NO. 4-16-0882 FILED April 12, 2019 IN THE APPELLATE COURT Carla Bender th 4 District Appellate OF ILLINOIS Court, IL

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Champaign County HAYZE L. SCHOONOVER, ) No. 15CF1388 Defendant-Appellant. ) ) Honorable ) Thomas J. Difanis, ) Judge Presiding. ______________________________________________________________________________

JUSTICE HARRIS delivered the judgment of the court, with opinion. Justice Turner concurred in the judgment and opinion. Justice DeArmond dissented, with opinion.

OPINION

¶1 Following a jury trial in Champaign County circuit court, defendant Hayze L.

Schoonover was found guilty of three counts of predatory criminal sexual assault of a child (720

ILCS 5/11-1.40(a)(1) (West 2014)) and sentenced to two 35-year terms and one 15-year term of

imprisonment. Defendant appeals, arguing (1) the trial court violated his right to a public trial by

barring members of his family from the courtroom during the minor victim’s trial testimony,

(2) his defense counsel provided ineffective assistance, and (3) the court abused its discretion

during sentencing. We reverse and remand.

¶2 I. BACKGROUND

¶3 In September 2015, the State charged defendant with four counts of predatory criminal sexual assault of a child.

Specifically, it alleged that defendant, who was over the

age of 17, committed “act[s] of contact” with the victim, M.L., who was under the age of 13, for

the purpose of defendant’s sexual gratification, in that defendant touched M.L.’s vagina with his

hand (count I), touched M.L.’s breasts with his hand (count II), placed his penis in M.L.’s mouth

(count III), and placed his penis in M.L.’s hand (count IV).

¶4 In August 2016, defendant’s jury trial was conducted. The State presented

evidence showing M.L. was 13 years old at the time of trial. Defendant was married to M.L.’s

maternal aunt. When M.L. was 12 years old, defendant began talking to her about “sex things.”

Eventually, defendant asked M.L. to touch him. M.L. testified defendant also asked her to take

her clothes off and take pictures of her “private areas” with his phone. She further described

occasions when defendant touched her vagina with his hand, “made [her] put his penis in [her]

mouth,” and had M.L. touch his penis with her hand. M.L. denied that defendant ever touched

her breasts.

¶5 The record reflects that M.L. was the first witness to testify for the State. At the

outset of defendant’s trial, the trial court stated its intention to have the courtroom “cleared”

during M.L.’s testimony. Specifically, the record reflects the following colloquy between the

court and the parties:

“THE COURT: When [M.L.] testifies, I want the courtroom cleared

except for family members.

MR. LARSON [(ASSISTANT STATE’S ATTORNEY)]: Thank you,

Your Honor.

MR. ALLEGRETTI [(DEFENSE ATTORNEY)]: I’m sorry, Judge.

-2- [Defendant’s] family members are here. Is that—are you barring them?

THE COURT: Out.”

¶6 The trial court and counsel went on to address other matters relevant to the

proceedings before returning to the issue of closing the courtroom during M.L.’s testimony. The

record reflects the following discussion:

“THE COURT: All right. Well pursuant to [section 115-11 of the Code of

Criminal Procedure of 1963 (Code) (725 ILCS 5/115-11 (West 2014))], where the

alleged victim of the offense is a minor under eighteen years of age, the court may

exclude from the proceedings while the victim is testifying all persons who, in the

opinion of the court, do not have a direct interest in the case except the media. So

I’m going to order that the courtroom be cleared, with the exception of the media,

when [M.L.] testifies. I will note [defense counsel’s] objection.

MR. LARSON: Your Honor, if I may.

THE COURT: Yes.

MR. LARSON: The victim’s grandmother is here and would like to

remain.

THE COURT: She would be someone who is allowed to remain.”

Finally, following the parties’ opening statements and immediately prior to M.L. taking the

stand, the following occurred outside the presence of the jury:

“THE COURT: All right. At this point pursuant to [section 115-11], I’m

going to clear the courtroom.

Mr. Larson, you said the grandmother is going to be present.

-3- MR. LARSON: Yes, Your Honor.

THE COURT: Who else?

MR. LARSON: Your Honor, her father and stepfather we would also ask

to be present.

THE COURT: Who is in the back of the courtroom? Who is the

gentleman sitting there? And then the rest of the people on this side. All right. As

soon as we get done with her testimony, I will bring the rest of the people in the

courtroom.”

¶7 Ultimately, the jury found defendant guilty of three counts of predatory criminal

sexual assault of a child, counts I, III, and IV. In September 2016, defendant filed a motion for a

new trial. In October 2016, the court denied defendant’s motion and sentenced him to two 35-

year terms of imprisonment (counts I and III) and one 15-year term of imprisonment (count IV).

The court also ordered that each sentence be served consecutively. The same month, defendant

filed a motion to reconsider his sentence, which the court also denied.

¶8 This appeal followed.

¶9 II. ANALYSIS

¶ 10 Right to a Public Trial

¶ 11 On appeal, defendant argues he was denied his constitutional right to a public trial

when the trial court “cleared” the courtroom during M.L.’s testimony. He contends the court

violated statutory requirements when clearing the courtroom and improperly excluded persons

with a direct interest in his trial.

¶ 12 1. Forfeiture v. Waiver

-4- ¶ 13 Initially, defendant acknowledges that he failed to properly preserve this issue for

appellate review by failing to raise it in a posttrial motion. See People v. Sebby,

,

(stating that, “[t]o preserve a purported error for consideration by a

reviewing court, a defendant must object to the error at trial and raise the error in a posttrial

motion” and a defendant’s “[f]ailure to do either results in forfeiture”). However, he contends

that his unpreserved claim of error may be considered under the plain error doctrine. 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.”). A defendant’s

forfeiture may be excused under the plain error doctrine “when a clear or obvious error

occurred” and either (1) 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) the

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. Sebby,

.

¶ 14 The State responds to defendant’s request for a plain error analysis by arguing

that defendant waived, rather than forfeited, his alleged claim of error and, as a result, the plain

error doctrine cannot be applied. It contends that, even though an objection was noted by the trial

court, defendant never actually objected to the court’s closure of the courtroom. Further, it points

out that defendant and his counsel remained silent when the court asked “[w]ho else” should

remain in the courtroom during M.L.’s testimony. The State asserts that, due to defendant’s

inaction, he “acquiesced to the trial court’s decision to clear the courtroom” and cannot now

argue that plain error occurred.

¶ 15 “Waiver is the intentional relinquishment of a known right, whereas forfeiture is

-5- the failure to make a timely assertion of a known right.” People v. Bowens,

,

(2011). “In the course of representing their clients, trial

attorneys may (1) make a tactical decision not to object to otherwise objectionable matters,

which thereby waives appeal of such matters, or (2) fail to recognize the objectionable nature of

the matter at issue, which results in procedural forfeiture.”

A plain error analysis applies only

to cases involving forfeiture and not those that involve affirmative acquiescence or waiver.

People v. McGuire,

,

. “When defense counsel

affirmatively acquiesces to actions taken by the trial court, any potential claim of error on appeal

is waived, and a defendant’s only available challenge is to claim he received ineffective

assistance of counsel.”

¶ 16 “In determining whether a legal claim has been waived, courts examine the

particular facts and circumstances of the case.” People v. Phipps,

,

(2010). “Waiver principles are construed liberally in favor of the defendant.”

¶ 17 To support its contention that defendant waived the courtroom closure issue, the

State cites this court’s decision in People v. Dunlap,

,

.

There, we held that the defendant waived, rather than forfeited, his challenge to the trial court’s

imposition of a $400 public defender reimbursement “because he affirmative[ly] acquiesced not

only to the amount of the reimbursement, but also to the materials the court relied upon to arrive

at the amount of the reimbursement.” Id. ¶ 11. We noted that, after the court expressed its intent

to impose a $400 reimbursement, it “asked whether there was ‘anything [defendant] want[ed] to

say [as to] whether or not [the court] should impose that [reimbursement],’ ” and both the

defendant and his counsel “responded that they had nothing to say.” Id. ¶ 10. Under such

-6- circumstances, a plain error analysis did not apply. Id. ¶ 12.

¶ 18 We find Dunlap is distinguishable from the present case and disagree that

defendant waived rather than forfeited his claim of error. Initially, we note that the record shows

the trial court actually understood defendant as objecting to its decision to clear the courtroom

during M.L.’s testimony because it explicitly “note[d] [defense counsel’s] objection” for the

record. However, even absent that express acknowledgment by the court we would find that the

record reflects circumstances of forfeiture rather than waiver. After the court asserted its

intention to close the courtroom during M.L.’s testimony, defense counsel questioned whether

the court intended to bar defendant’s family members, and the court responded by stating

“[o]ut.” Thereafter, both defendant and his counsel remained entirely silent on the issue. Neither

defendant nor his counsel expressed agreement with the court’s action. Moreover, unlike in

Dunlap, neither defendant nor his counsel expressly declined to raise an objection when

questioned by the court.

¶ 19 As noted, the State points out that, prior to M.L.’s testimony, the trial court asked

“[w]ho else,” while in the process of clearing the courtroom. Although the State suggests

defendant’s lack of response to this question supports a finding of acquiescence, we agree with

defendant’s contention that the record indicates the court’s question was directed to the State

rather than defendant. Notably, the question was posed while the court was conversing with the

prosecutor and well after the court decided to bar defendant’s family members from the

courtroom and after it noted defendant’s objection to that action for the record. Accordingly, we

do not find defendant’s silence in response to that question indicative of acquiescence. Instead,

we find the particular facts and circumstances of this case are more representative of a forfeiture

-7- of the issue rather than the making of a tactical decision not to object, i.e., waiver. Thus,

defendant is not precluded from arguing plain error.

¶ 20 2. Compliance With Section 115-11

¶ 21 We now turn to the merits of defendant’s plain error claim. As stated, forfeiture of

an issue may be excused when a clear or obvious error occurred and either (1) the evidence is

closely balanced or (2) the “error is so serious that it affected the fairness of the defendant’s trial

and challenged the integrity of the judicial process.” (Internal quotation marks omitted.). Sebby,

. “The initial analytical step under either prong of the plain error doctrine is

determining whether there was a clear or obvious error at trial.” Id. ¶ 49. In connection with this

issue, defendant alleges the occurrence of only second-prong plain error.

¶ 22 “[S]ection 115-11 of the Code permits a limited closure of a courtroom during the

testimony of minors who are the victims of certain sex crimes.” People v. Williams,

,

. Specifically, that section provides as follows:

“In a prosecution for [certain sex offenses, including predatory criminal sexual

assault of a child (720 ILCS 5/11-1.40 (West 2014))], where the alleged victim of

the offense is a minor under 18 years of age, the court may exclude from the

proceedings while the victim is testifying, all persons, who, in the opinion of the

court, do not have a direct interest in the case, except the media.” 725 ILCS

5/115-11 (West 2014).

¶ 23 “[A]n exclusionary order under section 115-11 of the Code is valid if it meets the

requirements of the statute,” and where the statutory requirements are met, the court’s order

“does not need to meet the more stringent limitations established by the United States Supreme

-8- Court for the closure of judicial proceedings to the press and public.” Williams,

(citing People v. Falaster,

,

(1996)). Section 115-11 has three limitations for exclusion: “(1) the [trial] court is explicitly

prohibited from excluding the media; (2) persons with a direct interest in the case may not be

excluded; and (3) the exclusion may occur only when the victim is testifying.” Id. ¶ 22.

¶ 24 Under section 115-11, the trial court exercises discretion in determining whether

spectators to a trial are directly interested in the case and may be excluded from the courtroom

during a minor’s testimony. People v. Holveck,

,

(1990). Persons with a direct interest include the defendant’s immediate family members, and

such individuals may not be excluded. People v. Benson,

,

(1993). Properly excluded individuals include “only those spectators whose

connection to the case on trial is tenuous or whose presence simply reflects their curiosity about

the trial court proceedings.”

¶ 25 As stated, defendant argues the trial court failed to comply with the requirements

of section 115-11 when clearing the courtroom for M.L.’s testimony. In considering this issue,

we first note that defendant has attempted to supplement the appellate record with the affidavit of

his defense counsel by attaching the affidavit to his appellant’s brief. He maintains the affidavit

shows that the trial court improperly barred his immediate family members, in particular his

father and stepmother, from the courtroom during M.L.’s testimony. However, “attachments to

briefs cannot be used to supplement the record, and this court cannot consider evidence that is

not part of the record.” People v. Garcia,

,

; see

also People v. Vega,

,

(1986) (“Exhibits or

-9- attachments to appellate briefs, not seen by the trial court, are improper.”). Defense counsel’s

affidavit is not part of the record on appeal, and we decline to consider it.

¶ 26 However, even absent any consideration of defense counsel’s affidavit, we agree

with defendant that the record shows a “clear or obvious error” occurred when, pursuant to

section 115-11, the trial court sua sponte ordered persons excluded from the courtroom during

M.L.’s testimony without first determining they “d[id] not have a direct interest in the case.”

¶ 27 In People v. Revelo,

,

(1996), the

State moved to exclude all persons other than the defendant, his counsel, and a victim counselor

during the testimony of a minor victim. The defendant objected to the exclusion of his mother,

father, and brothers on the basis that they had a direct interest in the case.

The trial court

granted the State’s motion over the defendant’s objection but “failed to find expressly whether

[the] defendant’s mother, father, and brothers possessed a direct interest in the cause.”

The

defendant appealed, arguing he was denied his right to a public trial because the court excluded

his family members from the courtroom during the minor victim’s testimony.

¶ 28 On review, the Second District found “the trial court failed to follow the

requirements of section 115-11” because it “failed to make an express finding concerning the

interest of [the] defendant’s parents and siblings.”

. The court determined as follows:

“Under the facts established by this record, it would be Orwellian to describe as

tenuous the connection between these parents or these siblings and the criminal

trial of the defendant. We will not do so. Additionally, [the] defendant’s parents

and siblings were not ‘simply curious’ because of the nature of the criminal trial;

they were present out of an interest—and likely a concern—for [the] defendant

- 10 - that long predated the beginning of this cause. To the extent the trial court’s ruling

excluding [the] defendant’s parents and siblings can be interpreted as an implicit

finding that they did not have a direct interest in [the] defendant’s trial, we hold

this to be an abuse of discretion.”

.

The court went on to find that the defendant’s father and at least two of his siblings could have

properly been excluded because they were potential witnesses in the case; however, it noted that

the same could not be said for the defendant’s mother and remaining siblings.

. The

court concluded that under section 115-11, the defendant’s nonwitness, immediate family

members had the right to attend the minor victim’s testimony.

.

¶ 29 Here, the trial court decided sua sponte to clear the courtroom during M.L.’s

testimony pursuant to section 115-11. That section clearly applied, as M.L. was the alleged

victim of a listed sex offense and under the age of 18. Although the court acted properly in

holding that the media was exempt from its order and limiting its closure to only the time period

during which M.L. testified, the record otherwise reflects that it erred by failing to determine

whether individuals it excluded from the courtroom had “a direct interest in the case.”

Significantly, defense counsel expressly brought the presence of defendant’s “family members”

to the court’s attention. However, without making any inquiry into those individuals or their

interest in the case, the court directed them “[o]ut” of the courtroom. The court made no explicit

finding that these individuals lacked a direct interest in the case, nor can we assume an implicit

finding where there was no inquiry made into the nature of their relation to defendant. At the

very least, once defendant’s family members were brought to the court’s attention, it should have

inquired as to who those individuals were and their interest in the case. See People v. Burman,

- 11 -

,

(stating “[t]he trial judge followed section

115-11 by interviewing the spectators to determine their interest in the case”). The court’s failure

to make any inquiry indicates that it did not make an informed decision as to whether the family

members brought to its attention had a direct interest in the proceedings prior to excluding them.

Such action amounted to a blanket exclusion of anyone other than members of M.L.’s family and

the media and constituted a violation of statutory requirements.

¶ 30 On appeal, the State points out that nothing in the record establishes that the

family members excluded from the courtroom during M.L.’s testimony were defendant’s

immediate family members. We point out the equally obvious fact—that nothing in the record

establishes that defendant’s family members who were excluded were not members of his

immediate family. The problem in this case is that the trial court failed to exercise its discretion

and determine who these family members were and whether they had a direct interest in the case

according to the statute. Moreover, it is not only immediate family members of a defendant who

must be permitted to remain, and section 115-11 does not speak in such terms. Certainly, a

defendant’s immediate family members have an interest that is “direct” and not simply one based

on curiosity of the proceedings. Falaster,

(“The persons who were temporarily

excluded from the proceedings were not members of the defendant’s immediate family and thus

did not have a direct interest in the outcome of the case.”). However, section 115-11 sets forth no

limitations on whom the trial court may determine, in its discretion, is a directly interested

person. Nonimmediate family members may also qualify under the statute.

¶ 31 To support its argument that no reversible error occurred, the State relies on

Williams,

. There, the State moved to have the testimony of the minor

- 12 - victim “received in chambers with defense counsel, the defendant, and the court reporter.” Id.

¶ 10. Following a discussion that was held off the record, the trial court granted the State’s

motion. Id. The defendant did not object to the action but, on review, challenged the closing of

the proceedings. Id. ¶ 17. Ultimately, the Third District found no reversible error, stating as

follows:

“In this case, clearly the victim was under 18, and the closure was only temporary

(during her testimony), but in allowing her to testify in chambers, there was no

indication whether people with a direct interest in the case or the media were also

excluded. However, the defendant has not directed our attention to any person

with a direct interest in the case or a member of the media who was excluded. The

trial court held a sidebar to discuss the exclusion, specifically allowing the

defendant, his counsel, the State, and [the victim’s] foster mother to be present for

[the victim’s] testimony. Since trial judges are presumed to follow the law

[citation], we presume that the judge allowed all those identified with a direct

interest in the case to be present during [the victim’s] testimony. While a better

practice would have been to make those findings on the record, we cannot say that

the trial court abused its discretion.” Id. ¶ 22.

¶ 32 We find Williams distinguishable. In that case, the proceedings to determine any

exclusions under section 115-11 were held off the record, and nothing of record indicated any

error by the trial court. As a result, the reviewing court presumed that the trial judge had

followed the law. Here, the record clearly and affirmatively demonstrates error, as defendant’s

family members were brought to the court’s attention and then excluded during the minor

- 13 - victim’s testimony without any inquiry or consideration into their interest in the case.

¶ 33 Further, we find this court’s decision in Benson,

, illustrates

proper compliance with statutory requirements. In that case, the State moved to clear the

courtroom during the testimony of a minor victim pursuant to section 115-11.

. The

defendant objected on the basis that he had “friends and relatives in the courtroom” who “had an

interest in the proceeding.”

“The court then asked [the defendant’s] counsel to identify the

family members present and the nature of the interest of the other spectators ***.”

Counsel

provided a “generalized” response and “did not identify any particular spectator by name or

relationship.” (Emphasis in original.)

. Further, upon inquiry by the court, counsel

agreed that only “ ‘collateral relatives’ ” were present.

. The court granted the State’s

motion.

¶ 34 On review, this court found no abuse of discretion by the trial court.

.

Specifically, we stated as follows:

“[B]efore the court entered the order that apparently excluded all spectators from

the courtroom (mainly [the] defendant’s collateral relatives and neighbors), the

court expressly asked [the] defendant whether any spectators were members of his

immediate family—persons who presumably would have a direct interest in the

outcome of the case. At that point, the burden shifted to [the] defendant to

specifically identify each spectator that he wished to exempt from the closure

order and to define the interest of each. [The] [d]efendant’s doing so would have

given the court the opportunity to tailor the closure order to ensure that it was no

broader than necessary. However, here [the] defendant’s vague reference to his

- 14 - collateral kin, neighbors, and acquaintances made no distinction between those

possibly having a direct interest in the proceeding and those who did not. [The]

[d]efendant’s failure to provide the trial court with the information it requested

waives this issue on appeal.”

¶ 35 Under section 115-11, the trial court has the responsibility to determine that

persons excluded from courtroom proceedings have no direct interest in the case. In Benson, the

trial court appropriately discharged that responsibility by expressly inquiring into the interest of

courtroom spectators and determining their interest based on the information provided. Here, in

contrast, the court, acting sua sponte in clearing the courtroom, made no inquiry into the interest

of spectators even after defendant informed the court that his family members were present.

Because the court conducted no inquiry into whether defendant’s family members had a direct

interest in the case, it did not properly discharge its statutory responsibilities. See

(“The second limitation section 115-11 of the Code places upon the trial court is to direct that the

court may exclude from the proceedings only those persons who, in the opinion of the court, do

not have a direct interest in the case; the obverse of this means that those persons who do have a

direct interest in the case, such as a defendant’s immediate family, may not be excluded.”

(Emphases in original.)).

¶ 36 As stated, defendant argues that second-prong plain error occurred in this case. He

contends that the trial court’s error in failing to comply with section 115-11 was so serious that it

affected the fairness of his trial and challenged the integrity of the judicial process. He also

maintains the error was structural, requiring automatic reversal.

¶ 37 Again, a defendant’s forfeiture of an issue may be excused “when a clear or

- 15 - obvious error occurred” and the “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.” (Internal quotation marks omitted.) Sebby,

. “Under the second

prong of plain-error review, [p]rejudice to the defendant is presumed because of the importance

of the right involved, regardless of the strength of the evidence.” (Internal quotation marks and

emphasis omitted). People v. Thompson,

,

(2010).

¶ 38 Additionally, automatic reversal is required when the case on review involves a

structural error.

. Our supreme court has equated second-prong plain error with

structural error (although second-prong plain error is not restricted to only the types of structural

errors recognized by the supreme court (People v. Clark,

, ¶ 46,

)). “Structural errors are systemic, serving to erode the integrity of the judicial process and

undermine the fairness of the defendant’s trial.” (Internal quotation marks omitted). Thompson,

238 Ill. 2d at 608. “An error is typically designated as structural only if it necessarily renders a

criminal trial fundamentally unfair or an unreliable means of determining guilt or innocence.” Id.

at 609. “The Supreme Court has recognized an error as structural only in a very limited class of

cases,” including those that involve the “denial of a public trial.” Id.

¶ 39 In Revelo,

, the Second District held it was appropriate to

presume prejudice to the defendant when the trial court abuses its discretion in its application of

section 115-11. Specifically, the court stated as follows:

“We hold that a defendant need not prove specific prejudice when a trial

court excludes persons with a direct interest in the proceeding. As a practical

matter, it is hard to envision what would constitute prejudice in the wake of a

- 16 - section 115-11 violation. It would be difficult, if not impossible, to require a

defendant to prove, or the State to disprove, prejudice. However, if section 115-11

is to confer anything beyond a meaningless right without a remedy, defendants

must conclusively be presumed to be prejudiced by a section 115-11 violation.

We so hold. This holding is bolstered by the practice of presuming prejudice

when the constitutional guarantee of a public trial is violated. [Citations.] We see

no reason why a different practice should apply under section 115-11.”

See also Williams,

(addressing allegations of plain error with

respect to the application of section 115-11 and noting that the improper closure of a courtroom

“is a structural error that erodes the integrity of the judicial process and undermines the fairness

of a trial” (internal quotation marks omitted)).

¶ 40 Thus, Revelo holds that a section 115-11 violation is a serious error that affects

the fairness of a defendant’s trial and challenges the integrity of the judicial process, amounting

to second-prong plain error. The State criticizes Revelo on the basis that the court improperly

“equated” a section 115-11 violation with a constitutional violation. See U.S. Const., amend. VI

(guaranteeing a criminal defendant the right to a public trial). It cites this court’s decision in

Benson,

, arguing that section 115-11 concerns only limited closures of trial

court proceedings and, as a result, does not violate or implicate constitutional provisions.

¶ 41 As we have previously discussed, in Benson, the defendant appealed the trial

court’s decision to close the courtroom pursuant to section 115-11, arguing the court’s clearing

of the courtroom during the minor victim’s testimony deprived him of his sixth amendment right

to a public trial.

. We disagreed, stating that “because section 115-11 of the Code

- 17 - permits only limited closure of trial court proceedings, that section does not violate (or even

implicate) any State or Federal constitutional provisions.”

. We also held that section

115-11’s “explicit commands that the trial court may exclude neither the media nor those

spectators who have a direct interest in the case steer it clear of any constitutional infirmity.”

(Emphasis added.)

Significantly, in Benson, we found that the record supported the trial

court’s decision to clear the courtroom and that no section 115-11 violation had occurred.

.

¶ 42 We find Benson does not support the State’s position. Most notably, that case did

not involve a section 115-11 violation. Instead, there was compliance with statutory provisions,

which allowed the trial court to “steer *** clear of any constitutional infirmity.”

. As

discussed, the same is not true in the present case. Although the court placed no restrictions on

the media, the record reflects it also gave no consideration to whether spectators it excluded from

the courtroom had a direct interest in the case. Thus, while compliance with section 115-11 does

not violate or implicate constitutional rights to a public trial (as in Benson), the same cannot be

said where there is noncompliance with section 115-11.

¶ 43 Again, we note that an order by the trial court excluding spectators from the

proceeding is sufficient where it satisfies section 115-11 of the Code, and a court’s order need

not also satisfy the more stringent limitations for the closure of judicial proceedings established

by the United States Supreme Court in Waller v. Georgia,

(1984), and other

cases. Falaster,

; see also Waller,

(stating “the party seeking

to close the hearing 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

- 18 - reasonable alternatives to closing the proceeding, and it must make findings adequate to support

the closure”). However, in this case, the trial court’s exclusion of spectators from the courtroom

complied with neither section 115-11 nor the more stringent Supreme Court limitations. Thus,

we disagree with the State that a section 115-11 violation does not implicate a defendant’s

constitutional rights.

¶ 44 The Supreme Court has stated “that a public-trial violation is structural” due, in

part, to “the difficulty of assessing the effect of the error.” (Internal quotation marks omitted.)

Weaver v. Massachusetts,

, ___,

(2017). In Weaver, the

Supreme Court considered the effect of a structural error in the context of a public trial violation

when the defendant did not preserve the error for direct review and, instead, raised the error later

by claiming ineffective assistance of counsel in a collateral proceeding.

at ___,

. The Court determined that, in those particular circumstances, “Strickland prejudice is not

shown automatically.”

at ___,

(citing Strickland v. Washington,

(1984)). However, it also stated as follows:

“[I]n the case of a structural error [based on the violation of the right to a public

trial] where there is an objection at trial and the issue is raised on direct appeal,

the defendant generally is entitled to automatic reversal regardless of the error’s

actual effect on the outcome.” (Internal quotation marks omitted.)

at ___,

.

The Court explained its different treatment of the same structural error, reasoning that a

contemporaneous objection to a courtroom closure allows the trial court to open the courtroom or

explain its reasoning for keeping it closed, whereas raising the issue for the first time in an

- 19 - ineffective-assistance-of-counsel claim deprives the court of the chance to cure the violation.

at ___,

. It further noted that objections raised at trial and on direct review

diminish “the systemic costs of remedying the error.”

at ___,

.

¶ 45 We find Weaver instructive. Here, the trial court noted defendant’s objection to its

courtroom closure for the record and the issue is being raised on direct review rather than in the

context of a collateral proceeding premised on an ineffective-assistance-of-counsel claim.

Further, the record shows the trial court did not follow the requirements of section 115-11 when

it closed the courtroom, raising constitutional concerns regarding defendant’s right to a public

trial. As a result, we agree with defendant that the trial court’s error amounted to a public trial

violation, which is a structural error. Accordingly, defendant has established the occurrence of

second-prong plain error, requiring reversal. Given our resolution of this issue, we find it

unnecessary to address the remaining claims of error raised by defendant on appeal regarding

allegations of ineffective assistance of trial counsel and an abuse of the trial court’s discretion

during sentencing.

¶ 46 3. The Dissent

¶ 47 The dissent agrees that the trial court failed to comply with the requirements of

section 115-11. Nevertheless, it finds that the court’s failure to comply with the statute does not

amount to a public trial violation entitling defendant to a new trial. In so finding, the dissent

appears to argue that we may not properly determine that a public trial violation occurred for two

reasons: (1) because defendant failed to present a sufficient record showing that persons with a

direct interest in his case were actually excluded and (2) because the media was not excluded

from the courtroom.

- 20 - ¶ 48 First, a showing by defendant that the trial court excluded a person with a direct

interest was not necessary to establish an improper closure in this case because the record

otherwise showed the trial court’s failure to abide by section 115-11. Specifically, a section 115-

11 violation and an improper closure occurred here because the trial court—charged by statute

with exercising its discretion to determine the interest of spectators it intended to exclude—

obviously and unmistakably failed to exercise that discretion. In other words, there was a

sufficient record from which to evaluate the trial court’s conduct. Here, our finding of a violation

of section 115-11 is based not on a determination that the court actually excluded a person with a

direct interest but rather on its obvious failure to undertake any determination of interest in the

first instance. The dissent misapprehends the majority decision by asserting that it is based on

improper speculation that individuals with a direct interest were excluded. Ultimately, we do not

know the interest of those excluded because the trial court did not fulfill its statutory

responsibility to make that determination.

¶ 49 As discussed, the record clearly establishes that defendant brought the presence of

his family members to the trial court’s attention and the court excluded them without any

consideration of their interest. The dissent would absolve the trial court of any responsibility to

inquire further under section 115-11—a position for which we find no legal support. In fact, it

has been held that, “[g]iven 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 [(the right to a public trial)], regardless of whether the attorneys assist in the process.”

People v. Evans,

,

; Presley v. Georgia,

(2010) (per curiam) (stating a trial court is required to consider reasonable alternatives

- 21 - to closure, one of the required Waller factors, even when not offered by the parties).

¶ 50 Second, as stated, the dissent also appears to suggest that no public trial violation

can be found when there is media presence in the courtroom. However, if nonexclusion of the

media were all that was required to avoid constitutional concerns, even a defendant’s

demonstration that his immediate family members were excluded would not amount to a public

trial violation. Plainly, this is incorrect.

¶ 51 In furtherance of its argument, the dissent points out that Benson contains the

statement that section 115-11 neither violates nor implicates constitutional provisions (see

Benson,

). Infra ¶ 68. As discussed, Benson involved full compliance with

section 115-11. It also specifically held that section 115-11’s “explicit commands that the trial

court may exclude neither the media nor those spectators who have a direct interest in the case

steer it clear of any constitutional infirmity.” (Emphasis added.) Benson,

.

Certainly, it is not enough for a trial court to simply announce that it is acting pursuant to section

115-11 to avoid constitutional concerns. Rather, the court must also abide by its requirements.

Where there is noncompliance with the statute’s requirements, constitutional concerns are

implicated.

¶ 52 The dissent also relies on People v. Priola,

,

(1990), a Second District case that concluded that a trial court’s failure to comply with

section 115-11 did not result in plain error. However, in that case, the only apparent basis for

finding a section 115-11 violation was the lower court’s failure to also comply with the Supreme

Court’s more stringent Waller criteria.

(“Since the trial judge did not comply with the Waller

criteria, as we have previously indicated, in closing the trial to nonmedia spectators during

- 22 - A.A.’s testimony, the judge also failed to comply with section 115-11 as we have interpreted

it.”). This notion in Priola was later repudiated by our supreme court. See Falaster,

(“[A] trial judge’s order *** need[s] to satisfy only the requirements of section 115-11.”).

Priola did not address noncompliance with section 115-11 at all, much less the violation that

occurred in this case. Nor did Priola involve facts like the operative ones in this case—the trial

court’s failure to determine the interests of individuals it excluded from the courtroom when

those individuals were brought to its attention by the defendant and represented to be family

members of the defendant. We find Priola is both analytically and factually inapposite.

¶ 53 Additionally, the dissent argues that “the majority places the entire obligation to

ensure the issue is properly preserved on the trial court.” Infra ¶ 82. We find the dissent

mischaracterizes the majority holding. Had defendant remained entirely silent during the portion

of the underlying proceedings at issue, we acknowledge that the record would have been

insufficient to demonstrate error. For purposes of appeal, a defendant still must present a

sufficient record from which the trial court’s conduct can be evaluated. However, as discussed,

that was done here. There was a sufficient showing on the record that the trial court failed to

determine the interest of those it excluded, resulting in an overstepping of its authority under

section 115-11.

¶ 54 Ultimately, the trial court in this case closed the proceedings without complying

with the requirements set forth in section 115-11. Accordingly, there was an improper closure

and a violation of the defendant’s right to a public trial. Although the dissent seems to suggest

otherwise, a public trial violation is unequivocally a structural error. Weaver, 582 U.S. at ___,

(“[A] violation of the right to a public trial is a structural error.”). As

- 23 - discussed, per Weaver, we find reversal is necessary in this case.

¶ 55 III. CONCLUSION

¶ 56 For the reasons stated, we reverse the trial court’s judgment, and the cause is

remanded.

¶ 57 Reversed and remanded.

¶ 58 JUSTICE DeARMOND, dissenting:

¶ 59 I agree the trial court failed to comply with the requirements of section 115-11

when it excluded spectators from defendant’s trial during the testimony of the minor victim.

Moreover, I agree with the majority that defendant forfeited his argument by failing to properly

preserve the issue for appellate review. However, I part company with the majority in its finding

that defendant established second-prong structural error entitling him to a new trial. The majority

places the entire burden on the trial court, while I believe a defendant bears some level of

responsibility to provide a court of review with an adequate record before he may seek the

drastic relief to which he might otherwise be entitled for a claimed “structural error.”

Accordingly, I respectfully dissent.

¶ 60 In order to preserve an alleged error for appeal, a defendant must object at trial

and file a written posttrial motion. People v. Bates,

,

. If he fails to do either, forfeiture then results.

As the majority notes, defendant alleged he

is entitled to relief under the second prong of the plain error doctrine.

¶ 61 Our supreme court has “equated the second prong of plain-error review with

structural error, asserting that ‘automatic reversal is only required where an error is deemed

“structural,” i.e., a systemic error which serves to “erode the integrity of the judicial process and

- 24 - undermine the fairness of the defendant’s trial.” ’ [Citations.]” Thompson, 238 Ill. 2d at 613-14.

“An error is typically designated as structural only if it necessarily renders a criminal trial

fundamentally unfair or an unreliable means of determining guilt or innocence.” Id. at 609.

Structural errors have been found only in a limited class of cases, including those involving “a

complete denial of counsel, trial before a biased judge, racial discrimination in the selection of a

grand jury, denial of self-representation at trial, denial of a public trial, and a defective

reasonable doubt instruction.” Id.; see also In re Samantha V.,

, 378-79,

, 499 (2009) (finding error under the second prong based on the trial court’s failure to

apply the one-act, one-crime rule); People v. Walker,

,

(2009) (finding error under the second prong based on the trial court’s failure to exercise

discretion in denying a continuance).

¶ 62 This court has noted that, “[w]hen a defendant claims second-prong error, he must

prove that a structural error occurred.” Bates,

(citing Thompson,

238 Ill. 2d at 613-14). Since a structural error is one that renders the trial fundamentally unfair or

unreliable, the defendant bears the burden of persuasion at all times under a plain error analysis.

Id. ¶¶ 72-73; see also People v. Hillier,

,

(2010)

(stating the defendant has the burden of persuasion under both prongs of the plain error doctrine).

If the defendant fails to satisfy his burden of persuasion, “the procedural default will be

honored.” People v. Eppinger,

,

. Here, the majority places

no burden on defendant whatsoever to establish a second-prong error, having concluded the trial

court’s failure to fully comply with section 115-11, in itself, establishes a structural error. Such a

- 25 - finding, in my opinion, is not supported by previous holdings of the United States Supreme

Court or even this court.

¶ 63 As the majority notes, the only record of what transpired in discussions

concerning the closing of the courtroom during the victim’s testimony consists of three brief

colloquies between the trial court and counsel for the State and defendant. At the outset of the

trial, when the court indicated its intention to clear the courtroom during the minor victim’s

testimony, the following exchange occurred:

“THE COURT: When [M.L.] testifies, I want the

courtroom cleared except for family members.

MR. LARSON [(ASSISTANT STATE’S ATTORNEY)]:

Thank you, Your Honor.

MR. ALLEGRETTI [(DEFENSE ATTORNEY)]: I’m

sorry, Judge. [Defendant’s] family members are here. Is that—are

you barring them?

THE COURT: Out.”

Defense counsel interposed no objection on the record, made no offer of proof, made no request

for clarification in order to ascertain who exactly was being barred, and did not offer any

argument in opposition to the court’s cryptic statement, “Out.”

¶ 64 The next discussion about closing the courtroom occurred prior to opening

statements:

“THE COURT: All right. Well, pursuant to [section 115-

11] where the alleged victim of the offense is a minor under - 26 - eighteen years of age, the court may exclude from the proceedings

while the victim is testifying all persons who, in the opinion of the

court, do not have a direct interest in the case except the media. So

I’m going to order that the courtroom be cleared, with the

exception of the media, when [M.L.] testifies. I will note [defense

counsel’s] objection.”

Again, defense counsel did not seek to place his objection or argument on the record, note which

family members were present, or seek a clarification of the trial court’s apparent blanket order

without the evaluation required under section 115-11.

¶ 65 Lastly, after opening statements and immediately before M.L. testified, the

following exchange took place:

“THE COURT: All right. At this point pursuant to [section

115-11], I’m going to clear the courtroom. Mr. Larson, you said

the grandmother is going to be present.

MR. LARSON: Yes, Your Honor.

THE COURT: Who else?

MR. LARSON: Your Honor, her father and stepfather we

would also ask to be present.

THE COURT: Who is in the back of the courtroom? Who

is the gentleman sitting there? And then the rest of the people on

this side. All right. As soon as we get done with her testimony, I

will bring the rest of the people in the courtroom.”

- 27 - Again, defense counsel remained silent. There was no specific objection, request for

clarification, or offer to provide the trial court with the identities of those family members

defendant wished to be allowed to remain. The burden is on the defendant to provide the

reviewing court with an adequate record. “ ‘It is well settled that any doubts arising from the

incompleteness of the record will be resolved against the appellant, as it is the burden of the

appellant to provide a sufficiently complete record to support a claim of error.’ [Citation.]”

People v. Kelly,

,

(2009).

¶ 66 A review of the trial court exchanges reveals defense counsel made no effort to

make a record from which a second-prong plain error analysis could take place without

substantial conjecture by this court. We are forced to speculate repeatedly about those things

missing from the record or left unclear and unexplained by defendant. Having supposedly made

the objection, which, ironically, even that is unclear on this record, defense counsel had the

responsibility to present an adequate record from which this court could assess the conduct of the

trial court. Nothing in the record reveals the “family members,” whom defense counsel referred

to in the first colloquy, were immediate or that the family members permitted to remain were not

also related to defendant, either by blood or marriage, since he was the uncle of the victim. The

majority correctly disregards defense counsel’s affidavit on appeal, although it expressly

identifies the persons in the affidavit defendant says were excluded.

¶ 67 The majority contends the lack of an adequate record, which was within the

control of defendant, permits it to conclude family members with a direct interest in the case

were removed from the courtroom, without inquiry by the trial court and to the detriment of

defendant. In addition, the majority seems to believe, once it has shown the court failed to

- 28 - comply with section 115-11, we need not concern ourselves with issues of waiver or forfeiture at

all since the court’s failure to follow the requirements of the statute entitle a defendant to

automatic reversal and remand as a “structural error,” per se.

¶ 68 The majority finds this to be a structural error requiring automatic reversal

because the trial court’s failure to comply with section 115-11 rises to the level of a violation of

the constitutional right to a public trial. However, this court in Benson,

,

previously held section 115-11 neither violates nor implicates state or federal constitutional

provisions.

“We hold that because section 115-11 of the Code permits

only limited closure of trial court proceedings, that section does

not violate (or even implicate) any State or Federal constitutional

provisions. We further hold that the criteria discussed by the

United States Supreme Court in Press-Enterprise and Waller do

not apply to closures ordered pursuant to section 115-11 of the

Code.”

One reason why the criteria discussed in Press-Enterprise and Waller would not apply is the

simple fact that the criteria developed in both cases related to closures that included the media. It

is the exclusion of the media that deprives a defendant of his constitutional right to a public trial.

Since section 115-11 expressly prohibits such exclusion, it falls outside the bounds of those

United States Supreme Court pronouncements.

¶ 69 In Benson, this court properly concluded the statute contains three limitations on

the trial court’s authority to close a courtroom that remove it from scrutiny under the sixth

- 29 - amendment of the United States Constitution: (1) the blanket prohibition against exclusion of the

media, (2) the limitations on exclusion of others who do not have a direct interest in the

proceedings, and (3) the temporal limitation involving only that period of time during which the

child victim testifies.

. Citing at length our supreme court’s decision in Holveck,

, this court proclaimed that, “ ‘[b]y allowing the media to attend, [the statute] preserve[s]

the defendant’s sixth amendment right to a public trial.’ ” Benson,

(quoting Holveck,

); see also People v. Leggans,

,

(1993) (finding no section 115-11 error and noting the prosecutor’s

argument that “the presence of the media ensured the defendant would receive a public trial”).

¶ 70 The majority ignores its own language in Benson when it mischaracterizes my

reliance on Benson. There is no question the trial court failed to comply with section 115-11.

There is equally no question it should have done more. The failure to make further inquiry was

error. This dissent does not “absolve the trial court of any responsibility to inquire further under

section 115-11,” as claimed by the majority. Supra ¶ 49. I question, based upon this court’s own

citation of Holveck, the position the majority now takes that a violation of section 115-11 is a

priori, a structural error of constitutional dimension as opposed to the violation of a statute.

When read in context, it is even more clear the court in Holveck and this court in Benson

recognized the defendant’s right to a public trial was protected by allowing media presence.

“It is clear from the record that the judge considered the

interests of both the defendant and the minor witnesses. By

allowing the media to attend, the judge preserved the defendant’s

sixth amendment right to a public trial. The trial judge considered

- 30 - that the media presence is, in effect, the presence of the public.

Too, the judge did not allow persons without an interest to attend.

The judge explained that the age of the witnesses, their

psychological immaturity, the nature of the case, and the wishes of

the victim contributed to his decision. Each of these factors was

cited by the appellate court as being determinative of the propriety

of the closure of a trial. Therefore, the appellate court erred in

holding that the trial judge improperly closed the public trial.”

(Emphasis added.) Holveck,

.

¶ 71 Media presence was the one factor upon which both this court in Benson and the

supreme court in Holveck relied to find the defendant’s right to a public trial was protected. The

remaining considerations were all victim-oriented and related to those persons being excluded to

protect the victim. Victim considerations are not the issue here. Having violated the statute, the

trial court erred; however, it remains the burden of defendant, especially under a plain error

analysis, to prove it to be a second-prong structural error requiring reversal. Bates,

. Noncompliance with the statute would not necessarily implicate

constitutional concerns unless the basis for noncompliance was exclusion of the media.

¶ 72 From this record, we have no way to determine whether witnesses with a direct

interest were excluded because defendant, much like the defendant in Benson, did nothing to

identify which family members were present or what their interest may be when asked by the

trial court. Here, even after the court asked “who else?” and inquired about the other people “in

the back of the courtroom. Who is the gentleman sitting there? And then the rest of the people on

- 31 - this side,” defendant’s counsel said nothing. The majority, again speculating to fill in the blanks

of this woefully incomplete record, has concluded this conversation was between the court and

the prosecutor. I must respectfully point out there is absolutely nothing in this record from which

to conclude the court is “conversing with the prosecutor.” The court reporter documents whoever

speaks. That is all. Just because defendant’s counsel said nothing does not mean he was not part

of the conversation. Had he spoken up, it would be evident he was. His silence does not equate to

concluding he was not.

¶ 73 More importantly, this is the third discussion about clearing the courtroom and it

took place long after the first, which occurred at the very beginning of the trial. Since then, the

trial court and both counsel have discussed trial procedure and logistics and addressed various

pretrial issues. Further, at this third interchange, the court specifically asked about various people

in the back of the courtroom. This would have been the time for defendant’s counsel to note who

they were and renew his request now that it was apparent who was being allowed to remain on

the State’s behalf. Speculating just like the majority, since the State did not respond to the court’s

inquiry about the people in the back of the courtroom and the prosecutor was never reluctant to

speak up during these conversations, it is just as reasonable to conclude the people in the back

must have been family of defendant. His counsel should have said so and followed up by seeking

clarification of the court’s first comment “out,” in light of the fact that, since then, the State has

sought and obtained approval for three specific family members of the victim to be present. This

was a substantial change from the court’s comments at the first conversation upon which the

majority places such weight when the court said “I want the courtroom cleared except for family

members” and the second conversation when the court said it was ordering the courtroom cleared

- 32 - “with the exception of the media” and, now, the third where the State identifies a grandmother,

father, and stepfather specifically. If anything, counsel would at this point have had some

leverage with which to argue on behalf of specific family members if they were of similar

relationship to defendant, or at least force the court to explain why it was making a distinction.

This would only be expected if counsel was sincere in his attempt to make a record of an issue

defendant might seek to pursue on appeal if necessary.

¶ 74 Along with Benson, I find Priola,

, instructive. In that case,

the defendant argued the trial court erred in closing the courtroom to nonmedia spectators during

the victim’s testimony.

. When discussing the failings of the trial court’s order

permitting closure, the Second District concluded “the Waller criteria were not met in this case.”

Although the Waller criteria per se are not at issue in a closure under section 115-11 (see

Falaster,

), the deficiencies noted by the court in Priola were (1) no specific

findings in support of closure and (2) no indication in the record the court considered alternatives

to closing during the victim’s testimony. Priola,

. Nothing about that

conflicts with what our supreme court found necessary in Holveck or this court in Benson. The

trial court is still required to provide sufficient reasons to warrant closure and needs to make sure

its rationale is in the record. The only thing the Benson court criticized about Priola was its

holding the Waller criteria were to be applied under section 115-11.

¶ 75 While the Second District found the trial court failed to comply with section 115-

11, it also found the defendant forfeited his argument by failing to object at trial or raise the issue

in his posttrial motion.

. Moreover, the appellate court declined to apply the plain error

- 33 - rule under both prongs, ruling the evidence was not closely balanced and on the second prong as

follows:

“Furthermore, this error did not deprive defendant of a fair

trial. The purposes served by requiring public trials are

encouraging witnesses to come forward, discouraging perjury, and

helping to ensure that the judge and prosecutor carry out their

duties in a responsible manner. [Citation.] Since most of the trial

was open to the public and the media was not excluded from any

portion of the trial, we do not believe these objectives were

seriously compromised by the trial court’s action.” (Emphasis

added.)

.

¶ 76 Here, in closing the courtroom during M.L.’s testimony, the trial court

specifically allowed any members of the media to remain. As our supreme court has stated,

“ ‘media presence is, in effect, the presence of the public.’ ” Falaster,

(quoting

Holveck,

). Further, the court in Falaster noted how application of section 115-

11 did not affect a defendant’s sixth amendment right to a public trial. There, the defendant

argued the trial court’s closure of the courtroom under section 115-11 had to satisfy not only the

statute but also the more stringent limitations referenced in Waller, Press-Enterprise, and Globe

Newspaper. The court, citing Benson, found it did not.

(stating it agreed “with the State that

the trial judge’s order here needed to satisfy only the requirements of section 115-11”).

¶ 77 Although the majority cited Falaster several times, it failed to note or comment

on the clear language contained therein. Referencing Holveck, the supreme court in Falaster said

- 34 - “[t]he court observed that, ‘[b]y allowing the media to attend, the judge preserved the

defendant’s sixth amendment right to a public trial. The trial judge considered that the media

presence is, in effect, the presence of the public.’ ”

(quoting Holveck,

).

Nonexclusion of the media moves this from a sixth amendment constitutional issue to a statutory

violation. Thus, automatic reversal is inappropriate without more. The issue then centers again

on whether persons excluded from the courtroom had a direct interest in the case. We do not

know. The majority cannot say because the record does not indicate who was removed. It could

have been a parent, a sibling, or a long-lost cousin twice removed. Again, we do not know, and it

is inappropriate to assume a family member with a direct interest was excluded in the absence of

any evidence in the record.

¶ 78 The majority’s reliance on Revelo is unavailing, as that case is readily

distinguishable. There, the defendant objected to the State’s request prior to the victim’s

testimony to exclude all persons except the defendant, his counsel, and a victim counselor.

Revelo,

. At that time, the defendant argued his mother, father, and

brothers had a direct interest in the case and thus could not be excluded under section 115-11.

The trial court allowed the media to remain but failed to expressly determine whether the

defendant’s mother, father, and brothers possessed a direct interest in the case.

In finding the

court abused its discretion, the Second District stated it would not conclude the court’s removal

of the defendant’s parents and siblings constituted an implicit finding they did not have a direct

interest in the case.

Further, the “threshold question” in Revelo was whether a section 115-11

closure must comport with the Waller limitations, which we already know to be answered in the

negative. The only portion of Revelo I would consider relevant to our issue is its citation of

- 35 - Falaster for the finding that, since the “media were permitted to attend fully,” “no danger of a

closed trial existed.” See

. Thus, the Second District also agreed that allowing

attendance of the media precludes a finding of a sixth amendment violation. What we are left

with is a statutory violation, which does not warrant structural error analysis.

¶ 79 In contrast to this case, the record in Revelo revealed the defendant’s family

members who were removed. Here, we are left to speculate that defendant had family members

with a direct interest in his case that he wanted in the courtroom. How can we make such an

assumption without knowing who the people are? Defense counsel was the only person in a

position to clarify who was present in order to learn whether their identity or relationship to

defendant might have impacted the trial court’s ruling, especially in light of the exceptions which

had been made for the State. The court had no idea who the spectators were or to whom they

were related. All it could do was inquire and expect counsel to provide the information necessary

to determine who could remain. It did so when it asked “who else” and specifically inquired

about certain persons in the courtroom at the time.

¶ 80 In Thompson, 238 Ill. 2d at 608-09, our supreme court held a violation of Illinois

Supreme Court Rule 431(b) (eff. May 1, 2007) did not automatically constitute a structural error

warranting reversal. Noting the purpose of Rule 431(b) admonishments is to insure a fair and

impartial jury, the court stated “[a] finding that defendant was tried by a biased jury would

certainly satisfy the second prong of the plain-error review because it would affect his right to a

fair trial and challenge the integrity of the judicial process.” Thompson, 238 Ill. 2d at 614.

However, the court held it could not be presumed that a jury was biased solely because of a trial

court’s failure to properly admonish potential jurors under Rule 431(b). Id. Instead, the court

- 36 - concluded the defendant had not carried his burden of persuasion under the second prong of the

plain error doctrine because he had not presented any evidence of a biased jury. Id. at 615.

¶ 81 This same rationale was applied in People v. Radford,

,

, a partial closure case that did not involve section 115-11 and therefore had to be

analyzed under the more strict sixth amendment criteria. There, the defendant argued automatic

reversal was required due to the trial court’s partial closure of the courtroom during voir dire.

¶ 57 (citing the Waller criteria). Citing Thompson, the Third District found the defendant’s

failure to object or raise the issue in a posttrial motion constituted forfeiture but still considered

the issue under second-prong plain error. It noted how such error must be found to have deprived

the defendant of a fundamentally fair trial or undermined the integrity of the judicial process.

¶ 52 (citing Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967) and People v. Piatkowski,

, 564-

65,

(2007)). The court went on to point out that “ ‘the term “structural

error” carries with it no talismanic significance as a doctrinal matter’ ” but merely connotes it is

not subject to harmless error analysis.

¶ 55 (quoting Weaver, 582 U.S. at ___,

). Public trial violations are subject to a “ ‘triviality standard’ ” that considers whether the

actions of the court and the effect those actions had on the conduct of the trial deprived the

defendant of the sixth amendment protections of a public trial, namely (1) to ensure a fair trial,

(2) to remind the prosecutor and the judge of their responsibility to the accused and the

importance of their functions, (3) to encourage witnesses coming forward, and (4) to discourage

perjury. Id. ¶ 56. The Radford court referenced Weaver when it said

“potential errors in making these difficult decisions [(closure of the courtroom)]

can be cured or more thoroughly addressed when a defendant contemporaneously

- 37 - objects to a courtroom closure. [Citation.] In other words, without

contemporaneous objection, the trial court would not likely cure a violation or

formally express its findings on the record.” Id. ¶ 58.

Absent a clearly expressed objection, request for clarification, offer of proof, or identification of

the persons present, defendant did not provide the trial court with the opportunity to cure the

error or formally express its findings on the record.

¶ 82 Here, the majority places the entire obligation to ensure the issue is properly

preserved on the trial court. I find the court’s obligation is to avoid making the error and

defendant’s obligation is to properly preserve it for review. While the denial of a public trial may

constitute structural error, it cannot be presumed simply because the trial court failed to follow

the requirements of section 115-11, so long as there was no exclusion of the media. Like in

Thompson, defendant still has the burden of establishing persons with a direct interest in his case

were excluded in error, thereby depriving him of his right to a public trial. Otherwise defendant

could make the allegation on the barest of records and demand a new trial. Without knowing

who was excluded, however, defendant cannot satisfy his burden in this case.

¶ 83 The majority also finds support in Weaver,

,

. Weaver

dealt with an ineffective assistance of counsel claim, an issue defendant does not even raise on

appeal.

at ___,

. In Weaver, the defendant’s claim was based on defense

counsel’s failure to object to the trial court’s order excluding all spectators during jury selection

due to inadequate seating.

at ___,

. Those removed for two days of jury

selection included the defendant’s mother and her minister.

at ___,

. The

Supreme Court found the violation to be structural under federal constitutional guidelines (the

- 38 - same guidelines this court held were not implicated by section 115-11 in Benson,

) but noted even though a public trial violation may constitute a structural error, it does

not always lead to fundamental unfairness. Weaver, 582 U.S. at ___,

(stating

“not every public-trial violation will in fact lead to a fundamentally unfair trial”). The timing of

when the objection was raised or preserving the structural error was of significance to the court,

since raising it at trial allows the trial court the opportunity to remedy the situation, while raising

it later within the context of an ineffective-assistance-of-counsel claim does not.

at ___,

.

¶ 84 Both the majority and I find Weaver instructive, but for entirely different reasons.

The majority somehow extrapolates from the Weaver Court’s rationale that defendant’s obscure

objection, if any, properly preserved this structural error and the trial court’s failure to comply

with section 115-11 now makes this a constitutional public trial violation warranting outright

reversal. Such a conclusion seems to conflict with this court’s holding in Benson, as well as our

supreme court in Falaster and Holveck. In my humble opinion, it also finds no support in the

United States Supreme Court cases cited since they almost always involved exclusion of the

media—something our supreme court said in Falaster was the one thing protecting a defendant’s

right to a public trial. I find Weaver instructs us that without a public trial violation, which in and

of itself does not necessarily equate to fundamental unfairness (the basis for automatic reversal

without a showing of prejudice), a defendant is not necessarily entitled to such relief. The failure

of a defendant to adequately preserve his objection at trial, allowing the trial court the

opportunity to fully address the issue, may preclude him from raising the issue later. Further,

- 39 - unlike the majority’s finding, the level of speculation we must engage in to find a record

sufficient to support defendant’s claim is beyond the plain error analysis.

¶ 85 I would also note defense counsel may have had a legitimate reason for not

objecting at trial and for not raising the issue in a posttrial motion. For one, the right may have

held little importance to him. Two, perhaps defendant did not want certain family members in

the courtroom during M.L.’s testimony and had no objection to their removal. I find it improper

to engage in plain error review when the issue at hand may have been a reasoned decision not to

object. Moreover, “if ‘those trial tactics are to be the subject of scrutiny, then a record should be

developed in which they can be scrutinized.’ [Citation.]” In re Carmody,

,

(1995). Whether counsel was deficient in his strategy, whether defendant’s

family members with a direct interest in the case were actually removed from the courtroom

during M.L.’s testimony, and whether defendant was prejudiced as a result are matters best left

for proceedings under the Post-Conviction Hearing Act (725 ILCS 5/122-1 to 122-7 (West

2016)). Had defendant identified the persons and were they found to have a direct interest, the

trial court could have amended its order and avoided error or, if found to have no interest,

maintained its order and committed no error. By saying and doing nothing, defendant wins a

reversal of his criminal conviction and remand for new trial. It should not be so easy to avoid the

responsibility of making a reviewable record and yet achieve a reversal where there is no

evidence the failure to comply in any way deprived the defendant of the sixth amendment

protections of a public trial, namely (1) to ensure a fair trial, (2) to remind the prosecutor and the

judge of their responsibility to the accused and the importance of their functions, (3) to

encourage witnesses coming forward, and (4) to discourage perjury.

- 40 - ¶ 86 There is no question the trial court could have alleviated the problem by requiring

counsel to state his objection for the record, if he had any. The court should have conducted

greater inquiry into the identity and relationship of the people present and required defense

counsel to provide that information. The majority correctly points out how Benson sets forth the

proper procedure, none of which was done here. There is also no question a public trial violation

is a structural error. However, our supreme court in Falaster and Holveck, as well as this court in

Benson, said inclusion of the media protects a defendant’s right to a public trial. The result is a

statutory violation by the trial court, which is error. Under a second-prong plain error analysis,

however, it is defendant’s burden to establish a structural error, and he cannot sustain that burden

on such a woefully inadequate record. For these reasons, I respectfully dissent.

- 41 -