APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
545 N.E.2d 970, 190 Ill. App. 3d 1, 137 Ill. Dec. 209 1989.IL.1597
Appeal from the Circuit Court of Cook County; the Hon. William Cousins, Jr., Judge, presiding.
JUSTICE RIZZI delivered the opinion of the court. WHITE and CERDA, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RIZZI
Defendant Keith King was found guilty of delivery of a controlled substance in a bench trial and sentenced in absentia to four years in the Illinois Department of Corrections. On appeal, defendant argues that (1) the trial court erred in denying his motion to amend his answer to discovery to add an additional witness; (2) the State failed to prove him guilty beyond a reasonable doubt; and (3) the trial court erred in sentencing him in absentia. We affirm.
The following facts were revealed at trial. On March 14, 1985, at approximately 1:30 p.m., Chicago police officers Stanley Turner, Abraham Taylor and Sergeant Ralph DeWitt conducted an undercover surveillance near the corner of 79th Street and Western Avenue in Chicago. The officers were assigned because of reports of cocaine and heroin sales on the street in that area. All three officers were dressed in plainclothes and travelling in an unmarked automobile. After the officers arrived at the scene, they remained in the car and observed the area activity. The officers observed defendant and another man standing near the corner. Turner testified that he observed people approach defendant as well as defendant approach automobiles, converse briefly, and exchange unidentified items. After the officers observed this activity for approximately 15 minutes, they moved their car to the corner and positioned it directly across from defendant and the other man.
Turner exited the car and walked toward defendant and a nearby store. When Turner reached the sidewalk, he turned and observed defendant approaching the undercover police car where his partners were seated. Turner began to walk back towards the undercover police car and heard defendant's companion shout to defendant something like, "this next one" or "this is the next person." Turner and defendant met at the undercover police car. Turner testified that defendant asked him how many or how much did he want and he responded three bags and suggested they move out of the street. Turner stated that they walked to the passenger side of the auto, and as defendant removed a small bag from his pocket, he removed $30 from his pocket. When defendant handed him the three foil packets, he announced that he was a police officer and attempted to grab defendant and the bag. Defendant and Turner struggled, the bag fell to the ground and an unidentified man ran by, grabbed the bag and some loose packets and ran eastbound on 79th Street. After Turner and defendant moved away from the passenger side of the undercover car, Officer Taylor was able to exit the car and help Turner apprehend defendant. Other officers arrived at the scene and defendant's companion was also apprehended. The man who grabbed the bag escaped. After defendant's arrest, Turner recovered two of the three foil packets, which tested positive for .55 grams of heroin. Defendant was searched, but no drugs or money were recovered from his person.
Officer Taylor testified that he was a passenger in the undercover police car on the date in question. Taylor also testified that he observed defendant give Turner three foil packets which he removed from a bag in his pocket.
Defendant testified on his own behalf and stated that on the date and time in question he was walking to the bus stop on 79th Street. Defendant stated that he spoke briefly with a friend named Carl Jones. Defendant further testified that as he crossed the street, Turner approached him and asked him who was the guy that ran down the street. Defendant stated that when he responded that he did not know, Turner told him that he should know and threw him against a blue car parked at the corner. He stated that he was then arrested. Defendant denied that he ever possessed a brown bag or gave Turner foil packets containing heroin.
After the cross-examination of defendant was complete, defense counsel made a motion to amend her answer to discovery to add the name of Carl Jones as a witness. The court denied the motion. Following closing arguments, defendant was found guilty of delivery of a controlled substance.
The sentencing hearing was set for March 17, 1986, but on that date defense counsel requested and was granted a continuance until April 28 so that defendant could be evaluated by the TASC drug treatment program. On April 28, defendant failed to appear in court. A bond forfeiture warrant was issued and a warrant judgment date of May 5 was set. On April 29, defendant appeared in court with counsel. The bond forfeiture was vacated, the warrant recalled and the matter set for May 5. On May 5, defendant failed to appear, and after hearing argument in aggravation and mitigation, the court sentenced defendant in absentia to four years in the Illinois Department of Corrections. On May 28, defendant, by his attorney, the public defender of Cook County, filed the notice of appeal in this matter.
Defendant first argues that the trial court erred in denying his motion to amend his answer to discovery to include an additional witness, after the cross and redirect examination of defendant was complete. We disagree.
The Illinois Supreme Court rules require a defendant to respond to the State's motion for discovery by providing a list of intended witnesses within a reasonable time after the filing of the motion. (107 Ill. 2d R. 413(d)(i).) Failure to comply with this disclosure requirement subjects a defendant to possible sanctions, including exclusion of the undisclosed witness. (People v. Nevitt (1988), 174 Ill. App. 3d 326, 344, 528 N.E.2d 307, 321.) Whether or not to impose such sanction is a matter within the court's discretion, and the court's decision will not be disturbed absent a showing by defendant of prejudice or surprise. (People v. McKinney (1983), 117 Ill. App. 3d 591, 596, 453 N.E.2d 926, 929.) An abuse of discretion has been found where the defendant made the motion prior to trial and the excluded witness was material; or prior to the presentation of his case in chief where defendant's answer to discovery reserved the right to ...