                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Young, 2013 IL App (4th) 120228




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    MICHAEL S. YOUNG, Defendant-Appellant.



District & No.             Fourth District
                           Docket No. 4-12-0228


Filed                      September 11, 2013
Rehearing denied           November 5, 2013


Held                       Defendant’s convictions for three counts of aggravated criminal sexual
(Note: This syllabus       abuse were upheld over his contentions that his right to be present during
constitutes no part of     a “critical stage” of his trial was violated when the recordings of the
the opinion of the court   victims’ interviews were reviewed by the trial court outside defendant’s
but has been prepared      presence and that his motion to suppress his confession was improperly
by the Reporter of         denied because he invoked his right to counsel, since the court’s review
Decisions for the          of the recordings was not a critical stage of defendant’s trial, defendant
convenience of the         was present at all critical stages, defense counsel waived any objection to
reader.)
                           the court’s review of the recordings, and the record supported the trial
                           court’s findings that the statements defendant made at the time of his
                           confession were merely musings about what would happen if he asked for
                           an attorney and that he did waive his right to counsel rather than invoke
                           that right.


Decision Under             Appeal from the Circuit Court of Livingston County, No. 10-CF-135; the
Review                     Hon. Jennifer H. Bauknecht, Judge, presiding.


Judgment                   Affirmed.
Counsel on                 Michael J. Pelletier, Karen Munoz, and Duane E. Schuster, all of State
Appeal                     Appellate Defender’s Office, of Springfield, for appellant.

                           Seth Uphoff, State’s Attorney, of Pontiac (Patrick Delfino, Robert J.
                           Biderman, and Luke McNeill, all of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      PRESIDING JUSTICE STEIGMANN delivered the judgment of the
                           court, with opinion.
                           Justices Pope and Holder White concurred in the judgment and opinion.




                                              OPINION

¶1          Following a November 2011 bench trial, the trial court convicted defendant, Michael S.
        Young, on three counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i)
        (West 2010)). The court found that during three separate incidents, defendant caused two
        minor girls to rub their hands on his penis for the purpose of defendant’s sexual gratification.
        For that conduct, the court sentenced defendant to eight years in prison.
¶2          Defendant appeals, arguing that the trial court (1) violated his constitutional right to be
        present during the critical stages of his trial when the court considered digital video disc
        (DVD) recordings of the victims’ interviews outside of his presence and (2) erred by denying
        his motion to suppress his confession, given that he invoked his right to counsel. Because the
        record shows that defendant (1) was present at all critical stages of his trial and (2) waived
        his right to counsel, we affirm.

¶3                                      I. BACKGROUND
¶4                                     A. The State’s Charges
¶5         In June 2010, the State charged defendant with three counts of aggravated criminal sexual
        abuse (720 ILCS 5/12-16(c)(1)(i) (West 2010)). The State alleged that defendant–who was
        30 years old at the time–(1) caused a seven-year-old girl to rub his penis for defendant’s
        sexual gratification and (2) caused a nine-year-old girl to rub his penis on two separate
        occasions for defendant’s sexual gratification.

¶6             B. The State’s Section 115-10 Motion and the Subsequent Hearing
¶7         Defendant’s case proceeded to an October 13, 2010, hearing on the State’s motion to
        admit the child victims’ out-of-court statements under section 115-10 of the Code of
        Criminal Procedure of 1963 (725 ILCS 5/115-10 (West 2010) (permitting hearsay statements

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       of a child victim under the age of 13 as substantive evidence in, among others, cases
       involving sex crimes)). Defendant was present at that hearing, and the State presented
       testimony from the children’s mother and two other witnesses about the out-of-court
       statements. The State also submitted as exhibits (1) the DVD interviews of the children and
       (2) a written transcript of the content of the DVDs. Shortly thereafter, the State suggested
       that, due to time constraints, the court review the DVDs at its leisure. Turning to defense
       counsel, the court asked whether counsel wanted to “view the[ ] DVDs in open court or
       [whether] there [was] an objection if [the court] view[ed] them and [came] back for a
       ruling?” Defense counsel responded, as follows:
               “Your Honor, I would just like the opportunity to argue. [I]t does not matter when the
           Court reviews them. I’m not asking that they are reviewed right now. I just would like
           an opportunity to argue, and I can put it in writing or we can come after[ward].”
¶8         When defendant’s section 115-10 hearing resumed on October 29, 2010, the State
       indicated that the child victims would be available to testify. After considering the evidence
       presented, including the DVDs–which the trial court had reviewed on its own–the court
       found the children’s out-of-court statements admissible under section 115-10.

¶9                             C. Defendant’s Motion To Suppress His
                          Confession to Police and the Subsequent Hearing
¶ 10        In February 2011, defendant filed a motion to suppress his confession. At the April 2011
       hearing on defendant’s motion, the parties presented testimony from the investigating officer
       and defendant.
¶ 11        Sergeant Jeffrey Hamilton testified that he questioned defendant several days after the
       events that gave rise to the charges in this case. Hamilton explained that before doing so, he
       advised defendant of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and
       defendant waived his right to have counsel present during questioning. Defendant also
       initialed and signed a written waiver of his Miranda rights. (That waiver was introduced into
       evidence at the hearing.) Hamilton said that defendant did not request to speak with a lawyer
       or to have a lawyer present for questioning.
¶ 12        Defendant testified that he did ask to speak to a lawyer. Defendant claimed that when he
       asked to speak to a lawyer, Hamilton replied that he would consider that “being
       uncooperative with the State.” Defendant said that when Hamilton continued to interrogate
       him, he was left with the impression that he could not ask for a lawyer after that point.
¶ 13        Hamilton’s report, which included defendant’s confession and was admitted into
       evidence, stated, in part, as follows:
                 “[Defendant] asked if it would be considered uncooperative if he would want to
            continue this with his attorney present. I explained to him that once he steps off the path
            of cooperation I can no longer help him. [Defendant] said that is understandable.
            [Defendant] said what he was asking if that would be considered not being cooperative.
            I told him I could not say that without contacting the State’s Attorney’s office. I advised
            him that the State’s Attorney’s office and his kids want the truth.”


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¶ 14       On this evidence, the trial court denied defendant’s motion to suppress his confession,
       finding, as follows:
               “The Defendant [has] a reason to lie. He is facing some pretty serious charges, is
           aware at the time that he’s testifying that there’s no DVD that’s going to be able to
           corroborate one way or the other the statements, the request for an attorney whether it
           was made or not made.
               The Defendant’s recollection of the interview was pretty vague except when he
           wanted to point fingers at what *** Hamilton apparently allegedly did wrong. I’m not
           quite frankly convinced that the Defendant saying I would like to speak to an attorney
           alone and then continuing to answer questions is sufficient to invoke Miranda. I believe
           there’s cases out there that suggest that there has to be something more than just a mere
           statement. There has to be something in addition to that. I’m pretty sure that that’s the
           case. But even so, I’m not convinced that the Defendant even asked for an attorney.
               I don’t find the Defendant to be as credible of a witness as *** Hamilton for the
           reasons I think I’ve already set forth. The Defendant does have reasons to lie. The
           Defendant is facing some pretty serious charges here. *** [T]here is absolutely nothing
           in th[e] report suggesting that the Defendant asked for an attorney.
               So I find *** Hamilton’s testimony to be more credible than that of the Defendant’s
           on the issue of whether or not the Defendant asked for an attorney; and as a matter of
           fact, I find that the Defendant did not ask for an attorney during the interview process.”

¶ 15                      D. Defendant’s Trial and Subsequent Sentence
¶ 16       Following a November 2011 bench trial, the trial court convicted defendant on all three
       counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 2010)). The
       court thereafter sentenced defendant to eight years in prison on each count and ordered those
       sentences to run concurrently.
¶ 17       This appeal followed.

¶ 18                                        II. ANALYSIS
¶ 19       Defendant argues that the trial court (1) violated his constitutional right to be present
       during the critical stages of his trial when the court considered the DVD recordings of the
       victims’ interviews outside of his presence and (2) erred by denying his motion to suppress
       his confession, given that he invoked his right to counsel. We address defendant’s
       contentions in turn.

¶ 20                  A. Defendant’s Claim Related to the DVD Recordings
                                     of the Victims’ Interviews
¶ 21       Defendant first contends that the trial court violated his constitutional right to be present
       during the critical stages of his trial when the court considered the DVD recordings of the
       victims’ interviews outside of his presence. We disagree.


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¶ 22        Initially, we note that defendant affirmatively waived any challenge to the trial court
       viewing the DVDs outside of his presence. People v. Dunlap, 2013 IL App (4th) 110892,
       ¶ 12 (“When *** defense counsel affirmatively acquiesces to actions taken by the trial court,
       a defendant’s only challenge may be presented as a claim for ineffective assistance of counsel
       on collateral attack.”). Apparently, defendant’s position is that we should review his
       contention because defense counsel could not waive his right to be present at such a critical
       stage of his trial. Because, as we will explain, the trial court’s viewing of the DVDs was not
       a “critical stage” of defendant’s trial, we conclude that (1) defendant has affirmatively
       waived his claim that the court erred by reviewing the DVDs outside of his presence and (2)
       we need not review that claim further. See Dunlap, 2013 IL App (4th) 110892, ¶ 12 (plain
       error does not apply to issues that have been affirmatively waived).
¶ 23        A criminal defendant has a right to be present at every critical stage of his trial. More
       specifically, a defendant has a “right to be present at any stage of the criminal proceeding that
       is critical to its outcome if his presence would contribute to the fairness of the procedure.”
       People v. Lofton, 194 Ill. 2d 40, 67, 740 N.E.2d 782, 797 (2000) (citing Kentucky v. Stincer,
       482 U.S. 730, 745 (1987), and Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934)).
       However, a defendant’s presence is not required “ ‘when presence would be useless, or the
       benefit but a shadow.’ ” Lofton, 194 Ill. 2d at 67, 740 N.E.2d at 797 (quoting Snyder, 291
       U.S. at 106-07). The touchstone of this analysis is “whether the defendant’s presence at the
       proceeding would have contributed to his opportunity to defend himself against the charges.”
       Id., 740 N.E.2d at 798. Whether a stage of trial is a “critical stage” is a question of law that
       we review de novo. See id. (determining whether a section 115-10 hearing was a “critical
       stage” by reviewing “[t]he justice or injustice of the exclusion of the defendant *** in the
       light of the whole record”).
¶ 24        Here, no question exists that the section 115-10 hearing was a critical stage and that
       defendant had a right to attend that hearing in person. See Lofton, 194 Ill. 2d at 67, 740
       N.E.2d at 797 (holding that a section 115-10 hearing was a “critical stage”). The record
       shows, and defendant concedes, that he attended the section 115-10 hearing in this case.
       Defendant’s claim is that he was entitled to be present when the trial court viewed the DVDs
       of the victims’ statements. The problem with defendant’s position in this regard is that his
       presence during the viewing of those DVDs would have been useless because defendant’s
       presence would not have contributed to his opportunity to defend himself against the charges.
       Defendant was present for the proceedings leading up to the review of the DVDs and was
       later present for his counsel’s arguments related to whether the statements from those DVDs
       should be admitted. Defendant’s not being present while the court watched and listened to
       those DVDs did not amount to an absence from a critical stage of the proceedings. In short,
       the court’s watching and listening to the DVDs was not a “critical stage” of defendant’s trial.
       The critical stage here was the portion of the section 115-10 hearing that provided defendant
       the opportunity to defend his position that the statements from those DVDs were
       inadmissible. See People v. Stroud, 208 Ill. 2d 398, 405, 804 N.E.2d 510, 514 (2004)
       (concluding that even when a defendant has the right to be present because the proceeding
       is a “critical stage,” a defendant’s absence is not a per se constitutional violation–indeed, a
       defendant’s absence from such a proceeding will violate his constitutional rights “ ‘only if

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       the record demonstrates that defendant’s absence caused the proceeding to be unfair or if his
       absence resulted in a denial of an underlying substantial right’ ” (quoting People v. Lindsey,
       201 Ill. 2d 45, 57, 772 N.E.2d 1268, 1276-77 (2002))). The record in this case clearly shows
       that defendant was present during the vital, or “critical,” portion of the hearing.
¶ 25       Because the trial court’s viewing of the DVDs did not constitute a “critical stage” of
       defendant’s trial, we conclude that defendant has affirmatively waived his claim that the
       court erred by reviewing the DVDs outside of his presence. Counsel’s waiver is effective,
       of course, because it did not involve a waiver a fundamental right. The United States
       Supreme Court, in a case involving defense counsel’s consenting to a magistrate judge
       presiding over jury selection, explained that a defendant is bound by his attorney’s waiver,
       as follows:
                “ ‘What suffices for waiver depends on the nature of the right at issue. “[W]hether
           the defendant must participate personally in the waiver; whether certain procedures are
           required for waiver; and whether the defendant’s choice must be particularly informed
           or voluntary, all depend on the right at stake.” United States v. Olano, 507 U.S. 725, 733
           (1993). For certain fundamental rights, the defendant must personally make an informed
           waiver. See, e.g., Johnson v. Zerbst, 304 U.S. 458, 464-465 (1938) (right to counsel);
           Brookhart v. Janis, 384 U.S. 1, 7-8 (1966) (right to plead not guilty). For other rights,
           however, waiver may be effected by action of counsel. “Although there are basic rights
           that the attorney cannot waive without the fully informed and publicly acknowledged
           consent of the client, the lawyer has–and must have–full authority to manage the conduct
           of the trial.” Taylor v. Illinois, 484 U.S. 400, 417-418 (1988). As to many decisions
           pertaining to the conduct of the trial, the defendant is “deemed bound by the acts of his
           lawyer-agent and is considered to have ‘notice of all facts, notice of which can be
           charged upon the attorney.’ ” Link v. Wabash R. Co., 370 U.S. 626, 634 (1962) (quoting
           Smith v. Ayer, 101 U.S. 320, 326 (1880)). Thus, decisions by counsel are generally given
           effect as to what arguments to pursue, see Jones v. Barnes, 463 U.S. 745, 751 (1983),
           what evidentiary objections to raise, see Henry v. Mississippi, 379 U.S. 443, 451 (1965),
           and what agreements to conclude regarding the admission of evidence, see United States
           v. McGill, 11 F. 3d 223, 226-227 (CA 1 1993). Absent a demonstration of
           ineffectiveness, counsel’s word on such matters is the last.’ Ibid.” Gonzalez v. United
           States, 553 U.S. 242, 248-49 (2008) (quoting New York v. Hill, 528 U.S. 110, 114-15
           (2000)).
¶ 26       Having concluded that (1) defendant personally appeared at all critical stages of his trial
       and (2) he is bound by his counsel’s decision to waive any objection to the trial court’s
       viewing the DVDs outside of defendant’s presence, we turn to defendant’s claim that the
       court erred by denying his motion to suppress his confession.

¶ 27                  B. Defendant’s Claim That the Trial Court Erred by
                       Denying His Motion To Suppress His Confession
¶ 28      Defendant next contends that the trial court erred by denying his motion to suppress his
       confession, given that he invoked his right to counsel. Defendant posits that the court’s

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       factual finding that defendant did not request counsel was incorrect as a matter of law. We
       disagree.

¶ 29                               1. The Standard of Review
¶ 30       When reviewing a trial court’s ruling on a motion to suppress, we employ a bifurcated
       standard of review, “reviewing a trial court’s factual findings under a manifest weight of the
       evidence standard of review but applying a de novo standard of review to the ultimate
       question whether the evidence should be suppressed.” People v. Harper, 2012 IL App (4th)
       110880, ¶ 22, 969 N.E.2d 573.

¶ 31                            2. The Trial Court’s Factual Findings
¶ 32        Here, Hamilton testified that defendant did not request to speak with a lawyer or to have
       a lawyer present for questioning. Defendant testified that he did ask to speak to a lawyer.
       Hamilton’s report indicated that defendant asked whether “it would be considered
       uncooperative if he would want to continue this with his attorney present.” The report
       showed that Hamilton replied by explaining to defendant that “once he steps off the path of
       cooperation [Hamilton could] no longer help him” and that defendant said that he understood
       that. The report further showed that defendant said that he was asking if invoking his right
       to counsel would be considered “not being cooperative” and that Hamilton told him that “he
       could not say that without contacting the State’s Attorney’s office.” On this evidence, the
       trial court specifically found Hamilton credible.
¶ 33        A reasonable reading of the trial court’s ruling indicates that the court found (1)
       defendant’s statements merely reflected defendant’s musings about what would happen if he
       were to invoke his right to counsel and (2) those musings were insufficient to invoke his right
       to counsel. Our review of the record reveals that the trial court’s findings in that regard were
       not against the manifest weight of the evidence. See In re Guardianship of K.R.J., 405 Ill.
       App. 3d 527, 536, 942 N.E.2d 598, 605 (2010) (A finding of fact is only against the manifest
       weight of the evidence when, “ ‘upon review of all the evidence in the light most favorable
       to the prevailing party, an opposite conclusion is clearly apparent or the fact finder’s finding
       is palpably erroneous and wholly unwarranted, is clearly the result of passion or prejudice,
       or appears to be arbitrary and unsubstantiated by the evidence.’ ” (quoting Joel R. v. Board
       of Education of Mannheim School District 83, 292 Ill. App. 3d 607, 613, 686 N.E.2d 650,
       655 (1997)).

¶ 34                         3. The Ultimate Question of Suppression
¶ 35       Having concluded that the trial court’s finding that defendant’s musings about what
       would happen if he invoked his right to counsel was not against the manifest weight of the
       evidence, the ultimate question of whether the trial court erred by denying defendant’s
       motion to suppress is an easy one to answer. It did not.
¶ 36       Here, Hamilton provided defendant Miranda warnings, defendant did not verbally invoke
       his right to counsel, and defendant signed a written waiver. This is sufficient to support a


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       valid Miranda waiver. Accordingly, we conclude that the trial court did not err by denying
       defendant’s motion to suppress his post-Miranda confession.

¶ 37                                   III. CONCLUSION
¶ 38      For the reasons stated, we affirm the trial court’s judgment. As part of our judgment, we
       award the State its $50 statutory assessment as costs of this appeal.

¶ 39      Affirmed.




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