People v. Watson

• Decision Date: 13 October 1982
• Docket Number: No. 482-0135,482-0135
• Citation: People v. Watson, 109 Ill.App.3d 880, 441 N.E.2d 152, 65 Ill.Dec. 360 (Ill. App. 1982)
• Parties: , 65 Ill.Dec. 360 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Earvil L. WATSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 152

441 N.E.2d 152

109 Ill.App.3d 880, 65 Ill.Dec. 360

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Earvil L. WATSON, Defendant-Appellant.

No. 482-0135.

Appellate Court of Illinois Fourth District.

Oct. 13, 1982.

Daniel D. Yuhas, Deputy Appellate Defender, James G. Woodward, Asst. State Appellate Defender, Springfield, for defendant-appellant.

Thomas L. Brownfield, State's Atty., Havana, Robert J. Biderman, Deputy Director, State's Attys.Appellate Service Com'n, Michael W. Hogan, Staff Atty., Springfield, for plaintiff-appellee.

MILLS, Justice:

Trial in absentia.

Guilty of burglary and theft.

Were the statutory admonitions given?

No.

We must reverse and remand.

Watson raises no question of the sufficiency of the evidence presented at his trial, so no extended recitation of those facts is necessary.But the enumeration of certain procedural occurrences are required to address his claim that he was improperly tried in absentia:

Watson was charged by information with burglary and theft and a warrant for his arrest was issued on June 4, 1981.He was arrested on June 11, but was released on June 15, after posting bond.His case was continued several times until preliminary hearing was held on August 20.There is some conflict in the record, but apparently Watson was not present at the hearing--although he was represented by retained counsel.The trial court nevertheless found probable cause and continued the case until October 22 for arraignment.

Watson did appear with his counsel at arraignment.He entered a plea of not guilty and requested a jury trial.The court accepted the plea and set the matter "for jury trial on the January jury call."He was not, however, admonished of his rights at arraignment.A written order was entered by the court following arraignment and sent by regular mail to Watson which related that the case had been continued until January 11, 1982, for jury trial.

On December 30, 1981, a pretrial conference was held.Watson's counsel was present, but Watson was not.Following the conference, the court entered the following order, which was also sent by regular mail to the defendant:

" * * * this case is hereby set for trial by jury, commencing on January 11, 1982, at 10:00 a.m., all parties, including the Defendant, are ordered to appear at that time for trial by jury.Failure of the Defendant to appear will result in the trial proceeding in his absence, and his case being tried in absentia."

Defendant also failed to appear at his jury trial on January 11, 1982, but was again represented by counsel.After calling the roll of prospective jurors, the trial court advised them as follows:

"Ladies and gentlemen, we have a rather unique situation this morning.This matter called for trial, the defendant, Mr. Earvil Watson, although notified and although he has contacted his counsel, has not appeared this morning.His notice also advised him that if he did not appear that he would be tried in absentia.His counsel is present and it is his counsel's obligation to protect his interest so we will proceed to this trial without the defendant being here.That is going to shorten things up considerably I expect."

At no time before or during trial did defendant's counsel object to trial in absentia.Nor did he file a post-trial motion.

There is no question that a criminal trial may be conducted in the defendant's absence without violating his constitutional rights.(People v. Powell(1981), 95 Ill.App.3d 93, 50 Ill.Dec. 600, 419 N.E.2d 708.)But the legislative scheme providing for trial in absentia is designed to insure that such a trial is not held unless defendant has made a valid waiver of his right to be present at trial and to confront witnesses against him.

To this end, section 113-4(e) of the Code of Criminal Procedure provides that at arraignment "or at any later court date on which he is present,"the court shall advise the defendant"that if he escapes from custody or is released on bond and fails to appear in court when required by the court that his failure to appear would constitute a waiver of his right to confront the witnesses against him and trial could proceed in his absence."(Ill.Rev.Stat.1981, ch. 38, par. 113-4(e).)This warning was never personally given to Watson, although it was contained in a notice mailed to him.

Similarly, section 115-4.1(a) of the Code of Criminal Procedure requires that "when the defendant was not personally present in open court at the time the case was set for trial"he must be sent notice of the date "by certified mail at his last known address indicated on his bond slip."(Ill.Rev.Stat.1981, ch. 38, par. 115-4.1(a).)The trial court's statement at Watson's arraignment that the case was "set for jury trial on the January jury call" was insufficient to set the date in open court in defendant's presence.Defendant was apparently mailed two notices of his specific January 11, 1982, trial date, but those were not sent by certified mail, and there is nothing in the record to confirm that defendant received them.

Nor is the fact that defendant's counsel had notice sufficient.The statute clearly requires more.We thus decline to follow the contrary holding of People v. Clark(1981), 96 Ill.App.3d 491, 51 Ill.Dec. 955, 421 N.E.2d 590.Clark ignores the fact that 115-4.1(a) requires notice by certified mail and emasculates the clear statutory protections.

Perhaps the most important safeguard against unconstitutional trial in...