Appeal from the Circuit Court of Cook County; the Hon. William
Cousins, Jr., Judge, presiding.
JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Defendant, Henry Castro, was charged in an information with attempted murder, aggravated battery and armed violence. On March 10, 1980, following a jury trial held in defendant's absence, defendant was found guilty of all charges. On April 9, 1980, defendant was sentenced in absentia to serve three concurrent 15-year terms of imprisonment in the Illinois Department of Corrections.
On appeal, defendant contends that he was not admonished that he could be tried in absentia if he failed to appear for trial; that the statutory procedures for trying him in absentia were not followed; that he was denied his right to counsel of his own choice; that it was error to sentence him in absentia; that the aggravated battery and armed violence convictions should be vacated; and that the sentence of 15 years for attempted murder is excessive. For the reasons which follow, we vacate defendant's convictions for aggravated battery and armed violence and affirm his conviction for attempted murder and the sentence imposed thereon.
At trial, the State's evidence showed that on the night of June 12, 1979, Eugene Tasior, a member of a street gang called the "Paulina and Barry Community," was arrested for committing a battery against defendant and for theft. The next morning, Tasior appeared in court on these charges and was accompanied by his cousin, Thomas Dosch, who belonged to the same street gang. Defendant was also present in court. The record does not reflect what transpired at this hearing.
At approximately 12:40 p.m. on June 13, 1979, Tasior, Dosch and Jose Perez observed defendant riding a bicycle north on Paulina Street near Barry in Chicago. Defendant reached behind his back, pulled out a revolver, yelled "You are a dead man. Unknown Love," and fired two shots at Dosch. Tasior testified that the "Insane Unknowns" was another street gang in the area. Dosch jumped to his left and fell against a wall. Although neither bullet hit Dosch, one of them passed through the open front door of Sartino's Restaurant, which is located at the northwest corner of Paulina and Barry, and hit Donald Bergman, a patron who was eating lunch. Bergman felt a sharp pain in his right hip, collapsed to the floor and felt blood inside his trousers. Tasior, Dosch and Perez saw defendant flee west on Barry on his bicycle. Defendant was arrested later that afternoon on the roof of a building which was approximately six blocks from the scene of the shooting. Bergman was hospitalized for one day.
• 1 Defendant first contends that he was not admonished that he could be tried in absentia if he failed to appear for trial. The facts pertinent to this issue are as follows:
Jury selection in this case began on March 6, 1980. The trial judge swore in a panel of 50 prospective jurors, introduced defendant and the attorneys to the venire and read the charges. The judge asked a few general questions of the venire, selected 12 prospective jurors for examination by the attorneys and instructed them not to discuss the case. The cause was then continued to the next day, March 7, 1980, at which time defendant failed to appear. The judge waited for defendant for approximately 45 minutes, but the defendant did not appear. The judge stated that he would proceed with the trial after waiting two days, as required by section 115-4.1(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 115-4.1(a)). A few minutes later, however, the judge decided to continue with the trial immediately and denied defense counsel's motion to withdraw. A jury was selected and trial proceeded in defendant's absence. On March 10, 1980, the jury found defendant guilty of all charges and on April 7, 1980, the court denied defense counsel's motion for a new trial. A sentencing hearing was held on April 9, 1980. Defendant did not appear at this hearing and no evidence in mitigation was presented. Defendant was sentenced to serve three concurrent 15-year terms of imprisonment in the Department of Corrections.
On June 8, 1981, more than 15 months after his trial, defendant was arrested and brought to court. The trial judge appointed the public defender to represent defendant. On June 18, 1981, the public defender filed a motion requesting a new trial or, in the alternative, a new sentencing hearing. A hearing on this motion was held on July 9, 1981.
On direct examination, defendant testified that he did not appear for his trial in March 1980 because he had to take care of his mother who had undergone an operation for cancer. His mother corroborated this testimony. On cross-examination, defendant admitted that he knew that his bond required him to be present on every court date. He also conceded that he made no attempt to notify the court or his attorney and explain his absence nor did he ask anyone else to do so in his behalf. On September 2, 1981, the trial judge denied defendant's motion, stating that defendant had not shown good cause to absent himself from his trial.
Defendant maintains that under the sixth and fourteenth amendments to the Federal Constitution, the court could not try him in absentia without first admonishing him that if he failed to appear, a trial could be conducted in his absence. In Taylor v. United States (1973), 414 U.S. 17, 20, 38 L.Ed.2d 174, 177, 94 S.Ct. 194, 196, however, the Supreme Court held that the constitution does not require such an admonishment once trial has commenced. For the reasons set forth in part II of this opinion, we hold that trial in this case already had begun when defendant absented himself from the proceedings. We therefore conclude that under Taylor defendant's constitutional rights were not violated.
Defendant argues further that an admonishment also was required by section 113-4(d) of the Code of Criminal Procedure of 1963, which provides:
"If a defendant pleads not guilty, the court shall advise him at that time or at any later court date on which he is present 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. 1979, ch. 38, par. 113-4(d) (Pub. Act. 81-1066, eff. September 26, 1979).)
Defendant was arraigned on July 3, 1979. Although the act became effective after defendant was arraigned, defendant contends that he should have been given the admonishment required by section 113-4(d) at one of the pretrial ...