People v. Johnson

• Decision Date: 16 December 1997
• Docket Number: No. 1-95-3680,1-95-3680
• Citation: 293 Ill.App.3d 915,228 Ill.Dec. 307,689 N.E.2d 179
• Parties: , 228 Ill.Dec. 307 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Larry JOHNSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 179

689 N.E.2d 179

293 Ill.App.3d 915, 228 Ill.Dec. 307

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Larry JOHNSON, Defendant-Appellant.

No. 1-95-3680.

Appellate Court of Illinois,

First District, Second Division.

Dec. 16, 1997.

Rehearing Denied Jan. 16, 1998.

Michael J. Pelletier, Deputy Defender, Office of State Appellate Defender (Barbara Kamm, of counsel), for Defendant-Appellant.

Richard A. Devine, State's Attorney of Cook County (Renee Goldfarb, Alan J. Spellberg, Arthur T. Heil, of counsel), for Plaintiff-Appellee.

Presiding Justice McNULTY delivered the opinion of the court:

Prosecutors charged defendant, Larry Johnson, with violation of probation. The trial court, after taking testimony from a witness when defendant was in the hospital, found him guilty as charged. Defendant appeals from the judgment.

In 1990 the Cook County grand jury returned three indictments charging defendant with delivery on three separate occasions of less than one gram of

"a substance containing a certain controlled substance, to wit: cocaine, in violation of chapter 56-1/2, section 1401 d." (Emphasis omitted.)

The trial court, in a bench trial, found defendant guilty on all three counts. On February 21, 1991, the court sentenced defendant to four years' probation on each charge, with the first year being intensive probation, and all three sentences to run concurrently. The judge emphasized that he imposed a lenient sentence to give defendant an opportunity to get help for his drug dependency through Treatment Alternatives to Street Crimes.

On May 13, 1991, police arrested defendant and charged him with possession of heroin. Prosecutors petitioned for new sentences on the three original possession charges because defendant violated the conditions of his probation. The charge remained pending by agreement of the parties for four years, while defendant responded to charges in an unrelated criminal trial which resulted in his acquittal.

At a status hearing on June 30, 1995, prosecutors informed the court that the heroin had been destroyed, so they needed to bring in the original chemist who had since moved to Arizona. Defendant demanded a speedy trial. The court set a trial date of July 27, 1995.

On the scheduled trial date defense counsel informed the court that defendant had been admitted to the cardiac unit of Cook County Hospital on Sunday, July 23, 1995, and doctors expected to release him by Sunday, July 30. Counsel called prosecutors on July 26, 1995, shortly after he learned that defendant would not be available on the scheduled trial date, but the chemist had already flown into Chicago. Defense counsel requested a continuance until Monday, July 31, so that defendant could appear in court. The prosecutor told the court that the State had to pay the chemist's airfare plus $100 per day and expenses. Defense counsel strenuously objected to beginning trial without defendant.

Although the judge accepted defense counsel's representations that defendant had been admitted to the hospital, he said:

"I don't see why the State should have to [bear] the expense of bringing this witness in. * * *

* * * * * *

People shouldn't demand things that they're not prepared to demand.

* * * * * *

* * * I'm going to let the State put on this witness due to the fact that the witness has come from out of state * * * at the expense of the State.

I don't know the circumstances surrounding [defendant's] admittance into the hospital * * *. * * * [I]t's set for a date certain that he can get out, so * * * it is not a life threatening situation. He was to come to court. I don't know under what circumstances he is in the hospital, but I'm going to take this witness' testimony under oath in open court subject to cross examination."

Defense counsel moved for production of the narcotics for testing and for dismissal of the charge because the prosecutor could not produce the narcotics. The trial court denied the motions.

The chemist testified that she received a sealed evidence envelope containing 22 tinfoil packets. She tested two of the packets and found they contained heroin.

Defendant came to court when trial resumed a month later. Officer John Greco testified that on May 13, 1991, a citizen complained about the conduct of a passenger in a car that the citizen pointed out. Greco stopped the car and found defendant sitting in the passenger seat with a bulge in his pants pocket. The officer retrieved a plastic bag containing 22 tinfoil packets from that pocket. Greco arrested defendant and inventoried the bag.

The court found defendant guilty of violating his probation. At the sentencing hearing defense counsel agreed that defendant had been on probation for three Class 2 felonies when Greco caught him with the heroin. The court noted that defendant's extensive criminal history justified a severe sentence, especially because defendant violated probation less than three months after the court afforded him considerable leniency. The judge said, "I see no reason to impose concurrent sentences." The court sentenced defendant to six years in the custody of the Department of Corrections on each of the charges, with the sentences to run consecutively, for a total of 18 years.

Defendant argues on appeal that the finding of a violation of probation must be reversed because the court began trial and took testimony from a witness in defendant's absence. The Illinois Constitution of 1970 guarantees that all defendants in criminal prosecutions "shall have the right to appear and defend in person and * * * to be confronted with the witnesses against him." Ill. Const.1970, art. I, § 8. The statute governing probation revocation proceedings expressly applies confrontation rights to such proceedings. 730 ILCS 5/5-6-4(c) (West 1994). "[T]rials in absentia should be abhorred because of their inherent unfairness to the defendant." People v. Coppage, 187 Ill.App.3d 436, 442, 135 Ill.Dec. 34, 543 N.E.2d 269 (1989).

A defendant may waive his confrontation right by voluntarily failing to appear, and the court then has discretion to try the defendant in absentia. People v. Sherrod, 279 Ill.App.3d 383, 387, 216 Ill.Dec. 138, 664 N.E.2d 1066 (1996). When a defendant challenges a trial court's decision to hold a probation revocation hearing in his absence, "[t]he issue then becomes whether defendant voluntarily waived his right to be present." People v. Hall, 134 Ill.App.3d 836, 841, 89 Ill.Dec. 644, 480 N.E.2d 1387 (1985).

The trial court here accepted defense counsel's representation that defendant was hospitalized on the first day of trial. Although Illinois courts have not squarely addressed this issue, all other state courts in which the situation has arisen have held that hospitalization, at least in the absence of a voluntary act like a suicide attempt, shows the defendant's absence is not voluntary, and therefore the court must not take testimony. E.g., Godwin v. State, 501 So.2d 154, 155 (Fla.Dist.Ct.App.1987); People v. Valdez, 135 A.D.2d 761, 762, 522 N.Y.S.2d 666, 667 (1987); Maupin v. State, 694 P.2d 720, 723 (Wyo.1985).

The prosecution, relying on People v. Bean, 137 Ill.2d 65, 147 Ill.Dec. 891, 560 N.E.2d 258 (1990), argues that this court should affirm the judgment because "defendant offers no evidence nor argument of how his presence would have aided defense counsel in the cross examination of this technical witness." In Bean the trial court questioned six members of the venire in chambers without permitting defendant to come into chambers. Because defendant objected neither at trial nor in his post-trial motion, our supreme court reviewed the issue only for plain error. The court held:

"[N]o plain error occurred because, although defendant's broad right of presence was improperly denied and could have affected the impartiality of the jury, defendant's absence * * * did not, in fact, have the slightest effect on the impartiality of the jury selected. * * *.

Defendant tries to support his position by citing cases he believes established an absolute, inflexible right of presence throughout trial in Illinois; but each of these cases shares one significant limiting fact: The defendants were absent when witnesses testified." Bean, 137 Ill.2d at 81-82, 147 Ill.Dec. 891, 560 N.E.2d 258.

Here, by contrast, defendant properly preserved his objection to the court's decision to receive testimony in his absence. Because the court's decision to proceed when defendant's absence was not voluntary violated his substantial constitutional and statutory right to defend in person and confront the witnesses against him, the judgment must be reversed. See People v. Fields, 255 Ill.App.3d 787, 195 Ill.Dec. 754, 629 N.E.2d 62 (1993) (sentence reversed due to defendant's involuntary absence, without showing of prejudice).

Defendant raises two further issues which we choose to address here because they are likely to arise again on remand. The original indictments for the three possession counts all charged defendant with possession of cocaine in violation of "chapter 56-1/2, section 1401 d" of the Illinois Revised Statutes. Although defense counsel at sentencing agreed that the indictments charged him with Class 2 felonies, the section in force at the time of the offense provided:

"[I]t is unlawful for any person knowingly to * * * deliver * * * a controlled or counterfeit substance or controlled substance analog. * * *

* * * [A]ny person who violates this Section with respect to:

* * * * * *

(c) any other amount of a controlled or counterfeit substance * * * which is a narcotic drug is guilty of a Class 2 felony. * * *

(d) any other amount of a controlled or counterfeit substance * * * which is not a narcotic drug is guilty of a Class 3 felony." Ill.Rev.Stat.1989, ch. 56 1/2, par. 1401.

Defendant argues that on remand the prosecution must be limited to proving that he violated probation on three Class 3 felonies, rather...