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                              Appellate Court                          Date: 2017.02.21
                                                                       14:02:49 -06'00'




                   People v. Evans, 2016 IL App (1st) 142190



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           DARRYL EVANS, Defendant-Appellant.



District & No.    First District, Second Division
                  Docket No. 1-14-2190



Filed             December 13, 2016



Decision Under    Appeal from the Circuit Court of Cook County, No. 08-CR-16639; the
Review            Hon. Maura Slattery Boyle, Judge, presiding.



Judgment          Reversed and remanded.



Counsel on        Michael J. Pelletier, Patricia Mysza, and Elena B. Penick, of State
Appeal            Appellate Defender’s Office, of Chicago, for appellant.

                  Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                  Christine Cook, and Clare Wesolik Connolly, Assistant State’s
                  Attorneys, of counsel), for the People.



Panel             PRESIDING JUSTICE HYMAN delivered the judgment of the court,
                  with opinion.
                  Justices Neville and Mason concurred in the judgment and opinion.
                                               OPINION

¶1       In 2014, a jury convicted Darryl Evans of murder. Before voir dire, the trial court refused
     to allow Evans’s step-grandmother to remain in the courtroom due to worries about possible
     juror contamination and the courtroom’s small gallery, which could barely accommodate the
     45 prospective jurors that the court had already summoned. In so doing, the trial court violated
     the right to a public trial, and as it was structural error, we must reverse Evans’s conviction on
     that ground. Because of our disposition, we need not reach the other contentions of error.

¶2                                         BACKGROUND
¶3       As the trial court was about to begin voir dire, it asked why someone was sitting in the
     gallery. Evans’s attorney explained that Evans’s step-grandmother, Ms. Peterson, was there.
     The trial court immediately responded, “I’m going to ask you to leave and come back on
     Monday.” Evans’s attorney told the trial court that she had explained to Ms. Peterson “the rules
     of decorum,” and that “she is not to speak to any venire person.” The trial court said, “she’s
     been fine,” but then stated that it would ask Ms. Peterson to leave during jury selection anyway
     because “we won’t have enough room.” Evans’s attorney asked if Ms. Peterson could be
     “segregated” from the venire, because “it is a public trial.” The trial court said that there was no
     “contamination” but would ask Ms. Peterson to leave anyway. Evans’s attorney objected.
     Voir dire included a number of peremptory challenges and a challenge for cause before a jury
     was selected.
¶4       After testimony began, the trial court made another statement for the record regarding the
     voir dire. The court stated that it was not prohibiting anyone from attending but asked Ms.
     Peterson to leave, because the courtroom had only three rows of seats and 45 potential jurors,
     and it would be impossible to separate Ms. Peterson from the venire to avoid contamination.
¶5       The jury convicted Evans of first degree murder. In arguing Evans’s motion for a new trial,
     his attorney raised the issue of Ms. Peterson being barred from voir dire and stated that there
     would have been enough room to accommodate her and that she was not a risk to contaminate
     the jury pool. The trial court stated that the courtroom only contained three rows of benches,
     and it barred Ms. Peterson from voir dire due to the small size of the courtroom and the need to
     prevent her from contaminating the jury. The trial court denied the motion for a new trial and
     sentenced Evans to 100 years of imprisonment.

¶6                                            ANALYSIS
¶7       Evans argues that his right to a public trial was denied when the trial court barred Evans’s
     step-grandmother, Ms. Peterson, from viewing the voir dire. We hold that this denial was
     structural error, and we must reverse.
¶8       The sixth amendment of the United States Constitution (U.S. Const., amend. VI)
     guarantees the accused the right to a public trial, and this right extends to voir dire of
     prospective jurors. Presley v. Georgia, 558 U.S. 209, 212-13 (2010). A violation of this right
     falls into the limited category of “structural errors,” which require automatic reversal without
     the need to show prejudice. People v. Thompson, 238 Ill. 2d 598, 608-09 (2010) (structural
     error category includes complete denial of counsel, trial before biased judge, racial
     discrimination in grand jury selection, denial of self-representation, denial of public trial, and


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       defective reasonable doubt instruction). These errors are systemic, “erode the integrity of the
       judicial process,” and “undermine the fairness of the defendant’s trial.” (Internal quotation
       marks omitted.) Id. at 608. An error will be designated structural only if it renders the trial
       fundamentally unfair or an unreliable means of determining guilt or innocence. Id. at 609.
¶9         This is a fact-specific inquiry and we review the totality of the circumstances. We observe
       that the trial court’s rationale for excluding Ms. Peterson changed slightly; initially, the court
       was not concerned that Ms. Peterson would contaminate the potential jurors. But we will
       address both of the trial court’s reasons for excluding her—the contamination of potential
       jurors and the small size of the courtroom.
¶ 10       To justify closing a trial proceeding, we examine: (i) whether there exists an “ ‘overriding
       interest that is likely to be prejudiced,’ ” (ii) whether the closure is no broader than necessary to
       protect that interest, (iii) whether the trial court considered “ ‘reasonable alternatives’ ” to
       closing the proceeding, and (iv) whether the trial court made adequate findings to support the
       closure. People v. Willis, 274 Ill. App. 3d 551, 553 (1995) (quoting Waller v. Georgia, 467
       U.S. 39, 48 (1984)).
¶ 11       We will assume that preventing juror contamination is an “overriding interest.” Id. at 554;
       People v. Taylor, 244 Ill. App. 3d 460, 467 (1993). But, we are not convinced that the interest
       in preventing contamination was “likely to be prejudiced” merely by Ms. Peterson’s presence.
       No evidence suggested Ms. Peterson would have attempted to communicate with or intimidate
       potential jurors; in fact, Evans’s counsel had already instructed her not to communicate with
       the jury pool. See Taylor, 244 Ill. App. 3d at 468 (first part of test not met where there was not
       “a scintilla of evidence” that defendant’s siblings would attempt to influence jurors); Gibbons
       v. Savage, 555 F.3d 112, 117 (2d Cir. 2009) (“Absent some indication that the defendant’s
       mother might communicate improperly with members of the venire, the mere fact that some
       might be in close proximity to her did not raise a meaningful risk to taint the entire jury pool, as
       the judge suggested.” (Internal quotation marks omitted.)). There must be a specific threat of
       jury contamination to meet this standard. See, e.g., Willis, 274 Ill. App. 3d at 554 (where
       defendant’s brother had previously threatened state witness, this might justify exclusion of
       brother from voir dire, but not other family members). As the United States Supreme Court has
       pointed out, “[t]he generic risk of jurors overhearing prejudicial remarks, unsubstantiated by
       any specific threat or incident, is inherent whenever members of the public are present during
       the selection of jurors. If broad concerns of this sort were sufficient to override a defendant’s
       constitutional right to a public trial, a court could exclude the public from jury selection almost
       as a matter of course.” Presley, 558 U.S. at 215.
¶ 12       The trial court’s second reason for barring Ms. Peterson was the limited number of seats
       available in the courtroom. This has even less weight than the worry about jury contamination.
       Gibbons, 555 F.3d at 117. Whether 45 potential jurors can sit in the courtroom at one time is
       solely a matter of logistics and convenience for courtroom personnel—it has no positive effect
       on the fairness of the trial. Many courtrooms are undersized for their needs. Presley, 558 U.S.
       at 210 (trial court noted for record that venire consisted of 42 potential jurors and all rows of
       seats would be filled). But even in a cramped physical space, trial courts can deal with this
       limitation in ways that do not burden a defendant’s constitutional rights. The size of a
       courtroom, or the number of potential jurors who are summoned to a courtroom, do not
       constitute an “overriding interest.”


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¶ 13       We also examine whether the trial court’s removal of Ms. Peterson was broader than
       necessary to protect the “overriding interest.” Though Ms. Peterson was barred from the
       courtroom for only one day, the trial court did not need to bar her to prevent juror
       contamination or deal with a large venire in a small space. As we will discuss, a number of
       alternatives exist that the trial court could have considered.
¶ 14       Next, as to weighing “reasonable alternatives” to removal, the trial court fell short. Evans’s
       attorney suggested “segregating” Ms. Peterson from the venire, but the trial court rejected this
       out of hand due to the 45-person venire filling all available seats. Gibbons, 555 F.3d at 118
       (obligation to consider reasonable alternatives implies obligation to accept reasonable
       alternative). Contrary to the State’s suggestion at oral argument, Evans’s attorney did not even
       need to suggest reasonable alternatives. See Presley, 558 U.S. at 214 (trial court must consider
       alternatives to closure even when not offered by parties). 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 the attorneys assist in the
       process.
¶ 15       As a reviewing court, we can conceive reasonable alternatives—many of which are based
       in common sense. Even in a small courtroom, the trial court could have allowed Ms. Peterson
       to stay by simply calling the potential jurors into the room in smaller groups; asking Ms.
       Peterson or a potential juror to stand until a seat became available; or instructing the potential
       jurors and Ms. Peterson not to interact. Presley, 558 U.S. at 215 (reasonable alternatives
       include reserving space for public, dividing venire into smaller groups, or instructing potential
       jurors not to communicate with audience members); Gibbons, 555 F.3d at 117 (trial court
       could have called fewer potential jurors into room, allowed sole spectator to stand until seats
       became vacant, or temporarily placed spectator in another part of courtroom); Willis, 274 Ill.
       App. 3d at 554 (trial court could have admonished prospective jurors and spectators to refrain
       from contact or stationed bailiff next to venire to deter contact).
¶ 16       Finally, we assess whether the trial court made adequate findings to support the closure.
       The trial court did make a record as to the small size of the courtroom (though we do not find
       this to be an overriding interest) but failed to make any finding that Ms. Peterson was likely to
       contaminate the venire. Presley, 558 U.S. at 215 (where threats of juror contamination or
       safety concerns are enough to warrant closing voir dire, trial court must still articulate findings
       specific enough for appellate review).
¶ 17       Though neither party has addressed it, a temporary closure may not violate the sixth
       amendment if it is “trivial.” People v. Jones, 2014 IL App (1st) 120927, ¶ 45 (trial court’s brief
       in camera questioning of two potential jurors had no meaningful detriment to trial’s fairness);
       see also People v. Webb, 267 Ill. App. 3d 954, 959 (1994) (spectator missed “de minimis
       portion” of trial consisting of “a few minutes of discussion”). 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. Cf. Gibbons, 555 F.3d at 121
       (exclusion of defendant’s mother from one session of voir dire was trivial where there were no
       objections and she was able to watch next session). If, as the Supreme Court has instructed, the
       right to a public trial extends to voir dire, then Ms. Peterson’s exclusion was a complete denial
       of that right.
¶ 18       We cannot help but note that the trial court’s concern about space—that this particular
       courtroom did not have enough seating for even one member of the public—will be true of

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       every criminal case held therein which the trial court summons a large number of potential
       jurors and true for other similarly sized courtrooms. We cannot hold that a defendant may be
       denied the right to a public trial in these circumstances. We would hope that no defendants,
       besides Evans, were affected in this way.
¶ 19        In the United States of America, the evidence’s strength or the defendant’s guilt have no
       bearing on our consideration of the historic and cherished right to a public trial. The law guards
       this right with utmost vigilance. As the United States Supreme Court recognized, “[t]he
       requirement of a public trial is for the benefit of the accused; that the public may see he [or she]
       is fairly dealt with and not unjustly condemned, and that the presence of interested spectators
       may keep [the] triers keenly alive to a sense of their responsibility and to the importance of
       their functions.” (Internal quotation marks omitted.) Gannett Co. v. DePasquale, 443 U.S. 368,
       380 (1979). See also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 571-72 (1980)
       (“To work effectively, it is important that society’s criminal process ‘satisfy the appearance of
       justice,’ [citation] *** [which] can best be provided by allowing people to observe it.”).

¶ 20      Reversed and remanded.




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