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                                Appellate Court                             Date: 2019.02.21
                                                                            17:18:25 -06'00'




                   People v. Radford, 2018 IL App (3d) 140404



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



District & No.     Third District
                   Docket No. 3-14-0404


Filed              July 13, 2018
Rehearing denied   August 9, 2018



Decision Under     Appeal from the Circuit Court of Kankakee County, No. 11-CF-662;
Review             the Hon. Clark Erickson, Judge, presiding.



Judgment           Affirmed.


Counsel on         Michael J. Pelletier and Steven P. Varel, of State Appellate Defender’s
Appeal             Office, of Ottawa, for appellant.

                   James R. Rowe II, State’s Attorney, of Kankakee (Patrick Delfino and
                   Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office,
                   of counsel), for the People.



Panel              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.
¶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


                                                -2-
       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.
¶ 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 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.




                                                  -3-
¶ 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 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. 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


                                                  -4-
       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
       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).
¶ 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

                                                  -5-
       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 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.


                                                  -6-
       After defendant’s first demonstration, he admitted that he tucked M.R. in harder than in the
       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) 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

                                                   -7-
       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 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.
¶ 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


                                                     -8-
       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.
¶ 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 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.

                                                    -9-
¶ 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 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.
       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.’ ”


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       (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.; 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 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 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

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       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 (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.”).

           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.

                                                     - 12 -
¶ 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 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 error (Thompson, 238 Ill. 2d at 609) and
       that automatic reversal is required when an error is deemed “structural” (People v. 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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