ILLINOIS OFFICIAL REPORTS

Appellate Court

People v. Young, 2013 IL App (4th) 120228

Appellate Court

Caption

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

MICHAEL S. YOUNG, Defendant-Appellant.

 District & No. Fourth District

Docket No. 4-12-0228

Filed

Rehearing denied

September 11, 2013

November 5, 2013

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

Defendant’s convictions for three counts of aggravated criminal sexual

abuse were upheld over his contentions that his right to be present during

a “critical stage” of his trial was violated when the recordings of the

victims’ interviews were reviewed by the trial court outside defendant’s

presence and that his motion to suppress his confession was improperly

denied because he invoked his right to counsel, since the court’s review

of the recordings was not a critical stage of defendant’s trial, defendant

was present at all critical stages, defense counsel waived any objection to

the court’s review of the recordings, and the record supported the trial

court’s findings that the statements defendant made at the time of his

confession were merelymusings about what would happen if he asked for

an attorney and that he did waive his right to counsel rather than invoke

that right. 

Decision Under 

Review

Appeal from the Circuit Court of Livingston County, No. 10-CF-135; the

Hon. Jennifer H. Bauknecht, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Michael J. Pelletier, Karen Munoz, and Duane E. Schuster, all of State

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

Seth Uphoff, State’s Attorney, of Pontiac (Patrick Delfino, Robert J.

Biderman, and Luke McNeill, all of State’s Attorneys Appellate

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

Panel PRESIDING JUSTICE STEIGMANN delivered the judgment of the

court, with opinion. 

Justices Pope and Holder White concurred in the judgment and opinion.

OPINION

¶ 1 Following a November 2011 bench trial, the trial court convicted defendant, Michael S.

Young, on three counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i)

(West 2010)). The court found that during three separate incidents, defendant caused two

minor girls to rub their hands on his penis for the purpose of defendant’s sexual gratification.

For that conduct, the court sentenced defendant to eight years in prison.

¶ 2 Defendant appeals, arguing that the trial court (1) violated his constitutional right to be

present during the critical stages of his trial when the court considered digital video disc

(DVD) recordings of the victims’ interviews outside of his presence and (2) erred by denying

his motion to suppress his confession, given that he invoked his right to counsel. Because the

record shows that defendant (1) was present at all critical stages of his trial and (2) waived

his right to counsel, we affirm.

¶ 3 I. BACKGROUND

¶ 4 A. The State’s Charges

¶ 5 In June 2010, the State charged defendant with three counts of aggravated criminal sexual

abuse (720 ILCS 5/12-16(c)(1)(i) (West 2010)). The State alleged that defendant–who was

30 years old at the time–(1) caused a seven-year-old girl to rub his penis for defendant’s

sexual gratification and (2) caused a nine-year-old girl to rub his penis on two separate

occasions for defendant’s sexual gratification.

¶ 6 B. The State’s Section 115-10 Motion and the Subsequent Hearing

¶ 7 Defendant’s case proceeded to an October 13, 2010, hearing on the State’s motion to

admit the child victims’ out-of-court statements under section 115-10 of the Code of

Criminal Procedure of 1963 (725 ILCS 5/115-10 (West 2010)(permitting hearsaystatements

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of a child victim under the age of 13 as substantive evidence in, among others, cases

involving sex crimes)). Defendant was present at that hearing, and the State presented

testimony from the children’s mother and two other witnesses about the out-of-court

statements. The State also submitted as exhibits (1) the DVD interviews of the children and

(2) a written transcript of the content of the DVDs. Shortly thereafter, the State suggested

that, due to time constraints, the court review the DVDs at its leisure. Turning to defense

counsel, the court asked whether counsel wanted to “view the[ ] DVDs in open court or

[whether] there [was] an objection if [the court] view[ed] them and [came] back for a

ruling?” Defense counsel responded, as follows:

“Your Honor, Iwould just like the opportunity to argue. [I]t does not matter when the

Court reviews them. I’m not asking that they are reviewed right now. I just would like

an opportunity to argue, and I can put it in writing or we can come after[ward].”

¶ 8 When defendant’s section 115-10 hearing resumed on October 29, 2010, the State

indicated that the child victims would be available to testify. After considering the evidence

presented, including the DVDs–which the trial court had reviewed on its own–the court

found the children’s out-of-court statements admissible under section 115-10.

¶ 9 C. Defendant’s Motion To Suppress His

Confession to Police and the Subsequent Hearing

¶ 10 In February 2011, defendant filed a motion to suppress his confession. At the April 2011

hearing on defendant’s motion, the parties presented testimonyfrom the investigating officer

and defendant.

¶ 11 Sergeant Jeffrey Hamilton testified that he questioned defendant several days after the

events that gave rise to the charges in this case. Hamilton explained that before doing so, he

advised defendant of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and

defendant waived his right to have counsel present during questioning. Defendant also

initialed and signed a written waiver of his Miranda rights. (That waiver was introduced into

evidence at the hearing.) Hamilton said that defendant did not request to speak with a lawyer

or to have a lawyer present for questioning.

¶ 12 Defendant testified that he did ask to speak to a lawyer. Defendant claimed that when he

asked to speak to a lawyer, Hamilton replied that he would consider that “being

uncooperative with the State.” Defendant said that when Hamilton continued to interrogate

him, he was left with the impression that he could not ask for a lawyer after that point.

¶ 13 Hamilton’s report, which included defendant’s confession and was admitted into

evidence, stated, in part, as follows:

“[Defendant] asked if it would be considered uncooperative if he would want to

continue this with his attorney present. I explained to him that once he steps off the path

of cooperation I can no longer help him. [Defendant] said that is understandable.

[Defendant] said what he was asking if that would be considered not being cooperative.

I told him I could not say that without contacting the State’s Attorney’s office. I advised

him that the State’s Attorney’s office and his kids want the truth.”

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¶ 14 On this evidence, the trial court denied defendant’s motion to suppress his confession,

finding, as follows:

“The Defendant [has] a reason to lie. He is facing some pretty serious charges, is

aware at the time that he’s testifying that there’s no DVD that’s going to be able to

corroborate one way or the other the statements, the request for an attorney whether it

was made or not made.

The Defendant’s recollection of the interview was pretty vague except when he

wanted to point fingers at what *** Hamilton apparently allegedly did wrong. I’m not

quite frankly convinced that the Defendant saying I would like to speak to an attorney

alone and then continuing to answer questions is sufficient to invoke Miranda. I believe

there’s cases out there that suggest that there has to be something more than just a mere

statement. There has to be something in addition to that. I’m pretty sure that that’s the

case. But even so, I’m not convinced that the Defendant even asked for an attorney. 

I don’t find the Defendant to be as credible of a witness as *** Hamilton for the

reasons I think I’ve already set forth. The Defendant does have reasons to lie. The

Defendant is facing some pretty serious charges here. *** [T]here is absolutely nothing

in th[e] report suggesting that the Defendant asked for an attorney.

So I find *** Hamilton’s testimony to be more credible than that of the Defendant’s

on the issue of whether or not the Defendant asked for an attorney; and as a matter of

fact, I find that the Defendant did not ask for an attorney during the interview process.”

¶ 15 D. Defendant’s Trial and Subsequent Sentence

¶ 16 Following a November 2011 bench trial, the trial court convicted defendant on all three

counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 2010)). The

court thereafter sentenced defendant to eight years in prison on each count and ordered those

sentences to run concurrently.

¶ 17 This appeal followed.

¶ 18 II. ANALYSIS

¶ 19 Defendant argues that the trial court (1) violated his constitutional right to be present

during the critical stages of his trial when the court considered the DVD recordings of the

victims’ interviews outside of his presence and (2) erred by denying his motion to suppress

his confession, given that he invoked his right to counsel. We address defendant’s

contentions in turn.

¶ 20 A. Defendant’s Claim Related to the DVD Recordings

of the Victims’ Interviews

¶ 21 Defendant first contends that the trial court violated his constitutional right to be present

during the critical stages of his trial when the court considered the DVD recordings of the

victims’ interviews outside of his presence. We disagree.

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¶ 22 Initially, we note that defendant affirmatively waived any challenge to the trial court

viewing the DVDs outside of his presence. People v. Dunlap, 2013 IL App (4th) 110892,

¶ 12 (“When *** defense counsel affirmatively acquiesces to actions taken by the trial court,

a defendant’s onlychallenge maybe presented as a claim for ineffective assistance of counsel

on collateral attack.”). Apparently, defendant’s position is that we should review his

contention because defense counsel could not waive his right to be present at such a critical

stage of his trial. Because, as we will explain, the trial court’s viewing of the DVDs was not

a “critical stage” of defendant’s trial, we conclude that (1) defendant has affirmatively

waived his claim that the court erred by reviewing the DVDs outside of his presence and (2)

we need not review that claim further. See Dunlap, 2013 IL App (4th) 110892, ¶ 12 (plain

error does not apply to issues that have been affirmatively waived).

¶ 23 A criminal defendant has a right to be present at every critical stage of his trial. More

specifically, a defendant has a “right to be present at any stage of the criminal proceeding that

is critical to its outcome if his presence would contribute to the fairness of the procedure.”

People v. Lofton, 194 Ill. 2d 40, 67, 740 N.E.2d 782, 797 (2000) (citing Kentucky v. Stincer,

482 U.S. 730, 745 (1987), and Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934)).

However, a defendant’s presence is not required “ ‘when presence would be useless, or the

benefit but a shadow.’ ” Lofton, 194 Ill. 2d at 67, 740 N.E.2d at 797 (quoting Snyder, 291

U.S. at 106-07). The touchstone of this analysis is “whether the defendant’s presence at the

proceedingwould have contributed to his opportunity to defend himself against the charges.”

Id., 740 N.E.2d at 798. Whether a stage of trial is a “critical stage” is a question of law that

we review de novo. See id. (determining whether a section 115-10 hearing was a “critical

stage” by reviewing “[t]he justice or injustice of the exclusion of the defendant *** in the

light of the whole record”).

¶ 24 Here, no question exists that the section 115-10 hearing was a critical stage and that

defendant had a right to attend that hearing in person. See Lofton, 194 Ill. 2d at 67, 740

N.E.2d at 797 (holding that a section 115-10 hearing was a “critical stage”). The record

shows, and defendant concedes, that he attended the section 115-10 hearing in this case.

Defendant’s claim is that he was entitled to be present when the trial court viewed the DVDs

of the victims’ statements. The problem with defendant’s position in this regard is that his

presence during the viewing of those DVDs would have been useless because defendant’s

presencewould not have contributed to his opportunityto defend himself against the charges.

Defendant was present for the proceedings leading up to the review of the DVDs and was

later present for his counsel’s arguments related to whether the statements from those DVDs

should be admitted. Defendant’s not being present while the court watched and listened to

those DVDs did not amount to an absence from a critical stage of the proceedings. In short,

the court’s watching and listening to the DVDs was not a “critical stage” of defendant’s trial.

The critical stage here was the portion of the section 115-10 hearing that provided defendant

the opportunity to defend his position that the statements from those DVDs were

inadmissible. See People v. Stroud, 208 Ill. 2d 398, 405, 804 N.E.2d 510, 514 (2004)

(concluding that even when a defendant has the right to be present because the proceeding

is a “critical stage,” a defendant’s absence is not a per se constitutional violation–indeed, a

defendant’s absence from such a proceeding will violate his constitutional rights “ ‘only if

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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’ ” (quoting People v. Lindsey,

201 Ill. 2d 45, 57, 772 N.E.2d 1268, 1276-77 (2002))). The record in this case clearly shows

that defendant was present during the vital, or “critical,” portion of the hearing.

¶ 25 Because the trial court’s viewing of the DVDs did not constitute a “critical stage” of

defendant’s trial, we conclude that defendant has affirmatively waived his claim that the

court erred by reviewing the DVDs outside of his presence. Counsel’s waiver is effective,

of course, because it did not involve a waiver a fundamental right. The United States

Supreme Court, in a case involving defense counsel’s consenting to a magistrate judge

presiding over jury selection, explained that a defendant is bound by his attorney’s waiver,

as follows:

“ ‘What suffices for waiver depends on the nature of the right at issue. “[W]hether

the defendant must participate personally in the waiver; whether certain procedures are

required for waiver; and whether the defendant’s choice must be particularly informed

or voluntary, all depend on the right at stake.” United States v. Olano, 507 U.S. 725, 733

(1993). For certain fundamental rights, the defendant must personallymake an informed

waiver. See, e.g., Johnson v. Zerbst, 304 U.S. 458, 464-465 (1938) (right to counsel);

Brookhart v. Janis, 384 U.S. 1, 7-8 (1966) (right to plead not guilty). For other rights,

however, waiver may be effected by action of counsel. “Although there are basic rights

that the attorney cannot waive without the fully informed and publicly acknowledged

consent of the client, the lawyer has–and must have–full authority to manage the conduct

of the trial.” Taylor v. Illinois, 484 U.S. 400, 417-418 (1988). As to many decisions

pertaining to the conduct of the trial, the defendant is “deemed bound by the acts of his

lawyer-agent and is considered to have ‘notice of all facts, notice of which can be

charged upon the attorney.’ ” Link v. Wabash R. Co., 370 U.S. 626, 634 (1962) (quoting

Smith v. Ayer, 101 U.S. 320, 326 (1880)). Thus, decisions by counsel are generally given

effect as to what arguments to pursue, see Jones v. Barnes, 463 U.S. 745, 751 (1983),

what evidentiary objections to raise, see Henry v. Mississippi, 379 U.S. 443, 451 (1965),

and what agreements to conclude regarding the admission of evidence, see United States

v. McGill, 11 F. 3d 223, 226-227 (CA 1 1993). Absent a demonstration of

ineffectiveness, counsel’s word on such matters is the last.’ Ibid.” Gonzalez v. United

States, 553 U.S. 242, 248-49 (2008) (quoting New York v. Hill, 528 U.S. 110, 114-15

(2000)).

¶ 26 Having concluded that (1) defendant personally appeared at all critical stages of his trial

and (2) he is bound by his counsel’s decision to waive any objection to the trial court’s

viewing the DVDs outside of defendant’s presence, we turn to defendant’s claim that the

court erred by denying his motion to suppress his confession.

¶ 27 B. Defendant’s Claim That the Trial Court Erred by

Denying His Motion To Suppress His Confession

¶ 28 Defendant next contends that the trial court erred by denying his motion to suppress his

confession, given that he invoked his right to counsel. Defendant posits that the court’s

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factual finding that defendant did not request counsel was incorrect as a matter of law. We

disagree.

¶ 29 1. The Standard of Review

¶ 30 When reviewing a trial court’s ruling on a motion to suppress, we employ a bifurcated

standard of review, “reviewing a trial court’s factual findings under a manifest weight of the

evidence standard of review but applying a de novo standard of review to the ultimate

question whether the evidence should be suppressed.” People v. Harper, 2012 IL App (4th)

110880, ¶ 22, 969 N.E.2d 573.

¶ 31 2. The Trial Court’s Factual Findings

¶ 32 Here, Hamilton testified that defendant did not request to speak with a lawyer or to have

a lawyer present for questioning. Defendant testified that he did ask to speak to a lawyer.

Hamilton’s report indicated that defendant asked whether “it would be considered

uncooperative if he would want to continue this with his attorney present.” The report

showed that Hamilton replied by explaining to defendant that “once he steps off the path of

cooperation [Hamilton could] no longer help him” and that defendant said that he understood

that. The report further showed that defendant said that he was asking if invoking his right

to counsel would be considered “not being cooperative” and that Hamilton told him that “he

could not say that without contacting the State’s Attorney’s office.” On this evidence, the

trial court specifically found Hamilton credible.

¶ 33 A reasonable reading of the trial court’s ruling indicates that the court found (1)

defendant’s statements merely reflected defendant’s musings about what would happen if he

were to invoke his right to counsel and (2) those musings were insufficient to invoke his right

to counsel. Our review of the record reveals that the trial court’s findings in that regard were

not against the manifest weight of the evidence. See In re Guardianship of K.R.J., 405 Ill.

App. 3d 527, 536, 942 N.E.2d 598, 605 (2010) (A finding of fact is only against the manifest

weight of the evidence when, “ ‘upon review of all the evidence in the light most favorable

to the prevailing party, an opposite conclusion is clearly apparent or the fact finder’s finding

is palpably erroneous and wholly unwarranted, is clearly the result of passion or prejudice,

or appears to be arbitrary and unsubstantiated by the evidence.’ ” (quoting Joel R. v. Board

of Education of Mannheim School District 83, 292 Ill. App. 3d 607, 613, 686 N.E.2d 650,

655 (1997)).

¶ 34 3. The Ultimate Question of Suppression

¶ 35 Having concluded that the trial court’s finding that defendant’s musings about what

would happen if he invoked his right to counsel was not against the manifest weight of the

evidence, the ultimate question of whether the trial court erred by denying defendant’s

motion to suppress is an easy one to answer. It did not.

¶ 36 Here, Hamilton provided defendant Miranda warnings, defendant did not verbally invoke

his right to counsel, and defendant signed a written waiver. This is sufficient to support a

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valid Miranda waiver. Accordingly, we conclude that the trial court did not err by denying

defendant’s motion to suppress his post-Miranda confession.

¶ 37 III. CONCLUSION

¶ 38 For the reasons stated, we affirm the trial court’s judgment. As part of our judgment, we

award the State its $50 statutory assessment as costs of this appeal.

¶ 39 Affirmed.

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