Filed:  January 16, 2002

JUSTICE TURNER delivered the opinion of the court:

In July 2000, the State charged defendant, TerranceLove, with aggravated battery (720 ILCS 5/12-4(b)(6) (West2000)). After a September 2000 trial, the jury found defendantguilty of aggravated battery. In October 2000, the trial courtsentenced defendant to five years' imprisonment to be servedconsecutive 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 abusedits discretion by requiring him to wear a mask at his jury trial,(2) the trial court's failure to remedy violations of an order inlimine constituted plain error, (3) he was denied effectiveassistance of counsel, and (4) his consecutive sentence violateshis rights to due process and trial by jury under Apprendi v. NewJersey, 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 thePontiac correctional facility (Pontiac). Glendal French was thecorrectional officer in charge of gallery one where defendant waslocated. As Officer French was taking another inmate for ashower, he heard defendant banging on his cell door. WhenOfficer French went to defendant's cell, he discovered defendanthad ripped his bedsheets and tied a strip of sheet around hisneck. Defendant stated he would commit suicide unless he saw acaptain or lieutenant. Officer French asked defendant twice tostick his arms out so he could handcuff him, and defendantrefused. After Captain Settleworth arrived and instructeddefendant to comply with the handcuffing, defendant did so, andOfficer French handcuffed him. Officer French opened the celldoor, and defendant stepped out, looked directly at OfficerFrench, and spit in his face. Officer French was not injured. In July 2000, the State charged defendant with aggravated batteryfor his actions on April 4, 2000.

At the beginning of defendant's September 2000 trialand out of the presence of the jury, the trial court addressedthe issue of defendant's propensity to spit. The prosecutorstated the last time defendant was in court, defendant told herhe wanted to spit on her. The trial court asked Jerry Rork, acourt security officer, about defendant's behavior that morning. Rork stated defendant had been behaving since he had been in thecourthouse. Defense counsel stated he had talked to defendant afew moments before trial and defendant had been "somewhat belligerent."

The trial court then questioned Scott Matthews, acorrectional officer at Tamms correctional center (Tamms), whotransported defendant from Pontiac to the courthouse. OfficerMatthews stated defendant had been verbally aggressive andtalking about spitting on people. Pontiac officers suggestedOfficer Matthews should have defendant wear a mask while beingtransported because of his behavior the prior night. Accordingto Officer Matthews, as defendant was leaving Pontiac, defendantthreatened to spit on the Pontiac officers.

The trial court took sworn testimony from Troy Quinley,a superintendent at Pontiac. Superintendent Quinley testifiedwhen defendant arrived from Tamms, he was unhappy with themattress he received. Before officers could obtain a new mattress, defendant spit in Officer Bradshaw's face. As OfficerBradshaw put a mask on defendant, defendant bit the officer.

At the trial court's request, the prosecutor provideddefendant's criminal history, including the following: defendantwas currently serving a 40-year sentence for armed robbery; hadbeen convicted of assault on staff for spitting; had an aggravated battery conviction for breaking a sergeant's hand; and hadtwo criminal-damage-to-government-property charges pendingagainst him.

The trial court also talked with the defendant. According to defendant, he spit in the officer's face the nightbefore trial because he felt the officer was not treating himlike a human being. Defendant told the court he was not going tospit on anybody in the courtroom.

The trial judge noted he had received a communicationfrom the warden at Tamms, indicating defendant was a moderateescape risk and considered a high aggression level due to ahistory of assaultive behavior. The trial judge asked if a safedistance existed for people to be away from defendant. Oneofficer replied, "[t]hey are too close."

The State's position was defendant should remainmasked. Defense counsel stated due to his prior contacts withdefendant, he was unable to represent to the court defendantwould not misbehave in the courtroom. The trial court found itnecessary for defendant to remain masked during the jury trialbased on defendant's history of misconduct. Defendant chose tobe present in the courtroom even with the mask.

The trial court then asked for suggestions on how toexplain the mask to the jury. The State suggested the trialcourt not comment on the mask at all. Defense counsel alsopreferred the mask not be mentioned. The trial court decided to"leave it go at that."

The State presented two witnesses, Officer French andJack Libby, a correctional officer at Pontiac responsible forinvestigating possible criminal cases against inmates. The Stateasked 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 samequestion to which Officer Libby replied, "[h]e is wearing a whiteshirt with a mask over his face."

At the conclusion of the trial, the jury found defendant guilty of aggravated battery. In October 2000, the trialcourt sentenced defendant as stated. No posttrial motion wasfiled. This appeal followed.

Defendant first argues the trial court abused itsdiscretion when it forced him to wear a mask during his jurytrial. We note defendant was also shackled during trial, butdefendant does not challenge the trial court's imposition of thatrestraint. The State argues defendant has waived this issue bynot (1) objecting in the trial court and (2) filing a posttrialmotion. Defendant asserts the trial court's error constitutesplain error (134 Ill. 2d R. 615(a)).

To preserve an alleged error for review, the defendantmust (1) make an objection at trial and (2) file a writtenposttrial motion raising the issue. People v. Enoch, 122 Ill. 2d176, 186, 522 N.E.2d 1124, 1130 (1988). While the partiesdisagree about whether defendant objected to wearing the mask attrial, 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 errorrule.

The plain error rule may be invoked to protect adefendant from serious injustices and to preserve the integrityand reputation of the judicial process under either of thefollowing circumstances (People v. Bunning, 298 Ill. App. 3d 725,727, 700 N.E.2d 716, 718 (1998)): (1) the evidence was closelybalanced, or (2) the error was of such magnitude the accused wasdeprived of a substantial right and denied a fair trial (Peoplev. Armstrong, 183 Ill. 2d 130, 151, 700 N.E.2d 960, 969 (1998)). Here, the evidence against defendant was overwhelming. Thus,defendant must show he was denied a fair trial.

The issue of whether defendant was denied a fair trialbecause the court required him to wear a mask during trial toachieve courtroom security is one of first impression for Illinois courts. Other cases involving the courtroom restraint of adefendant have fallen into three categories: (1) those involvinga defendant who stands trial in shackles, (2) those where anexcessive number of guards are present in the courtroom duringtrial, and (3) those where the defendant's jury sees the defendant in shackles for a short period in the courthouse. SeePeople v. Walsh, 80 Ill. App. 3d 754, 768, 400 N.E.2d 587, 597-98(1980). In those cases, the restraint has been permissible wherethe court reasonably believes (1) the defendant may try toescape, (2) the defendant may pose a threat to the safety of thepeople in the courtroom, or (3) restraint is necessary to maintain order during the trial. See People v. Boose, 66 Ill. 2d261, 266, 362 N.E.2d 303, 305 (1977). In this case, the recordindicates defendant's prior conduct raised concerns about safetyand the ability to maintain order. Because the masking of adefendant to prevent spitting addresses some of the same concernsas other types of restraints, we choose to follow the analysisemployed in other restraint cases.

The leading Illinois case on restraining a defendant inthe courtroom is Boose, 66 Ill. 2d 261, 362 N.E.2d 303, where theSupreme Court of Illinois addressed the issue of shackling adefendant during a competency hearing. There, the court notedthe shackling of an accused should be avoided if possible becauseit (1) tends to prejudice the jury against the accused, (2)restricts his ability to assist counsel during trial, and (3)offends the dignity of the judicial process. Boose, 66 Ill. 2dat 265, 362 N.E.2d at 305. Nevertheless, a defendant may berestrained where the court reasonably believes (1) the defendantmay try to escape, (2) the defendant may pose a threat to thesafety of the people in the courtroom, or (3) restraint isnecessary to maintain order during the trial. Boose, 66 Ill. 2dat 266, 362 N.E.2d at 305. The determinations whether to restrain a defendant and what restraints are most suitable arewithin the trial court's discretion, and a reviewing court willnot overturn those decisions unless the trial court abused itsdiscretion. Boose, 66 Ill. 2d at 266-67, 362 N.E.2d at 305-06.

In making the determination whether to restrain adefendant, the trial court is to hold proceedings outside thepresence of the jury. During those proceedings, the defensecounsel should have the opportunity to present reasons why thedefendant should not be restrained, and the trial court shouldstate for the record the reasons for restraining the defendant inthe courtroom. Boose, 66 Ill. 2d at 266, 362 N.E.2d at 305.

The Boose court also listed a number of factors a trialcourt should consider in determining whether to shackle a defendant, including, but not limited to:

"'[T]he seriousness of the presentcharge against the defendant; defendant'stemperament and character; his age and physical attributes; his past record; past escapesor attempted escapes, and evidence of a present plan to escape; threats to harm others orcause a disturbance; self-destructive tendencies; the risk of mob violence or ofattempted revenge by others; the possibilityof rescue by other offenders still at large;the size and mood of the audience; the natureand physical security of the courtroom; andthe adequacy and availability of alternativeremedies.'" Boose, 66 Ill. 2d at 266-67, 362N.E.2d at 305-06, quoting State v. Tolley,290 N.C. 349, 368, 226 S.E.2d 353, 368(1976).

Based on the record, we find no abuse of discretion inthe trial court's requirement for defendant to wear a mask duringtrial. Outside the presence of the jury, the trial court held alengthy proceeding that included the questioning of the prosecutor, defense counsel, defendant, a court security officer, acorrectional officer, and the sworn testimony of a correctionalsuperintendent. At the conclusion of the proceeding, the trialcourt found it necessary to keep the mask on defendant duringtrial because of defendant's history of misconduct. Further,both defense counsel and defendant had the opportunity to presentreasons why defendant should not have worn a mask as required inBoose, 66 Ill. 2d at 266, 362 N.E.2d at 305.

The trial court's consideration of the applicable Boosefactors is evidenced by the record. As to defendant's pastcriminal record, the court asked the prosecutor to presentdefendant's criminal history and the current charges pendingagainst him. Defendant's past convictions included an assault onstaff for spitting and aggravated battery for breaking a sergeant's hand. The trial court also noted defendant was on trialfor aggravated battery for spitting on a correctional officer.

Regarding defendant's temperament and character, thetrial court noted it had received a communication from the Wardenat Tamms, stating defendant was considered a high aggressionlevel. The communication also noted defendant had violated theDepartment of Correction rules 6 times for fighting, 20 times forassault, 5 times for sexual misconduct, 6 times for arson, oncefor dangerous disturbance, once for dangerous contraband, andtwice for violent assaults. As to defendant's temperament rightbefore trial, the trial court asked the court security officerabout defendant's behavior in the courthouse, a correctionalofficer about defendant's behavior before coming to the courthouse, and defense counsel about his impressions of defendant themorning of the trial. While the court security officer stateddefendant had been behaving in the courthouse, the correctionalofficer stated defendant had threatened to spit on Pontiaccorrectional officers before coming to the courthouse, anddefense counsel described defendant's mood before trial as"somewhat belligerent."

As to the threat of harm to others, the prosecutorstated defendant had threatened to spit on her the last time hewas in court, which defendant did not deny when questioned by thetrial court. The transporting correctional officer stateddefendant had threatened to spit on correctional officers earlierthat morning. Additionally, a Pontiac superintendent testifieddefendant had spit on and bit a correctional officer the nightbefore trial.

Moreover, the trial court addressed the nature andphysical security of the courtroom and the adequacy and availability of alternative remedies. The trial court asked theofficers present in the courtroom whether defendant could beplaced where he could not spit on people. One officer responded,"[t]hey are too close." Defendant asserts he could have beenplaced in a different position in the courtroom to eliminate hisability to spit on people. We will not second-guess the trialcourt's decision whether defendant could have been locatedelsewhere in the courtroom because the trial court was in thebetter position to assess the layout of the courtroom.

Defendant argues he should not have been masked becausehe had behaved while in the courthouse. However, Boose permitsthe consideration of defendant's prior acts and his generalcharacter. See Boose, 66 Ill. 2d at 266-67, 362 N.E.2d at 305-06. Other Illinois courts have found no abuse of discretion inshackling a defendant where the shackling was based on factorsother than defendant's behavior in the courtroom. See People v.Buss, 187 Ill. 2d 144, 217-18, 718 N.E.2d 1, 41-42 (1999); Peoplev. Starks, 287 Ill. App. 3d 1035, 1037, 679 N.E.2d 764, 767(1997).

The present case is distinguishable from this court'sdecision in People v. Brown, 45 Ill. App. 3d 24, 358 N.E.2d 1362(1977), which was decided before the supreme court's decision inBoose. There, we held the defendants were denied a fair trialbecause they were unjustifiably handcuffed during trial. Unlikethis case, the only statements regarding the need for restrainingthe defendants were (1) the unsupported assertions of the prosecutor that one of the defendants threatened him, and (2) the facttwo of the defendants had attempt (escape) charges pending. Thiscourt suggested sworn testimony out of the jury's presence couldhave been employed to provide a demonstrable need for the shackling procedures (Brown, 45 Ill. App. 3d at 28, 358 N.E.2d at1364), which is what the trial court did in the present case.

Defendant further contends even if the mask werenecessary, the trial court did not make adequate efforts to avoidprejudice in its choice of method to mask defendant. Defendantasserts a trial court has an obligation, where possible, toobscure shackles and other restraints. See People v. Johnson, 54Ill. App. 3d 970, 972, 370 N.E.2d 611, 612 (1977) (noting abetter practice is to have prison officers in civilian dress).

Unlike shackles, a device to prevent someone fromspitting cannot be obscured from the jury because it must coverthe mouth. Here, the mask chosen by the trial court was one thejury could construe as a health device and not a restraintdevice. In asking the trial court to eschew comment on the mask,defense counsel stated the jury might assume defendant had a coldor some other ailment. Defendant himself stated he would behavehimself during trial because he did not like wearing "this masklike I got a disease or something." Additionally, the jury wasnever informed the mask was being used to restrain defendant fromspitting. Thus, even though defendant was on trial for spitting,defendant's wearing of the mask did not necessarily imply to thejury the trial court was restraining him from spitting.

Defendant argues the trial court had a plethora ofpossibilities in dealing with defendant's spitting without usinga mask. However, the only suggestion defendant provides is adifferent place in the courtroom, which the trial court didaddress. The trial court gave defendant the option of beingpresent in the courtroom with a mask or not being present. Further, defendant does not assert the chosen mask interferedwith his ability to assist his counsel.

Accordingly, the mask was necessary to protect thesafety of the people in the courtroom and to maintain order, andthus the trial court did not abuse its discretion. Further, therestraint imposed on defendant was appropriate in light of allthe circumstances presented at trial. Because we find the trialcourt did not abuse its discretion, the trial court did notcommit plain error.

Defendant next argues the trial court erred by notremedying the prosecutor's violation of an order on the motion inlimine. Defendant also did not preserve this error for review,and thus our review is limited to plain error.

After the trial court determined defendant had to weara mask during trial and defendant stated he wanted to be presentin the courtroom, the following exchange took place:

"THE COURT: All right. Do you have asuggestion, [defense counsel], as to what Itell the jury as to why he is masked?

[PROSECUTOR]: I think you are best notto comment on it at all.

THE COURT: I am going to mention wehave taken certain security precautions andleave it at that.

[DEFENSE COUNSEL]: I actually think Iwould prefer, Your Honor, that it not bementioned. I think--I don't think there is agood way to mention it. So I think if it'snot mentioned, at least it might give him thebenefit of the doubt assuming he has got somecold or something today.

THE COURT: All right. We will leave itgo at that."

Defendant asserts his trial counsel orally made a motion inlimine to prohibit anyone in the courtroom from mentioningdefendant's mask. The State contends the trial court merelycomplied with defense counsel's request that the court notmention the mask to the jury.

Our review of the record indicates the court acquiescedin defense counsel's request that the mask not be mentioned bythe trial judge. Although not specifically stated or put into awritten order, the court's decision implied counsel was also toavoid mentioning the mask.

We note imperatively an in limine order must be clear,and all parties concerned have an adequate understanding of itslimitations. Reidelberger v. Highland Body Shop, Inc., 83 Ill.2d 545, 550, 416 N.E.2d 268, 271 (1981). Oral motions in limineprovide fertile ground for confusion and misunderstanding duringtrial. Crawford County State Bank v. Grady, 161 Ill. App. 3d332, 341, 514 N.E.2d 532, 538 (1987).

Here, the State did not make reference to defendant'smask in counsel's arguments or in questions posed to witnesses. Instead, when asked to identify defendant, the witnesses described defendant as the person wearing the mask. We find thereferences to the mask in the identification of defendant did notdeny defendant a fair trial. The mask was clearly visible to thejury, and thus the witnesses did not tell the jurors anythingthey could not see for themselves. Further, each witness onlymentioned the mask once, and did not explain or suggest thepurpose of the mask. Any reprimand of the witnesses and theprosecutor or an admonishment to the jury to disregard thereferences to the mask as suggested by defendant would have drawnattention to the mask and raised the jury's curiosity as to itsnature. Accordingly, we do not find plain error.

Defendant also contends his trial counsel was ineffective for failing to object when the State's witnesses referred todefendant's mask and for not filing a posttrial motion.

We review ineffective assistance of counsel claimsunder the standard set forth in Strickland v. Washington, 466U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). People v.Evans, 186 Ill. 2d 83, 93, 708 N.E.2d 1158, 1163 (1999). Toobtain reversal under Strickland, a defendant must prove (1) hiscounsel's performance failed to meet an objective standard ofcompetence, and (2) counsel's deficient performance resulted inprejudice to the defendant. Evans, 186 Ill. 2d at 93, 708 N.E.2dat 1163-64.

To satisfy the deficient-performance prong of Strickland, a defendant must show his counsel's performance was soinadequate that counsel was not functioning as the "counsel"guaranteed by the sixth amendment (U.S. Const., amend. VI). Courts measure counsel's performance by an objective standard ofcompetence under prevailing professional norms. Further, toestablish deficient performance, the defendant must overcome thestrong presumption the challenged action or inaction may havebeen the product of sound trial strategy. Matters of trialstrategy are generally immune from claims of ineffective assistance of counsel. People v. Smith, 195 Ill. 2d 179, 188, 745N.E.2d 1194, 1200 (2000).

Defendant first asserts his counsel should have objected when the State's witnesses' referred to defendant's maskin making their identification. As a general rule, trial strategy encompasses decisions such as what matters to object to andwhen to object. People v. Pecoraro, 144 Ill. 2d 1, 13, 578N.E.2d 942, 947 (1991). Here, trial counsel may not have objected for fear the objection would have drawn more attention tothe mask. Thus, we find defense counsel's failure to object wastrial strategy. We note this case is distinguishable from Peoplev. Moore, 279 Ill. App. 3d 152, 157, 663 N.E.2d 490, 495 (1996),where the reviewing court found defense counsel ineffective forfailing to object to a witness' comment on defendant's exerciseof his right to remain silent. While a comment on the exerciseof the right to remain silent can serve as the sole basis forreversal (Doyle v. Ohio, 426 U.S. 610, 619, 49 L. Ed. 2d 91, 98,96 S. Ct. 2240, 2245 (1976)), the presumption of innocence istempered by the need for courtroom security and order (see In reStaley, 67 Ill. 2d 33, 37-38, 364 N.E.2d 72, 73-74 (1977)). Additionally, we find defendant was not prejudiced by the failureto object because of the overwhelming evidence against him. Accordingly, defendant failed to establish both prongs of theStrickland test.

As to the failure to file a posttrial motion, theStrickland court noted when a case is more easily decided on theprejudice ground, rather than counsel's representation wasconstitutionally deficient, the court should do so (Strickland,466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069). Tosatisfy the prejudice prong, defendant must show his counsel'serrors were so serious as to deprive the defendant of a fairtrial. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S.Ct. at 2064. The Supreme Court of Illinois has held the plainerror rule provided by Supreme Court Rule 615(a) (73 Ill. 2d R.615(a)) protects a defendant from the prejudice caused by hiscounsel's failure to preserve an error because the rule allowsthe reviewing court to consider unpreserved errors affectingsubstantial rights. People v. Carlson, 79 Ill. 2d 564, 585, 404N.E.2d 233, 242-43 (1980). Having held none of the forfeitederrors presented on appeal would have resulted in a new trial fordefendant, the failure to preserve those errors did not prejudicehim. See People v. Alexander, 212 Ill. App. 3d 1091, 1105, 571N.E.2d 1075, 1085 (1991).

Accordingly, defendant received effective assistance ofcounsel under Strickland.

Defendant argues his consecutive sentence imposed undersection 5-8-4(f) of the Unified Code of Corrections (UnifiedCode) (730 ILCS 5/5-8-4(f) (West 2000)) violates his constitutional rights to due process and trial by jury under Apprendi. While defendant did not file a posttrial motion, a defendant canraise a constitutional challenge to a statute at any time (Peoplev. Bryant, 128 Ill. 2d 448, 454, 539 N.E.2d 1221, 1224 (1989)). See People v. Givens, 319 Ill. App. 3d 910, 912, 747 N.E.2d 436,438 (2001) (addressing an Apprendi challenge not raised in aposttrial motion).

Section 5-8-4(f) of the Unified Code provides, inpertinent part:

"A sentence of an offender committed tothe Department of Corrections at the time ofthe commission of the offense shall be servedconsecutive to the sentence under which he isheld by the Department of Corrections." 730ILCS 5/5-8-4(f) (West 2000).

While the Supreme Court of Illinois has not addressedApprendi concerns under section 5-8-4(f) of the Unified Code, thecourt has held Apprendi concerns are not implicated by consecutive sentencing (People v. Wagener, 196 Ill. 2d 269, 286, 752N.E.2d 430, 441 (2001)). Likewise, that court has held Apprendidoes not apply to consecutive sentences under section 5-8-4(a) ofthe Unified Code (People v. Carney, 196 Ill. 2d 518, 536, 752N.E.2d 1137, 1147 (2001)). Accordingly, we find defendant'sconsecutive sentence under section 5-8-4(f) of the Unified Codeis constitutional.

For the reasons stated, we affirm the trial court'sjudgment.

Affirmed.

McCULLOUGH, P.J., concurs.

COOK, J., dissents.

JUSTICE COOK, dissenting:

I respectfully dissent and would reverse and remand fora new trial. The potential of defendant's spitting did not posea substantial threat to the people in the courtroom. Defendant'spotential conduct did not threaten bodily injury. If defendantdid spit on someone, the problem could be remedied by use of apaper towel. This case is not similar to a case where there is aconcern that defendant will strike someone, thereby justifyingshackles. If a court is concerned that defendant might speak outof turn, is the court justified in placing tape over defendant'smouth?

The jury was clearly invited to speculate why defendantwas forced to wear the mask. If the jury speculated that defendant had some communicable disease, that would have been prejudicial to defendant. The jury would have thereby been inclined toview the charged spitting as a more serious offense than it was.

Defendant sat through this trial without removing themask and without attempting to spit on anyone. The trial courtshould have accepted defendant's promise that he would not spituntil the time that defendant broke that promise. Spitting incourt in this case would have had its own consequences fordefendant, who would thereby have insured his conviction.