## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Salgado , 2012 IL App (2d) 100945

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. J OSE L . SAL GADO, D efe ndant-Appe llant.

District & N o. Second District Docke t No. 2-10-0945

Filed Marc h 15, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endant’ s conviction for felony domestic battery was reve rsed and the

ca u s e wa s rema

nded for a proper deter

mination of defe ndant’s guilt, wher e the proce dure wher eby defe ndant’s daughter was allowed to testify in t h e judge ’s chambe rs while defe ndant rema ined in the courtroom violated defe ndant’s co n frontation rig ht, and even though the State
argued defe ndant waived his rig ht to be prese nt by agree ing to rema in in the courtroom when his daughter testified, there was no showing that the trial court took car e to ensure that defe ndant understood his confr ontation rig ht and knowing ly

and voluntarily

waived that rig ht.

Dec ision Under Review Appea l from the Circuit Court of Kane County
, No. 10-CF- 401; the Hon. Robert J . Morrow, Judge , presiding

.

J udg ment Reverse d and re manded.Counsel on

Appea l Thomas A. L ilien and Yase min Eken, both of State Appellate Def ender ’s Offic e, of Elg in, for appe llant.

J oseph H. McMahon, State’s Attorney
, of St. C h ar les (L awr ence M. Ba uer and Scott J acobson, both of State’s Attorn ey s Appellate Prosecutor’ s Offic e, of c ounsel), for the People.

Panel J USTI CE SC H O ST O K d e li v e red the judgme nt of the court, with opinion.
J ustices B owman and B urke c oncurr ed in the judg ment and opinion.

OP INION

¶ 1 Def

endant, J ose L

. Salga do, appea ls from his conviction of two counts of Class 4 felony domestic battery (720 I L CS 5/12-3.2(a) (1), (a)(2 ) (W est 2010)). He asser ts that the court violated his rig ht to confr ont one witness ag ainst him when it held part of his trial outside his
prese nce without taking a proper waiver of the confr ontation right. We a g ree that the court violated defe ndant’s confr ontation right. Ba rring a defe ndant from seeing and hearing testimony is an extraordinary limit ation on a defe ndant’s participation in his or her trial. Any
court that contemplates such nonstandard proce eding s must take the g reatest car e to ensure t hat the defe ndant understands his or her right to be prese nt for all testimony and t h at t h e defe ndant is waiving that rig ht knowing ly and voluntarily

. The purported waiver here fell far short of that standard; it was patently insufficient. Moreove r, t h i s was plain err or. We there fore reve rse defe ndant’s convictions and rema nd the cause without addre ssing the other claims of er

ror he has ra ised.

¶ 2 I . BA CKGROUND ¶ 3 A gra

nd j u ry indicted defendant of two counts of C lass 4 felony domestic battery . The
two counts wer e identical, except that in one the theor y of the off ense w as that the c ontact

cause d bodily harm, while in the other the theory was that the contac t was insulti ng or provoking

. The State char g ed the offe nse as a Class 4 felony beca use defe ndant had a prior domestic battery convictio n

. Retained counsel enter ed an appea ranc e for defe ndant. Def endant wa ived his rig ht to a jury

. 1 ¶ 4 Neither party made an opening statement at defe ndant’s trial. The court told the State to call its first witness, and the State responde d, “It is a minor child, so we’ re asking to g o back

One of his cl ai m s of error on app eal is the valid it y of his j ury wai ver, but we nee d not 1 add re ss tha t is sue her e. However, we not e tha t the rul e in Peop le v. Brac ey , 213 I ll

. 2d 265 (20 04)
, re qui re s anew wa iver forany re tr ia l.

-2-into chambe rs.” Th e co u rt said, “All rig ht.” Def ense counsel asked that defe ndant’s handcuf fs be remove d, but the State said, “I thought when we wer e g oing back in chambe rs, I thought this would be outside the prese nce of defe ndant.” The court asked defe nse counsel what his position was, and counsel asked “for a moment with [hi s] client.” The court agree d
to that, and the next thing in the rec ord is defe nse counsel’s st at i n g, “T h e defe ndant will

rema in.” Def

endant was left in the courtroom while the witness, defe ndant’s daughter, niney ear -old Brianna Salg ado, testified in cha mbers. ¶ 5 Br ianna testified that, on the day of the incident, she, her young er brother, and her mother

wer e sleeping in he r mother’s bed. Def endant c ame into the room. B rianna thought that he

was drunk becaus e h e was acting “cr azy ,” but she said he also looked “kind of sleepy .” Initially
, when asked what h ad h ap p ened betwee n her pare nts, she said that defe ndant “pulled” her mom. Asked by the State to explain further
, she s ai d
, “My mom showed me rig ht now. It was like that.” The State then asked whether she had seen what happene d, and she responde d by g rabbing one arm with the other. Def endant then left the room and turned the television on loud. Her older brother
, Br i an , went to see what was happening
, and defe ndant started y elling that Br ian was not his son. Next, defe ndant called the police. Be fore the police c ame, he told Brianna to tell them that Brian or her mother

had hit her. ¶ 6 On cr oss-examination, she sa id that the events took plac e at one or two in the morning and that she ha d been only partially awake. She said that, whe n defe ndant came in, he told her mother to come to the living room. Be fore that, he was s ay i n g “l ies.” She agree d that defe ndant had tried to lift her mother out of bed, but then, when her mother said that she had to work the ne x t day , he lef t her a lone. ¶ 7 The hearing rec onvened in the cour troom, and the State called I liana Ortiz
, the vi ctim. She said that she had been married to defe ndant for 8 y ear s and had lived w ith him for 15. Her testimony was larg ely consistent with Brianna’ s. Her arm h u rt when defenda nt pulled it, and the contac t left a red mark. On cross-e x amination, she did not agree that defe ndant had turned the te levision on loud after le avingthe room. ¶ 8 The office r who responde d to the call testified that Ortiz was visibly upset and had some red “scuf f marks” on her rig ht arm an d ri gh t thigh. Def endant was prese nt and obviously intox icated. ¶ 9 The State rested afte r the office r’s testimony
, and the defe nse then rested also. The court found defe ndant guilty on both c ounts. It la ter sentenc ed him to 18 months’ imprisonment. Def endant filed neither a posttrial nor a postsentencing motion, but he did file a timely notice of appe al.

¶ 10 I I . ANALYSI S ¶ 11 Def

endant ha s raised thre e cla ims of error on appeal. We addr ess only the sec ond: that his exclusion during Br ianna’ s testimony violated his confro n t at i on rig ht. We hold that defe ndant did not proper ly waive his rig ht to be prese nt during Br ianna’ s qu es t i o ning. Moreove r, this was plain er ror. ¶ 12 The court’s underlying err or is simil ar to that discussed by the supreme court in People

v. Lofton
, 194 I ll. 2d 40 (2000), althoug h the err or here resulted in a greater loss of the rig ht

-3-to c onfront a witness. The defe ndant in Lofton was char g ed with pr edator y criminal sexual assault of a child. The State soug ht to have the victim testify via closed-c ircuit television, as section 106B- 5 of the Code o f C ri m i n al Procedur e of 1963 (Code) (725 I L CS 5/106B-5 (West 1996)) permits when the court has made the require d finding s of fac t. The trial court ruled that it could n o t m ak e t h ose finding s, but decide d that, as an acc ommodation to the child, it would rea

rra ng e t h e courtroom so that the child could not see the defe ndant. The

arr ang eme n t al s o preve nted the defe ndant from seeing the child. The defe ndant, unlike defe ndant here
, objected to the arr ang ement contempora neously and raised the matter ag ain in a posttrial motion. Lofton , 194 I ll. 2d at 46-50. ¶ 13 T h e L o

f ton court noted that the Supreme Court, in Maryland v. Craig
, 497 U.S. 836 (1990), had ruled that provisions akin t o s ec t i o n 106B- 5 do not violate the confr ontation claus e o f t h e United S tates C onstitut ion. Lofton
, 194 I ll. 2d at 56-59. Howeve r, because it did not allow the defe ndant to see the witness, the arr ang ement cre ated by the trial court was a har mful violation of the right to confront witnesses: “[T] he trial court’s innovation falls far outside the narr ow and limit ed exception cre ated by Craig

. *** The right to confr ont witnesses includes the right to hear and to view them

as they testify

. [C itation.] *** [W ]hen a defe ndant appea rs by counse l
, the rig ht to confr ont witnesses includes the ability to be of aid in counsel’s cross-e x amination. [C itat i o n.] Her e the defe ndant’s inability to observe the manner of the witness while testifying could have prejudice d h i m b y l i miting his ability to sug g est lines of examination to his attorney that might have been ind i s p en s able to eff ective crossexamination [ citation].” Lofton , 194 I ll. 2d at 59-60. ¶ 14 The “ innovation” under mined the basic pur

poses of a trial: “The unauthorized alternative the trial court fastene d upo n o f p er mitti ng the child witness to testify ag ainst t h e d ef endant barr icade d by podiums limit ed the defe ndant’s ab i l ity to aid in the cross-e x amination of the witness and there by impinged upon the truth-see k i n g p u rpose of the confr ontation clause [citation]

. The novel arr ang ement devised by the trial court, authorize d n either by statute nor by common law, failed to

ensure the reliability of the evidenc e by subjecting it to rig orous adver sarial testing and, thus, failed to prese rve the essenc e of eff ective confr ontation. *** The admission of [t he witness ’s ] t estimony
, g iven under such circ umstances, was incompatible with the confr ontation clause.” Lofton , 194 I ll. 2d at 61. ¶ 15 Be cause the err or violated the defe ndant’s fundame ntal co n s ti tu ti o nal rig hts, and bec ause the State had failed to show that the err or was harmless beyond a rea sonable doubt, the err or

was re versible: “Although confro ntation err ors are constitutional violations, they do not automatically war

rant reve rsal, and a defe ndant’s conviction can be aff irmed if the court is able to concl u d e t h e err or was harmless beyond a rea sonable doubt. [C itation.] Howeve r, such err or cannot be considere d harmless unless the State has proved beyond

a rea sonable doubt that the err or did not contribute to the finding of guilt. [C itations.] The State has confine d its arg ument to the theory t h at t h e trial court’s innovative

arr ang ement of the courtroom did not infring e upon defe ndant’s rig ht of confr ontation.

-4-*** Thus, the State has failed to satisfy its burden of showing beyond a rea sonable doubt that the er ror did not contribute to the guilty verdic t.” Lofton , 194 I ll. 2d at 61-62. ¶ 16 Her e, for Brianna’ s testimony
, the deprivation of the rig ht to confr ontation was total, as defe ndant was unable even to he ar the testimony

. The State, howeve r, asser ts that the rig ht
at i s s u e is mere ly the rig ht to be prese nt at trial, which derive s from the fourtee nthamendment due-pr ocess rig ht, and not the more funda m en t al confr ontation rig ht. This
argument is an ineffe ctual sidestep. The rig ht to be prese nt at trial “is not itself a substantial rig ht under the I llinois Constitution” but is rathe r a “lesser right the observa nce of which is

a means to securing the substantial rig hts of a defe ndant.” People v. Bean
, 137 I ll. 2d 65, 80- 81 (1990). “Some of these substantial rig hts a re the right to confront witnesses
, the rig ht to prese nt a defe nse, and the right to an impartial jury .” (Emphasis added.) Bean
, 137 I ll. 2d at 81. Thus, when a court improperly denies a defe ndant the opportunity to be prese nt at trial, the question become s whether the absenc e impaired a substantial rig ht. See Bean
, 137 I ll. 2d at 82. When the defe ndant is a bsent for the questioning of a witness, the loss is of the rig ht to confront that witness, a nd a re viewingcourt must analy ze the issue acc ording ly

. ¶ 17 The S tate argues that defendant waived hi s rig ht to be present for Br i an n a’s testimony by agree ing to be left in the cour troom. We disagr ee. The waiver plainly was not proper a s nothing i n the record shows that defe ndant understood that he had a right t o be present. I n People v. Stroud
, 208 I ll

. 2d 398, 409 (2004), the supreme court discussed what kind of waiver due process require s for a defe ndant to proper ly g ive up his or her rig ht to be phy sically prese nt at a guilty plea hearing, appea ring instead by video link. The court noted that prese nce by video lin k i s b ett er than no prese nce at all, but that it was not a g ood equivalent:
“ ‘In a televised appea

ranc e, cruc ial aspec ts of a defe ndant’s phy sical prese nce may be lost o r mi s interpre ted, such as the participa nt’s demea

nor, fac ial expressions and vocal inflections, the ability for immediate and unmediated contac t with counsel, and the solemnity of a court proce eding

. In a guilty plea hearing, as in a trial, these components may be lost if a defe ndant’s appea ranc e is throug h closed circ uit televis i o n .’ ” Stroud
, 208 I ll. 2d at 407 (quoting People v . Guttendorf , 309 I ll. App. 3d 1044, 1047 (2000)).
Moreove r, “ ‘[t] he atmosphere of the courtroom can play a critica l, albeit intang ible, role in the proce eding s, including a hearing on a plea.’ ” Stroud
, 208 I ll. 2 d at 4 0 7 (q uoting Guttendorf

, 309 I ll. App. 3d at 1046). Be cause of these eff ects, and beca

use the guilty plea heari n g i s t he crux of t he procee ding, requiring a defenda nt to appea

r at such a hearing by video link impairs his or her substantial rights. Stroud
, 208 I ll. 2d at 409. The Stroud court there fore held that “a

defe ndant’s appe ara

nce at a guilty

plea pr ocee ding via

closed-c ircuit television is constitutionally permissible only if the defendant waives the right to physical
presenc e on the record after being advised of his right to be p r es en t .” (Emphasis added.) Stroud
, 208 I ll. 2d at 409. A defe ndant’s absenc e during the questioning of a centr al witness is, we submi t, a gre ater impingeme nt on a defenda nt’s substantial rig hts. The waiver must be at lea st as clea

r. ¶ 18 The waiver here did not come close to meeting this standard. All the rec ord tells us is that counsel, who seems to have rea cted to the State’s proposed arr ang ement with understanda ble

-5-surprise, had a mom ent t o speak to defe ndant. We doubt that counsel could ex temporize a

full admonishment of the rig ht to be prese nt. Only with a rec ord of a knowing and voluntary waiver can we be cer

tain that t h e co u rt h as respe cted a defe ndant’s rights. No such record exis ts here. ¶ 19 The State argues that we should draw the waiver s t an d ar d from two other classes of

case s: (1) those conce rning when defe ndants can forf eit the rig ht to rema in in the courtroom by misbehavior; and ( 2) those concer ning agree ment to stipul ated testimony . Neither class of ca ses sug g ests to us that the waiver here was prope r. ¶ 20 A defe ndant can, by “conduc ting himself in a m an n er s o disorderly
, disruptive, and disr espectful of the court that his trial cannot be car ried on with him in the courtroom,” forf eit the right to be prese nt in the courtroom. Illinois v. All en , 397 U.S. 337, 343 (1970). Howeve r, even when a defe ndant is disruptive, “cour ts must indulge ever

y rea sonable presumption ag ains t the loss of constitutional rig hts.” Allen
, 397 U.S. at 343. Her e, defe ndant

was not disrup t i v e, s o he did not forf eit his confr ontation rig ht. Fur ther, the court took no particula r car e to ensure that defe ndant understood that he had the rig ht to be prese nt during Br ianna’ s testimony
, and thus i t did not indulge ever y rea sonable presumption ag ainst the loss of the right. ¶ 21 We agree with the State that a defe ndant can, when d ef en s e co u n s el agr ee s to the admission of stipulated testimony
, waive his or her confr ontation rig ht as to that testimony

. People v. Campbell
, 208 I ll. 2d 203, 215 (2003). Howeve r, we deem the rea soning in Stroud
to be more appropr iate here

. The loss of the confr ontation rig ht by way of stipulation is a loss of very limit ed scope. By the nature of a stipulation, both parties know in advanc e prec isely what the finder of fac t is g oin g t o h ea r an d the manner in which it will be prese nted. The dy namics are profoundly differ ent from those with a live witness: the defe ndant h as n o particula r need to interac t with defe nse counsel contempora neously

. Wit h live testimony
, a defe ndant’s abilit y to see and to interac t with counsel is critica l, and the damag e from that loss is unknowable. I f due proce ss re qu i re s a knowing and voluntary waiver for a videolinked guilty

plea he aring , such a waiver is even more necessar y when a defe ndant wil l be completely

absent duringlive testimony

. ¶ 22 Def

endant did not raise this claim in the trial cour t. Howeve r, t he error is reve rsible as plain err or. “The plain-er

ror doctrine *** allows a revie wing court to rea ch a forf eited err or aff ecting substantial rig hts in two circumstances.” People v. Herron
, 215 I ll. 2d 167, 178 (2005). The first is when the evidenc e is closely balanc ed. Second
, “w h er e the err or is so seri o u s that the defe ndant was denied a substantial rig ht, and thus a fair trial, a revie wing
court may consider a forf

eited err or in order to prese rve the integ rity of the judicial proce ss.” Herron , 215 I ll. 2d at 179. The second ty pe of err or is pr esent here

. The supreme court ha s stated that a defe ndant’s absenc e from a courtroom is plain err or only when it deprive s him

or her of “an underlying substantial rig ht, in other words, a constitutional right.” Bean
, 137 I ll. 2d at 81. As we previously noted, the rig ht to confr ont witnesses is such a substantial rig ht. Bean
, 137 I ll. 2d at 81. In People v. Caruth
, 322 I ll. App. 3d 226, 229 (2001), a Third District panel held that, in “proc eeding s implicating the u l t i m ate decision of guilt or innocenc e, a defe ndant’s appear ance solely by closed circuit television may be considered plain err or, reg ardle ss of the streng th of the State’s evidenc e.” A complete absenc e without

-6-a proper waiver is a far more serious deprivation than a prese nce solely by video link. What

occur red he re w as not only

plain err or, it was plainlyplain err or.

¶ 23 I I I . CONCLUSI ON ¶ 24 For

the re asons stated, we r ever se def endant’ s convictions and re mand the matter for a
proper deter mination of defe ndant’s guilt or lack there of.

¶ 25 Reverse d and re manded.

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