People v. Garner

• Decision Date: 26 March 1992
• Docket Number: No. 71365,71365
• Citation: 590 N.E.2d 470,168 Ill.Dec. 833,147 Ill.2d 467
• Parties: , 168 Ill.Dec. 833 The PEOPLE of the State of Illinois, Appellant and Cross-Appellee, v. William GARNER, Appellee and Cross-Appellant.
• Court: Illinois Supreme Court

Page 470

590 N.E.2d 470

147 Ill.2d 467, 168 Ill.Dec. 833

The PEOPLE of the State of Illinois, Appellant and Cross-Appellee, v. William GARNER, Appellee and Cross-Appellant.

No. 71365.

Supreme Court of Illinois.

March 26, 1992.

Neil F. Hartigan and Roland W. Burris, Atty. Gen., Springfield, and Jack O'Malley, State's Atty., Chicago (Terence Madsen, Asst. Atty. Gen., Chicago, and Renee G. Goldfarb, Randall E. Roberts, and Kenneth T. McCurry and Howard D. Weismann, Asst. State's Attys. of counsel), Chicago, for the People.

Michael J. Pelletier, Deputy Defender, and Mitchell B. Katlen and Linda Eigner, Asst. App. Defenders, Office of the State Appellate Defender, Chicago, for appellee and cross-appellant.

Justice FREEMAN delivered the opinion of the court:

Defendant, William Garner, was charged with armed robbery, armed violence and unlawful restraint. (Ill.Rev.Stat.1981, ch. 38, pars. 18-2, 33A-2, 10-3.) Following a jury trial in the circuit court of Cook County, defendant was convicted in absentia and sentenced, as a habitual criminal (Ill.Rev.Stat.1981, ch. 38, par. 33B-1), to life imprisonment.

The appellate court reversed defendant's convictions, holding that the trial court's failure to admonish defendant, prior to conducting trial in defendant's absence, of his right to be present at trial constituted reversible error. (205 Ill.App.3d 1105 (unpublished order under Supreme Court Rule 23).) We granted the State's petition for leave to appeal (134 Ill.2d R. 315(a)). Defendant has filed a cross-appeal.

Two issues are presented for our review: (1) whether the trial court's failure to admonish defendant pursuant to section 113-4(e) of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1981, ch. 38, par. 113-4(e)) requires reversal of his conviction; and (2) whether the State's failure to strictly comply with the requirements of section 115-4.1(a) of the Code of Criminal Procedure (Ill.Rev.Stat.1981, ch. 38, par. 115-4.1(a)) requires reversal. We answer the first issue in the affirmative; therefore, we affirm.

FACTS

On February 7, 1981, defendant and a codefendant, John Collins, were arrested on charges of armed robbery. Subsequent to being "booked," defendant complained of chest pains and was taken to St. Elizabeth's Hospital. Defendant's arraignment was set for February 9, 1981. Although not apparent from the record, according to the State, defendant did not appear in court on February 9. On February 19, 1981, a warrant was issued for defendant's arrest.

On March 18, 1981, codefendant Collins appeared in court and was arraigned. Defendant did not appear.

On April 12, 1981, defendant was apprehended. He appeared in court on April 20 and was arraigned on the armed robbery charge. Defendant appeared in court again on May 4 and 26, 1981.

On May 28, 1981, the court reinstated defendant's bond and set the next court date for June 30, 1981. (The record is unclear as to whether defendant appeared in court on May 28.) On June 30, defendant did not appear. Defense counsel reported to the court that he had been with defendant that morning and that defendant was in the hospital with serious injuries. The State's motion for bond forfeiture was entered and continued. The next court date was set for July 6, 1981.

Defendant did not appear on July 6. Defense counsel informed the court that defendant was hospitalized in Columbus Hospital and was scheduled for brain surgery on the following day. The case was continued to July 9 for a status report on the whereabouts of defendant and his prognosis.

There is nothing in the record to evidence that there was any proceeding on July 9. On July 21, 1981, defense counsel informed the court that defendant was not present because he had been hospitalized in Columbus Hospital and, against medical advice, had left the hospital prior to being arrested pursuant to a warrant issued in another courtroom. Counsel stated that he had not heard from defendant since the time of his hospitalization and his whereabouts were unknown. The court revoked defendant's bond and issued a warrant for his arrest.

On August 27, 1981, the court admonished codefendant Collins of the consequences of not appearing for trial. The court informed Collins that the reason it could not try defendant in absentia was because the court had never admonished him. The court then set the "Collins matter" for trial for October 2, 1981, and advised counsel to keep the court advised of any knowledge of defendant's whereabouts.

Defense counsel appeared in court on October 2, 1981. He advised the court that he had the misimpression that the October 2 date was for status and the setting of a trial date. A new trial date, for both defendants, was set for November 2, 1981. The court stated that it thought it could try defendant in absentia and asked the State to take a position on the issue.

No transcript of the November 2 proceeding is included in the record. However, the court's "half-sheet" indicates that there was a proceeding on that date and again on December 1, 1981.

On December 1, 1981, the case was called for trial. Defense counsel informed the court that he mistakenly thought the case was on the call for December 2, and asked that the case be held over until then. Neither defendant was present in court.

The State advised the court that defendant had been given notice of the November 2 trial date. The State acknowledged, however, that defendant had not been given notice of the December 2 trial date. The trial court then instructed the State to have its investigator personally deliver notice of trial, in lieu of delivery by mail, to the last known address of defendant and to be prepared to testify concerning the attempted delivery on the following day.

On December 2, 1981, the case was called for trial. Investigator John Elza testified regarding his efforts to notify defendant of the December 2 trial date. Elza testified that on December 1, 1981, he proceeded to 5590 North River Road in Rosemont in search of defendant. He stated that there was a rather large house, which housed an office, at that address. No one answered at the house/office. He further testified that the River Road address was apparently a trailer park which was in the process of being removed. There were two trailers left on the property with "for sale" signs on them. Elza stated that he was not able to contact defendant at that address, but that he left a copy of the notice of trial at the address.

Elza also testified that, prior to October 2, he had checked the Cook County jail as well as a building located at 2325 South Homan in Chicago in search of defendant. He did not locate defendant in the jail, and there was no response at the South Homan address. (While there is some ambiguity in the record, it appears that this attempted contact was intended to inform defendant of the November 2 trial date.)

The trial court stated that the evidence showed that notice had not been made by certified mail. However, the court stated, the attempted personal notice was "in fact superior to that [by] certified mail." Thus, the court determined that the statutory requirement of notice by certified mail had been satisfied.

Defense counsel confirmed that he had not had contact with defendant since July 1981. However, he stated that he had received a letter from defendant. Counsel revealed portions of the contents of the letter in open court and agreed with the trial judge that the letter indicated defendant's awareness of the pendency of the trial. Defendant was subsequently tried and convicted in absentia.

DISCUSSION

Section 113-4(e)

In this appeal we are called upon to determine the proper application of section 113-4(e) of the Code of Criminal Procedure (Ill.Rev.Stat.1981, ch. 38, par. 113-4(e)). Section 113-4(e) provides:

"If a defendant pleads not guilty, the court shall advise him at that time or at any later court date on which he is present that if he escapes from custody or is released on bond and fails to appear in court when required by the court that his failure to appear would constitute a waiver of his right to confront the witnesses against him and trial could proceed in his absence." (Ill.Rev.Stat.1981, ch. 38, par. 113-4(e).)

The section 113-4(e) admonishment is a "prophylactic measure which is designed both to dissuade defendants from absconding at any time, before or after trial, and to provide for a formal waiver of their right to be present." People v. Partee (1988), 125 Ill.2d 24, 41, 125 Ill.Dec. 302, 530 N.E.2d 460.

Exception

The State entreats us to carve out an exception to the section 113-4(e) admonishment requirement for "experienced criminals," like defendant, who manipulate the rule and, by their absence, preclude the trial court from admonishing them. To that end, the State has provided us with a list of factors to consider in drafting the proposed exception. The State asserts that such an exception is justified because defendant has had a past history of "bail Further, the State maintains that the proposed exception would not offend due process since defendant's voluntary absence constituted an intentional and knowing waiver of his rights. The State argues that based on Taylor v. United States (1973), 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174, the "better reasoned position" is that the section 113-4(e) admonishments are not necessary where a defendant willfully absconds during any stage of his trial. We note that Taylor held that where trial has begun and the defendant absent himself, the trial may proceed in his absence, regardless of whether he has been admonished to that effect.

[168 Ill.Dec. 837] jumping"; is knowledgeable about the law; knew his trial rights; and scorned his duty to appear, which precluded the trial court from admonishing him.

It is not the function of this court to determine what might be a better rule. The legislature is vested with the power to enact laws. Under the doctrine...