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07/27/89 the People of the State of v. Stacy Wheeler

July 27, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

STACY WHEELER, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

542 N.E.2d 524, 186 Ill. App. 3d 422, 134 Ill. Dec. 345 1989.IL.1157

Appeal from the Circuit Court of Macon County; the Hon. Jerry L. Patton, Judge, presiding.

APPELLATE Judges:

JUSTICE GREEN delivered the opinion of the court. McCULLOUGH, P.J., and LUND, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

On March 18, 1988, a two-count indictment was filed in the circuit court of Macon County charging defendant Stacy Wheeler with the misdemeanor offenses of criminal damage to property of a value not to exceed $300 (Ill. Rev. Stat. 1987, ch. 38, par. 21-1(a)) and disorderly conduct (Ill. Rev. Stat. 1987, ch. 38, par. 26-1(a)). After a jury trial in absentia, the court (1) directed a verdict finding defendant not guilty of the criminal damage to property charge, but (2) entered a judgment on a verdict finding him guilty of disorderly conduct. All occurred on June 28, 1988. On July 15, 1988, the court sentenced defendant to 28 days' imprisonment.

On appeal defendant asserts the court erred (1) in trying him in absentia ; (2) in overruling defense objection to direct examination of a prosecuting witness concerning a prior consistent statement; (3) in permitting prosecution argument concerning that statement; (4) in denying defendant's attempt to cross-examine that witness in regard to charges pending against him; and (5) in refusing to instruct the jury not to consider defendant's absence in reaching its verdict. As we later explain, we conclude we must reverse and remand for a new trial.

The evidence at trial showed that, on February 9, 1988, at approximately 7:30 p.m., a brick was thrown through a window in the Rex home in Decatur. The only substantial testimony connecting defendant to the throwing of the brick was that of Mark A. Rex, 17-year-old son of the principal occupant of the house. Mark testified to hearing the crash and, a few seconds later, looking out a window and seeing a black person he identified as Stacy Wheeler running down a nearby alley and entering an automobile containing three other black people. Mark stated defendant had been a former schoolmate of his. Paula Rex, Mark's mother, corroborated Mark's testimony to the extent she stated she looked out a window shortly after the crash of the brick and saw a black man she could not identify running down the alley.

We deem Discussion of the propriety of the holding of the trial in absentia to be appropriate at the outset of our Discussion of the case. Section 115-4.1(a) of the Code of Criminal Procedure of 1963 expressly permits, under certain conditions, the trial in absentia of persons charged with a "non-capital felony." (Ill. Rev. Stat. 1987, ch. 38, par. 115-4.1(a).) In People v. Johnston (1987), 160 Ill. App. 3d 536, 513 N.E.2d 528, this court held those charged with a misdemeanor may also be tried while absent under somewhat similar circumstances. (See People v. Carroll (1982), 109 Ill. App. 3d 1041, 441 N.E.2d 888.) Pertinent here is the statutory requirement that the trial may proceed only "after the State has affirmatively proven through substantial evidence that the defendant is willfully avoiding trial." (Ill. Rev. Stat. 1987, ch. 38, par. 115-4.1(a).) The parties agree that provision is applicable here but dispute whether that proof was made.

When the instant case was called for trial, defense counsel objected to proceeding in the absence of his client. Defense counsel stated:

"[Defendant] called me this morning indicating to me that he was stranded in Springfield; that his ride to Decatur had not panned out, and by that I mean the person he expected to be able to bring him to Decatur this morning was not able to do so, and that he would -- that he wanted to have his matter continued to another day, possibly tomorrow."

The court noted recitations on defendant's bond indicated he lived in Decatur, and no reason had been shown why the defendant was in Springfield on the day before trial.

Starting with People v. Watson (1982), 109 Ill. App. 3d 880, 441 N.E.2d 152, and People v. Powell (1981), 95 Ill. App. 3d 93, 419 N.E.2d 708, through Johnston, this court has held that, where a defendant has been properly advised of his requirement to appear, he will be presumed to be wilful in his failure to appear unless some evidence is presented of a lack of wilfulness. The question arises here as to whether the statement by defense counsel of a call from defendant stating he was unable to secure the ride he anticipated is some evidence of lack of wilfulness. Defendant maintains it is. The State agrees with the apparent reasoning of the trial court that the conduct of the defendant in being out of town the night before the trial and being dependent upon the uncertainties of a ride from another to be on time for trial is more of an indication of willfulness rather than evidence of a lack of wilfulness.

We recognize the difficulties and delay the trial court would encounter in seeking further information about defendant's situation before ruling on the request for a continuance. We also appreciate the suspicious nature of the excuse offered on behalf of the defendant and would agree that his conduct was at least negligent. However, in view of the rights of the defendant involved and the limits placed upon the power of courts to try an accused in his absence, we believe the circuit court here would have been well-advised to seek further information about defendant's situation before proceeding to trial. As we ...


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