2023 IL App (1st) 210754

SIXTH DIVISION Filing Date June 23, 2023

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

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

JUSTICE ODEN JOHNSON delivered the judgment of the court, with opinion. Justice C.A. Walker concurred in the judgment and opinion. Justice Tailor concurred part and dissented in part, with opinion. OPINION ¶1 Following a bench trial, defendant Yecary Harris was convicted of first degree murder and sentenced to a 50-year prison term. On appeal, defendant raises the following constitutional issues: (1) his trial counsel was ineffective for failing to call an expert on eyewitness testimony and failed to disclose a potential conflict of interest, (2) he received an insufficient Krankel hearing where the trial court did not allow defendant to present rebuttal evidence (see People v. Krankel, 102 Ill. 2d 181 (1984)), and (3) the trial court failed to get defendant’s waiver for No. 1-21-0754 in-person hearings before holding his motion for new trial and sentencing hearings on Zoom without counsel being in the same location as defendant. For the reasons that follow, we affirm defendant’s conviction and remand for a new sentencing hearing. ¶2 I. BACKGROUND ¶3 A. Trial Proceedings ¶4 Defendant’s conviction stems from the shooting death of Christopher Thomas (the victim) on December 30, 2012. He was initially charged with six counts of first degree murder and two counts of aggravated fleeing or attempt to elude a peace officer. Codefendant Rodney Harris 1 was charged with two counts of aggravated fleeing or attempt to elude a peace officer. Defendant proceeded to a bench trial in 2016. ¶5 During opening statements, defendant’s trial counsel, Steven Murphy, argued that the evidence would show that defendant acted “reasonably and justifiably.” Attorney Murphy stated that defendant was unarmed, intended to purchase marijuana from the victim, and during negotiations, showed the victim $780. The victim lunged at defendant, and defendant ran to the gas station where codefendant Harris was located because he thought that he was going to be beaten and robbed by the victim. Murphy further argued that codefendant Harris took off, there was a chase, and an accident occurred, before the car flipped. ¶6 The State presented the testimony of three witnesses at trial. ¶7 Albert Williams testified that on December 30, 2012, at approximately 5 p.m., he was working at Hyde Park Liquors located at 51st Street and Indiana Avenue in Chicago. James Banks was also working that day, and they were unloading deliveries. Williams testified that

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“certain people” would come and “hang out” at the store. The victim was at the store that day, talking to Williams and Banks. Williams saw defendant enter the store and begin talking to the victim. Williams described defendant as wearing a blue short-sleeve shirt and blue jeans.

Defendant asked Williams where he could buy cigarettes and marijuana and Williams told him he could get those items from Banks, who was selling drugs inside of the liquor store.

Defendant told the victim that he did not want to buy marijuana inside the store because of the cameras, and they subsequently left the store together and walked down the street. ^[2] During trial, Williams narrated video surveillance footage from inside the store and identified everyone in the video, which showed defendant and the victim leave the store together.

¶8 Shortly thereafter, Williams left the store to pick up food from the restaurant next door, which was across the street from a Citgo gas station. While standing outside of the restaurant, he saw defendant and the victim talking on the other side of the restaurant, approximately 20 feet away. Although it was dark outside, Williams clearly saw defendant and the victim, as nothing blocked his view. Williams saw the victim remove his maroon leather coat, and then defendant shot the victim. Williams testified that the victim’s coat had a bullet hole in it because the victim never fully removed it. Instead of running, the victim tried to grab

defendant’s gun, and Williams stated that was how defendant shot him through the coat. The victim fell down, and defendant shot him again. Williams got on the ground because defendant was just “shooting around.” Williams heard about six or seven additional shots. Williams did not see the victim with a weapon and did not see any physical altercation between the victim and defendant. After the shooting, defendant jumped over Williams and ran to the corner.

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

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Defendant put the gun in his waistband, crossed the street, and entered the passenger side of a silver car in the Citgo parking lot. People were screaming that “he shot Mad Dog.” 3 The police arrived within one minute and went to the gas station. Meanwhile, Williams saw the silver car head east on 51st Street. Later that night, Williams identified defendant in a lineup as the shooter.

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

Avenue at around 5 p.m. It was still light outside but was getting dark. He was walking towards the restaurant when he heard five or six shots and saw a man shoot another man. Braxton stated that he saw the shooter’s face and identified defendant in court as the man who shot the victim.

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

After being shot, the victim fell to the ground, and defendant ran across the street and got into a car. Braxton stated that he continued watching defendant because he had a gun and he saw defendant stuff the gun in the back of his waistband. When the police arrived, Braxton told

them that defendant got into a car. Braxton further testified that there were no weapons on the ground near the victim and the victim did not have anything. Additionally, Braxton went over to the victim, as the victim “took his last breath.” Braxton subsequently went to the police station, told detectives what happened, viewed a lineup, and identified defendant, who he indicated had “d[one] a murder just gunned down somebody in cold blood.”

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

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

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“gangbanged.”

¶ 11 Anthony Freeman testified that he was on his way to the liquor store on December 30, 2012, when he saw two men talking nearby. He saw one of the men pull out a gun and shoot the other man at least two times. The victim fell on the ground, and the man shot him again.

Freeman started “backtracking” and fell in the grass. Freeman did not see either man’s face, and the victim’s back was to Freeman. Freeman stated that it did not look like the men were fighting.

¶ 12 Chicago police officer James Atkinson testified that, at the time of the shooting, he was in uniform and in a marked squad car monitoring traffic approximately one block east of the liquor store. After hearing several gunshots in the area, he notified dispatch and drove towards

the liquor store. When he arrived, Braxton pointed to a silver Chrysler at the gas station as the car where the shooter was. After activating his emergency lights, Atkinson went to the gas station and pulled behind the silver Chrysler, which had two people inside. Chicago police

officer Bobby Tong also responded to the scene and tried to block the Chrysler. However, the driver of the silver Chrysler left the gas station and drove east on 51st Street. Atkinson, Tong, and subsequently Sergeant Jacob Alderden pursued the vehicle.

¶ 13 Atkinson testified that the silver Chrysler entered the Dan Ryan Expressway and the officers continued the high speed pursuit until the vehicle exited at 43rd Street. Atkinson was unable to exit at that location because he was going too fast. The silver Chrysler crashed into

another vehicle, as its driver tried to exit the expressway. The Chrysler hit the other vehicle, causing the other car to flip over a couple of times before it landed in front of Atkinson’s car on the expressway. After making sure that the civilians were okay following the crash, 210758

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

codefendant. The State then published a video clip of the Citgo gas station from December 30, 2021, before and after the shots were fired.

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

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

Avenue, when he heard five or six gunshots from the west. He drove towards the gunshots and was flagged down by Braxton. Tong spoke with Braxton and, based on that conversation, Tong drove towards Indiana Avenue, where he saw Atkinson behind a gray Chrysler sedan. After

activating his emergency lights, Tong drove directly in front of the Chrysler. He stopped and exited his vehicle with his gun drawn; however, the driver of the Chrysler swerved around him

and headed towards the Dan Ryan Expressway. Tong and Atkinson pursued the Chrysler and Tong never lost sight of the Chrysler during the chase. The Chrysler struck the rear of another vehicle on a ramp, which flipped down the embankment onto the expressway. Defendant exited the Chrysler and ran towards the fence line towards La Salle Street, which was up the exit ramp. Tong chased defendant up the ramp on foot towards La Salle. Tong arrested defendant approximately 60 to 90 seconds after the crash. The driver of the Chrysler was also detained.

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

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

Tong later learned that a gun was recovered from the area of 5604 South Wabash Avenue, a location passed during the pursuit of the Chrysler.

¶ 17 Sergeant Alderden testified that he assisted in the pursuit of the Chrysler onto the expressway. The Chrysler went through stop signs without stopping, and the officers had to

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weave in and out of traffic and exceed the speed limit to keep up with the Chrysler on the expressway. Alderden testified about the accident when the Chrysler attempted to exit at 43rd

Street, after which he parked his vehicle on the express lanes and ran across the local lanes on foot. The driver of the Chrysler, codefendant, ran to the rear of the car, and the officers arrested him. Alderden saw someone run from the passenger side of the car, but he was unable to identify the person.

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

Terrence Morris at the time of the shooting, and they joined in the pursuit of the Chrysler at the base of the expressway at 47th Street. He saw the Chrysler have an accident at the 43rd

Street exit, and both the driver and passenger exited the vehicle. Downey’s police vehicle was equipped with a camera that captured his pursuit of the Chrysler, as well as defendant exiting the vehicle before fleeing. The dashcam video was published to the court.

¶ 19 Officer Morris testified substantially similar to Downey. Additionally, Morris testified that he chased defendant for a half block after defendant ran up the side of the expressway.

Defendant then ran along the fence and climbed it. Morris ran alongside the fence until it ended, ran around it, and faced defendant. Tong then arrested defendant. Morris viewed dashcam video of defendant’s pursuit, which was published to the court. Morris testified that the video

showed the Chrysler speeding past his police vehicle, attempting to exit at 43rd Street, and striking another vehicle. It also showed defendant exiting the vehicle, according to Morris.

¶ 20 Officer Kevin Kilroy testified that he was on duty at the time of the shooting. When he arrived, he learned that the gun was not recovered, and he was given the path of the pursuit.

Kilroy then retraced the route with other officers. When he drove past an apartment building at 5604 South Wabash, he found a 9-milimeter Luger in the parkway approximately an hour

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No. 1-21-0754 after the shooting. Kilroy notified dispatch, secured the scene, and waited for the evidence technician.

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

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

Indiana Avenue at 5:45 p.m. to process a crime scene. He saw a deceased man lying on the sidewalk and he also recovered 10 fired cartridge cases, fired bullets, metal fragments, two cell phones, and narcotics from the scene. Two of the fired bullets and one metal fragment were recovered under the victim’s body, which Judeh testified meant that someone stood over him and shot into his body. Only one of the victim’s arms was inside his jacket, so it appeared he

was removing his jacket when killed. Judeh then proceeded to 3959 South La Salle Street, where he saw two vehicles with extensive damage. He then went to 5604 South Wabash

Avenue, where he recovered a two-tone Luger 9-milimeter semi-automatic handgun from the parkway. Judeh took swabs from the gun and sent them to the lab for analysis.

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

¶ 24 They stipulated that Illinois State Police forensic scientist Debra Kebasha would testify that she received the swabs taken from the firearm. There was a mixture of at least three human

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

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

¶ 26 The parties also stipulated that Officer Steven Swain would testify that on December 30, 2012, he conducted gunshot residue testing on defendant and codefendant and sent the gunshot residue kit to the Illinois State Police Forensic Science Center for testing and analysis.

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¶ 27 They further stipulated that Illinois State Police forensic scientist Ellen Chapman would testify that she received the gunshot residue kit administered to defendant and it was her

opinion that defendant may not have discharged the firearm or that if he did discharge the firearm, the particles were removed by activity, were not deposited, or were undetected by the procedure.

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

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

Dr. Cina’s examination revealed three gunshot entrance wounds to the left side of the victim’s upper back, one gunshot entrance wound to his left midback, one entrance wound to his left arm, one entrance wound to his right midback, and two entrance wounds to his right arm. Dr.

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

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

The trial court denied the motion.

¶ 30 The trial court admonished defendant regarding his right to testify, and defendant stated that he did not wish to testify. Defendant’s counsel, attorney Murphy, rested without presenting any evidence on defendant’s behalf.

¶ 31 During closing arguments, attorney Murphy stated again that they were seeking self- defense or second degree murder. Pointing to the videos, Murphy argued that the videos showed what looked like the victim making an aggressive move towards defendant, which was corroborated by his coat being half off.

¶ 32 The trial court found defendant guilty of first degree murder on March 3, 2016, indicating that it reviewed the videos and found nothing to indicate that defendant was justified in using deadly force in continuing shooting the victim after he was already lying on the ground. The 210762

No. 1-21-0754 court further noted defendant’s flight from the scene and the ensuing chase, which indicated consciousness of guilt. The trial court stated that it

“tr[ied] to be very careful with these matters and want[ed] to give all benefit of the doubt that [it could] to people on trial in all cases. Every case here is important when liberty is at stake. And [it] searched the record and *** looked carefully to again review the tape. [It] just [didn’t] see anything that [the victim] did to indicate that somehow somebody would feel that they’re justified in using deadly force. This looked more like just a cold-blooded homicide. Just an execution on the street. So, defendant is guilty as charged in the manner and form in the indictment.”

¶ 33 B. Posttrial Proceedings

¶ 34 On the next court date, April 12, 2016, defendant refused to exit his cell. Defendant’s trial counsel requested a behavioral clinical examination (BCX) for defendant to determine his fitness at the time of trial, for sentencing, and whether he was sane at the time of the offense.

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

Attorney Murphy stated that he spoke with defendant and that he would cooperate. The trial court told defendant that his counsel was exploring every avenue for him, and it was counsel’s idea to order the BCX, which might help but that defendant needed to cooperate.

¶ 35 Dr. Melanie Venable wrote to the trial court on October 26, 2016, stating that she needed certain medical records to render an opinion on whether or not defendant was sane at the time of the offense, but that the DVD of defendant’s arrest indicated no evidence of any psychiatric impairment at the time of the offense. In a letter dated May 10, 2017, Dr. Venable opined that defendant was legally sane at the time of the offense.

- 10 - No. 1-21-0754 ¶ 36 On June 18, 2017, defendant wrote a pro se motion to release attorney, in which he made several complaints regarding attorney Murphy’s representation. Specifically, defendant complained that attorney Murphy (1) told him that the trial court would never believe that he did not shoot the victim and that his representation would be “all or nothing and reasonable doubt,” (2) “convinced” defendant to enter the defense of self-defense just a few weeks prior to trial, (3) failed to contact and preserve favorable witnesses and obtain their statements, (4) prejudiced defendant by persuading him to perjure himself if he testified, (5) failed to seek and admit into evidence the 911 dispatch recordings, which gave a description of the shooters and the direction they fled, (6) failed to subpoena the phone records of an inmate, Ardamis Smith, who was told by the State’s witness that if defendant did not give him $3000, defendant was never coming home, (7) failed to inform the State that defendant had a mental disorder for which he took medication prior to and during the time of the crime, as well as at trial, (8) failed to request a fitness evaluation to determine defendant’s mental health prior to trial, and (9) persuaded defendant not to take the stand, denying him the ability to tell his side of the story. ¶ 37 Additionally, on July 11, 2017, defendant filed a pro se motion for new trial, in which he also raised the same allegations of ineffective assistance of trial counsel. The record further reflects that defendant sent a letter to the trial court dated September 12, 2017. In the letter, defendant further detailed his allegations of ineffective assistance of trial counsel, including counsel’s failure to challenge the eyewitnesses’ identification of defendant during the offense and at the lineup, as well as counsel’s failure to challenge the results of the gunshot residue test. - 11 - No. 1-21-0754 ¶ 38 On October 3, 2017, the trial court performed a preliminary inquiry into defendant’s allegations. After questioning both defendant and attorney Murphy, the trial court appointed new counsel to investigate defendant’s claims of attorney Murphy’s ineffectiveness. ¶ 39 Defendant sent a second letter to the trial court sometime after October 3, 2017, in which he indicated that he asked attorney Murphy to secure an expert witness in eyewitness testimony, who could have testified about the factors affecting memory and perception of eyewitnesses. ¶ 40 On December 4, 2018, a Krankel evidentiary hearing began where defendant was represented by Assistant Public Defender (APD) Crystal Carbellos. ¶ 41 At the hearing, defendant testified that he was present when the victim was shot but he was not the shooter. He stated that attorney Murphy scared and coerced him into going along with a self-defense theory. Defendant stated that if he had testified at trial, he would not have admitted to shooting the victim, but he trusted attorney Murphy as his lawyer. Defendant also stated that attorney Murphy refused to interview and call various witnesses, including codefendant and Ardamis Sims. Codefendant would have testified that he was with defendant all day and he never saw defendant with a gun. Sims could have testified that Braxton attempted to extort money from defendant prior to trial by threatening to testify against him unless defendant paid him $3000. Defendant alleged that attorney Murphy should have also subpoenaed Sims’s phone records because the jail conversations were recorded. Defendant also claimed that attorney Murphy refused to interview and call two women who called 911 after the shooting. The women described the shooters to 911 dispatchers as persons who did not fit defendant’s clothing description. They also said that the shooters walked in a certain - 12 - No. 1-21-0754 direction after the shooting. ^[4] Finally, defendant testified that attorney Murphy refused to interview his doctors or to investigate his mental illness, his mental state at the time of the shooting, and the medications that he was taking. According to defendant, it would have been impossible for him to commit the offense because his medications made him like a “zombie.” However, on further questioning, defendant stated he did not want attorney Murphy to investigate his state of mind at the time of the offense or to pursue that as a defense. ¶ 42 After defendant testified, the trial court continued the hearing for attorney Murphy to testify. Before the next court date, APD Carbellos passed away, and APD Dylan Barrett was appointed to represent defendant. ¶ 43 The Krankel hearing resumed on May 13, 2019. Attorney Murphy testified that he discussed arguing self-defense with defendant and stated that he did not coerce or scare defendant into pursuing that defense. Attorney Murphy explained that he chose the defense of self-defense because he saw videos of the shooting, videos of defendant being in the liquor store and walking around the corner where there was a video of the shooting, and videos of defendant running to his friend at the gas station right after the shooting. Additionally, the police were there immediately on the video and there was a chase also on video, which included his exit from the car and running away. Attorney Murphy was also aware that a gun was recovered. ¶ 44 Attorney Murphy testified that he did not hire a witness identification expert because there were videos and identification was never an issue. He did not recommend that defendant testify for strategic reasons and stated that defendant did not want to testify. Attorney Murphy

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

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¶ 60 A criminal defendant has the right to the effective assistance of counsel under both the United States and Illinois Constitutions. Strickland v. Washington, 466 U.S. 668, 690-91

(1984). In determining whether a defendant was denied effective assistance of counsel, this court applies the familiar two-prong test set forth in Strickland. A defendant must demonstrate that (1) trial counsel’s representation was deficient and (2) the deficient performance prejudiced defendant. People v. Burnett, 2019 IL App (1st) 163018, ¶ 9. If a defendant fails to establish either prong, his claim of ineffective assistance of counsel fails. People v. Colon, 225

Ill. 2d 125, 135 (2007). We analyze claims of ineffective assistance of counsel by considering the entire record. Burnett, 2019 IL App (1st) 163018, ¶ 9.

¶ 61 It bears mentioning that a reviewing court often cannot entertain a claim of ineffective assistance of counsel on direct appeal when the claimed error was not a focus in the case below.

Id. ¶ 11 (citing Massaro v. United States, 538 U.S. 500, 504-05 (2003)). However, in this case, because defendant raised the issue of ineffective assistance of counsel after trial and a Krankel hearing was held, the issue was sufficiently raised below. Thus, we can review it in this direct appeal.

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

not determine the merits of defendant’s pro se posttrial claims of ineffective assistance of counsel. People v. Tolefree, 2011 IL App (1st) 100689, ¶ 25. Our supreme court has held that if the trial court made no determination on the merits, then our review is de novo. Id. (citing

People v. Moore, 207 Ill. 2d 68, 75 (2003)). However, if a trial court has reached a determination on the merits of defendant’s ineffective assistance of counsel claim, we will reverse only if the trial court’s action was manifestly erroneous. Id. (citing People v. McCarter, 210760

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

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No. 1-21-0754 in effect at the time the offense was committed). Here, because defendant was not required to

waive his in person presence at the motion for new trial under the supreme rule then in effect, there can be no error in the failure to secure such a waiver.

¶ 104 Moreover, defendant was not entitled to be present for the motion for a new trial. As previously stated, while it is well-settled that a criminal defendant has a general right to be

present at every stage of his trial (People v. Lofton, 194 Ill. 2d 40, 66 (2000); U.S. Const., amend. XIV, § 1; Ill. Const. 1970, art. I, § 8), the right to be present is not an absolute, inviolable right. A defendant is not denied a constitutional right every time he is not present during his trial, but only when his absence results in him being denied a fair and just trial

(Lindsey, 201 Ill. 2d at 57). Nor is it a substantial right; it is a lesser right that is intended to

secure the substantial rights of a defendant. People v. Brown, 2023 IL 126852, ¶ 15; People v. Martinez, 2021 IL App (1st) 172097, ¶ 36. Additionally, the “nearly unanimous rule in this country” is that the defendant’s constitutional right to be present at the trial does not embrace a right to also be present at the argument of motions prior to trial or subsequent to verdict.

Lofton, 194 Ill. 2d at 65; People v. Woods, 27 Ill. 2d 393, 395 (1963). It follows then that defendant was not entitled to be present during the motion for new trial, so there could be no error in failing to secure a waiver of his in-person presence.

¶ 105 Defendant, however, also argues on appeal that he was not allowed to confer with his counsel during the hearing on the motion for new trial, presumably raising a constitutional error of the denial of his right to counsel. We disagree.

¶ 106 First, as previously established, defendant had no constitutional right to be present for the motion for new trial. Second, and as noted above, the record does not indicate that defendant requested to speak with his counsel at any time during the hearing, only that he wanted to

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address the trial court directly to clarify points argued by the State during its argument. The trial court had no responsibility to entertain defendant’s attempts to address it directly during the hearing on his motion for new trial. An accused has either the right to have counsel represent him or the right to represent himself; however, a defendant has no right to both self- representation and the assistance of counsel. People v. Pondexter, 214 Ill. App. 3d 79, 87

(1991).

¶ 107 Although the trial court chose to hear oral arguments on the motion for new trial, it was not required to do so; the motion for new trial could have been decided by the trial court without

oral argument. See People v. DePompeis, 410 Ill. 587, 595-96 (1951); People v. Moczarney, 65 Ill. App. 3d 410, 417 (1978) (where there is no reversible error committed in the course of a trial, the refusal to hear argument on a motion for new trial cannot injure defendant and does not constitute a denial of due process). As such, it follows then that defendant was not entitled to confer with counsel during oral argument made on the motion for new trial and no

constitutional right was violated. We find that the record does not support a conclusion that the motion for new trial was decided unfairly or resulted in the denial of an underlying substantial

right where defendant had no ascertainable right to be present at the hearing. People v. Patrasso, 271 Ill. App. 3d 1087, 1091-92 (1994). Even if we found an error, at best it would be harmless error because defendant has failed to show how the waiver or allowing him to speak with his counsel would have changed the result of the proceeding that he had no right to be present for. Id. Thus, there was no error.

¶ 108 Because we have determined that there was no error, there could be no plain error. We therefore decline to address defendant’s argument that his due process rights were violated by the trial court’s failure to secure a waiver for his in-person presence at his motion for new trial.

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¶ 109 We next turn to defendant’s sentencing hearing, which was also held via Zoom teleconferencing without a waiver of defendant’s in-person presence. Defendant argues that such hearing violated his constitutional rights and violated our supreme court’s guidelines regarding remote hearings because he was deprived of the opportunity to privately confer with and assist his counsel during the proceedings. Specifically, defendant maintains that he requested to speak with his attorney after the State presented its evidence in aggravation and he was not allowed to.

¶ 110 As noted above, the State concedes that defendant’s sentencing hearing was held remotely without a valid waiver but argues that defendant has forfeited this error because it was not

properly preserved. However, we will consider the merits of defendant’s argument under plain error, as requested by defendant in his reply brief. Thomas, 178 Ill. 2d at 235.

¶ 111 The plain error doctrine allows a reviewing court to review unpreserved error when (1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone

threatened to tip the scales of justice against the defendant or (2) a clear or obvious error occurred, and the error is so serious that it affected the fairness of the defendant’s trial and integrity of the judicial process, regardless of the closeness of the evidence. Schroeder, 2012

IL App (3d) 110240, ¶ 23. Our first determination is whether there has been an error. Id.

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

constitutional rights only if the record demonstrates that defendant’s absence caused the proceeding to be unfair or if his absence resulted in a denial of an underlying substantial right.

Lindsey, 201 Ill. 2d at 57. We find that the sentencing hearing is a critical proceeding that requires a defendant’s presence with counsel because its outcome affects a substantial right- the defendant’s freedom.

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¶ 113 Our supreme court enacted several amendments to its rules concerning court appearances and trials in response to the COVID-19 emergency between March 2020 and February 2023.

The supreme court’s order of February 11, 2021, mandated that legal hearings with argument and sentencing hearings may not be held remotely unless the defendant waives his right to an in-person hearing. Ill. S. Ct., M.R. 30370(II)(A) (eff. Feb. 11, 2021). The order also provided that the decision to waive in-person proceedings belonged to the defendant, not defense counsel, and must be in writing. Ill. S. Ct., M.R. 30370(II)(B), (C) (eff. Feb. 11, 2021).

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

must ensure that the waiver was knowing and voluntary and that the defendant discussed the waiver with counsel prior to the hearing. Ill. S. Ct., M.R. 30370(II)(D) (eff. Feb. 11, 2021).

¶ 114 Defendant has not cited, nor have we found, any criminal case that addresses sentencing hearings held via Zoom teleconferencing under the modified rules during the Covid-19 emergency. While our research did reveal that there have been several cases involving parental rights matters that addressed the issue of hybrid hearings or fully remote hearings, those cases do not fall under the supreme court’s modified rule of February 11, 2021, which specifically refers to remote sentencing hearings. Thus, those cases are distinguishable from the particular issue raised in this case.

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

Zoom teleconferencing with all parties appearing on screen, despite the trial court’s statement that defendant was present in court. The record does not contain any evidence that a written waiver of defendant’s in-court presence was received by the trial court before the sentencing hearing was held. Additionally, the record does not indicate that defendant was provided with a means to communicate in private with his attorney during the sentencing hearing (through a

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breakout room or other means), even after requesting to speak with his attorney during the sentencing hearing. We find that defendant’s sentencing hearing was held in error, without defendant’s waiver and without allowing defendant an opportunity to speak with his counsel privately. We find this to be a violation of defendant’s constitutional rights to due process, as well as a violation of our supreme court’s modified rule of February 11, 2021. We therefore remand for a new sentencing hearing. Defendant’s conviction is affirmed in all other respects.

¶ 116 III. CONCLUSION

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

for failing to investigate and present the testimony of an expert in eyewitness testimony; the trial court erroneously disallowed defendant the opportunity to present rebuttal evidence during the Krankel proceedings, but such error was harmless; and defendant did not properly preserve review of his argument that his constitutional rights were violated when his motion for new trial was heard via Zoom teleconferencing. However, we find it was error to hold defendant’s

sentencing hearing via Zoom teleconferencing without a valid waiver from defendant and without allowing him the means to confer confidentially with his counsel. We affirm defendant’s conviction and remand for a new sentencing hearing.

¶ 118 Affirmed and remanded with directions.

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

¶ 120 I concur in the majority’s decision that plain error occurred because Harris was denied his right to due process when the court proceeded to sentencing without obtaining a written waiver from Harris of his right to an in-person hearing, as required by our supreme court’s mandate.

See Ill. S. Ct., M.R. 30370 (eff. Feb. 11, 2021). However, I disagree with the majority’s decision that no error occurred with respect to the hearing on Harris’s motion for a new trial, - 40 -

No. 1-21-0754 which also proceeded remotely without Harris’s waiver of his right to an in-person hearing.

The absence of a waiver necessitates a new hearing in both instances because it directly implicates an essential aspect of a defendant’s right to counsel—the ability of a defendant to confer with and assist his counsel during a hearing. I would go further than the majority does in this case because the rationale that requires a new sentencing hearing also requires a new hearing on the motion for new trial. Therefore, I concur in part and respectfully dissent in part.

¶ 121 Harris argues that a written waiver of his right to an in-person hearing on his motion for a new trial was required under the Illinois Supreme Court’s mandate of March 17, 2020, related to the COVID-19 pandemic (Ill. S. Ct., M.R. 30370 (eff. Mar. 17, 2020)), and under section

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

The March 17, 2020, version of the mandate stated, “[e]ssential court matters and proceedings shall continue to be heard by the Illinois courts. If feasible and subject to constitutional limitations, essential matters and proceedings shall be heard remotely via telephone or video or other electronic means.” (Emphasis added.) Ill. S. Ct., M.R. 30370 (eff. Mar. 17, 2020). As for section 106(D)-1(a), although a motion for new trial is not specifically enumerated as one

of the proceedings allowed to occur by either closed circuit television or video conference for certain criminal proceedings (see 725 ILCS 5/106D-1(a) (West 2020) (specifying court proceedings that may be held remotely)), subsection 1(c) allows “other court appearances

through the use of a two-way audio-visual communication system if the person in custody or confinement waives the right to be present physically in court.” Id. § 106D-1(c).

¶ 122 The State offers no real, substantive response to Harris’s argument. Rather, the State argues that Harris forfeited his claim and that Harris was actually present before the court, which is contradicted by Harris’s counsel, who avers in an affidavit that the hearing was conducted

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remotely and that Harris was not present in the courtroom but also appeared remotely. The State appears to acknowledge the latter point in its brief when it says, “ ‘both sides’ may have appeared via teleconferencing.” Also, the State does not dispute that Harris’s right to counsel includes the right to confer with his counsel privately during the course of a hearing.

¶ 123 To be clear, Harris was “present before the bench” at the hearing on his motion for a new trial via videoconference and was represented by counsel of record, who was also “on camera,” although from a location different than Harris. There is no dispute that Harris was “present”

for the entirety of the argument on the motion and for the court’s oral decision on the motion, meaning that he was able to see and hear the proceedings via remote video conference. Cf.

People v. Lofton, 194 Ill. 2d 40, 63-65 (2000) (the defendant was not transported from jail to be present at a section 115-10 hearing and was deprived of due process as a result of being absent from a critical stage proceeding). Harris was as “present” as the COVID-19 pandemic precautions in existence at the time would allow.

¶ 124 Yet, the majority embarks on an analysis of whether a waiver was necessary in this case based on whether Harris had a constitutional right to be present at the hearing on the motion for a new trial. Supra ¶ 104. This is not the issue Harris raises. Harris’s argument is that his sixth amendment right to counsel was violated because he was denied the right to confer with and assist his counsel during the hearing because he was not physically in court with his counsel by his side or given the opportunity to confer privately with his counsel in a “break

out” room in the Zoom application. The issue of the waiver of an in-person hearing in the context of this case is central to the traditional understanding that being “present” in court is

appearing in the courtroom, before the bench and with counsel at the defendant’s side, and having the opportunity to confer with counsel and assist counsel in person. Thus, Harris is

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No. 1-21-0754 arguing that because he did not waive his right to an in-person hearing, he did not waive his sixth amendment right to be able to confer with counsel during the hearing.

¶ 125 The sixth amendment guarantees an accused a right to assistance of counsel in a criminal proceeding. U.S. Const., amend. VI. “A defendant is entitled to the representation of counsel at all critical stages of a criminal prosecution, and this important right will not be taken away

unless affirmatively waived by a defendant.” People v. Burton, 184 Ill. 2d 1, 22 (1998). The Supreme Court has established that a defendant’s right to counsel attaches “at or after the time that adversary judicial proceedings have been initiated against him” (Kirby v. Illinois, 406 U.S.

682, 688 (1972) (opinion of Stewart, J., joined by Burger, C.J., and Blackmun and Rehnquist, JJ.)), and once a defendant’s right to counsel attaches, the right continues to apply “at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.”

Mempa v. Rhay, 389 U.S. 128, 134 (1967). A particular stage is deemed critical if “certain legal rights may be lost if not exercised at this stage.” Id. at 134-35. A posttrial motion for new trial is a “critical stage” in criminal proceedings in Illinois, at which a defendant is entitled to counsel (People v. Finley, 63 Ill. App. 3d 95 (1978)), because any error not raised with specificity in a motion for new trial is deemed waived for purposes of appellate review. People v. Enoch, 122 Ill. 2d 176, 186 (1988).

¶ 126 An essential aspect of the sixth amendment right to counsel is the ability to confer with and assist counsel. People v. Noble, 42 Ill. 2d 425, 429-30 (1969) (defendant was denied his sixth amendment right to counsel where defendant was not permitted to consult with counsel during an overnight recess in jury trial); People v. Woosley, 2020 IL App (3d) 170307, ¶ 17 (defendant

was denied his sixth amendment right to counsel where defense counsel was present at the arraignment by telephone, which did not afford “any opportunity for confidential

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No. 1-21-0754 communication” between defendant and counsel); Geders v. United States, 425 U.S. 80, 91

(1976) (order preventing petitioner from consulting with his counsel during recess

impermissibly impinged on his sixth amendment right to assistance of counsel). Our review of whether a defendant was denied his or her right to counsel is de novo. People v. Abernathy, 399 Ill. App. 3d 420, 426 (2010).

¶ 127 Although Harris was “present” remotely at the hearing on the motion for new trial and was represented by counsel who appeared remotely from another location, Harris did not waive his

right to an in-person hearing, including his right to confer with and assist counsel during the hearing. This resulted in a violation of his sixth amendment right to counsel, where he did not knowingly or voluntarily waive this right, and no opportunity to confer with his counsel was provided to him during the proceeding. Cf. In re Es. C., 2021 IL App (1st) 210197, ¶¶ 9, 28

(affirming parental termination occurring remotely where the trial court safeguarded the parent’s due process rights by providing her with regular and frequent opportunities to confer with counsel in virtual breakout rooms); In re R.D., 2021 IL App (1st) 201411, ¶¶ 8, 15

(affirming parental terminations occurring remotely where respondents received “every opportunity” to confer with counsel and could view and hear the witnesses as they testified);

In re P.S., 2021 IL App (5th) 210027, ¶¶ 60, 63 (affirming parental termination occurring remotely where the father was virtually present and was heard and the court repeatedly stopped the proceeding to permit him to confer privately with counsel). 8

210761

The right to be represented by counsel in termination cases originates in the Juvenile Court Act of 1987 (705 ILCS 405/1-5(1) (West 2020)) and not from the sixth amendment, which applies to criminal defendants. See U.S. Const., amend. VI (“[i]n all criminal prosecutions, the accused shall enjoy the right *** to have the Assistance of Counsel for his defense”). “Though the statutory right to counsel in proceedings under the Juvenile Court Act lacks constitutional footing *** that right is closely linked to its constitutional counterpart ***.” In re Br. M., 2021 IL 125969, ¶ 42.

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¶ 128 Nor am I persuaded by the majority’s rejection of Harris’s claim based on his failure to ask to speak with his lawyer privately during the hearing. Supra ¶ 105. Here, the court conducted an evidentiary hearing on Harris’s Krankel motion, wherein he alleged ineffective assistance of trial counsel, which the court then denied. Harris’s subsequent motion for a new trial raised two issues: the sufficiency of the evidence and trial counsel’s ineffectiveness. The record shows that during the hearing on the motion for new trial, Harris tried to address the court with regard to something his allegedly ineffective trial counsel had testified to at the Krankel hearing regarding the defense he presented on Harris’s behalf. However, the trial court cut him off before he could communicate the substance of his concern and told him that he could not speak, stating that he had “a good lawyer.” Had Harris been present with his counsel at his side or had the trial court permitted Harris and his counsel to confer privately in a Zoom “break

out” room, then Harris could have conferred with his counsel regarding this testimony, and other information he wanted to share, and his counsel could have communicated to the court any points or issues he deemed appropriate. The record shows that Harris eventually was allowed to speak, but only spoke to the court, and after the court had already denied his motion for a new trial. Under these circumstances, Harris cannot be faulted for failing to specifically ask the court to speak privately with his lawyer. I would therefore find that an error did in fact occur when Harris was unable to confer with counsel during this critical proceeding. The type of representation afforded to Harris in this remote proceeding is not the type of representation contemplated by the sixth amendment. “The right to have the assistance of counsel is too

fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” Glasser v. United States, 315 U.S. 60, 76 (1942).