Appeal from the Circuit Court OF ILLINOIS, of Kane County. No. 10-CF-401 Honorable Robert J. Morrow, Judge, Presiding.
The opinion of the court was delivered by: Justice Schostok
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Bowman and Burke concurred in the judgment and opinion.
¶ 1 Defendant, Jose L. Salgado, appeals from his conviction of two counts of Class 4 felony domestic battery (720 ILCS 5/12-3.2(a)(1), (a)(2) (West 2010)). He asserts that the court violated his right to confront one witness against him when it held part of his trial outside his presence without taking a proper waiver of the confrontation right. We agree that the court violated defendant's confrontation right. Barring a defendant from seeing and hearing testimony is an extraordinary limitation on a defendant's participation in his or her trial. Any court that contemplates such nonstandard proceedings must take the greatest care to ensure that the defendant understands his or her right to be present for all testimony and that the defendant is waiving that right knowingly and voluntarily. The purported waiver here fell far short of that standard; it was patently insufficient. Moreover, this was plain error. We therefore reverse defendant's convictions and remand the cause without addressing the other claims of error he has raised.
¶ 3 A grand jury indicted defendant of two counts of Class 4 felony domestic battery. The two counts were identical, except that in one the theory of the offense was that the contact caused bodily harm, while in the other the theory was that the contact was insulting or provoking. The State charged the offense as a Class 4 felony because defendant had a prior domestic battery conviction. Retained counsel entered an appearance for defendant. Defendant waived his right to a jury.*fn1
¶ 4 Neither party made an opening statement at defendant's trial. The court told the State to call its first witness, and the State responded, "It is a minor child, so we're asking to go back into chambers." The court said, "All right." Defense counsel asked that defendant's handcuffs be removed, but the State said, "I thought when we were going back in chambers, I thought this would be outside the presence of defendant." The court asked defense counsel what his position was, and counsel asked "for a moment with [his] client." The court agreed to that, and the next thing in the record is defense counsel's stating, "The defendant will remain." Defendant was left in the courtroom while the witness, defendant's daughter, nine-year-old Brianna Salgado, testified in chambers.
¶ 5 Brianna testified that, on the day of the incident, she, her younger brother, and her mother were sleeping in her mother's bed. Defendant came into the room. Brianna thought that he was drunk because he was acting "crazy," but she said he also looked "kind of sleepy." Initially, when asked what had happened between her parents, she said that defendant "pulled" her mom. Asked by the State to explain further, she said, "My mom showed me right now. It was like that." The State then asked whether she had seen what happened, and she responded by grabbing one arm with the other. Defendant then left the room and turned the television on loud. Her older brother, Brian, went to see what was happening, and defendant started yelling that Brian was not his son. Next, defendant called the police. Before the police came, he told Brianna to tell them that Brian or her mother had hit her.
¶ 6 On cross-examination, she said that the events took place at one or two in the morning and that she had been only partially awake. She said that, when defendant came in, he told her mother to come to the living room. Before that, he was saying "lies." She agreed that defendant had tried to lift her mother out of bed, but then, when her mother said that she had to work the next day, he left her alone.
¶ 7 The hearing reconvened in the courtroom, and the State called Iliana Ortiz, the victim. She said that she had been married to defendant for 8 years and had lived with him for 15. Her testimony was largely consistent with Brianna's. Her arm hurt when defendant pulled it, and the contact left a red mark. On cross-examination, she did not agree that defendant had turned the television on loud after leaving the room.
¶ 8 The officer who responded to the call testified that Ortiz was visibly upset and had some red "scuff marks" on her right arm and right thigh. Defendant was present and obviously intoxicated.
¶ 9 The State rested after the officer's testimony, and the defense then rested also. The court found defendant guilty on both counts. It later sentenced him to 18 months' imprisonment. Defendant filed neither a posttrial nor a post-sentencing motion, but he did file a timely notice of appeal.
¶ 11 Defendant has raised three claims of error on appeal. We address only the second: that his exclusion during Brianna's testimony violated his confrontation right. We hold that defendant did not properly waive his right to be present ...