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Docket No. 94425-Agenda 5-September 2003.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. 
RICHARD D. CAMPBELL, JR., Appellant.

Opinion filed December 18, 2003.

JUSTICE THOMAS delivered the opinion of the court:

At issue in this case is whether defense counsel, by stipulating to theadmission of evidence, can waive a defendant's constitutional right toconfront the source of the evidence without the defendant's knowingconsent to the stipulation. The appellate court, with one justice dissenting,held that defense counsel can stipulate to prosecution testimony withouta defendant's knowing consent because the decision to stipulate is amatter of trial strategy within defense counsel's sound judgment. 332 Ill.App. 3d 808. The dissent believed that the decision whether to stipulateto the testimony of a key witness belongs to the defendant, afterconsultation with defense counsel. 332 Ill. App. 3d at 815-17 (Cook, J.,dissenting). For the following reasons, we affirm the judgment of theappellate court, which affirmed the judgment of the circuit court ofChampaign County.

FACTS

The State charged defendant, Richard D. Campbell, Jr., withresidential burglary (720 ILCS 5/19-3 (West 2000)), alleging thatdefendant knowingly and without authority entered the dwelling place ofBlake M. Hoerr and Griff P. Powell in Champaign, Illinois. Defendant'strial began on May 14, 2001. After the jury was sworn, the prosecutormoved for a continuance on the ground that Blake Hoerr had notappeared for trial, even though he was under subpoena. Hoerr's fatherhad informed the prosecutor that Hoerr was in Maryland for a job andwould not be able to make it to court. The prosecutor asked for a briefrecess to obtain Hoerr's appearance, stating that Hoerr was a materialand critical witness for the State's case. Defense counsel objected, notingthat the State had answered ready at pretrial. The trial court agreed tocontinue the matter to the following morning, stating that "if the witness isnot here at that time, then we're either going to have to dismiss the case,or proceed with the witness, one or the other." The prosecutor thenelected to proceed with his other witnesses.

Griff Powell testified for the State that he was a student at theUniversity of Illinois in Champaign. On March 13, 2001, Powell was livingwith Hoerr and some other roommates at 1001 South First Street inChampaign. The residence was a two-story home. Powell testified thatthere were no signs on the home indicating that there were rooms for rent.The front door to the home was made of wood, and there was a screendoor in front of the wood door. Only the wood door had a lock on it.

Powell said that March 13 was the Tuesday of spring break week forthe University, so that all of his roommates except Hoerr were out oftown. Both Powell and Hoerr were in town on March 13, although theyboth planned to leave Champaign that day. Around 10:15 a.m., Hoerrwas sleeping on the couch in the living room and Powell was upstairs in hisroom watching television when Powell heard a loud knocking on the door.Powell assumed Hoerr would answer the door, but the knockingcontinued for approximately two minutes. Just as Powell began to wonderwhy Hoerr was not answering the door, he heard voices talking. Powellcould not hear what was going on, so he started walking down the stairsand saw defendant walking out the front door. Powell did not knowdefendant and had never seen defendant in the house. Powell and Hoerrdecided to call the police because they were both leaving town that dayand knew that it was easy to break into empty homes. At the time Powellheard the knocking, the wood door was unlocked.

Dennis Thomas testified that he is a police officer for the City ofChampaign and is assigned to the campus area, south of the University.Thomas explained that winter breaks and spring breaks are significantwhen working the campus area because all the students leave the areaduring that time, and the burglary rate increases tremendously. On March13, 2001, at 10:17 a.m., he was dispatched to 1001 South First Street tocheck a report of a person that had walked into a house and then left,going in a southerly direction. On his way to 1001 South First Street,Thomas spotted defendant, who fit the description of the suspect, andstopped to talk to him. Thomas asked defendant if he had been in thebuilding at 1001 South First Street. Defendant initially denied that he hadbeen there. When Thomas told defendant that someone fitting defendant'sdescription had been in 1001 South First Street, defendant then said thathe had been there looking for someone. Thomas asked defendant who hewas looking for, but defendant could not give him a name.

At the close of Thomas' testimony, the trial was continued until thefollowing day. The next day, the trial court asked the prosecutor whetherhis witness was present. The prosecutor responded that Hoerr was notpresent, but that he had a stipulation concerning Hoerr's testimony. Thetrial court asked defense counsel whether he objected to the trial courtreading the stipulation and explaining the stipulation. Defense counselresponded that he had no objection and "[i]n fact had signed the court'scopy" of the stipulation.

The stipulation of facts concerning Hoerr's testimony provided thaton March 13, 2001, at approximately 10:15 a.m., Hoerr was sleeping ona couch in the living room when he was awakened by someone knockingon the front door. After hearing several knocks, Hoerr heard the interiorwooden door open. Hoerr sat up, looked over the back of the couch, andsaw defendant in the hallway. When defendant saw Hoerr, defendantasked if Hoerr had a room for rent. Hoerr said no, and defendant left thehome. Defendant did not have Hoerr's permission to enter the residence.After defendant left, Hoerr called 911 and reported that a white male hadentered the residence without authority and described defendant to the911 dispatcher. At 10:30 a.m., Hoerr was taken to the intersection ofFirst Street and Springfield Avenue and positively identified defendant asthe person who had entered his residence.

After the stipulation concerning Hoerr's testimony was read to thejury, both sides rested. The trial court then denied defendant's motion fora directed verdict. Pursuant to defendant's request, the jury was instructedconcerning the lesser-included offense of criminal trespass to a residence(720 ILCS 5/19-4 (West 2000)), in addition to the offense of residentialburglary. The jury found defendant guilty of criminal trespass to aresidence and defendant was sentenced to 364 days in jail.

On appeal, defendant argued that he had been denied hisconstitutional right to confront the witnesses against him because hisattorney stipulated to the testimony of Blake Hoerr without defendant'sknowing consent. 332 Ill. App. 3d at 812. The appellate court, with onejustice dissenting, held that defense counsel can stipulate to prosecutiontestimony without a defendant's knowing consent because the decision tostipulate is a matter of trial strategy within defense counsel's soundjudgment. 332 Ill. App. 3d at 814. The appellate court recognized twoexceptions to its holding: (1) when the State's entire case is to bepresented by stipulation; and (2) when the stipulation includes a statementthat the evidence is sufficient to convict the defendant. 332 Ill. App. 3d at814. In those situations, "the stipulation is tantamount to a guilty plea," soa defendant must be admonished about the stipulation and must agree tothe stipulation before the court can accept such a stipulation. 332 Ill. App.3d at 814. The dissenting justice asserted that the decision whether tostipulate to the testimony of a key witness belonged to the defendant, afterconsultation with defense counsel. 332 Ill. App. 3d at 817 (Cook, J.,dissenting).

This court allowed defendant's petition for leave to appeal. 177 Ill.2d R. 315(a).

ANALYSIS

On appeal, defendant again argues that his constitutional right to beconfronted with his accuser was denied when his defense counsel agreedto stipulate to the testimony of Hoerr, the prosecution's primary witness.Defendant claims that the right to face-to-face confrontation belongs to anaccused, and only the accused may waive his right to confrontation.Defendant further argues that there is nothing in the record to suggest thathe knowingly waived his right to be confronted with the key witnessagainst him. Finally, the error in failing to obtain defendant's knowingwaiver of his right to confrontation constituted reversible error, becauseHoerr's testimony clearly was necessary in order to sustain the State'scase against defendant.

This court has recognized that criminal defendants possess two typesof constitutional rights and that a different waiver standard applies to each.In People v. Ramey, 152 Ill. 2d 41 (1992), this court held that there arefour decisions that ultimately belong to the defendant in a criminal caseafter consultation with his attorney: (1) what plea to enter; (2) whether towaive a jury trial; (3) whether to testify in his own behalf; and (4) whetherto appeal. Ramey, 152 Ill. 2d at 54. This court then stated that:

"Beyond these four decisions, however, trial counsel has theright to make the ultimate decision with respect to matters oftactics and strategy after consulting with his client. Such mattersinclude what witnesses to call, whether and how to conductcross-examination, what jurors to accept or strike and what trialmotions should be made. [Citation.] Such matters also includethe defense to be presented at trial." Ramey, 152 Ill. 2d at 54.

This court then held that the defendant's constitutional right to due processwas not violated when his trial counsel presented a defense againstdefendant's wishes, because the defense theory to be presented at trial isnot one of the matters that a defendant has the ultimate right to decide.Ramey, 152 Ill. 2d at 54.

Subsequently, in People v. Brocksmith, 162 Ill. 2d 224 (1994), thiscourt held that in addition to the decisions specified in Ramey, a defendantalso had the exclusive right to decide whether to submit an instruction ona lesser included offense at the conclusion of the evidence. Brocksmith,162 Ill. 2d at 229. We found that "the decision to tender a lesser includedoffense is analogous to the decision of what plea to enter, and that the twodecisions should be treated the same." Brocksmith, 162 Ill. 2d at 229.Consequently, because defense counsel rather than defendant made theultimate decision to tender a lesser- included offense instruction,defendant's conviction on the lesser- included offense was reversed.Brocksmith, 162 Ill. 2d at 230.

Defendant asserts that the right to confrontation set forth in the UnitedStates and Illinois Constitutions, like the rights specified in Ramey andBrocksmith, belongs solely to a defendant, so that any waiver of the rightmust be made by the defendant personally. The confrontation clauseprovides:

"In all criminal prosecutions, the accused shall enjoy the right*** to be confronted with the witnesses against him ***." U.S.Const., amend. VI; Ill. Const. 1970, art. I,