Docket No. 109184.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant,
v. CHARLES E. CLENDENIN, Appellee.
Opinion filed September 23, 2010.
JUSTICE FREEMAN delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Thomas, Kilbride, Garman,
Karmeier, and Burke concurred in the judgment and opinion.
OPINION
Following a bench trial in the circuit court of Kane County,
defendant, Charles E. Clendenin, was convicted of unlawful
possession of child pornography (720 ILCS 5/11–20.1(a)(6) (West
2002)). The appellate court reversed and remanded. 395 Ill. App. 3d
412. We granted the State’s petition for leave to appeal. 210 Ill. 2d R.
315(a). For the reasons that follow, we reverse the judgment of the
appellate court and remand this cause to that court for further
proceedings consistent with this opinion.
BACKGROUND
On September 5, 2003, defendant was charged by information
with unlawful possession of child pornography, in that he knowingly
possessed a video clip of a female child under the age of 18 years
engaged in an act of sexual penetration (720 ILCS 5/11–20.1(a)(6)
(West 2002)).
A. Defendant’s Motion to Quash and Suppress
Defendant filed a motion to quash his arrest and suppress
evidence. He argued that his right to be free from unreasonable
searches and seizures guaranteed under the fourth amendment to the
United States Constitution (U.S. Const., amend. IV)1 was violated
when his girlfriend, Ellen Bailey, removed items from his home and
gave them to police for further investigation, ultimately resulting in
his arrest.
At the hearing on defendant’s motion, Bailey testified that
defendant lived next door to her in St. Charles, and they had a
romantic relationship. The couple had exchanged keys to their
residences with the understanding that each could enter when the
other was not present. On August 29, 2003, Bailey entered
defendant’s home while he was on vacation to water his plants and to
retrieve a vacuum cleaner she had previously left there. During her
visit, Bailey saw four wires next to defendant’s computer which had
small camera lenses attached to the ends. She became concerned
because defendant had recently purchased a webcam for her
daughters, and questioned whether these cameras were somehow
related to it. Her suspicions prompted her to look behind the
computer, and she discovered a closed, zippered case which
contained approximately 50 computer discs, some labeled with
handwritten dates. Unsure whether there was a connection between
what was recorded on the discs and the small cameras, Bailey took
the case and the cameras back to her home. Upon playing a few of the
discs in her computer, she discovered one with a list of titles that
were “very disturbing,” including “ ‘mother f***s 8-year-old.’ ”
Bailey viewed one of the disc’s image files, which depicted a “grown
1
Defendant also makes citation to the search and seizure provisions of
article I, section 6, of the Illinois Constitution of 1970 (Ill. Const. 1970, art.
I, §6), but does not contend that these provisions offer broader protection
than the fourth amendment.
-2-
man having sex with a 13-year-old.” Believing the disc to contain
child pornography, Bailey kept it, along with the cameras. She
returned the remainder of the discs and the case to defendant’s home.
On September 1, 2003, Bailey met with Bruce Malkin, a
commander with the West Chicago police department and a personal
friend. Bailey recounted to Malkin the circumstances of her discovery
of the cameras and computer discs, and told him that the images on
the disc caused her great concern. She then gave the items to Malkin.
Bailey was thereafter contacted by St. Charles police officer Andrew
Lamela. Bailey provided Lamela with the same information that she
had given to Malkin regarding the circumstances of her discovery of
the disc and its contents.
Commander Malkin’s testimony mirrored Bailey’s regarding her
discovery and viewing of the disc. Bailey told him that the disc
contained “what she suspected to be child pornography.” Malkin
used his own computer to view the disc, which was marked with the
handwritten date of “20 November 2,” and discovered a video clip
he believed to be child pornography.
The final witness was Detective Lamela, who spoke with Bailey
on September 2, 2003, and received the same background information
she had provided to Malkin. The next day, Lamela met with Malkin,
who gave him the disc and cameras Bailey removed from defendant’s
residence. After viewing the disc, Lamela determined that it contained
child pornography. He contacted the State’s Attorney’s office, which
advised him that he had probable cause to arrest defendant. After
Lamela took defendant into custody, defendant gave an oral
statement, which Lamela summarized in a police report. Defendant
thereafter provided a second statement, which Lamela recorded on
audiotape and had transcribed. Defendant also consented to a police
search of his home and computer media.
The circuit court denied defendant’s motion to quash and
suppress. Because Bailey was not acting as an agent of the police
when she removed the disc and cameras from defendant’s home, the
court held that there was no state action involved in the police’s
acquisition of those items which implicated the fourth amendment.
The court further held that the content of the disc provided police
with probable cause to arrest defendant. Defendant filed a motion to
reconsider, which the circuit court denied.
-3-
B. Stipulated Bench Trial
During a September 2004 pretrial hearing, defense counsel
informed the circuit court that defendant wished to “waive the right
to a jury and present a stipulation to you and have you decide the
defendant’s guilt on the basis of our stipulated evidence.”2 Defense
counsel also stated for the record that within the stipulation he was
“renewing” his objection to the circuit court’s denial of the
suppression motion and “requesting the court to reconsider *** as if
we were having all the witnesses come to court.” The circuit court
took the stipulation under advisement.
The court informed the parties on January 13, 2005, that it would
not accept the stipulation as drafted.3 The parties then submitted the
following amended stipulation on March 16, 2005:
“STIPULATION
NOW COME the parties to this cause and hereby stipulate
to the availability of the following evidence for purposes of
proceeding with a bench trial of the charge of unlawful
possession of child pornography alleged in the Complaint for
Preliminary Hearing.
The parties agree that the witnesses called at the hearing
on the defense Motion to Quash Arrest and Suppress
Evidence held on January 23, 2004 would provide the same
testimony that was presented on that date, including the
introduction of the same exhibits. The State moves for
admission of photographs of the video clip referred to in the
Complaint for Preliminary Hearing, marked People’s Exhibits
# 1 & 2. The photographs portray a portion of one of the
video clips contained on the computer disk taken from
[defendant’s] apartment by Ellen Bailey on August 29, 2003
and delivered to the West Chicago Police by Ellen Bailey on
September 1, 2003. [Defendant] objects to the introduction
into evidence of People’s Exhibits # 1 & 2 on the same
2
The record on appeal contains defendant’s signed waiver of trial by
jury.
3
A copy of this stipulation is not included in the record on appeal.
-4-
grounds presented at the hearing on the defense Motion to
Quash Arrest and Suppress Evidence and the subsequent
Motion to Reconsider. [Defendant] requests the Court to
reconsider and reverse its previous rulings concerning the
admissibility of this evidence.
If called as a witness, [Detective Lamela] would testify that he
interviewed [defendant] on September 3, 2003 following his
arrest in this case. After waiving his Miranda rights,
[defendant] stated that he logs on to the internet to a website
from which he downloads music and pornography. He typed
[sic] in keywords for the pornography in the search engine
and then downloads all the files to his hard drive. Later, he
transfers the files to a disk and then views them. He does not
know what he downloads until the file has been viewed. He
admitted to possessing six disks containing pornography in
his apartment. When asked if he knew how many video clips
of child pornography were contained on the disks, he stated,
‘Not very many.’ He last downloaded pornography from the
website on the preceding weekend. He stated that he did not
have time to transfer those files to a disk and did not know
what files were downloaded. [Defendant] identified the disk
provided to the West Chicago Police Department by Ellen
Bailey as belonging to him. [Defendant] denied
manufacturing or distributing the child pornography video
clips. The police seized seventy-seven (77) compact disks
from [defendant’s] residence, of which five (5) contained
pornography, including adult pornography. The remainder of
the disks contained music and information from [defendant’s]
employment.[4]
The introduction of the testimony of Detective Lamela
would be subject to [defendant’s] objection on the same
grounds presented in the defense Motion to Quash Arrest and
Suppress Evidence and the subsequent Motion to Reconsider.
[Defendant] requests the Court to reconsider and reverse its
4
The testimony of Detective Lamela referred to in the stipulation is
contained in a police report written by Lamela, file stamped September 9,
2003, which is part of the record on appeal.
-5-
previous rulings concerning the admissibility of this evidence.
[Defendant] objects to all evidence seized by the St. Charles
Police Department from [defendant’s] residence and to the
statements made by [defendant] to the police because the
evidence constitutes the illegal fruit of the unlawful search
and seizure of the computer disk delivered to the police by
Ellen Bailey.
[Defendant] does not stipulate to the sufficiency of the
evidence to convict him of the offense charged.”
Upon the tender of this document to the court, the following
exchange occurred between defendant and the circuit judge:
“THE COURT: All right. And so Mr. Clendenin, you
wish to be bound by the stipulation; is that correct?
THE DEFENDANT: Yes, it is, Your Honor.
THE COURT: All right. And I will review that along with
the evidence and have a ruling for you then.”
C. Circuit Court Ruling
On April 27, 2005, the circuit court found defendant guilty of
possession of child pornography. The court initially noted that the
stipulation contained defendant’s continued objection “to the
admission of People’s Exhibits 1 and 2 on the same grounds that were
presented on the motion to quash arrest and suppress evidence.” The
court adhered to its prior ruling and again rejected defendant’s
arguments regarding the suppression issue.
The court then ruled that the State had proven the elements of the
offense beyond a reasonable doubt. Defendant admitted that he
possessed several discs containing pornography, and when asked how
many contained child pornography, replied, “Not very many.”
Defendant’s knowledge that the discs contained child pornography
was further supported by the explicit titles of some of the images
found on the disc. The court also held that an adult viewing People’s
Exhibits 1 and 2 “should reasonably know that the child depicted is
under 18.” Finally, the court found it “very clear” that the exhibits
showed the child engaged in actual or simulated acts of sexual
intercourse.
D. Posttrial Proceedings
-6-
On May 2, 2005, defendant filed a posttrial motion requesting the
circuit court vacate his conviction on two grounds: (1) it was error to
deny his motion to quash and suppress; and (2) the evidence was
insufficient to support the guilty finding. Shortly thereafter,
defendant’s counsel, Larry Wechter, moved to withdraw, stating he
and defendant had “recently *** developed differences of opinion
concerning the future defense of the case, which renders it
unreasonably difficult *** to effectively represent defendant.” On
May 26, 2005, Wechter was allowed to withdraw, and Stephen
Brundage entered his substitute appearance on defendant’s behalf.
On August 4, 2005, defendant filed an amended posttrial motion,
repeating the claims of error set forth in the original motion, and
adding two new claims: (1) that the State committed discovery
violations by untimely producing the audiotape of defendant’s
statement to Detective Lamela, and by providing a transcript of that
interview which contained mistakes; and (2) that Wechter had
provided ineffective assistance of counsel by advising defendant to
proceed by stipulated bench trial and by failing to alert the court to
the discovery violations. The circuit court denied the motion with
respect to the suppression issue. However, it ordered an evidentiary
hearing on the remaining claims.
Defendant testified that at the start of his representation by
Wechter, he met with him once in his law office. Thereafter, they
communicated by phone and in person at the courthouse before
and/or after every court hearing. Wechter also regularly spoke with
defendant’s father, an attorney in Ohio. Wechter offered defendant
four options: enter a guilty plea, request a jury trial, pursue a bench
trial, or agree to a stipulated bench trial. Wechter recommended a
stipulated bench trial, and although defendant stated that Wechter did
not “thoroughly” explain this procedure, defendant understood that
its purpose was to preserve the suppression issue for appeal. When
Wechter told defendant that he planned to discuss his
recommendation with defendant’s father, defendant responded that
“whatever my father agrees, whatever is okay.”
Defendant was then questioned by the prosecutor regarding an
exchange which occurred between defendant and the circuit judge
during the March 16, 2005, hearing:
“Q. *** [D]id you tell the court that you wished to be
-7-
bound by the stipulation that Mr. Wechter had presented to
the court?
A. If I remember correctly, it says, ‘Yes, it is,’ on that.
Q. So your answer is yes?
A. The phrase. It’s not just a yes or no, if I remember
correctly. I’m not sure.
Q. Is your memory vague?
A. Certain areas.”
In a subsequent exchange with his own counsel, defendant
testified that he had not seen either version of the stipulation before
it was presented to the court, was unaware of its contents, and did not
want to be bound by it.
Defendant also denied that he said “Not very many,” when asked
by Detective Lamela if he knew how many video clips of child
pornography he had downloaded. Defendant testified that he was
unaware of child pornography on the discs, and that the stipulation
was supposed to include his claim of innocence. Defendant further
stated that the transcript of his second interview with Lamela was
inaccurate, and he repeatedly asked Wechter to obtain the tape so that
they could compare it to the transcript. According to defendant, he
wanted a contested trial in order to cross-examine witnesses.
Detective Lamela testified that after he took defendant into
custody, he interviewed him twice. During the first interview, which
was not taped, Lamela asked defendant if he knew how many clips of
child pornography were included in the material he downloaded, and
defendant responded, “Not very many.” Lamela included this
statement in his police report. Lamela then conducted a second
interview, which was audiotaped. Because Lamela did not ask the
exact same questions of defendant during the second interview, the
statement “Not very many” does not appear in the transcript of the
second interview. Lamela followed police department protocol by
having an administrative assistant prepare a transcript of the tape.
Lamela stated that Wechter had called him several times to hear the
tape, but scheduling conflicts delayed their meeting.
Defendant’s father, Charles Clendenin, Sr., testified that he was
a lawyer and former prosecutor in Clairmont County, Ohio. He was
in contact with Wechter during defendant’s case, and, in a July 2004
-8-
phone call, Wechter suggested that defendant plead guilty. Clendenin
disagreed, contending that defendant was innocent. Wechter then
suggested proceeding by stipulation. Clendenin found this
“ridiculous,” even though he did not know what a stipulation was.
Clendenin told Wechter that defendant would enter a stipulation only
if the State “c[a]me to [its] senses that [defendant] was not guilty.”
Clendenin never saw the stipulation and was surprised to learn of its
content after the trial.
Clendenin further testified that he had the audiotape of
defendant’s interview with Lamela transcribed by a certified court
reporter. Comparing that transcript to the one provided by police,
Clendenin found discrepancies, including that the statement “Not
very many” did not appear. In addition, the police transcript states
that in response to Lamela asking defendant how many of the images
on the disc contain child pornography, defendant replied that there
“[s]hould be very few,” because “normally everything is labeled with
twenty different keywords and *** several times they threw it in
there.” By contrast, the certified transcript contains the same
exchange, except that it concludes with the statement that “sometimes
they throw it in there.” Wechter also testified. His trial
strategy, as explained to defendant, was to suppress the disc removed
from defendant’s home by Bailey. Wechter believed that successful
suppression of this evidence would lead to suppression of defendant’s
statements to police, leaving the State with virtually no evidence
against defendant to support the charge. Wechter regularly
communicated with defendant, either in person at the courthouse
before and after every court hearing, or by telephone. Wechter also
wrote defendant letters after each court appearance, describing in
detail what had happened that day and what was expected to happen
in the future.5
Wechter presented defendant with two options after the
suppression motion was denied: (1) proceed by nonstipulated jury or
bench trial; or (2) proceed by stipulated bench trial with the purpose
of preserving the suppression issue for appeal. Wechter recommended
5
Several of these letters were admitted into evidence and are part of the
record.
-9-
the latter option, and explained the mechanics of this procedure to
defendant. According to Wechter, defendant appeared to understand
the trial strategy, and he asked no questions about it. Although
defendant occasionally expressed hesitation about the stipulation, he
ultimately wished to follow that course of action.
Wechter believed that he had offered to show defendant the
stipulation, and may have shown it to him, but defendant “did not
express much interest in looking at it.” Wechter included in the
stipulation the minimum factual basis he thought the State would
accept, and omitted several details he believed would be harmful to
the defense, including portions of defendant’s statement to the police.
Wechter also included facts that “left the door open to argument,”
including that “the evidence was not sufficient to convict [defendant]
of the charge,” as well as preserving the challenge to the ruling on
the suppression motion. Wechter had reviewed the transcript of
defendant’s interview with Lamela, and listened to the audiotape a
day or two prior to submitting the March 2005 stipulation to the
court. He found only minor, immaterial discrepancies between the
tape and the transcript.
On July 21, 2006, the circuit court issued a written decision
denying the remainder of defendant’s posttrial motion. First, the court
found no discovery violation by the State, observing that prior to
submitting the March 2005 stipulation, Wechter had listened to the
tape and compared it to the transcript provided by police, finding only
minor errors. In addition, the errors alleged between the two versions
of the transcript were not material in relation to the elements of the
offense. Second, the court held that defense counsel was not
ineffective. The court found that Wechter kept defendant
appropriately informed of the court proceedings and of his suggested
trial strategy, and his advice to proceed with a stipulated bench trial
to preserve the suppression issue was not error.
In addition, the court held that defendant’s confrontation rights
were not violated by the stipulated bench trial, noting he had agreed
in open court to proceed by stipulation after consulting with Wechter.
The circuit court was unpersuaded by defendant’s posttrial testimony
claiming he objected to the stipulation, finding it “vague” and
observing that he had “no clear memory of key points and
conversations.” Further, the circuit court held that “this stipulated
-10-
bench trial was no[t] a plea of guilty requiring proper
admonishments,” as “the defense did not agree that the proof was
sufficient to meet the State’s burden of proof.” Moreover, the circuit
court doubted that the result would have been different had defendant
not followed Wechter’s advice, as “defendant’s [posttrial] testimony
lacks even an assertion that he wished to testify.” Finally, the court
held there was sufficient evidence to prove defendant guilty beyond
a reasonable doubt.
E. Appellate Court Opinion
Defendant raised several claims of error in the appellate court.
The court rejected defendant’s challenge to the circuit court’s denial
of his motion to quash arrest and suppress evidence, but found merit
in his contention that his attorney provided ineffective assistance of
counsel with regard to the entry of the stipulation. Finding it “tacit”
in our precedent that “no stipulation (regardless of its tactical or
strategical worth) may be validly accepted by the court unless the
defendant is apprised of the specific content” (395 Ill. App. 3d at
439), the panel held that Wechter’s performance was deficient
because he did not validly waive defendant’s right of confrontation
due to his failure to inform defendant of the specific content of the
stipulation. 395 Ill. App. 3d at 444, 447. Further, the court held that
this deficiency prejudiced defendant. 395 Ill. App. 3d at 447.
Accordingly, the court reversed and remanded.6
ANALYSIS
The State contends that the appellate court erred in reversing
defendant’s conviction by holding that he was denied effective
assistance of counsel because Wechter failed to apprise defendant of
the specific content of the stipulation. Citing to People v. Campbell,
208 Ill. 2d 203 (2003), People v. Phillips, 217 Ill. 2d 270 (2005), and
People v. Rowell, 229 Ill. 2d 82 (2008), the State argues that counsel
may generally enter into a stipulation without a defendant’s knowing
consent–and also absent admonishment by the court–so long as the
6
Due to its disposition, the appellate court did not address defendant’s
remaining contentions of error.
-11-
stipulation is part of a reasonable trial strategy and the defendant does
not object. The State contends that both elements were satisfied here:
the stipulation was part of counsel’s reasonable trial strategy to
preserve a defense by securing appellate review of the suppression
issue, and defendant did not object to the stipulation; in fact,
defendant explicitly agreed to it. Therefore, the State maintains that
Wechter’s performance cannot be deemed deficient.
Defendant does not quarrel with the State’s primary argument that
our prior decisions in Campbell, Phillips and Rowell establish that
generally defense counsel may validly waive a defendant’s
confrontation right by entering into a stipulation without ensuring that
defendant is aware of its content so long as the stipulation is part of
a reasonable trial strategy and the defendant does not object. Further,
defendant does not address the State’s assertion that the appellate
court departed from this precedent by requiring that in every case
where a stipulation is entered, the record must clearly show that a
defendant has been informed of the specific content of the stipulation
in order for it to be valid. Instead, defendant contends that Wechter’s
performance was deficient because the stipulation was the functional
equivalent of a guilty plea. Therefore, defendant maintains, the
stipulation was not part of a reasonable trial strategy and defendant
was entitled to admonishments and to decide whether to personally
waive his right of confrontation. Defendant further contends that the
record reflects that he objected to the stipulation. Defendant thus
concludes that Wechter’s performance was deficient and that the
judgment of the appellate court should be affirmed. We disagree.
To establish ineffective assistance of trial counsel, a defendant
must meet the familiar two-part standard of Strickland v. Washington,
466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). People v.
Albanese, 104 Ill. 2d 504, 525-27 (1984). A defendant must first
demonstrate that his counsel’s performance was deficient in that
“counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064;
People v. Wiley, 205 Ill. 2d 212, 230 (2001). In so doing, a defendant
must overcome the strong presumption that the challenged action or
inaction of counsel was the product of sound trial strategy and not of
incompetence. People v. Barrow, 133 Ill. 2d 226, 247 (1989).
-12-
Secondly, a defendant must demonstrate that, but for counsel’s
deficient performance, there is a reasonable probability that the result
of the proceeding would have been different. Strickland, 466 U.S. at
694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; Wiley, 205 Ill. 2d at 230.
Because a defendant must satisfy both prongs of this test, the failure
to establish either prong is fatal to the claim. Strickland, 466 U.S. at
697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; see People v. Bannister,
232 Ill. 2d 52, 80 (2008).
In People v. Campbell, 208 Ill. 2d 203 (2003), we addressed an
issue of first impression: “whether defense counsel, by stipulating to
the admission of evidence, can waive a defendant’s constitutional
right to confront the source of the evidence without the defendant’s
knowing consent to the stipulation.” Campbell, 208 Ill. 2d at 205.
Campbell argued that because the constitutional right of
confrontation7 belongs exclusively to the accused, a waiver of this
right is valid only when it is personally and knowingly made by the
defendant. Campbell, 208 Ill. 2d at 209-10. We disagreed.
We first observed in Campbell that our ruling in People v. Ramey,
152 Ill. 2d 41 (1992), established that only four decisions ultimately
belong to a defendant after consultation with his attorney: (1) what
plea to enter; (2) whether to waive a jury trial; (3) whether defendant
will testify on his own behalf; and (4) whether to appeal. Campbell,
208 Ill. 2d at 210, citing Ramey, 152 Ill. 2d at 54. We further noted
that, subsequent to Ramey, we held there is a fifth decision which
belongs to a defendant. In People v. Brocksmith, 162 Ill. 2d 224
(1994), we established that a defendant has the exclusive right to
decide whether to submit an instruction on a lesser-included offense
at the conclusion of the evidence, finding this analogous to the
decision of what plea to enter. Campbell, 208 Ill. 2d at 210, citing
Brocksmith, 162 Ill. 2d at 229. We explained in Campbell that apart
from these decisions, which are to be personally made by a defendant,
trial counsel has the right to make the ultimate decision with respect
7
This right is guaranteed under the sixth amendment to the United States
Constitution (U.S. Const., amend. VI) and under article I, section 8, of the
Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §8), which provide: “In
all criminal prosecutions, the accused shall enjoy the right *** to be
confronted with the witnesses against him ***.”
-13-
to matters of tactics and strategy after consulting with his client,
including “ ‘what witnesses to call, whether and how to conduct
cross-examination, what jurors to accept or strike[,] *** what trial
motions should be made[,] *** [and] the defense to be presented at
trial.’ ” Campbell, 208 Ill. 2d at 210, quoting Ramey, 152 Ill. 2d at 54.
In holding that the waiver of the right to confrontation does not
belong exclusively to a defendant, we aligned with the majority of
federal and state courts which had already addressed this issue.
Campbell, 208 Ill. 2d at 217. Relying upon those rulings as guidance,
we held that defense counsel may generally waive a defendant’s right
of confrontation by entering into an evidentiary stipulation where two
elements are met: (1) the defendant does not object; and (2) the
decision to stipulate is a matter of trial tactics and strategy. Campbell,
208 Ill. 2d at 217. We carved a limited exception to this general rule,
however, where a stipulation is the practical equivalent of a plea of
guilty, holding that “defense counsel cannot stipulate to facts which
establish the guilt of the accused because the constitutional right
implicated in that situation is the right of a defendant in a criminal
case to plead not guilty.” Campbell, 208 Ill. 2d at 219. Based upon
this rationale, we held that departure from the general rule that
defense counsel may waive a defendant’s right of confrontation is
warranted only in those instances where: (1) the State’s entire case is
presented by stipulation and defendant fails to preserve a defense; or
(2) the stipulation concedes the sufficiency of the evidence to support
a conviction. Campbell, 208 Ill. 2d at 218. Because these specific
circumstances effectively transform a stipulation into a plea of guilty,
Campbell established that a defendant in such instances must be
personally admonished about a stipulation and must personally agree
to it. Campbell, 208 Ill. 2d at 218.
In People v. Phillips, 217 Ill. 2d 270, 288 (2005), we reaffirmed
Campbell’s holding that apart from the five decisions that ultimately
belong to a defendant in a criminal case, trial counsel has the right to
make the ultimate decision with respect to matters of tactics and
strategy after consultation with the client. Phillips, 217 Ill. 2d at 281,
quoting Campbell, 208 Ill. 2d at 210. Accordingly, we also reaffirmed
the general rule that defense counsel validly waives a defendant’s
confrontation right by agreeing to a stipulation as long as the
stipulation is part of counsel’s trial tactics and strategy, and the
-14-
defendant does not object. Phillips, 217 Ill. 2d at 283, quoting
Campbell, 208 Ill. 2d at 217.
We made it clear in Phillips, however, that Campbell “attached
no other restrictions to defense counsel’s authority to stipulate to the
admission of evidence,” and, except in those limited cases where the
stipulation is “tantamount to a guilty plea,” Campbell “imposed no
obligations on the trial court or counsel to admonish the defendant
and ensure that the advisement is made a part of the record.” Phillips,
217 Ill. 2d at 283. We repeated our holding in Campbell that a
stipulation is considered tantamount to a guilty plea–and therefore
requires defendant’s admonishment and personal waiver–in only two
specific circumstances: (1) the State presents its entire case by
stipulation and the defendant does not preserve a defense; or (2) the
stipulation states that the evidence is sufficient to convict the
defendant. Phillips, 217 Ill. 2d at 283, quoting Campbell, 208 Ill. 2d
at 218.
We recently revisited this issue in People v. Rowell, 229 Ill. 2d
82 (2008). We again reaffirmed Campbell’s general rule that defense
counsel may waive a defendant’s right of confrontation as long as the
defendant does not object and the decision to stipulate is a matter of
trial tactics and strategy. Rowell, 229 Ill. 2d at 102, quoting Campbell,
208 Ill. 2d at 217. We also reaffirmed that it is only when the
stipulation is tantamount to a guilty plea that departure is made from
this general rule and a defendant must receive admonishments and
personally waive his right of confrontation. Rowell, 229 Ill. 2d at 102.
Rowell also provided the opportunity, however, for us to clarify
what it means for a stipulation to be tantamount to a guilty plea.
There, the defendant argued he was entitled to receive an
admonishment and personally waive his confrontation right because
the State’s entire case against him was presented by stipulation. In
rejecting the assertion that this alone rendered the stipulation
equivalent to a plea of guilty, we repeated that a stipulation may be
tantamount to a guilty plea in two instances: (1) when the State’s
entire case is to be presented by stipulation and the defendant does
not present or preserve a defense; or (2) the stipulation includes a
statement that the evidence is sufficient to convict the defendant.
Rowell, 229 Ill. 2d at 102, quoting Campbell, 208 Ill. 2d at 218.
Focusing on the first instance, we made it clear that the test is
-15-
conjunctive, requiring both elements to be present before
admonishments and a personal waiver are required. Although the
State’s entire case in Rowell was presented by stipulation, the
defendant also preserved a defense by arguing that the evidence was
insufficient to support a conviction and that the charging instrument
was deficient. Rowell, 229 Ill. 2d at 102, citing People v. Rowell, 375
Ill. App. 3d 421, 434 (2006). Because the defendant preserved a
defense, the stipulation was not tantamount to a guilty plea,8 and
“Campbell did not require the trial court or counsel to admonish
defendant and ensure that the stipulation was part of the record.”
Rowell, 229 Ill. 2d at 102.
In the instant appeal, defendant contends that because the
stipulation was the functional equivalent of a guilty plea, the limited
exception to the general rule set forth in Campbell was triggered, and
he therefore should have received personal admonishments and
personally agreed to its entry. We reject defendant’s assertion, and
hold that this case does not present the circumstance where the
stipulation was tantamount to a guilty plea, which would remove it
from the ambit of the Campbell general rule. As we have repeatedly
held, a stipulation is tantamount to a guilty plea–and therefore
requires a defendant’s personal admonishment and agreement–in only
two instances: (1) the State’s entire case is to be presented by
stipulation and the defendant does not present or preserve a defense;
or (2) the stipulation includes a statement that the evidence is
sufficient to convict the defendant. Rowell, 229 Ill. 2d at 102;
Phillips, 217 Ill. 2d at 283; Campbell, 208 Ill. 2d at 218.
Applying this rule to the instant appeal, it is clear that neither
instance is met. Although the State’s entire case was presented by
stipulation, defense counsel adequately preserved a defense by
preserving the suppression issue for appellate review. The stipulation
twice objected to evidence and testimony “on the same grounds
presented” in the earlier suppression motion, twice requested the
circuit court to reverse its denial of the suppression motion, and
8
The second instance under which a stipulation may be considered
tantamount to a guilty plea, i.e. that the stipulation includes a statement that
the evidence is sufficient to convict the defendant, was not at issue.
-16-
objected to all evidence seized from defendant’s home and his
statements to police “as the illegal fruit of the unlawful search and
seizure of the computer disk delivered to the police by Ellen Bailey.”
Moreover, the stipulation explicitly stated that it did not concede the
sufficiency of the evidence to support a conviction. Accordingly, the
stipulation was not tantamount to a guilty plea requiring that
defendant receive personal admonishments and that he agree to its
entry.
Nevertheless, the appellate court determined that the stipulation
was invalid pursuant to its holding that in all instances where a
defendant enters into a stipulation–whether it is functionally
equivalent to a guilty plea or not–the record must clearly show that
the defendant was apprised of its specific content. 395 Ill. App. 3d at
444. Applying this rule, the appellate court held that Wechter’s
performance was deficient because the record failed to show that
defendant was advised of the specific content of the stipulation,
reasoning that defendant’s “ignorance” of the stipulation’s content
violated his confrontation right because he could not meaningfully
object. 395 Ill. App. 3d at 437. We observe, however, that in the
course of its opinion, the appellate court readily acknowledged that
our decisions in Campbell and Phillips “stresse[d]” that where a
stipulation “is a matter of sound trial tactics or strategy, a defendant
need not be advised about the procedural ramifications of stipulations
in general or about the consequences of a proposed stipulation for that
particular case” (395 Ill. App. 3d at 438-39), noted that neither
Campbell nor Phillips “expressly” held that a court may not validly
accept a stipulation unless the defendant is apprised of its content
(395 Ill. App. 3d at 439), and admitted that Phillips established that
counsel and the circuit court need not admonish the defendant of the
implications and consequences of a stipulation (395 Ill. App. 3d at
441). We therefore question how the appellate court–in light of the
above-referenced passages–could nevertheless conclude that it is
“implicit” in Phillips and Campbell that a defendant must “be
informed of the specific content of the stipulation” in every instance.
395 Ill. App. 3d at 442. The appellate court departed from the
holdings in our prior opinions that foreclosed the reasoning it
adopted.
Contrary to the belief of the appellate court, Campbell did not
-17-
impliedly adopt a rule requiring counsel to inform a defendant of the
specific content of evidentiary stipulations in all circumstances. We
repeat that Campbell sets forth the general rule that defense counsel
may validly waive a defendant’s right of confrontation where two
elements are met: (1) the defendant does not object to the stipulation;
and (2) the decision to stipulate is a matter of trial tactics and
strategy. Campbell, 208 Ill. 2d at 217; see also Rowell, 229 Ill. 2d at
102; Phillips, 217 Ill. 2d at 283.
We further repeat that Campbell carved out a limited exception
to this general rule in only those instances where the stipulation is the
functional equivalent of a guilty plea, on the basis that “counsel
cannot stipulate to facts which establish the guilt of the accused”
(Campbell, 208 Ill. 2d at 219) because such actions implicate a
separate and distinct constitutional right that belongs exclusively to
a defendant: the right to plead not guilty. Campbell, 208 Ill. 2d at 219.
Campbell and its progeny establish that a stipulation is tantamount to
a guilty plea when one of two conditions is met: (1) the State presents
its entire case by stipulation and defendant fails to preserve a defense;
or (2) the stipulation concedes that the evidence is sufficient to
support a guilty verdict. Campbell, 208 Ill. 2d at 218; see also Rowell,
229 Ill. 2d at 102; Phillips, 217 Ill. 2d at 283. We also repeat our
holding in Phillips that except in those specified instances where the
stipulation is tantamount to a guilty plea, Campbell “attached no other
restrictions to defense counsel’s authority to stipulate to the
admission of evidence,” and “we imposed no obligations on the trial
court or counsel to admonish the defendant and ensure that the
advisement is made a part of the record.” Phillips, 217 Ill. 2d at 283.
Applying the rule we first developed in Campbell–and reaffirmed
in Phillips and Rowell– to the instant appeal, it is clear that Wechter
validly waived defendant’s confrontation right by entering into the
stipulation: defendant did not object to its entry and the decision to
stipulate was a matter of trial tactics and strategy.
First, the record clearly establishes that defendant did not object
to the stipulation. As noted earlier, defendant was present in open
court when the stipulation was presented, and the court asked
defendant directly if he wished to be bound by the stipulation.
Defendant responded in the affirmative. We note that despite
defendant’s response being a clear and unequivocal statement of
-18-
agreement, defendant now contends that the record shows he
“obviously objected” to the entry of the stipulation. Defendant’s
efforts to disavow his agreement are unavailing. In fact, although
Campbell “impose[s] no obligations on the trial court or counsel to
admonish the defendant and ensure that the advisement is made a part
of the record” (Phillips, 217 Ill. 2d at 283), defendant nevertheless
received the benefit of the circuit court inquiring if he agreed to the
stipulation. At no time did defendant express disapproval, concern or
confusion when the stipulation was discussed during the court
proceedings. Accordingly, we conclude that defendant did not object
to the entry of the stipulation.
In addition, we hold that the decision to proceed by stipulation
was a matter of trial tactics and strategy. From the outset of this case,
Wechter believed that the best strategy was to suppress the disc
removed from defendant’s home by Bailey. If successful, this would,
in Wechter’s view, also lead to the suppression of defendant’s
statements to Lamela, leaving the State with little–if any–evidence to
support the charge. To this end, the parties immediately litigated the
suppression issue. During that hearing, defendant had the opportunity
to confront the same witnesses who would likely be the main
witnesses at defendant’s trial. Although defendant did not prevail on
the motion, Wechter preserved the suppression issue at every juncture
in the case.
After filing an unsuccessful motion to reconsider, Wechter
included the suppression issue in the stipulation, and made numerous,
specific objections to the introduction of evidence from the computer
disc taken from defendant’s home by Bailey, to the testimony of
Detective Lamela, to the evidence seized from defendant’s residence
and computer, and to the statements defendant made to police.
Wechter also preserved the suppression issue in the posttrial motion.
In addition, Wechter also stated that while preserving the suppression
issue for appeal, his strategy was also to craft the stipulation in such
a way as to keep as much incriminating evidence out of it as possible.
The record therefore supports Wechter’s claim that the stipulation
was part of the defense strategy he pursued throughout the
proceedings.
The record also reveals that, contrary to defendant’s assertion that
he and Wechter had “limited consultations,” Wechter regularly
-19-
consulted with defendant about this strategy, communicating with
him over the phone, in person at the courthouse, and by written
correspondence. In a letter dated September 2, 2004, sent to defendant
prior to the presentation of the original stipulation, Wechter provided
three pages of detailed explanation, outlining the option of preserving
the suppression issue by proceeding by stipulation, and discussing the
likelihood of success. One would reasonably believe that defendant,
a college-educated professional, would read this correspondence and
pose questions, if necessary. Based upon defendant’s testimony at the
posttrial hearing, however, it appears that he was relatively
uninterested and disengaged in the process, repeatedly stating that he
would agree to whatever his father decided.
Thus, because both prongs of the general rule set forth in
Campbell were met, Wechter validly waived defendant’s right of
confrontation by entering into the stipulation. Accordingly, Wechter’s
actions in this regard were not deficient, and the first prong of the
Strickland ineffectiveness inquiry has not been satisfied. Because
both prongs of the Strickland two-part test must be satisfied to
establish an ineffective assistance of counsel claim, failure to
establish deficient performance is fatal to defendant’s claim.
Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069;
see also Bannister, 232 Ill. 2d at 80.
As an alternative basis for reversing his conviction, defendant
contends that the appellate court erred in holding that the circuit court
correctly denied his motion to quash arrest and suppress evidence.9
9
Rule 318(a) (155 Ill. 2d R. 318(a)) provides that in all appeals “any
appellee, respondent, or coparty may seek and obtain any relief warranted
by the record on appeal without having filed a separate petition for leave
to appeal or notice or cross-appeal or separate appeal.” See also Poindexter
v. State of Illinois, 229 Ill. 2d 194, 205 n.4 (2008) (“This court has invoked
Rule 318(a) in finding that allowance of one party’s petition for leave to
appeal brings before this court the other party’s requests for cross-relief.”)
We note, however, that the cover of defendant’s brief did not request cross-
relief. Rule 315(h) provides: “If the brief of the appellee contains
arguments in support of cross-relief, the cover of the brief shall be
captioned: ‘Brief of Appellee. Cross-Relief Requested.’ ” 210 Ill. 2d R.
315(h).
-20-
Although defendant acknowledges that the fourth amendment
protection against unreasonable searches and seizures does not
generally apply to private individuals, he contends that the police
violated this guarantee because their search of the disc given to them
by Bailey exceeded the scope of the private search which she
conducted. The State counters that the police search remained within
the scope of the initial private search and, therefore, pursuant to this
court’s decision in People v. Phillips, 215 Ill. 2d 554 (2005), the
appellate court’s holding should be upheld. We agree with the State.
A circuit court’s ruling on a motion to suppress is reviewed under
the two-part test adopted by the Supreme Court in Ornelas v. United
States, 517 U.S. 690, 699, 134 L. Ed. 2d 911, 920, 116 S. Ct. 1657,
1663 (1996). People v. Harris, 228 Ill. 2d 222, 230 (2008). The
circuit court’s factual findings may be rejected only if they are against
the manifest weight of the evidence. People v. Sorenson, 196 Ill. 2d
425, 431 (2001). The reviewing court then assesses the established
facts in relation to the issues presented and may draw its own
conclusions in deciding what relief, if any, should be granted. Harris,
228 Ill. 2d at 230. Accordingly, this court reviews de novo the
ultimate legal question of whether suppression is warranted. People
v. Luedemann, 222 Ill. 2d 530, 542-43 (2006).
In Phillips, the defendant took his computer to have it repaired.
After making the repairs, the technician tested the computer by
playing a video clip stored on its hard drive. The video clip depicted
what appeared to be a young girl engaged in a sexual act. The
technician immediately contacted a police officer acquaintance, told
him what he had seen, and asked him to come to the shop. When the
officer arrived, he had the technician play the video clip without first
seeking a warrant. The officer agreed that the video depicted child
pornography and informed other officers who also came to the shop
and viewed the video. Phillips, 215 Ill. 2d at 559. The defendant was
thereafter arrested and provided a voluntary statement admitting that
he possessed child pornography. Phillips, 215 Ill. 2d at 560.
The circuit court denied defendant’s motion to quash arrest and
suppress evidence, holding that the fourth amendment did not apply
to the technician’s initial search of the computer, as it was the act of
a private citizen, not of an agent of law enforcement. Phillips, 215 Ill.
2d at 560-61. The court further found that the police viewed the same
-21-
video as the technician, and, by doing so, they acquired probable
cause to arrest the defendant. Phillips, 215 Ill. 2d at 561.
We affirmed. Relying upon United States v. Jacobsen, 466 U.S.
109, 113, 80 L. Ed. 2d 85, 94, 104 S. Ct. 1652, 1656 (1984), we noted
that “the fourth amendment applies only to government action” and,
therefore, “[a] search by a private person does not violate the fourth
amendment.” Phillips, 215 Ill. 2d at 566. We further held that the
fourth amendment does not prohibit the government from using
information discovered by a private search, because “the private
search has already frustrated any expectation that the information will
remain private.” Phillips, 215 Ill. 2d at 566. Therefore, we explained
that where the government uses privately discovered information to
investigate a crime without first obtaining a warrant, “the fourth
amendment question is whether the investigation ‘exceeded the scope
of the private search.’ ” Phillips, 215 Ill. 2d at 566-67, quoting
Jacobsen, 466 U.S. at 115, 80 L. Ed. 2d at 95, 104 S. Ct. at 1657.
The defendant in Phillips argued that the police exceeded the
scope of the initial private search by the computer technician because
the technician did not provide the police with a “particular
description” of the contents of the file that he had viewed. In
rejecting this argument, we held that the technician’s statement to the
first officer at the scene that the video appeared to be child
pornography provided a sufficient description of the file’s contents.
Therefore, when the officers viewed that file, they “gained no new
material information,” but “merely confirmed [the technician’s]
report that it appeared to be child pornography.” Phillips, 215 Ill. 2d
at 567. Thus, “learning with more precision what the video depicted”
did not expand the police investigation beyond the scope of the
technician’s search. Phillips, 215 Ill. 2d at 567.
Here, defendant concedes that there is no fourth amendment issue
with regard to Bailey, who acted in her private capacity when she
took defendant’s computer disc into her own home. There, she
viewed the titles of the files on the disc and watched one video clip
in which a minor girl appeared to engage in sexual activity with an
adult man. This discovery caused Bailey to contact Malkin, who in
turn, contacted Lamela.
Defendant contends that Malkin and Lamela, however,
impermissibly exceeded the scope of Bailey’s private search.
-22-
According to defendant, the incriminating nature of the disc was not
readily apparent to Malkin or Lamela, as it was not marked as
containing child pornography. In addition, defendant claims that the
testimony of Malkin and Lamela does not indicate that their searches
were limited to the same areas of the disc that Bailey had searched.
Although the officers both claimed to have viewed a video file from
the disc, the testimony did not establish that they viewed the same file
Bailey viewed. We reject defendant’s arguments.
Bailey testified that in addition to viewing a video file containing
apparent child pornography, she also searched the disc widely enough
to discover several file names she found “disturbing” and suggestive
of child pornography, such as “ ‘mother f***s 8-year-old.’ ” Thus,
Bailey’s own search was of sufficient scope to allow police to
perform a general review of the files on the disc for the presence of
child pornography. Defendant has pointed to nothing in support of the
claim that Malkin and Lamela searched anywhere on the disc that by
its file name likely would not contain child pornography. Although
defendant contends that the disc “could have contained vast amounts
of personal information” belonging to him, he fails to point to any
evidence in the record supporting this assertion.
In sum, Bailey’s seizure and viewing of the disc were not state
action implicating the fourth amendment. When Bailey presented the
disc to Malkin and Lamela, she had already frustrated defendant’s
expectation of privacy. Phillips, 215 Ill. 2d at 566. There is no
evidence to support defendant’s contention that the scope of the
investigation of the disc by Malkin and Lamela exceeded Bailey’s
prior, private search; it merely confirmed the results of the private
search. Therefore, we conclude that the circuit court properly denied
defendant’s motion to quash and suppress.
C. Defendant’s Remaining Claims of Error
In his brief, defendant also raises the following claims of error
which the appellate court declined to address in its opinion: (1) the
State committed a discovery violation by failing to timely produce the
audiotape of Detective Lamela’s interview of defendant; (2) defense
counsel was ineffective in failing to challenge the State’s late
production of the audiotape; (3) counsel was also ineffective because
-23-
he incorrectly advised defendant regarding the period of sex offender
registration; and (4) the evidence was insufficient to sustain
defendant’s conviction. Because the appellate court declined to reach
the remainder of the issues raised in defendant’s brief, we remand this
cause to the appellate court to dispose of those claims raised before
that court, but not previously ruled upon. People v. Lowery, 178 Ill.
2d 462, 473 (1997) (it is appropriate to remand an issue raised but not
decided in the appellate court).
CONCLUSION
For the foregoing reasons, we reverse the judgment of the
appellate court. We remand this cause to the appellate court for
resolution of the remaining issues.
Appellate court judgment reversed;
cause remanded.
-24-
People v. Clendenin
Combined Opinion