People v. Brown

2023 IL 126852

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 126852)

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

SERVETUS BROWN, Appellant.

Opinion filed February 17, 2023.

CHIEF JUSTICE THEIS delivered the judgment of the court.

Justice Overstreet concurred in the judgment and opinion.

Justice Neville specially concurred, with opinion.

Justice O’Brien specially concurred, with opinion, joined by Justice Holder

White.

Justices Cunningham and Rochford took no part in the decision.

OPINION

¶1 At issue in this appeal is whether defendant Servetus Brown received

ineffective assistance of trial counsel because, while he was present at trial for

voir dire, his attorney agreed to a process where the parties exercised juror

challenges at sidebar conferences held off the record and outside his presence. The

appellate court rejected this claim and affirmed his armed habitual criminal

conviction. 2020 IL App (1st) 180826. For the following reasons, we affirm the

judgment of the appellate court.

¶2 BACKGROUND

¶3 On June 18, 2017, two police officers responded to a call of shots fired near

123rd Street and Yale Avenue in Chicago. When they arrived at the scene, they

were directed by an individual to a parked black sedan, where defendant was sitting

in the driver’s seat. Defendant did not respond to the officers’ repeated requests to

exit the vehicle; therefore, the officers physically removed him from the sedan. One

of the officers conducted a pat down search of defendant and recovered a loaded

handgun from his pants pocket. Police also recovered from the driver’s seat two

packets of a suspected narcotic.

¶4 Defendant was indicted on multiple counts. The State proceeded to trial on only

two counts: being an armed habitual criminal (720 ILCS 5/24-1.7(a)(2) (West

2016)) and possession of a controlled substance (id. § 402(c)).

¶5 In January 2018, a jury trial commenced in Cook County circuit court. Two

attorneys appeared on defendant’s behalf. The trial court questioned the venire

members in panels of four. After questioning the first panel in open court, the trial

judge asked to see the attorneys at a sidebar to discuss any objections they may

have to the venire members. The court repeated this process and held a total of eight

sidebars off the record before announcing that a jury had been selected. The trial

judge then explained:

“THE COURT: All right. We are back on the record and we’re outside the

presence of the jury. The State’s present. The defense [is] present. The

defendant is present. And in case I did not say it before, he’s in civilian attire.

And we just completed jury selection, and in the interest of saving a little bit of

time, we had sidebars regarding the challenges for cause and for peremptory

challenges and now we’re going to put them all on the record. So the defense

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struck as peremptory challenge number five, Rachel Stan, Michael

Dzieuratkowski, and number 15, Joey Figueroa, is that correct?

[DEFENSE ATTORNEY]: That’s correct.

THE COURT: And the State struck for peremptory number seven, Mr.

Craig Allison, number nine, Susannne Conley Duran, and number 13, Erik

Yessin, and also number 23, Barbara J. Hayler. And the State asked for cause

as to Ishmael Henderson, actually it was by agreement, and also by agreement

was Michael Gonzalez for failure to disclose a murder case. Is there anything

else anyone wants to put on the record?

[THE STATE]: No.

[DEFENSE ATTORNEY]: No, Judge.”

¶6 The jury found defendant guilty of being an armed habitual criminal but not

guilty of possession of a controlled substance. In his motion for a new trial,

defendant raised numerous contentions, but he did not challenge the sidebars

conducted during the jury selection process. The trial court denied the motion for a

new trial. Defendant was sentenced to 10 years in prison.

¶7 On appeal, defendant challenged his conviction on the basis that he was

deprived of his constitutional right to be present at a critical stage of the proceeding,

specifically jury selection. 2020 IL App (1st) 180826, ¶ 14. The appellate court

recognized that defendant did not preserve this issue by objecting to the court’s

suggested process, or by raising it in a posttrial motion, and he did not argue plain

error. Id. ¶ 15. Instead, he asserted that his defense counsel was ineffective for

failing to object to the process where jurors were challenged at sidebars without

defendant himself being present. Id. The court rejected defendant’s ineffective

assistance claim, finding that he had not shown prejudice because he failed to

establish that he was not tried by an impartial jury. Id. ¶ 16. The appellate court

affirmed defendant’s armed habitual criminal conviction. Id. ¶ 21.

¶8 This court allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315

(eff. Oct. 1, 2020).

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¶9 ANALYSIS

¶ 10 The sole issue before us is whether defendant was denied the effective

assistance of counsel because his attorney did not object to the trial court’s

suggestion that the parties exercise juror challenges at off-the-record sidebar

conferences held in his absence. Defendant asserts that this procedure, which

counsel agreed to, resulted in a violation of his constitutional right to be present at

a critical stage of trial—namely jury selection. Defendant contends that his counsel

performed deficiently by failing to object and protect that right.

¶ 11 To determine whether defendant was denied effective assistance of counsel, we

apply the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687

(1984). People v. Pingelton, 2022 IL 127680, ¶ 53. To prevail on such a claim, a

criminal defendant must show both that (1) counsel’s performance was deficient

and (2) the deficient performance prejudiced defendant such that he was deprived

of a fair trial. Strickland, 466 U.S. at 687.

¶ 12 As this court has previously explained, “[t]he right to be present is not an

express right under the United States Constitution, but is implied, arising from the

due process clause of the fourteenth amendment.” People v. Lindsey, 201 Ill. 2d 45,

55 (2002) (citing U.S. Const., amend. XIV, § 1); Kentucky v. Stincer, 482 U.S. 730,

745 (1987); United States v. Gagnon, 470 U.S. 522, 526 (1985). Similarly, article

I, section 8, of the Illinois Constitution grants criminal defendants the express right

“to appear and defend in person and by counsel.” Ill. Const. 1970, art. I, § 8.

“Accordingly, both the federal constitution and our state constitution afford

criminal defendants the general right to be present, not only at trial, but at all critical

stages of the proceedings, from arraignment to sentencing.” Lindsey, 201 Ill. 2d at

55 (citing Illinois v. Allen, 397 U.S. 337, 338 (1970), People v. Bull, 185 Ill. 2d 179

(1998), People v. Bean, 137 Ill. 2d 65, 80-83 (1990), and People v. Martine, 106

Ill. 2d 429, 439 (1985)).

¶ 13 This court’s decision in Bean, cited by both parties, is instructive. There, we

recognized that a criminal defendant undeniably has a general right to be present at

every stage of his trial, including jury selection. Bean, 137 Ill. 2d at 80. We further

recognized that this court and the United States Supreme Court have limited the

situations in which the denial of this broad right of presence constitutes a violation

of the Illinois and United States Constitutions. Id.

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¶ 14 The trial judge in Bean conducted in-chambers voir dire of six venire members.

Id. at 79. The defendant’s two attorneys were present during each voir dire, but the

defendant was not present. Id. He claimed the in camera proceedings violated his

right to be present during the entire jury selection process under both the Illinois

and United States Constitutions. Id. at 78-79. The defendant failed to preserve his

claim, and therefore this court reviewed it only for plain error. Id. at 80.

¶ 15 We explained in Bean that, although criminal defendants have a “general right

to be present” at every stage of the trial, “the broad ‘right to be present at trial’ is

not itself a substantial right under the Illinois Constitution.” Id. at 80-81 (citing

Martine, 106 Ill. 2d at 439). Rather, “it is a lesser right the observance of which is

a means to securing the substantial rights of a defendant.” Id. at 81. Therefore, we

held that “a defendant is not denied a constitutional right every time he is not

present during his trial, but only when his absence results in a denial of an

underlying substantial right, in other words, a constitutional right; and it is only in

such a case that plain error is committed.” Id. Some of these substantial rights

include the right to confront witnesses, the right to present a defense, and the right

to an impartial jury. Id.

¶ 16 This court also recognized in Bean that, under the federal constitution, criminal

defendants have a general right to be present at their trial. Id. at 82. This federal

right of presence is not an express constitutional right but arises from the due

process clause of the fourteenth amendment. Id. Consequently, “as long as a

defendant’s absence from a portion of his trial does not deprive him of due process,

there is no violation of a defendant’s derivative due process right of presence under

the United States Constitution.” Id. at 83.

¶ 17 In considering the specific claim raised by the defendant in Bean, this court

concluded that no plain error occurred. Id. at 88. “[A]lthough defendant’s broad

right of presence was improperly denied and could have affected the impartiality of

the jury, defendant’s absence from the in camera voir dire did not, in fact, have the

slightest effect on the impartiality of the jury selected.” Id. at 81. The defendant did

not even claim that his jury lacked impartiality. Instead, his argument was based

upon the broad right of presence and the possibility that, if he had been present

during the in chambers voir dire, he might have decided not to peremptorily

challenge one of the venire members. Id.

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¶ 18 Here, in support of his ineffective assistance claim, defendant seeks an

expansion of our holding in Bean to provide a defendant with the same broad

constitutional right to be present at the discussion of juror challenges as during

voir dire. As he concedes, however, our appellate court has long held that a

defendant’s right to be present at all critical stages of the proceedings does not

extend to the striking and accepting of jurors. See, e.g., People v. Spears, 169 Ill.

App. 3d 470 (1988); People v. Beacham, 189 Ill. App. 3d 483 (1989); People v.

Gentry, 351 Ill. App. 3d 872 (2004).

¶ 19 In Spears, the defendant argued that he was denied his right to be present for

jury selection when the trial court retired to chambers with counsel, outside his

presence, to allow for the exercise of peremptory challenges. Spears, 169 Ill. App.

3d at 482. The appellate court rejected this argument and held:

“There is no indication in the record that defendant was precluded from

making suggestions to defense counsel during the court’s questioning of the

prospective jurors ***. *** [T]he communication by defense counsel to the

court of the defense’s specific objections regarding prospective jurors is not a

critical stage of trial requiring defendant’s presence. [Citation.] Further, the

record in the instant case fails to indicate that defendant’s interests or substantial

rights were violated or that he was prejudiced in any way by his absence during

the communications between the trial court and counsel regarding prospective

jurors.” (Emphasis added.) Id. at 483.

¶ 20 Similarly, in Beacham, after voir dire was conducted in open court, the

attorneys retired to the judge’s chambers to exercise challenges. Beacham, 189 Ill.

App. 3d at 491. The defendant was present during the actual questioning of venire

members and had an opportunity to consult with counsel regarding who should

serve on the jury. He did not, however, accompany counsel into the judge’s

chambers, where the juror challenges were made. Id. According to the defendant,

this process deprived him of his right to participate in the juror challenges because

he was unaware of which jurors would be stricken for cause or peremptorily

challenged by the State. Id. The Beachem court found “little merit” in this

argument; the record established that the defendant was present during voir dire

and was able to consult with his attorney before the exercise of the challenges in

the judge’s chambers. Id. at 491-92. Consequently, the court found that the

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procedure employed by the trial court did not infringe upon his constitutional rights

and that his participation in the jury selection process was not so limited as to deny

him a fair trial. Id. at 492.

¶ 21 Thereafter, in Gentry, the appellate court held that the defendant was not

deprived of his right to be present for jury selection where the prospective jurors

were all questioned in his presence but challenges were made in his absence.

Gentry, 351 Ill. App. 3d at 882-83. The Gentry court recognized the holdings of

Spears and Beachem and specifically rejected the defendant’s argument that Illinois

courts had not resolved the issue of whether a defendant’s right to be present applies

during juror challenges. Id. at 883-84. The Gentry court recognized that no venire

members had been questioned outside of the defendant’s presence and nothing

prevented him from conferring with his counsel on the composition of the jury. Id.

at 884. The court explained:

“Just because he was not present when the choices and arguments were actually

communicated to the trial court, it does not follow that his ‘participation in the

jury selection was *** so limited as to deny him a fair trial.’ Presumably,

defense counsel took into account any ‘input’ from defendant when she acted

on his behalf during the in camera meetings and sidebar conference.” Id.

¶ 22 At odds with this extensive precedent is People v. Oliver, 2012 IL App (1st)

102531, cited by defendant. In Oliver, the trial court conducted voir dire in open

court with the defendant present throughout, but the trial judge asked the State and

defense counsel to come to discuss the juror challenges in chambers. Id. ¶ 5. The

defendant later alleged in a postconviction petition that appellate counsel provided

ineffective assistance when he failed to argue that his trial counsel was ineffective

by improperly waiving, without his permission, his presence during the in camera

conference, which he claimed was a critical stage of the trial. Id. ¶ 12.

¶ 23 In addressing the defendant’s claim, the Oliver court held that “a defendant who

has not waived or forfeited his right to be present [from a juror challenge

conference] shows that the court has conducted a critical stage of the trial in the

defendant’s absence, [thus] the defendant has shown a violation of his

constitutional rights.” Id. ¶ 21. The court, however, affirmed the dismissal of his

postconviction petition because the defendant had not even alleged that the

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violation caused by the in camera discussion of juror challenges prejudiced him.

Id. ¶ 23.

¶ 24 We find the rationale of Spears, Beachem, and Gentry convincing and

consistent with our holding in Bean. To the extent that Oliver holds that a defendant

has a constitutional right to be present for the exercise of juror challenges, it is

hereby overruled. We therefore decline defendant’s request to expand our holding

in Bean regarding a defendant’s constitutional right to be present during voir dire

to include a defendant’s presence at the striking and accepting of jurors.

¶ 25 The reason why these two stages of jury selection have long been viewed

differently in Illinois is illustrated by what occurred in this case. Defendant was

present throughout voir dire when prospective jurors were questioned. Thus,

defendant had the opportunity to hear the prospective jurors’ answers and to view

their demeanor. He could then provide whatever input he desired to counsel before

his attorney acted on his behalf at the sidebars. This circumstance is in stark contrast

to Bean, where the defendant was not present during voir dire and therefore could

not provide this input to counsel. To be clear, that is not to say that, if a defendant

requests to be present at a conference where juror challenges are made, that his

presence should be denied without the trial court providing a justification for the

exercise of such discretion.

¶ 26 Concerning defendant’s ineffective assistance claim, it is well established that,

upon review, counsel’s performance is measured by “an objective standard of

competence under prevailing professional norms.” People v. Evans, 186 Ill. 2d 83,

93 (1999). A court must determine whether, considering all the circumstances,

counsel’s identified acts or omissions were outside the wide range of professionally

competent assistance. Strickland, 466 U.S. at 690. Strickland instructs that a court

should “recognize that counsel is strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of reasonable

professional judgment.” Id.

¶ 27 Here, defendant was present in the courtroom throughout the trial, including for

all the questioning of the venire members. The record shows only that during

voir dire the trial court requested to see the attorneys at sidebars and, during those

discussions, each side presented any challenges it had to venire members. The

record is silent as to whether defendant talked with counsel about individual venire

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members prior to the sidebars. However, in the absence of any evidence that

counsel failed to represent defendant’s interests at the sidebars, there is no basis for

us to conclude that counsel somehow rendered deficient performance by failing to

object to the trial court’s suggested procedure. As the State acknowledges, to the

extent that defendant has evidence of counsel’s acts or omissions not found in the

record to rebut the presumption that his attorney rendered adequate assistance, he

can still raise such a claim in a postconviction petition. See People v. Bew, 228 Ill.

2d 122, 135 (2008).

¶ 28 Finally, while defendant concedes that there is no evidence in the record that he

was tried by a biased jury, he argues that this court should presume prejudice.

Defendant claims that, because the juror strikes occurred off the record and counsel

did not insist on a court reporter for the sidebars, he was prevented from having an

adequate record on appeal to raise any possible issue surrounding the sidebars. We

have already found that defendant has not shown his counsel provided objectively

unreasonable assistance, and thus, we need not specifically address his claim that

prejudice should somehow be presumed due to his attorney’s decision not to have

a court reporter transcribe the sidebars in this case. See id. at 135-36 (holding that

claims of ineffective assistance of counsel require a showing of actual prejudice,

not mere speculation of prejudice).

¶ 29 CONCLUSION

¶ 30 Accordingly, for the foregoing reasons, we affirm the judgment of the appellate

court, which affirmed the judgment of the circuit court.

¶ 31 Affirmed.

¶ 32 JUSTICE NEVILLE, specially concurring:

¶ 33 I concur in the lead opinion’s holding that Brown has not shown he received

ineffective assistance of counsel. I write separately because I disagree with the

court’s reasoning and the holding that hearings to exercise challenges to jurors do

not constitute a critical stage of a trial. I would find that Brown had a constitutional

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right to be present for the conferences when his attorney and the prosecutor

exercised their challenges.

¶ 34 A. Constitutional Right to Be Present

¶ 35 The United States Supreme Court has held that a defendant has a right “to be

present in his own person whenever his presence has a relation, reasonably

substantial, to the fulness of his opportunity to defend against the charge.” (Internal

quotation marks omitted.) Kentucky v. Stincer, 482 U.S. 730, 745 (1987). Federal

courts inferred the right to presence from the confrontation clause of the sixth

amendment and the due process clause of the fourteenth amendment. U.S. Const.,

amends. VI, XIV, § 1; United States v. Gagnon, 470 U.S. 522, 526 (1985). Because

the federal right to presence derives from the confrontation and due process clauses,

it applies only when the defendant’s absence affects his right to due process and his

right to confront witnesses. Stincer, 482 U.S. at 745; Gagnon, 470 U.S. at 526;

People v. Bean, 137 Ill. 2d 65, 83 (1990).

¶ 36 The Illinois Constitution explicitly grants criminal defendants the “right to

appear and defend in person and by counsel.” Ill. Const. 1970, art. I, § 8; People v.

Lindsey, 201 Ill. 2d 45, 55 (2002). But not all proceedings on criminal charges held

without the defendant violate the defendant’s constitutional right to appear and

defend in person. Bean, 137 Ill. 2d at 81. The Illinois Constitution, like the federal

constitution, does not guarantee the right to presence when the defendant’s presence

“would be useless, or the benefit but a shadow.” (Internal quotation marks omitted.)

People v. Lofton, 194 Ill. 2d 40, 67 (2000). The Illinois Constitution entitles

defendant to be present “to the extent that a fair and just hearing would be thwarted

by his absence.” (Internal quotation marks omitted.) Id.

¶ 37 Under both the United States and Illinois Constitutions, a defendant has a right

to be present at every critical stage of his criminal proceedings, i.e., “any stage of

the criminal proceeding that is critical to its outcome if his presence would

contribute to the fairness of the procedure.” Stincer, 482 U.S. at 745; Lindsey, 201

Ill. 2d at 55; Lofton, 194 Ill. 2d at 67.

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¶ 38 1. Courts Split on Whether Jury Challenges

Are a Critical Stage

¶ 39 In Lewis v. United States, 146 U.S. 370 (1892), the United States Supreme

Court reversed a murder conviction because the trial court did not permit the

defendant to see the prospective jurors before the defense made its challenges to

the prospective jurors. The Lewis court said, “making of challenges was an essential

part of the trial, and *** it was one of the substantial rights of the prisoner to be

brought face to face with the jurors at the time when the challenges were made.”

Id. at 376. Similarly, in Hopt v. Utah, 110 U.S. 574, 578 (1884), the court held:

“[The defendant’s] life or liberty may depend upon the aid which, by his

personal presence, he may give to counsel and to the court and triers, in the

selection of jurors. The necessities of the defence may not be met by the

presence of his counsel only. For every purpose, therefore, involved in the

requirement that the defendant shall be personally present at the trial, where the

indictment is for a felony, the trial commences at least from the time when the

work of empanelling the jury begins.”

¶ 40 Courts have not treated Lewis and Hopt as resolving the issue of whether the

defendant’s right to presence extends to the actual exercise of jury challenges,

which often occurs in sidebars in court or, as in this case, in chambers. Courts of

various jurisdictions have reached inconsistent conclusions on the issue of whether

jury challenges count as a critical stage of proceedings.

¶ 41 In Cohen v. Senkowski, 290 F.3d 485, 490 (2d Cir. 2002), the court held

defendant “did not have a constitutional right to be present during the juror

challenges conducted in *** chambers.” In Tatum v. United States, 330 A.2d 522,

524 (D.C. App. 1974), the court said, “The actual exercise of peremptory challenges

properly is a matter to be handled by counsel, and *** all such challenges shall be

made at the bench. Certainly there is no requirement that a defendant be among

those participating in any bench conference ***.” (Internal quotation marks

omitted.) In Montgomery v. State, 461 S.W.2d 844, 847 (Mo. 1971), with similar

facts and issues, the court came to the same conclusion.

¶ 42 But in City of Mandan v. Baer, 1998 ND 101, ¶ 18, 578 N.W.2d 559, the court

held the defendant had a right to presence during the exercise of jury challenges.

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Then in Coney v. State, 653 So. 2d 1009, 1013 (Fla. 1995), the court held that the

denial of the defendant’s constitutional right to presence for jury challenges

amounted to harmless error. See generally Jay M. Zitter, Annotation, Validity of

Jury Selection as Affected by Accused’s Absence From Conducting of Procedures

for Selection and Impaneling of Final Jury Panel for Specific Case, 33 A.L.R.4th

429 (2023).

¶ 43 The Illinois Appellate Court in People v. Spears, 169 Ill. App. 3d 470 (1988),

held that the trial court in that case had not violated the defendant’s right to appear

and defend in person when the court permitted the attorneys, in chambers without

the defendant, to exercise their peremptory challenges. The Spears court

emphasized:

“Defense counsel indicated that before proceeding into chambers, she and

counsel for the prosecution, in the presence of defendant, discussed the

prospective jurors. *** [D]efendant expressed his views toward a particular

juror ***. Defense counsel stated that she remembered asking defendant several

other times whether he had any comments regarding any other prospective

juror. ***

*** [T]he record in the instant case fails to indicate that defendant’s

interests or substantial rights were violated or that he was prejudiced in any way

by his absence during the communications between the trial court and counsel

regarding prospective jurors. [Citation.] Rather, the record shows that defendant

was able to communicate with counsel during jury selection and that

defendant’s comments were carefully considered by defense counsel and

communicated to the court.” Id. at 482-83.

The Spears court would have found a violation of the defendant’s right to appear

and defend if he had been unable to communicate with his attorney:

“We note that under different circumstances, such as where a defendant was

unable to communicate to counsel or the court his comments regarding

prospective jurors, the defendant’s right to be present at a critical stage of trial

would be violated. Such a procedure would result in reversible error entitling

the defendant to a new trial. In the instant case, however, defendant’s right to

be present was protected.” Id. at 483.

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¶ 44 Federal cases finding the defendant’s right to presence sufficiently protected

similarly rely on evidence that the trial courts afforded each defendant an

“opportunity to consult with his attorney before his attorney submitted the

peremptory challenges” (United States v. Curtis, 635 F.3d 704, 716 (5th Cir. 2011);

see United States v. Reyes, 764 F.3d 1184, 1191-92 (9th Cir. 2014); United States

v. Gayles, 1 F.3d 735, 738 (8th Cir. 1993)), and the defendant was “present when

the peremptory challenges were given formal effect” (Curtis, 635 F.3d at 716),

allowing the defendant to express any misgivings at the time the court impaneled

the jury. See United States v. Chrisco, 493 F.2d 232, 236 (8th Cir. 1974).

¶ 45 The court in United States v. Gibbs, 182 F.3d 408, 438 (6th Cir. 1999), said:

“The absence of the defendants from the peremptory challenge conference

may sometimes constitute reversible error because courts have recognized that

defendants can often be helpful in noticing or pointing out things about certain

jurors that their lawyers might not or could not see. [Citations.] This process is

important to ensuring an impartial jury. However, under the plain error

standard, the defendants must make a specific showing of prejudice to warrant

reversal of a conviction. [Citation.] Here, although the defendants were not

present when the peremptory challenges were actually made, they were present

during most of the voir dire, and they had the opportunity to speak with their

attorneys with respect to the section of the voir dire they did not attend.

Therefore, each defendant had the opportunity to discuss with counsel and to

inform the district judge concerning any prospective juror, and counsel met with

the judge to exercise the challenges. We hold that the defendants have failed to

make a specific showing of prejudice resulting from this error.”

¶ 46 Spears and Gibbs find no cause for reversal because the record in those cases

did not show prejudice. Spears, 169 Ill. App. 3d at 483; Gibbs, 182 F.3d at 438.

“[P]rejudice is the central inquiry in a harmless error inquiry.” (Internal quotation

marks omitted.) People v. Little, 2021 IL App (1st) 191108, ¶ 39. The reasoning of

Spears, like the reasoning of Gibbs, Curtis, and Chrisco, effectively subjects the

right to presence to harmless error analysis. See People v. Baez, 241 Ill. 2d 44, 105

(2011) (harmless error review depends on a showing of prejudice); Henderson v.

United States, 419 F.2d 1277, 1278 (5th Cir. 1970) (per curiam) (exclusion of

defendant from part of jury impaneling amounted to harmless error).

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¶ 47 Thus, some cases, like Cohen, 290 F.3d at 490, categorically hold that the

defendant has no right to presence when the attorneys actually exercise their jury

challenges. Some cases, like Baer, 1998 ND 101, ¶ 18, hold categorically that the

defendant has a constitutional right to presence when the attorneys exercise their

challenges. And other cases, like Spears, 169 Ill. App. 3d 470, and Gibbs, 182 F.3d

408, hold that the defendants’ absence when the attorneys actually exercise their

jury challenges might violate the constitution, depending on the circumstances.

¶ 48 Often, when cases conflict, “[t]he orderly administration of justice dictates that

a clear rule *** be distilled.” Nelson v. Araiza, 69 Ill. 2d 534, 543 (1978). Cases

like Curtis, holding that the court did not violate the defendant’s constitutional

rights because it allowed him sufficient opportunity to consult with his attorney and

object to the removal of venire members from the jury, leave the trial court to guess

whether its procedures sufficiently protected the defendant’s rights. Spears and

Gibbs do not establish a clear, simple rule. Instead, they discuss at length the kinds

of circumstances the court must consider to determine whether the failure to

conduct jury challenges in the defendant’s presence violates his constitutional

rights.

¶ 49 2. Jury Challenges Form a Critical Stage of the Trial

¶ 50 I find persuasive the cases from several jurisdictions that count the exercise of

jury challenges as a critical stage of the trial. The cases use comparable

formulations of the basic principles. The United States Court of Appeals for the

Fifth Circuit summarily held, “the exercise of peremptory challenges is a critical

stage of the voir dire process.” United States v. Alikpo, 944 F.2d 206, 210 (5th Cir.

1991). The Supreme Court of Georgia said, “[p]roceedings at which the jury

composition is selected or changed are a critical stage at which the defendant is

entitled to be present.” Sammons v. State, 612 S.E.2d 785, 788 (Ga. 2005). The

Supreme Court of Mississippi elaborated:

“[A] criminal defendant is guaranteed the right to be present at any stage of the

criminal proceedings that is critical to its outcome if his presence would

contribute to the fairness of the procedure. We find that a defendant’s presence

at the peremptory challenges stage would contribute to the fairness of the

procedure. The trial judge recognized that [the defendant] had a right to be at

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the peremptory challenges and so does this Court.” (Internal quotation marks

omitted.) Hughes v. State, 2000-KA-01366-SCT (¶10) (Miss. 2001).

¶ 51 In State v. Slert, 383 P.3d 466, 468 (Wash. 2016), the judge, prosecutor, and

defense counsel, without Slert and without a court reporter, discussed in chambers

whether venire members had shown bias. The court then dismissed four venire

members on the record in open court. Id. The Supreme Court of Washington held,

“The criminal defendant’s right to be present is rooted in *** the due process

clauses of the state and federal constitutions ***. *** Slert had a right to be present

during the discussion of the potential bias of these jurors.” Id. at 469-70.

¶ 52 In State v. Garcia, 1980-NMSC-132, ¶ 8, 95 N.M. 246, 620 P.2d 1271, the trial

judge excluded Garcia from chambers when the parties exercised their challenges

to venire members. The New Mexico Supreme Court said: “Each time the State

strikes a juror, the lawyer and his client may need to make judgments as to priorities

of challenges to the remaining jurors. The trial court erred in denying Garcia the

right to be present when challenges to the jury were made.” (Emphasis in original.)

Id. ¶¶ 16-17.

¶ 53 An Arizona court held: “[T]he exercise of peremptory challenges *** is a

critical stage of the proceeding at which he has the right to be present. We believe

the defendant’s presence has a reasonably substantial relationship to the fullness of

the opportunity to defend.” State v. Collins, 648 P.2d 135, 138 (Ariz. Ct. App.

1982).

¶ 54 Under the rule recognized in Sammons, Alikpo, Hughes, Slert, Garcia, and

Collins, trial courts know that, if they exclude the defendant from proceedings

during which defense counsel and prosecutors challenge jurors for cause and

exercise peremptory challenges, when the defendant has not waived the right to

participate, the court has violated the defendant’s constitutional right to appear and

defend in person. I would hold the defendant’s constitutional right to appear and

defend in person includes the right to presence when the attorneys and the court

discuss challenges to venire members and when the attorneys exercise peremptory

challenges. I would overrule Spears and cases following Spears (e.g., People v.

Gentry, 351 Ill. App. 3d 872 (2004), and People v. Beachem, 189 Ill. App. 3d 483

(1989)) to the extent those cases hold that a criminal defendant has no right to

presence for jury challenges as long as the defendant had an adequate opportunity

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to communicate with counsel during other parts of jury selection.

¶ 55 B. Violation of Right to Presence Is Not a Structural Error

¶ 56 Brown argues that the violation of his constitutional right to presence during

the exercise of jury challenges constitutes a structural error requiring reversal

without any showing of prejudice. I disagree. Courts from several jurisdictions have

persuasively held the violation of the right to presence for jury challenges “was not

of such dimension as to undermine the integrity of the trial and require automatic

reversal.” United States v. Feliciano, 223 F.3d 102, 112 (2d Cir. 2000). The

constitutional right to presence for jury challenges “is not a structural right whose

violation constitutes per se error.” Commonwealth v. Hunsberger, 58 A.3d 32, 39

(Pa. 2012). Like the federal courts, I would “consider the nature of a presence error

in the context of the specific proceeding from which the defendant was excluded.

In the usual case, such an error will be susceptible to harmless error analysis.”

(Internal quotation marks omitted.) Yarborough v. Keane, 101 F.3d 894, 898 (2d

Cir. 1996); see also United States v. Thomas, 724 F.3d 632, 641 (5th Cir. 2013).

Spears, Beacham, and Gentry all based their rulings on considerations appropriate

for harmless error review. Although I would overrule those cases in part, I express

no opinion on whether the courts in those cases reached the correct results.

¶ 57 1. Review of Preserved and Unpreserved Presence Errors

¶ 58 Our decision in People v. McLaurin, 235 Ill. 2d 478 (2009), explains how courts

of appeal should address the presence issue when the defendant objects and

preserves the issue for review and when the issue is unpreserved because the

defendant fails to object. McLaurin failed to preserve for review an issue

concerning his exclusion from discussions about how to respond to notes from the

jury. Id. at 485. McLaurin, citing People v. Childs, 159 Ill. 2d 217 (1994), argued

the State did not meet its burden of proving beyond a reasonable doubt that the

court’s error caused no harm. McLaurin, 235 Ill. 2d at 494. This court responded:

“[McLaurin’s] argument ignores the crucial difference between an error a

defendant has properly preserved for review and one which the defendant has

forfeited. *** [W]here the defendant has made a timely objection and properly

- 16 -

preserved an error for review, the reviewing court conducts a harmless-error

analysis in which the State has the burden of persuasion with respect to

prejudice. [Citation.] However, where the defendant fails to make a timely

objection and therefore forfeits review, the reviewing court will examine the

record only for plain error. In a plain-error review, the burden of persuasion

remains on the defendant. [Citation.] *** [The defendant in Childs] properly

preserved [his] claims for review, and this court applied a harmless-error

analysis, placing the burden on the State. As we have discussed, however,

defendant in the present case did not properly preserve his objections. Because

he has forfeited his claims, we review them only for plain error, and the burden

of persuasion remains on defendant to show prejudice.” Id. at 495-96.

¶ 59 Therefore,

“when a defendant who has not waived or forfeited his right to be present shows

that the court has conducted a critical stage of the trial in the defendant’s

absence, the defendant has shown a violation of his constitutional rights. If he

properly preserves the issue for review, the State must prove the violation

harmless beyond a reasonable doubt. [Citation.] The Bean analysis, placing the

burden on the defendant to further show prejudice due to the violation of his

constitutional right to presence at trial, applies only when the defendant has

failed to preserve the issue for review, so that the defendant must prove that the

constitutional error amounted to plain error.” People v. Oliver, 2012 IL App

(1st) 102531, ¶ 21.

¶ 60 2. Review of Brown’s Unpreserved Error

¶ 61 Here, because Brown failed to make a timely objection and therefore forfeits

review, this court examines his unpreserved presence issue for plain error. But

Brown concedes that he cannot show prejudice due to his exclusion from the

conference in chambers at which defense counsel and the prosecutor challenged

jurors for cause and exercised their peremptory challenges. Accordingly, because

Brown has the burden and cannot show prejudice, I agree with the lead opinion that

Brown has not shown plain error and therefore the trial court’s decision to exclude

Brown from the sidebars does not warrant reversal here.

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¶ 62 C. Ineffective Assistance of Counsel

¶ 63 Brown contends his attorneys provided ineffective assistance by failing to

object to the trial court’s jury selection sidebars held without Brown and without a

court reporter. We review de novo the issue of whether Brown received ineffective

assistance of counsel. People v. Hale, 2013 IL 113140, ¶ 15.

¶ 64 Both the United States and Illinois Constitutions guarantee criminal defendants

the right to the effective assistance of counsel. U.S. Const., amends. VI, XIV; Ill.

Const. 1970, art. I, § 8; Strickland v. Washington, 466 U.S. 668, 685-86 (1984);

People v. Albanese, 104 Ill. 2d 504, 525-26 (1984). To demonstrate ineffective

assistance of counsel, a defendant must show that (1) the attorney’s performance

fell below an objective standard of reasonableness and (2) the attorney’s deficient

performance prejudiced the defendant. Strickland, 466 U.S. at 687.

¶ 65 “ ‘Surmounting Strickland’s high bar is never an easy task’ [citation], and a

defendant’s failure to make the required showing of either deficient performance

or sufficient prejudice will defeat a claim that counsel was ineffective [citations].”

People v. Johnson, 2021 IL 126291, ¶ 53. Strickland teaches us that courts strongly

presume counsel rendered adequate assistance and made all significant decisions in

the exercise of reasonable professional judgment. Strickland, 466 U.S. at 690.

¶ 66 Brown has not overcome the presumption of adequate assistance. The appellate

court in Beacham, 189 Ill. App. 3d at 492, said “peremptory challenges may be

exercised outside the presence of the defendant as long as the defendant is given

the opportunity to confer with counsel beforehand.” See also Gentry, 351 Ill. App.

3d 872. When defense counsel decided not to object to the trial court’s procedure,

Gentry, Beacham, and Spears appeared to state binding law. Defense counsel

exercised reasonable professional judgment when she decided not to object to the

exercise of peremptory challenges and challenges for cause at a conference in

chambers held without Brown.

¶ 67 I would also find counsel’s decision not to demand a court reporter for the

conferences in chambers does not show ineffective assistance of counsel. Illinois

Supreme Court Rule 608(a)(7) (eff. July 1, 2017) provides, in pertinent part, that

“the court reporting personnel *** shall take the record of the proceedings

regarding the selection of the jury, but the record need not be transcribed unless a

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party designates that such proceedings be included in the record on appeal.” The

appellate court interpreted Rule 608(a) in People v. Davis, 405 Ill. App. 3d 585

(2010). Davis’s attorney did not object when the court held sidebar conferences,

including sidebars during voir dire, without a court reporter. Id. at 598. Davis raised

the issue in a motion for new trial, which the trial court denied. Id. at 600. The

appellate court summarized the trial court’s reasoning:

“[T]he court explained that having the court reporter move equipment back and

forth for sidebars takes significant time. As a result, the court’s policy was to

have the sidebars proceed in the absence of the court reporter and then, once the

jury has left the room, spread of record what had occurred. We observe that

neither trial counsel nor appellate counsel has disputed Judge Linn’s

representation regarding the reason for the policy or suggested that trial counsel

was unaware of the policy. Thus, pursuant to the court’s policy, defendant was

entitled to make a clear record of any prior objections or motions that ensued.

***

***

*** [D]efendant is not entitled to a new trial, although we believe the better

approach is to have the court reporter transcribe sidebar discussions.” Id. at 600-

01.

¶ 68 In light of Davis, I cannot say defense counsel acted objectively unreasonably

by failing to object to sidebars held without a court reporter. On this issue, too, I

would find that Brown has not shown he received ineffective assistance of counsel.

¶ 69 D. Right to Appeal

¶ 70 Next, Brown contends that his attorney’s acquiescence to the court’s decision

to hold the jury selection sidebars off the record and without him prevented him

from having a sufficient record of jury selection, depriving him of his constitutional

right to appeal issues of jury selection. Article VI, section 6, of the Illinois

Constitution provides, “[a]ppeals from final judgments of a Circuit Court are a

matter of right to the Appellate Court.” Ill. Const. 1970, art. VI, § 6. The Illinois

Constitution does not require counsel to preserve for appellate review every

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conceivable issue. See People v. Simms, 192 Ill. 2d 348, 362-64 (2000). Under

Spears and Davis, trial counsel could have reasonably believed objecting to the trial

court’s preferred method for exercising peremptory challenges would not have

benefited Brown. Defense counsel and the trial court adequately protected Brown’s

right to appeal, even though defense counsel did not preserve for review issues

concerning a violation of his right to presence for the exercise of jury challenges.

¶ 71 E. Collateral Appeal

¶ 72 Brown also claims that his inability to show prejudice renders his ineffective

assistance claim unreviewable on collateral appeal. A defendant may collaterally

attack a conviction under the Post-Conviction Hearing Act (725 ILCS 5/122-1

et seq. (West 2020)), which provides a remedy for substantial violations of a

criminal defendant’s federal or state constitutional rights. Simms, 192 Ill. 2d at 359.

This court does not render advisory opinions. People v. Brown, 236 Ill. 2d 175, 195

(2010). As the record does not include a postconviction petition, I have no opinion

concerning the issues he might raise in such a petition.

¶ 73 F. Conclusion

¶ 74 I would find that criminal defendants have a constitutional right to be present

at all critical stages of the proceedings against them, including the challenges, both

peremptory and for cause, to prospective jury members. When a defendant fails to

object and preserve his presence error, we review for plain error, and the defendant

has the burden of proving prejudice. But when the defendant objects and preserves

the error, the burden shifts to the State to prove the error is harmless beyond a

reasonable doubt. Because Brown’s counsel did not preserve the presence issue for

review, Brown bears the burden of showing the error prejudicial. He admits he

cannot meet this burden. He also did not show his counsel provided objectively

unreasonable assistance by failing to object to the trial court’s proceedings for the

jury challenges. Accordingly, while I depart from the lead opinion’s reasoning and

the holding that hearings to exercise juror challenges are not a critical stage of the

trial, I concur in this court’s judgment affirming the judgment of the appellate court,

which affirmed the trial court’s judgment that Brown has not shown he received

- 20 -

ineffective assistance of counsel.

¶ 75 JUSTICE O’BRIEN, specially concurring:

¶ 76 I agree with the lead opinion’s disposition affirming the appellate court’s

judgment but disagree with the lead opinion’s reasoning. The lead opinion

segregates the jury selection process into two distinct stages: (a) the questioning of

prospective jurors, which the lead opinion defines as “voir dire,” and (b) the

subsequent “striking and accepting of jurors” after the conclusion of voir dire.

Supra ¶ 18. The lead opinion then expressly holds that a defendant does not have a

right to be present during the latter stage. Supra ¶ 24. In reaching this conclusion,

the lead opinion creates a new bright-line/per se rule that would render any analysis

of prejudice unnecessary. However, after announcing this new bright-line/per se

rule, the lead opinion proceeds to review whether the record shows any evidence

that counsel failed to represent defendant’s interests during the striking and

accepting of jurors. Ultimately, the lead opinion concludes that, in the absence of

any such evidence, “there is no basis for us to conclude that counsel somehow

rendered deficient performance by failing to object to the trial court’s suggested

procedure” of conducting the striking and accepting of jurors off the record and

outside the presence of defendant. Supra ¶ 27.

¶ 77 I believe the lead opinion is incorrect in holding that a defendant does not have

the right to be present during the striking and accepting of jurors. Such a holding

deviates from this court’s underlying reasoning in People v. Bean, 137 Ill. 2d 65

(1990). Moreover, the lead opinion’s analysis conflates the two ineffective

assistance prongs: (1) deficient performance and (2) prejudice. See Strickland v.

Washington, 466 U.S. 668, 687 (1984). Therefore, I write separately because I

believe counsel rendered deficient performance when she agreed to a procedure

that resulted in defendant being deprived of his broad right to be present during a

critical stage of his trial—the striking and accepting of jurors. Despite finding that

counsel rendered deficient performance, I would affirm the appellate court’s

judgment on the basis of defendant’s concession that he is unable to establish

prejudice here on direct appeal.

¶ 78 I begin by noting the basis for the lead opinion’s holding—the rationale

espoused in People v. Spears, 169 Ill. App. 3d 470 (1988), People v. Beacham, 189

- 21 -

Ill. App. 3d 483 (1989), and People v. Gentry, 351 Ill. App. 3d 872 (2004). Relying

on the rationale of Spears, Beacham, and Gentry, the lead opinion “decline[s]

defendant’s request to expand our holding in Bean regarding a defendant’s

constitutional right to be present during voir dire to include a defendant’s presence

at the striking and accepting of jurors.” Supra ¶ 24. I find the lead opinion’s holding

to not only be inconsistent with the reasoning underlying Bean but also far too

broad when viewed within the context of the specific facts and analysis found in

Spears, Beacham, and Gentry. The lead opinion’s holding in essence creates a

bright-line/per se rule that will result in the immediate foreclosure of any claim a

future defendant may have regarding his or her lack of presence at the striking and

accepting phase of jury selection. I do not read Bean, Spears, Beacham, or Gentry

to support such a conclusion. Moreover, if the creation of a bright-line/per se rule

is what the lead opinion intends to hold, the analysis should end there. By

discussing that defendant failed to present “evidence” establishing that counsel did

not represent defendant’s interests, the lead opinion conflates the two ineffective

assistance prongs. Specifically, the lead opinion states: “However, in the absence

of any evidence that counsel failed to represent defendant’s interests at the sidebars,

there is no basis for us to conclude that counsel somehow rendered deficient

performance by failing to object to the trial court’s suggested procedure.” Supra

¶ 27. This portion of the lead opinion’s analysis is a prejudice-type analysis and

therefore prompts the question—why would a court conduct a prejudice analysis if

the defendant has no right to be present at this stage of the trial? With this question

in mind, it is important to clarify the precise question before this court. The question

is not whether counsel was ineffective for failing to convey defendant’s interests at

the sidebar conferences. Since defendant was absent from the conferences and the

conferences were held off the record, how would defendant know whether his

interests were or were not protected? Instead, the precise question before this court

is whether counsel was ineffective in agreeing to a procedure whereby the striking

and accepting of jurors were conducted off the record and outside the presence of

defendant.

¶ 79 Turning to the lead opinion’s cited authority, this court, in Bean, explained that

“a criminal defendant has a general right to be present at every stage of his trial,

including jury selection.” Bean, 137 Ill. 2d at 80. The court also expressly held:

“Jury selection is a critical stage of trial.” Id. at 84. In Bean, the defendant claimed

that the trial court violated his constitutional rights when it excluded the defendant

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from in camera voir dire of six members of the venire. Id. at 79. Specifically, the

six venire members were each brought back into the judge’s chambers for further

questioning, questioning from which the defendant was absent. Id. Defense

counsel, without consulting the defendant, used a peremptory challenge to excuse

one of the venire members from the jury. Id. at 79-80. Four of the six venire

members were excused for cause. None of the venire members interviewed in

chambers served on the jury. Id.

¶ 80 The Bean court found that the exclusion of the defendant from the voir dire of

these six venire members was “improper.” Id. at 81, 88. However, the court

ultimately concluded that the defendant was not entitled to relief under the doctrine

of plain error since the defendant failed to establish that the improper procedure

resulted in a jury that was not impartial. Id. at 81. Specifically, the court stated:

“We conclude that no plain error occurred because, although defendant’s broad

right of presence was improperly denied and could have affected the impartiality of

the jury, defendant’s absence from the in camera voir dire did not, in fact, have the

slightest effect on the impartiality of the jury selected.” Id. The court proceeded to

also conclude that, while the defendant’s due process rights under the federal

constitution were not violated, there could be future scenarios where exclusion from

voir dire results in a new trial. Id. at 88. Specifically, the court stated:

“Although we agree with defendant’s exposition of why he should have

been present throughout jury selection, defendant’s argument does not establish

an absolute, inviolable right of presence, which if applied to the present case

would require a new trial even though defendant’s presence at the in camera

voir dire could not have affected the judge’s excusal of four venire members,

and even though defendant has not shown that his absence resulted in a

prejudiced juror serving on his jury. Yet while we hold that defendant’s due

process right of presence was not violated in this case, we note that the

procedure of in camera voir dire without defendant’s presence and without

defendant’s express waiver of this right is improper and, in some cases, will

inevitably result in the denial of a defendant’s fundamental rights to a fair trial

by an impartial jury.” Id.

¶ 81 Significantly, the Bean court used the term “improper” on multiple occasions

when referencing the defendant’s exclusion from in camera voir dire of six

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members of the venire. It was only after the court reviewed the specific facts of the

case that it determined that the impropriety did not affect the impartiality of the

jury. While the questions before the Bean court involved plain error and due

process, not ineffective assistance, it stands to reason that an attorney’s

performance is in fact deficient if she fails to ensure (1) her client is present for

voir dire or (2) her client expressly waives the right to be present for voir dire.

Again, such a conclusion is compelled by the Bean court’s multiple impropriety

findings and its express acknowledgement that voir dire without a defendant’s

presence will, at some point, inevitably result in plain error and/or the deprivation

of a defendant’s fundamental right to a fair trial in the future. It follows therefore

that, if voir dire is a critical part of a criminal proceeding and a defendant has the

right to be present at all critical stages of the proceedings, counsel’s failure to ensure

a defendant’s presence at such a critical stage falls below an objective standard of

reasonableness. See Strickland, 466 U.S. at 687; People v. Caballero, 126 Ill. 2d

248, 259-60 (1989) (the first prong of the ineffective assistance test requires a

defendant to prove his counsel’s performance fell below an objectively reasonable

standard).

¶ 82 The lead opinion attempts to limit the holding in Bean on the basis that

defendant, unlike the defendant in Bean, was present for the questioning of the

venire panels. Specifically, the lead opinion states, “Defendant was present

throughout voir dire when prospective jurors were questioned. Thus, defendant had

the opportunity to hear the prospective jurors’ answers and to view their demeanor.

He could then provide whatever input he desired to counsel before his attorney

acted on his behalf at the sidebars.” Supra ¶ 25. This reasoning and assumption are

flawed for several reasons.

¶ 83 At the outset, I do not disagree with the lead opinion’s assertion that the term

“voir dire” refers to the questioning of potential jurors and does not technically

include the striking or accepting of jurors. However, this assertion is not relevant

to, nor dispositive of, the issue before this court. The lead opinion wants to separate

the process of voir dire from the striking and accepting of jurors and then wants to

exclude the latter from the jury selection process. Jury selection, however, is made

up of several stages and components, all of which rely upon one another to ensure

that the defendant is adjudicated by an impartial jury. The striking and accepting of

jurors is an integral part of the jury selection process. It is, in fact, the culminating

- 24 -

phase to which all other phases lead. The notion that a defendant would have a

broad right to be present during the questioning of jurors, but not the striking and

accepting of jurors, defies logic. Simply put, the questioning of jurors falls under

the umbrella of jury selection. The striking of jurors falls under the umbrella of jury

selection. The accepting of jurors falls under the umbrella of jury selection. And

“[j]ury selection is a critical stage of trial.” Bean, 137 Ill. 2d at 84. At best, a

defendant’s presence at one stage of jury selection and not another may be relevant

to the question of prejudice or whether a defendant is entitled to relief under the

doctrine of plain error, but it is not relevant to the question of whether counsel’s

performance was deficient. Absent the defendant’s knowing and voluntary waiver,

I can conceive of no possible strategic advantage that might have been gained by

conducting the questioning of jurors in the presence of defendant and then

subsequently agreeing to a procedure whereby the striking and accepting of jurors

is conducted off the record and outside the presence of defendant.

¶ 84 Second, in an apparent attempt to excuse counsel’s deficiencies, the lead

opinion simply assumes that defendant “provide[d] whatever input he desired to

counsel before his attorney acted on his behalf at the sidebars.” Supra ¶ 25. Again,

this type of analysis implicates the second Strickland prong—whether defendant

was prejudiced by counsel’s deficient performance—not whether counsel’s

performance was in fact deficient. Furthermore, the reasoning itself is logically

flawed, since it fails to acknowledge that the striking and accepting of jurors

involves counsel from both sides—the defense and the State. While defendant may

have been able to tell his counsel that he would like her to strike prospective jurors

A and B, the lead opinion’s reasoning does not account for who the State may wish

to strike.

¶ 85 Finally, the lead opinion’s reasoning incorrectly focuses on the conduct of

defendant, as opposed to counsel. The specific claim before this court is ineffective

assistance of counsel. Accordingly, it is counsel’s conduct, not defendant’s

conduct, that we are called to objectively analyze. Here, counsel agreed to a process

that infringed on defendant’s broad right of presence. Did counsel’s agreement to

this process constitute deficient performance? That is the sole question on review

when analyzing the first prong of Strickland. I answer this question in the

affirmative. Again, the assumption that defendant could “provide whatever input

he desired to counsel before his attorney acted on his behalf at the sidebars” goes

- 25 -

to the question of prejudice, not whether counsel was deficient. Of particular

concern is the fact that the lead opinion’s above assumption will result in future

confusion regarding the respective duties of the advocate and the client. For

example, the lead opinion in essence places the obligation on a defendant to act

prior to a sidebar or hearing, thereby shifting the burden of advocacy and

representation from counsel to defendant. Alternatively, I believe it is counsel’s

obligation to ensure her client is present at all stages of jury selection, not

defendant’s obligation to inform counsel of his wishes and concerns prior to certain

stages of jury selection. Simply put, counsel was deficient in agreeing to a process

where the parties struck and accepted jurors at sidebar conferences held off the

record and outside defendant’s presence.

¶ 86 In rejecting this conclusion, the lead opinion relies upon the rationale of Spears,

169 Ill. App. 3d 470, Beacham, 189 Ill. App. 3d 483, and Gentry, 351 Ill. App. 3d

872. Specifically, the lead opinion finds these cases “convincing and consistent

with our holding in Bean.” Supra ¶ 24. I will examine each case in turn. I will also

examine the decision in People v. Oliver, 2012 IL App (1st) 102531, which the lead

opinion finds to be “[a]t odds” with Spears, Beacham, and Gentry. Supra ¶ 22.

¶ 87 While the Spears court was not asked to review a claim of ineffective

assistance, it did find that no “reversible error” occurred where peremptory

challenges were used outside the presence of the defendant because the defendant

had been given the opportunity to confer with counsel beforehand and counsel

communicated the defendant’s considerations to the trial court. (Emphasis added.)

Spears, 169 Ill. App. 3d at 483. Specifically, the court stated:

“[T]he record in the instant case fails to indicate that defendant’s interests or

substantial rights were violated or that he was prejudiced in any way by his

absence during the communications between the trial court and counsel

regarding prospective jurors. ***

We note that under different circumstances, such as where a defendant was

unable to communicate to counsel or the court his comments regarding

prospective jurors, the defendant’s right to be present at a critical stage of trial

would be violated. Such a procedure would result in reversible error entitling

the defendant to a new trial. In the instant case, however, defendant’s right to

be present was protected.” (Emphases added.) Id.

- 26 -

¶ 88 The above reasoning clearly does not support the lead opinion’s bright-

line/per se rule that a defendant does not have a right to be present at the striking

and accepting of jurors. Instead, Spears stands for the proposition that a defendant

should in fact be physically present during the striking and accepting stage of jury

selection. If the defendant is not physically present, as was the case in Spears, the

reviewing court should then look to the record to examine whether the defendant

suffered prejudice as a result of his absence.

¶ 89 Here, counsel was deficient, as there was no possible strategic advantage to

infringing on defendant’s broad right to be present during jury selection. This court

should make this affirmative finding and then accept defendant’s concession that

prejudice cannot be proven on direct appeal. Such an analysis is consistent with the

analysis found in Bean and Spears. Both courts ultimately reviewed the record and

determined that the infringement of the respective defendants’ right to be present

during jury selection did not rise to the level of “plain error” (emphasis added)

(Bean, 137 Ill. 2d at 81) or “reversible error” (emphasis added) (Spears, 169 Ill.

App. 3d at 483). Neither Bean nor Spears supports the conclusion that a defendant

simply does not have a right to be present at the striking and accepting of jurors. In

fact, the reasoning and analysis found in both cases stand for the exact opposite

proposition.

¶ 90 The defendant in Beacham alleged he was denied effective assistance of counsel

where his counsel retired to the judge’s chambers to exercise challenges. Beacham,

189 Ill. App. 3d at 491. Curiously, the Beacham court did not consider the question

of whether counsel’s actions constituted deficient performance. Instead, the court

implicitly found lack of prejudice due to the fact that “the record indicate[d] ***

that [the defendant] was present during the voir dire and was able to consult with

his attorney before the exercise of challenges in chambers.” Id. at 491-92. The

Beacham court specifically noted that the defendant even “was allowed to reverse

his counsel’s acceptance of a panel of jurors.” Id. at 492. Beacham, like Bean and

Spears, does not stand for the lead opinion’s bright-line/per se rule that a defendant

does not have the right to be present during the striking and accepting of jurors.

¶ 91 The lead opinion’s reliance on Gentry is misplaced, as the defendant in that case

waived his “right” to be present during the exercise of certain challenges. Gentry,

351 Ill. App. 3d at 882-83. Initially, I would note the fact that defendant expressly

- 27 -

waived the “right” to be present during the exercise of challenges supports the

conclusion that a “right” to be present actually exists. It must also be noted that the

Gentry court, unlike the lead opinion here, expressly refers to the striking and

accepting of jurors as part of voir dire. I only note this additional point due to the

fact that the lead opinion takes great lengths to segregate the jury selection process

into two distinct stages: (a) the questioning of prospective jurors, which it defines

as “voir dire,” and (b) the subsequent “striking and accepting of jurors” after the

conclusion of voir dire. Supra ¶ 24.

¶ 92 Turning to the specific facts in Gentry, the trial judge and counsel for both sides

held two in camera meetings where challenges were exercised, and defense counsel

moved for a mistrial. Gentry, 351 Ill. App. 3d at 882-83. The defendant was not

present during these two in camera meetings, nor was he present for a subsequent

sidebar conference between the judge and counsel for both sides. Id. at 876. More

specifically, counsel informed the court that her client was “ ‘waiving his right to

be [t]here’ ” with respect to the first in camera meeting. (Emphasis added.) Id. at

882. The following colloquy took place with respect to the second in camera

meeting:

“ ‘[THE COURT]: [D]oes your client want to be with us? ***

MS. GARRETT [(DEFENSE COUNSEL)]: No, Your Honor.

THE COURT: Okay, and you have told him that he can be here if he wants

to be?

MS. GARRETT: Yes, Your Honor.’ ” Id. at 883.

After the two in camera meetings, the judge called a sidebar conference, in which

the court granted defense counsel’s request to dismiss two potential jurors for cause

and defense counsel exercised a peremptory challenge. Id.

¶ 93 Clearly, the defendant waived his “right” to be present at the two in camera

meetings, and therefore no error resulted from the defendant’s absence. 1 With

respect to the sidebar conference, the defendant complained that the trial judge

1

The Gentry court did not address the question of waiver, but I believe waiver forecloses any

argument the defendant may have with respect to the two in camera meetings.

- 28 -

never asked him if he wanted to attend. In rejecting this argument, the appellate

court noted that “no venire members were questioned outside [the] defendant’s

presence.” Id. at 884. Like the lead opinion here, the Gentry court proceeded to

assume that the defendant and counsel consulted with one another with respect to

challenges. Specifically, the court stated: “Presumably, defense counsel took into

account any ‘input’ from defendant when she acted on his behalf during the

in camera meetings and sidebar conference.” Id.

¶ 94 Significantly, Gentry did not involve a claim of ineffective assistance.

Therefore, unlike in Gentry, the initial question before this court focuses on

counsel’s conduct, not the trial judge’s conduct. Stated another way, the question

before this court is whether counsel provided deficient performance when she

agreed to a process striking and accepting jurors off the record and outside

defendant’s presence. The question before the Gentry court was whether the trial

judge committed reversible error by failing to ask the defendant if he wished to be

present during a sidebar conference after the defendant expressly waived his

presence on two prior occasions. As one can see, the issue in Gentry, and therefore

the court’s analysis, is distinguishable from the instant case. Even still, I find

relevancy in the fact that the Gentry court did not simply hold that defendant had

no right to be present at the sidebar conference. Instead, the Gentry court proceeded

to engage in an implicit prejudice-type analysis when it assumed that counsel

consulted with the defendant prior to the conference. Applying the lead opinion’s

analysis retroactively to Gentry would not even require such an assumption to be

made. Why would the trial court have to ask the defendant if he wished to waive

his presence at a sidebar conference or hearing at which he was not entitled to be

present?

¶ 95 In Oliver, defense counsel waived the defendant’s appearance during an

in camera meeting where the parties exercised challenges. Oliver, 2012 IL App

(1st) 102531, ¶ 5. The defendant subsequently filed a postconviction petition

alleging ineffective assistance because he never gave his counsel permission to

waive his appearance. Id. ¶ 12. While the Oliver court did not expressly address the

question of deficiency, it did broadly hold that a defendant shows a “violation of

his constitutional rights” when juror challenges are conducted in a defendant’s

absence. Id. ¶ 21. The court ultimately affirmed the dismissal, however, on the

ground that the defendant failed to establish prejudice. Id. ¶ 23.

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¶ 96 While the Oliver court correctly disposed of the defendant’s ineffective

assistance claim on the grounds that the defendant failed to establish prejudice (as

the lead opinion should do in the instant case), I disagree with the Oliver court’s

conclusive holding that a defendant establishes a “constitutional violation” merely

by showing that he was not present for a stage of jury selection. Like the lead

opinion, the Oliver court clouds the initial question a court should answer when

faced with a claim of ineffective assistance—did counsel’s performance fall below

an objective standard of reasonableness. See People v. Jackson, 2020 IL 124112

¶ 90; People v. Houston, 226 Ill. 2d 135, 144 (2007). Counsel’s performance will

be deemed deficient if it falls below this objective standard. Houston, 226 Ill. 2d at

144. In such a situation, the court must then turn to the question of whether

counsel’s deficient performance prejudiced the defendant. Id. Had the defendant in

Oliver or defendant in the instant case proven prejudice as a result of their

respective counsel’s deficient performance, then and only then would they have

established a “constitutional violation.” This conclusion is supported either

expressly or implicitly by the underlying reasoning found in Bean, Spears,

Beacham, and Gentry.

¶ 97 After a substantive review of Bean, Spears, Beacham, Gentry, and Oliver, two

points are clear: (1) the lead opinion’s holding does not actually align with any of

the underlying reasoning found in the above authority, and (2) there is a need for

this court to clarify the substantive analysis or structure a court must employ when

confronted with an ineffective assistance claim concerning a defendant’s lack of

presence during jury selection.

¶ 98 First, the lead opinion stands alone in its creation of a bright-line/per se rule

that a defendant does not have the right to be present during the striking and

accepting of jurors. For reasons I have already discussed, this holding is not only

logically flawed; it is also not supported by any of the underlying reasoning found

in Bean, Spears, Beacham, Gentry, or Oliver. This court’s analysis in Bean supports

the opposite conclusion—that a defendant does in fact have the right to be present

during jury selection (which I believe includes questioning, striking, and accepting)

and that conducting these stages in the absence of a defendant is “improper” and

will inevitably lead to plain error, violations of a defendant’s fundamental right to

a fair trial, and also ineffective assistance in certain instances.

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¶ 99 I acknowledge the lead opinion’s reliance on the singular sentence in Spears

that “the communication by defense counsel to the court of the defense’s specific

objections regarding prospective jurors is not a critical stage of trial requiring

defendant’s presence.” See Spears, 169 Ill. App. 3d at 483. This mere sentence,

however, without context or analysis ignores the fact that the Spears court based

this conclusion upon the finding that defendant was not “prejudiced” as a result of

his absence. Id. Stated another way, the Spears court did not find the absence of

error; it found the absence of “reversible error.” Id.

¶ 100 Likewise, the courts in Beacham, Gentry, and Oliver all either expressly or

implicitly found that the defendants’ absence during stages of jury selection did not

result in prejudice. The lead opinion in the instant case, however, takes an entirely

novel approach in holding that it need not even address prejudice because defendant

simply never had a right to be present for the striking and accepting of jurors. No

cited case stands for such a proposition. Moreover, the lead opinion’s novel holding

prompts the question—if a defendant simply does not have a right to be present,

why did the courts in Bean, Spears, Beacham, Gentry, and Oliver all find it

necessary to examine the respective defendants’ lack of presence under a prejudice-

type analysis or through the application of presumptions? These questions lead me

to my second observation—this court must clarify the substantive analysis or

structure a court should employ when confronted with an ineffective assistance

claim concerning a defendant’s lack of presence during jury selection.

¶ 101 As I discussed above, the lead opinion’s analysis conflates the two ineffective

assistance prongs: (1) deficient performance and (2) prejudice. While this court has

previously held that “[j]ury selection is a critical stage of trial” (Bean, 137 Ill. 2d at

84), the lead opinion fails to even examine the pertinent question with respect to

whether counsel was deficient during jury selection—is there any possible strategic

advantage that might have been gained by conducting the questioning of jurors in

the presence of defendant and then counsel subsequently agreeing to a procedure

whereby the striking and accepting of jurors is conducted off the record and outside

the presence of defendant? The short answer to this question is no. The lead

opinion’s baseless assumption that defendant had the opportunity to “provide

whatever input he desired to counsel before his attorney acted on his behalf at the

sidebars” goes to the question of prejudice. See supra ¶ 25. I also note that the two

cited cases that involved ineffective assistance claims (Beacham and Oliver) both

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failed to even discuss whether counsel was deficient. Consequently, this court

should take this opportunity to not only clarify the law regarding a defendant’s right

to be present during all stages of jury selection, but it should also clarify the proper

analysis a court should follow in the future when confronted with ineffective

assistance claims related to this issue. I fear the lead opinion’s analysis further

muddies these waters.

¶ 102 It is for these reasons that I find counsel was deficient in agreeing to a process

whereby defendant was not present for a critical part of his trial. More specifically,

counsel’s agreement to such a procedure was improper and lacked any possible

strategic advantage. This does not end the inquiry, however, as reversal is only

warranted if counsel’s deficient performance resulted in prejudice to defendant.

¶ 103 Defendant concedes that there is no evidence in this record that he was tried by

a biased jury, i.e., prejudice. Furthermore, it must be noted that this record is silent

as to whether defendant talked with counsel about individual venire members prior

to the sidebars or what conversations were had by counsel and the judge during the

sidebars. Because a defendant’s lack of presence does not automatically entitle him

to relief (Bean, 137 Ill. 2d at 88; Spears, 169 Ill. App. 3d at 483; Beacham, 189 Ill.

App. 3d at 491-92; Gentry, 351 Ill. App. 3d at 884; Oliver, 2012 IL App (1st)

102531, ¶ 5), it would be inappropriate to simply presume prejudice, as defendant

requests. Instead, the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West

2010)) provides a defendant the opportunity to raise “ ‘constitutional questions

which, by their nature, depend[ ] upon facts not found in the record.’ ” People v.

Cherry, 2016 IL 118728, ¶ 33 (quoting People v. Thomas, 38 Ill. 2d 321, 324

(1967)). In Cherry, this court commented that claims of ineffective assistance of

counsel are commonly raised in postconviction proceedings because they often

require the presentation of evidence not contained in the record. Id. Defendant’s

ineffective assistance claim is more appropriate for postconviction review, where

he can develop the record and present the trial court with evidence that may support

a claim that he was not tried by an impartial jury.

¶ 104 JUSTICE HOLDER WHITE joins in this special concurrence.

¶ 105 JUSTICES CUNNINGHAM and ROCHFORD took no part in the

consideration or decision of this case.

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