People v. McDonald

• Decision Date: 16 May 2001
• Docket Number: No. 3-99-0946.,3-99-0946.
• Citation: 255 Ill.Dec. 584,322 Ill. App.3d 244,749 N.E.2d 1066
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Christopher McDONALD, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

749 N.E.2d 1066

322 Ill. App.3d 244

255 Ill.Dec. 584

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Christopher McDONALD, Defendant-Appellant.

No. 3-99-0946.

Appellate Court of Illinois, Third District.

May 16, 2001.

Michael J. Brennan (argued), Orland Park, for Christopher McDonald.

John X. Breslin, Deputy Director, State's Attorneys Appellate Prosecutor, Ottawa, James Glasgow, Will County State's Attorney, Joliet, Terry A. Mertel (argued), State's Attorneys Appellate Prosecutor, Ottawa, for the People.

Justice LYTTON delivered the opinion of the court:

Defendant Christopher McDonald was convicted of first degree murder, two counts of aggravated battery with a firearm, aggravated discharge of a firearm, and unlawful use of a weapon by a felon. On appeal, he claims that the trial court abused its discretion: (1) when it denied his motion to dismiss the indictment after ex parte hearings on material witness bonds; (2) when it denied a motion for a mistrial after prosecution testimony about bloodhound evidence; and (3) in sentencing defendant. We affirm.

On February 9, 1999, John Gholston was driving a stolen car with three passengers, Derrick Gholston, Lucias Byes and Courtney Ward. As Gholston parked the car, defendant came up to the vehicle, and an argument ensued. When John Gholston got out of the car, defendant shot him; defendant then shot inside the car wounding Derrick Gholston and Lucias Byes. Courtney Ward escaped from the vehicle without injury. John Gholston died as aresult of the shooting.

After defendant was indicted, the State petitioned the court for material witness bonds for Byes, Ward and Raymond Keyes, a potential witness to an inculpatory statement that defendant purportedly made. Each petition alleged that the witness feared for his safety because Derrick Gholston had been shot and killed on February 20, 1999. Byes' petition also alleged that he planned on leaving the Joliet area.

Neither defendant nor counsel received copies of the petitions or notice of the hearings on the material witness bonds, and neither was present at the hearings. Defendant's counsel later found out about the hearings and filed a motion to dismiss the indictment, which the court denied. A jury found defendant guilty of first degree murder, two counts of aggravated battery with a firearm, aggravated discharge of a firearm, and unlawful use of a weapon by a felon.

I. THE MATERIAL WITNESS BOND HEARINGS

A.

In Illinois, material witness bonds are a statutorily authorized procedure. 725 ILCS 5/109-3(d) (West 1998). Generally, section 109-3 concerns preliminary examinations, or hearings, for felony defendants. If a defendant is held to answer after a preliminary hearing, the judge "may require any material witness for the State or defendant to enter into a written undertaking to appear at the trial." 725 ILCS 5/109-3(d) (West 1998). The court can then order the witness to execute a recognizance bond which provides for a forfeiture of a sum certain in the event the witness fails to appear. 725 ILCS 5/109-3(d) (West 1998).

When a witness is brought before it, the court must decide whether facts exist to warrant requiring a recognizance bond. State ex rel. Howard v. Grace, 18 Minn. 398, 401 (1872). Generally, if the court determines that the witness is material and that there is a danger that the testimony will be lost, the court may take security, including a recognizance bond, to insure the witness' attendance. Howard, 18 Minn, at 402. Where confinement is contemplated for one not charged with a crime, a court should be very circumspect in granting material witness bonds. State v. Reid, 114 Ariz. 16, 25, 559 P.2d 136, 145 (1976). A court must balance the need for a witness to appear at trial with the witness' constitutional right to freedom from unnecessary restraint. Goodrich v. Warden, 137 N.Y.S.2d 437, 438 (Sup.Ct.1954).

In this case, defendant argues that his constitutional right to be present was violated when each of the material witness bonds were issued at ex parte hearings. Neither defendant nor his attorney had notice of the hearings. Indeed, defendant says that he never would have known about them except for an accidental discovery.

The State contends that defendant had no right to appear at the hearings and cites several cases involving pretrial or posttrial motions to support its argument.¹ In all of the cited cases, however, defendant or counsel had notice, and counsel attended the hearing. Here, neither counsel nor defendant received notice.

Defendants have the right to appear and defend themselves in person at all stages of trial. U.S. Const., amend. XIV; Ill. Const.1970, art, I, §§ 2, 8; People v. Mallett, 30 Ill.2d 136, 195 N.E.2d 687 (1964). A defendant should have notice of every stage of trial. The State and defendant appear to agree that the material witness bond hearing was a stage of defendant's trial. There is no question that he should have had notice of the filing of the petitions and the hearings, and it was clear error not to have given him notice.

B.

Defendant does not argue that the hearing alone was a critical stage of his trial, but he does claim that prejudice flowed from the lack of notice because the trial court was tainted by the allegations in the petitions.

A defendant's right to be present is not absolute. People v. Jones, 185 Ill. App.3d 208, 133 Ill.Dec. 324, 541 N.E.2d 161 (1989). A defendant is guaranteed the right to be present at any stage of a criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure (People v. Kubat, 94 Ill.2d 437, 493-94, 69 Ill.Dec. 30, 447 N.E.2d 247, 272 (1983)), or if it involves a defendant's substantial rights (People v. Martine, 106 Ill.2d 429, 439, 87 Ill.Dec. 905, 478 N.E.2d 262, 266 (1985)).

Although a material witness bond hearing would not, under normal circumstances, involve defendant's substantial rights or contribute to the fairness of the outcome of the procedure, defendant argues that prejudice arose because the petitions alleged that the witnesses feared for their safety because of the subsequent murder of Derrick Gholston and that ex parte hearings afforded the prosecution an opportunity to present "inflammatory" conclusions to the court. Because of this claimed prejudice, he contends that he was foreclosed from opting for a bench trial since the trial court could not fairly try the case. Thus, he was locked into a jury trial, which contributed to the unfairness of the proceedings. See generally People v. Kubat, 94 Ill.2d 437, 493-94, 69 Ill.Dec. 30, 447 N.E.2d 247, 272 (1983).

Defendant has not met his burden of showing that the petitions prejudiced the trial court. The petitions simply claim that the witnesses feared for their safety and note that the murder of Derrick Gholston is under investigation. Defendant is not referenced in either allegation.

Furthermore, our review of the record of the hearings shows no "inflammatory" communication concerning either the facts of the case or Derrick Gholston's murder. Instead, the very short hearings included only a statement by the court of what a material witness bond is, the amount of the recognizance bond, and a short explanation of notices for trial and the effect of subpoenas and delays. Since we find no evidence of prejudice to the trial judge, the error was harmless.

C.

Defendant argues that without the opportunity to examine witnesses and lessen the negative impact on the court, his substantial rights were violated.

The reach of the Illinois material witness statute is very broad. Yet, the hearing on material witness bonds has a very narrow scope. The only issues to examine are whether: (1) the defendant has been held to answer, i.e., a finding of probable cause at the preliminary hearing; (2) the witness is material; (3) a written undertaking should be required of the witness; and (4) the witness should be required to execute a recognizance bond, and, if so, in what amount. See 725 ILCS 5/109-3(d) (West 1998). Any examination by the defendant would be limited to these issues, and no others could have been explored at the hearings.

A trial court has considerable discretion to issue material witness bonds. 725 ILCS 5/109-3(d) (West 1998). See generally U.S. ex ret. Cunningham v. Barry, 25 F.2d 733 (E.D.Pa.1928),

rev'd on other grounds, 29 F.2d 817 (3rd Cir.1928),

rev'd on other grounds, 279 U.S. 597, 49 S.Ct. 452, 73 L.Ed. 867 (1929). A trial court should look at several factors in exercising its discretion, including the materiality of the testimony, the diligence required to produce the witness if no bond is issued, and the likelihood of concealment or flight. Although the Illinois statute does not require the witness to be a flight risk, flight or concealment is the ostensible reason for the use of material witness bonds in most cases. See generally R. Carlson and M. Voelpel, Material Witness and Material Injustice, 58 Wash. U. L.Q. 1 (1980).

Defendant does not claim that the witnesses were not material or that recognizance bonds of $100,000 in the event they did not appear at trial were inappropriate. We are unable to determine what defendant could have done or gained at the hearings that would have affected his claim of potential trial court prejudice. It is difficult to see how defendant's presence at the hearings could have affected the trial judge in any way. Any information gained by defendant's examination of the witnesses at the hearings would not have been helpful to defendant.

Moreover, at the hearing on his motion to dismiss the indictment, defendant was fully aware of the petitions and had access to the record of the material witness bond hearings. At that point, he could have asked for a substitution of judge. He did not. He chose instead to adhere to his jury demand.

Since we find no due process violation, we affirm the trial court's denial of defendant's motion to...