SIXTH DIVISION Filing Date June 23, 2023

No. 1-21-0754 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) ) Appeal from the Plaintiff-Appellee, ) Circuit Court of ) Cook County. v. ) ) No. 13 CR 02582 YECARY HARRIS, ) ) The Honorable Defendant-Appellant. ) James B. Linn, ) Judge, Presiding.

JUSTICE ODEN JOHNSON delivered the judgment of the court, with opinion. Justice C.A. Walker concurred in the judgment and opinion. Justice Tailor concurred part and dissented in part, with opinion.

OPINION

¶1 Following a bench trial, defendant Yecary Harris was convicted of first degree murder and

sentenced to a 50-year prison term. On appeal, defendant raises the following constitutional

issues: (1) his trial counsel was ineffective for failing to call an expert on eyewitness testimony

and failed to disclose a potential conflict of interest, (2) he received an insufficient Krankel

hearing where the trial court did not allow defendant to present rebuttal evidence (see People

v. Krankel,

(1984)), and (3) the trial court failed to get defendant’s waiver for No. 1-21-0754

in-person hearings before holding his motion for new trial and sentencing hearings on Zoom

without counsel being in the same location as defendant. For the reasons that follow, we affirm

defendant’s conviction and remand for a new sentencing hearing.

¶2 I. BACKGROUND

¶3 A. Trial Proceedings

¶4 Defendant’s conviction stems from the shooting death of Christopher Thomas (the victim)

on December 30, 2012. He was initially charged with six counts of first degree murder and two

counts of aggravated fleeing or attempt to elude a peace officer. Codefendant Rodney Harris 1

was charged with two counts of aggravated fleeing or attempt to elude a peace officer.

Defendant proceeded to a bench trial in 2016.

¶5 During opening statements, defendant’s trial counsel, Steven Murphy, argued that the

evidence would show that defendant acted “reasonably and justifiably.” Attorney Murphy

stated that defendant was unarmed, intended to purchase marijuana from the victim, and during

negotiations, showed the victim $780. The victim lunged at defendant, and defendant ran to

the gas station where codefendant Harris was located because he thought that he was going to

be beaten and robbed by the victim. Murphy further argued that codefendant Harris took off,

there was a chase, and an accident occurred, before the car flipped.

¶6 The State presented the testimony of three witnesses at trial.

¶7 Albert Williams testified that on December 30, 2012, at approximately 5 p.m., he was

working at Hyde Park Liquors located at 51st Street and Indiana Avenue in Chicago. James

Banks was also working that day, and they were unloading deliveries. Williams testified that

1 Defendant and codefendant Harris share a surname but are not related to one another.

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“certain people” would come and “hang out” at the store. The victim was at the store that day,

talking to Williams and Banks. Williams saw defendant enter the store and begin talking to the

victim. Williams described defendant as wearing a blue short-sleeve shirt and blue jeans.

Defendant asked Williams where he could buy cigarettes and marijuana and Williams told him

he could get those items from Banks, who was selling drugs inside of the liquor store.

Defendant told the victim that he did not want to buy marijuana inside the store because of the

cameras, and they subsequently left the store together and walked down the street. 2 During

trial, Williams narrated video surveillance footage from inside the store and identified

everyone in the video, which showed defendant and the victim leave the store together.

¶8 Shortly thereafter, Williams left the store to pick up food from the restaurant next door,

which was across the street from a Citgo gas station. While standing outside of the restaurant,

he saw defendant and the victim talking on the other side of the restaurant, approximately 20

feet away. Although it was dark outside, Williams clearly saw defendant and the victim, as

nothing blocked his view. Williams saw the victim remove his maroon leather coat, and then

defendant shot the victim. Williams testified that the victim’s coat had a bullet hole in it

because the victim never fully removed it. Instead of running, the victim tried to grab

defendant’s gun, and Williams stated that was how defendant shot him through the coat. The

victim fell down, and defendant shot him again. Williams got on the ground because defendant

was just “shooting around.” Williams heard about six or seven additional shots. Williams did

not see the victim with a weapon and did not see any physical altercation between the victim

and defendant. After the shooting, defendant jumped over Williams and ran to the corner.

The record is not clear why defendant spoke to the victim instead of Banks as directed by 2

Williams.

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Defendant put the gun in his waistband, crossed the street, and entered the passenger side of a

silver car in the Citgo parking lot. People were screaming that “he shot Mad Dog.” 3 The police

arrived within one minute and went to the gas station. Meanwhile, Williams saw the silver car

head east on 51st Street. Later that night, Williams identified defendant in a lineup as the

shooter.

¶9 Donald Braxton testified that, on the day of the shooting, he was at 51st Street and Indiana

Avenue at around 5 p.m. It was still light outside but was getting dark. He was walking towards

the restaurant when he heard five or six shots and saw a man shoot another man. Braxton stated

that he saw the shooter’s face and identified defendant in court as the man who shot the victim.

While Braxton had never seen defendant before, he had known the victim for at least 10 years.

After being shot, the victim fell to the ground, and defendant ran across the street and got into

a car. Braxton stated that he continued watching defendant because he had a gun and he saw

defendant stuff the gun in the back of his waistband. When the police arrived, Braxton told

them that defendant got into a car. Braxton further testified that there were no weapons on the

ground near the victim and the victim did not have anything. Additionally, Braxton went over

to the victim, as the victim “took his last breath.” Braxton subsequently went to the police

station, told detectives what happened, viewed a lineup, and identified defendant, who he

indicated had “d[one] a murder just gunned down somebody in cold blood.”

¶ 10 Braxton acknowledged his retail theft conviction from 2013, his theft conviction from

2010, and his heroin use. Braxton also had tattoos indicating that he was formerly a member

3 The victim was known as Mad Dog in the neighborhood.

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of the Gangster Disciples. He stated that the victim was not a Gangster Disciple and had never

“gangbanged.”

¶ 11 Anthony Freeman testified that he was on his way to the liquor store on December 30,

2012, when he saw two men talking nearby. He saw one of the men pull out a gun and shoot

the other man at least two times. The victim fell on the ground, and the man shot him again.

Freeman started “backtracking” and fell in the grass. Freeman did not see either man’s face,

and the victim’s back was to Freeman. Freeman stated that it did not look like the men were

fighting.

¶ 12 Chicago police officer James Atkinson testified that, at the time of the shooting, he was in

uniform and in a marked squad car monitoring traffic approximately one block east of the

liquor store. After hearing several gunshots in the area, he notified dispatch and drove towards

the liquor store. When he arrived, Braxton pointed to a silver Chrysler at the gas station as the

car where the shooter was. After activating his emergency lights, Atkinson went to the gas

station and pulled behind the silver Chrysler, which had two people inside. Chicago police

officer Bobby Tong also responded to the scene and tried to block the Chrysler. However, the

driver of the silver Chrysler left the gas station and drove east on 51st Street. Atkinson, Tong,

and subsequently Sergeant Jacob Alderden pursued the vehicle.

¶ 13 Atkinson testified that the silver Chrysler entered the Dan Ryan Expressway and the

officers continued the high speed pursuit until the vehicle exited at 43rd Street. Atkinson was

unable to exit at that location because he was going too fast. The silver Chrysler crashed into

another vehicle, as its driver tried to exit the expressway. The Chrysler hit the other vehicle,

causing the other car to flip over a couple of times before it landed in front of Atkinson’s car

on the expressway. After making sure that the civilians were okay following the crash,

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Atkinson went up the embankment. He later learned that the driver of the Chrysler was

codefendant. The State then published a video clip of the Citgo gas station from December 30,

2021, before and after the shots were fired.

¶ 14 On cross-examination, Atkinson denied that it appeared that defendant and the victim were

struggling on the video.

¶ 15 Tong testified similarly to Atkinson. He was on patrol driving southbound on Prairie

Avenue, when he heard five or six gunshots from the west. He drove towards the gunshots and

was flagged down by Braxton. Tong spoke with Braxton and, based on that conversation, Tong

drove towards Indiana Avenue, where he saw Atkinson behind a gray Chrysler sedan. After

activating his emergency lights, Tong drove directly in front of the Chrysler. He stopped and

exited his vehicle with his gun drawn; however, the driver of the Chrysler swerved around him

and headed towards the Dan Ryan Expressway. Tong and Atkinson pursued the Chrysler and

Tong never lost sight of the Chrysler during the chase. The Chrysler struck the rear of another

vehicle on a ramp, which flipped down the embankment onto the expressway. Defendant exited

the Chrysler and ran towards the fence line towards La Salle Street, which was up the exit

ramp. Tong chased defendant up the ramp on foot towards La Salle. Tong arrested defendant

approximately 60 to 90 seconds after the crash. The driver of the Chrysler was also detained.

¶ 16 The route of the police chase was from 51st Street to Prairie Avenue to 56th Street to

Wabash Avenue to 63rd Street to Wentworth Avenue and onto the Dan Ryan Expressway.

Tong later learned that a gun was recovered from the area of 5604 South Wabash Avenue, a

location passed during the pursuit of the Chrysler.

¶ 17 Sergeant Alderden testified that he assisted in the pursuit of the Chrysler onto the

expressway. The Chrysler went through stop signs without stopping, and the officers had to

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weave in and out of traffic and exceed the speed limit to keep up with the Chrysler on the

expressway. Alderden testified about the accident when the Chrysler attempted to exit at 43rd

Street, after which he parked his vehicle on the express lanes and ran across the local lanes on

foot. The driver of the Chrysler, codefendant, ran to the rear of the car, and the officers arrested

him. Alderden saw someone run from the passenger side of the car, but he was unable to

identify the person.

¶ 18 Chicago police officer Cornelius Downey testified that he was on patrol with Officer

Terrence Morris at the time of the shooting, and they joined in the pursuit of the Chrysler at

the base of the expressway at 47th Street. He saw the Chrysler have an accident at the 43rd

Street exit, and both the driver and passenger exited the vehicle. Downey’s police vehicle was

equipped with a camera that captured his pursuit of the Chrysler, as well as defendant exiting

the vehicle before fleeing. The dashcam video was published to the court.

¶ 19 Officer Morris testified substantially similar to Downey. Additionally, Morris testified that

he chased defendant for a half block after defendant ran up the side of the expressway.

Defendant then ran along the fence and climbed it. Morris ran alongside the fence until it ended,

ran around it, and faced defendant. Tong then arrested defendant. Morris viewed dashcam

video of defendant’s pursuit, which was published to the court. Morris testified that the video

showed the Chrysler speeding past his police vehicle, attempting to exit at 43rd Street, and

striking another vehicle. It also showed defendant exiting the vehicle, according to Morris.

¶ 20 Officer Kevin Kilroy testified that he was on duty at the time of the shooting. When he

arrived, he learned that the gun was not recovered, and he was given the path of the pursuit.

Kilroy then retraced the route with other officers. When he drove past an apartment building

at 5604 South Wabash, he found a 9-milimeter Luger in the parkway approximately an hour

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after the shooting. Kilroy notified dispatch, secured the scene, and waited for the evidence

technician.

¶ 21 Although the gun was recovered from a location along the pursuit route, none of the officers

saw a gun thrown from the Chrysler.

¶ 22 Forensic Investigator Jamal Judeh testified that he arrived at the 5100 block of South

Indiana Avenue at 5:45 p.m. to process a crime scene. He saw a deceased man lying on the

sidewalk and he also recovered 10 fired cartridge cases, fired bullets, metal fragments, two cell

phones, and narcotics from the scene. Two of the fired bullets and one metal fragment were

recovered under the victim’s body, which Judeh testified meant that someone stood over him

and shot into his body. Only one of the victim’s arms was inside his jacket, so it appeared he

was removing his jacket when killed. Judeh then proceeded to 3959 South La Salle Street,

where he saw two vehicles with extensive damage. He then went to 5604 South Wabash

Avenue, where he recovered a two-tone Luger 9-milimeter semi-automatic handgun from the

parkway. Judeh took swabs from the gun and sent them to the lab for analysis.

¶ 23 The parties entered several stipulations regarding the physical evidence.

¶ 24 They stipulated that Illinois State Police forensic scientist Debra Kebasha would testify

that she received the swabs taken from the firearm. There was a mixture of at least three human

DNA profiles on the swabs, but they were unsuitable for comparison.

¶ 25 They also stipulated that the casings and bullets from the crime scene were all fired from

the recovered gun.

¶ 26 The parties also stipulated that Officer Steven Swain would testify that on December 30,

2012, he conducted gunshot residue testing on defendant and codefendant and sent the gunshot

residue kit to the Illinois State Police Forensic Science Center for testing and analysis.

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¶ 27 They further stipulated that Illinois State Police forensic scientist Ellen Chapman would

testify that she received the gunshot residue kit administered to defendant and it was her

opinion that defendant may not have discharged the firearm or that if he did discharge the

firearm, the particles were removed by activity, were not deposited, or were undetected by the

procedure.

¶ 28 The parties also stipulated that Dr. Stephen Cina would testify that he was the Assistant

Cook County Medical Examiner who performed the victim’s autopsy on December 31, 2012.

Dr. Cina’s examination revealed three gunshot entrance wounds to the left side of the victim’s

upper back, one gunshot entrance wound to his left midback, one entrance wound to his left

arm, one entrance wound to his right midback, and two entrance wounds to his right arm. Dr.

Cina concluded that the victim’s cause of death was homicide due to multiple gunshot wounds.

¶ 29 After the State rested, defendant made an oral motion for a directed finding of not guilty.

The trial court denied the motion.

¶ 30 The trial court admonished defendant regarding his right to testify, and defendant stated

that he did not wish to testify. Defendant’s counsel, attorney Murphy, rested without presenting

any evidence on defendant’s behalf.

¶ 31 During closing arguments, attorney Murphy stated again that they were seeking self-

defense or second degree murder. Pointing to the videos, Murphy argued that the videos

showed what looked like the victim making an aggressive move towards defendant, which was

corroborated by his coat being half off.

¶ 32 The trial court found defendant guilty of first degree murder on March 3, 2016, indicating

that it reviewed the videos and found nothing to indicate that defendant was justified in using

deadly force in continuing shooting the victim after he was already lying on the ground. The

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court further noted defendant’s flight from the scene and the ensuing chase, which indicated

consciousness of guilt. The trial court stated that it

“tr[ied] to be very careful with these matters and want[ed] to give all benefit of the doubt

that [it could] to people on trial in all cases. Every case here is important when liberty is at

stake. And [it] searched the record and *** looked carefully to again review the tape. [It]

just [didn’t] see anything that [the victim] did to indicate that somehow somebody would

feel that they’re justified in using deadly force. This looked more like just a cold-blooded

homicide. Just an execution on the street. So, defendant is guilty as charged in the manner

and form in the indictment.”

¶ 33 B. Posttrial Proceedings

¶ 34 On the next court date, April 12, 2016, defendant refused to exit his cell. Defendant’s trial

counsel requested a behavioral clinical examination (BCX) for defendant to determine his

fitness at the time of trial, for sentencing, and whether he was sane at the time of the offense.

On June 1, 2016, the trial court received a letter that defendant did not participate in the BCX.

Attorney Murphy stated that he spoke with defendant and that he would cooperate. The trial

court told defendant that his counsel was exploring every avenue for him, and it was counsel’s

idea to order the BCX, which might help but that defendant needed to cooperate.

¶ 35 Dr. Melanie Venable wrote to the trial court on October 26, 2016, stating that she needed

certain medical records to render an opinion on whether or not defendant was sane at the time

of the offense, but that the DVD of defendant’s arrest indicated no evidence of any psychiatric

impairment at the time of the offense. In a letter dated May 10, 2017, Dr. Venable opined that

defendant was legally sane at the time of the offense.

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¶ 36 On June 18, 2017, defendant wrote a pro se motion to release attorney, in which he made

several complaints regarding attorney Murphy’s representation. Specifically, defendant

complained that attorney Murphy (1) told him that the trial court would never believe that he

did not shoot the victim and that his representation would be “all or nothing and reasonable

doubt,” (2) “convinced” defendant to enter the defense of self-defense just a few weeks prior

to trial, (3) failed to contact and preserve favorable witnesses and obtain their statements,

(4) prejudiced defendant by persuading him to perjure himself if he testified, (5) failed to seek

and admit into evidence the 911 dispatch recordings, which gave a description of the shooters

and the direction they fled, (6) failed to subpoena the phone records of an inmate, Ardamis

Smith, who was told by the State’s witness that if defendant did not give him $3000, defendant

was never coming home, (7) failed to inform the State that defendant had a mental disorder for

which he took medication prior to and during the time of the crime, as well as at trial, (8) failed

to request a fitness evaluation to determine defendant’s mental health prior to trial, and

(9) persuaded defendant not to take the stand, denying him the ability to tell his side of the

story.

¶ 37 Additionally, on July 11, 2017, defendant filed a pro se motion for new trial, in which he

also raised the same allegations of ineffective assistance of trial counsel. The record further

reflects that defendant sent a letter to the trial court dated September 12, 2017. In the letter,

defendant further detailed his allegations of ineffective assistance of trial counsel, including

counsel’s failure to challenge the eyewitnesses’ identification of defendant during the offense

and at the lineup, as well as counsel’s failure to challenge the results of the gunshot residue

test.

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¶ 38 On October 3, 2017, the trial court performed a preliminary inquiry into defendant’s

allegations. After questioning both defendant and attorney Murphy, the trial court appointed

new counsel to investigate defendant’s claims of attorney Murphy’s ineffectiveness.

¶ 39 Defendant sent a second letter to the trial court sometime after October 3, 2017, in which

he indicated that he asked attorney Murphy to secure an expert witness in eyewitness

testimony, who could have testified about the factors affecting memory and perception of

eyewitnesses.

¶ 40 On December 4, 2018, a Krankel evidentiary hearing began where defendant was

represented by Assistant Public Defender (APD) Crystal Carbellos.

¶ 41 At the hearing, defendant testified that he was present when the victim was shot but he was

not the shooter. He stated that attorney Murphy scared and coerced him into going along with

a self-defense theory. Defendant stated that if he had testified at trial, he would not have

admitted to shooting the victim, but he trusted attorney Murphy as his lawyer. Defendant also

stated that attorney Murphy refused to interview and call various witnesses, including

codefendant and Ardamis Sims. Codefendant would have testified that he was with defendant

all day and he never saw defendant with a gun. Sims could have testified that Braxton

attempted to extort money from defendant prior to trial by threatening to testify against him

unless defendant paid him $3000. Defendant alleged that attorney Murphy should have also

subpoenaed Sims’s phone records because the jail conversations were recorded. Defendant

also claimed that attorney Murphy refused to interview and call two women who called 911

after the shooting. The women described the shooters to 911 dispatchers as persons who did

not fit defendant’s clothing description. They also said that the shooters walked in a certain

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direction after the shooting. 4 Finally, defendant testified that attorney Murphy refused to

interview his doctors or to investigate his mental illness, his mental state at the time of the

shooting, and the medications that he was taking. According to defendant, it would have been

impossible for him to commit the offense because his medications made him like a “zombie.”

However, on further questioning, defendant stated he did not want attorney Murphy to

investigate his state of mind at the time of the offense or to pursue that as a defense.

¶ 42 After defendant testified, the trial court continued the hearing for attorney Murphy to

testify. Before the next court date, APD Carbellos passed away, and APD Dylan Barrett was

appointed to represent defendant.

¶ 43 The Krankel hearing resumed on May 13, 2019. Attorney Murphy testified that he

discussed arguing self-defense with defendant and stated that he did not coerce or scare

defendant into pursuing that defense. Attorney Murphy explained that he chose the defense of

self-defense because he saw videos of the shooting, videos of defendant being in the liquor

store and walking around the corner where there was a video of the shooting, and videos of

defendant running to his friend at the gas station right after the shooting. Additionally, the

police were there immediately on the video and there was a chase also on video, which included

his exit from the car and running away. Attorney Murphy was also aware that a gun was

recovered.

¶ 44 Attorney Murphy testified that he did not hire a witness identification expert because there

were videos and identification was never an issue. He did not recommend that defendant testify

for strategic reasons and stated that defendant did not want to testify. Attorney Murphy

4 The 911 audio recordings were not admitted into evidence at trial.

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believed it was wise for defendant not to testify because he was in the videos and said that they

had more than one conversation about what took place that day. However, on cross-

examination he stated that he did suggest that defendant testify, but defendant did not want to.

¶ 45 With respect to interviewing codefendant, attorney Murphy did not interview him because

codefendant was represented by attorney David Weiner, who attorney Murphy was

representing on an unrelated case before the Attorney Registration and Disciplinary

Commission (ARDC). He spoke with codefendant numerous times but not about what his

testimony would be or the facts of the case. 5

¶ 46 Attorney Murphy further stated that he was unaware of any conversation between Sims

and Braxton or that Braxton wanted money. He did not make an effort to interview anyone

who called 911 because he did not recall there being any 911 calls that helped defendant.

Further, attorney Murphy was questioned about whether defendant ever told him that he was

“off so much prescription medication, marijuana and alcohol he couldn’t even hold a thought

let alone shoot a man.” In response, he invoked the attorney-client privilege. The trial court

told attorney Murphy that at this point, the attorney-client privilege had been waived. Attorney

Murphy then testified that defendant admitted that, at the time of the shooting, he was “f’d up

from pills and marijuana, doesn’t know why he shot the guy, but he did.” Attorney Murphy

stated that defendant did not ask him to speak with his doctor about his medications or mental

capacity at the time of the shooting, but that he explored that area. He also conducted research

about being high on marijuana and pills but learned that it would not amount to a defense.

Thus, he did not pursue it as part of his trial strategy. Moreover, nothing occurred before trial

5 The record does not clarify why attorney Murphy spoke with codefendant.

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that indicated to Attorney Murphy that defendant needed a BCX. However, after trial, Attorney

Murphy went into the bullpen area and saw that defendant was trying to hang himself with a

white towel, so he then requested a BCX, after which defendant was found to be sane and fit

for sentencing.

¶ 47 Attorney Murphy testified in support of his theory of self-defense. He argued during trial

that the victim made a furtive gesture as if he were pulling out a gun. Attorney Murphy also

testified that defendant never told him that he did not want to concede that he shot the gun and

that defendant never told him that he did not shoot the gun. He did not recall telling defendant

that he would receive a 100-year sentence if he told the judge that he did not shoot anyone and

stated that it was not something that he would say.

¶ 48 After attorney Murphy’s Krankel testimony concluded, APD Barrett said that he was going

to send out subpoenas for potential rebuttal evidence that day. The trial court granted APD

Barrett’s request to continue the case until June 25, 2019, for possible rebuttal argument. On

that date, the trial court granted APD Barrett another continuance for rebuttal evidence as well

as argument. On August 6, 2019, APD Barrett informed the trial court that he located his

rebuttal witness Sims and that he was in communication with the State to have Sims brought

to court. APD Barrett made an offer of proof that Sims would testify that while he was

incarcerated, Braxton indicated to him that if defendant paid Braxton $3000, Braxton would

not testify against defendant. However, if Braxton did testify, then defendant would spend the

rest of his life in jail. The trial court granted another continuance to have Sims brought to court.

Defendant also told the trial court that his family was in the process of looking for private

representation.

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¶ 49 On November 5, 2019, attorney Saani Mohammed appeared on defendant’s behalf and

APD Barrett withdrew as counsel. Defendant indicated to the trial court that APD Barrett had

no experience with Krankel evidentiary hearings, and he believed that APD Barrett was not

effectively representing him at the hearing. Specifically, defendant stated that APD Barrett

refused to cross-examine attorney Murphy on matters that defendant asked him to and refused

to allow defendant to assist in his own defense during the evidentiary hearing. The matter was

then continued several times for more than a year to allow attorney Mohammed time to get the

transcripts and to get up to speed. On December 3, 2020, attorney Mohammed requested

another continuance to conclude the Krankel hearing. The trial court told attorney Mohammed

that the hearing had been completed, and the State agreed with the court’s recollection. The

trial court informed attorney Mohammed that he just needed to file a posttrial motion at that

point, to which he agreed.

¶ 50 Attorney Mohammed filed a motion for new trial on February 3, 2021, and a hearing was

held remotely via Zoom teleconferencing. The record reflects that the trial judge was at the

criminal court building on the day of the hearing. Prior to hearing the motion, the trial court

indicated that defendant was before the bench, his attorney was on camera, and the State was

present in court. The trial court did not ask defendant whether he wished to waive his right to

appear in person with counsel at the hearing.

¶ 51 Attorney Mohammed argued for a new trial because attorney Murphy was ineffective and

because the evidence did not prove defendant guilty beyond a reasonable doubt. He contended

that attorney Murphy made a mistake by failing to interview codefendant and Sims and that

there was a potential conflict of interest because attorney Murphy was representing

codefendant’s attorney in an ARDC matter. Attorney Mohammed asserted that codefendant

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would have known if defendant had a gun and discarded it because they were in the same

vehicle and contended that attorney Murphy should have called an expert in eyewitness

identification.

¶ 52 Following the State’s argument, the trial court recalled the evidence presented at trial and

concluded that the State had a very strong case, regardless of whether attorney Murphy had

argued self-defense or reasonable doubt. In particular, the court noted the various videotapes,

defendant’s presence at the scene, defendant’s clothing that was identified by the witnesses

and that he was later arrested in, defendant’s flight, and the gun found on the path of the pursuit.

The trial court also indicated that it admonished defendant about the potential penalties and the

difference between a bench and jury trial and that defendant indicated twice, orally and in

writing that he wanted a bench trial. The trial court denied defendant’s motion for new trial

because the result would have been the same regardless of the defense theory of the case

because of the compelling nature of the State’s evidence.

¶ 53 Defendant protested the trial court’s ruling but the trial court stood by its ruling, stating

that defendant was repeating the same things his attorney said.

¶ 54 On June 9, 2021, defendant’s sentencing hearing was held via Zoom teleconference, with

defendant appearing on Zoom. The trial court did not ask defendant whether he wished to

waive his right to appear in person, with counsel at the hearing. The record reflects that

defendant refused to answer any questions for the presentence investigation (PSI), so the report

is blank. The State presented defendant’s criminal history in aggravation. In mitigation,

attorney Mohammed argued that defendant’s last conviction was from 2002 and that

defendant’s mental health, history of bipolar disorder, limited formal education, and the lack

of familial support and employment before the shooting were mitigating factors. During the

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hearing, defendant requested to speak with his counsel, and the trial court told him “one

second.” However, the record does not reflect that defendant ever spoke with counsel. 6 The

trial court subsequently sentenced defendant to 50 years’ imprisonment. Defendant’s timely

notice of appeal followed on June 11, 2021.

¶ 55 II. ANALYSIS

¶ 56 On appeal, defendant raises the following constitutional issues: (1) his trial counsel was

ineffective for failing to call an expert on eyewitness testimony and failed to disclose a

potential conflict of interest, (2) he received an insufficient Krankel hearing where the trial

court did not allow defendant to present rebuttal evidence, and (3) the trial court failed to get

defendant’s waiver for in-person hearings before holding his sentencing hearing remotely on

Zoom, without counsel being in the same location as defendant. Defendant does not challenge

the sufficiency of the evidence in support of his conviction.

¶ 57 A. Ineffective Assistance of Trial Counsel

¶ 58 Defendant first contends that his trial counsel, attorney Murphy, was ineffective for failing

to call an expert to challenge the eyewitness testimony presented at trial. He also contends that

trial counsel was ineffective for failing to disclose a potential conflict of interest—namely, that

he simultaneously represented codefendant’s counsel in an unrelated ARDC matter during

defendant’s trial.

¶ 59 1. General Principles and Applicable Standards of Review

6 Although the record indicates that the trial court stated that defendant was present in court, this court granted a motion to supplement the record with posttrial counsel’s affidavit that defendant was not actually present in the courtroom and that all parties appeared on Zoom.

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¶ 60 A criminal defendant has the right to the effective assistance of counsel under both the

United States and Illinois Constitutions. Strickland v. Washington,

(1984). In determining whether a defendant was denied effective assistance of counsel, this

court applies the familiar two-prong test set forth in Strickland. A defendant must demonstrate

that (1) trial counsel’s representation was deficient and (2) the deficient performance

prejudiced defendant. People v. Burnett,

, ¶ 9. If a defendant fails to

establish either prong, his claim of ineffective assistance of counsel fails. People v. Colon,

(2007). We analyze claims of ineffective assistance of counsel by considering

the entire record. Burnett,

.

¶ 61 It bears mentioning that a reviewing court often cannot entertain a claim of ineffective

assistance of counsel on direct appeal when the claimed error was not a focus in the case below.

¶ 11 (citing Massaro v. United States,

(2003)). However, in this case,

because defendant raised the issue of ineffective assistance of counsel after trial and a Krankel

hearing was held, the issue was sufficiently raised below. Thus, we can review it in this direct

appeal.

¶ 62 On appeal, the standard of review changes, depending on whether the trial court did or did

not determine the merits of defendant’s pro se posttrial claims of ineffective assistance of

counsel. People v. Tolefree,

. Our supreme court has held that

if the trial court made no determination on the merits, then our review is de novo.

(citing

People v. Moore,

(2003)). However, if a trial court has reached a

determination on the merits of defendant’s ineffective assistance of counsel claim, we will

reverse only if the trial court’s action was manifestly erroneous.

(citing People v. McCarter,

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(2008)). “Manifest error” is error that is clearly plain, evident, and

indisputable.

(citing People v. Morgan,

(2004)).

¶ 63 In this case, the trial court addressed defendant’s claim that his trial counsel was ineffective

for failing to call an expert witness on eyewitness testimony but did not address defendant’s

claim that his trial counsel was ineffective for failing to disclose a potential conflict of interest.

Thus, we will review defendant’s claim that trial counsel was ineffective for failing to call an

expert witness under the manifest error standard, and we will review defendant’s claim that

trial counsel was ineffective for failing to disclose a potential conflict under the de novo

standard.

¶ 64 2. Failure to Call an Expert Witness on Eyewitness Testimony

¶ 65 Defendant first contends that trial counsel was ineffective for failing to investigate and call

an expert witness to testify about eyewitness testimony. He argues that he was identified as the

shooter by “two strangers who observed the shooting from a distance in the dark of night in

chaotic circumstances.” Defendant also contends that even though he requested that attorney

Murphy investigate and call an expert in eyewitness identification, attorney Murphy refused to

do so, believing that the issue of identification was not important in light of the surveillance

video footage. However, defendant maintains that none of the video footage showed the

shooting or showed defendant with a gun; at best, the video showed that defendant was with

the victim around the time of the shooting and fled from the scene afterwards. He contends

that the videos showed the presence of many other people outside at the time of the shooting,

and given the fact that there was no confession or forensic evidence linking defendant to the

shooting, counsel was ineffective for failing to interview and call an identification expert to

explain the weaknesses in eyewitness identification testimony.

- 20 - No. 1-21-0754

¶ 66 As noted above, this argument was addressed on the merits by the trial court during

defendant’s posttrial Krankel hearing. Thus, our review is based on the manifest error standard.

¶ 67 After consideration of all of the evidence presented at defendant’s bench trial, we find that

even if attorney Murphy’s decision not to call an expert in eyewitness testimony was deficient,

defendant cannot prevail because he cannot establish prejudice. See People v. Johnson,

(an error by counsel, even if professionally unreasonable, does not warrant

setting aside the judgment of a criminal proceeding if the error had no effect on the judgment).

Strickland asks whether it is “reasonably likely” that the result would have been different; a

reasonable probability that, but for counsel’s errors, the result of the proceeding would have

been different is a “ ‘probability sufficient to undermine confidence in the outcome.’ ”

(quoting Strickland,

). Strickland requires a defendant to “affirmative prove”

that prejudice resulted from counsel’s errors. Strickland,

. Satisfying the

prejudice prong requires a showing of actual prejudice, not simply speculation that defendant

may have been prejudiced. Johnson,

.

¶ 68 Here, defendant contends that trial counsel was ineffective for failing to investigate and

present an expert in eyewitness testimony because his conviction was solely based on the

testimony of eyewitnesses who were “strangers who observed the shooting from a distance in

the dark of night in chaotic circumstances.” Defendant argues that the eyewitness identification

testimony was a crucial part of the State’s case, as only Williams and Braxton identified

defendant as the shooter. Defendant concedes that there was other evidence that placed

defendant at the scene of the shooting, but also asserts that Freeman, the only witness to see

the actual shooting, was unable to provide an identification of the shooter. He also argues that

- 21 - No. 1-21-0754

his GSR test did not show the presence of gunshot residue; thus, the State’s case was purely

circumstantial, and Williams’s and Braxton’s testimonies were critical.

¶ 69 In People v. McGhee,

, this court noted that the efficacy of

eyewitness testimony and current safeguards regarding its reliability was one of the most

cutting-edge topics in modern criminal procedure and that the law was rapidly evolving. Later,

in People v. Lerma,

, our supreme court held that the trial court abused

its discretion in denying defendant’s request to allow expert testimony on the reliability of

eyewitness identifications and the error was not harmless under the facts of the case. As

defendant notes, in People v. Hayes,

, this court recently

held that the defendant’s trial counsel was arguably ineffective for failing to investigate and

seek the admission of an expert in eyewitness testimony where (1) there were six eyewitnesses,

but no physical evidence linking the defendant to the offense, (2) defendant made no

omissions, and (3) several factors could have contributed to the stress of the event, including

the presence and use of a weapon. We note that in Hayes, the defendant presented an alibi

defense. Id. ¶ 12.

¶ 70 In his reliance on Lerma and Hayes, defendant contends that there were many reasons to

question the accuracy of the witnesses’ testimonies in this case and an expert could have shed

light on those reasons. Additionally, an expert could have informed the trier of fact about the

best practices regarding identification procedures and whether they were followed in this case,

the low correlation between a witness’s confidence and the accuracy of his identification, and

an eyewitness identification becoming less reliable where a weapon is present.

¶ 71 As noted above, this argument was presented to the trial court; however, defendant did not

attach an affidavit from an expert in eyewitness testimony or provide an expert in eyewitness

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testimony at his Krankel hearing to establish what the expert testimony would have been in

this case or how it could have been helpful. See McGhee,

(defendant’s postconviction petition included the affidavit of Dr. Loftus, who attested that he

would have testified at trial about the influence of memory and perception of eyewitnesses,

where the case against the defendant depended on the testimony of two eyewitnesses). Thus,

defendant’s argument amounts to mere speculation that is insufficient to survive the prejudice

prong of Strickland.

¶ 72 Moreover, we disagree with defendant’s characterization of the State’s evidence presented

at trial.

¶ 73 Williams, who worked in the liquor store, saw defendant enter the store. Defendant asked

Williams where he could buy marijuana. Williams directed defendant to another person in the

store, and he subsequently saw defendant leave the store with the victim. Williams clearly saw

defendant in the lighted store environment and was able to identify defendant and his clothing.

Additionally, Williams identified defendant in the store video, which showed defendant

entering the store and having a conversation with him before going to speak to and exiting the

store with the victim. Williams also walked out of the store moments after defendant and the

victim and saw them talking before he saw defendant shoot the victim. Williams saw the victim

fall to the ground and saw defendant shoot the victim again, then run across the street and get

into a silver car. When the police arrived on the scene minutes later, Williams immediately

told police that defendant shot the victim and was at the gas station in a silver car.

¶ 74 Braxton was also present at the scene. He was walking towards the restaurant at 51st Street

and Indiana Avenue, when he saw a man shoot another man. Braxton stated that he saw the

shooter’s face and identified defendant in court as the man who shot the victim. After the

- 23 - No. 1-21-0754

shooting, Braxton saw the victim fall to the ground and defendant run across the street and get

into a car. He also saw defendant stuff the gun in the back of his waistband. When the police

arrived, Braxton told them that defendant got into a car.

¶ 75 Additionally, Freeman testified that, while on his way to the liquor store, he saw two men

talking nearby and then one of the men pulled out a gun and shot the other man at least two

times. Freeman saw the victim fall to the ground and the man shoot the victim again. However,

Freeman did not see either man’s face, and the victim’s back was to Freeman. None of the

three eyewitnesses testified that there were other people near defendant and the victim prior to

the shooting.

¶ 76 In addition to the eyewitnesses, all of whom saw the shooting, the State presented

additional evidence. The silver car identified by Williams was blocked in at the gas station by

police and was subsequently chased through the neighborhood by multiple police units and

onto the expressway before it crashed at the 43rd Street exit ramp. After the crash, defendant

jumped out of the car and ran up the embankment, where he was subsequently captured and

arrested. After defendant’s capture and arrest, Williams and Braxton went to the police station

and identified defendant in a lineup. One of the officers retraced the pursuit route and found a

9-millimeter gun in front of a building on the route. The casings and bullets removed from the

scene matched that weapon. There was also evidence presented that the type of gunshot

wounds the victim sustained corroborated Freeman’s testimony that the victim was shot

additional times while he lay on the ground. The State also presented video evidence showing

defendant inside of the store, defendant leaving the store, defendant’s clothing, defendant

talking with the victim before the shooting, defendant running to the gas station after the

shooting, and defendant getting into the car with codefendant. There was also police dashcam

- 24 - No. 1-21-0754

video of the chase involving the silver or gray vehicle with defendant inside, the crash,

defendant’s exit from the vehicle and attempts to escape, as well as his eventual capture.

¶ 77 Defendant is correct that the State presented circumstantial evidence against him. However,

the trier of fact heard the evidence and was not obligated to accept any possible explanation

compatible with the defendant’s innocence and elevate it to the status of reasonable doubt.

People v. Saxon,

(2007). An inference is a factual conclusion that

can rationally be drawn by considering other facts.

. Thus, an inference is merely a

deduction that the fact finder may draw in its discretion, but it is not required to draw as a

matter of law.

A conviction can be sustained upon circumstantial evidence, as well as upon

direct, and to prove guilt beyond a reasonable doubt does not mean that the factfinder must

disregard the inferences that flow normally from the evidence before it.

.

Circumstantial evidence is proof of facts or circumstances that give rise to reasonable

inferences of other facts that tend to establish the guilt or innocence of defendant.

The trier

of fact does not have to be satisfied beyond a reasonable doubt of every link in the chain of

circumstantial evidence.

It is sufficient if all the evidence taken as a whole satisfies the trier

of fact beyond a reasonable doubt.

¶ 78 In finding defendant guilty, the trial court noted that defendant ran immediately after the

shooting and fled from police indicating his consciousness of guilt. Flight can be considered

some evidence of a guilty mind. People v. Aljohani,

. In

particular, a defendant’s flight from police also may indicate consciousness of guilt. See People

v. Ross,

. In this case, there was video evidence presented that

showed defendant run away from the scene of the shooting, where he was the only person with

the victim just prior to the shooting, and run across the street to the gray car that subsequently

- 25 - No. 1-21-0754

led the police on a high speed chase through the neighborhood and onto the expressway. After

crashing on the expressway, defendant ran from police before his subsequent capture.

¶ 79 Contrary to defendant’s belief, the eyewitness testimony was not the sole evidence that

supported his conviction. The record contained substantial circumstantial evidence, including

defendant’s flight and the subsequent police chase. We find that all of the evidence presented

at defendant’s trial, taken together, was sufficient to support defendant’s conviction.

Defendant’s speculation about what an expert in eyewitness testimony could have testified to

would not have overcome the other evidence presented. We therefore conclude that defendant

has not established prejudice by attorney Murphy’s failure to present the testimony of an expert

on eyewitness testimony and it was not manifestly erroneous for the trial court to deny his

ineffective claim on that basis.

¶ 80 3. Failure to Disclose a Potential Conflict of Interest

¶ 81 Defendant next contends that his trial counsel was ineffective for failing to disclose a

potential conflict of interest. He claims that because attorney Murphy simultaneously

represented codefendant’s trial attorney on an unrelated ARDC matter during defendant’s trial,

he was reluctant to interview and call codefendant to testify at defendant’s trial. This potential

conflict was not revealed until attorney Murphy’s testimony at defendant’s Krankel hearing.

The trial court did not address this claim, so our review is de novo. Tolefree,

.

¶ 82 Defendant alleges that his trial counsel’s failure to disclose his contemporaneous

representation manifested in attorney Murphy’s reluctance to zealously pursue codefendant as

an exculpatory witness on defendant’s behalf. During the posttrial proceedings, defendant

argued that codefendant would have testified that he was with defendant all day and never saw

- 26 - No. 1-21-0754

him with a gun. Further, defendant stated that codefendant would have testified to facts

showing how the police coerced “everything.” He contends on appeal that attorney Murphy’s

decision not to aggressively pursue a waiver of codefendant’s right against self-incrimination

could have been due to his financial relationship with codefendant’s counsel, not wanting to

overwhelm codefendant’s counsel, possibly negatively affecting codefendant’s counsel in his

misconduct case, or Murphy possibly advising codefendant’s counsel on how to best represent

his clients. Defendant does state that the details of this “potential” conflict are unknown, but

that Murphy’s representation was full of potential conflict that had to be disclosed and waived

by defendant.

¶ 83 A defendant’s sixth amendment right to the effective assistance of counsel includes the

assistance by a lawyer whose allegiance to his or her client is diluted by conflicting allegations

or inconsistent obligations. People v. Larry,

(1990). Our supreme

court has noted the contrast between per se conflicts and alleged conflicts. People v. Clark,

(2007). A per se conflict of interest exists where “ ‘certain facts about

a defense attorney’s status were held to engender, by themselves, a disabling conflict.’ ”

(Emphasis omitted.)

(quoting People v. Spreitzer,

(2004)). When a per se

conflict of interest is shown, a defendant is not required to show prejudice resulting from the

conflict to obtain relief.

A per se conflict of interest is grounds for reversal unless the

defendant waived his right to conflict-free counsel.

Our supreme court has recognized three

situations that create a per se conflict of interest: (1) where defense counsel has a prior or

contemporaneous association with the victim, the prosecution, or an entity assisting the

prosecution, (2) where defense counsel contemporaneously represents a prosecution witness,

and (3) where defense counsel was a former prosecutor who had been personally involved with

- 27 - No. 1-21-0754

the prosecution of defendant. People v. Fields,

. To establish an actual

conflict of interest, a defendant must identify an actual conflict that adversely affected his

counsel’s performance. People v. Yost,

. The defendant is required to

identify a specific deficiency in his counsel’s strategy, tactics, or decision-making that is

attributable to the alleged conflict.

Speculative allegations and conclusory statements are

insufficient to establish an actual conflict of interest.

¶ 84 It is unclear from defendant’s brief whether he is alleging a per se conflict of interest or an

actual conflict of interest, as he only states that there was a “potential” conflict of interest. Our

examination of the circumstances presented indicate that there was no per se conflict of interest

present as attorney Murphy did not have a prior or contemporaneous association with the

victim, the prosecution, or an entity assisting the prosecution; did not contemporaneously

represent a prosecution witness; and was not a former prosecutor who had been personally

involved with the prosecution of defendant. Nor has defendant identified an actual conflict that

adversely affected his counsel’s performance. His allegations of a “potential” conflict amount

only to speculative allegations and conclusory statements insufficient to establish an actual

conflict of interest. Moreover, defendant has not overcome the presumption that attorney

Murphy’s ultimate decision not to pursue codefendant as a witness was trial strategy,

considering that the proposed witness was a codefendant who was essentially charged with

driving the getaway car and evading police after the shooting. Codefendant and defendant were

both captured and arrested after a police chase, wherein the getaway car crashed into another

vehicle. Whether to call certain witnesses is a matter of trial strategy and cannot serve as the

basis of a Krankel claim. See People v. Jackson,

. Based on the other

evidence presented at defendant’s trial, we cannot say that the decision not to call codefendant

- 28 - No. 1-21-0754

as a witness was deficient performance or that defendant was prejudiced. Accordingly, we

conclude that defendant’s claim of ineffective assistance of counsel for failure to call

codefendant as a witness must fail.

¶ 85 B. Presentation of Rebuttal Evidence at Krankel Hearing

¶ 86 Defendant next contends that the trial court erred by denying him the opportunity to present

a rebuttal case at the Krankel hearing to refute attorney Murphy’s testimony due to the trial

court’s misapprehension of the procedural stage of the case. Defendant argues that he was

deprived of the opportunity to present multiple witnesses to rebut attorney Murphy’s testimony

and prove that his representation was deficient. Defendant concedes that this issue was not

raised in his posttrial motion and may be subject to forfeiture but argues that this issue can be

reviewed under the second prong of the plain error doctrine because it undermined the

fundamental fairness of the evidentiary hearing.

¶ 87 When a defendant has forfeited appellate review of an issue, the reviewing court will

consider only plain error. People v. Thompson,

(2010). The plain error

doctrine is a narrow and limited exception. People .v Hillier,

(2010). It

bypasses normal forfeiture principles and allows a reviewing court to consider unpreserved

claims of error in specific circumstances. Thompson,

. We will apply the

plain-error doctrine when

“(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

- 29 - No. 1-21-0754

of the judicial process, regardless of the closeness of the evidence.” (Internal quotation

marks omitted.)

Under the second prong of plain error review, prejudice to the defendant is presumed because of

the importance of the right involved, regardless of the strength of the evidence.

¶ 88 The first step of plain error review is determining whether any error occurred.

In plain-

error review, the burden of persuasion rests with the defendant.

Here, defendant contends

that he was denied procedural due process at his Krankel hearing when the trial court denied

him the opportunity to present a rebuttal case, which he argues is a structural error.

¶ 89 We begin by reviewing the purpose and procedures surrounding a Krankel hearing. The

common law procedure developed from our supreme court’s decision in Krankel is triggered

when a defendant raises a pro se posttrial claim of ineffective assistance of counsel. People v.

Jolly,

. The goal of any Krankel proceeding is to facilitate the trial court’s

full consideration of a defendant’s pro se claims of ineffective assistance of trial counsel and

thereby potentially limit issues on appeal.

If defendant’s allegations show that trial counsel

may have neglected defendant’s case, the court should appoint new counsel and set the matter

for hearing. People v. Ayers,

. If the court determines that the claims lack

merit or pertain only to matters of trial strategy, then no further action is required.

¶ 90 If the trial court has properly conducted a Krankel inquiry and has reached a determination

on the merits of the defendant’s Krankel motion, we will reverse only if the trial court’s action

was manifestly erroneous. Jackson,

. Manifest error is error that is clearly

evident, plain, and indisputable.

¶ 91 Here, defendant’s claims center on not being allowed to present rebuttal evidence. Proper

rebuttal evidence answers or contradicts affirmative matters raised by a party during its case

- 30 - No. 1-21-0754

in chief. People v. Robles,

(2000). We find that any error committed

by the trial court in not allowing defendant to present rebuttal evidence during the Krankel

proceedings did not constitute manifest error for the following reasons.

¶ 92 First, the record refutes defendant’s claims about the multiple witnesses that attorney

Mohammed would have presented during rebuttal. The record reveals that attorney

Mohammed requested several continuances in order to secure Sims as witness after the State

presented its arguments at defendant’s Krankel hearing. As noted above, Sims was an inmate

in pretrial detention with defendant who allegedly told him that Braxton would not testify

against defendant if he paid him $3000. On the date, attorney Mohammed asked the trial court

for a continuance to present rebuttal evidence, he told the court that he had secured Sims, and

no other witnesses were mentioned. Additionally, it was also revealed during the Krankel

hearing that attorney Murphy was not aware of the alleged extortion by Braxton until the

hearing, so presenting such evidence would have had no bearing the results of the Krankel

hearing and would have only raised a potential challenge to the State’s evidence. Because such

evidence had no bearing on whether attorney Murphy was ineffective, the fact that it was not

presented did not make the Krankel hearing fundamentally unfair. Where it can be determined

that the petitioner was not harmed by the alleged constitutional deprivation and that further

proceedings would be futile, harmless error analysis applies. See People v. Pingelton,

. Thus, this issue is subject to a harmless error analysis.

¶ 93 Structural errors necessarily render a criminal proceeding fundamentally unfair or

unreliable, are not subject to harmless error review, and thereby require automatic reversal.

Jackson,

. Conversely, where an error does not rise to the level of

- 31 - No. 1-21-0754

structural error, then it does not require automatic reversal and is subject to harmless error

review.

¶ 94 Errors that are subject to harmless error analysis are categorized as trial errors rather than

structural defects. People v. Jackson,

. Trial errors that are forfeited must

be analyzed for prejudice under the first prong of plain error standards. Id. ¶ 74. As explained

herein, defendant’s claim of error is a trial error and is thereby subject to a first prong plain

error analysis, where the evidence is closely balanced. Defendant, however, incorrectly alleges

that his claim is a structural defect and, consequently, invoked only the second prong of the

plain error rule, affecting the fairness and integrity of the judicial process despite closeness of

evidence, which does not apply. Id. We therefore decline to review defendant’s forfeited

argument.

¶ 95 C. Waiver of In-Person Hearings

¶ 96 Finally, defendant contends that the trial court failed to get defendant’s waiver for in-

person hearings before holding his motion for new trial and sentencing hearing via Zoom

teleconferencing without counsel being in the same location as defendant. He argues that under

Ill. S. Ct., M.R. 30370 (eff. Mar. 17, 2020), which became effective in response to the Covid-

19 outbreak, the trial court failed to secure a written waiver signed by defendant, which was

required in order to proceed remotely during his sentencing hearing without defendant’s in-

person presence in court. Defendant also indicates that he was denied his right to confer with

counsel at the hearings. Defendant’s motion for new trial was heard on February 3, 2021, and

his sentencing hearing was held on June 9, 2021.

¶ 97 The State concedes that defendant’s sentencing hearing was held remotely without a valid

waiver and that defendant and his counsel were in separate locations during defendant’s remote

- 32 - No. 1-21-0754

hearing on his new trial motion. However, the State contends that defendant forfeited review

of his argument that his sentencing hearing was held remotely by failing to object to or raise

the issue in a posttrial motion. Defendant claims in his reply brief that the error can be reviewed

under both prongs of plain error.

¶ 98 Rule 341(h)(7) provides that points not argued are waived and shall not be raised in the

reply brief, in oral argument, or on a petition for rehearing. Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1,

2020). However, our supreme court has considered arguments raised for the first time in a reply

brief (People v. Williams,

(2000); People v. Thomas,

(1997)). Thus, we will consider the merits of defendant’s arguments.

¶ 99 It is well settled that the plain error doctrine allows a reviewing court to review unpreserved

error when (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 or (2) a clear or

obvious error occurred, and the error is so serious that it affected the fairness of the defendant’s

trial and the integrity of the judicial process, regardless of the closeness of the evidence. People

v. Schroeder,

. In addressing a plain error argument, we must

first consider whether the error occurred at all.

¶ 100 The right to be present is not an express right under the United States Constitution but is

implied arising from the due process clause of the fourteenth amendment. U.S. Const., amend.

XIV, § 1; People v. Lindsey,

(2002). Article I, section 8 of the Illinois

Constitution grants criminal defendants the express right to appear and defend in person and

by counsel. Ill. Const. 1970, art. I, § 8. Accordingly, both the federal constitution and our state

constitution afford criminal defendants the general right to be present, not only at trial, but at

- 33 - No. 1-21-0754

all critical stages of the proceedings, from arraignment to sentencing. Lindsey,

.

¶ 101 A defendant’s constitutional right to appear in person at a critical stage of his proceedings

is not a substantial right in itself, but it is a means of securing other underlying substantial

rights that may be affected by the proceeding. People v. Bean,

(1990).

Even where a defendant has the general right to be present because the proceeding is a “critical”

stage, a defendant’s absence is not a per se constitutional violation. Lindsey,

.

Rather, a defendant’s absence from such a proceeding will violate his constitutional rights only

if the record demonstrates that defendant’s absence caused the proceeding to be unfair or if his

absence resulted in a denial of an underlying substantial right.

Some of these substantial

rights are the right to confront witnesses, the right to present a defense, and the right to an

impartial jury. Bean,

. A defendant cannot rely on broad principles that are not

adapted to the specifics of his case; rather, whether the benefit of defendant’s presence would

have been just a shadow because the fairness of the trial was not affected by defendant’s

absence from a portion of his trial must be determined in light of the whole record. Lindsey,

. A defendant’s presence is a condition of due process, however, only to the

extent that a fair and just hearing would be thwarted by defendant’s absence. People v. Aguilar,

(citing Bean,

).

¶ 102 With those principles in mind, we turn first to defendant’s motion for new trial held on

February 3, 2021. As defendant acknowledges in his brief, this hearing was held before the

amended supreme court rule took effect on February 11, 2021, and, thus, did not require a

- 34 - No. 1-21-0754

written in-person waiver. 7 The record reflects that all parties appeared via Zoom, and at one

point during the State’s argument, defendant attempted to “clarify” attorney Murphy’s

testimony from the evidentiary hearing by addressing the court directly. However, the trial

court stopped him from talking and told him to hold on and that he had a good lawyer.

Defendant argues that he was not provided with the opportunity to privately confer with

counsel about the matter and therefore he was never allowed the opportunity to bring the matter

before the court’s attention even though he had a lawyer. However, the record does not indicate

that defendant ever requested to speak with his counsel privately regarding attorney Murphy’s

testimony at the prior Krankel hearing or that any breakout rooms were established for the

Zoom hearing. During the court’s ruling, the record indicates that defendant asked the trial

court whether he could say something, but the trial court did not allow defendant to speak until

after it denied the motion.

¶ 103 After a review of the record from defendant’s motion for new trial, we find that no error

occurred, even though the hearing on defendant’s motion for new trial was held via Zoom

teleconferencing and was held without a waiver of defendant’s in person presence at the

hearing. As noted above, the amendment to the supreme court rule requiring waiver of in-

person hearings for hearings at which argument was heard did not occur until after the hearing

on defendant’s motion for new trial. Thus, the rule could not have applied, and defendant is

not entitled to rely on it. The governing law must exist at the time. Unless there was an express

provision for retroactive effect, it can only be applied prospectively. See People v. Davis,

(1983) (the provisions relied on by defendant are of no avail since they were not

7 As defendant notes in his brief, the prior supreme court amended rule that was in effect at the time of defendant’s motion for new trial allowed for remote hearings without such a waiver and was adopted in response to the nationwide Covid-19 pandemic emergency.

- 35 - No. 1-21-0754

in effect at the time the offense was committed). Here, because defendant was not required to

waive his in person presence at the motion for new trial under the supreme rule then in effect,

there can be no error in the failure to secure such a waiver.

¶ 104 Moreover, defendant was not entitled to be present for the motion for a new trial. As

previously stated, while it is well-settled that a criminal defendant has a general right to be

present at every stage of his trial (People v. Lofton,

(2000); U.S. Const.,

amend. XIV, § 1; Ill. Const. 1970, art. I, § 8), the right to be present is not an absolute,

inviolable right. A defendant is not denied a constitutional right every time he is not present

during his trial, but only when his absence results in him being denied a fair and just trial

(Lindsey,

). Nor is it a substantial right; it is a lesser right that is intended to

secure the substantial rights of a defendant. People v. Brown,

; People v.

Martinez,

. Additionally, the “nearly unanimous rule in this

country” is that the defendant’s constitutional right to be present at the trial does not embrace

a right to also be present at the argument of motions prior to trial or subsequent to verdict.

Lofton,

; People v. Woods,

(1963). It follows then that

defendant was not entitled to be present during the motion for new trial, so there could be no

error in failing to secure a waiver of his in-person presence.

¶ 105 Defendant, however, also argues on appeal that he was not allowed to confer with his

counsel during the hearing on the motion for new trial, presumably raising a constitutional

error of the denial of his right to counsel. We disagree.

¶ 106 First, as previously established, defendant had no constitutional right to be present for the

motion for new trial. Second, and as noted above, the record does not indicate that defendant

requested to speak with his counsel at any time during the hearing, only that he wanted to

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address the trial court directly to clarify points argued by the State during its argument. The

trial court had no responsibility to entertain defendant’s attempts to address it directly during

the hearing on his motion for new trial. An accused has either the right to have counsel

represent him or the right to represent himself; however, a defendant has no right to both self-

representation and the assistance of counsel. People v. Pondexter,

(1991).

¶ 107 Although the trial court chose to hear oral arguments on the motion for new trial, it was

not required to do so; the motion for new trial could have been decided by the trial court without

oral argument. See People v. DePompeis,

(1951); People v. Moczarney,

(1978) (where there is no reversible error committed in the course of

a trial, the refusal to hear argument on a motion for new trial cannot injure defendant and does

not constitute a denial of due process). As such, it follows then that defendant was not entitled

to confer with counsel during oral argument made on the motion for new trial and no

constitutional right was violated. We find that the record does not support a conclusion that the

motion for new trial was decided unfairly or resulted in the denial of an underlying substantial

right where defendant had no ascertainable right to be present at the hearing. People v.

Patrasso,

(1994). Even if we found an error, at best it would

be harmless error because defendant has failed to show how the waiver or allowing him to

speak with his counsel would have changed the result of the proceeding that he had no right to

be present for.

Thus, there was no error.

¶ 108 Because we have determined that there was no error, there could be no plain error. We

therefore decline to address defendant’s argument that his due process rights were violated by

the trial court’s failure to secure a waiver for his in-person presence at his motion for new trial.

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¶ 109 We next turn to defendant’s sentencing hearing, which was also held via Zoom

teleconferencing without a waiver of defendant’s in-person presence. Defendant argues that

such hearing violated his constitutional rights and violated our supreme court’s guidelines

regarding remote hearings because he was deprived of the opportunity to privately confer with

and assist his counsel during the proceedings. Specifically, defendant maintains that he

requested to speak with his attorney after the State presented its evidence in aggravation and

he was not allowed to.

¶ 110 As noted above, the State concedes that defendant’s sentencing hearing was held remotely

without a valid waiver but argues that defendant has forfeited this error because it was not

properly preserved. However, we will consider the merits of defendant’s argument under plain

error, as requested by defendant in his reply brief. Thomas,

.

¶ 111 The plain error doctrine allows a reviewing court to review unpreserved error when (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 or (2) a clear or obvious error

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

integrity of the judicial process, regardless of the closeness of the evidence. Schroeder,

. Our first determination is whether there has been an error.

¶ 112 As previously stated, a defendant’s absence from a critical proceeding will violate his

constitutional rights only if the record demonstrates that defendant’s absence caused the

proceeding to be unfair or if his absence resulted in a denial of an underlying substantial right.

Lindsey,

. We find that the sentencing hearing is a critical proceeding that

requires a defendant’s presence with counsel because its outcome affects a substantial right-

the defendant’s freedom.

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¶ 113 Our supreme court enacted several amendments to its rules concerning court appearances

and trials in response to the COVID-19 emergency between March 2020 and February 2023.

The supreme court’s order of February 11, 2021, mandated that legal hearings with argument

and sentencing hearings may not be held remotely unless the defendant waives his right to an

in-person hearing. Ill. S. Ct., M.R. 30370(II)(A) (eff. Feb. 11, 2021). The order also provided

that the decision to waive in-person proceedings belonged to the defendant, not defense

counsel, and must be in writing. Ill. S. Ct., M.R. 30370(II)(B), (C) (eff. Feb. 11, 2021).

Moreover, before a waiver of in-person proceedings could be accepted by the trial court, it

must ensure that the waiver was knowing and voluntary and that the defendant discussed the

waiver with counsel prior to the hearing. Ill. S. Ct., M.R. 30370(II)(D) (eff. Feb. 11, 2021).

¶ 114 Defendant has not cited, nor have we found, any criminal case that addresses sentencing

hearings held via Zoom teleconferencing under the modified rules during the Covid-19

emergency. While our research did reveal that there have been several cases involving parental

rights matters that addressed the issue of hybrid hearings or fully remote hearings, those cases

do not fall under the supreme court’s modified rule of February 11, 2021, which specifically

refers to remote sentencing hearings. Thus, those cases are distinguishable from the particular

issue raised in this case.

¶ 115 The record establishes that defendant’s sentencing hearing was held on June 9, 2021, via

Zoom teleconferencing with all parties appearing on screen, despite the trial court’s statement

that defendant was present in court. The record does not contain any evidence that a written

waiver of defendant’s in-court presence was received by the trial court before the sentencing

hearing was held. Additionally, the record does not indicate that defendant was provided with

a means to communicate in private with his attorney during the sentencing hearing (through a

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breakout room or other means), even after requesting to speak with his attorney during the

sentencing hearing. We find that defendant’s sentencing hearing was held in error, without

defendant’s waiver and without allowing defendant an opportunity to speak with his counsel

privately. We find this to be a violation of defendant’s constitutional rights to due process, as

well as a violation of our supreme court’s modified rule of February 11, 2021. We therefore

remand for a new sentencing hearing. Defendant’s conviction is affirmed in all other respects.

¶ 116 III. CONCLUSION

¶ 117 In conclusion, we find that defendant did not establish that his trial counsel was ineffective

for failing to investigate and present the testimony of an expert in eyewitness testimony; the

trial court erroneously disallowed defendant the opportunity to present rebuttal evidence during

the Krankel proceedings, but such error was harmless; and defendant did not properly preserve

review of his argument that his constitutional rights were violated when his motion for new

trial was heard via Zoom teleconferencing. However, we find it was error to hold defendant’s

sentencing hearing via Zoom teleconferencing without a valid waiver from defendant and

without allowing him the means to confer confidentially with his counsel. We affirm

defendant’s conviction and remand for a new sentencing hearing.

¶ 118 Affirmed and remanded with directions.

¶ 119 JUSTICE TAILOR, concurring part and dissenting in part:

¶ 120 I concur in the majority’s decision that plain error occurred because Harris was denied his

right to due process when the court proceeded to sentencing without obtaining a written waiver

from Harris of his right to an in-person hearing, as required by our supreme court’s mandate.

See Ill. S. Ct., M.R. 30370 (eff. Feb. 11, 2021). However, I disagree with the majority’s

decision that no error occurred with respect to the hearing on Harris’s motion for a new trial,

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which also proceeded remotely without Harris’s waiver of his right to an in-person hearing.

The absence of a waiver necessitates a new hearing in both instances because it directly

implicates an essential aspect of a defendant’s right to counsel—the ability of a defendant to

confer with and assist his counsel during a hearing. I would go further than the majority does

in this case because the rationale that requires a new sentencing hearing also requires a new

hearing on the motion for new trial. Therefore, I concur in part and respectfully dissent in part.

¶ 121 Harris argues that a written waiver of his right to an in-person hearing on his motion for a

new trial was required under the Illinois Supreme Court’s mandate of March 17, 2020, related

to the COVID-19 pandemic (Ill. S. Ct., M.R. 30370 (eff. Mar. 17, 2020)), and under section

106(D)-1(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/106D-1(a) (West 2020)).

The March 17, 2020, version of the mandate stated, “[e]ssential court matters and proceedings

shall continue to be heard by the Illinois courts. If feasible and subject to constitutional

limitations, essential matters and proceedings shall be heard remotely via telephone or video

or other electronic means.” (Emphasis added.) Ill. S. Ct., M.R. 30370 (eff. Mar. 17, 2020). As

for section 106(D)-1(a), although a motion for new trial is not specifically enumerated as one

of the proceedings allowed to occur by either closed circuit television or video conference for

certain criminal proceedings (see 725 ILCS 5/106D-1(a) (West 2020) (specifying court

proceedings that may be held remotely)), subsection 1(c) allows “other court appearances

through the use of a two-way audio-visual communication system if the person in custody or

confinement waives the right to be present physically in court.”

§ 106D-1(c).

¶ 122 The State offers no real, substantive response to Harris’s argument. Rather, the State argues

that Harris forfeited his claim and that Harris was actually present before the court, which is

contradicted by Harris’s counsel, who avers in an affidavit that the hearing was conducted

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remotely and that Harris was not present in the courtroom but also appeared remotely. The

State appears to acknowledge the latter point in its brief when it says, “ ‘both sides’ may have

appeared via teleconferencing.” Also, the State does not dispute that Harris’s right to counsel

includes the right to confer with his counsel privately during the course of a hearing.

¶ 123 To be clear, Harris was “present before the bench” at the hearing on his motion for a new

trial via videoconference and was represented by counsel of record, who was also “on camera,”

although from a location different than Harris. There is no dispute that Harris was “present”

for the entirety of the argument on the motion and for the court’s oral decision on the motion,

meaning that he was able to see and hear the proceedings via remote video conference. Cf.

People v. Lofton,

(2000) (the defendant was not transported from jail to

be present at a section 115-10 hearing and was deprived of due process as a result of being

absent from a critical stage proceeding). Harris was as “present” as the COVID-19 pandemic

precautions in existence at the time would allow.

¶ 124 Yet, the majority embarks on an analysis of whether a waiver was necessary in this case

based on whether Harris had a constitutional right to be present at the hearing on the motion

for a new trial. Supra ¶ 104. This is not the issue Harris raises. Harris’s argument is that his

sixth amendment right to counsel was violated because he was denied the right to confer with

and assist his counsel during the hearing because he was not physically in court with his

counsel by his side or given the opportunity to confer privately with his counsel in a “break

out” room in the Zoom application. The issue of the waiver of an in-person hearing in the

context of this case is central to the traditional understanding that being “present” in court is

appearing in the courtroom, before the bench and with counsel at the defendant’s side, and

having the opportunity to confer with counsel and assist counsel in person. Thus, Harris is

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arguing that because he did not waive his right to an in-person hearing, he did not waive his

sixth amendment right to be able to confer with counsel during the hearing.

¶ 125 The sixth amendment guarantees an accused a right to assistance of counsel in a criminal

proceeding. U.S. Const., amend. VI. “A defendant is entitled to the representation of counsel

at all critical stages of a criminal prosecution, and this important right will not be taken away

unless affirmatively waived by a defendant.” People v. Burton,

(1998). The

Supreme Court has established that a defendant’s right to counsel attaches “at or after the time

that adversary judicial proceedings have been initiated against him” (Kirby v. Illinois,

(1972) (opinion of Stewart, J., joined by Burger, C.J., and Blackmun and Rehnquist,

JJ.)), and once a defendant’s right to counsel attaches, the right continues to apply “at every

stage of a criminal proceeding where substantial rights of a criminal accused may be affected.”

Mempa v. Rhay,

(1967). A particular stage is deemed critical if “certain

legal rights may be lost if not exercised at this stage.”

. A posttrial motion for new

trial is a “critical stage” in criminal proceedings in Illinois, at which a defendant is entitled to

counsel (People v. Finley,

(1978)), because any error not raised with

specificity in a motion for new trial is deemed waived for purposes of appellate review. People

v. Enoch,

(1988).

¶ 126 An essential aspect of the sixth amendment right to counsel is the ability to confer with and

assist counsel. People v. Noble,

(1969) (defendant was denied his sixth

amendment right to counsel where defendant was not permitted to consult with counsel during

an overnight recess in jury trial); People v. Woosley,

(defendant

was denied his sixth amendment right to counsel where defense counsel was present at the

arraignment by telephone, which did not afford “any opportunity for confidential

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communication” between defendant and counsel); Geders v. United States,

(1976) (order preventing petitioner from consulting with his counsel during recess

impermissibly impinged on his sixth amendment right to assistance of counsel). Our review of

whether a defendant was denied his or her right to counsel is de novo. People v. Abernathy,

(2010).

¶ 127 Although Harris was “present” remotely at the hearing on the motion for new trial and was

represented by counsel who appeared remotely from another location, Harris did not waive his

right to an in-person hearing, including his right to confer with and assist counsel during the

hearing. This resulted in a violation of his sixth amendment right to counsel, where he did not

knowingly or voluntarily waive this right, and no opportunity to confer with his counsel was

provided to him during the proceeding. Cf. In re Es. C.,

(affirming parental termination occurring remotely where the trial court safeguarded the

parent’s due process rights by providing her with regular and frequent opportunities to confer

with counsel in virtual breakout rooms); In re R.D.,

(affirming parental terminations occurring remotely where respondents received “every

opportunity” to confer with counsel and could view and hear the witnesses as they testified);

In re P.S.,

(affirming parental termination occurring

remotely where the father was virtually present and was heard and the court repeatedly stopped

the proceeding to permit him to confer privately with counsel). 8

8 The right to be represented by counsel in termination cases originates in the Juvenile Court Act of 1987 (705 ILCS 405/1-5(1) (West 2020)) and not from the sixth amendment, which applies to criminal defendants. See U.S. Const., amend. VI (“[i]n all criminal prosecutions, the accused shall enjoy the right *** to have the Assistance of Counsel for his defense”). “Though the statutory right to counsel in proceedings under the Juvenile Court Act lacks constitutional footing *** that right is closely linked to its constitutional counterpart ***.” In re Br. M.,

.

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¶ 128 Nor am I persuaded by the majority’s rejection of Harris’s claim based on his failure to ask

to speak with his lawyer privately during the hearing. Supra ¶ 105. Here, the court conducted

an evidentiary hearing on Harris’s Krankel motion, wherein he alleged ineffective assistance

of trial counsel, which the court then denied. Harris’s subsequent motion for a new trial raised

two issues: the sufficiency of the evidence and trial counsel’s ineffectiveness. The record

shows that during the hearing on the motion for new trial, Harris tried to address the court with

regard to something his allegedly ineffective trial counsel had testified to at the Krankel

hearing regarding the defense he presented on Harris’s behalf. However, the trial court cut him

off before he could communicate the substance of his concern and told him that he could not

speak, stating that he had “a good lawyer.” Had Harris been present with his counsel at his side

or had the trial court permitted Harris and his counsel to confer privately in a Zoom “break

out” room, then Harris could have conferred with his counsel regarding this testimony, and

other information he wanted to share, and his counsel could have communicated to the court

any points or issues he deemed appropriate. The record shows that Harris eventually was

allowed to speak, but only spoke to the court, and after the court had already denied his motion

for a new trial. Under these circumstances, Harris cannot be faulted for failing to specifically

ask the court to speak privately with his lawyer. I would therefore find that an error did in fact

occur when Harris was unable to confer with counsel during this critical proceeding. The type

of representation afforded to Harris in this remote proceeding is not the type of representation

contemplated by the sixth amendment. “The right to have the assistance of counsel is too

fundamental and absolute to allow courts to indulge in nice calculations as to the amount of

prejudice arising from its denial.” Glasser v. United States,

(1942).

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¶ 129 I also would find that this error amounted to reversible error under the second prong of the

plain error doctrine. This prong allows a court of review to consider unpreserved error if “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). The denial of Harris’s right to counsel affects Harris’s

substantial rights and, therefore, is plain error under the second prong of the plain error

doctrine. People v. Vernon,

(2009). I would therefore vacate both the

order denying his motion for a new trial and the order imposing sentence and remand for a new

hearing on the motion for new trial. If the motion for new trial were denied, then a sentencing

hearing would be held, with Harris present with his counsel by his side in each instance, unless

he waives his right to be present.

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People v. Harris,

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 13-CR- 02582; the Hon. James B. Linn, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, and Jessica D. Ware, of State for Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique for Abraham, Douglas Harvath, Brian K. Hodes, and Leslie Appellee: Billings, Assistant State’s Attorneys, of counsel), for the People.

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