In re Manual M.

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Appellate Court Date: 2017.04.05

13:10:39 -05'00'

In re Manuel M., 2017 IL App (1st) 162381

Appellate Court In re MANUEL M., a Minor (The People of the State of Illinois,

Caption Petitioner-Appellee, v. Manuel M., Respondent-Appellant).

District & No. First District, Sixth Division

Docket No. 1-16-2381

Filed February 10, 2017

Rehearing denied February 1, 2017

Decision Under Appeal from the Circuit Court of Cook County, No. 16-JD-855; the

Review Hon. Patricia Mendoza, Judge, presiding.

Judgment Reversed and remanded.

Counsel on Michael J. Pelletier and Gavin J. Dow, of State Appellate Defender’s

Appeal Office, of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and

Margaret M. Smith, Assistant State’s Attorneys, of counsel), for the

People.

Panel PRESIDING JUSTICE HOFFMAN delivered the judgment of the

court, with opinion.

Justices Cunningham and Rochford concurred in the judgment and

opinion.

OPINION

¶1 The respondent, Manuel M., appeals from the trial court’s judgment adjudicating him a

delinquent minor by reason of his commission of two counts of aggravated unlawful use of a

weapon (AUUW) (720 ILCS 5/24-1.6(a) (West 2014)) and one count of unlawful possession

of a firearm (UPF) (720 ILCS 5/24-3.1(a)(1) (West Supp. 2015)) and the resulting sentence of

18 months’ probation and 30 days’ commitment to the juvenile temporary detention center

with the order of commitment stayed. For the reasons that follow, we reverse the respondent’s

delinquency adjudication and sentence and remand the matter for a new trial.

¶2 The respondent was arrested for reckless conduct after he was seen flashing gang signs at

passing cars near Throop Park in Chicago. When the respondent was searched following his

arrest, a pistol was found in his pants.

¶3 The State alleged in a petition for adjudication of wardship that the 16-year-old respondent

committed two counts of AUUW and one count of UPF. The first AUUW count charged that

the respondent knowingly carried a firearm when he was not on his own land, home, or fixed

place of business and did not have a valid Firearm Owner’s Identification (FOID) card. The

second AUUW count alleged that the respondent, being under age 21 and not engaged in

lawful activities under the Wildlife Code (520 ILCS 5/1.1 et seq. (West 2014)), carried a

firearm on his person. The UPF count alleged that the respondent, while under age 18,

knowingly possessed a firearm that could be concealed upon his person.

¶4 Prior to trial, the respondent filed a motion to quash his arrest and suppress evidence of the

firearm recovered following that arrest. The following evidence was adduced at the hearing on

the respondent’s motion.

¶5 The respondent testified that, on April 11, 2016, at approximately 7:15 p.m., he was sitting

with two other individuals in a park at 18th and Throop Streets (Throop Park) when a police

officer approached him, searched his person, and recovered a pistol from his pants. The

respondent denied that he had displayed gang signs at passing cars.

¶6 The State called Officer Kush, who testified that on the evening of April 11, 2016, he was

assigned to observe Throop Park due to reports of gunfire on recent nights. He stated that he

went to a location 1½ to 2 blocks from the park and, using binoculars, observed the respondent

and two other individuals near the park entrance flashing gang signs at passing vehicles,

causing the vehicles to swerve toward oncoming traffic or parked cars. According to Officer

Kush, the group was endangering drivers and pedestrians. After observing the respondent and

his companions for 15 to 20 minutes, Officer Kush drove to the park with other officers.

Officer Kush testified that, upon arriving at the park, he arrested the respondent for reckless

conduct, patted him down, and recovered a pistol from his pants.1

¶7 The trial court denied the defendant’s motion to quash arrest and suppress evidence,

finding that Officer Kush testified credibly and had discovered the pistol on the respondent’s

person as the result of a search incident to a legal arrest.

¶8 The case proceeded to trial. Officer Kush testified consistently with his testimony at the

suppression hearing, adding that he recovered the firearm from the respondent who was on

1

Officer Kush testified that the other individuals were also arrested, but the record contains no

further information regarding either person.

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“park property,” and not engaged in activities under the Wildlife Code. Officer Kush also

testified that the respondent was unable to present a valid FOID card. According to Officer

Kush, he learned that the respondent was under age 18 when he processed him at the police

station.

¶9 On cross-examination, defense counsel asked Officer Kush to disclose the exact location

from which he observed the respondent and his two companions flashing gang signs at passing

vehicles. Officer Kush stated that disclosing the location would endanger his life and the lives

of every officer that uses the location. The prosecutor objected to defense counsel’s question

on the grounds that revealing the location would endanger officer safety. Following arguments

on the objection, the trial court elected to conduct an in camera examination of Officer Kush.

The transcript of that examination contained within the record reflects that the respondent and

his attorney were excluded from the in camera examination of Officer Kush but the assistant

State’s Attorneys were present. After the trial judge examined the officer and ascertained the

exact location from which he conducted his surveillance of the park, an assistant State’s

Attorney was permitted to ask the officer questions. Following the examination of Officer

Kush, the assistant State’s Attorney presented argument to the trial judge in further support of

his objection to disclosure of the surveillance location.

¶ 10 When the trial resumed, defense counsel presented additional arguments addressed to the

State’s objection. However, there is no indication in the record that defense counsel was ever

advised of the arguments made by the State during the in camera examination of Officer Kush.

Following the arguments of counsel, and over defense counsel’s objection, the trial judge ruled

that she would not compel Officer Kush to disclose his “exact location” from which he

conducted his surveillance of the park but would permit the defense to inquire regarding

“distance, lighting, [and] everything else.”

¶ 11 Cross-examination resumed, and Officer Kush testified that he observed the respondent

from an outdoor location, elevated 10 to 15 feet, 1½ to 2 blocks north of the park. He stated that

several buildings were situated between the park and the observation point but denied that his

vision was obstructed. Officer Kush admitted that the police reports of the incident did not

mention the fact that he conducted surveillance prior to arresting the respondent.

¶ 12 After Officer Kush testified, the State rested. The respondent then moved for a directed

finding, which was denied. Thereafter, the respondent rested without presenting any witnesses.

¶ 13 Following closing arguments, the trial court found the respondent delinquent on all counts

and merged both the AUUW count predicated upon his possession of a firearm while under age

21 and not engaged in lawful activities under the Wildlife Code and the UPF count into the

AUUW count, which charged the respondent with possession of a firearm when he did not

have a valid FOID card. In her oral findings, the trial judge stated that Officer Kush testified

credibly and “[g]iven where he was observing from, his testimony makes perfect sense.”

¶ 14 Following a dispositional hearing, the trial court adjudged the respondent to be a ward of

the court and sentenced him to 18 months’ probation and 30 days’ commitment to the juvenile

temporary detention center, with the order of commitment stayed. This appeal followed.

¶ 15 On appeal, the respondent first argues, and the State correctly concedes, that he was not

proved delinquent beyond a reasonable doubt of AUUW predicated on not having been issued

a valid FOID card. The offense of AUUW contemplates whether an individual has been issued

a FOID card and not whether the individual has a FOID card “in his or her possession.” People

v. Holmes, 241 Ill. 2d 509, 522 (2011). Here, Officer Kush’s testimony indicated that the

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respondent did not present a FOID card following his arrest, but the State presented no

evidence that the respondent had not been issued a FOID card. Consequently, we agree with

the respondent, accept the State’s concession, and reverse the respondent’s delinquency

adjudication and sentence for AUUW predicated on not having been issued a valid FOID card.

¶ 16 Among the respondent’s additional arguments on appeal, he also contends that his

constitutional right of confrontation was violated when his attorney was prevented from

questioning Officer Kush as to the exact location from which he conducted his surveillance

and that his constitutional rights to confrontation and to a public trial were violated when,

during the in camera examination of Officer Kush from which both he and his attorney were

excluded, the prosecutor was permitted to question Officer Kush and argue in support of the

State’s objection to disclosure of the surveillance location. We agree with both arguments.

¶ 17 The sixth amendment to the United States Constitution (U.S. Const., amend. VI),

applicable to the states by the fourteenth amendment (U.S. Const., amend. XIV), and article I,

section 8, of the Illinois Constitution (Ill. Const. 1970, art. I, § 8), guarantee the accused in a

criminal prosecution the right to confront and cross-examine the witnesses against him.

However, the right of cross-examination is not absolute. In the exercise of its discretion, a trial

court may limit the scope of cross-examination, and its decision to do so will not be disturbed

on appeal absent an abuse of that discretion. People v. Enis, 139 Ill. 2d 264, 295 (1990).

¶ 18 Illinois recognizes a qualified privilege from disclosing secret surveillance locations in a

criminal proceeding against the target of the surveillance. People v. Price, 404 Ill. App. 3d 324,

330-31 (2010); People v. Knight, 323 Ill. App. 3d 1117, 1128 (2001); People v. Criss, 294 Ill.

App. 3d 276, 281 (1998). Whether the privilege is applicable must be decided by the trial court

on a case-by-case basis, balancing the public interest in keeping the location secret against the

defendant’s right to test the credibility of a witness by cross-examination. Criss, 294 Ill. App.

3d at 281.

¶ 19 When, as in this case, the State invokes the surveillance location privilege at trial, it bears

the initial burden of demonstrating that the privilege should apply. Price, 404 Ill. App. 3d at

331. The State can satisfy its initial burden by establishing that the surveillance location was

located on private property with the permission of the owner or in a useful location which

would be compromised by disclosure. Id. at 332. Once the State has carried its burden, the

defense can overcome the privilege by showing that the surveillance location is relevant to the

defense or essential to the fair determination of the case. Id.

¶ 20 In making its determination of whether to apply the privilege and prevent the defense from

inquiring into the exact location from which the surveillance was conducted, the trial court

may conduct an in camera examination of the surveillance officer out of the presence of the

defendant and his attorney. Id.; Knight, 323 Ill. App. 3d at 1127. Following such a hearing, the

court should weigh the defendant’s need for the information against the public’s interest in

nondisclosure. Knight, 323 Ill. App. 3d at 1127.

¶ 21 In sustaining the State’s objection in this case and declining to require Officer Kush to

reveal the exact location from which he observed the respondent flashing gang signs at passing

vehicles, the trial judge ruled that defense counsel would be permitted to inquire into “distance,

lighting, [and] everything else.” We believe that, in arriving at its resolution of the issue, the

trial court failed to give adequate consideration to the respondent’s need to ascertain the exact

location from which Officer Kush conducted his surveillance of Throop Park.

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¶ 22 Cross-examination is the principal means by which the credibility of a witness is tested.

Officer Kush was the only witness to testify for the State, and its case against the respondent

rested entirely upon his testimony. The defense challenged the credibility of Officer Kush’s

testimony that he observed the respondent and his companions flashing gang signs at passing

cars from a location more than one block away. Clearly, Officer Kush’s ability to see Throop

Park from his point of observation is relevant to the credibility of his testimony, and it was

Officer Kush’s observations from that point which supplied the probable cause for the

respondent’s arrest and subsequent search leading to the discovery of the pistol underlying the

AUUW and UPF charges for which he was on trial. By sustaining the State’s objection to

defense counsel’s inquiry as to the exact surveillance location, the trial court severely

hampered the respondent’s ability to test the credibility of the only witness against him on a

material issue. As this court held in Knight, when the case against a defendant turns almost

exclusively upon the uncorroborated testimony of the police officer who conducted the

surveillance, “disclosure must almost always be ordered.” Id. at 1128.

¶ 23 Based upon the foregoing analysis, we believe that the respondent was denied his right of

effective cross-examination guaranteed by both the United States Constitution and the

Constitution of Illinois when he was prevented from ascertaining the exact location from

which Officer Kush conducted his surveillance. We find, therefore, that the trial court abused

its discretion by sustaining the State’s objection to the cross-examination of Officer Kush on

that issue.

¶ 24 We also find that the respondent’s constitutional rights of confrontation and to a public trial

were violated when, in the absence of both him and his attorney, the prosecutor was permitted

to question Officer Kush and present an ex parte argument in support of the State’s objection to

any inquiry into the exact location from which the officer conducted his surveillance.

¶ 25 In addition to guaranteeing the right of confrontation, the sixth amendment to the United

States Constitution and article I, section 8, of the Illinois Constitution guarantee a criminal

defendant the right to a public trial, including the right to appear and participate in person or by

counsel at all stages of a proceeding which involve his substantial rights. People v. Childs, 159

Ill. 2d 217, 227 (1994). The denial of a defendant’s right to a public trial constitutes a structural

error and “necessarily renders a criminal trial fundamentally unfair or an unreliable means of

determining guilt or innocence.” People v. Thompson, 238 Ill. 2d 598, 609 (2010). Where

structural error occurs, automatic reversal is required. Id. at 608. However, a defendant’s

absence from a proceeding only violates his constitutional rights if his absence rendered the

proceeding unfair or if his absence resulted in the denial of an underlying substantial right.

People v. Bean, 137 Ill. 2d 65, 81 (1990).

¶ 26 In Knight, the court held that, in balancing the public’s interest in nondisclosure of a

surveillance point against the need of the defendant for disclosure in order to defend himself,

“the trial court should order an in camera hearing out of the presence of defendant and defense

counsel” at which “the State witness must reveal the surveillance location from which the

defendant was watched.” Knight, 323 Ill. App. 3d at 1127; see also Price, 404 Ill. App. 3d at

332. The Knight court went on to state that, at the in camera hearing, the State must make a

preliminary showing that disclosure of the surveillance location would harm the public’s

interest (Knight, 323 Ill. App. 3d at 1127), suggesting that the State is allowed to present an

ex parte argument during the in camera hearing. In contrast, the Price court stated that the

in camera examination of the surveillance officer should take place “outside the presence of

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both the State and the defense.” Price, 404 Ill. App. 3d at 332. We agree with the procedure

enunciated in Price; the in camera examination should be conducted by the trial court outside

the presence of both the State and the defense. We also believe that the trial court’s in camera

examination of the surveillance officer should be limited to a disclosure of the exact location

from which the surveillance was conducted, nothing more. Any testimony or argument

addressing the public interest to be protected by nondisclosure of the location should be made

in open court.

¶ 27 Allowing the State to examine a witness in a proceeding outside the presence of the

defendant and his attorney, as occurred in this case, violates both the defendant’s right of

confrontation and his right to a public trial as guaranteed by the United States Constitution and

the Constitution of Illinois. Permitting the State to make an ex parte argument in support of an

objection, as also occurred in this case, violates a defendant’s constitutional right to a public

trial.

¶ 28 The foregoing analysis leads us to conclude that the respondent’s constitutional rights to

effective cross-examination, confrontation, and to a public trial were violated, and we find no

need, therefore, to address the respondent’s other assignments of error. Consequently, we

reverse the respondent’s adjudication of delinquency and remand this case for a new trial. In

doing so, we accept the State’s concession that the trial evidence was insufficient to sustain the

respondent’s delinquency adjudication for AUUW predicated on not having been issued a

valid FOID card. However, we find to no double jeopardy bar to a retrial on both the remaining

AUUW count and the UPF count, as the evidence of record supports a finding of guilty on each

of those charged offenses. See People v. Olivera, 164 Ill. 2d 382, 393 (1995).

¶ 29 Reversed and remanded.

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