Illinois Official Reports

Appellate Court

People v. Schoonover, 2019 IL App (4th) 160882

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. 

HAYZE L. SCHOONOVER, Defendant-Appellant.

District & No. Fourth District

Docket No. 4-16-0882

Filed April 12, 2019

Decision Under 

Review

Appeal from the Circuit Court of Champaign County, No. 15-CF1388; the Hon. Thomas J. Difanis, Judge, presiding.

Judgment Reversed and remanded.

Counsel on

Appeal

James E. Chadd, John M. McCarthy, and Akshay Mathew, of State 

Appellate Defender’s Office, of Springfield, for appellant.

Julia Rietz, State’s Attorney, of Urbana (Patrick Delfino, David J. 

Robinson, and Luke McNeill, of State’s Attorneys Appellate 

Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.

Justice Turner concurred in the judgment and opinion. 

Justice DeArmond dissented, with opinion.
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OPINION

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

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

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

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

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

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

during sentencing. We reverse and remand. 

¶ 2 I. BACKGROUND

¶ 3 In September 2015, the State charged defendant with four counts of predatory criminal 

sexual assault of a child. Id. Specifically, it alleged that defendant, who was over the age of 

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

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

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

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

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

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

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

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

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

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

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

her breasts.

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

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

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

and the parties:

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

family members. 

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

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

family members are here. Is that—are you barring them?

THE COURT: Out.”

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

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

reflects the following discussion:

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

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

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

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

do not have a direct interest in the case except the media. So I’m going to order that the 
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courtroom be cleared, with the exception of the media, when [M.L.] testifies. I will note 

[defense counsel’s] objection.

MR. LARSON: Your Honor, if I may.

THE COURT: Yes.

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

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

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

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

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

clear the courtroom. 

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

MR. LARSON: Yes, Your Honor. 

THE COURT: Who else?

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

present.

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

there? And then the rest of the people on this side. All right. As soon as we get done 

with her testimony, I will bring the rest of the people in the courtroom.”

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

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

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

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

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

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

¶ 8 This appeal followed.

¶ 9 II. ANALYSIS

¶ 10 Right to a Public Trial

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

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

statutory requirements when clearing the courtroom and improperly excluded persons with a 

direct interest in his trial.

¶ 12 1. Forfeiture v. Waiver

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

review by failing to raise it in a posttrial motion. See People v. Sebby, 2017 IL 119445, ¶ 48, 

89 N.E.3d 675 (stating that, “[t]o preserve a purported error for consideration by a reviewing 

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

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

unpreserved claim of error may be considered under the plain error doctrine. See Ill. S. Ct. R. 

615(a) (eff. Jan. 1, 1967) (“Plain errors or defects affecting substantial rights may be noticed 

although they were not brought to the attention of the trial court.”). A defendant’s forfeiture 

may be excused under the plain error doctrine “when a clear or obvious error occurred” and 
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either (1) the evidence is so closely balanced that the error alone threatened to tip the scales of 

justice against the defendant, regardless of the seriousness of the error, or (2) the error is so 

serious that it affected the fairness of the defendant’s trial and challenged the integrity of the 

judicial process, regardless of the closeness of the evidence. Sebby, 2017 IL 119445, ¶ 48.

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

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

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

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

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

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

defendant’s inaction, he “acquiesced to the trial court’s decision to clear the courtroom” and 

cannot now argue that plain error occurred. 

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

to make a timely assertion of a known right.” People v. Bowens, 407 Ill. App. 3d 1094, 1098, 

943 N.E.2d 1249, 1256 (2011). “In the course of representing their clients, trial attorneys may 

(1) make a tactical decision not to object to otherwise objectionable matters, which thereby 

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

issue, which results in procedural forfeiture.” Id. A plain error analysis applies only to cases 

involving forfeiture and not those that involve affirmative acquiescence or waiver. People v. 

McGuire, 2017 IL App (4th) 150695, ¶ 29, 92 N.E.3d 494. “When defense counsel 

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

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

assistance of counsel.” Id. 

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

and circumstances of the case.” People v. Phipps, 238 Ill. 2d 54, 62, 933 N.E.2d 1186, 1191 

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

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

this court’s decision in People v. Dunlap, 2013 IL App (4th) 110892, 992 N.E.2d 184. There, 

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

imposition of a $400 public defender reimbursement “because he affirmative[ly] acquiesced 

not only to the amount of the reimbursement, but also to the materials the court relied upon to 

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

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

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

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

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

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

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

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

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

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

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

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

intended to bar defendant’s family members, and the court responded by stating “[o]ut.” 

Thereafter, both defendant and his counsel remained entirely silent on the issue. Neither 
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defendant nor his counsel expressed agreement with the court’s action. Moreover, unlike in 

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

questioned by the court. 

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

else,” while in the process of clearing the courtroom. Although the State suggests defendant’s 

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

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

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

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

after it noted defendant’s objection to that action for the record. Accordingly, we do not find 

defendant’s silence in response to that question indicative of acquiescence. Instead, we find 

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

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

is not precluded from arguing plain error.

¶ 20 2. Compliance With Section 115-11

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

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

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

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

2017 IL 119445, ¶ 48. “The initial analytical step under either prong of the plain error doctrine 

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

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

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

testimony of minors who are the victims of certain sex crimes.” People v. Williams, 2016 IL 

App (3d) 130901, ¶ 19, 53 N.E.3d 1019. Specifically, that section provides as follows:

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

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

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

victim is testifying, all persons, who, in the opinion of the court, do not have a direct 

interest in the case, except the media.” 725 ILCS 5/115-11 (West 2014). 

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

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

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

Court for the closure of judicial proceedings to the press and public.” Williams, 2016 IL App 

(3d) 130901, ¶ 20 (citing People v. Falaster, 173 Ill. 2d 220, 226, 670 N.E.2d 624, 627-28 

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

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

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

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

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

minor’s testimony. People v. Holveck, 141 Ill. 2d 84, 102-03, 565 N.E.2d 919, 927 (1990). 

Persons with a direct interest include the defendant’s immediate family members, and such 

individuals may not be excluded. People v. Benson, 251 Ill. App. 3d 144, 149, 621 N.E.2d 981, 

984-85 (1993). Properly excluded individuals include “only those spectators whose connection 
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to the case on trial is tenuous or whose presence simply reflects their curiosity about the trial 

court proceedings.” Id. 

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

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

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

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

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

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

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

is not part of the record.” People v. Garcia, 2017 IL App (1st) 133398, ¶ 35, 74 N.E.3d 1058; 

see also People v. Vega, 145 Ill. App. 3d 996, 1001, 496 N.E.2d 501, 505 (1986) (“Exhibits or 

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

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

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

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

115-11, the trial court sua sponte ordered persons excluded from the courtroom during M.L.’s 

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

¶ 27 In People v. Revelo, 286 Ill. App. 3d 258, 264, 676 N.E.2d 263, 268 (1996), the State 

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

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

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

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

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

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

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

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

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

defendant’s parents and siblings.” Id. at 265. The court determined as follows:

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

the connection between these parents or these siblings and the criminal trial of the 

defendant. We will not do so. Additionally, [the] defendant’s parents and siblings were 

not ‘simply curious’ because of the nature of the criminal trial; they were present out 

of an interest—and likely a concern—for [the] defendant that long predated the 

beginning of this cause. To the extent the trial court’s ruling excluding [the] defendant’s 

parents and siblings can be interpreted as an implicit finding that they did not have a 

direct interest in [the] defendant’s trial, we hold this to be an abuse of discretion.” Id.

at 265-66. 

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

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

that the same could not be said for the defendant’s mother and remaining siblings. Id. at 266-

67. The court concluded that under section 115-11, the defendant’s nonwitness, immediate 

family members had the right to attend the minor victim’s testimony. Id. at 267.

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

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

listed sex offense and under the age of 18. Although the court acted properly in holding that 
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the media was exempt from its order and limiting its closure to only the time period during 

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

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

defense counsel expressly brought the presence of defendant’s “family members” to the court’s 

attention. However, without making any inquiry into those individuals or their interest in the 

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

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

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

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

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

2013 IL App (2d) 110807, ¶ 57, 986 N.E.2d 1249 (stating “[t]he trial judge followed section 

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

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

the family members brought to its attention had a direct interest in the proceedings prior to 

excluding them. Such action amounted to a blanket exclusion of anyone other than members 

of M.L.’s family and the media and constituted a violation of statutory requirements. 

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

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

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

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

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

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

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

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

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

based on curiosity of the proceedings. Falaster, 173 Ill. 2d at 228 (“The persons who were 

temporarily excluded from the proceedings were not members of the defendant’s immediate 

family and thus did not have a direct interest in the outcome of the case.”). However, section 

115-11 sets forth no limitations on whom the trial court may determine, in its discretion, is a 

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

¶ 31 To support its argument that no reversible error occurred, the State relies on Williams, 2016 

IL App (3d) 130901. There, the State moved to have the testimony of the minor victim 

“received in chambers with defense counsel, the defendant, and the court reporter.” Id. ¶ 10. 

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

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

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

follows: 

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

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

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

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

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

held a sidebar to discuss the exclusion, specifically allowing the defendant, his counsel, 

the State, and [the victim’s] foster mother to be present for [the victim’s] testimony. 

Since trial judges are presumed to follow the law [citation], we presume that the judge 
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allowed all those identified with a direct interest in the case to be present during [the 

victim’s] testimony. While a better practice would have been to make those findings 

on the record, we cannot say that the trial court abused its discretion.” Id. ¶ 22.

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

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

trial court. As a result, the reviewing court presumed that the trial judge had followed the law. 

Here, the record clearly and affirmatively demonstrates error, as defendant’s family members 

were brought to the court’s attention and then excluded during the minor victim’s testimony 

without any inquiry or consideration into their interest in the case. 

¶ 33 Further, we find this court’s decision in Benson, 251 Ill. App. 3d 144, illustrates proper 

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

during the testimony of a minor victim pursuant to section 115-11. Id. at 145. The defendant 

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

in the proceeding.” Id. “The court then asked [the defendant’s] counsel to identify the family 

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

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

relationship.” (Emphasis in original.) Id. at 145-46. Further, upon inquiry by the court, counsel 

agreed that only “ ‘collateral relatives’ ” were present. Id. at 146. The court granted the State’s 

motion. Id.

¶ 34 On review, this court found no abuse of discretion by the trial court. Id. at 149-50. 

Specifically, we stated as follows: 

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

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

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

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

case. At that point, the burden shifted to [the] defendant to specifically identify each 

spectator that he wished to exempt from the closure order and to define the interest of 

each. [The] [d]efendant’s doing so would have given the court the opportunity to tailor 

the closure order to ensure that it was no broader than necessary. However, here [the] 

defendant’s vague reference to his collateral kin, neighbors, and acquaintances made 

no distinction between those possibly having a direct interest in the proceeding and 

those who did not. [The] [d]efendant’s failure to provide the trial court with the 

information it requested waives this issue on appeal.” Id. 

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

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

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

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

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

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

present. Because the court conducted no inquiry into whether defendant’s family members had 

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

at 149 (“The second limitation section 115-11 of the Code places upon the trial court is to 

direct that the court may exclude from the proceedings only those persons who, in the opinion 

of the court, do not have a direct interest in the case; the obverse of this means that those 
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persons who do have a direct interest in the case, such as a defendant’s immediate family, may 

not be excluded.” (Emphases in original.)).

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

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

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

the error was structural, requiring automatic reversal.

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

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

challenged the integrity of the judicial process, regardless of the closeness of the evidence.” 

(Internal quotation marks omitted.) Sebby, 2017 IL 119445, ¶ 48. “Under the second prong of 

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

right involved, regardless of the strength of the evidence.” (Emphasis and internal quotation 

marks omitted.). People v. Thompson, 238 Ill. 2d 598, 613, 939 N.E.2d 403, 413 (2010). 

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

error. Id. at 608. Our supreme court has equated second-prong plain error with structural error 

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

recognized by the supreme court (People v. Clark, 2016 IL 118845, ¶ 46, 50 N.E.3d 1120)). 

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

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

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

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

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

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

¶ 39 In Revelo, 286 Ill. App. 3d at 267, the Second District held it was appropriate to presume 

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

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

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

excludes persons with a direct interest in the proceeding. As a practical matter, it is 

hard to envision what would constitute prejudice in the wake of a section 115-11 

violation. It would be difficult, if not impossible, to require a defendant to prove, or the 

State to disprove, prejudice. However, if section 115-11 is to confer anything beyond 

a meaningless right without a remedy, defendants must conclusively be presumed to be 

prejudiced by a section 115-11 violation. We so hold. This holding is bolstered by the 

practice of presuming prejudice when the constitutional guarantee of a public trial is 

violated. [Citations.] We see no reason why a different practice should apply under 

section 115-11.” Id.

See also Williams, 2016 IL App (3d) 130901, ¶ 18 (addressing allegations of plain error with 

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

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

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

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

of a defendant’s trial and challenges the integrity of the judicial process, amounting to secondprong plain error. The State criticizes Revelo on the basis that the court improperly “equated” 

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

(guaranteeing a criminal defendant the right to a public trial). It cites this court’s decision in 
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Benson, 251 Ill. App. 3d 144, arguing that section 115-11 concerns only limited closures of 

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

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

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

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

a public trial. Id. at 146. We disagreed, stating that “because section 115-11 of the Code permits 

only limited closure of trial court proceedings, that section does not violate (or even implicate) 

any State or Federal constitutional provisions.” Id. at 149. We also held that section 115-11’s 

“explicit commands that the trial court may exclude neither the media nor those spectators 

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

added.) Id. Significantly, in Benson, we found that the record supported the trial court’s 

decision to clear the courtroom and that no section 115-11 violation had occurred. Id. at 149-

50. 

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

involve a section 115-11 violation. Instead, there was compliance with statutory provisions, 

which allowed the trial court to “steer *** clear of any constitutional infirmity.” Id. at 149. As 

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

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

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

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

cannot be said where there is noncompliance with section 115-11. 

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

sufficient where it satisfies section 115-11 of the Code, and a court’s order need not also satisfy 

the more stringent limitations for the closure of judicial proceedings established by the United 

States Supreme Court in Waller v. Georgia, 467 U.S. 39, 48 (1984), and other cases. Falaster, 

173 Ill. 2d at 225-28; see also Waller, 467 U.S. at 48 (stating “the party seeking to close the 

hearing must advance an overriding interest that is likely to be prejudiced, the closure must be 

no broader than necessary to protect that interest, the trial court must consider reasonable 

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

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

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

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

constitutional rights. 

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

“the difficulty of assessing the effect of the error.” (Internal quotation marks omitted.) Weaver 

v. Massachusetts, 582 U.S. ___, ___, 137 S. Ct. 1899, 1910 (2017). In Weaver, the Supreme 

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

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

claiming ineffective assistance of counsel in a collateral proceeding. Id. at ___, 137 S. Ct. at 

1910. The Court determined that, in those particular circumstances, “Strickland prejudice is 

not shown automatically.” Id. at ___, 137 S. Ct. at 1911 (citing Strickland v. Washington, 466 

U.S. 668 (1984)). However, it also stated as follows:

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

where there is an objection at trial and the issue is raised on direct appeal, the defendant 
- 11 -

generally is entitled to automatic reversal regardless of the error’s actual effect on the 

outcome.” (Internal quotation marks omitted.) Id. at ___, 137 S. Ct. at 1910.

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

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

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

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

Id. at ___, 137 S. Ct. at 1912. It further noted that objections raised at trial and on direct review 

diminish “the systemic costs of remedying the error.” Id. at ___, 137 S. Ct. at 1912.

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

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

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

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

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

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

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

occurrence of second-prong plain error, requiring reversal. Given our resolution of this issue, 

we find it unnecessary to address the remaining claims of error raised by defendant on appeal 

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

discretion during sentencing. 

¶ 46 3. The Dissent

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

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

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

argue that we may not properly determine that a public trial violation occurred for two reasons: 

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

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

the courtroom. 

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

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

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

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

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

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

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

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

person with a direct interest but rather on its obvious failure to undertake any determination of 

interest in the first instance. The dissent misapprehends the majority decision by asserting that 

it is based on improper speculation that individuals with a direct interest were excluded. 

Ultimately, we do not know the interest of those excluded because the trial court did not fulfill 

its statutory responsibility to make that determination.

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

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

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

to inquire further under section 115-11—a position for which we find no legal support. In fact, 
- 12 -

it has been held that, “[g]iven the seriousness of the potential harm, each trial judge must be 

alert and proactive in managing his or her courtroom to prevent violations of this core 

constitutional right [(the right to a public trial)], regardless of whether the attorneys assist in 

the process.” People v. Evans, 2016 IL App (1st) 142190, ¶ 14, 69 N.E.3d 322; Presley v. 

Georgia, 558 U.S. 209, 214 (2010) (per curiam) (stating a trial court is required to consider 

reasonable alternatives to closure, one of the required Waller factors, even when not offered 

by the parties). 

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

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

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

that his immediate family members were excluded would not amount to a public trial violation. 

Plainly, this is incorrect. 

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

that section 115-11 neither violates nor implicates constitutional provisions (see Benson, 251 

Ill. App. 3d at 149). Infra ¶ 68. As discussed, Benson involved full compliance with section 

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

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

it clear of any constitutional infirmity.” (Emphasis added.) Benson, 251 Ill. App. 3d at 149.

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

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

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

concerns are implicated. 

¶ 52 The dissent also relies on People v. Priola, 203 Ill. App. 3d 401, 420, 561 N.E.2d 82, 96 

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

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

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

Court’s more stringent Waller criteria. Id. (“Since the trial judge did not comply with the

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

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

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

173 Ill. 2d at 227 (“[A] trial judge’s order *** need[s] to satisfy only the requirements of 

section 115-11.”). Priola did not address noncompliance with section 115-11 at all, much less 

the violation that occurred in this case. Nor did Priola involve facts like the operative ones in 

this case—the trial court’s failure to determine the interests of individuals it excluded from the 

courtroom when those individuals were brought to its attention by the defendant and 

represented to be family members of the defendant. We find Priola is both analytically and 

factually inapposite. 

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

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

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

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

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

from which the trial court’s conduct can be evaluated. However, as discussed, that was done 

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

interest of those it excluded, resulting in an overstepping of its authority under section 115-11.
- 13 -

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

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

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

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

137 S. Ct. at 1908 (“[A] violation of the right to a public trial is a structural error.”). As 

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

¶ 55 III. CONCLUSION

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

¶ 57 Reversed and remanded.

¶ 58 JUSTICE DeARMOND, dissenting:

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

excluded spectators from defendant’s trial during the testimony of the minor victim. Moreover, 

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

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

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

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

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

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

Accordingly, I respectfully dissent.

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

written posttrial motion. People v. Bates, 2018 IL App (4th) 160255, ¶ 69, 112 N.E.3d 657. If 

he fails to do either, forfeiture then results. Id. As the majority notes, defendant alleged he is 

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

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

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

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

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

is typically designated as structural only if it necessarily renders a criminal trial fundamentally 

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

have been found only in a limited class of cases, including those involving “a complete denial 

of counsel, trial before a biased judge, racial discrimination in the selection of a grand jury, 

denial of self-representation at trial, denial of a public trial, and a defective reasonable doubt 

instruction.” Id.; see also In re Samantha V., 234 Ill. 2d 359, 378-79, 917 N.E.2d 487, 499 

(2009) (finding error under the second prong based on the trial court’s failure to apply the oneact, one-crime rule); People v. Walker, 232 Ill. 2d 113, 131, 902 N.E.2d 691, 700 (2009) 

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

denying a continuance).

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

that a structural error occurred.” Bates, 2018 IL App (4th) 160255, ¶ 72 (citing Thompson, 238 

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

unreliable, the defendant bears the burden of persuasion at all times under a plain error analysis. 
- 14 -

Id. ¶¶ 72-73; see also People v. Hillier, 237 Ill. 2d 539, 545, 931 N.E.2d 1184, 1187 (2010) 

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

doctrine). If the defendant fails to satisfy his burden of persuasion, “the procedural default will 

be honored.” People v. Eppinger, 2013 IL 114121, ¶ 19, 984 N.E.2d 475. Here, the majority 

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

the trial court’s failure to fully comply with section 115-11, in itself, establishes a structural 

error. Such a finding, in my opinion, is not supported by previous holdings of the United States 

Supreme Court or even this court. 

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

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

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

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

following exchange occurred:

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

family members.

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

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

family members are here. Is that—are you barring them?

THE COURT: Out.”

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

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

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

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

“THE COURT: All right. Well, pursuant to [section 115-11] where the alleged 

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

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

the court, do not have a direct interest in the case except the media. So I’m going to 

order that the courtroom be cleared, with the exception of the media, when [M.L.] 

testifies. I will note [defense counsel’s] objection.”

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

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

order without the evaluation required under section 115-11.

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

exchange took place:

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

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

MR. LARSON: Yes, Your Honor.

THE COURT: Who else?

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

present.

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

there? And then the rest of the people on this side. All right. As soon as we get done 

with her testimony, I will bring the rest of the people in the courtroom.”
- 15 -

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

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

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

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

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

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

People v. Kelly, 397 Ill. App. 3d 232, 262, 921 N.E.2d 333, 360 (2009).

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

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

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

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

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

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

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

referred to in the first colloquy, were immediate or that the family members permitted to remain 

were not also related to defendant, either by blood or marriage, since he was the uncle of the 

victim. The majority correctly disregards defense counsel’s affidavit on appeal, although it 

expressly identifies the persons in the affidavit defendant says were excluded. 

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

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

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

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

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

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

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

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

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

constitutional right to a public trial. However, this court in Benson, 251 Ill. App. 3d at 149, 

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

provisions.

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

trial court proceedings, that section does not violate (or even implicate) any State or 

Federal constitutional provisions. We further hold that the criteria discussed by the 

United States Supreme Court in Press-Enterprise and Waller do not apply to closures 

ordered pursuant to section 115-11 of the Code.” Id.

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

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

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

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

those United States Supreme Court pronouncements.

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

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

of the United States Constitution: (1) the blanket prohibition against exclusion of the media, 

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

and (3) the temporal limitation involving only that period of time during which the child victim 
- 16 -

testifies. Id. Citing at length our supreme court’s decision in Holveck, 141 Ill. 2d 84, this court 

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

sixth amendment right to a public trial.’ ” Benson, 251 Ill. App. 3d at 149 (quoting Holveck, 

141 Ill. 2d at 101); see also People v. Leggans, 253 Ill. App. 3d 724, 728, 625 N.E.2d 1133, 

1137-38 (1993) (finding no section 115-11 error and noting the prosecutor’s argument that 

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

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

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

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

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

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

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

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

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

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

“It is clear from the record that the judge considered the interests of both the 

defendant and the minor witnesses. By allowing the media to attend, the judge 

preserved the defendant’s sixth amendment right to a public trial. The trial judge 

considered that the media presence is, in effect, the presence of the public. Too, the 

judge did not allow persons without an interest to attend. The judge explained that the 

age of the witnesses, their psychological immaturity, the nature of the case, and the 

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

appellate court as being determinative of the propriety of the closure of a trial. 

Therefore, the appellate court erred in holding that the trial judge improperly closed the 

public trial.” (Emphasis added.) Holveck, 141 Ill. 2d at 101-02.

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

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

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

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

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

analysis, to prove it to be a second-prong structural error requiring reversal. Bates, 2018 IL 

App (4th) 160255, ¶¶ 72-73. Noncompliance with the statute would not necessarily implicate 

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

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

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

which family members were present or what their interest may be when asked by the trial court. 

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

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

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

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

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

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

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

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

does not equate to concluding he was not. 
- 17 -

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

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

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

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

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

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

remain on the State’s behalf. Speculating just like the majority, since the State did not respond 

to the court’s inquiry about the people in the back of the courtroom and the prosecutor was 

never reluctant to speak up during these conversations, it is just as reasonable to conclude the 

people in the back must have been family of defendant. His counsel should have said so and 

followed up by seeking clarification of the court’s first comment “out,” in light of the fact that, 

since then, the State has sought and obtained approval for three specific family members of the 

victim to be present. This was a substantial change from the court’s comments at the first 

conversation upon which the majority places such weight when the court said “I want the 

courtroom cleared except for family members” and the second conversation when the court 

said it was ordering the courtroom cleared “with the exception of the media” and, now, the 

third where the State identifies a grandmother, father, and stepfather specifically. If anything, 

counsel would at this point have had some leverage with which to argue on behalf of specific 

family members if they were of similar relationship to defendant, or at least force the court to 

explain why it was making a distinction. This would only be expected if counsel was sincere 

in his attempt to make a record of an issue defendant might seek to pursue on appeal if 

necessary. 

¶ 74 Along with Benson, I find Priola, 203 Ill. App. 3d 401, instructive. In that case, the 

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

the victim’s testimony. Id. at 419. When discussing the failings of the trial court’s order 

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

case.” Id. Although the Waller criteria per se are not at issue in a closure under section 115-11 

(see Falaster, 173 Ill. 2d at 227), the deficiencies noted by the court in Priola were (1) no 

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

alternatives to closing during the victim’s testimony. Priola, 203 Ill. App. 3d at 419. Nothing 

about that conflicts with what our supreme court found necessary in Holveck or this court in 

Benson. The trial court is still required to provide sufficient reasons to warrant closure and 

needs to make sure its rationale is in the record. The only thing the Benson court criticized 

about Priola was its holding the Waller criteria were to be applied under section 115-11.

¶ 75 While the Second District found the trial court failed to comply with section 115-11, it also 

found the defendant forfeited his argument by failing to object at trial or raise the issue in his 

posttrial motion. Id. at 420. Moreover, the appellate court declined to apply the plain error rule 

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

follows:

“Furthermore, this error did not deprive defendant of a fair trial. The purposes 

served by requiring public trials are encouraging witnesses to come forward, 

discouraging perjury, and helping to ensure that the judge and prosecutor carry out their 

duties in a responsible manner. [Citation.] Since most of the trial was open to the public 

and the media was not excluded from any portion of the trial, we do not believe these 
- 18 -

objectives were seriously compromised by the trial court’s action.” (Emphasis added.) 

Id. at 421.

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

any members of the media to remain. As our supreme court has stated, “ ‘media presence is, 

in effect, the presence of the public.’ ” Falaster, 173 Ill. 2d at 227 (quoting Holveck, 141 Ill. 

2d at 101). Further, the court in Falaster noted how application of section 115-11 did not affect 

a defendant’s sixth amendment right to a public trial. There, the defendant argued the trial 

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

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

Newspaper. The court, citing Benson, found it did not. Id. (stating it agreed “with the State that 

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

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

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

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

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

presence is, in effect, the presence of the public.’ ” Id. (quoting Holveck, 141 Ill. 2d at 101). 

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

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

centers again on whether persons excluded from the courtroom had a direct interest in the case. 

We do not know. The majority cannot say because the record does not indicate who was 

removed. It could have been a parent, a sibling, or a long-lost cousin twice removed. Again, 

we do not know, and it is inappropriate to assume a family member with a direct interest was 

excluded in the absence of any evidence in the record.

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

There, the defendant objected to the State’s request prior to the victim’s testimony to exclude 

all persons except the defendant, his counsel, and a victim counselor. Revelo, 286 Ill. App. 3d 

at 264. At that time, the defendant argued his mother, father, and brothers had a direct interest 

in the case and thus could not be excluded under section 115-11. Id. The trial court allowed 

the media to remain but failed to expressly determine whether the defendant’s mother, father, 

and brothers possessed a direct interest in the case. Id. In finding the court abused its discretion, 

the Second District stated it would not conclude the court’s removal of the defendant’s parents 

and siblings constituted an implicit finding they did not have a direct interest in the case. Id.

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

with the Waller limitations, which we already know to be answered in the negative. The only 

portion of Revelo I would consider relevant to our issue is its citation of Falaster for the finding 

that, since the “media were permitted to attend fully,” “no danger of a closed trial existed.” See

id. at 265. Thus, the Second District also agreed that allowing attendance of the media 

precludes a finding of a sixth amendment violation. What we are left with is a statutory 

violation, which does not warrant structural error analysis.

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

were removed. Here, we are left to speculate that defendant had family members with a direct 

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

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

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

might have impacted the trial court’s ruling, especially in light of the exceptions which had 
- 19 -

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

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

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

certain persons in the courtroom at the time.

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

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

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

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

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

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

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

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

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

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

615.

¶ 81 This same rationale was applied in People v. Radford, 2018 IL App (3d) 140404, 117 

N.E.3d 386, a partial closure case that did not involve section 115-11 and therefore had to be 

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

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

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

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

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

deprived the defendant of a fundamentally fair trial or undermined the integrity of the judicial 

process. Id. ¶ 52 (citing Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967) and People v. Piatkowski, 225 

Ill. 2d 551, 564-65, 870 N.E.2d 403, 410 (2007)). The court went on to point out that “ ‘the 

term “structural error” carries with it no talismanic significance as a doctrinal matter’ ” but 

merely connotes it is not subject to harmless error analysis. Id. ¶ 55 (quoting Weaver, 582 U.S. 

at ___, 137 S. Ct. at 1910). Public trial violations are subject to a “ ‘triviality standard’ ” that 

considers whether the actions of the court and the effect those actions had on the conduct of 

the trial deprived the defendant of the sixth amendment protections of a public trial, namely 

(1) to ensure a fair trial, (2) to remind the prosecutor and the judge of their responsibility to the 

accused and the importance of their functions, (3) to encourage witnesses coming forward, and 

(4) to discourage perjury. Id. ¶ 56. The Radford court referenced Weaver when it said 

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

cured or more thoroughly addressed when a defendant contemporaneously objects to a 

courtroom closure. [Citation.] In other words, without contemporaneous objection, the 

trial court would not likely cure a violation or formally express its findings on the 

record.” Id. ¶ 58. 

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

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

the error or formally express its findings on the record.

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

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

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

structural error, it cannot be presumed simply because the trial court failed to follow the 
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requirements of section 115-11, so long as there was no exclusion of the media. Like in 

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

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

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

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

¶ 83 The majority also finds support in Weaver, 582 U.S. ___, 137 S. Ct. 1899. Weaver dealt 

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

appeal. Id. at ___, 137 S. Ct. at 1906-07. In Weaver, the defendant’s claim was based on 

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

selection due to inadequate seating. Id. at ___, 137 S. Ct. at 1906. Those removed for two days 

of jury selection included the defendant’s mother and her minister. Id. at ___, 137 S. Ct. at 

1906. The Supreme Court found the violation to be structural under federal constitutional 

guidelines (the same guidelines this court held were not implicated by section 115-11 in 

Benson, 251 Ill. App. 3d at 149) but noted even though a public trial violation may constitute 

a structural error, it does not always lead to fundamental unfairness. Weaver, 582 U.S. at ___, 

137 S. Ct. at 1911 (stating “not every public-trial violation will in fact lead to a fundamentally 

unfair trial”). The timing of when the objection was raised or preserving the structural error 

was of significance to the court, since raising it at trial allows the trial court the opportunity to 

remedy the situation, while raising it later within the context of an ineffective-assistance-ofcounsel claim does not. Id. at ___, 137 S. Ct. at 1912.

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

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

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

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

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

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

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

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

defendant’s right to a public trial. I find Weaver instructs us that without a public trial violation, 

which in and of itself does not necessarily equate to fundamental unfairness (the basis for 

automatic reversal without a showing of prejudice), a defendant is not necessarily entitled to 

such relief. The failure of a defendant to adequately preserve his objection at trial, allowing the 

trial court the opportunity to fully address the issue, may preclude him from raising the issue 

later. Further, unlike the majority’s finding, the level of speculation we must engage in to find 

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

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

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

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

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

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

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

be developed in which they can be scrutinized.’ [Citation.]” In re Carmody, 274 Ill. App. 3d 

46, 56, 653 N.E.2d 977, 984 (1995). Whether counsel was deficient in his strategy, whether 

defendant’s family members with a direct interest in the case were actually removed from the 

courtroom during M.L.’s testimony, and whether defendant was prejudiced as a result are 
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matters best left for proceedings under the Post-Conviction Hearing Act (725 ILCS 5/122-1 to 

122-7 (West 2016)). Had defendant identified the persons and were they found to have a direct 

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

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

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

avoid the responsibility of making a reviewable record and yet achieve a reversal where there 

is no evidence the failure to comply in any way deprived the defendant of the sixth amendment 

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

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

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

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

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

inquiry into the identity and relationship of the people present and required defense counsel to 

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

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

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

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

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

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

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