Court of Appeals of Illinois, First District, Second Division
from the Circuit Court of Cook County. No. 08 CR 16639, The
Honorable Maura Slattery Boyle, Judge, presiding.
PRESIDING JUSTICE delivered the judgment of the court, with
opinion. Justices Neville and Mason concurred in the judgment
1 In 2014, a jury convicted Darryl Evans of murder. Before
voir dire, the trial court refused to allow
Evans's step-grandmother to remain in the courtroom due
to worries about possible juror contamination and the
courtroom's small gallery which could barely accommodate
the 45 prospective jurors which the court had already
summoned. In so doing, the trial court violated the right to
a public trial, and as it was structural error, we must
reverse Evans's conviction on that ground. Because of our
disposition, we need not reach the other contentions of
3 As the trial court was about to begin voir dire,
it asked why someone was sitting in the gallery. Evans's
attorney explained that Evans's step-grandmother, Ms.
Peterson, was there. The trial court immediately responded,
"I'm going to ask you to leave and come back on
Monday." Evans's attorney told the trial court that
she had explained to Ms. Peterson "the rules of decorum,
" and that "she is not to speak to any venire
person." The trial court said "she's been fine,
" but then stated that it would ask Ms. Peterson to
leave during jury selection anyway because "we won't
have enough room." Evans's attorney asked if Ms.
Peterson could be "segregated" from the venire,
because "it is a public trial." The trial court
said that there was no "contamination" but would
ask Ms. Peterson to leave anyway. Evans's attorney
objected. Voir dire included a number of peremptory
challenges and a challenge for cause before a jury was
4 After testimony began, the trial court made another
statement for the record regarding the voir dire.
The court stated that it was not prohibiting anyone from
attending, but asked Ms. Peterson to leave because the
courtroom had only three rows of seats and 45 potential
jurors, and it would be impossible to separate Ms. Peterson
from the venire to avoid contamination.
5 The jury convicted Evans of first degree murder. In arguing
Evans's motion for a new trial, his attorney raised the
issue of Ms. Peterson being barred from voir dire and stated
that there would have been enough room to accommodate her and
that she was not a risk to contaminate the jury pool. The
trial court stated that the courtroom only contained three
rows of benches, and it barred Ms. Peterson from voir
dire due to the small size of the courtroom and the need
to prevent her from contaminating the jury. The trial court
denied the motion for a new trial and sentenced Evans to 100
years of imprisonment.
7 Evans argues that his right to a public trial was denied
when the trial court barred Evans's step-grandmother, Ms.
Peterson, from viewing the voir dire. We hold that
this denial was structural error, and we must reverse.
8 The sixth amendment of the United States Constitution (U.S.
Const., amend. VI) guarantees the accused the right to a
public trial, and this right extends to voir dire of
prospective jurors. Presley v. Georgia, 558 U.S.
209, 212-13 (2010). A violation of this right falls into the
limited category of "structural errors, " which
require automatic reversal without the need to show
prejudice. People v. Thompson, 238 Ill.2d 598,
608-09 (2010) (structural error category includes complete
denial of counsel, trial before biased judge, racial
discrimination in grand jury selection, denial of
self-representation, denial of public trial, and defective
reasonable doubt instruction). These errors are systemic,
"erode the integrity of the judicial process, " and
"undermine the fairness of the defendant's
trial." (Internal quotation marks omitted.) Id.
at 608. An error will be designated structural only if it
renders the trial fundamentally unfair or an unreliable means
of determining guilt or innocence. Id. at 609.
9 This is a fact-specific inquiry and we review the totality
of the circumstances. We observe that the trial court's
rationale for excluding Ms. Peterson changed slightly;
initially, the court was not concerned that Ms. Peterson
would contaminate the potential jurors. But we will address
both of the trial court's reasons for excluding her-the
contamination of potential jurors and the small size of the
10 To justify closing a trial proceeding, we examine: (i)
whether there exists an " 'overriding interest that
is likely to be prejudiced, ' " (ii) whether the
closure is no broader than necessary to protect that
interest, (iii) whether the trial court considered "
'reasonable alternatives' " to closing the
proceeding, and (iv) whether the trial court made adequate
findings to support the closure. People v. Willis,
274 Ill.App.3d 551, 553 (1995) (quoting Waller v.
Georgia, 467 U.S. 39, 48 (1984)).
11 We will assume that preventing juror contamination is an
"overriding interest." Willis, 274
Ill.App.3d at 554; People v. Taylor, 244 Ill.App.3d
460, 467 (1993). But, we are not convinced that the interest
in preventing contamination was "likely to be
prejudiced" merely by Ms. Peterson's presence. No
evidence suggested Ms. Peterson would have attempted to
communicate with or intimidate potential jurors; in fact,
Evans's counsel had already instructed her not to
communicate with the jury pool. See Taylor, 244
Ill.App.3d at 468 (first part of test not met where there was
not "a scintilla of evidence" that defendant's
siblings would attempt to influence jurors); Gibbons v.
Savage, 555 F.3d 112, 117 (2d Cir. 2009) ("Absent
some indication that the defendant's mother might
communicate improperly with members of the venire, the mere
fact that some might be in close proximity to her did not
raise a meaningful risk to taint the entire jury pool, as the
judge suggested." (Internal quotation omitted.)). There
must be a specific threat of jury contamination to meet this
standard. See, e.g., Willis, 274 Ill.App.3d at 554
(where defendant's brother had previously threatened
state witness, this might justify exclusion of brother from
voir dire, but not other family members). As the
U.S. Supreme Court has pointed out, "[t]he generic risk
of jurors overhearing prejudicial remarks, unsubstantiated by