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01/26/89 the People of the State of v. Luther Voight

January 26, 1989





533 N.E.2d 1175, 178 Ill. App. 3d 933, 128 Ill. Dec. 87 1989.IL.81

Appeal from the Circuit Court of Will County; the Hon. Robert R. Buchar, Judge, presiding.


JUSTICE HEIPLE delivered the opinion of the court. BARRY and STOUDER, JJ., concur.


Following a jury trial in the circuit court of Will County, the defendant, Luther Voight, was found guilty of robbery. The trial was conducted in the defendant's absence pursuant to section 115-4.1(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115-4.1(a)). The defendant was subsequently sentenced to seven years' imprisonment.

On appeal, the defendant contends that his conviction should be vacated because the trial Judge erred in holding that it was unnecessary to send the defendant certified mail notice of his trial date. In the alternative, the defendant asks for a new trial, arguing he was deprived of a fair one where the State was allowed to present evidence that the defendant "was a professional robber."

Burt Bernato, an 84-year-old man, testified that on August 6, 1986, at approximately 5:30 p.m., he was walking in his backyard toward his outhouse. While Bernato was en route, the defendant came up from behind, pushed him to the ground and removed two wallets from his pocket. Bernato testified that the defendant was an acquaintance of about two years.

Edith Burkett, a neighbor of Bernato, testified that on the date and time in question she had observed Bernato in his backyard. Shortly thereafter, she also observed the defendant walking down the street past Bernato's residence. She then observed the defendant walk behind Bernato's house. Shortly after losing sight of the defendant, she heard Bernato hollering and begging the defendant to come back and help him.

Robert Kuriger, an acquaintance of the defendant, testified that four days prior to the robbery, the defendant had commented that he wanted to rob Bernato. Kuriger testified that the defendant made the statement after the defendant observed that one of Bernato's wallets contained $50 and $100 bills.

The defendant was arraigned and pleaded not guilty on October 2, 1987. At that time he was admonished pursuant to section 113-4(e) of the Illinois Code of Criminal Procedure (the Code), that if he was released on bond and failed to report in court as required, a trial would proceed in his absence. Ill. Rev. Stat. 1987, ch. 38, par. 113-4(e).

The defendant was present for his next two trial dates. However, on the second date, the matter was reset for trial on March 10, 1988. On March 9, 1988, the defendant's counsel appeared in court, without the defendant, to file a motion to continue the case until March 17, 1988. On March 17, 1988, the defendant's case was called for trial. However, the defendant was not present. Defense counsel informed the court that his last contact with the defendant was on the morning of March 9, 1988, just prior to the presentation of the motion for continuance. The defense counsel stated that the defendant was aware that counsel would ask for a continuance but did not know whether it would be granted.

The prosecutor stated that he had attempted unsuccessfully to locate the defendant. According to the prosecutor, Bob Kuriger, a subpoenaed State witness, informed him that the defendant had been staying with Kuriger's brother. Kuriger said that the defendant had departed with sleeping bag and clothes on March 16, 1988. Based on that information, the trial Judge found that the defendant was voluntarily absenting himself from the proceedings. The Judge also ruled that certified mail notice was not required in this case because the defendant was present when the March 10 trial date was set and knew the case was going to be continued.

Under section 113-4(e) of the Code, if a defendant pleads not guilty, the court shall advise him that if he is released on bond and fails to make a required court appearance, his failure to appear will constitute a waiver of the right to confront witnesses and trial could proceed in his absence. (Ill. Rev. Stat. 1987, ch. 38, par. 113-4(e).) Further, under section 115-4.1(a) of the Code, when a defendant fails to appear, the court may set the case for in absentia trial. When the defendant is not personally present when the date for such trial is set, "the clerk shall send to the defendant, by certified mail ...

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