Appeal from the Circuit Court of Macon County; the Hon. Jerry
L. Patton, Judge, presiding.
JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 22, 1986.
On September 14, 1984, defendant, Linda Broyld, was charged in the circuit court of Macon County with two counts of aggravated battery. She was subsequently tried in absentia. On September 23, 1985, the court entered judgment on a jury verdict finding her guilty of aggravated battery as defined by section 12-4(b)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 12-4(b)(3)), which consists of a battery wherein the accused knowingly caused bodily harm to the victim. On November 6, 1985, the court sentenced defendant in absentia to two years' imprisonment. Defendant has appealed contending: (1) the State failed to prove beyond a reasonable doubt that she was the person who committed the offense; (2) upon arraignment, the court failed to advise her, as required by statute, of the consequences of her failure to appear at trial; and (3) the State failed to establish that she had wilfully failed to appear for trial.
We need consider the trial evidence only to the extent necessary to determine whether the jury could properly have found beyond a reasonable doubt that the Linda Broyld described by witnesses at trial as committing the offense was the same person as the Linda Broyld who was charged. Mary Jane Maddox, dean of students at Decatur Eisenhower High School, testified that, on September 14, 1984, she disciplined a daughter of Linda Broyld and requested the daughter bring her mother to the school. Maddox further testified that later that afternoon, Linda Broyld and her daughter appeared, and Linda Broyld attacked her. Maddox also identified a photograph as being of Linda Broyld. Audrey Tate, a secretary at the school, testified that a "Mrs. Broyld" was in an office with Maddox and later was chasing Maddox. Jack Batthauer, a Decatur police officer, testified that he went to the high school and arrested Linda Broyld on the afternoon of September 14, 1984. Bill Rohrscheib, the principal of the school, testified that he saw a black woman attack Maddox but did not recite the name of that black woman.
In at least two prior criminal cases concerning trials in absentia, this court has faced the issue of the quantum of proof necessary to show that the person being tried is the same person as that described by witnesses as having committed the offense. In People v. Collins (1982), 109 Ill. App.3d 1076, 441 N.E.2d 935, two witnesses observed the arrest of a person they described as having committed the offense. One witness testified to having seen that person in custody at a police station shortly after the offense. That person was also identified as one who had committed a previous theft and who bore the same name as the accused. The evidence of identification was held to be sufficient. In People v. Stanley (1983), 116 Ill. App.3d 532, 452 N.E.2d 105, the majority opinion apparently relied on (1) the similarity in names between the defendant tried in absentia and the person identified as the perpetrator of the offense; and (2) evidence that the alleged perpetrator had been interviewed by a police officer and had confessed. The concurring opinion did not deem the evidence of the confession to an officer to be circumstantial evidence that the person confessing was the person charged. The concurrence then pointed out that any presumption arising from the identity of names would be insufficient, of itself, to support a finding of identity. The concurrence concluded that the failure of the person charged to appear was evidence of flight and indicated that he was the perpetrator. Thus, the presumption from identify of names was corroborated.
• 1 The supreme court has recognized that identity of name gives rise to a "rebuttable presumption" of identity of person. (People v. Davis (1983), 95 Ill.2d 1, 31, 447 N.E.2d 353, 368, cert. denied (1983), 464 U.S. 1001, 78 L.Ed.2d 697, 104 S.Ct. 507.) However, that presumption has not ever been held to be sufficient without corroboration to support a finding which, as here, requires proof beyond a reasonable doubt. Nevertheless, we deem sufficient corroboration to have been shown here.
The testimony as to the name of the person committing the offense was not as strong here as in Collins or Stanley, but evidence was admitted without objection that the name of the offender was Linda Broyld. The police officer making the arrest also testified that the person he arrested was named Linda Broyld. The jury could have believed that person was arrested by the officer at the place of the offense, right after the offense occurred, and at the time the officer interviewed Maddox. Thus, the jury could have found that (1) the officer arrested the woman who committed the battery; and (2) that her name was Linda Broyld. In Collins, the only evidence that tied the person committing the offense to the person charged, in addition to the common name, was evidence that the offender was arrested and taken to the police station. In Stanley, the consideration of the presumption from identity of names arose either from the confession to the officer or from the flight of the person charged. Here, there was evidence that the person identified as the offender was arrested as in Collins and that the person charged failed to appear at trial as in Stanley.
• 2 The described circumstantial evidence was sufficient to corroborate the presumption arising from the identity of names. The jury was justified in determining beyond a reasonable doubt that the person identified as the offender was the person charged, tried, and convicted.
The principal legislative authority for the trial of an accused in his or her absence is section 115-4.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 115-4.1), which sets forth the circumstances under which such a trial may be held. However, as part of the bill authorizing a trial under those circumstances (Public Act. 81-1066, eff. Sept. 26, 1979), section 113-4(e) of the Code of Criminal Procedure of 1963 was also enacted as a part of the required procedure for acceptance of pleas upon arraignment. That section 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. 1983, ch. 38, par. 113-4(e).
At arraignment here, the court admonished defendant in regard to her failure to appear for trial, stating that "[s]hould you fail to appear at the time of trial, you have no valid reason for not appearing, it is possible the trial could proceed in your absence." The court did not tell defendant that in failing to appear, she would be waiving her right to confront the witnesses against her. Defense counsel objected to proceeding at trial when the court had not previously advised the defendant concerning waiver of her confrontation rights. Thus, we are squarely faced with the question of whether the failure to include reference to loss of confrontation rights in the admonishment made the holding of the subsequent trial erroneous.
The section 113-4(e) provision of the legislation concerning trials in absentia was added to the proposed bill by amendment as it passed through the General Assembly (1 Final Legislative Synopsis and Digest of 1979 Session of the 81st General Assembly, at 1208). The legislative debates indicate a concern on the part of legislators as to whether the bill met constitutional muster. (81st Ill. Gen. Assem., House Proceedings, May 9, 1979, at 98-99.) Unlike Supreme Court Rule 402 (87 Ill.2d R. 402), which by its terms requires, "substantial compliance" with the stated requirements of an admonition necessary to support a plea of guilty, section 113-4(e) has no express statement that only substantial compliance is required.
In People v. Powell (1981), 95 Ill. App.3d 93, 419 N.E.2d 708, this court indicated that only substantial compliance with section 113-4(e) was required to permit the trial of an absent defendant when it stated that an admonition was in substantial compliance with the then section 113-4(e) (Ill. Rev. Stat. 1979, ch. 38, par. 113-4(d), now section 113-4(e)). In People v. Watson (1982), 109 Ill. App.3d 880, 441 N.E.2d 152, the court found error to have occurred when a defendant was tried in absentia without being given any admonition at arraignment concerning the consequences of not appearing at trial. There, the defendant had been sent notice by mail indicating that upon his failure to appear, he could be tried in his absence. That notice made no reference to loss of right of confrontation. The court deemed the error to arise from the failure of the court to admonish defendant personally and in court. The court said nothing about the failure to mention loss of confrontation rights in the written notice.
In People v. Clark (1981), 96 Ill. App.3d 491, 421 N.E.2d 590, the admonition given the defendant was similar to that here. It mentioned a trial in the absence of the defendant but made no mention of loss of confrontation. In upholding the sufficiency of the admonishment, the Third District merely noted that in Powell, the admonishment, referred to ...