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07/08/97 PEOPLE STATE ILLINOIS v. FREDDY REYNA

July 8, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
FREDDY REYNA, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois. No. 95--CF--5343. Honorable Stephen D. White, Judge Presiding.

Released for Publication August 20, 1997.

Present - Honorable Tom M. Lytton, Presiding Justice, Honorable Michael P. McCUSKEY, Justice, Honorable William E. Holdridge, Justice. Justice McCUSKEY delivered the opinion of the court. Lytton, P.j., and Holdridge, J., concur.

The opinion of the court was delivered by: Mccuskey

JUSTICE McCUSKEY delivered the opinion of the court:

The defendant, Freddy Reyna, was tried in absentia. Following a joint jury trial he was convicted of robbery (720 ILCS 5/18--1 (West 1994)) and aggravated battery (720 ILCS 5/12--4(b)(8) (West 1994)). He was sentenced in absentia to 28 years' imprisonment.

The defendant appeals, arguing: (1) he is entitled to a new trial because his failure to appear at his original trial was not willful; (2) that prosecutorial misconduct denied him a fair trial; (3) that the trial court improperly considered victim impact statements prepared by the victim's parents; and (4) his sentence was excessive and disparate to that of his co-defendants. For reasons which follow, we affirm the defendant's convictions and sentence.

FACTS

The record reveals that the defendant was released on bond following his arrest. He failed to appear on the morning of his trial, and the cause was continued until the afternoon. That afternoon, the State presented evidence the defendant was willfully avoiding trial. After hearing the evidence, the trial court concluded the State met the statutory burden (see 725 ILCS 5/115--4.1 (West 1994)) and ordered the defendant to be tried in absentia.

At the defendant's trial, it was established that on the night of September 13, 1995, the victim, Lee Vinsel, was walking in Joliet. He was approached by the defendant, who asked Vinsel if he belonged to a street gang. When Vinsel said he was not in a gang, the defendant grabbed Vinsel's hat and Walkman cassette player. The defendant then handed the hat and cassette player to co-defendant Johnathan Erickson. Vinsel started to walk away, but he was grabbed from behind by the defendant and pulled down. The defendant kicked Vinsel once. The defendant and Erickson then started punching Vinsel. Co-defendant Jose Perez and another man came out of a nearby building and joined the attack. Eventually, Vinsel managed to flee and call the police. The police ultimately returned to the scene of the attack, accompanied by Vinsel. Shortly thereafter, the defendant, Erickson, and Perez were identified by Vinsel and arrested.

Following arguments by counsel, the jury found the defendant guilty of robbery and aggravated battery. The defendant was sentenced in absentia to 28 years' imprisonment. Several days later, the defendant was apprehended by the police. The defendant subsequently filed a motion to reconsider (see 725 ILCS 5/115--4.1(e) (West 1994)). The motion alleged, among other things, that he was absent from trial because of threats made against him by co-defendants Erickson and Perez.

An evidentiary hearing was held on the defendant's motion to reconsider. At the hearing, the defendant's brother-in-law testified he had been told by Erickson and Perez that the defendant would get "his ass whipped" if he went to court. The defendant's brother-in-law further testified that when he told the defendant of these threats, the defendant became scared and moved to another neighborhood in Joliet. The defendant's wife and sister-in-law also testified they had been told of the threats. The trial court denied the defendant's motion to reconsider. The court found the defendant acted willfully in failing to appear. The court further noted that the defendant never contacted his counsel. Finally, the court concluded: "There is no question that--whether he was in the area and hiding, or whatever, that he still had the opportunity to appear at trial." The defendant subsequently filed this appeal.

ANALYSIS

Trial in absentia

The defendant initially claims he is entitled to a new trial because his failure to appear for trial and sentencing was not willful. The defendant argues that the only reason he failed to appear for his ...


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