                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Salgado, 2012 IL App (2d) 100945




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    JOSE L. SALGADO, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-10-0945


Filed                      March 15, 2012


Held                       Defendant’s conviction for felony domestic battery was reversed and the
(Note: This syllabus       cause was remanded for a proper determination of defendant’s guilt,
constitutes no part of     where the procedure whereby defendant’s daughter was allowed to testify
the opinion of the court   in the judge’s chambers while defendant remained in the courtroom
but has been prepared      violated defendant’s confrontation right, and even though the State
by the Reporter of         argued defendant waived his right to be present by agreeing to remain in
Decisions for the          the courtroom when his daughter testified, there was no showing that the
convenience of the         trial court took care to ensure that defendant understood his confrontation
reader.)
                           right and knowingly and voluntarily waived that right.


Decision Under             Appeal from the Circuit Court of Kane County, No. 10-CF-401; the Hon.
Review                     Robert J. Morrow, Judge, presiding.


Judgment                   Reversed and remanded.
Counsel on                  Thomas A. Lilien and Yasemin Eken, both of State Appellate Defender’s
Appeal                      Office, of Elgin, for appellant.

                            Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
                            Bauer and Scott Jacobson, both of State’s Attorneys Appellate
                            Prosecutor’s Office, of counsel), for the People.


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



                                               OPINION

¶1          Defendant, Jose L. Salgado, appeals from his conviction of two counts of Class 4 felony
        domestic battery (720 ILCS 5/12-3.2(a)(1), (a)(2) (West 2010)). He asserts that the court
        violated his right to confront one witness against him when it held part of his trial outside his
        presence without taking a proper waiver of the confrontation right. We agree that the court
        violated defendant’s confrontation right. Barring a defendant from seeing and hearing
        testimony is an extraordinary limitation on a defendant’s participation in his or her trial. Any
        court that contemplates such nonstandard proceedings must take the greatest care to ensure
        that the defendant understands his or her right to be present for all testimony and that the
        defendant is waiving that right knowingly and voluntarily. The purported waiver here fell far
        short of that standard; it was patently insufficient. Moreover, this was plain error. We
        therefore reverse defendant’s convictions and remand the cause without addressing the other
        claims of error he has raised.

¶2                                          I. BACKGROUND
¶3          A grand jury indicted defendant of two counts of Class 4 felony domestic battery. The
        two counts were identical, except that in one the theory of the offense was that the contact
        caused bodily harm, while in the other the theory was that the contact was insulting or
        provoking. The State charged the offense as a Class 4 felony because defendant had a prior
        domestic battery conviction. Retained counsel entered an appearance for defendant.
        Defendant waived his right to a jury.1
¶4          Neither party made an opening statement at defendant’s trial. The court told the State to
        call its first witness, and the State responded, “It is a minor child, so we’re asking to go back


                1
                 One of his claims of error on appeal is the validity of his jury waiver, but we need not
        address that issue here. However, we note that the rule in People v. Bracey, 213 Ill. 2d 265 (2004),
        requires a new waiver for any retrial.

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       into chambers.” The court said, “All right.” Defense counsel asked that defendant’s
       handcuffs be removed, but the State said, “I thought when we were going back in chambers,
       I thought this would be outside the presence of defendant.” The court asked defense counsel
       what his position was, and counsel asked “for a moment with [his] client.” The court agreed
       to that, and the next thing in the record is defense counsel’s stating, “The defendant will
       remain.” Defendant was left in the courtroom while the witness, defendant’s daughter, nine-
       year-old Brianna Salgado, testified in chambers.
¶5          Brianna testified that, on the day of the incident, she, her younger brother, and her mother
       were sleeping in her mother’s bed. Defendant came into the room. Brianna thought that he
       was drunk because he was acting “crazy,” but she said he also looked “kind of sleepy.”
       Initially, when asked what had happened between her parents, she said that defendant
       “pulled” her mom. Asked by the State to explain further, she said, “My mom showed me
       right now. It was like that.” The State then asked whether she had seen what happened, and
       she responded by grabbing one arm with the other. Defendant then left the room and turned
       the television on loud. Her older brother, Brian, went to see what was happening, and
       defendant started yelling that Brian was not his son. Next, defendant called the police. Before
       the police came, he told Brianna to tell them that Brian or her mother had hit her.
¶6          On cross-examination, she said that the events took place at one or two in the morning
       and that she had been only partially awake. She said that, when defendant came in, he told
       her mother to come to the living room. Before that, he was saying “lies.” She agreed that
       defendant had tried to lift her mother out of bed, but then, when her mother said that she had
       to work the next day, he left her alone.
¶7          The hearing reconvened in the courtroom, and the State called Iliana Ortiz, the victim.
       She said that she had been married to defendant for 8 years and had lived with him for 15.
       Her testimony was largely consistent with Brianna’s. Her arm hurt when defendant pulled
       it, and the contact left a red mark. On cross-examination, she did not agree that defendant had
       turned the television on loud after leaving the room.
¶8          The officer who responded to the call testified that Ortiz was visibly upset and had some
       red “scuff marks” on her right arm and right thigh. Defendant was present and obviously
       intoxicated.
¶9          The State rested after the officer’s testimony, and the defense then rested also. The court
       found defendant guilty on both counts. It later sentenced him to 18 months’ imprisonment.
       Defendant filed neither a posttrial nor a postsentencing motion, but he did file a timely notice
       of appeal.

¶ 10                                        II. ANALYSIS
¶ 11       Defendant has raised three claims of error on appeal. We address only the second: that
       his exclusion during Brianna’s testimony violated his confrontation right. We hold that
       defendant did not properly waive his right to be present during Brianna’s questioning.
       Moreover, this was plain error.
¶ 12       The court’s underlying error is similar to that discussed by the supreme court in People
       v. Lofton, 194 Ill. 2d 40 (2000), although the error here resulted in a greater loss of the right

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       to confront a witness. The defendant in Lofton was charged with predatory criminal sexual
       assault of a child. The State sought to have the victim testify via closed-circuit television, as
       section 106B-5 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/106B-5
       (West 1996)) permits when the court has made the required findings of fact. The trial court
       ruled that it could not make those findings, but decided that, as an accommodation to the
       child, it would rearrange the courtroom so that the child could not see the defendant. The
       arrangement also prevented the defendant from seeing the child. The defendant, unlike
       defendant here, objected to the arrangement contemporaneously and raised the matter again
       in a posttrial motion. Lofton, 194 Ill. 2d at 46-50.
¶ 13       The Lofton court noted that the Supreme Court, in Maryland v. Craig, 497 U.S. 836
       (1990), had ruled that provisions akin to section 106B-5 do not violate the confrontation
       clause of the United States Constitution. Lofton, 194 Ill. 2d at 56-59. However, because it
       did not allow the defendant to see the witness, the arrangement created by the trial court was
       a harmful violation of the right to confront witnesses:
           “[T]he trial court’s innovation falls far outside the narrow and limited exception created
           by Craig. *** The right to confront witnesses includes the right to hear and to view them
           as they testify. [Citation.] *** [W]hen a defendant appears by counsel, the right to
           confront witnesses includes the ability to be of aid in counsel’s cross-examination.
           [Citation.] Here the defendant’s inability to observe the manner of the witness while
           testifying could have prejudiced him by limiting his ability to suggest lines of
           examination to his attorney that might have been indispensable to effective cross-
           examination [citation].” Lofton, 194 Ill. 2d at 59-60.
¶ 14       The “innovation” undermined the basic purposes of a trial:
                “The unauthorized alternative the trial court fastened upon of permitting the child
           witness to testify against the defendant barricaded by podiums limited the defendant’s
           ability to aid in the cross-examination of the witness and thereby impinged upon the
           truth-seeking purpose of the confrontation clause [citation]. The novel arrangement
           devised by the trial court, authorized neither by statute nor by common law, failed to
           ensure the reliability of the evidence by subjecting it to rigorous adversarial testing and,
           thus, failed to preserve the essence of effective confrontation. *** The admission of [the
           witness’s] testimony, given under such circumstances, was incompatible with the
           confrontation clause.” Lofton, 194 Ill. 2d at 61.
¶ 15       Because the error violated the defendant’s fundamental constitutional rights, and because
       the State had failed to show that the error was harmless beyond a reasonable doubt, the error
       was reversible:
                “Although confrontation errors are constitutional violations, they do not
           automatically warrant reversal, and a defendant’s conviction can be affirmed if the court
           is able to conclude the error was harmless beyond a reasonable doubt. [Citation.]
           However, such error cannot be considered harmless unless the State has proved beyond
           a reasonable doubt that the error did not contribute to the finding of guilt. [Citations.]
           The State has confined its argument to the theory that the trial court’s innovative
           arrangement of the courtroom did not infringe upon defendant’s right of confrontation.


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           *** Thus, the State has failed to satisfy its burden of showing beyond a reasonable doubt
           that the error did not contribute to the guilty verdict.” Lofton, 194 Ill. 2d at 61-62.
¶ 16       Here, for Brianna’s testimony, the deprivation of the right to confrontation was total, as
       defendant was unable even to hear the testimony. The State, however, asserts that the right
       at issue is merely the right to be present at trial, which derives from the fourteenth-
       amendment due-process right, and not the more fundamental confrontation right. This
       argument is an ineffectual sidestep. The right to be present at trial “is not itself a substantial
       right under the Illinois Constitution” but is rather a “lesser right the observance of which is
       a means to securing the substantial rights of a defendant.” People v. Bean, 137 Ill. 2d 65, 80-
       81 (1990). “Some of these substantial rights are the right to confront witnesses, the right to
       present a defense, and the right to an impartial jury.” (Emphasis added.) Bean, 137 Ill. 2d at
       81. Thus, when a court improperly denies a defendant the opportunity to be present at trial,
       the question becomes whether the absence impaired a substantial right. See Bean, 137 Ill. 2d
       at 82. When the defendant is absent for the questioning of a witness, the loss is of the right
       to confront that witness, and a reviewing court must analyze the issue accordingly.
¶ 17       The State argues that defendant waived his right to be present for Brianna’s testimony
       by agreeing to be left in the courtroom. We disagree. The waiver plainly was not proper as
       nothing in the record shows that defendant understood that he had a right to be present. In
       People v. Stroud, 208 Ill. 2d 398, 409 (2004), the supreme court discussed what kind of
       waiver due process requires for a defendant to properly give up his or her right to be
       physically present at a guilty plea hearing, appearing instead by video link. The court noted
       that presence by video link is better than no presence at all, but that it was not a good
       equivalent:
               “ ‘In a televised appearance, crucial aspects of a defendant’s physical presence may
           be lost or misinterpreted, such as the participant’s demeanor, facial expressions and vocal
           inflections, the ability for immediate and unmediated contact with counsel, and the
           solemnity of a court proceeding. In a guilty plea hearing, as in a trial, these components
           may be lost if a defendant’s appearance is through closed circuit television.’ ” Stroud,
           208 Ill. 2d at 407 (quoting People v. Guttendorf, 309 Ill. App. 3d 1044, 1047 (2000)).
       Moreover, “ ‘[t]he atmosphere of the courtroom can play a critical, albeit intangible, role in
       the proceedings, including a hearing on a plea.’ ” Stroud, 208 Ill. 2d at 407 (quoting
       Guttendorf, 309 Ill. App. 3d at 1046). Because of these effects, and because the guilty plea
       hearing is the crux of the proceeding, requiring a defendant to appear at such a hearing by
       video link impairs his or her substantial rights. Stroud, 208 Ill. 2d at 409. The Stroud court
       therefore held that “a defendant’s appearance at a guilty plea proceeding via closed-circuit
       television is constitutionally permissible only if the defendant waives the right to physical
       presence on the record after being advised of his right to be present.” (Emphasis added.)
       Stroud, 208 Ill. 2d at 409. A defendant’s absence during the questioning of a central witness
       is, we submit, a greater impingement on a defendant’s substantial rights. The waiver must
       be at least as clear.
¶ 18       The waiver here did not come close to meeting this standard. All the record tells us is that
       counsel, who seems to have reacted to the State’s proposed arrangement with understandable


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       surprise, had a moment to speak to defendant. We doubt that counsel could extemporize a
       full admonishment of the right to be present. Only with a record of a knowing and voluntary
       waiver can we be certain that the court has respected a defendant’s rights. No such record
       exists here.
¶ 19        The State argues that we should draw the waiver standard from two other classes of
       cases: (1) those concerning when defendants can forfeit the right to remain in the courtroom
       by misbehavior; and (2) those concerning agreement to stipulated testimony. Neither class
       of cases suggests to us that the waiver here was proper.
¶ 20        A defendant can, by “conducting himself in a manner so disorderly, disruptive, and
       disrespectful of the court that his trial cannot be carried on with him in the courtroom,”
       forfeit the right to be present in the courtroom. Illinois v. Allen, 397 U.S. 337, 343 (1970).
       However, even when a defendant is disruptive, “courts must indulge every reasonable
       presumption against the loss of constitutional rights.” Allen, 397 U.S. at 343. Here, defendant
       was not disruptive, so he did not forfeit his confrontation right. Further, the court took no
       particular care to ensure that defendant understood that he had the right to be present during
       Brianna’s testimony, and thus it did not indulge every reasonable presumption against the
       loss of the right.
¶ 21        We agree with the State that a defendant can, when defense counsel agrees to the
       admission of stipulated testimony, waive his or her confrontation right as to that testimony.
       People v. Campbell, 208 Ill. 2d 203, 215 (2003). However, we deem the reasoning in Stroud
       to be more appropriate here. The loss of the confrontation right by way of stipulation is a loss
       of very limited scope. By the nature of a stipulation, both parties know in advance precisely
       what the finder of fact is going to hear and the manner in which it will be presented. The
       dynamics are profoundly different from those with a live witness: the defendant has no
       particular need to interact with defense counsel contemporaneously. With live testimony, a
       defendant’s ability to see and to interact with counsel is critical, and the damage from that
       loss is unknowable. If due process requires a knowing and voluntary waiver for a video-
       linked guilty plea hearing, such a waiver is even more necessary when a defendant will be
       completely absent during live testimony.
¶ 22        Defendant did not raise this claim in the trial court. However, the error is reversible as
       plain error. “The plain-error doctrine *** allows a reviewing court to reach a forfeited error
       affecting substantial rights in two circumstances.” People v. Herron, 215 Ill. 2d 167, 178
       (2005). The first is when the evidence is closely balanced. Second, “where the error is so
       serious that the defendant was denied a substantial right, and thus a fair trial, a reviewing
       court may consider a forfeited error in order to preserve the integrity of the judicial process.”
       Herron, 215 Ill. 2d at 179. The second type of error is present here. The supreme court has
       stated that a defendant’s absence from a courtroom is plain error only when it deprives him
       or her of “an underlying substantial right, in other words, a constitutional right.” Bean, 137
       Ill. 2d at 81. As we previously noted, the right to confront witnesses is such a substantial
       right. Bean, 137 Ill. 2d at 81. In People v. Caruth, 322 Ill. App. 3d 226, 229 (2001), a Third
       District panel held that, in “proceedings implicating the ultimate decision of guilt or
       innocence, a defendant’s appearance solely by closed circuit television may be considered
       plain error, regardless of the strength of the State’s evidence.” A complete absence without

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       a proper waiver is a far more serious deprivation than a presence solely by video link. What
       occurred here was not only plain error, it was plainly plain error.

¶ 23                                  III. CONCLUSION
¶ 24      For the reasons stated, we reverse defendant’s convictions and remand the matter for a
       proper determination of defendant’s guilt or lack thereof.

¶ 25      Reversed and remanded.




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