People v. McCarty

JUSTICE FREEMAN, concurring in part and dissenting in part:

I join fully in sections I and II of the court’s opinion and agree that defendants’ convictions must be upheld. I do not agree, however, with section III of the opinion and dissent from that portion of the opinion.

I part ways with my colleagues because I believe that the issue regarding the constitutionality of the search warrant was not adequately preserved by either defendant in this case and, as a result, should be deemed procedurally defaulted. The issue was not raised in either of the petitions for leave to appeal filed in this case. Failure to include an issue in a petition for leave to appeal results in its forfeiture. People v. Carter, 208 Ill. 2d 309, 318 (2003) (and cases cited therein). I also note that neither defendant raised the matter in his or her motion to suppress so the issue was not before the circuit court either. Defendant McCarty also failed to raise the issue in a posttrial motion. This court has long recognized that in order to preserve an issue for appellate review, the matter must be objected to at the time of trial and must also be included in the posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988).

The court acknowledges all of the above (223 Ill. 2d at 141-42) and states that the issue has been forfeited. The court, however, excuses the forfeiture in light of two considerations plus the fact that “the rule of forfeiture is ‘an admonition to the parties and not a limitation on the jurisdiction of this court.’ ” 223 Ill. 2d at 142, quoting People v. Normand, 215 Ill. 2d 539, 544 (2005). I disagree with this analysis.

The first consideration cited by the court is the fact that “the appellate court reviewed McCarty’s and Reynolds’ challenges to the constitutionality of the warrant on the merits.” 223 Ill. 2d at 142.1 fail to see how this is dispositive particularly when it is clear that the appellate court reached the issues by sidestepping the procedural-default argument raised by the State. Indeed, in defendant Reynolds’ appeal, the appellate court did not even address the fact that the issue was defaulted. In the McCarty appeal, the appellate court noted the default, but addressed the matter on the sole basis that the “waiver rule is a limitation on the parties and not on the reviewing court.” McCarty, 356 Ill. App. 3d at 560. The appellate court also stated that it would “relax the rule” in the “interests of justice” and address the merits. McCarty, 356 Ill. App. 3d at 560. I note that the principle that “waiver is a limitation on the parties and not the court” has its origins in the notion that courts will override concerns of waiver in some cases if necessary to reach a just result or maintain a uniform body of precedent. See Hux v. Raben, 38 Ill. 2d 223, 225 (1967) (noting limited exceptions for addressing points not raised properly). Thus, the proposition is one that is dependent on a very limited number of circumstances being present in a given case. Here, the appellate court did not identify why the need to invoke this very limited exception existed in this case. Indeed, it would have been hard-pressed to do so, given that the case law in this area is both sound and uniform. As far as the interests of justice are concerned, it seems unlikely that those interests were much at risk given the appellate court’s ultimate conclusion that no error occurred. For this reason, nothing about the appellate court’s treatment of the issue gives this court any reason to address the issue on the merits. Thus, in contrast to my colleagues, I do not believe that the appellate court’s decision to ignore the procedural default in this case limits this court from applying the doctrine.

The second consideration cited by the court is the fact that this court “granted McCarty and Reynolds leave to file supplemental briefs addressing the constitutionality of the warrant.” 223 Ill. 2d at 142. This is a reference to developments which arose when defendant McCarty sought leave to file a supplemental pro se brief in this case on February 9, 2006. 3 In the motion, McCarty alleged that his attorney had filed a petition for leave to appeal on one issue and that he (McCarty) “was allowed to file a Supplemental Petition for Leave to Appeal on a separate issue.” McCarty claimed that the brief filed by his counsel did not include the issue raised in his supplemental petition. He therefore requested leave from this court to file a pro se supplemental brief as to that issue. Neither the motion nor the supplemental brief was ever served on the State, which became aware of the development only upon receipt of this court’s order, entered by a single justice, allowing McCarty’s pro se request. 4 Although this court, again by order of a single justice, subsequently denied its emergency motion for reconsideration, the State was given an opportunity to respond to McCarty’s pro se supplemental brief. In its response, the State maintained that the issue was procedurally defaulted because it had not been properly preserved. The State also maintained that McCarty did not argue that the plain error rule excused the default nor could the rule be satisfied. 5

Having now had a full opportunity to review both McCarty’s motion and the full briefing of this matter in light of the complete record in this case, I believe the order which initially allowed McCarty leave to file a pro se supplemental brief was entered under a misapprehension of the facts. Contrary to McCarty’s allegations in his motion for leave to file the supplemental brief, this court did not allow him to file a pro se supplemental petition. The docket sheet in this case indicates that no supplemental pro se petition was ever filed in this court. This is not surprising since a defendant does not have the right to both self-representation and the assistance of counsel. People v. McDonald, 168 Ill. 2d 420, 435 (1995) (and cases cited therein); People v. Woods, 292 Ill. App. 3d 172, 179 (1997). In light of these facts, I do not believe any reason exists for this court to consider this argument, particularly in light of the fact that the record indicates that the issue was never properly preserved in the first place by either McCarty or defendant Reynolds.

In my view, neither the fact that the appellate court addressed the claim on the merits nor the fact that this court sought supplemental briefing on the issue operates to excuse the procedural default that is present in this case. The latter argument is particularly unpersuasive since in the course of the full supplemental briefing that this court allowed, the State raised a plain error argument to which neither defendant has responded. I note that, in the past, this court has refused to entertain arguments when a defendant fails to ask the court to review the matter under the doctrine of plain error. See, e.g., People v. Williams, 204 Ill. 2d 191, 208 (2003); People v. Casillas, 195 Ill. 2d 461, 485 (2000); People v. Reed, 177 Ill. 2d 389, 395 (1997). I fail to see why the defendants in this case should be treated differently solely on the basis that the court allowed additional briefing on this issue. I therefore next address whether the court’s decision to excuse the bar in this case is somehow warranted “because the rule of forfeiture is ‘an admonition to the parties and not a limitation on the jurisdiction of this court.’ ” 223 Ill. 2d at 142, quoting People v. Normand, 215 Ill. 2d 539, 544 (2005).

As noted previously, the principle that waiver is a limitation on the parties and not the court can be traced to this court’s decision in Hux, in which this court stated courts of review may override concerns of waiver in some cases if necessary to reach a just result or maintain a uniform body of precedent. Hux, 38 Ill. 2d at 225 . I do not disagree with this basic premise. However, the principle does not, in my view, give a court of review carte blanche to disregard a claim of procedural default without some expressed justification that comports with the rationale upon which Hux decided. In this case, neither the need to maintain a uniform body of precedent nor the need to reach a just result is strong enough to override the well-recognized concerns that animate the doctrine of procedural default. As I noted previously, the case law in this area is unremarkable, and the need to ensure a just result is not at risk.

More importantly, however, I believe that the principle announced in Hux should not be invoked arbitrarily, especially given the fact that well-defined exceptions to the waiver rule exist. Indeed, this court has developed a plain error doctrine which allows a reviewing court to reach a forfeited error in certain circumstances. The doctrine, adopted formally as Supreme Court Rule 615, serves as a “ ‘narrow and limited exception to the general *** rule [of procedural default].’ ” People v. Szabo, 113 Ill. 2d 83, 94 (1986), quoting People v. Pastorino, 91 Ill. 2d 178, 188 (1982). Under this doctrine, a default will be excused if the defendant can establish plain error, in that either (i) the evidence was closely balanced such that the error was prejudicial or (ii) the error was so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial process such that prejudice can be presumed. People v. Nitz, 219 Ill. 2d 400, 414-15 (2006). 6

The foregoing leads me to believe that the court’s inconsistent application of the doctrine of procedural default will continue to produce opinions which cannot be harmonized with each other. The indiscriminate application of the principle enunciated in Hux will serve only to prompt defendants to raise even more procedurally defaulted claims on appeal. The State, relying on our precedent that an issue must be properly preserved by a contemporaneous objection as well as in the posttrial motion, will be left to wonder if procedural default and plain error are still viable arguments to make in this court given the wholly inconsistent manner in which they are applied. This is not an unrealistic prediction because, to put it frankly, it is difficult to try to moor this court’s application of the doctrine of procedural default to any objective criteria. Rather, opinions such as today’s serve only to give the appearance that the court does whatever it wants to do in any given case, whether it be excusing forfeitures on the basis of Hux in one case while strictly applying the plain error rule in another.

That said, I would invoke the principle that “waiver is a limitation on the parties and not on the court” only in the limited instances explicitly contemplated in Hux. In contrast to my colleagues, I do not believe that principle has any application to this case. Instead, I would hold that the issue has been procedurally defaulted and that no reason exists to excuse the procedural default. See People v. Keene, 169 Ill. 2d 1 (1995) (setting forth bases for excusal of procedural default); People v. Enoch, 122 Ill. 2d 176 (1988) (same).

JUSTICE KILBRIDE joins in this partial concurrence and partial dissent.

McCarty’s action in this court commenced on April 25, 2005, when his counsel filed a petition for leave to appeal on McCarty’s behalf. His case was subsequently consolidated with that of defendant Reynolds upon this court’s acceptance of both petitions on September 29, 2005. Thereafter, defendants’ brief was filed on November 1, 2005, and the State’s brief was filed on February 2, 2005.

On March 13, 2006, defendant Reynolds also sought leave to file a supplemental brief with respect to the warrant issue. As was the case with McCarty’s motion, leave was granted to Reynolds by order of a single justice.

The State’s response with respect to the warrant issue was not filed in this court until after oral argument had been conducted. In fact, full briefing on the warrant issue was not completed until May 3, 2006, almost two months after oral argument

I will leave to another day discussion of the interrelationship, if any, between the principle rooted in Hux and this court’s plain error rule. For example, why are some criminal defendants made to satisfy the plain error rule in order to have a default excused (see, e.g., People v. Allen, 222 Ill. 2d 340 (2006) (holding defaulted the defendant’s due process challenge to the circuit court’s erroneous decision to restrain him, during trial, in an electronic stun belt due to defendant’s failure to satisfy either prong of the plain error rule)) while other criminal defendants, such as those today, have their procedural defaults excused for no given reason? Although numerous decisions of this court invoke the Hux principle in criminal cases, a close reading of Hux suggests that such reliance may be erroneous, as the opinion seems to indicate that the principle applies only in civil cases. See Hux, 38 Ill. 2d at 224 (noting distinction between the principle and the “similar thought *** expressed in the provision of Rule 615 with respect to the review of criminal cases” (emphasis added)). If that is so, then the only vehicle by which this court could excuse the procedural bar in this case would be the plain error rule.