People v. Pace

• Decision Date: 26 November 1975
• Docket Number: 61074,Nos. 58733,s. 58733
• Citation: 339 N.E.2d 785,34 Ill.App.3d 440
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Brian PACE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 785

339 N.E.2d 785

34 Ill.App.3d 440

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Brian PACE, Defendant-Appellant.

Nos. 58733, 61074.

Appellate Court of Illinois, First District, Fifth Division.

Nov. 26, 1975.

[34 Ill.App.3d 441] Paul Bradley, First Deputy, State Appellate Defender (Margaret Maxwell, Asst. State Appellate Defender), for defendant-appellant.

Bernard Carey, State's Atty., Cook County (Laurence J. Bolon, Linda Ann Miller, Iris E. Sholder, Asst. State's Attys., of counsel), for plaintiff-appellee.

BARRETT, Presiding Justice.

Brian Pace and Robert Montgomery were indicted for attempt murder in violation of Ill.Rev.Stat.1969, ch. 38, § 8--4 and aggravated battery in violation of Ill.Rev.Stat.1969, ch. 38, § 12--4(b)(1) of Justo Rivera and Angel Rivera. Both defendants were released on bail. On October 26, 1970, defendants were in court when their case was reached for trial. At that time defendants' motion to suppress identification was denied. A panel of 50 veniremen was then brought into the courtroom and sworn to answer questions as to their qualification to act as jurors. The venire was given an initial orientation, the indictment was read, and defendants were introduced to the prospective jurors. A list of prospective witnesses was read to the veniremen and, after the judge gave further orientation and admonitions, he adjourned the case until the following morning.

The next morning when court reconvened, defendant Pace failed to appear. On inquiry, Montgomery advised the court that from his conversation with Pace the previous night he believed that Pace had left and was not going to return. The trial court denied the motion of defense counsel to withdraw as counsel for Pace and a later motion for severance and a continuance and ruled that the trial had already begun and would proceed without Pace. Defendant was then tried In obsentia.

The jury returned a verdict of guilty against Pace of attempt murder and aggravated battery fo Justo Rivera and aggravated battery of Angel Rivera. After having postponed sentencing in hopes of securing Pace's presence, the court, on December 10, 1970, pronounced a sentence of 8--20 years on the count of attempt murder of Justo Rivera, and 5 to 10 years on the count of aggravated battery of Angel Rivera, the terms to run consecutively. The court imposed this sentence upon the defendant's return to Chicago in 1972.

Defendant raises three issues on appeal: whether he was deprived of due process of law for being tried In absentia where he voluntarily absented himself from the courtroom after the veniremen were sworn to answer questions, the indictment and a list of possible witnesses was read and the veniremen were given their orientation and admonitions; whether the evidence showed that he was so intoxicated that he could not have formulated the specific intent required to commit the offenses and therefore was not proven guilty beyond a reasonable doubt; whether his consecutive sentence of 5--10 years for aggravated battery and 8 to 20 years for attempt murder should be reduced in accordance with the sentencing provisions of the Illinois Unified Code of Corrections.

The evidence introduced at trial showed that on the Sunday afternoon of August 10, 1969 Justo Rivera, his wife, their children and Luis Pagan, another child, went to Lincoln Park to play baseball. They took sporting equipment with them, including several mitts, a ball and a bat. Two men approached the family, one of whom was later identified as Robert Montgomery, asked Justo Rivera if they could play. Mr. Rivera told him no and Montgomery walked a short distance away. Defendant at that point proceeded to argue with Justo Rivera, swearing, and threatening to kill him. While Justo Rivera bent over to pick up some of the equipment, Montgomery grabbed and held him from behind, permitting defendant to punch Rivera. Eleven-year old Angel Rivera grabbed the baseball bat and began hitting his father's attackers James O'Kennard testified that he was in Lincoln Park on August 10, 1969 and that he observed defendant hitting a child with a baseball bat and later saw defendant hit Justo Rivera five times on the head with a bat while beign held by Montgomery. He said that he suspected that defendant was under some form of sedation.

on the back and the legs. Defendant stopped hitting Justo Rivera and ran after Angel whom he then kicked in the stomach and hit with the bat. As Justo Rivera, who was still being held by Montgomery, tried to get up and help his son, Pace turned and began to strike Justo Rivera several times with the bat. Luis Pagan found a police canine unit and toured the park with the officer until they found the defendants, whom Pagan identified as [34 Ill.App.3d 443] the assailants. Pace and Montgomery were placed under arrest and were subsequently identified by others who had witnessed the incident. Justo Rivera was taken to the hospital where he remained unconscious for five days. Angel Rivera was permitted to go home after receiving stitches for his facial wounds. The Rivera family subsequently moved back to Puerto Rico, but returned to Chicago for the trial.

Gerald Stevens testified that he observed defendant hitting both Angel and Justo Rivera and that he did not see any aggressive moves on the part of the Rivera family to provoke the attack. He stated that defendant did not appear to be intoxicated or under the influence of drugs because he did not stagger.

Dennis McQuen testified for the defendant that he attended a rock music festival with defendant and Montgomery in Lincoln Park on August 10, 1969 and that they joined three young women with whom they drank some wine. Though the number varied, there were usually at least nine people sitting in a circle sharing numerous quart bottles of wine. He felt defendant was drunk when he left the group because he was no longer well coordinated and seemed very happy.

Robert Montgomery testified that he and defendant sat with some people and drank wine over a period of four or five hours. He estimated that defendant consumed about two quarts of wine. He has no recollection of any of the events between the time he left the group and when he was stopped by the police.

Morgan Lloyd, the arresting officer, testified that on August 10, 1969 he spoke with Luis Pagan about the incident and then proceeded to search for the defendants. He arrested the defendants after they had been identified by Pagan. He said he subsequently spoke with Mr. O'Kennard, Mr. Stevens and the Rivera family.

OPINION

The first issue raised on appeal is whether defendant was deprived of due process of law for being tried In absentia where he voluntarily absented himself from the courtroom after the veniremen were sworn to answer questions, the indictment and a list of witnesses was read and the veniremen were given their orientation and admonitions.

A defendant in a criminal case has a constitutional right to be present at all stages of his trial. (People v. Mallett, 30 Ill.2d 136, 195 N.E.2d 687.) However, a defendant may not prevent his trial by voluntarily absenting himself therefrom, and a defendant in a criminal case who has been released on bail has a duty to present himself in court. (People v. Steenbergen, 31 Ill.2d 615, 203 N.E.2d 404.) It has long been held that where a defendant is at liberty on bail and voluntarily absents himself from his trial after it has begun, he waives the right to be present and the court can proceed without him. Diaz v. U.S., 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500.

Defendant, in arguing that he had absented himself before his trial began, asks this court to rely on the holding of People v. Davis, 39 Ill.2d 325, 235 N.E.2d 634. In that case our Supreme Court in reversing defendant's conviction, stated that it would be a deprivation of defendant's constitutional rights to be tried In absentia where he fails at any time to appear in court for his trial by jury.

The circumstances surrounding the trial in the instant case cannot be compared to those found in Davis. Here, defendant was present in the courtroom on October 26, 1970 at which time his attorney answered that defendants were ready to proceed to trial. Defendants' motion to suppress identification and the testimony relating thereto of three witnesses was heard. After this motion was denied a jury venire was brought into the courtroom. The veniremen were sworn to answer questions as to their qualifications and a preliminary orientation as to their duties was given by the court. The defendants were introduced to the jury, the indictments and a list of possible witnesses was read. After further orientation and admonitions the court recessed until the following morning at which time the selection of the jury commenced. Defendant failed to present himself to the court at that time and the trial continued without him.

Though Davis sets the outer parameter in determining that a defendant may not be tried In absentia where he fails to present himself at any time in court, we are guided by the language in Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 in determining at what stage of a judicial proceeding a defendant's subsequent absence from the courtroom becomes a waiver of his...