Appeal from Circuit Court of Livingston County No. 00CF199 Honorable Harold J. Frobish, Judge Presiding.
The opinion of the court was delivered by: Justice Turner
In July 2000, the State charged defendant, Terrance Love, with aggravated battery (720 ILCS 5/12-4(b)(6) (West 2000)). After a September 2000 trial, the jury found defendant guilty of aggravated battery. In October 2000, the trial court sentenced defendant to five years' imprisonment to be served consecutive to the sentences in four other cases (People v. Love, No. 00-CF-71 (Cir. Ct. Livingston Co.); People v. Love, Nos. 93-CF-1632, 93-CF-1521, 93-CF-2656 (Cir. Ct. DuPage Co.)).
Defendant appeals, asserting (1) the trial court abused its discretion by requiring him to wear a mask at his jury trial, (2) the trial court's failure to remedy violations of an order in limine constituted plain error, (3) he was denied effective assistance of counsel, and (4) his consecutive sentence violates his rights to due process and trial by jury under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). We affirm.
On April 4, 2000, defendant was an inmate at the Pontiac correctional facility (Pontiac). Glendal French was the correctional officer in charge of gallery one where defendant was located. As Officer French was taking another inmate for a shower, he heard defendant banging on his cell door. When Officer French went to defendant's cell, he discovered defendant had ripped his bedsheets and tied a strip of sheet around his neck. Defendant stated he would commit suicide unless he saw a captain or lieutenant. Officer French asked defendant twice to stick his arms out so he could handcuff him, and defendant refused. After Captain Settleworth arrived and instructed defendant to comply with the handcuffing, defendant did so, and Officer French handcuffed him. Officer French opened the cell door, and defendant stepped out, looked directly at Officer French, and spit in his face. Officer French was not injured. In July 2000, the State charged defendant with aggravated battery for his actions on April 4, 2000.
At the beginning of defendant's September 2000 trial and out of the presence of the jury, the trial court addressed the issue of defendant's propensity to spit. The prosecutor stated the last time defendant was in court, defendant told her he wanted to spit on her. The trial court asked Jerry Rork, a court security officer, about defendant's behavior that morning. Rork stated defendant had been behaving since he had been in the courthouse. Defense counsel stated he had talked to defendant a few moments before trial and defendant had been "somewhat belligerent."
The trial court then questioned Scott Matthews, a correctional officer at Tamms correctional center (Tamms), who transported defendant from Pontiac to the courthouse. Officer Matthews stated defendant had been verbally aggressive and talking about spitting on people. Pontiac officers suggested Officer Matthews should have defendant wear a mask while being transported because of his behavior the prior night. According to Officer Matthews, as defendant was leaving Pontiac, defendant threatened to spit on the Pontiac officers.
The trial court took sworn testimony from Troy Quinley, a superintendent at Pontiac. Superintendent Quinley testified when defendant arrived from Tamms, he was unhappy with the mattress he received. Before officers could obtain a new mattress, defendant spit in Officer Bradshaw's face. As Officer Bradshaw put a mask on defendant, defendant bit the officer.
At the trial court's request, the prosecutor provided defendant's criminal history, including the following: defendant was currently serving a 40-year sentence for armed robbery; had been convicted of assault on staff for spitting; had an aggravated battery conviction for breaking a sergeant's hand; and had two criminal-damage-to-government-property charges pending against him.
The trial court also talked with the defendant. According to defendant, he spit in the officer's face the night before trial because he felt the officer was not treating him like a human being. Defendant told the court he was not going to spit on anybody in the courtroom.
The trial judge noted he had received a communication from the warden at Tamms, indicating defendant was a moderate escape risk and considered a high aggression level due to a history of assaultive behavior. The trial judge asked if a safe distance existed for people to be away from defendant. One officer replied, "[t]hey are too close."
The State's position was defendant should remain masked. Defense counsel stated due to his prior contacts with defendant, he was unable to represent to the court defendant would not misbehave in the courtroom. The trial court found it necessary for defendant to remain masked during the jury trial based on defendant's history of misconduct. Defendant chose to be present in the courtroom even with the mask.
The trial court then asked for suggestions on how to explain the mask to the jury. The State suggested the trial court not comment on the mask at all. Defense counsel also preferred the mask not be mentioned. The trial court decided to "leave it go at that."
The State presented two witnesses, Officer French and Jack Libby, a correctional officer at Pontiac responsible for investigating possible criminal cases against inmates. The State asked Officer French to identify defendant and "describe something he is wearing." Officer French replied, "[w]hite shirt, mask on his face." The State asked Officer Libby the same question to which Officer Libby replied, "[h]e is wearing a white shirt with a mask over his face."
At the conclusion of the trial, the jury found defendant guilty of aggravated battery. In October 2000, the trial court sentenced defendant as stated. No posttrial motion was filed. This appeal followed.
Defendant first argues the trial court abused its discretion when it forced him to wear a mask during his jury trial. We note defendant was also shackled during trial, but defendant does not challenge the trial court's imposition of that restraint. The State argues defendant has waived this issue by not (1) objecting in the trial court and (2) filing a posttrial motion. Defendant asserts the trial court's error constitutes plain error (134 Ill. 2d R. 615(a)).
To preserve an alleged error for review, the defendant must (1) make an objection at trial and (2) file a written posttrial motion raising the issue. People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130 (1988). While the parties disagree about whether defendant objected to wearing the mask at trial, defendant did not file a posttrial motion. Thus, defendant did not properly preserve the issue for review. However, defendant argues we should review the issue under the plain error rule.
The plain error rule may be invoked to protect a defendant from serious injustices and to preserve the integrity and reputation of the judicial process under either of the following circumstances (People v. Bunning, 298 Ill. App. 3d 725, 727, 700 N.E.2d 716, 718 (1998)): (1) the evidence was closely balanced, or (2) the error was of such magnitude the accused was deprived of a substantial right and denied a fair trial (People v. Armstrong, 183 Ill. 2d 130, 151, 700 N.E.2d 960, ...