Appeal from the Circuit Court of Perry County; the Hon. Robert
Bastien, Judge, presiding.
JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
The defendant, William Burns, was found guilty of three counts of felony deceptive practices following a trial by jury in absentia. He was sentenced to a term of 30 months in the Department of Corrections and ordered to make restitution and pay a fine. On appeal he raises three issues: (1) whether the statute that allows a defendant absent at the start of his trial to be tried in absentia (Ill. Rev. Stat. 1981, ch. 38, par. 115-4.1(a)) is unconstitutional; (2) whether he should be granted a new trial because the trial court did not, as required by statute (Ill. Rev. Stat. 1981, ch. 38, par. 113-4(e)), admonish him that his failure to appear at trial would constitute a waiver of his right to confront the witnesses against him and that the trial could, nevertheless, proceed in his absence; and (3) whether the State failed to prove beyond a reasonable doubt that the person depicted in the photograph marked People's exhibit No. 4 was the William Burns who was on trial in this case.
Following the filing of an amended information, the defendant first appeared in court on September 25, 1981, at which time the public defender was appointed and preliminary hearing was set. Defendant gave his address as Box 462, Pinckneyville, Illinois, where he was staying with one of his sisters and, apparently, her husband. At the subsequent hearing, on October 8, 1981, defendant was present with his attorney. The court found probable cause, the defendant entered a plea of not guilty as to all three counts, and the court denied defendant's motion to reduce bond, urged for medical reasons. The defendant, who is 55, testified that he was supposed to be evaluated for further surgery on his stomach. In denying the motion, the trial court said it would reconsider the ruling if defendant's attorney could provide verification of the need for such surgery "from a hospital or doctor." Defendant subsequently posted bond. On December 8, 1981, the case was set for readiness call on December 30, 1981, notice of which was sent to defendant. On December 30, 1981, the case was called for pretrial conference, at which time defendant was absent. Defendant's attorney, despite having tried to find defendant, did not know where he was, saying, "[T]he closest I can come is that he is somewhere in Southern Missouri." In an order entered December 30, 1981, the case was set for trial on January 14, 1982, and defendant was ordered to be present on that date. A copy of that order was mailed to defendant at the address shown on his bond.
On January 14, 1982, the case was called for trial, but defendant was again absent. The prosecutor and defense counsel stipulated to certain facts, some of which follow. The sheriff's department had spoken with another of defendant's sisters, Frances Wright, who had said that before Christmas she had put the defendant on a bus in Nashville, Illinois, so that he could go to a Veteran's Administration hospital in, apparently, St. Louis, Missouri. Defendant in some way indicated to her or another relative that he had not been admitted to the hospital because it was full. His sister had said that when she put him on the bus "there was a conversation between them concerning the December 30th day and he did tell her that he would be here for that pretrial date." The sheriff of Reynolds County, Missouri, at the request of the prosecutor, had attempted twice to serve the warrant in the instant case and to find defendant but had been unable to do so. The trial court found that defendant's failure to appear on January 14 was a wilful avoidance of trial and granted the State's motion to try him in absentia. Trial was set for January 21, 1982, and notice of the trial on that date was sent to defendant by certified mail at his last known address, indicated on his bond slip.
On January 21, despite further efforts by defendant's attorney to locate him — the sister with whom he had been staying believed he was in Reynolds County, Missouri, he had been unable to do so and did not know where defendant was. The State's Attorney informed the court as follows:
"Judge, in that regard I might mention, the Court might recall under the stipulated facts Reynolds County, Missouri, was where the State had attempted to locate him on the basis of some knowledge disposed to [sic] the State by Francis [sic] Wright.
Also, the Clerk has informed me on the 14th, which is when the Court did order certified mail to Route 2 [which includes Box 462], Pinckneyville, the Clerk on that date did send out certified mail. Mr. Phipps, the Clerk of the Court, went to the Post Office more recently and he found on the 11th there was a change of address to William Burns to General Delivery, Reynolds, Missouri, which is in Reynolds County, Missouri.
THE COURT: Well, it is the defendant's obligation to keep the Clerk's office advised if there is any change of address that he gave on his bond and he hasn't done that. I don't feel that the Court personnel or the Court has to scurry around the countryside trying to find a defendant to bring him in for trial. The defendant has certain obligations himself, and this particular defendant hasn't met those obligations."
Trial was had on January 21, at which time defendant was represented by counsel.
The evidence showed that on August 3, 1981, defendant had, with a deposit of $120, opened an account upon which he later wrote three checks, each far exceeding the amount of the deposit. He made no further deposits but the next day purchased by check luggage and clothing for the sum of $240.90 and an automobile in the amount of $453. On August 22, 1981, he purchased by check a tape player, a CB radio, and accessories for the sum of $255.
Defendant received the notice of trial, according to the postmark on the receipt for certified mail, in Reynolds, Missouri, on February 1, 1982. Defendant was arrested on March 17, 1982, and ordered held without bond. The trial court subsequently denied defendant's post-trial motion for a new trial or a judgment of acquittal and sentenced him. In the post-trial motion defendant stated that the trial court had erred in finding that the absence of defendant was a wilful act. Defendant does not, however, present the issue for review.
We note parenthetically that, according to defendant's presentence investigation report,
"on February 25, 1982 an obituary appeared in the Reynolds County Courier in Missouri stating that William Burns had died on February 12, 1982 at the VA Medical Center in St. Louis, Missouri and was buried in Jefferson Barracks Cemetery. All family information contained in the article corresponds with that of the defendant, William Burns. After receiving some further information, the paper investigated the matter of the article and found it to be inaccurate."
We note further, still parenthetically, items 6 and 7 of that part of the presentence investigation addressing defendant's ...