People v. Campbell

JUSTICE KILBRIDE, concurring in part and dissenting in part:

I concur in the portion of the majority opinion holding that criminal defense counsel may waive a client’s right of confrontation by stipulating to evidence when the defendant does not object and when the stipulation constitutes legitimate trial tactics or strategy. I write separately on that portion of the opinion only to emphasize the principle that, pursuant to our decision, a defendant possesses the continuing right to object to or dissent from counsel’s decision to stipulate. See Fay v. Noia, 372 U.S. 391, 439 , 9 L. Ed. 2d 837, 869 , 83 S. Ct. 822, 849 (1963) (choice to waive made by counsel not participated in by petitioner does not automatically bar relief to the petitioner), overruled in part on other grounds by Wainwright v. Sykes, 433 U.S. 72, 87-88 , 53 L. Ed. 2d 594, 608 , 97 S. Ct. 2497, 2507 (1977). Consequently, a defendant’s knowing consent to a stipulation should be found only when the defendant does not object to or dissent from that decision. This contradicts the appellate court’s holding that a defendant need not knowingly consent to counsel’s stipulation of evidence. To uphold such a holding would improperly deprive a defendant of the ability to object to or dissent from counsel’s stipulation. I write separately, in part, to reflect my firm belief that a defendant’s continued right to override counsel’s decision to stipulate to the admission of evidence must be unequivocally maintained.

I also write separately because I do not believe defense counsel’s agreement to stipulate in this case can be considered “a matter of sound trial tactics and strategy.” 208 Ill. 2d at 221. The majority opinion concludes that the stipulation was part of defense counsel’s trial strategy because, in addition to showing that defendant entered the house without permission, the statements also established his lack of criminal intent by providing a reason for his entry. 208 Ill. 2d at 220. While establishing these facts may have been helpful in developing a defense to the charges, here no defense was necessary because the State was unable to make a prima facie case without Hoerr’s stipulated statement.

Both residential burglary (720 ILCS 5/19 — 3 (West 2000)) and criminal trespass to a residence (720 ILCS 5/19 — 4 (West 2000)) require the State to prove that defendant lacked authority to enter the house. Without Hoerr’s statement that he did not give defendant permission to enter, the only evidence cited by the majority to show that defendant lacked proper authorization is Powell’s testimony that he and Hoerr “decided to call the police because they were both leaving town that day and knew it was easy to break into empty houses” and the investigating officer’s testimony that “he was called to check a report of a person that had walked into a house and had left” and that, when questioned, defendant could not provide the name of the person he was looking for in the house. 208 Ill. 2d at 219. This testimony is entirely consistent with Hoerr’s answering the door after several knocks and letting defendant into the house, only to become concerned later about the events. The cited testimony does not establish that Hoerr did not initially authorize defendant to enter the house. Only Hoerr’s statement, admitted by the inexplicable stipulation of defense counsel, can serve that purpose.

Without any evidence establishing the same element of both crimes, defendant had no need to develop a further defense. Defense counsel’s stipulation only served to undermine defendant’s case and provide the State with the critical piece of proof it was missing. 208 Ill. 2d at 219, citing United States v. Stephens, 609 F.2d 230 , 233 n.2 (5th Cir. 1980). Under these circumstances, admitting Hoerr’s statement could not have been part of any legitimate trial tactic or strategy. Thus, I respectfully dissent from the portion of the opinion concluding that defense counsel’s stipulation was a matter of sound trial tactics or strategy.