People v. Brown

2023 IL 126852

216 N.E.3d 895

466 Ill.Dec. 62

The PEOPLE of the State of Illinois, Appellee,

v.Servetus BROWN, Appellant.

Docket No. 126852

Supreme Court of Illinois.

Filed February 17, 2023.

James E. Chadd, State Appellate Defender, Douglas R. Hoff, Deputy Defender, and Kieran M. Wiberg, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellant.

Kwame Raoul, Attorney General, of Springfield (Jane Elinor Notz, Solicitor General, and Michael M. Glick and Jason F. Krigel, Assistant Attorneys General, of Chicago, of counsel), for the People.

CHIEF JUSTICE THEIS delivered the judgment of the court.

¶ 1 At issue in this appeal is whether defendant Servetus Brown received ineffective assistance of trial counsel because, while he was present at trial for voir dire , his attorney agreed to a process where the parties exercised juror challenges at sidebar conferences held off the record and outside his presence. The appellate court rejected this claim and affirmed his armed habitual criminal conviction. 2020 IL App (1st) 180826, 453 Ill.Dec. 609, 188 N.E.3d 339. For the following reasons, we affirm the judgment of the appellate court.

¶ 2 BACKGROUND

¶ 3 On June 18, 2017, two police officers responded to a call of shots fired near 123rd Street and Yale Avenue in Chicago. When they arrived at the scene, they were directed by an individual to a parked black sedan, where defendant was sitting in the driver's seat. Defendant did not respond to the officers’ repeated requests to exit the vehicle; therefore, the officers physically removed him from the sedan. One of the officers conducted a pat down search of defendant and recovered a loaded handgun from his pants pocket. Police also recovered from the driver's seat two packets of a suspected narcotic.

¶ 4 Defendant was indicted on multiple counts. The State proceeded to trial on only two counts: being an armed habitual criminal ( 720 ILCS 5/24-1.7(a)(2) (West 2016)) and possession of a controlled substance (id. § 402(c)).

¶ 5 In January 2018, a jury trial commenced in Cook County circuit court. Two attorneys appeared on defendant's behalf.

The trial court questioned the venire members in panels of four. After questioning the first panel in open court, the trial judge asked to see the attorneys at a sidebar to discuss any objections they may have to the venire members. The court repeated this process and held a total of eight sidebars off the record before announcing that a jury had been selected. The trial judge then explained:

"THE COURT: All right. We are back on the record and we're outside the presence of the jury. The State's present. The defense [is] present. The defendant is present. And in case I did not say it before, he's in civilian attire. And we just completed jury selection, and in the interest of saving a little bit of time, we had sidebars regarding the challenges for cause and for peremptory challenges and now we're going to put them all on the record. So the defense struck as peremptory challenge number five, Rachel Stan, Michael Dzieuratkowski, and number 15, Joey Figueroa, is that correct?

[DEFENSE ATTORNEY]: That's correct.

THE COURT: And the State struck for peremptory number seven, Mr. Craig Allison, number nine, Susannne Conley Duran, and number 13, Erik Yessin, and also number 23, Barbara J. Hayler. And the State asked for cause as to Ishmael Henderson, actually it was by agreement, and also by agreement was Michael Gonzalez for failure to disclose a murder case. Is there anything else anyone wants to put on the record?

[THE STATE]: No.

[DEFENSE ATTORNEY]: No, Judge."

¶ 6 The jury found defendant guilty of being an armed habitual criminal but not guilty of possession of a controlled substance. In his motion for a new trial, defendant raised numerous contentions, but he did not challenge the sidebars conducted during the jury selection process. The trial court denied the motion for a new trial. Defendant was sentenced to 10 years in prison.

¶ 7 On appeal, defendant challenged his conviction on the basis that he was deprived of his constitutional right to be present at a critical stage of the proceeding, specifically jury selection. 2020 IL App (1st) 180826, ¶ 14, 453 Ill.Dec. 609, 188 N.E.3d 339. The appellate court recognized that defendant did not preserve this issue by objecting to the court's suggested process, or by raising it in a posttrial motion, and he did not argue plain error. Id. ¶ 15. Instead, he asserted that his defense counsel was ineffective for failing to object to the process where jurors were challenged at sidebars without defendant himself being present. Id. The court rejected defendant's ineffective assistance claim, finding that he had not shown prejudice because he failed to establish that he was not tried by an impartial jury. Id. ¶ 16. The appellate court affirmed defendant's armed habitual criminal conviction. Id. ¶ 21.

¶ 8 This court allowed defendant's petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Oct. 1, 2020).

¶ 9 ANALYSIS

¶ 10 The sole issue before us is whether defendant was denied the effective assistance of counsel because his attorney did not object to the trial court's suggestion that the parties exercise juror challenges at off-the-record sidebar conferences held in his absence. Defendant asserts that this procedure, which counsel agreed to, resulted in a violation of his constitutional right to be present at a critical stage of trial—namely jury selection. Defendant contends that his counsel performed deficiently by failing to object and protect that right.

¶ 11 To determine whether defendant was denied effective assistance of counsel, we apply the two-pronged test set forth in Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). People v. Pingelton , 2022 IL 127680, ¶ 53, 465 Ill.Dec. 559, 215 N.E.3d 764. To prevail on such a claim, a criminal defendant must show both that (1) counsel's performance was deficient and (2) the deficient performance prejudiced defendant such that he was deprived of a fair trial. Strickland , 466 U.S. at 687, 104 S.Ct. 2052.

¶ 12 As this court has previously explained, "[t]he 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." People v. Lindsey , 201 Ill. 2d 45, 55, 265 Ill.Dec. 616, 772 N.E.2d 1268 (2002) (citing U.S. Const., amend. XIV, § 1 ); Kentucky v. Stincer , 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987) ; United States v. Gagnon , 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985). Similarly, 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 all critical stages of the proceedings, from arraignment to sentencing." Lindsey , 201 Ill. 2d at 55, 265 Ill.Dec. 616, 772 N.E.2d 1268 (citing Illinois v. Allen , 397 U.S. 337, 338, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), People v. Bull , 185 Ill. 2d 179, 235 Ill.Dec. 641, 705 N.E.2d 824 (1998), People v. Bean , 137 Ill. 2d 65, 80-83, 147 Ill.Dec. 891, 560 N.E.2d 258 (1990), and People v. Martine , 106 Ill. 2d 429, 439, 87 Ill.Dec. 905, 478 N.E.2d 262 (1985) ).

¶ 13 This court's decision in Bean , cited by both parties, is instructive. There, we recognized that a criminal defendant undeniably has a general right to be present at every stage of his trial, including jury selection. Bean , 137 Ill. 2d at 80, 147 Ill.Dec. 891, 560 N.E.2d 258. We further recognized that this court and the United States Supreme Court have limited the situations in which the denial of this broad right of presence constitutes a violation of the Illinois and United States Constitutions. Id.

¶ 14 The trial judge in Bean conducted in-chambers voir dire of six venire members. Id. at 79, 147 Ill.Dec. 891, 560 N.E.2d 258. The defendant's two attorneys were present during each voir dire , but the defendant was not present. Id. He claimed the in camera proceedings violated his right to be present during the entire jury selection process under both the Illinois and United States Constitutions. Id. at 78-79, 147 Ill.Dec. 891, 560 N.E.2d 258. The defendant failed to preserve his claim, and therefore this court reviewed it only for plain error. Id. at 80, 147 Ill.Dec. 891, 560 N.E.2d 258.

¶ 15 We explained in Bean that, although criminal defendants have a "general right to be present" at every stage of the trial, "the broad ‘right to be present at trial’ is not itself a substantial right under the Illinois Constitution." Id. at 80-81, 147 Ill.Dec. 891, 560 N.E.2d 258 (citing Martine , 106 Ill. 2d at 439, 87 Ill.Dec. 905, 478 N.E.2d 262 ). Rather, "it is a lesser right the observance of which is a means to securing the substantial rights of a defendant." Id. at 81, 147 Ill.Dec. 891, 560 N.E.2d 258. Therefore, we held that "a defendant is not denied a constitutional right every time he is not present during his trial, but only when his absence results in a denial of an underlying substantial right, in other words, a constitutional right; and it is only in such a case that plain error is committed." Id. Some of these substantial rights include the right to confront witnesses, the right to present a defense, and the right to an impartial jury. Id.

¶ 16 This court also recognized in Bean that, under the federal constitution, criminal defendants have a general right to be present at their trial. Id. at 82, 147 Ill.Dec. 891, 560 N.E.2d 258. This federal right of presence is not an express constitutional right but arises from the due process clause of the fourteenth amendment. Id. Consequently, "as long as a defendant's absence from a portion of his trial does not deprive him of due process, there is no violation...