                                         2018 IL App (3d) 140404

                                 Opinion filed July 13, 2018
     _____________________________________________________________________________

                                                 IN THE


                                  APPELLATE COURT OF ILLINOIS


                                            THIRD DISTRICT


                                                   2018 


     THE PEOPLE OF THE STATE OF ILLINOIS, )       Appeal from the Circuit Court
                                            )     of the 21st Judicial Circuit,
           Plaintiff-Appellee,              )     Kankakee County, Illinois.
                                            )
           v. 	                             )     Appeal No. 3-14-0404

                                            )     Circuit No. 11-CF-662

     TAVARIUS D. RADFORD,                   )

                                            )     Honorable Clark Erickson,
           Defendant-Appellant.             )     Judge, Presiding.
     _____________________________________________________________________________

            JUSTICE SCHMIDT delivered the judgment of the court, with opinion. 

            Justice Wright concurred in the judgment and opinion. 

            Justice McDade dissented, with opinion.


                                                OPINION

¶1          A jury convicted defendant, Tavarius D. Radford, of felony child endangerment (720

     ILCS 5/12-21.6(a) (West 2010)), for which the trial court sentenced him to 42 months in prison.

     Defendant now appeals his conviction. First, defendant argues that the State’s evidence failed to

     prove his guilt beyond a reasonable doubt. Second, he contends that the trial court plainly erred

     by issuing a child endangerment jury instruction that misstated the requisite mens rea or, in the

     alternative, counsel provided ineffective assistance by not objecting to the instruction. Finally,

     defendant claims the trial court violated his right to a public trial by partially closing the
     courtroom during voir dire and, later in the trial, asking journalism students in the audience to

     find a seat or leave the courtroom. For the following reasons, we affirm defendant’s conviction.

¶2                                           BACKGROUND

¶3          The State charged defendant with murder and child endangerment after his 26-month-old

     daughter died from traumatic head injuries on October 26, 2011. Around 10 a.m. that morning,

     Kayleigh Reardanz found her daughter, M.R., unresponsive in their Bourbonnais apartment. By

     the time she reached the hospital, M.R. had fallen into cardiac arrest. After attempting to

     resuscitate her, the treating physician pronounced M.R. dead shortly after 11 a.m. The forensic

     pathologist who performed M.R.’s autopsy concluded that blunt head trauma from child abuse

     caused her death. M.R.’s death certificate described her manner of death as homicide due to child

     abuse. Defendant’s jury trial began November 18, 2013.

¶4          Prior to voir dire, the trial court recognized that, although jury selection is a public

     proceeding, the courtroom could not accommodate over 90 potential jurors and spectators

     present for the proceedings. The record indicates that M.R.’s family members and other members

     of the public regularly attended pretrial hearings. Due to the nature of the case, the trial court

     also noted that the large congregation of spectators with “emotions running high” risked

     contaminating the jury pool.

¶5          The court observed that the spectators appeared equally divided between those who

     supported defendant and those who did not. In an effort to preserve defendant’s public trial right

     and proceed with jury selection, the court asked all spectators, except two who supported

     defendant and two who did not, to leave the courtroom. The court let the spectators decide who

     would remain in the courtroom. Neither defendant nor his counsel objected to this partial closure.




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¶6          Kayleigh testified that she, defendant, and M.R. lived in the Bourbonnais apartment for

     approximately one month before M.R.’s death. They lived in the apartment with Kayleigh’s

     grandparents, Cheryl and David Heather, and close friends, Kimberly and Echo Brewington. On

     October 26, 2011, Kayleigh found M.R. unresponsive around 10 a.m. Her skin was blue in color

     and very cold. Kayleigh became upset and yelled for help. She called 911 and handed the phone

     to Kimberly. Before the ambulance arrived, David attempted to resuscitate M.R. by performing

     CPR. Doctors pronounced M.R. dead just after 11 a.m.

¶7          Kayleigh spoke with police at the hospital and again days after M.R.’s death. During

     these conversations, Kayleigh did not disclose M.R.’s prior falls or medical history. She testified

     that she believed M.R. died from sudden infant death syndrome (SIDS), so she did not think to

     disclose M.R.’s prior falls to police. After M.R.’s autopsy revealed that she died from head

     trauma caused by child abuse, police interviewed Kayleigh a third time. This time, she informed

     police of M.R.’s prior falls and medical history.

¶8          Kayleigh testified that M.R. was born in August 2009. Soon after, M.R. developed a blue

     sclera and grew to be unusually large for her age. Her pediatrician believed these symptoms were

     consistent with osteogenesis imperfecta (brittle bone disease) and recommended a blood test and

     appointment with a geneticist. When Kayleigh and defendant received M.R.’s blood test results,

     they decided not to consult the geneticist.

¶9          In January or February 2011, M.R. fell down and hit her head while defendant babysat

     her. Defendant took M.R. to the emergency room; Kayleigh met him there. M.R.’s computed

     tomography (CT) scans were negative, and the treating physician discharged her. Kayleigh

     noticed a “knot” on M.R.’s forehead at the hospital.




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¶ 10          Kayleigh also testified that M.R. “split her eyebrow open” later in 2011 while Kayleigh’s

       friend babysat. Then, on Easter in 2011, M.R. slipped in Kayleigh’s mother’s bathtub and

       “busted her chin.” M.R. went to the emergency room after both falls.

¶ 11          In September 2011, M.R.’s pediatrician diagnosed her with mild anemia. On October 13,

       Kayleigh again took M.R. to her pediatrician due to a large rash on her chest. Kayleigh pointed

       out bite marks on M.R.’s arm where she bit herself. The pediatrician believed that capillary

       hemangiomas caused M.R.’s rash. M.R.’s self-harm stemmed from a behavioral issue unrelated

       to the rash. The rash subsided the next day, so defendant and Kayleigh never took M.R. to

       undergo bleeding and bruising panels that her pediatrician ordered.

¶ 12          On October 22, M.R. fell and hit her head on the pavement while playing outside with

       Kayleigh. Kayleigh examined M.R.’s head but saw no injury; she did not take M.R. to the

       hospital. However, she kept M.R. awake for at least one hour after the fall in case she sustained a

       concussion.

¶ 13          Kayleigh also testified that M.R. fell the day before her death. She threw herself

       backwards during a tantrum and hit her head on the pavement. After the incident, M.R.

       complained of head pain. While Kimberly and Kayleigh were styling M.R.’s hair later that night,

       M.R. complained of pain when they touched the back of her head. Cheryl, Kimberly, and

       Kayleigh examined M.R.’s head but did not see any indication of injury. Although Kayleigh

       stated these events occurred the day before M.R.’s death, Echo testified that it occurred on

       October 23, three days before M.R.’s death.

¶ 14          Kayleigh stated that she worked from 3 p.m. until 11 p.m. on October 25. When she

       returned to the apartment after work, she noticed M.R. whimpering and shaking. Kayleigh asked

       M.R. if she was in pain; she indicated that she was not. M.R. commonly shook when she became



                                                       4

       impatient, so Kayleigh was not alarmed by M.R.’s behavior. Kayleigh discovered M.R.

       unresponsive the next morning.

¶ 15          Cheryl testified that Kayleigh took her to the grocery store in the early afternoon on

       October 25. M.R. was asleep when Cheryl and Kayleigh returned to the apartment before 3 p.m.

       After quickly getting ready, Kayleigh left for work around 3 p.m. At around 5 p.m., Cheryl

       agreed to watch M.R., who was still asleep, while defendant and Echo biked to Kankakee.

¶ 16          Echo testified that she and defendant were gone for at least two hours—they biked to a

       friend’s house, purchased marijuana, and smoked it in a nearby park. M.R. was still asleep when

       defendant and Echo returned to the apartment around 7 p.m.

¶ 17          Although defendant did not testify on his own behalf, the jury viewed his videotaped

       police interview. Before the jury viewed the interview, journalism students from a local

       university entered the courtroom to observe the proceedings, specifically the interview. The trial

       court asked the students to “find a place to sit” or they would have to leave the courtroom. The

       record does not indicate whether any of the students left the courtroom.

¶ 18          During the interview, defendant told police that he tucked M.R. in for a nap before 3 p.m.

       on October 25. A few minutes later, defendant returned to check on M.R. She was playing with a

       wooden unicorn plaque instead of sleeping. Defendant grew angry at M.R.’s insubordination and

       tucked her in “kind of roughly.” He immediately apologized to M.R. and told her that he loved

       her.

¶ 19          Defendant told police that he did not believe M.R. could have been injured when he

       tucked her in. He speculated that she may have hit her head on the wooden plaque, but he was

       uncertain. However, when defendant demonstrated his action toward M.R. on a stuffed bear, he




                                                       5

       told police the demonstration was less aggressive than how he tucked M.R. in because he did not

       want to hurt the bear.

¶ 20          Defendant also told police that M.R.’s naps would typically last between 60 and 90

       minutes; on October, 25, she slept for at least 4 hours. She seemed to have no appetite and ate

       very little at dinner after she awoke from her nap. Defendant also told police that M.R. may have

       vomited after dinner, but he could not remember for certain.

¶ 21          Two experts presented crucial testimony regarding M.R.’s manner of death. Dr. Valerie

       Arangelovich, the forensic pathologist who performed M.R.’s autopsy, opined that abuse caused

       M.R.’s fatal head trauma. Dr. Shaku Teas, an experienced forensic pathologist, disagreed with

       Arangelovich’s conclusion and criticized her methods. Teas found no signs of child abuse in

       M.R.’s autopsy record.

¶ 22          Specifically, Teas disagreed with Arangelovich’s conclusion that M.R.’s fatal injuries

       occurred within 24 hours of her death. Arangelovich found subgaleal and subdural injuries in

       M.R.’s brain—both experts agreed that the subdural injuries directly caused M.R.’s death. Both

       experts also agreed that the subgaleal injuries were likely old injuries. Arangelovich found iron

       when she sampled M.R.’s subgaleal injuries. Iron in adult injuries indicates the injury is at least

       three days old; there is no accepted iron-testing scale for children.

¶ 23          Arangelovich also observed “very rare” fibroblasts in M.R.’s subdural injuries. In adults,

       fibroblasts do not appear until at least three days after sustaining an injury. In children,

       fibroblasts can occur naturally or in response to an injury. Arangelovich could not determine

       whether the fibroblasts presented naturally or in response to M.R.’s subdural injuries; nor could

       she opine with reasonable certainty whether the adult fibroblast timeline also applies to children.




                                                         6

       However, Arangelovich opined that M.R.’s subdural injuries occurred within 24 hours of her

       death due to their color and lack of healing.

¶ 24          Teas testified that it was impossible to determine when M.R. sustained her subdural

       injuries because Arangelovich failed to take blood and tissue samples from the periphery of

       M.R.’s injuries, where healing typically begins. According to Teas, taking samples exclusively

       from the center of an injury does not provide necessary data to determine the injury’s age. Teas

       noted multiple signs of healing in Arangelovich’s samples of M.R.’s subdural injuries. Teas

       opined that these signs of healing in the center of M.R.’s subdural injuries indicate that the

       injuries’ periphery would likely show additional healing that would more accurately determine

       their age. From this evidence, Teas opined that M.R.’s subdural and subgaleal injuries were

       “definitely” more than 24 hours old when she died—M.R. sustained them before defendant

       “roughly” tucked her in on October 25. Teas also opined that Arangelovich’s autopsy file did not

       definitively show that abuse, rather than accidental falls, caused M.R.’s fatal injuries.

¶ 25          At the close of evidence, the State tendered a jury instruction on involuntary

       manslaughter. Defense counsel conceded that defendant had no basis to object because

       involuntary manslaughter is a lesser-included offense of murder. The trial court issued the

       instruction. The jury acquitted defendant of murder and involuntary manslaughter but convicted

       him of child endangerment.

¶ 26          Defendant was 17 years old when M.R. died. His presentence report contained letters

       from friends, relatives, neighbors, and teachers who stated that defendant was a good kid who

       would never hurt anyone. Although defendant admitted during his police interview that he

       smoked marijuana, he had no criminal history. No witness testified that defendant abused M.R.

       prior to October 25, 2011. The trial court sentenced him to 42 months in prison. After



                                                         7

       defendant’s sentencing hearing, the trial court denied his motion to reconsider. This appeal

       followed.

¶ 27                                              ANALYSIS

¶ 28          Defendant makes three arguments challenging his conviction. First, he claims that the

       State failed to prove him guilty beyond a reasonable doubt. Specifically, defendant argues that

       even if his actions proximately caused M.R.’s death (which he disputes), the State failed to prove

       defendant willfully or knowingly endangered M.R.’s life. Second, defendant asserts that the trial

       court erred by instructing the jury that child endangerment’s state-of-mind element requires

       “willfully,” rather than “knowingly,” causing or permitting a child’s life or health to be

       endangered. Defendant argues the trial court’s misleading instruction constituted plain error or,

       in the alternative, his counsel provided ineffective assistance by failing to object. Finally,

       defendant claims the trial court denied him a public trial when it partially closed the courtroom

       during voir dire and, later in the trial, when it instructed journalism students to find a seat or

       leave the courtroom. We address each argument in turn.

¶ 29                                     I. Sufficiency of the Evidence

¶ 30          When a defendant challenges the sufficiency of the evidence supporting his conviction,

       the standard of review is whether, after viewing the evidence in the light most favorable to the

       prosecution, any rational trier of fact could have found the offense’s essential elements proven

       beyond a reasonable doubt. People v. Pollock, 202 Ill. 2d 189, 217 (2002). Reviewing courts do

       not retry defendants, reweigh trial evidence, or otherwise undermine the fact finder’s judgment.

       People v. Tenney, 205 Ill. 2d 411, 428 (2002). A conviction will stand unless the evidence is so

       improbable, unsatisfactory, or inconclusive that it creates a reasonable doubt of the defendant’s

       guilt. People v. Evans, 209 Ill. 2d 194, 209 (2004).



                                                        8

¶ 31          The State charged defendant with felony child endangerment. The State had to prove that

       (1) M.R. was in defendant’s care or custody, (2) defendant willfully caused or permitted M.R.’s

       life to be endangered, and (3) defendant’s acts proximately caused M.R.’s death. See 720 ILCS

       5/12-21.6 (West 2010). Defendant claims that the State failed to prove that his actions

       proximately caused M.R.’s death or that he willfully endangered M.R.’s life.

¶ 32                                         A. Proximate Cause

¶ 33          In support of his proximate cause argument, defendant claims that he “presented a strong

       case that M.R.’s death was caused by an accidental fall,” not by his action. He emphasizes

       Kayleigh’s trial testimony stating that M.R. suffered head injuries from accidental falls before

       her death. He also highlights Dr. Teas’s opinion that M.R.’s fatal injuries occurred more than 24

       hours prior to her death, before defendant tucked her in “kind of roughly.” Teas also opined that

       M.R.’s injuries did not show signs of abuse.

¶ 34          On the other hand, Dr. Arangelovich opined that M.R.’s fatal injuries occurred within 24

       hours of her death. She also opined that abuse caused M.R.’s injuries. Combining

       Arangelovich’s opinion with defendant’s police interview, the State presented an “eggshell

       skull” theory; M.R.’s prior falls and medical issues made her more susceptible to fatal head

       trauma but did not cause her death. According to the State, defendant’s admittedly aggressive

       act, tucking M.R. in “roughly,” endangered her life and proximately caused her death.

¶ 35          Essentially, this issue turned on the jury’s perception of opposing expert opinions. Other

       trial evidence and testimony did not overwhelmingly support either expert’s opinion. Although

       testimony regarding M.R.’s prior falls tends to support Dr. Teas’s opinion, Kayleigh did not

       disclose M.R.’s prior falls to police until her autopsy report concluded she was abused. The jury

       could have reasonably discredited this testimony. Moreover, Arangelovich agreed with Teas that



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       M.R. had preexisting head injuries when she died; the experts disagreed as to whether new

       injuries caused her death.

¶ 36          The jury apparently agreed with Dr. Arangelovich. We do not find her expert opinion to

       be improbable, unsatisfactory, or inconclusive. See Evans, 209 Ill. 2d at 209. Viewing the

       evidence in the light most favorable to the State, we hold that the evidence sufficiently supported

       the jury’s finding that defendant’s actions proximately caused M.R.’s death.

¶ 37                                            B. State of Mind

¶ 38          Defendant argues that his videotaped police interview clearly demonstrates that, even if

       his actions proximately caused M.R.’s death, he did not willfully harm her. As defendant points

       out, acting “willfully,” to satisfy the requisite mental culpability for child endangerment, is

       synonymous with acting “knowingly.” People v. Jordan, 218 Ill. 2d 255, 270 (2006); see also

       720 ILCS 5/4-5(b) (West 2012). A person acts “knowingly” when he or she knows that his or her

       conduct is practically certain to cause the result. People v. Dorsey, 2016 IL App (4th) 140734,

       ¶ 34 (citing People v. Psichalinos, 229 Ill. App. 3d 1058, 1067 (1992)). The jury may infer intent

       from circumstantial evidence. People v. Williams, 165 Ill. 2d 51, 64 (1995). “The defendant is

       presumed to intend the natural and probable consequences of his acts ***.” People v. Terrell,

       132 Ill. 2d 178, 204 (1989).

¶ 39          The trial evidence, viewed in the light most favorable to the State, showed that defendant

       knew his aggressive physical act toward his 26-month-old daughter endangered her life or health.

       Defendant acted on his own volition when he “roughly” tucked M.R. into her daybed. During his

       police interview, he demonstrated tucking M.R. in by using a stuffed teddy bear. After

       defendant’s first demonstration, he admitted that he tucked M.R. in harder than in the




                                                       10 

       demonstration because he did not want to hurt the bear. During the second demonstration,

       defendant applied noticeably more force.

¶ 40          Defendant became frustrated because M.R. would not lie down for her nap, so he

       “roughly” forced her into her daybed. His apology to M.R. after forcing her into her daybed

       indicates that he knew he could have injured her. He also knew M.R.’s medical history and

       understood she might be more susceptible to injury than other infants. Based on the evidence, the

       jury could reasonably conclude that defendant willfully endangered M.R.’s life or health.

¶ 41                                           II. Jury Instruction

¶ 42          Defendant also argues that the trial court denied him a fair trial by issuing an erroneous

       child endangerment jury instruction. Following Illinois Pattern Jury Instructions, Criminal, Nos.

       11.29, 11.30 (4th ed. 2000) (hereinafter IPI Criminal 4th), the instruction stated that defendant

       should be found guilty of child endangerment if the jury concluded, beyond a reasonable doubt,

       that he assumed care or custody over M.R., “willfully caused or permitted” M.R.’s life to be

       endangered, and his acts proximately caused M.R.’s death. The trial court did not tender IPI

       Criminal 4th No. 5.01B, which states: “Conduct performed knowingly or with knowledge is

       performed willfully.” Defense counsel made no objection. Defendant claims that the

       instruction’s use of “willfully” rather than “knowingly” in the absence of IPI Criminal 4th No.

       5.01B was plain error. Alternatively, defendant argues that counsel provided ineffective

       assistance by not objecting to the allegedly erroneous instruction.

¶ 43          Illinois Supreme Court Rule 451(c) (eff. July 1, 2006) states that “substantial defects” in

       jury instructions “are not waived by failure to make timely objections thereto if the interests of

       justice require.” Rule 451(c) is coextensive with the plain-error clause in Illinois Supreme Court

       Rule 615(a). People v. Keene, 169 Ill. 2d 1, 32 (1995); People v. Jackson, 2015 IL App (3d)



                                                       11 

        140300, ¶ 53 n.3. Defendant must demonstrate that the trial court’s instruction constituted “clear

        or obvious error” that denied him a fair trial. People v. Downs, 2015 IL 117934, ¶¶ 14-15; see

        also Ill. S. Ct. R. 615(a). A fair trial is not necessarily a perfect trial. People v. Herron, 215 Ill.

        2d 167, 177 (2005).

¶ 44           For over a decade, Illinois courts have held “willful” conduct to be synonymous with

        “knowing” conduct for child endangerment offenses. Jordan, 218 Ill. 2d at 270. Between M.R.’s

        date of death (October 26, 2011) and defendant’s trial (November 18, 2013), the General

        Assembly codified Jordan by changing the requisite state of mind for child endangerment from

        “willful” to “knowing.” Pub. Act 97-1109, §§ 1-5 (eff. Jan. 1, 2013); compare 720 ILCS 5/12­

        21.6 (West 2010), with 720 ILCS 5/12C-5 (West 2012). However, the amendment did not

        substantively change the law; “willful” and “knowing” reflect the same state of mind for child

        endangerment offenses.

¶ 45           At its core, defendant’s challenge argues that the jury reached inconsistent verdicts. The

        crux of defendant’s argument is that the term “willfully” conveyed to the jury a less culpable

        state-of-mind requirement than “knowingly.” By finding defendant not guilty of murder, the jury

        concluded defendant did not “know” his actions would likely kill M.R. or cause her great bodily

        harm. Based on the murder verdict, defendant claims the jury would not have concluded he

        “knowingly” endangered M.R.’s life or health.

¶ 46	          Defendants may not challenge a jury’s verdict by claiming it is inconsistent. People v.

        Jones, 207 Ill. 2d 122, 133-34 (2003). When a jury’s verdict is inconsistent, “it is unclear whose

        ox has been gored.” United States v. Powell, 469 U.S. 57, 65 (1984). A court can only speculate

        as to the jury’s rationale in reaching its verdict without impermissibly injecting itself into the




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       jury’s deliberations. Id. at 65-66. Further, appellate courts’ authority to independently review the

       sufficiency of the prosecution’s evidence guards against unlawful convictions. Id. at 67.

¶ 47          Here, we determined the State’s evidence sufficiently supported defendant’s child

       endangerment conviction. We decline defendant’s invitation to speculate as to whether the jury

       would have reached a different verdict had the instruction said “knowingly” rather than

       “willfully.” In fact, the evidence sufficiently supported a murder conviction; we cannot know

       whether the verdict was the result of juror lenity to defendant’s benefit or the jury’s

       interpretation of an instruction to his detriment. Regardless, the trial court’s instruction

       accurately stated the law—“willfully” and “knowingly” are synonymous in child endangerment

       cases. We do not find the trial court’s instruction to be “clear or obvious error.” Downs, 2015 IL

       117934, ¶ 15. Nor do we find that counsel provided ineffective assistance by failing to object to a

       jury instruction that accurately stated the law.

¶ 48                                              III. Public Trial

¶ 49          Defendant’s final argument asserts that the trial court violated his right to a public trial

       (U.S. Const., amend. VI) when it partially closed the courtroom during voir dire and, while the

       State presented its evidence, asked journalism students to find a seat or leave the courtroom.

¶ 50          Prior to bringing over 90 potential jurors into the courtroom, the trial court recognized

       that jury selection is a public proceeding but the courtroom could not accommodate the potential

       jurors and the large congregation of citizens attending the proceedings. The trial court also

       expressed concern that the citizens with “emotions running high” risked contaminating the jury

       pool. The court ordered a partial closure during jury selection; two people who supported

       defendant and two who did not could remain in the courtroom and sit behind the potential jurors.




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¶ 51           Later in the trial, prior to the State playing defendant’s videotaped police interview, the

       court asked journalism students in attendance to find a seat or leave the courtroom. The record

       does not indicate whether any student left the courtroom; we cannot know whether a closure

       occurred. We find that without proof a student left the courtroom, the court’s admonishment

       cannot support defendant’s public trial claim. We address only the partial closure during

       voir dire below.

¶ 52           Defendant admits that neither he nor his counsel objected to the court’s partial closure.

       He maintains that his failure to object creates neither a knowing and voluntary waiver of his

       public trial right nor a forfeiture of the issue on appeal. Even if he forfeited the issue, defendant

       argues the partial closure constituted second-prong plain error, an error so serious that it affected

       the fairness of the trial and challenged the integrity of the judicial process. Ill. S. Ct. R. 615(a);

       People v. Piatkowski, 225 Ill. 2d 551, 564-65 (2007).

¶ 53           Defendant’s multilayered argument requires some unpeeling before addressing the fruit

       of its merit. First, we agree that defendant’s failure to object to the trial court’s partial closure did

       not amount to a knowing, intelligent, and voluntary waiver of his right to a public trial. See

       Walton v. Briley, 361 F.3d 431, 433-34 (7th Cir. 2004). Had defendant waived his public trial

       right, our analysis would be complete. See People v. Bannister, 232 Ill. 2d 52, 71 (2008).

¶ 54           Although defendant did not waive his right to a public trial, he forfeited the issue on

       appeal by not contemporaneously objecting or raising the issue in a posttrial motion. People v.

       Thompson, 238 Ill. 2d 598, 611-12 (2010). We must determine whether our plain-error doctrine

       excepts defendant’s forfeiture. To constitute second-prong plain error, the alleged error must

       deprive the defendant of a fundamentally fair trial or undermine the integrity of the judicial

       process. Ill. S. Ct. R. 615(a); Piatkowski, 225 Ill. 2d at 564-65.



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¶ 55           Because public trial rights are “structural,” violations are not subject to harmless error

        analysis. Weaver v. Massachusetts, 582 U.S. ___, ___, 137 S. Ct. 1899, 1907-08 (2017); Waller

        v. Georgia, 467 U.S. 39, 49 n.9 (1984). However, other than the government’s prohibition from

        arguing an error was harmless, “the term ‘structural error’ carries with it no talismanic

        significance as a doctrinal matter.” Weaver, 582 U.S. at ___, 137 S. Ct. at 1910.

¶ 56           Despite not being subject to harmless error analysis, public trial violations are subject to a

        “triviality standard.” Peterson v. Williams, 85 F.3d 39, 42 (2d Cir. 1996). “A triviality standard,

        properly understood,” looks to “whether the actions of the court and the effect that they had on

        the conduct of the trial deprived the defendant—whether otherwise innocent or guilty—of the

        protections conferred by the Sixth Amendment.” Id. The protections conferred by the public trial

        guarantee are (1) to ensure a fair trial, (2) to remind the prosecutor and judge of their

        responsibility to the accused and the importance of their functions, (3) to encourage witnesses to

        come forward, and (4) to discourage perjury. Waller, 467 U.S. at 46-47. Not every courtroom

        closure results in an unfair trial, nor does each closure affect the values underlying the sixth

        amendment’s public trial guarantee. See Weaver, 582 U.S. at ___, 137 S. Ct. at 1910.

¶ 57	          Defendant argues that automatic reversal is required where a court excludes anyone from

        a public proceeding unless (1) the party seeking to close the proceedings advances an overriding

        interest that is likely to be prejudiced, (2) the closure is no broader than necessary to protect that

        interest, (3) the trial court considers reasonable alternatives to closing the proceeding, and (4) the

        trial court makes findings adequate to support the closure. See Waller, 467 U.S. at 48. Further,

        defendant cites People v. Evans, 2016 IL App (1st) 142190, ¶ 18, for the proposition that a

        courtroom’s limited seating is not an “overriding interest” justifying excluding any citizen from a

        proceeding. However, Evans is distinguishable from this case in two ways. First, defense counsel



                                                         15 

       in Evans contemporaneously objected to the closure. Second, the Evans trial court maintained a

       standard practice of closing the courtroom during voir dire. Here, counsel did not object to the

       partial closure, and the trial court’s partial closure was, according to the record, prompted by

       unusually large public attendance in this specific case.

¶ 58          The United States Supreme Court has recently recognized that the problems trial courts

       face “in deciding whether some closures are necessary, or even in deciding which members of

       the public should be admitted when seats are scarce, are difficult ones.” Weaver, 582 U.S. at ___,

       137 S. Ct. at 1909. The Court also recognized that potential errors in making these difficult

       decisions can be cured or more thoroughly addressed when a defendant contemporaneously

       objects to a courtroom closure. Id. at ___, 137 S. Ct. at 1909-10. In other words, without

       contemporaneous objection, the trial court would not likely cure a violation or formally express

       its findings on the record.

¶ 59          In this case, the trial court’s partial closure neither deprived defendant of a fair trial nor

       undermined the integrity of the judicial process. The partial closure implicated none of the values

       underlying defendant’s right to a public trial. Four citizens, not including the jury, remained in

       the courtroom during voir dire, and the courtroom was open to all citizens for the remainder of

       defendant’s trial. Defendant raises “no suggestion that any juror lied during voir dire; no

       suggestion of misbehavior by the prosecutor, judge, or any other party; and no suggestion that

       any of the participants failed to approach their duties with the neutrality and serious purpose that

       our system demands.” Id. at ___, 137 S. Ct. at 1913.

¶ 60          We hold that the trial court’s partial closure during voir dire was trivial. Defendant does

       not suggest, nor does the record indicate, that the partial closure implicated a single value the

       public trial guarantee aims to protect. Defendant’s claim that a courtroom’s available seats can



                                                        16 

       never justify a closure defies reality and would, if accepted, stifle courts’ duty to administer

       justice. Absent clear error, defendant is not entitled to automatic reversal based upon a

       constitutional claim for which we have little record due to his failure to object: “Due regard

       generally for the public nature of the judicial process does not require disregard of the solid

       demands of the fair administration of justice in favor of a party who, at the appropriate time and

       acting under advice of counsel, saw no disregard of a right, but raises an abstract claim only as

       an afterthought on appeal.” Levine v. United States, 362 U.S. 610, 619-20 (1960). We see no

       clear error in this case.

¶ 61                                            CONCLUSION

¶ 62           For the foregoing reasons, we affirm the judgment of the circuit court of Kankakee

       County.

¶ 63           Affirmed.

¶ 64           JUSTICE McDADE, dissenting:

¶ 65           Defendant argues, inter alia, that his right to a public trial was violated when the trial

       court excluded all but four members of the public from the voir dire proceeding and, later,

       ordered journalism students to leave the courtroom during the trial. I agree with the majority that

       we cannot determine if a closure occurred when the court ordered the journalism students to

       leave the courtroom because the record is unclear on whether they actually left. However, I

       disagree with the majority’s finding that defendant’s right to a public trial was not violated when

       the trial court excluded members of the public from voir dire.

¶ 66           The facts show that the trial court decided—without a request from either party or the

       consent of the defendant—to close the entire voir dire proceedings to members of the public

       except two individuals from defendant’s family and two individuals from the victim’s family.



                                                       17 

        The court reasoned that, because of its preference to seat the entire jury venire in the courtroom

        at once, there were only enough remaining seats to accommodate four members of the public.

¶ 67           Our society has a strong interest in public trials. Gannett Co. v. DePasquale, 443 U.S.

        368, 383 (1979). In a public trial, “ ‘the public may see [a defendant] is fairly dealt with and not

        unjustly condemned, and *** the presence of interested spectators may keep his triers keenly

        alive to a sense of their responsibilities and to the importance of their functions.’ ” (Internal

        quotation marks omitted.) Waller v. Georgia, 467 U.S. 39, 46 (1984) (quoting In re Oliver, 333

        U.S. 257, 270 n.25 (1948)). A public trial also “encourages witnesses to come forward and

        discourages perjury.” Id. The sixth amendment’s right to a public trial was created for the benefit

        of the defendant, and a court cannot deprive defendant of this right without his consent. Id. at 46;

        People v. Harris, 302 Ill. 590, 592-93 (1922). The right to a public trial extends to voir dire

        proceedings. Presley v. Georgia, 558 U.S. 209, 212-13 (2010).

¶ 68	          “While all trials are presumed to be open, the right is not absolute.” People v. Burman,

        2013 IL App (2d) 110807, ¶ 51. To justify closing a trial proceeding, we examine whether

        (1) there exists an “overriding interest that is likely to be prejudiced,” (2) the closure is no

        broader than necessary to protect that interest, (3) the trial court considered “reasonable

        alternatives” to closing the proceeding, and (4) the trial court made adequate findings to support

        the closure. (Internal quotation marks omitted.) People v. Evans, 2016 IL App (1st) 142190, ¶ 10

        (quoting People v. Willis, 274 Ill. App. 3d 551, 553 (1995), quoting Waller, 467 U.S. at 48). The

        overriding interest required by Waller also applies to partial closures. People v. Cooper, 365 Ill.

        App. 3d 278, 282 (2006) (citing People v. Taylor, 244 Ill. App. 3d 460, 464 (1993)). The

        majority touches on Waller’s overriding interest and other factors in addressing defendant’s




                                                        18 

       argument, but I believe additional analysis is necessary in determining whether the closure was

       justified.

¶ 69           Considering the Waller factors, I would find that the closure was not justified for three

       reasons. First, the reason the court gave for deciding to exclude nearly all members of the public

       from voir dire was that it wanted to seat the entire venire in the courtroom and “[t]here’s only so

       many seats.” This is not an overriding interest. Having the entire venire in the courtroom at the

       same time is a function of the court’s preference and convenience—factors that surely do not

       override a defendant’s constitutional right to a fair and public trial. Moreover, the issue of the

       number of seats in a courtroom is “solely a matter of logistics and convenience for courtroom

       personnel” and “has no positive effect on the fairness of the trial.” Evans, 2016 IL App (1st)

       142190, ¶ 12. Also, although defendant challenges the trial court’s closure solely as violative of

       his rights under the sixth amendment, the excluded spectators, who had chosen to attend and to

       observe the proceedings, also had a constitutional interest in an open trial. The Supreme Court

       has held that the right to a public trial “extends beyond the accused and can be invoked under the

       First Amendment.” Presley, 558 U.S. at 212 (citing Press-Enterprise Co. v. Superior Court of

       California, 464 U.S. 501 (1984)). It is also well established that the “Sixth Amendment right of

       the accused is no less protective of a public trial than the implicit First Amendment right of the

       press and public.” Waller, 467 U.S. at 46.

¶ 70           Second, the court did not articulate adequate findings to support the closure. Indeed, it

       articulated no findings; it removed the public because it wanted to do so. The court cannot

       arbitrarily burden a defendant’s right to a fair trial or the implicit first amendment right of the

       public and press to an open trial. It must identify an interest that overrides those rights and

       articulate “ ‘findings specific enough that a reviewing court can determine whether the closure



                                                       19 

       order was properly entered.’ ” Presley, 558 U.S. at 215 (quoting Press-Enterprise Co., 464 U.S.

       at 510). Here, the court’s stated reason does not even pretend to identify an “overriding” need

       served only by having the entire venire present in the courtroom at the same time and moving the

       public out because of the resulting lack of seats. Nor does the court indicate how such an interest

       would be prejudiced by, for example, working with panels, or other smaller configurations, of

       jurors. It is impossible to ascertain from the court’s simple statement what overriding interest

       was at stake and how that interest would be prejudiced without the nearly total exclusion of the

       public from the jury selection proceedings.

¶ 71           Third, the court failed to consider any reasonable alternative to its partial closure. “Trial

       courts are obligated to take every reasonable measure to accommodate public attendance at

       criminal trials.” Id. Here, if a larger courtroom that could seat the venire and the public was

       unavailable, the court could have called the jurors into the room in smaller groups or asked

       individuals to stand until the size of the venire was reduced and seating became available. See

       Evans, 2016 IL App (1st) 142190, ¶ 15. If the courthouse has no courtrooms large enough to

       accommodate the public, the press, and the entire venire, perhaps the county should look into

       enhanced audio or other technology.

¶ 72           The majority finds Evans inapplicable because the defense counsel in Evans objected to

       the closure whereas no objection was made in this case. 1 Evans, 2016 IL App (1st) 142190, ¶ 3. I

       do not see how this distinction is relevant. A failure to object does not preclude this court from

       reviewing defendant’s constitutional claim for plain error. See People v. Jones, 2014 IL App


               1
                The majority also states that Evans is inapplicable to this case because “the Evans trial court
       maintained a standard practice of closing the courtroom during voir dire.” Supra ¶ 57. My reading of
       Evans does not reveal any basis for this statement. In Evans, the reviewing court speaks of one instance in
       which the defendant’s step-grandmother was asked to leave the courtroom before voir dire proceedings.
       Evans, 2016 IL App (1st) 142190, ¶¶ 3-4. There is no reference to the trial court’s standard practice of
       closing the courtroom in Evans.
                                                           20 

       (1st) 120927, ¶ 40 (although defendant failed to object to the closure, the reviewing court

       analyzed defendant’s constitutional challenge for plain error). Furthermore, the trial court has a

       responsibility to ensure defendant receives a fair trial, and defendant’s failure to object should

       not relieve it of this responsibility. See Evans, 2016 IL App (1st) 142190, ¶ 14 (“Given the

       seriousness of the potential harm, each trial judge must be alert and proactive in managing his or

       her courtroom to prevent violations of this core constitutional right, regardless of whether

       attorneys assist in the process.”).

¶ 73           The majority also finds that the partial closure was trivial because defendant did not

       provide evidence that he was denied the constitutional protections listed above. The majority

       further states that the record is devoid of evidence that the partial closure violated defendant’s

       constitutional protections. Illinois courts have found that a temporary closure was “trivial” when

       the closure was brief or minimal. See Jones, 2014 IL App (1st) 120927, ¶ 45 (finding that the

       trial court’s brief in camera questioning of two potential jurors was trivial); People v. Webb, 267

       Ill. App. 3d 954, 959 (1994) (holding that the closure was trivial because spectator missed “a few

       minutes of discussion” at trial); see also Peterson v. Williams, 85 F.3d 39, 44 (2d Cir. 1996)

       (ruling that defendant’s sixth amendment rights were not violated because the closure was

       “extremely short,” the spectators were given a follow-up summation, and the closure was

       inadvertent). However, closure is not trivial when it occurs for the entirety of the voir dire

       proceedings. See Evans, 2016 IL App (1st) 142190, ¶ 17 (“What occurred here is in no way a

       ‘trivial’ closure. Ms. Peterson missed the entirety of jury selection, including questioning of

       potential jurors and a number of peremptory challenges.”).

¶ 74           Here, the trial court excluded all spectators except four individuals prior to the voir dire

       proceedings, and the excluded spectators were denied an opportunity to view any portion of the



                                                       21 

        proceedings. This closure was not trivial or de minimis; it was a nearly complete denial of

        defendant’s right to have the public present for the voir dire of prospective jurors. Id. Therefore,

        I would hold that an error occurred, enabling plain-error review because the trial court violated

        defendant’s right to a public trial.

¶ 75            Defendant asserts that the trial court’s violation constituted second-prong plain error. The

        majority applies the Weaver Court’s ruling to defendant’s challenge under the second prong of

        plain-error review and finds that defendant did not show that the partial closure affected the

        fairness of his trial and the integrity of the judicial process. See Weaver v. Massachusetts, 582

        U.S. ___, ___, 137 S. Ct. 1899, 1911 (2017). I disagree with the majority’s decision. The Court

        in Weaver determined that, although a violation of the right to a public trial is structural error, the

        automatic reversal requirement does not extend to the Strickland test because the violation does

        not always lead to a fundamentally unfair trial as is necessary to meet the prejudice prong. Id. at

        ___, 137 S. Ct. at 1911 (“when a defendant raises a public-trial violation via an ineffective-

        assistance-of-counsel claim, Strickland prejudice is not shown automatically”).

¶ 76	           The Strickland test is not at issue in this case. It is well-established that a violation of a

        defendant’s right to a public trial is structural error. The United States Supreme Court established

        that a violation of a public trial is structural because of the “ ‘difficulty of assessing the effect of

        the error.’ ” Id. at ___, 137 S. Ct. at 1910 (quoting United States v. Gonzalez-Lopez, 548 U.S.

        140, 149 (2006)). The Court further found that the violation is structural error because it protects

        the interest of the public at large, the press, and the defendant. Id. at ___, 137 S. Ct. at 1910

        (citing Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 508-10 (1984)). The

        Illinois Supreme Court also recognized that a violation of the right to a public trial is structural




                                                          22 

       error (Thompson, 238 Ill. 2d at 609) and that automatic reversal is required when an error is

       deemed “structural” (People Glasper, 234 Ill. 2d 173, 197 (2006)).

¶ 77           Our supreme court “equated the second prong of plain-error review with structural error.”

       Thompson, 238 Ill. 2d at 613. The court further classified structural error as “a systemic error

       which serves to ‘erode the integrity of the judicial process and undermine the fairness of the

       defendant’s trial.’ ” (Internal quotation marks omitted.) Id. at 614 (quoting Glasper, 234 Ill. 2d at

       197-98). In other words, a violation of the right to a public trial, in essence, affects the fairness of

       the defendant’s trial and undermines the integrity of the judicial process as required under the

       second prong of plain-error review. As stated previously, I would find that the trial court violated

       defendant’s right to a public trial and that this violation is structural error. Based on our supreme

       court’s ruling, I would find that defendant met the second prong of plain-error review. Because

       automatic reversal is required when an error is deemed structural and because the evidence,

       reviewed in the light most favorable to the State, was sufficient to find defendant guilty beyond a

       reasonable doubt, I would reverse defendant’s conviction and remand for a new trial. People v.

       Willis, 274 Ill. App. 3d 551, 554 (1995) (“The sixth amendment protects all portions of the trial,

       including voir dire, and the appropriate remedy for improper closure is a new trial.”).




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