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People v. Mcinnis

OPINION FILED JUNE 5, 1980.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

MICHAEL MCINNIS (IMPLEADED), DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. FRED G. SURIA, Judge, presiding.

MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Defendant, Michael McInnis, was tried in absentia by a jury for the offense of armed robbery (Ill. Rev. Stat. 1973, ch. 38, par. 18-2). He was found guilty and sentenced to a term of 5 to 8 years imprisonment.

Defendant appeals, and we affirm.

Defendant contends on appeal that (1) the trial court erred by conducting the trial in his absence; (2) his conviction for armed robbery should be reduced to robbery; (3) he was deprived of his right to a fair trial; and (4) the State improperly argued as to his absence from the courtroom during his trial.

On October 21, 1977, with defendant present, jury selection began. A panel of four jurors was selected, and the case was thereafter continued until the following Monday, October 24, at 9:30 a.m. Defendant stated he would be in court at 9:30 a.m. on that date.

On October 24, 1977, defendant failed to appear. Defense counsel stated she had called his home and was informed that he was not there. A bond forfeiture was ordered and an arrest warrant issued. The court stated its intention to continue the case and asked both sides to be prepared to argue on the issue of whether defendant could be tried in absentia.

On October 25, 1977, defendant failed to appear, and the State urged the court to continue the case until the next day and then proceed to trial under section 115-4.1 (Ill. Rev. Stat. 1975, ch. 38, par. 115-4.1).

On October 26, 1977, the court heard arguments on the issue of whether to proceed with the trial in absentia. The public defender stated that defendant was retaining private counsel, and that the attorney had stated he would try to appear in court that day. The State contended the attorney indicated he was not involved in the case and he had not filed an appearance. The attorney did not appear.

The jury selection was completed on October 26, 1977, and the case was continued until the next day.

Diane Smith Roster testified that on August 28, 1975, she was visiting her sisters at 1615 West 65th Street, in Chicago. She and one of her sisters, Brenda Holland, went to a currency exchange on 63rd and Ashland. Roster cashed her aid check and purchased some food stamps. She put the stamps in her purse and the money in her bra. When she and her sister returned to the doorway at 1615 West 65th Street, they entered the first of a double set of doors. Then, two men entered; one held Holland against the door while the other held the gun to Roster's left temple. The witness stated the gunman told her to "Give it up * * *." She handed him her purse and both men ran.

Roster ran after the two men but she lost sight of them in the area of 6549 Marshfield. When she returned to the apartment, the police had arrived. She, two police officers, and her sister drove around the area in a police car. The officers stopped the car and went to a house. When the officers returned, they had some items the victim identified as having been in her purse. They also showed her a shirt, which she identified as the one worn by the man with the gun, and a gun, which appeared similar to the one used in the robbery.

Roster was taken to the police station where she viewed a lineup. She identified a man as the one who held her sister during the robbery. The following day, Roster was shown photographs from which she made an identification of the man who robbed her. On September 7, 1975, she viewed a second lineup at which she identified one of the men as being involved in the robbery.

Brenda Holland testified that she went to the currency exchange with her sister, Diane Smith Roster. While in the exchange, she saw one young man inside, who left before she did, and another young man outside. She stated she saw both men later that day. According to the witness, after walking back to her apartment and entering the building with her sister, two men entered behind them. One man pushed her against the door while the other put a gun to her sister's head. Her sister gave one of them her purse, and both men fled. Holland stated she went to her apartment and called the police. When the officers arrived, they drove her and her sister around the area and stopped in the vicinity of Marshfield Avenue. The police left the car. When they returned, they showed her a gun, and she identified it as having been used in the robbery. She also identified a shirt as that worn by the gunman.

That same day, Holland picked a man from the lineup as the man who had restrained her during the incident. She later viewed some photographs and picked out one as that of the man who had been in the currency exchange at the same time as she and her sister.

Officer Pete Kemmer testified that he and his partner, James Eldridge, responded to a call from 1615 West 65th Street and spoke with Diane Smith Roster and Brenda Holland. While he, his partner, and the two women were driving around the area, he received a radio message. Thereafter, they drove to 6549 Marshfield Avenue. He and his partner left the patrol car, went up the stairs and knocked on the door but there was no response. While keeping the building under surveillance, he saw a man attempt to leave through a ...


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