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06/06/88 the People of the State of v. Richard D. Bushey

June 6, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

RICHARD D. BUSHEY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

524 N.E.2d 738, 170 Ill. App. 3d 285, 120 Ill. Dec. 708 1988.IL.880

Appeal from the Circuit Court of Stephenson County; the Hon. Lawrence A. Smith, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. LINDBERG, P.J., and INGLIS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Defendant, Richard D. Bushey, was convicted of aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12-4(b)(6)) after a jury trial in the circuit court of Stephenson County and was sentenced to three years' imprisonment. On appeal, Bushey contends that: (1) he is entitled to a new trial because the evidence adduced at the post-trial hearing established that he was not willfully absent from his trial, and (2) defense counsel did not submit the State's case to a meaningful adversarial testing, depriving him of the effective assistance of counsel. We affirm.

On April 14, 1986, defendant was charged with aggravated battery for striking a peace officer acting in the line of duty. On May 30, 1986, with defendant in open court, a pretrial date was set for June 13, and a trial date was set for June 17. The defendant did not appear on the June 13 pretrial date. Defense counsel indicated that Bushey called counsel's office that morning, stating that he believed he was to appear at 1:30 p.m. Counsel then stated that his secretary instructed the defendant to meet him in court at 1:30 p.m. The defendant had not appeared in court by 2:45 p.m., so the court granted a motion for bond forfeiture and issued a bench warrant for defendant's arrest.

The defendant's trial was scheduled for 9:30 a.m. on June 17. When the defendant had not appeared by 9:50 a.m., the State moved to have the trial conducted in absentia, pursuant to section 115-4.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 115-4.1). A hearing was then held to determine whether Bushey willfully absented himself from the proceedings. The sole witness at this hearing was Crystal Wool, defendant's ex-girlfriend. Wool testified that during a recent hospital stay, she had a telephone conversation with Bushey. She stated that during this conversation, Bushey told her that he was not going to go to court because he did not want to be "put away." Defense counsel indicated to the court that he had no knowledge of Bushey's whereabouts and that he last spoke to Bushey the afternoon of June 13. At that time, counsel advised Bushey to turn himself in to police, and Bushey responded that he did not want to go to jail. The court ruled that defendant's absence was willful and ordered that the trial proceed.

The State's first witness was Crystal Wool. Wool testified that she and Bushey had an argument at her home in Freeport on April 11, 1986. Wool called the police, but before the police could arrive, Bushey left Wool's home. After the police left, Bushey returned and began to hit Wool because she called the police. Another man who was present restrained Bushey, and Wool again called the police. Wool and Bushey were in the backyard of the house when the police arrived. Wool then stated that the defendant began "swinging" at the police as they approached and while they were handcuffing him. Wool concluded her testimony by relating the conversation she had in the hospital with Bushey when he indicated that he was not going to appear at his trial.

The State's next witness was Officer Greg Marsh of the Freeport police department. Officer Marsh testified that he and Officer Michael Rivera arrived at 641 1/2 West Clark in Freeport in response to a call. When Marsh and Rivera arrived at the home, a male answered the door and told the officers that he did not know where Wool or Bushey were. The officers then moved to the rear of the house, where they found Wool and Bushey talking. Wool asked the officers to remove Bushey, and the officers informed Bushey that he was under arrest for criminal trespass. The officers asked defendant to place his hands on a nearby wall and move his feet back, so the officers could search him. After the search, Officer Rivera began to apply handcuffs to Bushey. Rivera placed a handcuff on Bushey's right hand, but before he could place a cuff on Bushey's left hand, defendant pushed away from the wall and said: "You guys aren't fucking arresting me." Defendant then pivoted and struck Officer Rivera with his left hand. A struggle ensued, and defendant struck both officers during the struggle. Further police assistance arrived, and the defendant was subdued.

Michael Fox testified that he and Bushey had been drinking before the incident took place. He also stated that Bushey was in a "bad mood" before Wool called the police. Fox then saw the police go around the house to get Bushey. Fox saw Bushey attempting to hit the police officers but did not see him actually strike an officer. Fox then helped another man calm Bushey down and then led Bushey to the police car. The State's final witness was Michael Rivera, the complaining witness. Rivera's testimony corroborated Marsh's testimony.

After the State rested, the defense rested, and closing arguments were made to the jury. The jury then returned a verdict of guilty. On July 9, 1986, a sentencing hearing was held in absentia, and the defendant was sentenced to three years' imprisonment. The bench warrant for defendant was later served, and defendant appeared in court, where he was advised of his right to move for a new trial and sentencing hearing. On August 8, a new public defender was appointed, and an oral post-trial motion was made. Later, the defendant indicated to the court that he wanted to allege that John Graff, his first public defender, was ineffective. The court then appointed private counsel to act as a special public defender.

On January 8, 1987, a hearing was held on defendant's motion for new trial. At the hearing, the defendant testified that John Graff never informed him of his trial date and that if he had known of the trial date, he would have appeared. Defendant also testified that he never had a conversation with Wool about his trial dates. On cross-examination, Bushey admitted that he was in court when the dates were set, but was unaware of the dates being set. Bushey also stated that his phone conversation with Graff took place on the date of Bushey's trial. The other witness called by the defendant was Crystal Wool. Wool stated that she did not recall Bushey telling her that he was not going to appear in court. On cross-examination, Wool stated that she also did not recall her testimony from the trial, because she was on medication. The State called one witness, John Graff, defendant's former counsel. Graff testified that the telephone conversation he had with Bushey took place on the date of the pretrial conference. Graff also stated that during that conversation he did not remind Bushey of the trial date, but advised him to turn himself in to the police. The trial court denied the motion for new trial, and this appeal ensued.

The first issue Bushey raises is that the State did not prove that his absence from the trial was willful. Defendant's argument primarily focuses on the evidence brought out during the hearing on the post-trial motion. As the State correctly points out, there are two distinct inquiries where the question of the defendant's absence from the proceeding is involved. At the hearing before trial, the burden is on the State to show substantial evidence that defendant was willfully absent from the trial. (Ill. Rev. Stat. 1985, ch. 38, par. 115-4.1(a).) However, after trial, the defendant may request a hearing and will be granted a new trial if he can show that his failure to appear was not his fault and beyond his control. (Ill. Rev. Stat. 1985, ch. 38, par. 115-4.1(e).) Because the defendant's argument ...


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