to get a chance to review a
stipulation with my client. So we have nothing to do with any of this. That’s my point,
Judge.
     THE COURT: All right. Well, there was an incident last week as well where a
person present observing engaged in criminal activity after the case had been called. It


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              was called to the Court’s attention. I understand that person was charged with a
              misdemeanor felony offense of some kind, and in order to preserve the integrity of
              these proceedings, I’m going to order that George Williams, Dwayne Thomas, and
              Markito Reed be barred from this courtroom during the balance of the proceedings.”
¶4        The sixth amendment to the United States Constitution (U.S. Const., amend. VI)
     guarantees a criminal defendant the right to a public trial. “This guarantee is for the benefit of
     the accused and ‘is a safeguard against any attempt to employ the courts as instruments of
     persecution.’ [Citations.]” People v. Cooper, 365 Ill. App. 3d 278, 281 (2006). Although the
     right to a public trial is not absolute, a party seeking to close proceedings to the public “ ‘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.’ ” Id. at 282
     (quoting Waller v. Georgia, 467 U.S. 39, 48 (1984)).
¶5        Defendant argues that the trial court’s decision to eject three spectators from the revocation
     hearing did not comply with the above principles. Defendant relies in part on Alvarez v. State,
     827 So. 2d 269 (Fla. Dist. Ct. App. 2002), which recognized, as a matter of due process, a right
     to a public probation-revocation hearing corresponding to the right to a public trial. When the
     trial court expelled the spectators in question, defense counsel protested that any misconduct
     on the part of the spectators should not be imputed to defendant. However, defense counsel did
     not raise any objection based on the right to a public trial. Nor did defendant raise the issue in
     his motion for reconsideration. Ordinarily a defendant forfeits review of an error if he or she
     does not both object at trial and raise the issue in his or her posttrial motion. People v. Enoch,
     122 Ill. 2d 176, 186 (1988). Defendant argues that review is proper because “[t]he right to a
     public trial can only be waived when the defendant makes a knowing and intelligent waiver of
     that right.” Defendant alternatively argues that the issue is reviewable under the plain-error
     rule. See Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967) (“Plain errors or defects affecting substantial
     rights may be noticed although they were not brought to the attention of the trial court.”).
¶6        Before proceeding, we must stress the important distinction between the concepts of
     “forfeiture” and “waiver.” In People v. Blair, 215 Ill. 2d 427, 444 n.2 (2005), our supreme
     court stated as follows:
              “As explained by the United States Supreme Court in United States v. Olano, 507 U.S.
              725 *** (1993), ‘Waiver is different from forfeiture. Whereas forfeiture is the failure to
              make the timely assertion of the right, waiver is the “intentional relinquishment or
              abandonment of a known right.” ’ [Id. at 733.]”
     Although a forfeited error may qualify for review under the plain-error rule, waiver of a right
     forecloses review of a claim of error predicated on the waived right. People v. Tapia, 2014 IL
     App (2d) 111314, ¶ 46. “Deviation from a legal rule is ‘error’ unless the rule has been waived.”
     (Emphasis added.) Olano, 507 U.S. at 732-33. The State maintains that defendant’s attorney
     intentionally relinquished whatever right defendant might have otherwise had to a public
     revocation hearing, thereby waiving any such right on defendant’s behalf. If that is correct, no
     error occurred and the plain-error rule would have no application. The State alternatively
     argues that, even if counsel merely forfeited the issue, no error occurred.
¶7        It appears that courts are not in complete agreement about what an effective waiver of the
     right to a public trial entails. Walton v. Briley, 361 F.3d 431, 434 (7th Cir. 2004), held that “like
     other fundamental trial rights, a right to a public trial may be relinquished only upon a showing

                                                   -4-
       that the defendant knowingly and voluntarily waived such a right.” On the other hand, United
       States v. Reagan, 725 F.3d 471 (5th Cir. 2013), held that a failure to properly object to an
       alleged closure of the courtroom waived any error and that “ ‘[w]aived errors are entirely
       unreviewable, unlike forfeited errors, which are reviewable for plain error.’ ” Id. at 488
       (quoting United States v. Musquiz, 45 F.3d 927, 931 (5th Cir. 1995)). United States v. Christi,
       682 F.3d 138 (1st Cir. 2012), appears to represent an intermediate approach. Christi suggests
       that counsel’s failure to object to a closure of the courtroom does not invariably foreclose
       plain-error review. Id. at 142. However, according to the Christi court, where the trial court
       has, as a practical matter, invited an objection to a closure of the courtroom, counsel’s silence
       can “pass[ ] beyond inadvertence or passivity to the point of waiver.” Id.
¶8          We need not decide which (if any) of these approaches is correct. Even if we were to
       conclude that the failure to object amounted merely to a forfeiture and not to a waiver, review
       under the plain-error rule would still be unavailable here. The plain-error rule permits review
       of a forfeited error in the following circumstances: “(1) a clear or obvious error occurred and
       the evidence is so closely balanced that the error alone threatened to tip the scales of justice
       against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error
       occurred and that error is so serious that it affected the fairness of the defendant’s trial and
       challenged the integrity of the judicial process, regardless of the closeness of the evidence.”
       People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). Defendant contends that the second
       circumstance warrants plain-error review in this case. Our supreme court has equated the
       second circumstance with “structural error” (People v. Thompson, 238 Ill. 2d 598, 613 (2010)),
       i.e., error that is not amenable to an individualized assessment of prejudice (accord
       Washington v. Recuenco, 548 U.S. 212, 218 (2006) (“Only in rare cases has this Court held
       that an error is structural, and thus requires automatic reversal.”)).
¶9          Violation of the right to a public trial has been described as structural error. Id. at 218 n.2.
       The question here, however, is whether there is a constitutional right to a public
       probation-revocation hearing. In Morrissey v. Brewer, 408 U.S. 471 (1972), the United States
       Supreme Court considered what procedural protections must be afforded in a
       parole-revocation proceeding. The Court stated as follows:
               “Our task is limited to deciding the minimum requirements of due process. They
               include (a) written notice of the claimed violations of parole; (b) disclosure to the
               parolee of evidence against him; (c) opportunity to be heard in person and to present
               witnesses and documentary evidence; (d) the right to confront and cross-examine
               adverse witnesses (unless the hearing officer specifically finds good cause for not
               allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional
               parole board, members of which need not be judicial officers or lawyers; and (f) a
               written statement by the factfinders as to the evidence relied on and reasons for
               revoking parole. We emphasize there is no thought to equate *** [the] parole
               revocation [hearing] to a criminal prosecution in any sense. It is a narrow inquiry; the
               process should be flexible enough to consider evidence including letters, affidavits, and
               other material that would not be admissible in an adversary criminal trial.” (Emphasis
               added.) Id. at 488-89.
¶ 10        The same principles apply to proceedings to revoke probation. Gagnon v. Scarpelli, 411
       U.S. 778, 782 (1973). Defendant cites Alvarez for the proposition that due process requires, in
       addition, that the revocation hearing be open to the public. The Alvarez court reasoned, in part,

                                                     -5-
       that “these proceedings are as important to the defendant’s liberty as is the criminal
       prosecution, and the defendant will desire the public presence to assure he/she is being fairly
       dealt with by the court.”1 Alvarez, 827 So. 2d at 273. But the United States Supreme Court has
       made clear that the liberty interest of a convicted offender who is on parole or probation is of a
       somewhat lower order than that of the accused facing prosecution for a criminal offense.
       Morrissey, 408 U.S. at 480-83. We note that, in light of Morrissey and Gagnon, the Supreme
       Court of Mississippi has specifically held that there is no constitutional right to a public
       hearing on a petition to revoke probation. Williams v. State, 409 So. 2d 1331, 1333 (Miss.
       1982).
¶ 11       Plain-error review is reserved for errors that are clear or obvious based on law that “is well
       settled at the time of trial; if the law was unclear at the time of the trial, but becomes clear (i.e.,
       settled) during the appeal, then the error is not ‘plain’ for purposes of the plain-error doctrine.”
       People v. Downs, 2014 IL App (2d) 121156, ¶ 20; see In re M.W., 232 Ill. 2d 408, 431 (2009)
       (error is not plain if the law is unclear at time of trial). The pertinent law is not sufficiently
       settled to permit review under the plain-error rule.2
¶ 12       For the foregoing reasons, the judgment of the circuit court of Winnebago County is
       affirmed.

¶ 13       Affirmed.




           1
             Interestingly, the Alvarez court is among those that have held that the failure to object to a closure
       of the courtroom amounts to a waiver of any error, and on that basis the court declined to grant the
       defendant any relief.
           2
             Defendant has pointed out that it is provided by state statute that the evidence in a revocation
       proceeding be presented in “open court.” See 730 ILCS 5/5-6-4(c) (West 2012). Defendant argues that
       the statute thus contemplates a public proceeding. Be that as it may, it does not follow that the standard
       for excluding spectators from a revocation proceeding is necessarily the same as the constitutional
       standard for excluding members of the public from a trial or that a violation of this purely statutory
       requirement would constitute structural error. Thus, plain-error review is unavailable with respect to
       any statutory error.

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