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March 10, 1995


Appeal from Circuit Court of Macon County. No. 92CF1064. Honorable Rodney A. Scott, Judge Presiding.

Honorable Robert W. Cook, J., Honorable Carl A. Lund, J., Honorable Frederick S. Green, J., Lund and Green, JJ., concur.

The opinion of the court was delivered by: Cook

The Honorable Justice COOK delivered the opinion of the court:

Following a jury trial, defendant Jerome Jones was convicted of the offense of retail theft in excess of $150, a violation of section 16A-3(a) of the Illinois Criminal Code of 1961 (720 ILCS 5/16A-3(a) (West 1992)), and sentenced to four years in prison. Defendant appeals his conviction, contending (1) he was denied his right to counsel of his choice, (2) the trial court erred in admitting the investigating police officer's testimony that he recognized defendant because that testimony served no other purpose than to suggest to the jury that defendant had a prior criminal record, and (3) the court erred in proceeding on the second day of trial in defendant's absence because that absence was not wilful. We reverse and remand on the last issue.

At trial several employees at Venture in Decatur, Illinois, testified they observed defendant in the store the evening of December 19, 1992, either in person or on security cameras. Defendant approached the service desk, located directly behind the front doors, pushing a shopping cart holding a Casio keyboard and a Sony stereo. Defendant looked at the employee acting as the door greeter, pushed the cart over to the number dispenser, and took a number. Defendant continued to eye the greeter while he stood in line at the service desk. He pushed the cart closer to the front door, walked back to the dispenser, returned to the service desk and filled out a form, placing it in a slot. Defendant did no business at the service desk. When the greeter was sweeping at a distance from the front doors, defendant pushed the shopping cart out the front door. All this was recorded on videotape. A Venture employee followed defendant out to the parking lot. The employee observed defendant throw the items into the back of a white Mustang convertible and jump into the passenger seat, and the car, driven by a black female, sped away. The employee wrote down the car's license plate number.

Timothy Boulware, a Decatur police officer, testified he was called to Venture at 7:34 p.m. on the night in question. Bruner provided him with a vehicle description and license plate number of the car in which the suspects left. Boulware then viewed the videotape. Over defense counsel's objection, Boulware testified he recognized the suspect and had seen him before. He then identified defendant as the man he had seen in the videotape. Boulware stated that in the early morning hours of December 23, 1992, he had seen a white convertible Mustang with a license plate number matching the one the Venture employee had written down. Tracy Jones, defendant's wife, had been driving, and defendant had exited the passenger side of the vehicle. Boulware had then taken a photograph of defendant, and this picture was admitted into evidence.

The State rested, and defendant filed a motion for a directed verdict, which was denied. No evidence was presented on defendant's behalf. The next day, following closing argument and deliberations, the jury returned a verdict of guilty.

Defendant asserts he is entitled to a new trial because he was not present for closing argument. The trial was continued for closing argument to March 23 at 9 a.m., with arguments to be limited to 15 minutes per side. According to the court's recollection (put on the record during the hearing on the post-trial motion), defendant was not present at 9 a.m., the court asked what should be done, and the response from counsel was "well, go ahead." Closing arguments began about 9:05 a.m., and defendant came in sometime during the "closing procedures." The arguments were completed at 9:25 a.m. The March 23 transcript shows only that an off-the-record conference was held and the "cause resumed as scheduled with the counsel present and jury returned into open court." During the hearing on the post-trial motion defendant testified he knew the trial was to resume at 9 a.m., he arrived at 9:15 a.m. but a bailiff prevented him from entering the courtroom until the arguments were completed or about completed, and he was late because he was "stressed."

The section of the Code of Criminal Procedure of 1963 (Procedural Code) (725 ILCS 5/115-4.1 (West 1992)) which applies where a defendant fails to appear at the time trial is to commence could be argued to cover the situation where a defendant absents himself after trial has commenced. "If trial had previously commenced in the presence of the defendant and the defendant willfully absents himself for two successive court days, the court shall proceed to trial." (725 ILCS 5/115-4.1(a) (West 1992).) The supreme court, however, concerned with disruption of court dockets and with allowing a defendant to benefit from his own defiance of the criminal justice system, has held that section 115-4.1(a) of the Procedural Code is permissive, not mandatory, and does not require a court to wait two days before continuing with a trial after defendant has failed to return. (People v. Flores (1984), 104 Ill. 2d 40, 50, 470 N.E.2d 307, 311, 83 Ill. Dec. 349.) Since Flores, section 115-4.1(a) provides little guidance how a court should proceed in dealing with an absence after trial has begun. Even if section 115-4.1(a) does not apply, however, trial courts do not have arbitrary power to proceed; a trial court in some cases will abuse its discretion by proceeding in the absence of defendant.

In People v. Devoe (1987), 163 Ill. App. 3d 855, 516 N.E.2d 1017, 114 Ill. Dec. 862, defendant was not present at a July 23 status call or the August 29 trial date. The trial court continued the case to September 20, and only after the prosecutor stated he had attempted to locate defendant did it proceed with trial in absentia. Defendant was arrested two years later. In People v. Nivens (1992), 239 Ill. App. 3d 1, 603 N.E.2d 1275, 177 Ill. Dec. 901, when defendant did not appear, the trial court continued the trial to the next day. After defense counsel was still unable to contact defendant the trial court began the trial. Defendant did not appear until over a month later. In Flores, the trial had been recessed to the next day at 9:30 a.m. When defendant did not appear the case was continued to 10:45 a.m., and the court asked defense counsel about efforts to contact defendant, then continued the case until 1 p.m. Defendant did not reappear for four years.

In contrast, in the present case, the trial court waited only five minutes, there is no indication in the record that any attempt was made to contact defendant, and defendant did appear 15 minutes late. This is not a case where waiting a few minutes or hours would have been fruitless. Nor is this a case where defendant was in a different city on the day his trial was to begin. (See, e.g., People v. Wheeler (1989), 186 Ill. App. 3d 422, 542 N.E.2d 524, 134 Ill. Dec. 345.) The logical assumption when a defendant is five minutes late to a hearing is that he is held up in traffic or confused as to the starting time, not that he has chosen not to attend the proceedings. The trial court should have sought further information about defendant's situation before proceeding with the trial. (Wheeler, 186 Ill. App. 3d at 426, 542 N.E.2d at 526.) We doubt the trial court would have proceeded with, or dismissed, the case if it had been the prosecutor who had been five minutes late. See generally People ex rel. Department of Revenue v. Countryman (1987), 162 Ill. App. 3d 134, 136, 514 N.E.2d 1038, 1039-40, 113 Ill. Dec. 126.

We conclude that the trial court abused its discretion here, where defendant had appeared previously, was only 15 minutes late, and no attempt had been made to locate him. It is not necessary that the State perform "heroic efforts" to ascertain the whereabouts of a missing defendant (People v. Joyner (1982), 109 Ill. App. 3d 1083, 1088, 441 N.E.2d 1214, 1217, 65 Ill. Dec. 700), but a court may not simply proceed on and ignore the fact that defendant is not present. Waiting a few minutes to see whether defendant is caught in traffic, or attempting to telephone defendant's residence, are not "heroic efforts."

Where the State has made a prima facie case under section 115-4.1(a) and a trial in absentia has been completed, a defendant must be granted a new trial if he sustains his burden of establishing that his failure to appear in court was both without his fault and due to circumstances beyond his control. (725 ILCS 5/115-4.1(e) (West 1992).) A defendant does not sustain that burden by showing confusion or forgetfulness over the date, or inability to arrange for transportation. (People v. Canal (1991), 210 Ill. App. 3d 733, 736, 569 N.E.2d 233, 235, 155 Ill. Dec. 233.) In Canal, defendant was not present when the trial was to commence. The trial court apparently made some effort to locate defendant, although the opinion does not indicate how long the court waited before proceeding with trial. Defendant telephoned her attorney at 12:50 p.m. with the message she had overslept and was now on her way. Accordingly, the case was continued until 2 p.m. for her appearance, which never occurred. (Canal, 210 Ill. App. 3d at 734, 569 N.E.2d at 233.) Canal is not inconsistent with our decision in this case.

In its brief the State notes that defense counsel did not object when the trial court resumed the trial after waiting only five minutes. The State implies that failure to object amounts to a waiver, but an attorney has no power to waive the right of an accused to be present at trial. (Flores, 104 Ill. 2d at 50-51, 470 N.E.2d at 311-12, citing People v. Allen (1967), 37 Ill. 2d 167, 171, 226 N.E.2d 1, 3.) The accused may waive his right to be present, but his attorney may not do it for him. (People v. Mallett (1964), 30 Ill. 2d 136, 141-42, 195 N.E.2d 687, 690.) The State also argues that "defendant's tardiness did not rise to the level of being tried in absentia, " and that the protections of section 115-4.1 of the Procedural Code do ...

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