People v. Johnston
| Decision Date | 03 September 1987 |
| Docket Number | No. 4-87-0032,4-87-0032 |
| Citation | 160 Ill.App.3d 536,513 N.E.2d 528 |
| Parties | , 112 Ill.Dec. 114 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Paul E. JOHNSTON, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Daniel D. Yuhas, Deputy Defender, Office of State Appellate Defender, Springfield, Jane Raley, Asst. Defender, for defendant-appellant.
Jeffrey K. Davison, State's Atty., Decatur, Kenneth R. Boyle, Director, State's Attys. Appellate Pros., Springfield, Robert J. Biderman, Deputy Director, Perry Lee Miller, Staff Atty., for plaintiff-appellee.
On August 27, 1986, the defendant, Paul E. Johnston, was arrested for driving while license was suspended. (Ill.Rev.Stat.1985, ch. 95 1/2, par. 6-303.) The defendant entered a plea of not guilty and was released on a recognizance bond on August 29, 1986. The defendant appeared for pretrial on October 14, 1986, but failed to appear for all subsequent hearings. On November 26, 1986, following a jury trial in absentia, the defendant was convicted. On February 6, 1987, the defendant was sentenced in absentia to 30 days in jail and fined $250.
The defendant appeals his conviction and sentence and in support thereof maintains: (1) the trial court erred by conducting his trial in absentia; (2) trial in absentia was improper as he did not receive adequate notice of his trial date; (3) the State failed to establish his identity beyond a reasonable doubt; (4) the trial court erred in imposing a $250 fine; and (5) he should be given credit for his pretrial detention. We affirm in part and remand for resentencing.
On August 27, 1986, at approximately 9:40 p.m., police officer Christopher Stenger, of Mt. Zion, Illinois, stopped a car for having a burned-out tail light. Stenger asked the driver for his license. The driver produced a license which identified himself as Paul Johnston.
Stenger then proceeded to contact police headquarters requesting a status check. The radio dispatcher ran the license through the computer. According to the Secretary of State's information, Paul Johnston's license was suspended. Upon receipt of this information, Stenger placed the driver under arrest for driving while license was suspended. On August 28, 1986, the defendant entered a plea of not guilty. A public defender was appointed and the case was set for pretrial on October 14, 1986, with jury trial on October 20, 1986. On August 29, 1986, the defendant was released on a recognizance bond. The recognizance bond, signed by the defendant, contained a certificate acknowledging his understanding of the possibility of waiving his constitutional rights by failing to appear, thereby entitling the court to proceed to trial in his absence. The defendant was additionally informed of his duty to notify the clerk, within 24 hours, of any change of address.
On October 14, 1986, the defendant appeared for pretrial conference and the cause was reallotted for jury trial on November 17, 1986, with pretrial set for November 12, 1986. On November 12, 1986, the defendant failed to appear and bond was ordered forfeited. Notice of forfeiture of bond was sent to the defendant by certified mail, but was returned.
On November 20, 1986, the court, on its own motion, set the cause for jury trial in absentia. On November 26, 1986, the defendant again failed to appear. Over defense objection, the case proceeded to jury trial.
At trial, Stenger testified as to the circumstances preceding the defendant's arrest. Stenger described the driver of the vehicle as a "white male, about 5 foot, 10 inches tall, about 150 pounds, blonde hair and glasses." Stenger then identified People's exhibit No. 1 as a photograph of Johnston, the driver of the car he stopped on the night in question. He further stated that the photograph was a fair and accurate depiction of that individual. The photograph was not admitted into evidence.
Additionally, the State introduced records from the office of the Secretary of State indicating defendant's license was revoked at the time of his arrest. The jury found the defendant guilty of driving a motor vehicle while his license was suspended. The court denied defendant's motion for a judgment notwithstanding the verdict and the defendant was subsequently sentenced to 30 days in jail and a $250 fine.
The defendant argues that Illinois law does not provide for trials in absentia when a party is charged with a misdemeanor. The defendant hinges his entire argument on section 115-4.1 of the Code of Criminal Procedure of 1963 (Code) which provides in pertinent part:
"When a defendant after arrest and an initial court appearance for a non-capital felony, fails to appear for trial, at the request of the State and after the State has affirmatively proven through substantial evidence that the defendant is willfully avoiding trial, the court may commence trial in the absence of the defendant." (Emphasis added.) (Ill.Rev.Stat.1985, ch. 38, par. 115-4.1(a).)
Since the statute expressly permits only those who have been charged with a noncapital felony to be tried in absentia, the defendant maintains it was reversible error for the court to try him in absentia on a misdemeanor charge.
There is no dispute that section 115-4.1(a) does not allow for trial in absentia in misdemeanor cases. This does not, however, preclude the possibility of a trial in absentia on a misdemeanor charge where a defendant waives his constitutional right to be present. People v. Hall (1985), 134 Ill.App.3d 836, 89 Ill.Dec. 644, 480 N.E.2d 1387.
In Hall, the defendant pleaded guilty to misdemeanor battery and was sentenced to probation. Subsequently, the State filed a petition to revoke probation and upon defendant's failure to appear at the probation revocation proceedings, the court proceeded in absentia. The appellate court found the defendant, who had been properly admonished (Ill.Rev.Stat.1985, ch. 38, par. 113-4(e)), and voluntarily absented himself from court, waived his right to be present. People v. Hall (1985), 134 Ill.App.3d 836, 89 Ill.Dec. 644, 480 N.E.2d 1387.
While constitutional guarantees provide an accused with the absolute right to be present in court at every stage of trial, this right may be waived. (People v. Owens (1984), 102 Ill.2d 145, 79 Ill.Dec. 654, 464 N.E.2d 252, cert. denied (1984), 469 U.S. 963, 105 S.Ct. 362, 83 L.Ed.2d 297.) To allow a defendant to stop trial proceedings by his voluntary absence would allow him to profit from his own wrong. (People v. Steenbergen (1964), 31 Ill.2d 615, 203 N.E.2d 404, cert. denied (1965), 382 U.S. 853, 86 S.Ct. 104, 15 L.Ed.2d 92.) Consequently, when an accused voluntarily and willingly absents himself from court proceedings, he is deemed to have waived his right to be present, and cannot claim any advantage on account of his absence. (People v. Owens (1984), 102 Ill.2d 145, 79 Ill.Dec. 654, 464 N.E.2d 252, cert. denied (1984), 469 U.S. 963, 105 S.Ct. 362, 83 L.Ed.2d 297.) The decision to proceed to trial in absentia is a discretionary matter within the power of the trial court. People v. Hall (1985), 134 Ill.App.3d 836, 89 Ill.Dec. 644, 480 N.E.2d 1387; People v. Powell (1981), 95 Ill.App.3d 93, 50 Ill.Dec. 600, 419 N.E.2d 708.
Upon entering a plea of not guilty, a defendant must be advised that a failure to appear in court when required will constitute a waiver of the right to confront witnesses and trial may proceed in his absence. (Ill.Rev.Stat.1985, ch. 38, par. 113-4(e).) Inherent in this admonition is the power of the court to conduct a trial in absentia on a misdemeanor charge. (See People v. Hall (1985), 134 Ill.App.3d 836, 89 Ill.Dec. 644, 480 N.E.2d 1387.) A defendant, who is properly admonished that trial might proceed in his absence, has notice of his trial date, and voluntarily fails to appear offering no explanation for his absence, may be tried in absentia. People v. Broyld (1986), 146 Ill.App.3d 693, 100 Ill.Dec. 267, 497 N.E.2d 147; People v. Hall (1985), 134 Ill.App.3d 836, 89 Ill.Dec. 644, 480 N.E.2d 1387.
While Illinois law specifically provides for trial in absentia in all "non-capital felony" cases (Ill.Rev.Stat.1985, ch. 38, par. 115-4.1(), case law has long since provided for trial in absentia in misdemeanor cases. (People v. Hall (1985), 134 Ill.App.3d 836, 89 Ill.Dec. 644, 480 N.E.2d 1387; People v. Powell (1981), 95 Ill.App.3d 93, 50 Ill.Dec. 600, 419 N.E.2d 708, citing City of Bloomington v. Heiland (1873), 67 Ill. 278; see also People v. Carroll (1982), 109 Ill.App.3d 1041, 65 Ill.Dec. 573, 441 N.E.2d 888 (); People v. Cooley (1945), 326 Ill.App. 229, 61 N.E.2d 762 (); People v. Beck (1922), 305 Ill. 593, 137 N.E. 454 (); Carter v. People (1905), 122 Ill.App. 77 ().) Thus, although the statute relied upon by the defendant explicitly applies to felony cases, authority exists in support of trial in absentia where misdemeanor charges are pending. People v. Hall (1985), 134 Ill.App.3d 836, 89 Ill.Dec. 644, 480 N.E.2d 1387.
The record herein indicates that on August 29, 1986, the defendant was released on a recognizance bond. The bond, signed by the defendant, acknowledged his constitutional rights and the possibility of waiver thereof. Defense counsel conceded that the defendant had been properly admonished per section 113-4(e) (Ill.Rev.Stat.1985, ch. 38, par. 113-4(e)). Based upon the court's compliance with the statute, and defendant's voluntary absence, it was well within the court's discretionary power to proceed to trial in absentia.
Defendant's assertion of inadequate notice is also without merit. In order to establish a prima facie case of wilful avoidance, the State must show that a defendant is advised of the fact that his failure to appear...
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