People v. Reyna

• Decision Date: 08 July 1997
• Docket Number: No. 3-96-0779,3-96-0779
• Citation: 682 N.E.2d 1191,289 Ill.App.3d 835
• Parties: , 225 Ill.Dec. 114 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Freddy REYNA, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1191

682 N.E.2d 1191

289 Ill.App.3d 835, 225 Ill.Dec. 114

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Freddy REYNA, Defendant-Appellant.

No. 3-96-0779.

Appellate Court of Illinois,

Third District.

July 8, 1997.

Robert Agostinelli, Deputy Defender (court-appointed), Office of Stae Appellate Defender, Ottawa, for Freddy Reyna.

Roy A. Sabuco, Alexander H. Beck, Snyder, Sabuco, Aeschliman & Washburn, P.C., Joliet, John X. Breslin, Deputy Director, State's Attorneys Appellate Prosecutor, Ottawa, James Glasgow, Will County State's Attorney, Joliet, J. Paul Hoffmann, State's Attorneys Appellate Prosecutor, Ottawa, for the People.

Justice McCUSKEY delivered the opinion of the court:

The defendant, Freddy Reyna, was tried in absentia. Following a joint jury trial he was convicted of robbery (720 ILCS 5/18--1 (West 1994)) and aggravated battery (720 ILCS 5/12--4(b)(8) (West 1994)). He was The defendant appeals, arguing: (1) he is entitled to a new trial because his failure to appear at his original trial was not willful; (2) that prosecutorial misconduct denied him a fair trial; (3) that the trial court improperly considered victim impact statements prepared by the victim's parents; and (4) his sentence was excessive and disparate to that of his co-defendants. For reasons which follow, we affirm the defendant's convictions and sentence.

[225 Ill.Dec. 116] sentenced in absentia to 28 years' imprisonment.

FACTS

The record reveals that the defendant was released on bond following his arrest. He failed to appear on the morning of his trial, and the cause was continued until the afternoon. That afternoon, the State presented evidence the defendant was willfully avoiding trial. After hearing the evidence, the trial court concluded the State met the statutory burden (see 725 ILCS 5/115--4.1 (West 1994)) and ordered the defendant to be tried in absentia.

At the defendant's trial, it was established that on the night of September 13, 1995, the victim, Lee Vinsel, was walking in Joliet. He was approached by the defendant, who asked Vinsel if he belonged to a street gang. When Vinsel said he was not in a gang, the defendant grabbed Vinsel's hat and Walkman cassette player. The defendant then handed the hat and cassette player to co-defendant Johnathan Erickson. Vinsel started to walk away, but he was grabbed from behind by the defendant and pulled down. The defendant kicked Vinsel once. The defendant and Erickson then started punching Vinsel. Co-defendant Jose Perez and another man came out of a nearby building and joined the attack. Eventually, Vinsel managed to flee and call the police. The police ultimately returned to the scene of the attack, accompanied by Vinsel. Shortly thereafter, the defendant, Erickson, and Perez were identified by Vinsel and arrested.

Following arguments by counsel, the jury found the defendant guilty of robbery and aggravated battery. The defendant was sentenced in absentia to 28 years' imprisonment. Several days later, the defendant was apprehended by the police. The defendant subsequently filed a motion to reconsider (see 725 ILCS 5/115--4.1(e) (West 1994)). The motion alleged, among other things, that he was absent from trial because of threats made against him by co-defendants Erickson and Perez.

An evidentiary hearing was held on the defendant's motion to reconsider. At the hearing, the defendant's brother-in-law testified he had been told by Erickson and Perez that the defendant would get "his ass whipped" if he went to court. The defendant's brother-in-law further testified that when he told the defendant of these threats, the defendant became scared and moved to another neighborhood in Joliet. The defendant's wife and sister-in-law also testified they had been told of the threats. The trial court denied the defendant's motion to reconsider. The court found the defendant acted willfully in failing to appear. The court further noted that the defendant never contacted his counsel. Finally, the court concluded: "There is no question that--whether he was in the area and hiding, or whatever, that he still had the opportunity to appear at trial." The defendant subsequently filed this appeal.

ANALYSIS

Trial in absentia

The defendant initially claims he is entitled to a new trial because his failure to appear for trial and sentencing was not willful. The defendant argues that the only reason he failed to appear for his trial was because of threats from his co-defendants.

A defendant who is tried and sentenced in absentia is entitled to a new proceeding if he establishes that his failure to appear was both not his fault and caused by circumstances beyond his control. People v. Hayes, 159 Ill.App.3d 1048, 1051, 111 Ill.Dec. 822, 824-25, 513 N.E.2d 68, 70-71 (1987); 725 ILCS 5/115--4.1(e) (West 1994). The trial court's denial of a new trial to a defendant convicted in absentia will not be reversed unless a manifest abuse of discretion is shown. People v. Bushey, 170 Ill.App.3d 285 Here, although there was testimony that the co-defendants threatened the defendant, there was no direct testimony that those threats were the reason the defendant failed to appear. The trial court was not required to infer that the defendant's failure to appear was linked to these threats. See People v. Klovstad, 168 Ill.App.3d 444, 448, 119 Ill.Dec. 141, 144, 522 N.E.2d 803, 806 (1988) (holding that the trial court was entitled to disbelieve the defendant's explanation for his absence). Moreover, even if the defendant's failure to appear was because of the threats, the trial court was not required to conclude that the threats constituted sufficient cause allowing the defendant to be absent from trial. People v. Devoe, 163 Ill.App.3d 855, 858, 114 Ill.Dec. 862, 864, 516 N.E.2d 1017, 1019 (1987) (no new proceedings required despite testimony that defendant's absence was a justified attempt to avoid threats to his life). Thus, we cannot say that the trial court erred in concluding that the defendant was not entitled to a new trial.

[225 Ill.Dec. 117] 289, 120 Ill.Dec. 708, 711, 524 N.E.2d 738, 741 (1988).

Prosecutorial Misconduct

The defendant next claims that he was denied a fair trial because of prosecutorial misconduct. Specifically, the defendant argues: (1) the prosecutor presented improper identification testimony; and (2) during closing arguments, the prosecutor improperly commented on the defendant's failure to appear.

Identification Testimony

It is clear from the record that the prosecutor experienced some difficulty when asking the victim to identify the defendant and the co-defendants in photographs. During that line of questioning, defense counsel objected to: (1) the leading nature of the prosecutor's questioning; (2) the lack of foundation; and (3) the fact the photographs had not been shown to defense counsel before they were used to question the victim.

In order for prosecutorial misconduct to warrant reversal, the behavior must be particularly egregious and constitute a material factor in the defendant's conviction. People v. Johnson, 264 Ill.App.3d 1000, 1011, 202 Ill.Dec. 228, 235, 637 N.E.2d 767, 774 (1994). Prosecutorial misconduct may occur when the State ignores a trial court's ruling and continues the line of questioning ruled on by the court. People v. Hobbs, 232 Ill.App.3d 63, 71, 173 Ill.Dec. 148, 153, 596 N.E.2d 772, 777 (1992).

Here, based upon our review of the entire record, we find no error. Although defense counsel's objections were valid, we do not believe the prosecutor was engaging in gamesmanship in an effort to present improper identification testimony. More importantly, it does not appear that the defendant suffered any prejudice as a result of the prosecutor's questioning. We note that after defense counsel objected, the trial court acknowledged the objection and the prosecutor immediately apologized for not previously showing the photographs to defense counsel. The prosecutor then tendered the photographs to defense counsel, stopped using leading questions, and laid an adequate foundation for the photographs. Under these circumstances, we are unwilling to say that the prosecutor engaged in misconduct which would justify a new trial.

Closing Arguments

The defendant next claims that prosecutorial misconduct occurred during closing arguments. The defendant argues that the prosecutor improperly suggested that the defendant had an obligation to testify and prove his innocence. In support of this claim, the defendant points to the following prosecutorial comments:

"I'm not going to go all over the testimony with you. You were here. You heard it. You saw the witnesses. You saw their demeanors when they testified. You saw [co-defendant Perez] when he testified. You heard the pauses between the questions. You heard--you saw--you saw [Perez'] demeanor. I don't think there is anything else that needs to be said on that. Mr. Reyna? Mr. Reyna is not even here. He never even bothered to show up for his own trial. I think the People have proved Prosecutorial comments which imply that the defendant had to show his innocence are improper. People v. Tyson, 137 Ill.App.3d 912, 921, 92 Ill.Dec. 712, 719, 485 N.E.2d 523, 530 (1985); People v. Giangrande, 101 Ill.App.3d 397, 402, 56 Ill.Dec. 911, 916, 428 N.E.2d 503, 508 (1981). The State is barred from misstating the law or making remarks that diminish their burden of proof. People v. Buckley, 282 Ill.App.3d 81, 89, 218 Ill.Dec. 250, 256, 668 N.E.2d 1082, 1088 (1996).

[225 Ill.Dec. 118] their case beyond a reasonable doubt and I ask you to find the defendants guilty." (Emphasis added.)

Here, after carefully reviewing the above-noted comments, we believe the prosecutor did not improperly suggest that the defendant had to testify and prove his innocence. Rather, we find the prosecutor's comment to be a brief and permissible reference to the defendant's absence from trial. See People v. Ocasio, 205...