People v. McDonald

• Decision Date: 10 April 1992
• Docket Number: No. 2-90-0835,2-90-0835
• Citation: 227 Ill.App.3d 92,169 Ill.Dec. 84,590 N.E.2d 1003
• Parties: , 169 Ill.Dec. 84 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Talmage J. McDONALD, Defendant-Appellant. Second District
• Court: United States Appellate Court of Illinois

Page 1003

590 N.E.2d 1003

227 Ill.App.3d 92, 169 Ill.Dec. 84

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Talmage J. McDONALD, Defendant-Appellant.

No. 2-90-0835.

Appellate Court of Illinois,

Second District.

April 10, 1992.

Rehearing Denied May 13, 1992.

G. Joseph Weller, Deputy Defender, argued, Office of the State Appellate Defender, James E. Wallis, on brief, James W. Buckley, Law Offices of James E. Wallis, Granite City, for Talmadge J. McDonald.

James E. Ryan, DuPage County State's Atty., Wheaton, William L. Browers, Deputy Director, Martin P. Moltz, argued, State's Attys. Appellate Prosecutor, Elgin, for People.

Justice NICKELS delivered the opinion of the court:

After a trial in absentia, defendant was convicted of possession of a controlled substance with the intent to deliver (Ill.Rev.Stat.1987, ch. 56 1/2, par. 1401) and, also in absentia, was sentenced to 10 years' imprisonment. Defendant appeals, asserting that: (1) the trial court abused its discretion in denying defendant's counsel's request for a continuance; (2) the trial court failed to comply with the statutory requirement for a trial in absentia; (3) the trial court's explanation of defendant's absence during voir dire confused the jury in light of the trial court's later admission of evidence of defendant's absence and the State's rebuttal argument of such absence as circumstantial evidence of defendant's guilt; (4) admission of such evidence and argument violated defendant's constitutional rights to remain silent; (5) the trial court abused its discretion in admitting evidence of other uncharged crimes; (6) the trial court abused its discretion in admitting into evidence defendant's photograph; (7) defendant was not proved guilty beyond a reasonable doubt; (8) defendant was denied the effective assistance of counsel; and (9) the court abused its discretion in sentencing defendant to 10 years' imprisonment. We affirm.

On October 27, 1989, special agents of the Du Page and Northeast Metropolitan Enforcement Groups, which are special drug enforcement units, entered defendant's apartment pursuant to a search warrant. Failing to receive a response to their knocks and identification of themselves as police officers, the agents knocked down the front door of defendant's apartment. When the agents entered the apartment, defendant was in the washroom approximately 15 feet from the living room. Defendant's wife and three children were also home.

A closed canvas bag was on a table in the living room of defendant's apartment. The contents of the bag included a canister of 10.6 grams of a white powdery substance containing cocaine, four bags of cannabis, smoking pipes, a grinder, a catch basin, inositol, plastic bags, a portable scale, and pharmaceutical seals, all of which, with the exception of the cannabis and pipes, are commonly used in drug trafficking. Specifically, a grinder and catch basin are used to cut cocaine with inositol, which is then weighed and packaged in small bags and sealed with the pharmaceutical seals. After being "Mirandized," defendant admitted that he had been purchasing cocaine in half ounces for distribution to pay his debts.

Defendant appeared in court on four occasions prior to the beginning of trial, including the scheduled trial date. However, on the scheduled trial date after the court denied defendant's counsel's motion for a continuance, trial was postponed until the following morning to insure that sufficient jurors would be available.

When the case was called the following day, defendant failed to appear. During a brief recess, defendant's counsel unsuccessfully attempted to ascertain why defendant was not present. However, he failed to contact defendant, who had moved without providing his new address to the court as required. A hearing was then held, and the trial court denied defendant's counsel's motion for a continuance and granted the State's motion to proceed in absentia.

The court advised the prospective jurors that "you can't consider the fact that [defendant] doesn't appear or testify." However, after jury selection was complete, the State filed a motion in limine seeking to introduce defendant's absence as evidence of flight and evidence of the cannabis as other crimes evidence demonstrating intent. Over defendant's counsel's objection, the court found the other crimes evidence admissible and indicated that evidence of defendant's flight or absence was admissible as evidence of a consciousness of guilt. The trial court also ruled, over defendant's counsel's objection, that defendant's arrest photo cropped to remove any indication of its origin was admissible.

The State referred to the cannabis in its opening statement and called the deputy clerk to testify that an arrest warrant had been issued for defendant, who had failed to appear for trial although defendant had been present when the trial date was set. Defendant's trial counsel argued in closing that there was no evidence of the reason for defendant's absence, and, based solely on the evidence adduced, defendant's death was an equally plausible explanation. In rebuttal, the State referred to defendant's absence as "a piece of circumstantial evidence that you, ladies and gentlemen [of the jury], can use in deciding whether [defendant] has a consciousness of his own guilt. Why do you think he is not here? It is circumstantial evidence but it tends to show his guilt."

The jury returned a guilty verdict, but defendant was not arrested until after his counsel's post-trial motion attacking the court's evidentiary rulings and the sufficiency of the evidence was denied and after defendant had been sentenced in absentia. A public defender's subsequent motion for a new trial alleging defendant's trial counsel had instructed defendant to absent himself from his trial was also denied after a hearing. The trial court found that defendant's trial counsel's denial that he gave such direction to defendant was more credible. This appeal followed.

The State correctly asserts that many of defendant's alleged errors have been waived by defendant's failure to assert such errors in his post-trial motion. (People v. Enoch (1988), 122 Ill.2d 176, 186-87, 119 Ill.Dec. 265, 522 N.E.2d 1124.) However, defendant asserts that the failure to preserve properly such issues in part denied him the effective assistance of counsel. We must thus consider the substance of defendant's claims to determine if defendant was prejudiced by such alleged defective performance of his trial counsel. (Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693.) In addition, defendant asserts that the "plain error" doctrine (134 Ill.2d R. 615(a)) allows this court to notice errors affecting substantial rights despite a defendant's failure to preserve properly such issues when "the evidence is closely balanced or where the error was of such magnitude that the accused was denied a fair trial." (People v. Lucas (1981), 88 Ill.2d 245, 251, 58 Ill.Dec. 840, 430 N.E.2d 1091; see also People v. Young (1989), 128 Ill.2d 1, 47, 131 Ill.Dec. 78, 538 N.E.2d 453.) Therefore, we will address each of the alleged errors raised by defendant. We begin with defendant's assertion that the trial court abused its discretion in denying his trial counsel's request for a continuance on the eve of trial.

A motion for a continuance is directed to the discretion of the trial court, which will not be reversed absent a showing of an abuse of such discretion. (Ill.Rev.Stat.1987, ch. 38, par. 114-4(e).) A court's refusal to grant a continuance must in some way embarrass the defendant in his defense thereby prejudicing him before such abuse will be deemed to have occurred. (People v. Wilson (1963), 29 Ill.2d 82, 92, 193 N.E.2d 449; People v. Arbuckle (1979), 75 Ill.App.3d 826, 832, 30 Ill.Dec 949, 393 N.E.2d 1296.) Defendant's trial counsel explained that his request for a continuance was for the purpose of seeking another attorney to second chair the trial due to the continuing illness of his law partner, which had been the basis of several prior requests for continuances. However, defendant's trial counsel explicitly advised the court that he was able to proceed with trial despite his request for a continuance. Thus, defendant was neither embarrassed nor prejudiced by the court's denial of his request for a continuance, and the trial court did not abuse its discretion in denying such request. We note that any alleged incompetence as a result of defendant's trial counsel's failure to obtain such continuance merged into the subsequent alleged trial errors asserted by defendant.

Defendant next contends that the trial court failed to comply with the statutory requirements mandated for a trial in absentia. Specifically, defendant asserts that the trial court was required to notify defendant by certified mail of the trial date. (Ill.Rev.Stat.1987, ch. 38, par. 115-4.1(a).) However, the statute provides:

"The court may set the case for a trial which may be conducted under this Section despite the failure of the defendant to appear at the hearing at which the trial date is set. When such trial date is set the clerk shall send to the defendant, by certified mail at his last known address indicated on his bond slip, notice of the new date which has been set for trial." (Ill.Rev.Stat.1987, ch. 38, par. 115-4.1(a).)

Thus, notice by certified mail is required only when the defendant was not present in court when the trial date was set. (People v. Velasco (1989), 184 Ill.App.3d 618, 628-29, 132 Ill.Dec. 781, 540 N.E.2d 521.) Because defendant was present when his trial date was set, no such notice was necessary, and his second asserted error is without merit.

The third issue raised by defendant is that the trial court's statement to the veniremen that as jurors they could not "consider the fact that [defendant] doesn't appear or doesn't testify" was confusing...