People v. Radford

2020 IL 123975

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 123975)

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

TAVARIUS D. RADFORD, Appellant.

Opinion filed June 18, 2020.

JUSTICE THEIS delivered the judgment of the court, with opinion.

Chief Justice Anne M. Burke and Justices Kilbride, Garman, and Karmeier

concurred in the judgment and opinion.

Justice Neville dissented, with opinion.

Justice Michael J. Burke took no part in the decision.

OPINION

¶1 Following the death of his 26-month-old daughter, M.R., from traumatic brain

injuries, defendant Tavarius D. Radford was found guilty of endangering the life or

health of a child (720 ILCS 5/12-21.6(a) (West 2010)) after a jury trial in the circuit

court of Kankakee County. On appeal, defendant’s conviction and sentence were

affirmed. 2018 IL App (3d) 140404. The appellate court found, inter alia, that the

trial court did not violate his right to a public trial by partially closing the courtroom

during jury selection and that no error occurred when the jury was instructed. Id.

¶¶ 47, 60. For the reasons that follow, we affirm the judgment of the appellate court.

¶2 BACKGROUND

¶3 On December 5, 2011, defendant was charged by indictment with first degree

murder (720 ILCS 5/9-1(a)(2) (West 2010)) and endangering the life or health of a

child (id. § 12-21.6(a)).

¶4 Two years later, this case proceeded to a jury trial. On November 18 and 19,

2013, jury selection occurred. Prior to voir dire, the trial court recognized that jury

selection is a public proceeding but that the courtroom could not accommodate all

the potential jurors and spectators present for the proceeding. 1 The trial court

explained:

“What I’m go[ing to] do during jury selection, it’s go[ing to] be difficult—

it’s a public proceeding, jury selection, but here’s the problem. There’s only so

many seats ***. *** [The] courtroom appears to be divided *** between

perhaps people here in support of the defendant and individuals here more or

less *** not in support of the defendant, and I will allow two individuals from

the victim’s family and two individuals from the defendant’s family to be

present during jury selection and there may not even be room for you, but you

cannot talk to any particular *** jurors. You’ll have to sit at the back of the

courtroom, not as an insult to you, but in recognition of the fact that we are

about to go into jury selection and the emphasis is going to be on the jurors.

Okay?

Also, if you are behind the jurors *** there’s less risk that you might

inadvertently *** you wouldn’t have like some sort of facial expression to

1

The venire consisted of approximately 100 members. A larger pool of potential jurors was

considered necessary because the trial was anticipated to last about two weeks, would start before

the Thanksgiving holiday, and there were approximately 50 potential witnesses that could be called.

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something that’s said that could potentially influence the jurors. We don’t want

that to happen. Okay?

*** I want to commend everybody in the courtroom *** for your patience

*** and your demeanor, and I’m go[ing to] ask that throughout the trial which

could involve, obviously, considering the nature of the case emotions running

high. I’m go[ing to] appreciate it if you remember that it’s inappropriate to

display those emotions because that can have an [e]ffect on the jury and it can

*** affect *** whether or not the trial is ultimately able to even take place or

whether or not a mistrial would have to occur, and nobody wants to see that

happen. Okay?

So at this time we’re go[ing to] bring the jurors up. I am going to clear the

courtroom with the exception of the two people from each side ***.”

¶5 Neither party objected to the trial court’s approach. Both parties complied with

the trial court’s request and chose the two family members who were allowed to

remain in the courtroom while the jury was selected.

¶6 On the second day of jury selection, before bringing out the second panel of

prospective jurors, the trial court reminded the members of the public who were

present of its prior decision to permit only two individuals associated with each side

to sit in the courtroom.

¶7 The trial court also informed the parties and the prospective jurors of the

following:

“I do want to point out, ladies and gentlemen, that this is a case in which

*** a request for media coverage was granted and you may or may not notice

that there is a camera in the courtroom. Under the rules in which the media

have—are allowed to film and photograph proceedings, jurors are not permitted

to be photographed or filmed. Okay. Just want you to know that.” 2

2

On November 20, 2013, as the State recognizes in its brief, a photograph of defendant and his

attorney appeared in a local newspaper referencing that it had been taken in the courtroom during

the second day of jury selection. See Dimtrios Kalantzis, Kankakee Murder Trial Puts Mother of

Victim on Stand, Kankakee Daily J. (Nov. 20, 2013), https://www.daily-journal.com/news/local/

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¶8 After jury selection was completed, the trial court informed the jurors again of

its decision to grant media coverage. The court allowed both family members and

members of the general public to be present in the courtroom for the remainder of

the proceedings.

¶9 The trial evidence showed that on October 26, 2011, at approximately 10 a.m.,

Kayleigh Reardanz found her daughter, M.R., unresponsive in the apartment that

she and defendant shared with Cheryl and David Heather and Kimberly and Echo

Brewington. David attempted unsuccessfully to resuscitate M.R. while they waited

for an ambulance. At the hospital, M.R. was pronounced dead. Dr. Valerie

Arangelovich, a forensic pathologist, performed the autopsy. She opined that

M.R.’s death was caused by cerebral injury due to blunt head trauma from child

abuse.

¶ 10 In early 2011, M.R. had fallen and hit her head while defendant was babysitting.

He took M.R. to the emergency room. M.R.’s CAT scans were negative, and she

was discharged. Kayleigh testified that weeks later, while her friend was

babysitting, M.R. fell and “split her eyebrow open.” Thereafter, in April 2011, M.R.

slipped in Kayleigh’s mother’s bathtub and “busted her chin.” Each time, M.R. was

taken to the hospital for medical treatment.

¶ 11 On October 22, 2011, M.R. and Kayleigh were outside playing when M.R. fell

and hit her head on the pavement. She examined M.R.’s head but saw no injury.

Kayleigh further testified of a second fall prior to M.R.’s death. During a tantrum,

M.R. threw herself backward and hit her head on the parking lot pavement.

Kayleigh testified that while M.R. was later getting her hair styled, she complained

of pain in the back of her head. She examined M.R.’s head but did not see any sign

of injury. Kayleigh testified that the second fall occurred the day prior to M.R.’s

death but later testified that she was uncertain as to the exact date, while Echo

testified that it was three days prior to the death.

¶ 12 Defendant was 17 years old at the time of M.R.’s death. He did not testify at

trial. The jury, however, viewed his videotaped police interview. He told police that

on the afternoon of October 25, 2011, he tucked M.R. into a daybed to take a nap.

kankakee-murder-trial-puts-mother-of-victim-on-stand/article_3ba1ca0f-73e5-5725-bd85-

2068ff6e53e5 html [https://perma.cc/4Q2C-7NLL] (photograph by Mike Voss).

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A few minutes later he checked on her and discovered that, instead of sleeping, she

was playing with a wooden unicorn plaque. Defendant was upset that she was not

sleeping and tucked her back into bed. He grabbed her by the arms and pushed her

from a sitting position onto her back. He speculated that she may have hit her head

on the wooden plaque. Using a stuffed bear, defendant demonstrated for police how

he forcefully tucked her back into bed. He told police that the demonstration was

less aggressive than how he actually tucked M.R. back into bed.

¶ 13 Kayleigh testified that she returned home from work around 11 p.m. on October

25. She later noticed M.R. whimpering and rubbing her feet together. M.R.

indicated to her mother that she was not in pain. Kayleigh discovered M.R.

unresponsive the next morning.

¶ 14 Two experts presented conflicting testimony regarding the manner of M.R.’s

death. Dr. Arangelovich opined that M.R.’s death was caused by blunt head trauma

from child abuse. Dr. Arangelovich observed subgaleal and subdural hemorrhages

in the back of M.R.’s head. She testified that the accidental falls M.R. experienced

prior to her death could have caused the subgaleal hemorrhages but that those

hemorrhages did not cause the baby’s death. According to Dr. Arangelovich, the

fatal injury was the subdural hemorrhage, which she opined occurred within 24

hours of M.R.’s death.

¶ 15 Dr. Shaku Teas, a forensic pathologist, believed that M.R.’s head injuries were

consistent with the accidental falls she experienced prior to her death and opined

that the injuries she sustained in those falls caused her death. Like Dr.

Arangelovich, she believed that the subdural injuries directly caused the death.

According to Dr. Teas, however, M.R.’s subdural hemorrhage was caused by an

injury that she sustained more than 24 hours prior to her death.

¶ 16 Following closing arguments, the trial court instructed the jury, inter alia, that

the offense of endangering the life or health of a child required proof that defendant

had care or custody of M.R., that he willfully caused or permitted M.R.’s life to be

endangered, and that his acts proximately caused her death.

¶ 17 The jury acquitted defendant of murder and involuntary manslaughter, but it

convicted him of endangering the life or health of a child. The trial court sentenced

defendant to 42 months in prison.

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¶ 18 The appellate court, with one justice dissenting, affirmed his conviction and

sentence. 2018 IL App (3d) 140404, ¶ 62. The appellate court majority concluded

that (1) the circuit court’s partial closure of the courtroom during jury selection did

not constitute clear or obvious error, was a “trivial closure,” and was not reviewable

as second-prong plain error (id. ¶¶ 59-60); (2) no error occurred when the jury was

instructed regarding the mental state for the offense of child endangerment (id.

¶¶ 46-47); and (3) the jury could reasonably conclude based upon the evidence that

defendant willfully endangered M.R.’s life or health (id. ¶ 40). The dissenting

justice maintained that the circuit court’s exclusion of all but four members of the

public during jury selection was not trivial and constituted second-prong plain

error. Id. ¶¶ 69, 77 (McDade J., dissenting).

¶ 19 This court allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315(a)

(eff. July 1, 2018).

¶ 20 ANALYSIS

¶ 21 I. Partial Closure of the Courtroom

¶ 22 Defendant contends that the trial court violated his sixth amendment right to a

public trial by partially closing the courtroom during jury selection. See U.S.

Const., amend. VI. Defendant concedes that he did not object to the closure and did

not raise the issue in a posttrial motion. He therefore seeks plain-error review.

¶ 23 Our plain-error doctrine allows a reviewing court to consider unpreserved error

when 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,

regardless of the seriousness of the error. People v. Piatkowski, 225 Ill. 2d 551, 565

(2007) (citing People v. Herron, 215 Ill. 2d 167, 186-87 (2005)). A reviewing court

also may consider unpreserved error when a clear or obvious error occurred and

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

challenged the integrity of the judicial process, regardless of the closeness of the

evidence. Id. Defendant contends that his failure to preserve his claim should be

excused because it constitutes second-prong plain error.

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¶ 24 We first must determine whether the trial court’s partial closure of the

courtroom in this case amounted to clear or obvious error by depriving him of the

right to a public trial.

¶ 25 The sixth amendment to the federal constitution provides an accused with the

right to a public trial. U.S. Const., amend. VI. The United States Supreme Court

has recognized that the protections conferred by the public trial guarantee are to

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

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

forward, and (4) discourage perjury. Waller v. Georgia, 467 U.S. 39, 46 (1984).

Trial courts are obligated to take every reasonable measure to accommodate public

attendance at criminal trials. Presley v. Georgia, 558 U.S. 209, 215 (2010)

(per curiam). The right to a public trial additionally protects some interests that do

not belong solely to the defendant. Weaver v. Massachusetts, 582 U.S. ___, ___,

137 S. Ct. 1899, 1910 (2017). The right to an open courtroom also protects the

rights of the public at large and the press. Id. at ___, 137 S. Ct. at 1910; see also

Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 508-10 (1984).

The public trial right extends to jury selection. Presley, 558 U.S. at 213.

¶ 26 Defendant contends that the trial court committed clear and obvious error when

it partially closed the courtroom without his “consent” during jury selection. He

argues that the court failed to provide an adequate justification for its decision

beyond recognizing a need to use a larger pool of prospective jurors than normal

and to seat them all at the same time. Defendant claims that, because the trial court’s

closure does not satisfy Waller’s four factor “overriding interest test,” he is

automatically entitled to a new trial.

¶ 27 In Waller, the state court ordered a weeklong suppression hearing closed to all

persons other than witnesses, court personnel, the parties, and the lawyers. Waller,

467 U.S. at 42. The trial court overruled the defendants’ objections to the closure

of the courtroom. Upon review, the Supreme Court instructed that “under the Sixth

Amendment any closure of a suppression hearing over the objections of the accused

must meet the” following tests:

“the party seeking to close the hearing must advance an overriding interest that

is likely to be prejudiced, the closure must be no broader than necessary to

protect that interest, the trial court must consider reasonable alternatives to

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

closure.” (Emphasis added.) Id. at 47-48.

See also Presley, 558 U.S. at 214 (holding that these standards apply before

excluding the public from any stage of a criminal trial).

¶ 28 Although the Supreme Court recognized that there would be instances where

closure was justified, it noted that “such circumstances will be rare” and ruled that

the closure in question was unjustified. Waller, 467 U.S. at 45, 48. The Waller

Court therefore ordered a new suppression hearing that was open to the public. If

the same evidence was found admissible in that renewed pretrial proceeding, the

Court held that no new trial as to guilt would be necessary, as a new trial would

presumably be a windfall for the defendant and not in the public interest. Id. at 49-

50.

¶ 29 The Court further recognized that only four of the five defendants in Waller had

lodged an objection to closing the hearing. Id. at 42 n.2. Consequently, it instructed

the state court to determine on remand whether the remaining defendant was

procedurally barred from seeking relief as a matter of state law. Id. at 42 n.2.

¶ 30 Thereafter, in Presley, the courtroom, in contrast to the instant case, was

completely closed to the public during jury selection. Presley, 558 U.S. at 210. In

further contrast to this case, the defendant in Presley objected to the trial court’s

closure. Id. On review of the state supreme court’s decision allowing the closure,

the Court observed that the state court’s reasoning for the closure would allow a

courtroom to be closed during jury selection “ ‘whenever the trial judge decides,

for whatever reason, that he or she would prefer to fill the courtroom with potential

jurors rather than spectators.’ ” Id. at 215 (quoting Presley v. State, 674 S.E.2d 909,

913 (Ga. 2009) (Sears, C.J., dissenting, joined by Hunstein, P.J.)). Although the

Court expressly noted that courtroom closure may be ordered in some

circumstances, the Court stated that it was “still incumbent upon” the trial court “to

consider all reasonable alternatives to closure.” Id. at 215-16.

¶ 31 Most recently, in Weaver, the trial court excluded from the courtroom any

member of the public who was not a potential juror for the two days of jury

selection. Weaver, 582 U.S. at ___, 137 S. Ct. at 1906. The exclusion included the

defendant’s mother and his minister, who were turned away when they attempted

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to attend the jury selection. Id. at ___, 137 S. Ct. at 1906. As in this case, defense

counsel did not object to the closure. Id. at ___, 137 S. Ct. at 1906. Five years after

the defendant’s conviction, he filed a motion for a new trial in state court, arguing

that his attorney had provided ineffective assistance by failing to object to the

courtroom closure. Id. at ___, 137 S. Ct. at 1906. The trial court ruled that he was

not entitled to relief. Id. at ___, 137 S. Ct. at 1906.

¶ 32 The Court ultimately affirmed, holding that in the context of a public-trial

violation during jury selection, where the error is neither preserved nor raised on

direct review but is brought later via an ineffective assistance of counsel claim, a

defendant must demonstrate prejudice to secure a new trial. Id. at ___, 137 S. Ct. at

1910-11. Because the defendant had offered no evidence or legal argument that the

outcome of his case likely would have differed had the courtroom not been fully

closed to the public, he could not prevail on his claim. Id. at ___, 137 S. Ct. at 1912-

13.

¶ 33 The Court in Weaver reiterated its jurisprudence that not every courtroom

closure results in an unfair trial, nor does each closure affect the values underlying

the sixth amendment’s public trial guarantee. Id. at ___, 137 S. Ct. at 1909-10. The

Court stated that its precedent teaches that courtroom closure is to be avoided but

that there are some circumstances when it is justified. Id. at ___, 137 S. Ct. at 1909.

The problems that trial courts encounter in deciding whether closures are necessary,

or even deciding which members of the public to admit when seats are scarce, are

difficult ones. Id. at ___, 137 S. Ct. at 1909. The Court provided, as an example,

that a judge may want to give preliminary instructions to the venire as a whole,

rather than repeating those instructions, perhaps with unintentional differences, to

several groups of potential jurors. On the other hand, various constituencies of the

public—the family of the accused, the family of the victim, and members of the

press, among others—all have interests in observing the selection of jurors. Id. at

___, 137 S. Ct. at 1909. How best for a trial court “to manage these problems is not

a topic discussed at length in any decision or commentary the Court has found.” Id.

at ___, 137 S. Ct. at 1909.

¶ 34 This court has also analyzed issues surrounding courtroom closures. In People

v. Falaster, 173 Ill. 2d 220, 226 (1996), we held that the trial court did not

impermissibly close the courtroom when it ordered, pursuant to section 115-11 of

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the Code of Criminal Procedure of 1963 (725 ILCS 5/115-11 (West 1992)), the

removal of several spectators from the courtroom during the testimony of the 14-

year-old victim of a sex offense. The defendant had argued that the trial court’s

order excluding spectators had to satisfy not only the requirements of section 115-

11 but also the limitations established in Waller and Press-Enterprise for the

closure of judicial proceedings to the press and public. Falaster, 173 Ill. 2d at 225-

26. We disagreed and found those limitations did not apply where the trial court

had complied with the requirements of section 115-11. Id. at 227-28. In so ruling,

we noted that the persons who were temporarily excluded from the proceedings

were not members of the defendant’s immediate family and, thus, did not have a

direct interest in the outcome of the case. Id. at 228. The trial court in Falaster also

did not impose any restrictions on the media, who were still allowed access to the

proceedings. Id. Consequently, we found that none of the evils of closed trials were

implicated. Id.

¶ 35 Similarly, in People v. Holveck, 141 Ill. 2d 84, 101 (1990), we found that the

defendant’s right to a public trial was not violated where the trial court had closed

the courtroom to spectators during the testimony of alleged child victims of sexual

offenses. The victims’ fathers and a psychologist were allowed to remain in the

courtroom, and the media was also permitted to attend. Id. Although the trial court

did not make a formal declaration of the reasons for closure, we found that the

record demonstrated the reasons and that the trial judge had adequately balanced

the necessary interests and factors before partially closing the courtroom. Id.

¶ 36 Essentially, in this case, defendant asks us to apply the same legal framework

that would be applicable to review of a complete courtroom closure, over a

defendant’s timely objection. In contrast to Waller and the other cases he relies

upon from the Court, he failed to object to the trial court’s closure, which entailed

a partial, not full, closure of the courtroom. As the State notes, under defendant’s

approach, a new trial would automatically be required whenever the trial court fails

to strictly comply with the Waller factors before excluding any spectator from jury

selection despite the lack of a contemporaneous objection. Defendant’s faulty

approach would be irrespective of the decision’s impact on the fairness and

openness of the proceeding, the reason for a defendant’s lack of objection, and the

fact that any possible error in partially closing the courtroom could have been cured

had the defendant objected.

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¶ 37 A contemporaneous objection is particularly crucial when challenging any

courtroom closure. Defendant’s arguments before us illustrate why. He criticizes

the trial court for not making a more detailed finding of fact to support the closure

and for not considering an alternative that would have allowed more members of

the public to be present in the courtroom. Defendant fails to recognize that, if there

is no objection at trial, there is no opportunity for the judge to develop an alternative

plan to a partial closure or to explain in greater detail the justification for it. See

Weaver, 582 U.S. at ___, 137 S. Ct. at 1912. This need to lodge a contemporaneous

objection to a courtroom closure also prevents a defendant from potentially

remaining silent about a possible error and waiting to raise the issue, seeking

automatic reversal only if the case does not conclude in his favor. See People v.

Hampton, 149 Ill. 2d 71, 100 (1992) (“defense counsel could secure a reversal

simply by intentionally failing to object and, by design, depriving the trial court of

the opportunity to prevent or correct the error”).

¶ 38 We further note that the trial court’s partial closure in this case did not occur in

a vacuum without defendant’s knowledge. The defense chose the family members

who remained in the courtroom each day of jury selection. The trial court’s decision

to limit public access to the courtroom therefore required defendant’s cooperation.

¶ 39 Here, defendant was charged with the murder of his two-year-old daughter. The

trial court observed “emotions running high” due to the “nature of the case” when

it determined that a partial closure was necessary. The trial court also expressed

concern about the possibility of having to declare a mistrial if members of the public

reacted or expressed emotion in a way that impacted the venire. See Waller, 467

U.S. at 46 (“The central aim of a criminal proceeding must be to try the accused

fairly ***.”) Additionally, the trial court was aware that this case would require a

large venire in order to find a suitable jury and there were only so many seats in the

courtroom. The trial was expected to last two weeks and was to begin prior to the

Thanksgiving holiday. The parties had also listed approximately 50 potential trial

witnesses.

¶ 40 Because of these considerations, the trial court, while recognizing defendant’s

right to a public trial, attempted to work out a solution. In doing so, the trial court

allowed two family members who favored each side to remain in the courtroom

during jury selection. The court also informed the prospective jurors that it had

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granted a request for media coverage and specifically pointed out the camera in the

courtroom. See Holveck, 141 Ill. 2d at 101 (holding that, by allowing the media to

attend, the judge preserved the defendant’s sixth amendment right to a public trial;

the trial judge considered that the media presence is, in effect, the presence of the

public). After jury selection was complete, the courtroom was open for the

remainder of the trial.

¶ 41 The trial court’s decision to partially close the courtroom did not call into

question the confidence of the public in the integrity and impartiality of the court

system. See People v. Lewis, 234 Ill. 2d 32, 48 (2009) (“Plain-error review focuses

on the fairness of a proceeding and the integrity of the judicial process.” (citing

Herron, 215 Ill. 2d at 177)). Dozens of members of the venire who did not become

jurors, along with the family members from each side who remained in the

courtroom, were able to observe the selection process. They served as the eyes and

ears of the public. There is no assertion that any juror lied or that the State or judge

committed misconduct during jury selection, and there was a complete record made

of the questioning that took place during the closure. See Weaver, 582 U.S. at ___,

137 S. Ct. at 1913.

¶ 42 Under these circumstances, we find the partial closure of the courtroom did not

constitute clear or obvious error by depriving defendant of his sixth amendment

right to a public trial. See Waller, 467 U.S. at 46 (recognizing that the right to a

public trial helps to ensure a fair trial, reminds the State and judge of their

responsibility to the accused and the importance of their functions, encourages

witnesses to come forward, and discourages perjury); see also Falaster, 173 Ill. 2d

at 227 (holding that none of the evils of a closed trial were implicated in the case).

We therefore decline to excuse defendant’s forfeiture.

¶ 43 II. Jury Instructions

¶ 44 Next, defendant contends that he was denied a fair trial because the trial court

issued two jury instructions (Illinois Pattern Jury Instructions, Criminal, Nos.

11.29, 11.30 (4th ed. 2000) (hereinafter IPI Criminal 4th)), describing the mental

state requirement for the offense of child endangerment as “willfully” rather than

“knowingly.”

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¶ 45 Defendant did not object at trial or raise this issue in a posttrial motion. He

claims, however, that the instruction’s use of “willfully” in the absence of the

clarifying instruction of IPI Criminal 4th No. 5.01B, was plain error. 3

Alternatively, he argues that his counsel provided ineffective assistance.

¶ 46 Rule 451(c) provides that “substantial defects” in criminal jury instructions “are

not waived by failure to make timely objections thereto if the interests of justice

require.” Ill. S. Ct. R. 451(c) (eff. Apr. 8, 2013). This rule crafts a limited exception

to the general rule to correct “grave errors” and errors in cases “ ‘so factually close

that fundamental fairness requires that the jury be properly instructed.’ ” Herron,

215 Ill. 2d at 175 (quoting People v. Hopp, 209 Ill. 2d 1, 7 (2004)). Rule 451(c) is

coextensive with the “plain error” clause of Illinois Supreme Court Rule 615(a),

and we construe these rules identically. People v. Downs, 2015 IL 117934, ¶ 14.

¶ 47 Here, following IPI Criminal 4th Nos. 11.29 and 11.30, the trial court instructed

the jury that defendant should be found guilty of child endangerment if the jury

concluded, beyond a reasonable doubt, that he had care or custody over M.R., that

he willfully caused or permitted M.R.’s life to be endangered, and that his acts

proximately caused M.R.’s death.

¶ 48 In People v. Jordan, cited by defendant, this court held that “[a] person violates

the child endangerment statute when he or she ‘willfully cause[s] or permit[s] the

life or health of a child *** to be endangered or *** willfully cause[s] or permit[s]

a child to be placed in circumstances that endanger the child’s life or health.’ ” 218

Ill. 2d 255, 270 (2006) (quoting 720 ILCS 5/12-21.6(a) (West 2002)). This court

recognized that “[w]illful conduct is synonymous with knowing conduct.” Id.

Consequently, “ ‘[c]onduct performed knowingly or with knowledge is performed

willfully, within the meaning of a statute using the latter term, unless the statute

clearly requires another meaning.’ ” Id. (quoting 720 ILCS 5/4-5(b) (West 2002)).

Applying this holding, we concluded that a rational trier of fact could have found

that the defendant knowingly endangered his infant daughter’s life or health by

leaving her unattended in a vehicle. Id.

3

IPI Criminal 4th No. 5.01B, provides that “[c]onduct performed knowingly or with knowledge

is performed willfully.”

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¶ 49 Six years later, the General Assembly amended the child endangerment statute,

effective January 1, 2013, from “willfully” to “knowingly” causes or permits the

life of a child to be endangered. See Pub. Act 97-1109, § 1-5 (eff. Jan. 1, 2013)

(recodifying section 12-21.6 as section 12C-5); see also 720 ILCS 5/12C-5 (West

2014). However, at the time of defendant’s offense, and subsequent indictment, the

child endangerment statute provided, in relevant part, “[i]t is unlawful for any

person to willfully cause or permit the life or health of a child under the age of 18

to be endangered.” (Emphasis added.) 720 ILCS 5/12-21.6(a) (West 2010).

¶ 50 The trial court provided IPI Criminal 4th Nos. 11.29 and 11.30, which tracked

the language of both the indictment and the statute governing the offense in this

case. Neither instruction directs courts to give or to even see IPI Criminal 4th No.

5.01B. In Jordan, we did not hold that it is error to instruct the jury consistent with

the statute or that a trial court must define “willfully” for the jury when no request

is made. We simply recognized, as other courts had done, that “[w]illful conduct is

synonymous with knowing conduct.” Jordan, 218 Ill. 2d at 270. Because the trial

court gave the pattern instructions, which did not require a definitional instruction

on “willfully” and tracked the language of both the statute and indictment, the trial

court did not commit clear or obvious error when instructing the jury.

¶ 51 Defendant similarly has not demonstrated that he received ineffective

assistance of counsel because his attorney failed to challenge the instructions or ask

for a clarification instruction. See People v. Cherry, 2016 IL 118728, ¶ 24 (holding

that, to satisfy the two-pronged test established in Strickland v. Washington, 466

U.S. 668 (1984), a defendant must demonstrate ineffective assistance by showing

that his counsel’s performance was deficient and that this deficient performance

prejudiced the defense). Simply put, defendant cannot show that his attorney’s

performance was deficient for failing to object to instructions that accurately stated

the law and did not require a clarification instruction. See People v. Dupree, 2018

IL 122307, ¶ 44 (to satisfy the deficient performance prong of Strickland, a

defendant must show that his counsel’s performance was so inadequate that he was

not functioning as the counsel guaranteed by the sixth amendment and, also, must

overcome the strong presumption that any challenged action or inaction may have

been the product of sound trial strategy).

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¶ 52 CONCLUSION

¶ 53 For the reasons set forth above, we affirm the judgment of the appellate court

affirming defendant’s conviction and sentence.

¶ 54 Affirmed.

¶ 55 JUSTICE NEVILLE, dissenting:

¶ 56 Following a jury trial in the circuit court of Kankakee County, defendant

Tavarius Radford was found guilty of felony child endangerment (720 ILCS 5/12-

21.6(a) (West 2010)) and was sentenced to 42 months in prison. A divided panel of

the appellate court affirmed. 2018 IL App (3d) 140404. Affirming the judgment of

the appellate court, the majority holds that the trial court did not commit plain error

by (1) excluding all but four members of the public from the courtroom during the

entirety of prospective juror questioning (supra ¶¶ 22-42) and (2) failing to include

in the jury instructions on child endangerment, a required instruction that clarifies

the requisite mental state for the charged offense (supra ¶¶ 44-50).

¶ 57 The majority minimizes the legal impact of a trial court’s deprivation of a

defendant’s constitutional right to a public trial. The majority overlooks the fact

that members of the public also have a constitutional right to be present at a public

trial. The majority misperceives precedent that has established relief when a court

violates a defendant’s constitutional right to a public trial. The majority also

overlooks this court’s clear mandate to give specified Illinois Pattern Jury

Instructions when required. For the following reasons, I would reverse the

judgments of the appellate and trial courts and remand the cause to the trial court

for further proceedings. Therefore, I respectfully dissent.

¶ 58 I. BACKGROUND

¶ 59 A. Charged Offenses

¶ 60 Defendant was charged in an indictment with murder, involuntary

manslaughter, and felony child endangerment. The indictment charged that

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defendant caused traumatic head injuries to his 26-month-old daughter, M.R.,

resulting in her death. Defendant was 17 years old at the time he was alleged to

have committed these offenses. The jury acquitted defendant of murder and

involuntary manslaughter but convicted him of felony child endangerment.

¶ 61 B. Voir Dire

¶ 62 Jury selection took place on November 18 and 19, 2013. On the first day of jury

selection and prior to the start of voir dire (the preliminary questioning of

prospective jurors), the trial court sua sponte decided to close the courtroom to all

members of the public except for “two individuals from the victim’s family and

two individuals from the defendant’s family.” During the two days of jury selection,

the trial court failed to make any finding that (1) closure was justified by an

overriding interest, (2) closure was no broader than necessary to protect that

interest, and (3) the court considered reasonable alternatives to closure pursuant to

Waller v. Georgia, 467 U.S. 39, 48 (1984).

¶ 63 Instead of considering the Waller factors, the trial court stated:

“What I’m gonna do during jury selection, it’s gonna be difficult—it’s a public

proceeding, jury selection, but here’s the problem. There’s only so many seats,

and I am going to allow during jury selection say two individuals from—I—I

take the—the courtroom appears to be divided, okay, between perhaps people

here in support of the defendant and individuals here more or less in—in—not

in support of the defendant, and I will allow two individuals from the victim’s

family and two individuals from the defendant’s family to be present during

jury selection and there may not even be room for you, but you cannot talk to

any particular—any jurors.

***

So at this time we’re gonna bring the jurors up. I am going to clear the

courtroom with the exception of the two people from each side ***.”

¶ 64 Prior to bringing the prospective jurors into the courtroom to begin their

preliminary questioning, the trial court excluded all but four members of the public

from the courtroom, stating:

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“All right. Folks, at this time I’m gonna ask that with the exception—the very

limited exception of those who are permitted to remain in the courtroom, I’m

gonna ask that everyone else step out and make room for the jurors who are

now coming in. Thank you very much.”

Neither defendant nor his counsel objected to the trial court’s exclusion of all but

four members of the public from the courtroom during the questioning of

prospective jurors.

¶ 65 Thirty prospective jurors were called for preliminary questioning. In the first

panel of 14 prospective jurors, 4 were excused for cause, 6 were excused with

peremptory challenges, and 4 were selected as jurors. In the second panel of 16

prospective jurors, 6 were excused for cause, 4 were excused with peremptory

challenges, and 6 were selected as jurors. At the conclusion of the first day of jury

selection, 10 jurors were selected and sworn.

¶ 66 On the second day, prior to bringing out the second panel of prospective jurors,

the trial court reminded the members of the public sitting in the courtroom of its

prior decision to exclude all members of the public from the courtroom, except for

two people from each family, stating:

“I’m gonna limit it to two people for jury selection *** two individuals from—

associated with the defendant’s family, two individuals associated with the

alleged victim’s family can be in the courtroom.”

¶ 67 Nineteen prospective jurors were brought into the courtroom. The trial court

informed counsel and the prospective jurors that a “request” for media coverage of

the court proceedings had been granted and pointed out a camera located in the

courtroom. The trial court stated that the media was allowed to film and photograph

the courtroom setting, the participants in the trial, and any persons who might be in

the audience, but the media was not allowed to film or photograph the jurors.

¶ 68 After six prospective jurors were excused for cause or other reasons, jury

selection proceeded with the remaining people in the jury pool. One juror was

excused for cause, two jurors were excused by the State, an alternate juror was

excused by the defense, and two jurors and three alternates were selected and

sworn. After jury selection was completed, the trial court permitted the public,

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family members, and spectators to reenter the courtroom.

¶ 69 C. Evidence Presented at Trial

¶ 70 On October 26, 2011, at approximately 10 a.m., Kayleigh Reardanz found her

daughter, M.R., unresponsive in the Bourbonnais apartment she and defendant

shared with her grandparents, Cheryl and David Heather. Kayleigh’s friends,

Kimberly and Echo Brewington, were also living in the apartment.

¶ 71 By the time M.R. arrived at the hospital, she had fallen into cardiac arrest.

Attempts to resuscitate M.R. were unsuccessful, and she died shortly after 11 a.m.

Dr. Valerie Arangelovich, the forensic pathologist who performed M.R.’s autopsy,

opined that her death was caused by blunt head trauma from child abuse, and M.R.’s

death certificate stated that the manner of death was homicide due to child abuse.

¶ 72 Trial testimony was presented delineating M.R.’s medical history, which

included several accidental falls where M.R. hit her head. Kayleigh testified that,

shortly after M.R. was born in August 2009, she developed a blue sclera (the tough

fibrous outer layer of tissue covering all of the eyeball except the cornea) and grew

to be unusually large for a child her age. Her pediatrician believed these were

symptoms of “osteogenesis imperfecta” (brittle bone disease) and recommended a

blood test and consultation with a geneticist. After receiving M.R.’s blood test

results, Kayleigh and defendant decided not to consult with a geneticist.

¶ 73 In January or February 2011, M.R. fell and hit her head while defendant was

babysitting her. Defendant took M.R. to a hospital emergency room, where they

were met by Kayleigh, who noticed a “knot” on M.R.’s forehead. M.R.’s computed

tomography (CT) scans were negative, and she was discharged by the treating

physician.

¶ 74 Kayleigh testified that weeks later, while her friend was babysitting, M.R. fell

and “split her eyebrow open.” Then, on Easter, M.R. slipped in Kayleigh’s mother’s

bathtub and “busted her chin.” On both occasions, M.R. was taken to the hospital

emergency room for medical care and treatment.

¶ 75 In September 2011, M.R.’s pediatrician diagnosed her with mild anemia. On

October 13, 2011, M.R. returned to her pediatrician due to a large rash on her chest.

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Kayleigh also showed the pediatrician bite marks on M.R.’s arm where she had

bitten herself. The pediatrician opined that M.R.’s self-harm stemmed from

behavioral issues unrelated to the rash. Kayleigh testified that, after M.R.’s rash

subsided, she and defendant decided not to take her for bleeding and bruising panels

ordered by her pediatrician.

¶ 76 On October 22, 2011, four days before her death, M.R. and Kayleigh were

outside playing when M.R. fell and hit her head on the pavement. According to

Kayleigh, M.R. was chasing her, and she heard a “big bang” when M.R.’s head hit

the ground. M.R. cried and told Kayleigh that the back of her head hurt. Kayleigh

testified that she noticed some redness but did not notice any other signs of injury

and did not take M.R. to the hospital. As a precaution, Kayleigh kept M.R. awake

for at least one hour after her fall just in case she had a concussion.

¶ 77 Kayleigh and Echo gave conflicting testimony about whether M.R. suffered

another fall one day or three days prior to her death. Describing the fall, Kayleigh

and Echo testified that, during a tantrum, M.R. threw herself backward and hit her

head on the parking lot pavement outside of their apartment complex. Echo heard

M.R.’s head hit the pavement and said it was a “bad fall.” M.R. complained of head

pain but did not want anyone to touch the back of her head.

¶ 78 Kayleigh and Cheryl testified that later that night, while M.R. was getting her

hair styled, she complained of pain in the back of her head. They examined her head

but did not see any signs of injury. Kayleigh testified that these events occurred the

day before M.R.’s death, while Echo claimed they occurred three days before

M.R.’s death.

¶ 79 Kayleigh spoke with the police at the hospital and a second time days after

M.R.’s death. During these conversations, Kayleigh did not disclose M.R.’s

medical history or her prior falls because she believed that M.R. died from Sudden

Infant Death Syndrome (SIDS). After the coroner informed Kayleigh and defendant

that it had been determined that M.R. died from blunt force head trauma caused by

child abuse, Kayleigh met with the police and informed them about M.R.’s medical

history and about M.R.’s prior falls.

¶ 80 When defendant elected not to testify at his trial, the jury was allowed to view

his videotaped police interview. Defendant was 17 years old at the time he was

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arrested and interrogated by Detective Brett Bukowski. Detective Bukowski used

the so-called “Reid Technique,” which the trial court noted at sentencing was a

controversial and coercive method of police interrogation in which the object is to

convince the suspect that confessing is in the suspect’s best interest. During the

interrogation, Detective Bukowski lied to defendant by telling him the evidence

showed that he committed an act of abuse that caused M.R.’s death. The officer

suggested that defendant committed the act of abuse sometime within 24 hours of

M.R.’s death.

¶ 81 Defendant told the officer that on the afternoon of the day before M.R.’s death,

he tucked her into bed to take a nap. A few minutes later he checked on M.R. and

discovered that, instead of sleeping, she was playing with a wooden unicorn plaque.

Defendant became annoyed that M.R. was not sleeping and tucked her back into

bed “kind of roughly.” He grabbed M.R. by her arms and pushed her from a sitting

position onto her back on the soft daybed. Defendant indicated that he was on his

knees at the time and that he held onto M.R.’s arms the whole time.

¶ 82 Defendant demonstrated on a stuffed bear, but he told police that the

demonstration did not accurately depict how he tucked M.R. into the daybed.

Defendant told police that he did not believe M.R. could have been hurt or injured

by the way he tucked her into the daybed.

¶ 83 Detective Bukowski then suggested that M.R. must have hit her head on some

object behind the daybed. Defendant then speculated that M.R. “could have” hit her

head on the wooden plaque but added that, if this occurred, it was accidental.

¶ 84 The jury also heard conflicting expert testimony regarding the manner of M.R.’s

death. The experts agreed that the subdural injuries M.R. sustained were a direct

cause of her death—they disagreed as to whether these injuries occurred within 24

hours of her death.

¶ 85 Dr. Arangelovich opined that M.R.’s death was caused by blunt head trauma

from child abuse. Dr. Arangelovich observed subgaleal and subdural hemorrhages

in the back of M.R.’s head. She testified that the accidental falls M.R. experienced

prior to her death could have caused the subgaleal hemorrhages. However, the

doctor opined that the subgaleal hemorrhages did not cause M.R.’s death—the fatal

injury was the subdural hemorrhage, which she opined occurred within 24 hours of

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M.R.’s death. Dr. Arangelovich opined that the subdural injuries occurred within

24 hours of death based on their color and lack of healing.

¶ 86 Dr. Shaku Teas, a forensic pathologist, found no signs of child abuse in M.R.’s

autopsy record. Dr. Teas believed that M.R.’s head injuries were consistent with

the accidental falls she experienced prior to her death and opined that the head

injuries she sustained in those falls caused her death. Dr. Teas claimed it was

impossible to determine when M.R. sustained her subdural injuries because Dr.

Arangelovich failed to take blood and tissue samples from the periphery of the

injuries where healing typically begins. Dr. Teas opined that the multiple signs of

healing observed in the samples taken from the center of the subdural injuries

indicated that the injuries’ periphery would have likely shown additional signs of

healing which would more accurately determine their age. Dr. Teas opined that

M.R.’s subdural injuries were definitely more than 24 hours old when she died and

that she sustained these injuries before defendant “roughly” tucked her into bed.

¶ 87 D. Jury Instructions

¶ 88 At the close of the evidence, the trial court instructed the jury on the charged

offenses. The trial court gave an instruction based on Illinois Pattern Jury

Instructions, Criminal, Nos. 11.29, 11.30 (4th ed. 2000) (hereinafter IPI Criminal

4th) on child endangerment, which instructed the jury that “[a] person commits the

offense of endangering the life or health of a child when he has the care or custody

of a child and willfully causes or permits the life of that child to be endangered and

such acts proximately caused the death of that child.”

¶ 89 The trial court instructed the jury that in order to sustain the charge of

endangering the life or health of a child, the State must prove the following three

propositions beyond a reasonable doubt: (1) that defendant had the care or custody

of M.R., (2) that he willfully caused or permitted the life of M.R. to be endangered,

and (3) that his acts proximately caused her death. The trial court explained that the

requisite mental state for the offense of child endangerment is satisfied if the State

proved beyond a reasonable doubt that the defendant willfully caused or permitted

the life of M.R. to be endangered.

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¶ 90 E. Jury Verdict and Sentence

¶ 91 The jury acquitted defendant of murder and involuntary manslaughter but

convicted him of felony child endangerment. At sentencing, it was noted that

defendant had no criminal history or prior arrests. The trial court sentenced

defendant to a 42-month prison term and credited defendant for time served

awaiting trial.

¶ 92 F. Appellate Court Decision

¶ 93 Defendant filed a direct appeal. He argued that (1) the State failed to prove that

his actions proximately caused M.R.’s death or that he willfully endangered her

life; (2) the trial court violated his right to a fair trial when it instructed the jury with

an instruction for the offense of child endangerment that failed to include the third

paragraph of IPI Criminal 4th No. 5.01B, which provides that “[c]onduct performed

knowingly or with knowledge is performed willfully” or, in the alternative, his

counsel was ineffective for failing to object to the instruction; and (3) the trial court

violated his constitutional right to a public trial by excluding all but four members

of the public from the courtroom during the questioning of prospective jurors.

¶ 94 A divided panel of the appellate court affirmed. 2018 IL App (3d) 140404. The

court determined that (1) the evidence adduced at trial was sufficient to prove

beyond a reasonable doubt that defendant both proximately caused the death of

M.R. and that he possessed the requisite mental state at the time of the offense and

(2) no error was committed by the trial court when it instructed the jury on the

mental state for the offense of child endangerment. Id. ¶¶ 36-47.

¶ 95 Finally, the court determined that defendant forfeited his argument that his right

to a public trial was violated because he failed to object when the trial court

excluded all but four members of the public during jury selection. Id. ¶ 54. The

court further held that the claim was not reviewable as second-prong plain error

based on its finding that the partial closure of the courtroom amounted to a “trivial

closure” that did not implicate defendant’s constitutional right to a public trial. Id.

¶¶ 55-60.

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¶ 96 The dissenting justice disagreed with the majority’s finding that the exclusion

of all but four members of the public during jury selection was “trivial.” Id. ¶¶ 73-

74 (McDade, J., dissenting). The dissenting justice maintained that a “closure is not

trivial when it occurs for the entirety of the voir dire proceedings.” Id. ¶ 73.

¶ 97 The dissenting justice also maintained that the trial court’s exclusion of all but

four members of the public during the entirety of jury selection amounted to clear

error, which was not “trivial” but constituted second-prong error. Id. ¶¶ 69, 73-77.

According to the dissenting justice “an error occurred, enabling plain-error review

because the trial court violated defendant’s right to a public trial.” Id. ¶ 74. The

dissenting justice concluded that defendant was entitled to a new trial due to the

trial court’s violation of his constitutional right to a public trial. Id. ¶ 77.

¶ 98 Defendant appeals to this court. I note that defendant was sentenced in March

2014. Therefore, he could already have served his sentence. “However, the

nullification of a conviction unquestionably may have important consequences to a

defendant, whether or not the attendant sentence has been served. In such

circumstances, the probability that a criminal defendant may suffer collateral legal

consequences from a sentence already served precludes a finding of mootness.”

(Internal quotation marks omitted.) People v. Brown, 2013 IL 114196, ¶ 33; see

People v. Jordan, 218 Ill. 2d 255, 263 (2006). Accordingly, because this juvenile

defendant may suffer collateral legal consequences, we properly consider his

appeal.

¶ 99 II. ANALYSIS

¶ 100 Before this court, defendant assigns two errors to the trial court. Defendant

contends that the trial court violated his constitutional right to a public trial by

excluding all but four members of the public from the courtroom during the entirety

of prospective juror questioning. Defendant also contends the trial court denied him

a fair trial by instructing the jury with an instruction for the offense of child

endangerment that failed to include the definition of “willfully” provided in the

third paragraph of IPI Criminal 4th No. 5.01B.

¶ 101 The State’s threshold response is that defendant has procedurally defaulted both

issues. The record shows that defendant failed to object at trial regarding each

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alleged error and failed to include each issue in his posttrial motion. To preserve an

issue for appellate review, a defendant must object both at trial and in a posttrial

motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Defendant acknowledges that

he failed to preserve these issues for appellate review. Accordingly, these issues are

procedurally forfeited. See, e.g., People v. Bannister, 232 Ill. 2d 52, 76 (2008);

People v. Naylor, 229 Ill. 2d 584, 592 (2008).

¶ 102 However, defendant seeks review by invoking the plain-error doctrine of

Illinois Supreme Court Rule 615(a) (eff. Jan. 1, 1967). The doctrine serves as a

narrow and limited exception to the general rule of procedural default. People v.

Walker, 232 Ill. 2d 113, 124 (2009). A reviewing court may address a forfeited

claim when a clear or obvious error occurs and (1) “the evidence is so closely

balanced that the error alone threatened to tip the scales of justice against the

defendant, regardless of the seriousness of the error” or (2) “that error is so serious

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

the judicial process, regardless of the closeness of the evidence.” People v.

Piatkowski, 225 Ill. 2d 551, 565 (2007) (citing People v. Herron, 215 Ill. 2d 167,

186-87 (2005)). “Under the second prong of plain-error review, prejudice to the

defendant is presumed because of the significance of the right involved.” People v.

Lewis, 234 Ill. 2d 32, 47 (2009). Under both prongs of the plain-error doctrine, the

burden of persuasion remains with the defendant. When a defendant fails to

establish plain error, the reviewing court must honor the procedural default. Naylor,

229 Ill. 2d at 593.

¶ 103 The initial step in conducting a plain-error analysis is to determine whether

error occurred at all, which requires a substantive review of the issue. In re

Samantha V., 234 Ill. 2d 359, 368-69 (2009); Walker, 232 Ill. 2d at 124-25. I now

review the two issues presented for plain error.

¶ 104 A. Defendant Was Denied the Constitutional Right to Public Trial

¶ 105 Defendant contends that the trial court committed clear or obvious error by

excluding the public, with the exception of four individuals, from the entirety of

prospective juror questioning. Defendant further contends that this error was not

trivial. Therefore, according to defendant, the trial court’s error constitutes second-

prong plain error. Defendant asks us to reverse his conviction and remand for

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further proceedings.

¶ 106 1. Did Clear or Obvious Error Occur?

¶ 107 Defendant contends that the trial court’s exclusion of all but four members of

the public from the courtroom during the entire questioning of prospective jurors

(A) violated his right to a public trial guaranteed by the sixth amendment to the

United States Constitution (U.S. Const., amends. VI, XIV) and (B) the right of the

public to attend the trial guaranteed by the first amendment (U.S. Const., amend.

I). Although defendant cites to our state constitutional public trial guaranty (Ill.

Const. 1970, art. I, § 8), he does not offer any argument specifically addressed

thereto. Accordingly, I consider only federal constitutional principles. See, e.g.,

People v. Nielson, 187 Ill. 2d 271, 280 (1999). The standard of review for

determining whether an individual’s constitutional rights have been violated is

de novo. People v. Hale, 2013 IL 113140, ¶ 15.

¶ 108 a. Courtroom Audience: The Power of Observation

¶ 109 Before discussing the constitutional recognition of the courtroom audience, I

examine its important and distinct identity. As a noted scholar has explained that

“[t]o protect the local criminal court audience is”

“to recognize the power that can come from observation itself. Consider the

effects that an audience can have on a routine criminal proceeding—for

example, an arraignment or a plea allocution—at which no jurors are present.

When community members gain access to a nontrial courtroom, their presence

in court does not just affect the case that they are there to see. The effect of their

presence in the courtroom can be to change the nature of the nontrial

proceedings as well. Audience members watch the players in the courtroom;

they react to what they see and hear ***. Most of all, they sit, look, and listen.

Their presence can have a palpable effect on the speakers in the courtroom.

Simply by sitting and listening, audience members have the potential to play

out *** one of the central historical functions of observers in adjudication:

‘denying the government and disputants unchecked authority to determine the

social meanings of conflicts and their resolutions.’

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The audience’s power, born from its physical presence in the courtroom, is

bolstered by its ability to act based on what it hears: not only through voting for

district attorneys, sheriffs, and sometimes judges, but also by contributing to

public discourse at local gatherings, protests, or even in casual conversations

with neighbors. Witnessing local criminal justice policies at play in routine

cases informs audience members’ opinions about the efficacy and fairness of

those policies. Those audience members can then engage in conversation and

debate in informal settings—with family members, neighbors, co-workers, and

even while waiting in line at the courthouse—that contribute to the flow of

opinion in the ‘wild’ (that is, unregulated) public sphere. These informal

methods of political participation are crucial if ‘affected locals’ are to have

input into more formal political decisionmaking. Indeed, modern courtrooms

are often the sole sites in which the public can witness the adjudication of

disputes and thereby hold the state accountable for the ways in which it

administers that adjudication. In these ways, the potential for audience

empowerment through observation contributes to both the legitimacy and the

overall fairness of proceedings.

The act of observing can also connect audience members to outside

movements for social and legal change, including those movements that focus

explicitly on local issues of policing, prosecution, and punishment. Some local

movements recognize the political power that comes from courtroom

observation; these movements include organizing initiatives that gather

community members to attend court in support of young people accused of

crimes and ‘courtwatch’ programs, volunteer networks that promote the

prosecution of specific categories of crimes—often domestic violence—by

following specific cases and attending court when those cases are on the

calendar.” Jocelyn Simonson, The Criminal Court Audience in a Post-Trial

World, 127 Harv. L. Rev. 2173, 2182-83 (2014).

Further, it is recognized that a criminal courtroom audience is likely to be composed

of people of color:

“Who are the members of the criminal court audience? They are people who

wait in lines and fill courtrooms to watch the cases in which they or their friends,

family, or community members appear as victims, defendants, or witnesses to

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a crime. As such, they are more likely than not to be poor people, people of

color, or both. Overwhelmingly, people arrested for crimes in the United States

are poor people of color, predominantly African Americans and Latinos.

Victims, too, disproportionately come from the same communities. In contrast,

many affluent Americans and white Americans do not set foot in a criminal

courthouse unless they are called for jury service or to act in a professional

capacity. As a consequence, even in counties with majority-white populations,

it is not surprising to walk into a local criminal courtroom and find an audience

consisting overwhelmingly of individuals of color. To be sure, not every single

audience member in every single courtroom is a poor person of color: some

defendants, victims, and their supporters come from privileged backgrounds;

the institutional press reports on particularly famous or sordid cases; school

groups attend court to learn about the criminal justice system; and some

courtwatching groups are made up of middle-class citizens who want to monitor

the ways in which courts treat other groups. My contention, however, is that

these are rare occurrences in state criminal courtrooms.

The criminal court audience on which I focus represents a constituency with

a significant stake in the workings of the criminal justice system—they are

there, after all, because they are personally affected by at least one case on the

calendar. While they wait for that one case to be called, audience members also

watch the other cases that come before the same judge: cases involving other

people accused of crimes that occurred within their community. As many

scholars have shown, crimes, arrests, and prosecutions affect not only

individuals, but also entire communities. The ‘affected locals’ in the audience,

then, are witnessing cases that not only affect their own lives, but also have

acute effects on the common experiences they share with their neighbors.

Moreover, attending and observing the adjudication of low-level criminal cases

is, for many people, their most frequent form of interaction with the workings

of their local government.” Id. at 2185-86.

¶ 110 b. Courtroom Audience Members Differ From Jurors and the Press

¶ 111 Asserting that the trial court’s nearly total closure of the courtroom did not

constitute second-prong plain error, the majority reasons: “Dozens of members of

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the venire who did not become jurors, along with the family members from each

side who remained in the courtroom, were able to observe the selection process.

They served as the eyes and ears of the public.” Supra ¶ 41.

¶ 112 The majority’s rationalization misperceives the distinct identity of a courtroom

audience and how it differs from that of a jury:

“These features of the audience’s experiences stand in sharp contrast to the

experiences of juries. Unlike audience members, jurors must be disinterested

residents of the county—to be picked for a jury, they generally cannot have any

familiarity with the parties or the circumstances of the incident in question.

When deliberating, they are required to ignore any outside opinions about

criminal justice policy and instead apply the law to the facts as instructed. The

audience, in contrast, is made up of interested members of the community—

individuals in attendance precisely because they care and know about at least

one case on the day’s calendar. The audience is permitted to relate what it sees

and hears to its larger experiences and make connections to local policy

decisions, while the jury—as well as the judge and the parties—must confine

their statements and analyses to the case at hand.

In addition, while audiences contain many men of color and noncitizens,

juries are unlikely to include substantial numbers of either population. This

phenomenon occurs because, in addition to excluding noncitizens, the majority

of states and the federal government ban from jury service anyone convicted of

a felony, which excludes approximately thirty percent of African American

men from jury service. Indeed, men are underrepresented on juries. Even for

minorities allowed into the jury pool, evidence suggests that they are more

likely to be eliminated from criminal jury panels, especially in serious or capital

cases. The poor and the homeless are also unlikely to serve on juries due to

permanent residence requirements. Moreover, because courts draw jury pools

at the county level, venires themselves do not start out as representative of the

neighborhoods within those counties that are most affected by criminal justice

policies. In these ways, the criminal court audience has greater exposure to the

criminal justice system, but less input into its governing laws and policies, than

do jurors from more affluent neighborhoods in the same county.

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Audience members are not asked to ‘serve’ as disinterested factfinders and

communal representatives. Nor are they attracted to the courthouse by famous

or newsworthy stories in the way that the institutional press is. Instead, audience

members arrive at their local courthouse because of actual events in their

communities that have affected them or their loved ones. Most audience

members are not there by choice; they are there because they have been drawn

into the criminal justice system in a way that may very well have been beyond

their control. But, if they can get through the courtroom doors, they have an

effect on the proceedings they witness and serve a series of functions that are

directly related to democratic values.” (Emphasis in original.) Simonson, supra,

at 2189-90.

In summation:

“As long as there are arrests and prosecutions, the audience will not stop

seeking entry into courtrooms, and they will not stop listening to what is said

there. *** The courtroom is full of poor people and people of color who have

been drawn into the criminal justice system as defendants, victims, and their

families, neighbors, and supporters, but who have little input into the priorities

and policies governing that system. If the system includes them in the

courtroom and acknowledges their presence, then they can serve an important

constitutional function in the absence of the jury.” Id. at 2194-95.

¶ 113 c. The Exclusion of the Courtroom Audience

¶ 114 Scholars recognize that “criminal court audiences are excluded from

courtrooms across the United States. These practices of exclusion underscore and

reinforce the political inequalities described above, interfering with audience

members’ ability to fulfill their constitutional role as democratic participants in

routine criminal justice.” Id. at 2190. “Physical exclusion also takes place when

courthouse administrators follow a practice of excluding community members from

courtrooms due to lack of space. *** This trend is repeated around the nation,

usually accompanied by official statements regarding concerns with overcrowding

and safety.” Id. at 2192.

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¶ 115 d. Defendant’s Constitutional Right to a Courtroom Audience

¶ 116 The unique identity and function of a criminal court audience is incorporated in

constitutional law:

“[T]he criminal court audience is not just normatively important; it is

constitutionally important. The criminal court audience is protected by both the

defendant’s right to a public trial under the Sixth Amendment and the public’s

right to access criminal proceedings—the ‘freedom to listen’—under the First

Amendment. As a result, the audience can and should be a central constitutional

mechanism for popular accountability in modern criminal justice.” (Emphasis

in original.) Id. at 2176.

¶ 117 The United States Supreme Court has explained that the right to a public trial

is grounded “upon two different provisions of the Bill of Rights, both applicable to

the States via the Due Process Clause of the Fourteenth Amendment.” Presley v.

Georgia, 558 U.S. 209, 211-12 (2010) (per curiam).

¶ 118 In Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501 (1984),

the Court extended the first amendment right of the press and public to attend a

criminal trial “not only to the trial as such but also to the voir dire proceeding in

which the jury is selected.” Waller, 467 U.S. at 44-45; see Press-Enterprise, 464

U.S. at 509 n.8 (“By contrast, the question we address—whether the voir dire

process must be open—focuses on First *** Amendment values and the historical

backdrop against which the First Amendment was enacted.”); Press-Enterprise,

464 U.S. at 516 (Stevens, J., concurring) (“The constitutional protection for the

right of access that the Court upholds today is found in the First Amendment, rather

than the public trial provision of the Sixth.”). “The public has a right to be present

[at voir dire] whether or not any party has asserted the right.” Presley, 558 U.S. at

214.

¶ 119 The Court in Press-Enterprise explained as follows:

“The value of openness lies in the fact that people not actually attending trials

can have confidence that standards of fairness are being observed; the sure

knowledge that anyone is free to attend gives assurance that established

procedures are being followed and that deviations will become known.

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Openness thus enhances both the basic fairness of the criminal trial and the

appearance of fairness so essential to public confidence in the system.”

(Emphasis in original.) Press-Enterprise, 464 U.S. at 508.

“Closed proceedings, although not absolutely precluded, must be rare and only for

cause shown that outweighs the value of openness.” Id. at 509. The Court described

a “presumption of openness” that may be overcome only by “an overriding interest

based on findings that closure is essential to preserve higher values and is narrowly

tailored to serve that interest. The interest is to be articulated along with findings

specific enough that a reviewing court can determine whether the closure order was

properly entered.” Id. at 510.

¶ 120 e. Sixth Amendment Right of the Accused

¶ 121 In addition, the sixth amendment provides in relevant part: “In all criminal

prosecutions, the accused shall enjoy the right to a speedy and public trial ***.”

U.S. Const., amend. VI. This sixth amendment right is the right of the accused.

Presley, 558 U.S. at 212. The Court in Waller concluded that “ ‘there can be little

doubt that the explicit Sixth Amendment right of the accused is no less protective

of a public trial than the implicit First Amendment right of the press and public.’ ”

Id. (quoting Waller, 467 U.S. at 46). Thus, under both the first and sixth

amendments, the right to a public trial extends to the jury selection phase of trial,

particularly the questioning of prospective jurors. Id. at 213.

¶ 122 “While the accused does have a right to insist that the voir dire of the jurors be

public, there are exceptions to this general rule.” Id. Supreme Court case law has

clearly established:

“[T]he right to an open trial may give way in certain cases to other rights or

interests, such as the defendant’s right to a fair trial or the government’s interest

in inhibiting disclosure of sensitive information. Such circumstances will be

rare, however, and the balance of interests must be struck with special care.”

Waller, 467 U.S. at 45.

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¶ 123 f. Standards for Excluding the Public From a Criminal Trial

¶ 124 The majority fails to consider the Waller factors that are used to evaluate

whether the public has been properly excluded from a jury trial. “Waller provided

standards for courts to apply before excluding the public from any stage of a

criminal trial[.]” Presley, 558 U.S. at 213. According to the Court’s decisional law:

“ ‘[(i)] [T]he party seeking to close the hearing must advance an overriding

interest that is likely to be prejudiced, [(ii)] the closure must be no broader than

necessary to protect that interest, [(iii)] the trial court must consider reasonable

alternatives to closing the proceeding, and [(iv)] it must make findings adequate

to support the closure.’ ” Id. at 214 (quoting Waller, 467 U.S. at 48).

The application of the four-factor “Waller test,” also known as the “overriding

interest test,” must rebut “the presumption of openness.” See Press-Enterprise, 464

U.S. at 510.

¶ 125 Applying these controlling fundamental principles to the case at bar, I would

hold that the trial court committed clear or obvious error. In affirming the trial

court’s judgment, the appellate court misapprehended and misapplied these

controlling and fundamental principles.

¶ 126 The appellate court erroneously maintained that the overriding interest test for

public trial closure “is distinguishable from this case in two ways.” 2018 IL App

(3d) 140404, ¶ 57. First, the appellate court maintained that the overriding interest

test did not apply here because defendant did not contemporaneously object to

closure. Id. However, this reasoning begs the question of whether defendant’s

procedural default should be honored or excused based on plain error. Second, the

appellate court concluded that “the trial court’s partial closure was, according to the

record, prompted by unusually large public attendance in this specific case.” Id.

However, this reason, by itself, in no way addresses, much less rebuts, the

“presumption of openness” that attached to this criminal trial. Press-Enterprise,

464 U.S. at 510.

¶ 127 In support of the appellate court’s decision, the State contends that the trial

court’s exclusion of all but four members of the public during the entire questioning

of prospective jurors was not clear or obvious error. The State does not argue that

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this exclusion satisfied Waller’s overriding interest test. Rather, the State urges this

court to adopt another test specifically for partial closures and argues that the instant

partial closure met that standard.

¶ 128 Waller did not distinguish between total and partial closure of criminal trials. A

“total closure” involves excluding all spectators from the courtroom for some

period, with only attorneys and court staff remaining. A “partial closure” involves

excluding one or more, but not all, spectators for some period. United States v.

Simmons, 797 F.3d 409, 413 (6th Cir. 2015); State v. Turrietta, 2013-NMSC-036,

¶ 16, 308 P.3d 964. Of course, “some partial closures might approach a total closure

in practical effect.” (Internal quotation marks omitted.) Turrietta, 2013-NMSC-

036, ¶ 16.

¶ 129 Almost all federal courts of appeals have distinguished between the total closure

of proceedings and situations in which a courtroom is only partially closed to

certain spectators. Simmons, 797 F.3d at 413. “These courts reasoned that a less

stringent standard was justified because a partial closure does not implicate the

same secrecy and fairness concerns that a total closure does.” Woods v. Kuhlmann,

977 F.2d 74, 76 (2d Cir. 1992). Accordingly, these courts “modify the Waller test

so that the ‘overriding interest’ requirement is replaced by requiring a showing of

a ‘substantial reason’ for a partial closure, but the other three factors remain the

same.” Simmons, 797 F.3d at 414; see Woods, 977 F.2d at 77-78 (applying

remaining three Waller factors).

¶ 130 However, several state courts have applied the Waller overriding interest test to

partial closures of trials. See, e.g., Turrietta, 2013-NMSC-036, ¶ 19;

Commonwealth v. Cohen, 921 N.E.2d 906, 921 (Mass. 2010) (collecting cases).

These courts reason that the difference between an “overriding interest” and a

“substantial reason” “is not perfectly clear, other than the fact that the reviewing

court knows that the ‘substantial reason’ standard is a more lenient standard than

the ‘overriding interest’ standard.” Turrietta, 2013-NMSC-036, ¶ 19. Further, these

courts reason that Waller’s four-factor analysis “already contemplates a balancing

of competing interests in closure decisions.” People v. Jones, 750 N.E.2d 524, 529

(N.Y. 2001). “Therefore, if a reviewing court is already contemplating a partial

closure, something less than a full closure, that analysis seems to already align with

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the Waller standard’s requirement that the closure be no broader than necessary.”

Turrietta, 2013-NMSC-036, ¶ 19.

¶ 131 Illinois courts have applied the Waller overriding interest test to partial closure

situations. See, e.g., People v. Falaster, 173 Ill. 2d 220, 225-28 (1996); People v.

Holveck, 141 Ill. 2d 84, 100-03 (1990).

¶ 132 I observe that the majority cites Falaster and Holveck in upholding the trial

court’s erroneous exclusion order. Supra ¶¶ 34-35. However, the majority’s

reliance on those cases is misplaced. Those cases upheld partial closures under

section 115-11 of the Code of Criminal Procedure of 1963 (see 725 ILCS 5/115-11

(West 1992); Ill. Rev. Stat. 1985, ch. 38, ¶ 115-11) to protect the overriding interest

of preventing psychological trauma to minor victims testifying about being sexually

assaulted. Those unique considerations were absent from defendant’s jury

selection. Further, in each of those cases, closure was ordered during the testimony

of only one juvenile witness, while in this case closure was ordered during the

examination of 49 potential jurors during a two-day period.

¶ 133 g. Lack of Courtroom Seating Is Not Overriding Reason

¶ 134 The trial court’s stated reason for the exclusion of all but four members of the

public during the prospective juror questioning was simply a lack of courtroom

seating. One court has declared that insufficient space may well provide a valid

reason for the exclusion of the public during at least some part of prospective juror

questioning when the number of prospective jurors in the jury pool are likely to fill

all or almost all of the available seats (Cohen, 921 N.E.2d at 923), but “if space in

the court room is or becomes available, the judge must make sure that members of

the public who wish to observe the proceedings are not prevented from doing so”

(id. at 924).

¶ 135 However, another court has flatly declared: “Mere courtroom overcrowding is

not an overriding interest justifying courtroom closure ***.” People v. Floyd, 988

N.E.2d 505, 507 (N.Y. 2013). A panel of our appellate court has observed:

“We cannot help but note that the trial court’s concern about space—that

this particular courtroom did not have enough seating for even one member of

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the public—will be true of every criminal case held therein which the trial court

summons a large number of potential jurors and true for other similarly sized

courtrooms. We cannot hold that a defendant may be denied the right to a public

trial under these circumstances.” People v. Evans, 2016 IL App (1st) 142190,

¶ 18.

Accord Presley, 558 U.S. at 215 (rejecting reasoning that permits closure of

voir dire in every criminal case whenever the trial court would prefer to fill the

courtroom with venirepersons rather than spectators).

¶ 136 I need not address the “substantial reason” test specifically for partial closures

of criminal trials. The only difference between the substantial reason test and the

overriding interest test is the eponymous first factor. In the case at bar, the record

does not support the partial closure based on the second and third factors common

to both tests. Regardless of whether available courtroom seating “is a compelling

interest, only a substantial interest, or something less” (In re G.B., 2018 COA 77,

¶ 31), the trial court’s closure did not satisfy the closely connected second and third

Waller factors. Courts of review will not render advisory opinions and ordinarily

will not consider issues that are not essential to the disposition of the cases before

them or where the results are not affected regardless of how the issues are decided.

Peach v. McGovern, 2019 IL 123156, ¶ 64; People v. Brown, 236 Ill. 2d 175, 195

(2010).

¶ 137 h. Trial Court’s Exclusion Order Overly Broad

¶ 138 Contrary to the second Waller factor, the partial closure order here was broader

than necessary. For example, the record shows that seating became available as

prospective jurors were excused during the two days of jury selection. The order

excluding all but four members of the public from the courtroom during the entirety

of jury selection was too broad because it remained in effect even when the

circumstances changed because seating became available when jurors were

excused. See, e.g., Cohen, 921 N.E.2d at 924.

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¶ 139 i. Trial Court Failed to Consider Other Reasonable Alternatives

¶ 140 Also, contrary to the third Waller factor, the trial court failed to consider

reasonable alternatives to the exclusion of all but four members of the public from

the courtroom during the entirety of the two-day jury selection. “[T]rial courts are

required to consider alternatives to closure even when they are not offered by the

parties” and “are obligated to take every reasonable measure to accommodate

public attendance at criminal trials.” Presley, 558 U.S. at 214-15. This obligation

confers an affirmative duty on judges to ensure that members of the public are not

unnecessarily excluded from courtrooms. See State v. Davis, 434 S.W.3d 549, 551

(Mo. Ct. App. 2014) (recognizing that neither the trial court in Presley nor in that

case “proactively sought alternatives to closure”). The majority’s post hoc

rationalization of the trial court’s courtroom closure (supra ¶ 39) cannot substitute

for proper Waller findings by the trial court. See Waller, 467 U.S. at 49 n.8; State

v. Morales, 2019 ND 206, ¶ 23, 932 N.W.2d 106 (“the Waller findings must be

made before a closure. *** Neither we nor the trial court can satisfy the

constitutional command with post-closure rationale for why the closure would have

been justified if the court had made the required findings.” (Emphasis in original.)).

Finally, I note that potential jurors have no constitutional right to be present in the

courtroom during jury selection.

¶ 141 “As a reviewing court, we can conceive reasonable alternatives—many of

which are based in common sense.” Evans, 2016 IL App (1st) 142190, ¶ 15. For

example, one alternative would be keeping potential jurors in jury waiting rooms,

sacred spaces reserved for jurors and not the public, until the potential jurors are to

be questioned by the court and the attorneys. Another possibility could be reserving

some seating for the public. See, e.g., Presley, 558 U.S. at 215. As other courts have

recognized, another possibility could be simply “dividing the jury venire panel to

reduce courtroom congestion.” Id.; see In re Closure of Jury Voir Dire, 516 N.W.2d

514, 516 (Mich. Ct. App. 1994) (“Further, the court gave no reason why every

member of the jury pool had to be in the courtroom at one time. The court

apparently did not even consider keeping some of the prospective jurors in jury

rooms or other parts of the courthouse until it was determined that they were needed

in the courtroom.”). Further, if the trial court contemplated any additional reasons

for excluding all but four members of the public from the courtroom during the

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entirety of jury selection, or alternatives thereto, it did not make any findings for

the record.

¶ 142 “[E]ven assuming, arguendo, that the trial court had an overriding interest in

closing voir dire, it was still incumbent upon it to consider all reasonable

alternatives to closure. It did not, and that is all this Court needs to decide.” Presley,

558 U.S. at 216. I would hold that clear or obvious error occurred. Since this result

obtains under either the overriding interest or the substantial reason test, I need not

and do not consider adoption of the substantial reason test.

¶ 143 2. Was the Error Trivial?

¶ 144 The trial court failed to apply the Waller analysis prior to ordering the exclusion

of all but four members of the public from the courtroom during the entire two-day

jury selection, and the appellate court failed to do so on review. Indeed, the

appellate court failed to even mention Presley in its analysis of this issue. Because

excluding all but four members of the public from the courtroom during the entirety

of jury selection in the case at bar was unjustified (trial court failed to present

overriding reason for closure or reasonable alternative to juror seating), the

presumptive result under Waller is reversal of the conviction. See id. However, the

appellate court cited Peterson v. Williams, 85 F.3d 39, 42 (2d Cir. 1996), for the

proposition that “public trial violations are subject to a ‘triviality standard.’ ” 2018

IL App (3d) 140404, ¶ 56. The appellate court held “that the trial court’s partial

closure during voir dire was trivial” and concluded that no clear error occurred in

this case. Id. ¶ 60.

¶ 145 In Peterson, which the appellate court cited, the United States Court of Appeals

for the Second Circuit explained that a triviality standard is “very different” from a

harmless error inquiry because it does not dismiss a defendant’s claim on the

grounds that the defendant was “guilty anyway,” or that the defendant was not

prejudiced. Rather, a triviality standard looks to “whether the actions of the court

and the effect that they had on the conduct of the trial deprived the defendant—

whether otherwise innocent or guilty—of the protections conferred by the Sixth

Amendment.” Peterson, 85 F.3d at 42. The Second Circuit Court of Appeals

subsequently explained that “it does not follow that every temporary instance of

unjustified exclusion of the public—no matter how brief or trivial, and no matter

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how inconsequential the proceedings that occurred during an unjustified closure—

would require that a conviction be overturned.” Gibbons v. Savage, 555 F.3d 112,

120 (2d Cir. 2009).

¶ 146 In Waller, the Supreme Court explained that the Sixth Amendment guarantee

to a public trial furthered four values: (1) ensuring a fair trial, (2) reminding the

prosecutor and judge of their responsibility to the accused and the importance of

their functions, (3) encouraging witnesses to come forward, and (4) discouraging

perjury. Waller, 467 U.S. at 46. Citing these values (Peterson, 85 F.3d at 43), the

Peterson court held that the closure in that case, which was “extremely short” and

“entirely inadvertent,” did not infringe upon these values. Id. at 43-44. The Second

Circuit Court of Appeals has explained: “Essentially, our analysis turns on whether

the conduct at issue subverts the values the drafters of the Sixth Amendment sought

to protect.” (Internal quotation marks omitted.) Gibbons, 555 F.3d at 121.

¶ 147 In addition to the appellate court in this case, another panel of the appellate

court has cited Peterson in support of a “triviality standard.” See People v. Jones,

2014 IL App (1st) 120927, ¶ 42.

¶ 148 Before this court, defendant contends that a court may not deny a defendant

relief on the ground that the exclusion of all but four members of the public from

the courtroom during the entirety of jury selection was too trivial to violate the sixth

amendment right to a public trial. I agree with defendant.

¶ 149 Initially, it must be remembered that this issue is presented in the context of

second-prong plain error. This court has concluded as follows:

“Contrary to the appellate court, we do not believe a de minimis exception can

be placed on plain error review. The exception would be difficult to implement

because it would require declaring when the dispute becomes significant rather

than de minimis. The question would necessarily arise as to where the line

should be drawn. More importantly, a de minimis exception is inconsistent with

the fundamental fairness concerns of the plain-error doctrine. Plain-error review

focuses on the fairness of a proceeding and the integrity of the judicial process.

[Citations.] An error may involve a relatively small amount of money or

unimportant matter, but still affect the integrity of the judicial process and the

fairness of the proceeding if the controversy is determined in an arbitrary or

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unreasoned manner.” Lewis, 234 Ill. 2d at 48.

¶ 150 Public Trial Is a First and Sixth Amendment Right

¶ 151 It should be noted that a constitutional requirement of a public trial is not only

based on a defendant’s sixth amendment right but is also based on the public’s first

amendment right. Therefore, a determination that a closed proceeding does not

infringe on a defendant’s sixth amendment right to a public trial ignores and fails

to address the “value of openness” that the first amendment guarantees to the

public. Press-Enterprise, 464 U.S. at 508. Waller’s four-factor, overriding-interest

test already balances the competing interests involved and allows closure where

merited. For example, in Press-Enterprise, jury selection involved deeply personal

or sensitive questioning of prospective jurors that may have caused embarrassment.

The overriding interest in protecting the privacy of prospective jurors would have

allowed the trial court to inform them in advance that they may make a request to

discuss a matter in camera but with counsel present and on the record. Id. at 511-

12. “Open justice is just too important to our constitution and our state to allow us

to look for reasons to turn a blind eye to improperly locked courtroom doors.” State

v. Easterling, 137 P.3d 825, 834-35 (Wash. 2006) (en banc) (Chambers, J.,

concurring, joined by Owens and Sanders, JJ.). The Waller factors make it

unnecessary to adopt a “triviality standard.”

¶ 152 Additionally, “[e]ven if we were to indicate a tolerance for so called ‘trivial

closures,’ the closure here could not be placed in that category.” Id. at 831. In

United States v. Gupta, 699 F.3d 682, 689 (2d Cir. 2012), the Second Circuit Court

of Appeals distinguished Peterson as follows:

“Whatever the outer boundaries of our ‘triviality standard’ may be (and we see

no reason to define these boundaries in the present context), a trial court’s

intentional, unjustified closure of a courtroom during the entirety of voir dire

cannot be deemed ‘trivial.’ ”

The Gupta court explained as follows:

“ ‘[T]he value of openness’ that a public trial guarantees ‘lies in the fact that

people not actually attending trials can have confidence that standards of

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fairness are being observed; the sure knowledge that anyone is free to attend

gives assurance that established procedures are being followed and that

deviations will become known.’ [Press-Enterprises, 464 U.S. at 508.] Thus, the

regularity of the proceedings is an important impression with which the courts

should leave observers. While a public presence will more likely bring to light

any errors that do occur, it is the openness of the proceeding itself, regardless

of what actually transpires, that imparts ‘the appearance of fairness so essential

to public confidence in the system’ as a whole. [Press-Enterprises, 464 U.S. at

508.]

Given the exceptional importance of the right to a public trial, excluding the

public for all of voir dire without justification grounded in the record [citations]

is not trivial. Indeed, to conclude otherwise would eviscerate the right entirely.

Absent the triviality exception, reversal is required here because the district

court failed to make Waller findings before excluding the public from the

courtroom.” Id.

¶ 153 The Gupta court concluded that “the importance of the public trial right dictates

that, before closing a courtroom to the public, a trial court must inform the parties

of its intentions and make explicit Waller findings. Failure to comply with this

procedure will, in nearly all cases, invite reversal.” Id. at 690.

¶ 154 In the case at bar, the trial court’s exclusion of all but four members of the

public from the courtroom during the entirety of the two-day jury selection was not

inadvertent, brief, temporary, or inconsequential. See id. at 685. Because Waller

makes it unnecessary to adopt Peterson’s “triviality framework,” I conclude that

the exclusion here clearly was not trivial. See, e.g., People v. Hassen, 2015 CO 49,

¶ 17. I would hold that the trial court violated defendant’s sixth amendment right

to a public trial and the public’s first amendment right to attend a criminal trial.

¶ 155 3. Did the Error Constitute Second-Prong Plain Error?

¶ 156 I have concluded that the trial court clearly erred in excluding all but four

members of the public from the courtroom during the entirety of the two-day jury

selection. I must next consider whether defendant’s procedural default of this issue

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may be excused under the plain-error doctrine. Defendant argues that the trial

court’s clear error falls under the second prong of the plain-error doctrine.

¶ 157 As earlier stated, under the second prong of the plain-error doctrine, a reviewing

court may address a forfeited claim where the error is so serious that it affected the

fairness of the defendant’s trial and challenged the integrity of the judicial process.

Prejudice to the defendant is presumed because of the importance of the right

involved, regardless of the strength of the evidence. Piatkowski, 225 Ill. 2d at 565

(citing Herron, 215 Ill. 2d at 186-87).

¶ 158 Further, it is quite established that constitutional errors are divided into two

classes. One class is labeled “trial error,” which is subject to harmless-error

analysis. The other class of constitutional error, labeled “structural” error, affects

the framework within which the trial proceeds and is not simply an error in the trial

process itself. United States v. Gonzalez-Lopez, 548 U.S. 140, 148 (2006); Neder

v. United States, 527 U.S. 1, 8 (1999). Under the Supreme Court’s “traditional

categorical approach to structural errors,” “a constitutional error is either structural

or it is not.” Neder, 527 U.S. at 14. Structural errors are found in a very limited

class of cases. Id. at 8.

¶ 159 The Supreme Court has recognized three broad rationales for deeming an error

to be structural. First, an error has been deemed structural where the right that was

violated is not designed to protect the defendant from erroneous conviction but

instead protects some other interest. Second, an error is deemed structural because

of the difficulty in assessing the effect of the error. Weaver v. Massachusetts, 582

U.S. ___, ___, 137 S. Ct. 1899, 1908 (2017); see Gonzalez-Lopez, 548 U.S. at 149

n.4. Third, an error is structural if it infects the entire trial process and necessarily

renders a trial fundamentally unfair. Weaver, 582 U.S. at ___, 137 S. Ct. at 1908;

Neder, 527 U.S. at 8-9. Structural errors are so intrinsically harmful as to require

automatic reversal without regard to their effect on the outcome. Neder, 527 U.S.

at 7.

¶ 160 Structural errors include the denial of the right to a public trial. Gonzalez-Lopez,

548 U.S. at 149; Neder, 527 U.S. at 8. This is so because

“[u]nder the rubric of structural error, a courtroom closure that violates

Waller is not subject to harmless error analysis because it would be extremely

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difficult for a defendant to come up with evidence of specific injury resulting

from an improper closure. After all, if the public is excluded from the courtroom

it is difficult, if not impossible, to demonstrate how the presence of spectators

would have deterred perjury, curbed judicial abuse, or advanced the cause of

republican self-government.” Daniel Levitas, Comment, Scaling Waller: How

Courts Have Eroded the Sixth Amendment Public Trial Right, 59 Emory L.J.

493, 524-25 (2009).

¶ 161 Surprisingly, the majority asserts that the trial court’s near-total closure of the

courtroom did not constitute second-prong plain error. Supra ¶ 41. This assertion

overlooks the Supreme Court’s “traditional categorical approach to structural

errors.” Neder, 527 U.S. at 14.

¶ 162 Although this court has not restricted the second prong of our plain-error

doctrine to the six types of structural error that have been recognized by the

Supreme Court (People v. Clark, 2016 IL 118845, ¶ 46), we have equated second-

prong plain error with “structural” error (People v. Thompson, 238 Ill. 2d 598, 613-

14 (2010); People v. Glasper, 234 Ill. 2d 173, 197-98 (2009)). This court has

likewise recognized that the denial of the right to a public trial is “structural” error.

Thompson, 238 Ill. 2d at 609.

¶ 163 “When the constitutionally tainted portion of trial encompasses the entire jury-

selection process, it has been almost universally held that relief involves a new

voir dire and a new jury; perforce, it necessitates a new trial.” Steadman v. State,

360 S.W.3d 499, 510 (Tex. Crim. App. 2012) (collecting cases). Our appellate court

has so held. People v. Willis, 274 Ill. App. 3d 551, 553-54 (1995); People v. Taylor,

244 Ill. App. 3d 460, 468 (1993); see, e.g., Easterling, 137 P.3d at 832 (“The denial

of the constitutional right to a public trial is one of the limited classes of

fundamental rights not subject to harmless error analysis. *** As a result, precedent

directs that the appropriate remedy for the trial court’s constitutional error is

reversal *** and remand for new trial.”).

¶ 164 In the case at bar, however, the appellate court relied on Weaver, 582 U.S. ___,

137 S. Ct. 1899, to conclude that the trial court’s violation of defendant’s right to a

public trial did not result in automatic reversal. Again, the appellate court

misapprehended the controlling principles. Indeed, Weaver itself introduces the

issue presented in that case as follows:

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“In the direct review context, the underlying constitutional violation—the

courtroom closure—has been treated by this court as a structural error, i.e., an

error entitling the defendant to automatic reversal without any inquiry into

prejudice. The question [presented] is whether invalidation of the conviction is

required here as well, or if the prejudice inquiry is altered when the structural

error is raised in the context of an ineffective-assistance-of-counsel claim.” Id.

at ___, 137 S. Ct. at 1905.

¶ 165 The defendant in Weaver raised the ineffective assistance of counsel claim not

on direct review but in a state collateral postconviction proceeding. Id. at ___, 137

S. Ct. at 1906. The Supreme Court “retreated from its historical practice of

uniformly treating a public trial violation as a structural error that presumes

prejudice to the defendant. It concluded that a different approach was appropriate

in instances where a defendant ties together public trial and ineffective assistance

of counsel claims.” Williams v. Burt, 949 F.3d 966, 977 (6th Cir. 2020) (discussing

Weaver). The Supreme Court recognized that the right to a public trial is structural

because it protects interests that do not belong to the defendant and because of the

difficulty in assessing the effect of the error. Weaver, 582 U.S. at___, 137 S. Ct. at

1910.

¶ 166 However, the Supreme Court observed that a trial court may deprive a

defendant of his or her right to an open courtroom by making proper Waller

findings and that a public-trial violation can occur when the trial court omits to

make proper Waller findings. Therefore, the Court reasoned that a public-trial

violation does not always result in a fundamentally unfair trial. Id. at ___, 137 S.

Ct. at 1909-10.

¶ 167 The Court then turned to the specific issue presented: “The question then

becomes what showing is necessary when the defendant does not preserve a

structural error on direct review but raises it later in the context of an ineffective-

assistance-of-counsel claim.” (Emphasis added.) Id. at ___, 137 S. Ct. at 1910. The

Supreme Court concluded that, “when a defendant raises a public-trial violation via

an ineffective-assistance-of-counsel claim, Strickland prejudice is not shown

automatically.” Id. at ___, 137 S. Ct. at 1911. Rather, the defendant must show

either a reasonable probability of a different outcome or that the particular public

trial violation was so serious as to render the trial fundamentally unfair. Id. at ___,

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137 S. Ct. at 1911. And in the specific posture of a collateral proceeding, in which

the defendant seeks a second chance at a public trial claim, having passed on the

claim once before, the defendant carries the burden to demonstrate prejudice. Id. at

___, 137 S. Ct. at 1913. That result strikes “the proper balance between the

necessity for fair and just trials and the importance of finality of judgments.” Id. at

___, 137 S. Ct. at 1913.

¶ 168 Citing Weaver, the majority chides defendant as follows: “Defendant fails to

recognize that, if there is no objection at trial, there is no opportunity for the judge

to develop an alternative plan to a partial closure or to explain in greater detail the

justification for it.” Supra ¶ 37 (citing Weaver, 582 U.S. at ___, 137 S. Ct. at 1912).

¶ 169 However, the majority fails to recognize that, because a violation of the right to

a public trial is a structural error, it is regarded as second-prong plain error, which

excuses the failure to make an objection. Thompson, 238 Ill. 2d at 609, 613-14;

Piatkowski, 225 Ill. 2d at 565.

¶ 170 Further, the majority fails to recognize that the Supreme Court in Weaver

expressed this rationale in the context of an ineffective-assistance-of-counsel claim

on collateral review:

“The reason for placing the burden on the petitioner in this case, however,

derives both from the nature of the error [citation] and the difference between a

public-trial violation preserved and then raised on direct review and a public-

trial violation raised as an ineffective-assistance-of-counsel claim. As

explained above, when a defendant objects to a courtroom closure, the trial

court can either order the courtroom opened or explain the reasons for keeping

it closed. [Citation.] When a defendant first raises the closure in an ineffective-

assistance claim, however, the trial court is deprived of the chance to cure the

violation either by opening the courtroom or by explaining the reasons for

closure.” (Emphases added.) Weaver, 582 U.S. at ___, 137 S. Ct. at 1912.

The majority also fails to recognize that the trial court had the initial obligation to

proactively seek alternatives to closure, even when they are not offered by the

parties. See Presley, 558 U.S. at 214-15; Davis, 434 S.W.3d at 551.

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¶ 171 Weaver Does Not Apply

¶ 172 Weaver does not apply to this case. Weaver expressly limited its holding to

ineffective-assistance-of-counsel claims asserted in a postconviction proceeding.

Weaver, 582 U.S. at ___, 137 S. Ct. at 1905. This case is before us on direct review.

As the dissenting justice in the appellate court correctly noted: “The Strickland test

is not at issue in this case.” 2018 IL App (3d) 140404, ¶ 76 (McDade, J., dissenting);

see State v. Franklin, 585 S.W.3d 431, 476 (Tenn. Crim. App. 2019) (the holding

in Weaver “is limited to post-conviction proceedings”).

¶ 173 The majority’s expansion of Weaver to this case overlooks the fact that the

violation of the right to a public trial has appropriately and historically been deemed

structural error. Gonzalez-Lopez, 548 U.S. at 149; Neder, 527 U.S. at 8. The right

to a public trial protects the rights of the public, the press, and the accused. Waller,

467 U.S. at 44-46. Also, it is difficult to assess the effect of a deprivation of the

right to a public trial. Gonzalez-Lopez, 548 U.S. at 149 n.4; Waller, 467 U.S. at 49

n.9. It should be noted that the demonstration of prejudice is a practical

impossibility. Indeed, it would be difficult to imagine a case in which a defendant

would have available evidence of specific injury. Therefore, to require that a

defendant demonstrate prejudice resulting from the violation of the right to a public

trial would in most cases deprive the defendant of the public-trial guarantee. Waller,

467 U.S. at 49 n.9 (and cases cited therein); State v. Sams, 802 S.W.2d 635, 641

(Tenn. Crim. App. 1990). Accordingly, I conclude that the trial court committed

structural constitutional error, which constitutes second-prong plain error.

¶ 174 The majority concludes its rejection of defendant’s claim of a public trial

deprivation by declining to excuse defendant’s forfeiture. Supra ¶ 42. However, the

rule of procedural default and forfeiture is an admonition to the parties, not a

limitation on the jurisdiction of this court. We may look beyond considerations of

waiver in order to maintain a sound and uniform body of precedent or where the

interests of justice so require. In re Estate of Funk, 221 Ill. 2d 30, 96-97 (2006);

People v. Normand, 215 Ill. 2d 539, 543-44 (2005); People v. Wilson, 155 Ill. 2d

374, 379 (1993). This is such a case.

¶ 175 The majority’s avoidance of Waller is functionally unnecessary because

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“Waller’s flexible test has the capacity to deal with all types of closures and

exclusions of the public—trivial or serious, partial or total. Waller’s test would

likely allow many of the trivial closures found unproblematic by lower courts,

as long as trial and appellate courts go through the process of creating the record

the Supreme Court has required. Waller’s test is much less rigid than the phrases

‘structural error’ and ‘automatic reversal’ portend, and avoiding the Waller test

undermines a right at the center of our justice system.” Kristin Saetveit, Close

Calls: Defining Courtroom Closures Under the Sixth Amendment, 68 Stan. L.

Rev. 897, 928 (2016).

¶ 176 The majority’s avoidance of Waller also encourages trial court error in this area

because

“redefining Sixth Amendment closures provides no incentive for trial judges to

correctly apply Waller in future cases. Instead, it gives them an out from the

Supreme Court’s carefully calibrated test. Appellate courts are bending over

backwards to avoid reversal, when, in actuality, retrials would encourage more

consistent application of Waller’s test at the trial level. That, in turn, would

reduce the frequency of these appeals and reversals, as trial judges would more

often avoid violating the right in the first place. A fuller conception of Waller’s

test would thus lead to a more unified doctrine, stronger protection of the right

and more up-front consideration of countervailing concerns in particular cases.”

Id. at 931.

¶ 177 Accordingly, since a violation of a defendant’s right to a public trial is a

structural error (Gonzalez-Lopez, 548 U.S. at 149), I would excuse defendant’s

procedural default. I would reverse defendant’s conviction and remand the case to

the trial court for further proceedings.

¶ 178 B. Trial Court Erred by Failing to Give Required IPI Jury Instruction

¶ 179 Defendant’s final contention concerns the jury instructions on child

endangerment. Although I would reverse and remand for further proceedings, I will

address this contention since it could recur on remand. Defendant maintains the

trial court committed clear or obvious error by failing to instruct the jury using a

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required paragraph of IPI Criminal 4th No. 5.01B, which clarifies the requisite

mental state for the charged offense.

¶ 180 Defendant concedes that he failed to preserve this issue for review but argues

that this court may address it under the plain-error doctrine. Generally, no party

may raise on appeal the failure to give an instruction unless he shall have tendered

it. Ill. S. Ct. R. 366(b)(2)(i) (eff. Feb. 1, 1994). However, Illinois Supreme Court

Rule 451(c) (eff. July 1, 2006) provides that substantial defects in jury instructions

are not forfeited by a defendant’s failure to make timely objections if the interests

of justice require.

¶ 181 “The purpose of Rule 451(c) is to permit correction of grave errors and errors

in cases so factually close that fundamental fairness requires that the jury be

properly instructed.” People v. Sargent, 239 Ill. 2d 166, 189 (2010). Rule 451(c) is

coextensive with the plain-error clause in Rule 615(a). Bannister, 232 Ill. 2d at 77.

Therefore, before this court can address whether defendant’s contentions satisfy the

plain-error doctrine, we must first determine whether a clear or obvious error

occurred. People v. Downs, 2015 IL 117934, ¶ 15.

¶ 182 1. Did Clear or Obvious Error Occur?

¶ 183 It is well established that the function of jury instructions is to provide the jury

with the correct legal principles applicable to the evidence so that the jury may

reach a correct decision according to the law and the evidence. Bannister, 232 Ill.

2d at 81. Although the giving of jury instructions is generally reviewed for an abuse

of discretion, our standard of review is de novo when the question is whether the

jury instruction accurately conveyed the applicable law. People v. Pierce, 226 Ill.

2d 470, 475 (2007).

¶ 184 Defendant was charged with, among other crimes, felony child endangerment.

The trial court instructed the jury in accordance with IPI Criminal 4th Nos. 11.29

and 11.30, which provided that one of the propositions the State was required to

prove beyond a reasonable doubt was that defendant “willfully” caused or permitted

the life of M.R. to be endangered.

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¶ 185 The trial court, however, did not include an additional instruction defining the

term “willfully.” Specifically, the trial court did not tender the third paragraph of

IPI Criminal 4th No. 5.01B, which provides that “[c]onduct performed knowingly

or with knowledge is performed willfully.” Defendant argues that the trial court

erred in failing to instruct the jury with the definition of “willfully” provided in the

third paragraph of IPI Criminal 4th No. 5.01B. I agree with defendant.

¶ 186 Defendant was charged with violating the former version of the child

endangerment statute, which provided:

“It is unlawful for any person to willfully cause or permit the life or health of a

child under the age of 18 to be endangered or to willfully cause or permit a child

to be placed in circumstances that endanger the child’s life or health ***.” 720

ILCS 5/12-21.6(a) (West 2010).

¶ 187 In 2006, this court construed the term “willfully” in the statute to mean

“knowingly.” See Jordan, 218 Ill. 2d at 270 (“Willful conduct is synonymous with

knowing conduct.”). Effective January 1, 2013, prior to defendant’s jury trial, the

General Assembly amended the child endangerment statute. The legislature

conformed the provision to Jordan by replacing the term “willfully” with the term

“knowingly.” Compare 720 ILCS 5/12-21.6(a) (West 2010), with 720 ILCS 5/12C-

5(a) (West 2012); see Pub. Act 97-1109, § 1-5 (eff. Jan. 1, 2013).

¶ 188 At the time of defendant’s jury trial, the child endangerment statute provided in

relevant part:

“(a) A person commits endangering the life or health of a child when he or

she knowingly: (1) causes or permits the life or health of a child under the age

of 18 to be endangered; or (2) causes or permits a child to be placed in

circumstances that endanger the child’s life or health.” 720 ILCS 5/12C-5(a)

(West 2012).

¶ 189 In this case, the trial court erred by instructing the jury with a child

endangerment jury instruction that did not accurately include the requisite mental

state for this charged offense. The jury instruction failed to instruct the jury that the

State was required to establish defendant’s culpability by showing that he acted

knowingly rather than willfully. And the error was compounded by the trial court’s

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failure to instruct the jury with the definition of “willfully” provided in the third

paragraph of IPI Criminal 4th No. 5.01B.

¶ 190 The majority concludes that the trial court did not commit clear or obvious error

when instructing the jury. The majority reasons: “The trial court provided IPI

Criminal 4th Nos. 11.29 and 11.30, which tracked the language of both the

indictment and the statute governing the offense in this case. Neither instruction

directs courts to give or to even see IPI Criminal 4th No. 5.01B.” Supra ¶ 50.

¶ 191 However, the committee notes to IPI Criminal 4th No. 5.01B provide that, when

willfulness is an issue, the trial court is required to determine whether the statute

using that term “ ‘clearly requires another meaning’ ” and, if so, the jury should be

instructed accordingly. IPI Criminal 4th No. 5.01B, Committee Note, at 143. When

the trial court instructed the jury on the elements of child endangerment, the term

“willfully” clearly required another meaning, namely “knowingly.” IPI Criminal

4th No. 5.01B. Our court has previously noted that, according to the user’s guide

to IPI Criminal 4th, “ ‘[i]f a Committee Note indicates to give another instruction,

that is a mandatory requirement.’ ” People v. Hopp, 209 Ill. 2d 1, 7 (2004) (quoting

IPI Criminal 4th, User’s Guide, at VIII). Therefore, since the trial court failed to

give the jurors the proper instruction for the charged offense (720 ILCS 5/12-

21.6(a) (West 2010)) and failed to follow the pattern instructions’ definition of

“willfully” (IPI Criminal 4th No. 5.01B), I would hold that clear or obvious error

occurred.

¶ 192 2. Did the Error Constitute Plain Error?

¶ 193 Since I have determined that the trial court erred by instructing the jury with the

wrong child endangerment jury instruction that failed to include the definition of

“willfully” as provided in the third paragraph of IPI Criminal 4th No. 5.01B, I must

next determine whether this failure amounted to plain error. Defendant alternatively

argues that the trial court’s error falls under both the first and second prongs of the

plain-error doctrine.

¶ 194 The State initially responds that the defendant’s challenge to the trial court’s

alleged error regarding the child endangerment jury instruction is procedurally

barred because he invited the alleged error by tendering or agreeing to the

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instruction. A review of the instruction conference in the record does not support

the State’s claim.

¶ 195 Under the doctrine of invited error, where defense counsel tenders or agrees to

a jury instruction, the defendant is estopped from challenging the propriety of that

instruction on appeal. People v. Parker, 223 Ill. 2d 494, 508 (2006). In such

circumstances, plain-error review is unavailable. People v. Patrick, 233 Ill. 2d 62,

77 (2009).

¶ 196 Here, the record shows that it was the State, not defense counsel, that tendered

the jury instruction that included the term “willfully.” Defense counsel did not

request that the trial court use the term. Rather, defense counsel argued that the

phrase “health of the child be injured” should not be included in the jury instruction.

The parties and the trial court agreed that the phrase should be removed from the

instruction. The fact that defense counsel voiced no objection to the modified

instruction does not mean that she requested the trial court to use the term

“willfully” in the instruction. Defense counsel simply failed to make an objection

to the modified instruction, which does not constitute acquiescence.

¶ 197 The State next argues that, even if the trial court clearly or obviously erred by

not defining the term “willfully” for the jury, the error did not render defendant’s

trial unfair under either the first or second prongs of the plain-error doctrine. Indeed,

the State claims that defendant “benefitted” from the inherent ambiguity of the term

because the jury could have understood “willfully” to mean more than “knowledge”

and thereby held the State to a higher burden of proof than was required. I disagree.

¶ 198 This court’s plain-error doctrine instructs us that “we are concerned with two

ways in which the fairness of the defendant’s trial can be compromised by

unpreserved error.” Herron, 215 Ill. 2d at 177. I conclude that the trial court’s jury

instruction error compromised the fairness of defendant’s trial under both prongs

of the plain-error doctrine.

¶ 199 Evidence Closely Balanced

¶ 200 I would hold that the trial court’s jury instruction error constituted plain error

under the first prong of plain-error review because the evidence was closely

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balanced as to whether defendant “knowingly” endangered M.R.’s life. In this case,

in order to find defendant guilty of felony child endangerment, the jury was

required to find beyond a reasonable doubt that he knowingly “caused or permitted

the life of [M.R.] to be endangered” and that his actions proximately caused her

death. In other words, the jury had to find that defendant knew at the time that he

allegedly committed the charged conduct that this conduct endangered M.R.’s life.

¶ 201 However, in acquitting defendant of knowing murder and reckless involuntary

manslaughter—criminal charges that were based on the same alleged conduct—the

jury evidently determined that defendant did not knowingly or even recklessly

cause M.R.’s death. In attempting to explain how the jury could have found

defendant guilty of felony child endangerment while acquitting him of murder and

reckless involuntary manslaughter, the trial court advanced the theory that this was

an “eggshell skull” situation, where, although what defendant did would not have

caused the death of a healthy child, his actions contributed to M.R.’s death because

she was in a weakened state as a result of her prior falls. In addition, the prosecutor

explained that it was his belief that “the jury *** did not believe that [defendant]

throwing [M.R.] down on the bed was an act likely to cause death or great bodily

harm” and that the jury found that defendant “didn’t necessarily think he was doing

anything that bad” when he performed the act in question.

¶ 202 Thus, it is evident from the comments of the trial court and prosecutor that the

evidence was closely balanced as to whether defendant “knowingly” endangered

M.R.’s life. The jury verdicts of acquittal on counts I and II (murder and involuntary

manslaughter), in which the jury was properly instructed with the mental state terms

for knowledge and recklessness, is evidence of the fact that defendant would not

have been convicted of felony child endangerment if the jury had been properly

instructed with the third paragraph of IPI Criminal 4th No. 5.01B, defining the term

“willfully” as meaning “knowingly.” I find that, with defendant’s acquittal of

murder and involuntary manslaughter, the evidence was so closely balanced that

the trial court’s failure to properly instruct the jury with the third paragraph of IPI

Criminal 4th No. 5.01B threatened to tip the scales of justice against defendant. See

Piatkowski, 225 Ill. 2d at 565.

¶ 203 Moreover, regardless of the closeness of the evidence, I find that the trial court’s

failure to properly instruct the jury with the third paragraph of IPI Criminal 4th No.

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5.01B rose to the level of second-prong plain error. The State points out that our

court has drawn a distinction between errors in failing to instruct on an essential

element of a charged offense and errors in failing to define the mental state of a

charged offense, and the State argues that the former may constitute second-prong

error while the latter does not. People v. Carlson, 79 Ill. 2d 564, 583-84 (1980).

¶ 204 While I agree with the State that our court has drawn such a distinction, I

disagree with the State’s conclusion. Our court has determined that the erroneous

omission of a jury instruction rises to the level of second-prong plain error when

the omission creates a serious risk that the jurors incorrectly convicted defendant

because they did not consider the correct mental state and, therefore, did not

understand the applicable law so as to severely threaten the fairness of the trial.

Sargent, 239 Ill. 2d at 190-91; Hopp, 209 Ill. 2d at 12.

¶ 205 For example, in People v. Ogunsola, 87 Ill. 2d 216, 222-23 (1981), our court

determined that the trial court erred by instructing the jury with a modified jury

instruction on deceptive practices that omitted any reference to the “intent to

defraud.” The court held that the mental state of intent to defraud was distinct and

different from the mental state of knowledge. Id. at 221. The court added that the

intent to defraud was an essential element of the offense of deceptive practices and

that its “omission removed from the jury’s consideration a disputed issue essential

to the determination of defendant’s guilt or innocence.” Id. at 222-23. The court

stated that “[t]he complete omission of an issue as central to the criminal trial as a

part of the definition of the crime charged deprives the jury of the guidance it must

have properly to decide the case.” Id. at 223.

¶ 206 Similarly, in this case, the trial court instructed the jury with a child

endangerment instruction that omitted the essential mental state element of the

charged offense, namely knowledge. The error was compounded by the trial court’s

failure to properly instruct the jury with the third paragraph of IPI Criminal 4th No.

5.01B, defining the term “willfully” as meaning “knowingly.” The trial court’s

omission prevented the jury from considering whether defendant “knowingly”

endangered M.R.’s life, a mental state element essential to the determination of his

guilt or innocence. See id.

¶ 207 Based upon the record before us, I find that defendant has satisfied his burden

of establishing that the trial court erred when it gave the jury an instruction for the

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offense of child endangerment that failed to include the definition of “willfully”

provided in the third paragraph of IPI Criminal 4th No. 5.01B. The trial court’s

error constituted second-prong plain error because it created a serious risk that the

jurors convicted the defendant of felony child endangerment due to their failure to

be instructed with the proper mental state and this instruction error severely

threatened the fairness of the trial. Sargent, 239 Ill. 2d at 191; Hopp, 209 Ill. 2d at

7-8. Accordingly, I conclude that defendant’s conviction for felony child

endangerment must be reversed.

¶ 208 In light of my conclusion, I need not address defendant’s alternative contention

that he was denied the effective assistance of counsel when his trial counsel failed

to preserve this issue for review. See, e.g., In re Appointment of Special Prosecutor,

2019 IL 122949, ¶ 68.

¶ 209 Lastly, I would find that the evidence, although close, was sufficient to prove

defendant guilty beyond a reasonable doubt. This finding removes the risk of

subjecting defendant to double jeopardy. See People v. Manning, 182 Ill. 2d 193,

218 (1998). By this finding, however, I would reach no conclusion as to defendant’s

guilt that would be binding on retrial. Naylor, 229 Ill. 2d at 611.

¶ 210 III. CONCLUSION

¶ 211 The majority misapprehended the law when it failed to find that the trial court

(1) violated defendant’s sixth amendment right and the public’s first amendment

right to a public trial and (2) committed structural error when it excluded all but

four members of the public from defendant’s trial during jury selection. The

majority also misapprehended the law when it failed to find that the trial court

committed plain error when it failed to include in the jury instruction on child

endangerment a required instruction that clarifies the requisite mental state for the

charged offense and by doing so denied the defendant his right to a fair trial.

¶ 212 Moreover, this court has recognized its duty to work against implicit and

unconscious bias in Illinois’s courts by approving a mandatory implicit bias

instruction. See Illinois Pattern Jury Instructions, Civil, No. 1.08 (rev. May 2019)

(Implicit Bias) (hereinafter IPI Civil No. 1.08). The comment to the instruction

explains in part as follows:

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“The literature on implicit bias explains that everyone has implicit biases.

This means that judges and jurors are not immune. *** It is particularly

important for judges and jurors, who strive to be impartial decision-makers, to

be aware of this phenomenon and to try to guard against it for purposes of the

trial.” IPI Civil No. 1.08, Comment (rev. May 2019).

In guarding against implicit bias, I think this court can and should take judicial

notice of the fact that (1) Kankakee County, where this case was tried, is 70% white

and 15% African American; (2) the juvenile mother of M.R., the decedent child, is

white; (3) M.R. was mixed race; and (4) the juvenile defendant is African

American. Based on (1) the aforementioned demographics, (2) the fact that the

races of the defendant and the mother may have triggered the unconscious biases

of the judge and jurors, and (3) my and the courts’ obligation to ensure equal justice

for all, I cannot excuse the trial court’s closure of this juvenile African American

defendant’s trial during jury selection. In addition, I cannot affirm the conviction

of this juvenile defendant with no criminal background when it is based on a verdict

where the jury was not properly instructed with the correct mental state. Therefore,

I respectfully dissent, and I would reverse the judgments of the appellate court and

the circuit court of Kankakee County and remand the cause to the circuit court for

further proceedings.

¶ 213 JUSTICE MICHAEL J. BURKE took no part in the consideration or decision

of this case.

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