APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
525 N.E.2d 211, 170 Ill. App. 3d 835, 121 Ill. Dec. 405 1988.IL.909
Appeal from the Circuit Court of Macon County; the Hon. Rodney A. Scott, Judge, presiding.
JUSTICE McCULLOUGH delivered the opinion of the court. GREEN, P.J., and KNECHT, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH
On August 20, 1987, the defendant Mary Porter was tried in absentia for the offense of theft with a prior theft conviction. She was found guilty by jury and at a sentencing hearing was sentenced to three years in the penitentiary. She filed timely notice of appeal. The issue presented on review is whether the statutory prerequisite to trial in absentia was established where the State offered no evidence in support of its burden of "affirmatively proving through substantial evidence that the defendant is wilfully avoiding trial."
A brief review of the proceedings in the trial court is important to the Disposition in this case. An information charging the defendant with theft with a prior theft conviction was filed on May 18, 1987. On May 28, 1987, probable cause was found, the defendant entered a plea of not guilty and the cause was allotted for jury trial July 20, 1987, and a pretrial readiness call for July 13, 1987. After the trial readiness call, the cause was set for jury trial for July 30, 1987. On July 30, 1987, the defendant did not appear. Her attorney was present before the court and indicated to the court that his client was not there and that he had driven his car to her house, that she had moved and he did not know where she was. The trial court indicated to the counsel that because of her absence, they would not proceed with the jury trial on that date, July 30, 1987, and that procedures followed by the trial court in similar proceedings required that trial be specially set for a day called with special notice. On that day, the cause was set for jury trial for August 20, 1987, and the clerk directed to give notice pursuant to section 115-4.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115-4.1). A certified notice sent by the clerk, of the trial setting for August 20, 1987, was returned to the clerk not served.
After the trial in absentia had started on August 20, 1987, opening statements had been made, the State had presented its evidence in chief and rested, and the jury had been excused, the court made the following comment outside the presence of the jury:
"Now, another thing, I think it should show clearly that before trial we examined the record closely to see if the proper notice was given by the Clerk, specific and by certified mail, and on checking the record we find that the proper notice was given to have a trial in absentia."
The defendant presented no evidence at trial. The jury returned a verdict of guilty. The defendant filed a motion for new trial alleging, among other things, that the court erred in conducting a trial in absentia. The defendant was present at the hearing on the motion. The motion was denied.
"When a defendant after arrest and an initial court appearance for 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. . . . The court may set the case for a trial which may be conducted under this Section despite the failure of the defendant to appear at the hearing at which the trial date is set. When such trial date is set the clerk shall send to the defendant, by certified mail at his last known address indicated on his bond slip, notice of the new date which has been set for trial. Such notification shall be required when the defendant was not personally present in open court at the time when the case was set for trial." (Ill. Rev. Stat. 1987, ch. 38, par. 115-4.1.)
The trial court in its review of the proceedings indicated that the records show the defendant was present at the time the cause was set for trial for July 30, 1987.
It is important to note what we are not deciding in this case. We are not deciding whether the court could proceed with a jury trial in absentia on July 30, 1987. As the defendant argues, on that date, July 30, 1987, the State did have the responsibility or it could be argued that it had the responsibility to affirmatively show through substantial evidence that the defendant was wilfully avoiding trial. The trial court, however, did not proceed with the jury trial on that date, but gave the defendant an additional opportunity to be present at a jury trial by setting the trial for a specific date and directing the clerk to give further notice to the defendant pursuant to section 115 -- 4.1(a). This procedure was entirely proper and was an additional safeguard to the defendant and her right to be present for trial. The parties argue People v. Watson (1982), 109 Ill. App. 3d 880, 441 N.E.2d 152. The State argues that the situation in Watson was similar, and the defendant argues that Watson should not determine the issue here. Watson is dissimilar, in that the defendant was not present at the pretrial setting and the trial was conducted on the day set at the pretrial, January 11, 1982. In Watson, this court stated:
"[We] hold that a prima facie case is established by showing that the statutory requirements have been complied with. Only if the defendant introduces some evidence that he did not act wilfully should more be required of the ...