Appeal from the Circuit Court of the 21st Judicial Circuit, Kankakee County, Illinois No. 97--CF--606 Honorable Daniel W. Gould, Judge Presiding
The opinion of the court was delivered by: Justice Lytton
Following a bench trial, defendant Willie E. Lindsey was convicted of unlawful possession of a controlled substance (cocaine) with intent to deliver and unlawful possession of cannabis with intent to deliver (720 ILCS 570/401(c)(2), 550/5(d) (West 1996)). He was sentenced to concurrent terms of 10 and 4 years' imprisonment, respectively, and ordered to pay a $2,000 drug assessment fee. Defendant appeals, claiming that (1) the trial court erred in arraigning him and accepting his jury waiver when defendant was present only by closed circuit television; and (2) he is entitled to monetary credit for 218 days of pre-sentence custody. We affirm defendant's conviction and grant a $1,090 credit against his drug assessment fee.
The record shows that defendant appeared via closed circuit television for all pre-trial proceedings without objection. On February 4, 1998, the date set for trial, defendant asked to speak with counsel. Following a recess, defendant informed the court that he wished to waive his right to a jury trial. The court admonished defendant of the rights he was giving up and ensured that defendant's choice was made understandingly. Then, the court obtained defendant's written jury waiver and reset the case for a bench trial.
At trial, the State's evidence established that on October 8, 1997, Kankakee police officers executed a search warrant of a house occupied by Nikeya Hairston. Both Hairston and defendant were among the persons present in the house when the police arrived. In one of the bedrooms, the officers found a safe containing cocaine, cannabis, a scale, currency and various receipts and other documents containing the names of defendant and Hairston. Packaging materials and another box containing cannabis and cocaine were recovered from other rooms in the house. Defendant's fingerprints were identified on two of the plastic baggies seized by the police.
Defendant's brother, Andre Ries, testified for the defense. Ries testified that he lived with Hairston at the time of the raid and that defendant had entrusted his safe with Ries while defendant was out of town. He denied that the safe had cannabis and cocaine inside when he last saw it. He said Hairston had the keys to the safe.
At the close of the evidence, the court found defendant guilty as charged. The court subsequently sentenced defendant and granted jail time credit for the period of defendant's pre-sentence incarceration.
PRETRIAL PROCEEDINGS VIA CLOSED CIRCUIT TELEVISION
Defendant first argues that his arraignment and jury waiver were defective because his appearance via closed circuit television during those procedures violated Illinois law and defendant's constitutional rights. Having failed to object in the trial court, defendant asks this court to consider the issue as plain error.
1. The Right to Be Present and Plain Error
By statute, a defendant may appear for pre-and post-trial proceedings by closed circuit television if his physical presence is not constitutionally required and the court has established rules for the use of closed circuit television. 725 ILCS 5/106D--1 (West 1996). In the absence of waiver by words or conduct, a defendant in a felony case has a constitutional right to be physically present at every "critical stage" of the proceedings. U.S. Const., amend. VI, XIV; Ill. Const. 1970, art. I, §8; People v. Young, 201 Ill. App. 3d 521, 558 N.E.2d 1287 (1990). A critical stage is any proceeding at which constitutional rights can be asserted or waived, or where events occur that could prejudice the defendant's trial. Young, 201 Ill. App. 3d 521, 558 N.E.2d 1287.
Where the defendant fails to object to the denial of his right to appear in person at a critical stage, he may be deemed to have consented, and a challenge to the procedure is waived on review absent plain error. See People v. Bean, 137 Ill. 2d 65, 560 N.E.2d 258 (1990). A procedural defect is plain error if the evidence of guilt was closely balanced or the defendant was deprived of substantial rights. People v. Keene, 169 Ill. 2d 1, 660 N.E.2d 901 (1995).
For purposes of our review, a substantial right is a constitutional right of due process which, if denied, deprives the defendant of his right to fundamental fairness during the proceedings at issue. See Bean, 137 Ill. 2d 65, 560 N.E.2d 258; People v. Beeftink, 21 Ill. 2d 282, 171 N.E.2d 632 (1961); see also People v. Washington, 171 Ill. 2d 475, 665 N.E.2d 1330 (1996). The right to appear in person is not a substantial constitutional right in itself, but a lesser right serving as a means of securing substantial rights of due process. Bean, 137 Ill. 2d 65, 560 N.E.2d 258.
Defendant in this case does not argue on appeal that the evidence of his guilt was closely balanced. Therefore, our inquiry focuses solely on whether defendant's physical presence was required to protect fundamental due process rights at the proceedings in question under the Illinois and United States Constitutions. See ...