People v. Lynn

• Decision Date: 22 October 1980
• Docket Number: No. 79-362,79-362
• Citation: 44 Ill.Dec. 939,89 Ill.App.3d 712,412 N.E.2d 15
• Parties: , 44 Ill.Dec. 939 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Patrick LYNN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 15

412 N.E.2d 15

89 Ill.App.3d 712, 44 Ill.Dec. 939

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Patrick LYNN, Defendant-Appellant.

No. 79-362.

Appellate Court of Illinois, Second District.

Oct. 22, 1980.

Mary Robinson, Deputy State Appellate Defender, Paul J. Glaser, Asst. State Appellate Defender, Elgin, for defendant-appellant.

Theodore F. Floro, State's Atty., Woodstock, Phyllis J. Perko, Cynthia N. Schneider, State's Attys. Appellate Service Commission, Elgin, for plaintiff-appellee.

SEIDENFELD, Presiding Justice:

Patrick Lynn was convicted in a jury trial of violation of bail bond (Ill.Rev.Stat.1975, ch. 38, par. 32-10) and sentenced to sixteen months imprisonment, the sentence to run concurrently with a pending sentence imposed in a Federal court. He appeals, contending that he was not proved guilty beyond a reasonable doubt. Alternatively he claims reversible trial error in the failure to appoint a special prosecutor and allowing the State's Attorney to testify as a rebuttal witness.

In November, 1975, the defendant was arrested and charged with deceptive practices for stopping payment on a check to a car dealer who had installed a dashboard in his car. He appeared regularly in court on this matter without an attorney. He testified at trial that in April, 1976, he received a letter from the Clerk of the Circuit Court telling him that the charge would be dropped on the next court call. Mr. Lynn testified he then called the office of the State's Attorney at which time an Assistant State's Attorney confirmed this and told him he need not appear in court on that day. The deceptive practices case was subsequently dismissed.

The State, however, had filed felony theft charges against the defendant arising out of the same incident. He was arrested in Wisconsin on the felony charge and when no extradition papers arrived, the defendant voluntarily surrendered himself. The defendant made bail and was released on July 7, 1976. The matter was continued until August 30, 1976, so that the defendant could obtain counsel. On August 30th the defendant failed to appear, his bond was forfeited, and a bench warrant was issued. The defendant did not appear in court for thirty days thereafter and, in fact, had left the jurisdiction.

The defendant stated at trial that he had not appeared in court because he had been led to believe that this case also would be dropped. Defendant said he based his belief on information he obtained from a Cook County Deputy Sheriff who was a friend of the family. The Deputy Sheriff told Mr. Lynn that he had spoken to the dealer, and that the dealer had been told that the State would drop the case. The defendant also testified that he called the Clerk of the Court, who thought the case would be dismissed. He then testified he talked to McHenry County State's Attorney William Cowlin, who told him the case would be dropped and that he need not appear.

The defendant was subsequently arrested on fugitive warrants in South Bend, Indiana, in Michigan and in Elkhart, Indiana. The defendant was not extradited except on the last fugitive warrant. The defendant testified he believed that the arrests were part of a course of harassment practiced against him by the McHenry County State's Attorney office. At the time of trial the defendant had pending a $1,500,000 law suit against State's Attorney Cowlin and Assistant State's Attorney Mengeling, along with prosecutors in Michigan, Wisconsin, and Indiana, charging harassment.

An information was filed on April 13, 1978, charging defendant with violation of bail bond because of his failure to appear in court on August 30, 1976, or thirty days thereafter. At a preliminary hearing on April 13, 1978, the defendant was arraigned on both the bail bond violation and the underlying theft charge. The court set no bail in the theft case but set bail of $25,000 in the bond violation case. On May 2, 1978, the underlying felony charge was nolle prossed.

In rebuttal State's Attorney William Cowlin testified that he had no telephone conversation with the defendant at any time in July, August or September, 1976, and that he had never told defendant that he would not have to appear in court.

To sustain a conviction for violation of bail bond under the statute, the State must show that the defendant forfeited bail, failed to surrender within thirty days thereafter and that the failure to surrender was willful. (People v. Albarran, 40 Ill.App.3d 344, 346, 352 N.E.2d 379 (1976).) For the purpose of this statute an act is performed willfully when it is performed knowingly. (40 Ill.App.3d at 347. See, also, Ill.Rev.Stat.1975, ch. 38, par. 4-5). "Knowingly" is used to describe the mental state "in which a person, while not having an actual intent to accomplish a specific wrongful purpose, is consciously aware of the nature of his conduct or of the result which will (or which is practically certain to) be caused, or of the circumstances under which he acts, as described by the statute defining the offense." (Committee Comments, S.H.A., Ch. 38, Par. 4-3 (1961) at 256). Willfulness may be established by circumstantial evidence. (People v. Zazzetti, 6 Ill.App.3d 858, 863, 286 N.E.2d 745 (1972).) An innocent or excusable failure to surrender, however, is not punishable. (People v. Arron, 15 Ill.App.3d 645, 648, 305 N.E.2d 1 (1973).) An inability to be in the court because a defendant is in custody elsewhere is an example of excusable failure. (People v. Ratliff, 65 Ill.2d 314, 319-20, 2 Ill.Dec. 729, 357 N.E.2d 1172 (1976).) The fact that a defendant does not appear within a reasonable time to explain any confusion he may have over his need to appear but instead leaves the jurisdiction and remains away has been held to show an intention not to appear. People v. Arron, 15 Ill.App.3d at 649, 305 N.E.2d 1.

Defendant does not contest the fact that he was absent from the court on August 30, 1976, and for thirty days thereafter. He contends that his absence was not willful, however. His argument is that he innocently relied on statements by the Court Clerk of McHenry County and its State's Attorney; and that he was also relying on the previous handling of the deceptive practices case which was nolle prossed in determining that he did not have to appear in court on August 30th. In the deceptive practices case, the defendant was informed by the Clerk of the Court and an Assistant State's Attorney that the case would be dismissed and also informed by the Assistant State's Attorney that he need not appear. Defendant did not appear and the case was dismissed as planned. The defendant testified that the same process was followed in the theft case so that he concluded that it was logical that he should rely on the State's Attorney's statements and the statements of Clerk of the Court that he need not appear.

Defendant also argues that his conduct after his arrest indicated that he did not intend to avoid criminal prosecution. He argues that he appeared in the McHenry County Circuit Court approximately twenty-one times and in courts in other states approximately fifteen times in connection with the theft charge; that he appeared in court twenty-six times in connection with the violation of the bail bond charge; and that these circumstances rebut the characterization that his absence from court between August 30th and September 30th, 1976, was willful, but rather raised the appearance that the State's Attorney was continually harassing him.

The arguments, however, raise a question of credibility which the trier of facts could resolve against the defendant. His testimony as to conversations with court personnel and officers was directly contradicted. His claim that he was being...