APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MR. JUSTICE BARRETT DELIVERED THE OPINION OF THE COURT:
Defendant was indicted for possession of a controlled substance in violation of section 402 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1971, ch. 56 1/2, par. 1402). Following a bench trial, defendant was found guilty and sentenced to a term of 3 to 9 years. It is from the judgment and sentence of the trial court that defendant appeals.
Two issues are raised on appeal: (1) whether the trial court violated defendant's constitutional right to be present at all stages of the proceedings against him by holding a hearing on defendant's motion to suppress evidence in defendant's absence, and (2) whether defendant was proved guilty beyond a reasonable doubt.
On December 15, 1971, a preliminary hearing in this matter was held before Hon. Arthur V. Zelezinski. Defendant was present but did not testify. The arresting officer, Thomas Small, testified to the following events. On November 24, 1971, Small was on routine patrol with his partner. At approximately 1 A.M., they answered a call concerning a man with a gun at 430 West 66th Street. The description was that of a black male in a three-quarter-length brown jacket and dark clothing. While proceeding to 430 West 66th Street, the officers observed defendant in the vicinity of 6400 South Stewart. At the time, defendant was the only person on the street, and he fit the description given to the officers. Small got out of the car, announced that he was a police officer and told defendant that he wished to speak to him. According to the testimony of Small, defendant then turned and started to run. Small began to pursue defendant on foot while his partner followed in the squad car. After a chase of approximately 1 1/2 blocks defendant entered a cul-de-sac and Small apprehended him. Prior to defendant's apprehension, Small observed a plastic bag in defendant's hand. Immediately before his apprehension, defendant threw the plastic bag into a crevice which separated the two buildings. The crevice was approximately 11 inches wide.
Defendant was searched by Small and taken to the squad car by his partner. Small then searched the crevice until he located the plastic bag. Although the crevice was filled with trash, Small testified that he was sure he had recovered the object which defendant had thrown. The plastic bag contained 14 tinfoil packages which contained a white powder believed at the time to be heroin. The officers then placed defendant under arrest. Small later sent the contents of the bag to the Chicago Crime Detection Laboratory where it was analyzed as 31.52 grams of heroin.
Following Small's testimony, a finding of probable cause was entered and the case was bound over to the grand jury.
On August 4, 1972, at 9:30 A.M., defendant's motion to suppress was heard. When the case was called, defendant's attorney informed the court that defendant was not present. In reply, the court stated:
"Well, we don't need him unless you may wish to call him * * *."
Officer Small was then called by defense counsel, and his testimony was substantially the same as that which he gave at the preliminary hearing. After hearing the testimony of Small and the arguments of counsel, the court entered a finding that there was probable cause to stop and arrest defendant. Defendant's motion to suppress was denied. The State then moved for a bond forfeiture warrant which the court continued until 11 o'clock that same morning.
At 11:05 A.M., defendant appeared before the court without his attorney. He advised the court that he was unable to be in court earlier that morning because he had difficulty finding someone to care for his three children. Because defense counsel was not present, the cause was continued until 2 P.M. that afternoon. The trial court specifically admonished defendant to be back at 2 o'clock.
At 2 P.M. on August 4, 1972, defendant again failed to appear as ordered earlier that morning. At this point, the court permitted defense counsel to withdraw from the case. The State's Attorney stated for the record that defendant was informed that the motion to suppress had been denied. The State then motioned for a bond forfeiture warrant, and the trial court doubled defendant's bond.
On January 31, 1973, the case proceeded to trial with a public defender representing defendant. After waiving his right to a jury trial, defendant motioned to quash the arrest and suppress the evidence. The court noted that the question had already been decided and denied defendant leave to file his motion.
The only other witness called by the State was a police chemist who testified that the recovered substance was heroin and that the total weight of the powder was 31.52 grams.
Defendant testified that when he was stopped on the street by Small, he was on his way home from work. The officers stopped him and called him over to their squad car where he was asked if he had a gun. Defendant said no. Small then said that they had a call for a man with a gun in a brown leather jacket, brown pants and a beige shirt. Defendant testified that after he advised Small that he was wearing green pants and shirt and a black leather jacket, the officer put him against the car and handcuffed him. Small then went to search the area where defendant had been. While Small was searching the area, five or more police officers arrived. The officers tore a drainpipe from a nearby building and started raking through the debris in the crevice looking for ...