No. 2-13-0585 Opinion filed February 27, 2015 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Winnebago County. ) Plaintiff-Appellee, ) ) v. ) No. 10-CF-1361 ) TYRONE D. WILLIAMS, ) Honorable ) John R. Truitt, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE SPENCE delivered the judgment of the court, with opinion. Justices Zenoff and Burke concurred in the judgment and opinion.

OPINION

¶1 In November 2010, defendant, Tyrone D. Williams, pleaded guilty in the circuit court of

Winnebago County to a single count of aggravated discharge of a firearm (720 ILCS 5/24-

1.2(a)(1) (West 2010)) and was sentenced to a 36-month term of probation. The State

subsequently petitioned the trial court to revoke defendant’s probation, alleging, inter alia, that,

on June 23, 2012, defendant committed the offenses of aggravated discharge of a firearm (720

ILCS 5/24-1.2(a)(2) (West 2012)) and unlawful possession of a weapon by a felon (720 ILCS

5/24-1.1(a) (West 2012)). Following a hearing, the trial court revoked defendant’s probation and

sentenced him to an 8½-year prison term. On appeal, defendant argues that, by excluding three

spectators from the revocation hearing, the trial court violated his constitutional right to a public

trial. We affirm.

¶2 The State’s evidence established that in the early morning hours of June 23, 2012,

Antonio Williams was treated for gunshot wounds at a Rockford hospital. The State presented

the testimony of seven witnesses during its case-in-chief at the revocation hearing. The third of

those witnesses, Tiffany Seif, testified that on June 23, 2012, she and a number of other

individuals, including defendant, had gathered outside an apartment building. At some point,

defendant began to argue with Antonio Williams. After a few minutes Seif heard gunshots. Seif

testified that she thought she saw someone known to her as “Rio” hand a gun to defendant. Seif

then went to look for Antonio Williams, who had run away. Shortly after she located him, he

collapsed. Two other individuals put Antonio Williams in Seif’s car, and she drove him to the

hospital. At about 5:45 a.m., several Rockford police officers responded to a report of suspicious

vehicles at 1200 South Court Street. Defendant was standing by one of the vehicles, which was

occupied by two individuals. A 9-millimeter handgun was discovered in that vehicle. It was

stipulated that forensic testing on shell casings found at the scene of the shooting established that

they had been fired from that weapon.

¶3 After the State presented the final witness in its case-in-chief, the following exchange

took place:

“MS. LARSON [Assistant State’s Attorney]: Judge, Wendy Larson for the

People. There are two black males and a black female seated in the second row of the

gallery. The People, along with the defense attorney, Mr. Taylor, made an offer to the

Court of an incident that happened after our civilian witness testified. We indicated to

the Court that the large black male and the smaller black male, somehow seemed to be

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following our victim advocate along with the civilian witness as she left the courthouse.

The Court agreed that since she had already testified, there was not much that could or

should happen, although, prior to alerting the Court of this, *** I did have a conversation

here at counsel table quietly [with cocounsel and the victim advocate]. And it now

appears that these individuals not only overheard our discussion but had a discussion

amongst themselves *** in which they were discussing what they should tell the Court

about why they were pursuing this witness, that they should merely say that they were

stepping out for some fresh air. I have a concern, Judge. I’m going to ask that the gallery

be cleared, that the Court admonish these people they are not to be talking to witnesses.

And I’m going to ask that officers from the County be called, that we get these

individuals’ names, and that an investigation of witness intimidation be pursued by the

County sheriff.

MR. TAYLOR [defense attorney]: Judge, number one, if there’s going to be an

accusation made that’s going to be made in the context of this proceeding, as far as what

the State chooses to investigate on their own time, I don’t care. I don’t have a dog in that

fight. But it appears to me that with less than stellar evidence so far, they are now trying

to cast aspersions on my client based on unspecified accusations against people that are

here in the gallery, and I have a problem with that.

THE COURT: Well, I don’t think it’s directed to your client at all.

MR. TAYLOR: Okay. As long as—as long as there’s not—its clear that there’s

no accusation being made against him, and as long as—your Honor can—I don’t really

think I have any kind of standing to respond as long as you’re not considering it any kind

of a piece of evidence against my client. I do, however, think before we start accusing

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people of something if there’s going to be an accusation against anybody, somebody who

claims to have overheard something should be called and sworn and testify to what they

overheard. But if it’s not going to be—I don’t really want to contaminate these

proceedings with that if—as long as everybody is clear that my client had nothing to do

with it.

THE COURT: Well, your client wasn’t a party to our conversation in the back.

MR. TAYLOR: Sure.

THE COURT: And your client certainly wasn’t in the courtroom whenever Ms.

Lalowski heard what she heard.

MR. TAYLOR: And for the record, I was not—after our conversation, I never

came back in the courtroom before I did with your Honor after having heard these

allegations were getting brought up. I was in the back trying to get a chance to review a

stipulation with my client. So we have nothing to do with any of this. That’s my point,

Judge.

THE COURT: All right. Well, there was an incident last week as well where a

person present observing engaged in criminal activity after the case had been called. It

was called to the Court’s attention. I understand that person was charged with a

misdemeanor felony offense of some kind, and in order to preserve the integrity of these

proceedings, I’m going to order that George Williams, Dwayne Thomas, and Markito

Reed be barred from this courtroom during the balance of the proceedings.”

¶4 The sixth amendment to the United States Constitution (U.S. Const., amend. VI)

guarantees a criminal defendant the right to a public trial. “This guarantee is for the benefit of

the accused and ‘is a safeguard against any attempt to employ the courts as instruments of

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persecution.’ [Citations.]” People v. Cooper,

(2006). Although the

right to a public trial is not absolute, a party seeking to close proceedings to the public “ ‘must

advance an overriding interest that is likely to be prejudiced, the closure must be no broader than

necessary to protect that interest, the trial court must consider reasonable alternatives to closing

the proceeding, and it must make findings adequate to support the closure.’ ”

at 282 (quoting

Waller v. Georgia,

(1984)).

¶5 Defendant argues that the trial court’s decision to eject three spectators from the

revocation hearing did not comply with the above principles. Defendant relies in part on Alvarez

v. State,

(Fla. Dist. Ct. App. 2002), which recognized, as a matter of due process,

a right to a public probation-revocation hearing corresponding to the right to a public trial.

When the trial court expelled the spectators in question, defense counsel protested that any

misconduct on the part of the spectators should not be imputed to defendant. However, defense

counsel did not raise any objection based on the right to a public trial. Nor did defendant raise

the issue in his motion for reconsideration. Ordinarily a defendant forfeits review of an error if

he or she does not both object at trial and raise the issue in his or her posttrial motion. People v.

Enoch,

(1988). Defendant argues that review is proper because “[t]he right

to a public trial can only be waived when the defendant makes a knowing and intelligent waiver

of that right.” Defendant alternatively argues that the issue is reviewable under the plain-error

rule. See Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967) (“Plain errors or defects affecting substantial

rights may be noticed although they were not brought to the attention of the trial court.”).

¶6 Before proceeding, we must stress the important distinction between the concepts of

“forfeiture” and “waiver.” In People v. Blair,

, 444 n.2 (2005), our supreme court

stated as follows:

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“As explained by the United States Supreme Court in United States v. Olano,

*** (1993), ‘Waiver is different from forfeiture. Whereas forfeiture is the failure to

make the timely assertion of the right, waiver is the “intentional relinquishment or

abandonment of a known right.” ’ [Id. at 773.]”

Although a forfeited error may qualify for review under the plain-error rule, waiver of a right

forecloses review of a claim of error predicated on the waived right. People v. Tapia,

. “Deviation from a legal rule is ‘error’ unless the rule has been waived.”

(Emphasis added.) Olano,

. The State maintains that defendant’s attorney

intentionally relinquished whatever right defendant might have otherwise had to a public

revocation hearing, thereby waiving any such right on defendant’s behalf. If that is correct, no

error occurred and the plain-error rule would have no application. The State alternatively argues

that, even if counsel merely forfeited the issue, no error occurred.

¶7 It appears that courts are not in complete agreement about what an effective waiver of the

right to a public trial entails. Walton v. Briley,

(7th Cir. 2004), held that “like

other fundamental trial rights, a right to a public trial may be relinquished only upon a showing

that the defendant knowingly and voluntarily waived such a right.” On the other hand, United

States v. Reagan,

(5th Cir. 2013), held that a failure to properly object to an alleged

closure of the courtroom waived any error and that “ ‘[w]aived errors are entirely unreviewable,

unlike forfeited errors, which are reviewable for plain error.’ ”

at 488 (quoting United States

v. Musquiz,

(5th Cir. 1995)). United States v. Christi,

(1st Cir.

2012), appears to represent an intermediate approach. Christi suggests that counsel’s failure to

object to a closure of the courtroom does not invariably foreclose plain-error review.

.

However, according to the Christi court, where the trial court has, as a practical matter, invited

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an objection to a closure of the courtroom, counsel’s silence can “pass[] beyond inadvertence or

passivity to the point of waiver.”

¶8 We need not decide which (if any) of these approaches is correct. Even if we were to

conclude that the failure to object amounted merely to a forfeiture and not to a waiver, review

under the plain-error rule would still be unavailable here. The plain-error rule permits review of

a forfeited error in the following circumstances: “(1) a clear or obvious error occurred and the

evidence is so closely balanced that the error alone threatened to tip the scales of justice against

the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred

and that error is so serious that it affected the fairness of the defendant’s trial and challenged the

integrity of the judicial process, regardless of the closeness of the evidence.” People v.

Piatkowski,

(2007). Defendant contends that the second circumstance

warrants plain-error review in this case. Our supreme court has equated the second circumstance

with “structural error” (People v. Thompson,

(2010)), i.e., error that is not

amenable to an individualized assessment of prejudice (accord Washington v. Recuenco,

(2006) (“Only in rare cases has this Court held that an error is structural, and thus

requires automatic reversal.”)).

¶9 Violation of the right to a public trial has been described as structural error.

at 218

n.2. The question here, however, is whether there is a constitutional right to a public probation-

revocation hearing. In Morrissey v. Brewer,

(1972), the United States Supreme

Court considered what procedural protections must be afforded in a parole-revocation

proceeding. The Court stated as follows:

“Our task is limited to deciding the minimum requirements of due process. They include

(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of

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evidence against him; (c) opportunity to be heard in person and to present witnesses and

documentary evidence; (d) the right to confront and cross-examine adverse witnesses

(unless the hearing officer specifically finds good cause for not allowing confrontation);

(e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of

which need not be judicial officers or lawyers; and (f) a written statement by the

factfinders as to the evidence relied on and reasons for revoking parole. We emphasize

there is no thought to equate *** [the] parole revocation [hearing] to a criminal

prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to

consider evidence including letters, affidavits, and other material that would not be

admissible in an adversary criminal trial.” (Emphasis added.) Id. at 488-89.

¶ 10 The same principles apply to proceedings to revoke probation. Gagnon v. Scarpelli,

(1973). Defendant cites Alvarez for the proposition that due process requires, in

addition, that the revocation hearing be open to the public. The Alvarez court reasoned, in part,

that “these proceedings are as important to the defendant’s liberty as is the criminal prosecution,

and the defendant will desire the public presence to assure he/she is being fairly dealt with by the

court.” 1 Alvarez,

. But the United States Supreme Court has made clear that

the liberty interest of a convicted offender who is on parole or probation is of a somewhat lower

order than that of the accused facing prosecution for a criminal offense. Morrissey,

. We note that, in light of Morrissey and Gagnon, the Supreme Court of Mississippi has

1 Interestingly, the Alvarez court is among those that have held that the failure to object to

a closure of the courtroom amounts to a waiver of any error, and on that basis the court declined

to grant the defendant any relief.

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specifically held that there is no constitutional right to a public hearing on a petition to revoke

probation. Williams v. State,

(Miss. 1982).

¶ 11 Plain-error review is reserved for errors that are clear or obvious based on law that “is

well settled at the time of trial; if the law was unclear at the time of the trial, but becomes clear

(i.e. settled) during the appeal, then the error is not ‘plain’ for purposes of the plain-error

doctrine.” People v. Downs,

; see In re M.W.,

(2009) (error is not plain if the law is unclear at time of trial). The pertinent law is not

sufficiently settled to permit review under the plain-error rule. 2

¶ 12 For the foregoing reasons, the judgment of the circuit court of Winnebago County is

affirmed.

¶ 13 Affirmed.

2 Defendant has pointed out that it is provided by state statute that the evidence in a

revocation proceeding be presented in “open court.” See 730 ILCS 5/5-6-4(c) (West 2012).

Defendant argues that the statute thus contemplates a public proceeding. Be that as it may, it

does not follow that the standard for excluding spectators from a revocation proceeding is

necessarily the same as the constitutional standard for excluding members of the public from a

trial or that a violation of this purely statutory requirement would constitute structural error.

Thus, plain-error review is unavailable with respect to any statutory error.

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