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07/27/95 PEOPLE STATE ILLINOIS v. FREDDIE FALASTER

July 27, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
FREDDIE FALASTER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Jackson County. No. 93-CF-306. Honorable David W. Watt, Jr., Judge, presiding.

The Honorable Justice Chapman delivered the opinion of the court: Maag, P.j., and Lewis, J., concur.

The opinion of the court was delivered by: Chapman

JUSTICE CHAPMAN delivered the opinion of the court:

A jury found defendant guilty of two counts of aggravated criminal sexual assault, one count of criminal sexual assault charges, and one count of distribution of harmful material. The alleged victim was defendant's minor daughter, "AF." Defendant was sentenced to concurrent terms of imprisonment of 15 years for each of the aggravated criminal sexual assault charges, five years on the conviction of criminal sexual assault, and 364 days on the conviction of unlawful distribution of harmful material.

Defendant raises four arguments: (1) the trial court denied defendant his right to a public trial by excluding members of the public during AF's testimony; (2) the trial court prejudiced defendant by admitting hearsay testimony of a nurse who interviewed AF; (3) the trial court erred by asking the State's rebuttal expert a question; and (4) the trial court erred by not instructing the jury that the judge's questioning of the State's expert was not a reflection of the judge's opinion of the credibility of the expert or her testimony. We affirm.

The first issue on appeal is whether defendant's right to a public trial was denied when the trial court partially closed the courtroom during AF's testimony. The objective of a criminal proceeding is to try the accused in a fair manner. ( People v. Holveck (1990), 141 Ill. 2d 84, 100, 565 N.E.2d 919, 926, 152 Ill. Dec. 237.) The sixth amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right to a *** public trial ***." (U.S. Const., amend. VI.) Similarly, article I, section 8, of the Illinois Constitution provides: "In criminal prosecutions, the accused shall have the right *** to a speedy public trial ***." (Ill. Const. 1970, art. I, ยง 8.) However, there is no absolute right of public access to criminal trials. Holveck, 141 Ill. 2d at 100, 565 N.E.2d at 926.

In this case, the court's closure order was based on section 115-11 of the Illinois Code of Criminal Procedure of 1963 (Code), which states:

"In a prosecution for a criminal offense *** where the alleged victim of the offense is a minor under 18 years of age, the court may exclude from the proceedings while the victim is testifying, all persons, who, in the opinion of the court, do not have a direct interest in the case, except the media." (725 ILCS 5/115-11 (West 1992).)

Defendant contends that he was denied his constitutional right to a public trial because the trial judge ordered two of defendant's nephews, and the grandfather of one of those nephews, to leave the courtroom while AF testified. The State argues that this issue was waived by defendant's failure to raise it in his posttrial motion. Defendant argues that the public trial issue is not waived because it is constitutional in nature and could have been raised later in a postconviction petition.

Generally, an issue which is not included in a posttrial motion is waived. ( People v. Friesland (1985), 109 Ill. 2d 369, 374-75, 488 N.E.2d 261, 262, 94 Ill. Dec. 435.) An exception exists, however, for constitutional issues which have been raised at trial and which can be raised later in a postconviction petition (725 ILCS 5/122-1 (West 1992)). ( People v. Johnson (1991), 214 Ill. App. 3d 1087, 1090, 574 N.E.2d 225, 226, 158 Ill. Dec. 431.) We find that defendant's actions fall under this exception. Although defendant did not raise the issue in his posttrial motion, he did object to the court's exclusion of two of his nephews, and the grandfather of one of those nephews, from the courtroom during AF's testimony.

Since this issue was not waived, we must address whether the court erred in partially closing the courtroom during AF's testimony. The State filed a motion to exclude persons from the trial during 13-year-old AF's testimony. During a motion hearing, defense counsel stated that the defendant had no objection to excluding the public at large during AF's testimony. However, defense counsel asked the court to allow defendant's immediate family, namely, defendant's mother, his brother, and his two sisters, to remain in the courtroom.

The court cited two recent cases on the issue (725 ILCS 5/115-11 (West 1992)) ( People v. Leggans (1993), 253 Ill. App. 3d 724, 625 N.E.2d 1133, 193 Ill. Dec. 12; People v. Benson (1993), 251 Ill. App. 3d 144, 621 N.E.2d 981, 190 Ill. Dec. 528) and identified three limitations on its authority under the statute to exclude persons from the courtroom during a minor victim's testimony: (1) it could not exclude the media; (2) it could not exclude persons having a direct interest in the case, such as the defendant's immediate family; and (3) its authority to exclude the public extended only to cases in which the victim was under age 18.

By stating that there were three limitations on its authority, the trial court obviously adopted the analysis of the fourth district in Benson, which held:

"We hold that because section 115-11 of the Code permits only limited closure of trial court proceedings, that section does not violate (or even implicate) any State or Federal constitutional provisions. We further hold that the criteria discussed by the United States Supreme Court in Press-Enterprise [ Co. v. Superior Court (1984), 464 U.S. 501, 78 L. Ed. 2d 629, 104 S. Ct. 819,] and Waller [v. Georgia (1984), 467 U.S. 39, 81 L. Ed. 2d 31, 104 S. Ct. 2210,] do not apply to closures ordered pursuant to section 115-11 of the Code." (Emphasis added.) People v. Benson (1993), 251 Ill. App. 3d 144, 149, 621 N.E.2d 981, 984, 190 Ill. Dec. 528.

It is not clear that the fifth district has adopted the Benson rationale. In People v. Leggans (1993), 253 Ill. App. 3d 724, 625 N.E.2d 1133, 193 Ill. Dec. 12, the fifth district cited Benson, but it also referred to the protections afforded under Waller v. Georgia (1984), 467 U.S. 39, 81 L. Ed. 2d 31, 104 S. Ct. 2210, and the holding of Press-Enterprise Co. v. Superior Court (1984), 464 U.S. 501, 78 L. Ed. 2d 629, 104 S. Ct. 819, which are generally accepted as requiring a four-part test:

"Under Press-Enterprise, [1] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect that interest, [3] the trial court must consider reasonable alternatives to closing the proceeding, and [4] it must make findings adequate to support the closure." Waller, 467 U.S. at 48, 81 L. Ed. 2d at , 104 S. Ct. at 2216.

Although the fourth district has rejected the application of Waller to section 115-11 and cites the Illinois Supreme Court's opinion in People v. Holveck (1990), 141 Ill. 2d 84, 565 N.E.2d 919, 152 Ill. Dec. 237, the second district, in People v. Taylor (1993), 244 Ill. App. 3d 460, 612 N.E.2d 543, 183 Ill. Dec. 891, also relies upon Holveck and reaches the opposite conclusion. See also People v. Ramey (1992), 237 Ill. App. 3d 1001, 606 N.E.2d 39, 179 Ill. Dec. 207; People v. Garrett (1994), 264 Ill. App. 3d 1089, 637 N.E.2d 615, 202 Ill. Dec. 76; People v. Priola ...


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