APPEAL from the Circuit Court of Sangamon County; the Hon.
JAMES T. LONDRIGAN, Judge, presiding.
MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
A jury in the circuit court of Sangamon County found the defendant and his co-defendant, O'Neill, guilty of the offense of burglary in violation of section 19-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 19-1). Defendant was sentenced to 6 years' imprisonment.
On appeal defendant raises no questions of reasonable doubt and therefore an extended recitation of the evidence is unnecessary. In brief, it showed that defendant and O'Neill were apprehended inside a market in Springfield after the store had closed and that O'Neill was in possession of a paper sack containing cartons of cigarettes. Defendant came from the back room of the market, which was found to be in disarray. O'Neill testified that defendant had asked him to participate in the offense but that he did not want to help defendant and went to the market only in an attempt to dissuade defendant from his criminal purpose.
The unusual aspect of defendant's trial was that it was conducted in his absence pursuant to the provisions of section 115-4.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 115-4.1). One of the defendant's principal contentions is the unconstitutionality of that statute and alternatively its unconstitutional application to his case. Subsection (a) of section 115-4.1 reads in part:
"When a defendant after arraignment on an indictment or information charging him with a non-capital felony, fails to appear for trial, at the request of the State and after the State has affirmatively proven through substantial evidence that the defendant is willfully avoiding trial, the court may commence trial in the absence of the defendant. Trial in the defendant's absence shall be by jury unless the defendant had previously waived trial by jury. The absent defendant must be represented by retained or appointed counsel. * * * All procedural rights guaranteed by the United States Constitution, Constitution of the State of Illinois, statutes of the State of Illinois, and rules of court shall apply to the proceedings the same as if the defendant were present in court and had not either forfeited his bail bond or escaped from custody." Ill. Rev. Stat. 1979, ch. 38, par. 115-4.1(a).
The record discloses that the defendant had been arraigned on the charge and that at that time was admonished by the trial court of the possibility of a trial in his absence as provided by section 113-4(d) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 113-4(d)). He was represented throughout the trial by appointed counsel.
For centuries, western law has abhorred a trial in absentia. The trials of Socrates, Jesus, and Galileo have marked some of the blackest days in human history, but even in these the tyrants conducting them took the precaution of having the accused present. The true trial in absentia, that is, one in which the defendant has not been present at any stage of the proceedings, is fairly rare, and when it does occur, it is universally condemned.
• 1, 2 However, various exceptions to the rule have arisen, so that its absolutist character no longer exists. In Illinois, if the offense be only a misdemeanor or violation of an ordinance, the defendant may be tried in his absence. (City of Bloomington v. Heiland (1873), 67 Ill. 278, 280.) More significantly, a voluntary absence from the trial by the defendant constitutes a waiver of his right to be present. People v. Davis (1968), 39 Ill.2d 325, 235 N.E.2d 634; C.J.S. Criminal Law § 975 (1961).
The predecessor to section 115-4.1 (Ill. Rev. Stat. 1977, ch. 38, par. 115-4.1) essentially incorporated the waiver theory. It provided, in substance, that if a defendant wilfully absented himself from trial for a period of two days after the trial commenced, the court might proceed. In his brief, defendant here concedes that such a waiver would be valid. We find the present statute consistent with, and a logical extension of, prior decisions. By its very terms it avoids the problems raised in prior cases.
In People v. Evans (1961), 21 Ill.2d 403, 172 N.E.2d 799, the court was primarily concerned with the fact that the defendant may never have known of the date of his trial. The current statute provides that it may not be invoked until after arraignment, at which time the trial date is ordinarily set. In Davis, the court based its decision on Gideon v. Wainwright (1963), 372 U.S. 335, 9 L.Ed.2d 799, 83 S.Ct. 792, the right to counsel.
Moreover, unlike its predecessor, the current statute places the burden of proof on the State to establish the wilful absence of the defendant. Since under the decided cases such absence constitutes a waiver, we fail to see any qualitative difference in that waiver whether made during or before trial. The statute is facially constitutional.
Defendant argues that even assuming the constitutionality of the statute, its application to his case was defective in that (1) there is insufficient evidence that he understood the admonition of the court, and (2) the State failed to present substantial evidence to prove he was avoiding trial.
As to the first contention: Defendant made a first appearance on December 31, 1979, at which time he was furnished with a copy of the information, counsel was appointed for him, and bond was fixed. A preliminary hearing and arraignment was held on January 10, 1980. The record reflects that at this hearing the trial court stated to the defendant:
"Mr. Powell, at this time the Court informs you that if you fail to appear when this case is set for trial in other words, if you fail to appear for trial, the State can prosecute you or proceed on the trial in your absence, which means you would waive the right ...