                                    2018 IL App (1st) 160501

                                          No. 1-16-0501

                                 Opinion filed November 13, 2018 

                                                                                 Second Division
______________________________________________________________________________



                                             IN THE

                               APPELLATE COURT OF ILLINOIS

                                        FIRST DISTRICT

______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS,                        )   Appeal from the
                                                            )   Circuit Court of
        Plaintiff-Appellee,                                 )   Cook County.
                                                            )
     v. 	                                                   )   No. 14 MC5 0024401
                                                            )
NANCY LUCAS,                                                )   Honorable
                                                            )   Matthew J. Carmody,
        Defendant-Appellant.                                )   Judge, presiding.



        JUSTICE HYMAN delivered the judgment of the court, with opinion.
        Justices Lavin and Pucinski and concurred in the judgment and opinion.

                                           OPINION

¶1      Defendant Nancy Lucas was convicted of misdemeanor battery, misdemeanor resisting a

peace officer, operating an unsafe vehicle, driving under the influence of alcohol, and negligent

driving in Cook County circuit court. She was sentenced to 24 months’ conditional discharge. On

appeal, Lucas contends that her right to due process was violated because she was absent for a

critical stage of the proceedings when, during the bench trial, the judge viewed a video of her

traffic stop outside her presence.
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¶2     We affirm. Lucas affirmatively waived her claim that her due process rights were

violated by having acquiesced to the trial court viewing the video in chambers after the court

explained to her the parties’ stipulation and the courtroom procedure.

¶3                                         Background

¶4     Before presenting witnesses, the parties stipulated to the authenticity of the video of

Lucas’s traffic stop captured by Oak Lawn police sergeant Edward Clancy’s squad car. The State

then sought to publish the video for the court. The court explained the courtroom procedure.

                “THE COURT: [Defendant], what that means is the parties, your attorney and the

       State’s attorney, have stipulated that there was a video taken by the squad car on this

       matter. That is evidence that the State has every right to introduce and that your attorney

       has the right to view, and that evidence will then be viewed by me because they are

       stipulating to it. We do not have video in this courtroom. What we do in this courtroom is

       I go back with your attorney and the State’s attorney only. I view the video. There will be

       no questions asked because neither of the officers will be present. It is simply me

       watching the video. Neither of the attorneys can comment to me nor will I inquire of

       them. That will be done only in this courtroom on the record. All I do is watch the video.

       Do you understand that?

                [DEFENDANT]: Yes.

                THE COURT: And we will do that first.

                [ASSISTANT STATE’S ATTORNEY (ASA)]: Yes, Judge.

                THE COURT: The court will be in recess. The court will now watch the video.




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                 [DEFENSE COUNSEL]: If I may, I also explained that to you, correct? And I

       also explained what Judge Carmody just told you about the video. I explained all of that

       to you.

                 [DEFENDANT]: Yes.”

¶5     The trial court paused the proceedings to watch the video in chambers in the presence of

defense counsel and the ASA. The court subsequently admitted the squad car video, which is

contained in the record on appeal and has audio, into evidence.

¶6     Following arguments, the court found Lucas guilty of battery to Officer Haron, resisting

arrest, unsafe driving, DUI, and negligent driving. In so finding, the court explicitly stated it

relied on the video and Clancy’s testimony. The court noted that the video showed Lucas’s

driving was “disturbing” and she was “belligerent” and admitted to drinking alcohol. The court

further mentioned that Lucas’s “general behavior” and Clancy’s observations about Lucas, all

indicated to the court that she was under the influence of alcohol.

¶7     The court later denied defendant’s motion for a new trial and sentenced her to 24 months’

conditional discharge.

¶8                                           Analysis

¶9     On appeal, Lucas contends that she was denied due process because she was not present

for a critical stage of her proceeding: namely, when the trial court viewed the squad car video of

the traffic stop in chambers at trial. Lucas argues that the video was key evidence against her and

the court relied on it in finding her guilty. Had she been present, Lucas asserts, she would have

been able to “sift the testimony” against her and aid in her defense. Lucas acknowledges she did




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not preserve this issue but argues that it is reviewable under the second prong of the plain error

doctrine.

¶ 10   The State responds that Lucas affirmatively waived this issue by acquiescing to the court

viewing the video in chambers after the court explained the parties’ stipulation and the

courtroom procedure. The State also argues that defense counsel stipulated to the authenticity of

the video and the viewing was not a critical stage of the proceedings because the court was

merely viewing the video and did not inquire of anyone about it. Thus, according to the State,

Lucas’s presence would have been “useless,” and any alleged error from her absence would be

harmless. The State further points out that Lucas does not contend on appeal that the video

should not have been admitted.

¶ 11   Generally, the United States and Illinois Constitutions afford criminal defendants the

right to be present at all critical stages of the proceedings, from arraignment to sentencing.

People v. Lindsey, 201 Ill. 2d 45, 55 (2002); U.S. Const., amend. XIV, § 1; Ill. Const. 1970, art.

I, § 8. But this right is not absolute. Lindsey, 201 Ill. 2d at 56. Rather, “ ‘a defendant is

guaranteed the right to be present at any stage of the criminal proceeding that is critical to its

outcome if [her] presence would contribute to the fairness of the procedure.’ (Emphasis added.)”

Id. at 57 (quoting Kentucky v. Stincer, 482 U.S. 730, 745 (1987)).

¶ 12   Whether a defendant’s absence affects the trial’s fairness depends on an assessment of

the whole record; analysis “turn[s] on the nature of the hearing from which the defendant has

been excluded.” People v. Lofton, 194 Ill. 2d 40, 66, 68 (2000). We are presented with a question

of law that is reviewed de novo. See People v. O’Quinn, 339 Ill. App. 3d 347, 358 (2003).




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¶ 13   We agree with the State that Lucas waived her due process claim. “ ‘Waiver is the

intentional relinquishment of a known right[.]’ ” People v. Dunlap, 2013 IL App (4th) 110892,

¶ 9 (quoting People v. Bowens, 407 Ill. App. 3d 1094, 1098 (2011)). Defense counsel stipulated

to the authenticity of the video, and the trial court explained to Lucas that it would have to view

the video in chambers because the courtroom lacked the necessary video equipment to play the

video in open court. The court explicitly stated that it was merely viewing the video, no

questions would be asked, and neither attorney would be permitted to comment on the video.

Lucas indicated that she understood, and defense counsel clarified on the record that an

explanation had already been given Lucas “about the video,” a statement with which she agreed.

¶ 14   On appeal, Lucas asserts for the first time that she was denied due process when the court

viewed the video outside her presence. A defendant cannot acquiesce to the manner in which the

trial court proceeds and later claim on appeal that the actions were error. In re Detention of

Swope, 213 Ill. 2d 210, 217 (2004). “The rationale behind this well-established rule is that it

would be manifestly unfair to allow a party a second trial upon the basis of error which that party

injected into the proceedings.” Id. Even admission of improper evidence cannot be contested on

appeal after a party “procures, invites, or acquiesces in the admission of [the] evidence.” People

v. Bush, 214 Ill. 2d 318, 332 (2005).

¶ 15   Moreover, Lucas did not have the right to attend the video viewing in person as a “critical

stage” of her trial. Her presence at the video viewing would not have contributed to her

opportunity to defend herself. See People v. Young, 2013 IL App (4th) 120228, ¶¶ 21, 23

(viewing of video recordings not itself critical stage as presence would be “useless,” as it would

not contribute to opportunity of defendant to defend himself). Similarly, simply watching the



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video with the attorneys present but forbidden from speaking does not rise to a critical stage. See

Id. ¶ 25 (“Counsel’s waiver is effective, of course, because it did not involve a waiver [of] a

fundamental right.”).

¶ 16   The trial court handled the situation—the courtroom did not have the equipment to watch

the video evidence—appropriately, and ensured that Lucas fully understood and acquiesced to its

viewing the video outside of her presence.

¶ 17   Having determined that Lucas affirmatively waived her claim, we need not address her

contention regarding plain error. See Dunlap, 2013 IL App (4th) 110892 ¶ 12 (plain error does

not apply to issues that have been affirmatively waived).

¶ 18   Affirmed.




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