APPEAL from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding.
MR. JUSTICE LEIGHTON DELIVERED THE OPINION OF THE COURT:
Defendant was charged with unlawful possession of a narcotic drug. A jury found him guilty and the trial court, after overruling post-trial motions and hearing evidence in mitigation and aggravation, sentenced him to serve five to ten years. In this appeal, defendant presents seven issues. These issues are raised from the following facts.
At about 4:00 P.M. on March 19, 1968, three Chicago policemen, Michael Capesius, Orlando Bellini and John Thompson were on patrol. They were in civilian dress and in an unmarked police vehicle. At Erie and La Salle Streets, the officers saw a car with its city license sticker improperly attached to the windshield. They pulled alongside and requested the man driving the car to stop at a nearby curb. He did and then bolted from his vehicle and ran diagonally across the street. The officers gave chase. They saw the man reach into his coat pocket, take out a tinfoil package and drop it to the ground. Officers Capesius, who was near, picked it up. The other officers ran after the man and caught him. It was the defendant, Marciano Colon. The contents of the package were field-tested and found to contain an opium derivative, heroin. Defendant was arrested and later indicted.
To represent him in his trial, defendant employed Thomas J. Maloney of the Chicago Bar. Mr. Maloney filed his appearance. On the day that the case was called, defendant appeared with another lawyer, Mr. Joseph A. Malek. Mr. Malek told the trial judge that Mr. Maloney was occupied in a Federal case. When the prospective jurors were given their preliminary orientation, Mr. Malek was introduced as defendant's counsel with the comment that "the defendant is also represented by Mr. Thomas Maloney, who will be here directly."
The first panel of the jury was selected. Then, the case was continued until two days later at 10:15 A.M. When court convened at the appointed time, defendant was not present. Instead, a young woman responded and said that she had a note from him. It read, "Judge Wilson, I'm unable to attend court because of illness. Will you please set another court date for me at this date. Thank you. Marciano Colon." After reading the note, the trial judge said that he was going to wait for defendant's lawyers. He told the young woman, however, that if she could reach the defendant, to tell him the case was going to proceed without him. Mr. Maloney arrived a short time later and said he had not known of defendant's absence. After a colloquy with the lawyers, the judge ruled that selection of the jury was to proceed but "* * * if the defense counsel can indicate to the Court that they will have their man in Court tomorrow morning we could recess until that time, otherwise we will go right into the trial this afternoon [sic]." Mr. Maloney moved for a mistrial because of defendant's absence. The motion was denied.
Selection of the jury was completed. The next day, before opening statements were made, Mr. Malek called attention to an earlier request he had made for leave to file motions. He told the court he wanted to file a motion to suppress evidence. The trial judge ruled that the motion could be filed "* * * and it will be heard during the course of the trial; and if the Court sees fit that we have to have a hearing in chambers with reference to this, we will go into chambers. But I am not going to hold at this time a separate hearing on the Motion to Suppress, because you answered ready for trial and the jury was brought up to this court-room."
The trial then proceeded in defendant's absence. The three police officers testified for the prosecution. In addition, a crime laboratory technician described how he tested and determined the presence of heroin in the contents of the package which defendant dropped before he was arrested. Later, one of the officers was called as the defendant's only witness. After his testimony, summations were made, instructions were given, the case was submitted and the jury returned its verdict of guilty.
The first issue is whether in the trial of his case, defendant was represented by counsel of his choice. This issue is fashioned from a claim, now asserted through another lawyer, that Mr. Joseph A. Malek, who handled most of the defense, was not the lawyer of defendant's choice.
The record before us reveals that on the day of his trial defendant appeared in court with Mr. Malek. At one point of the proceedings, defendant was told to stand so that the prospective jurors could see him. Mr. Malek was then introduced as his lawyer. Defendant made no objection. Later, on defendant's behalf, Mr. Malek requested a conference with the court. Defendant was informed of this request and again he made no objection. It is true that Mr. Malek did not file a formal appearance as defendant's lawyer, but the record shows that he was an associate of Mr. Maloney who had. Throughout the trial, in defendant's absence, Mr. Malek handled the defense either alone or with Mr. Maloney. It was Mr. Malek who raised the objections, participated in the conference on instructions, argued the case to the jury and made a courageous effort to explain defendant's absence from the trial.
Mr. Malek made and argued post-trial motions; and when these were overruled, he urged the trial court to consider factors which he thought mitigated the offense. Three days later, when defendant was brought into court under arrest, Mr. Malek was there. He made, and the court allowed, a motion to vacate the sentence and consider additional evidence in mitigation and aggravation of the offense. At no time, from the day he first appeared in court to the last one when sentence was imposed, did defendant say anything to suggest that Mr. Malek was not his lawyer.
• 1, 2 The right to counsel guaranteed by the sixth and fourteenth amendments to the Federal constitution and by section 9, article II of the constitution of Illinois, includes the right to be represented by counsel of one's choice. (People v. Inniss, 1 Ill. App.3d 531, 532, 275 N.E.2d 218; compare People v. MacArthur, 2 Ill. App.3d 1077, 278 N.E.2d 530.) In this case, it clearly appears that defendant exercised this right when, without any expression to the contrary, he appeared with Mr. Malek in court and treated him as his lawyer. Therefore, in his trial, defendant was represented by counsel of his choice. People v. Coleman, 9 Ill. App.3d 402, 292 N.E.2d 483; People v. Novotny, 41 Ill.2d 401, 244 N.E.2d 182; compare People v. Sailor, 43 Ill.2d 256, 253 N.E.2d 397.
The second issue is whether defendant was denied due process of law when the principal part of his trial was held in his absence. This issue is derived from the fact that most of defendant's trial proceeded without him.
On February 11, 1969 when defendant's case was called for trial, he was present. On February 13, 1969 at 10:15 A.M. when his trial resumed, he was absent. Instead, defendant sent a note to the judge saying that he was ill. He did not explain the nature of the illness. His lawyers did not know why he was absent. The next day, the trial judge inquired of defendant's lawyers and learned that their efforts to contact him were fruitless. Then, at the assistant State's Attorney's request, the trial court put into the record defendant's note of the day before and his bond. In comparing the handwriting on the two, the judge found that they differed; he observed that defendant's lawyers had no additional evidence of his incapacity or illness nor did they know the reason for his absence from the trial, even though defendant had been given an opportunity during recess of court to appear. Based on these findings, the court ruled that defendant's absence was voluntary, that he had waived his right to be present and that the trial should proceed without him. Defendant contends that this ruling deprived him of due process of law.
• 3 The constitutional right of a defendant to appear in person and by counsel in his criminal case is conferred for his protection, but, like many other rights, it may be waived by him. (Sahlinger, et al. v. People, 102 Ill. 241, 246.) Generally, the trial of a felony defendant cannot proceed without his presence; but when he 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. People v. Connors, 413 Ill. ...