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August 19, 1997


Appeal from Circuit Court of Livingston County. No. 95CF11. Honorable Charles E. Glennon, Judge Presiding.

Released for Publication September 18, 1997.

Honorable Frederick S. Green, J., Honorable Robert J. Steigmann, P.j. - Concur, Honorable John T. McCullough, J. - Concur. Justice Green delivered the opinion of the court. Steigmann, P.j., and McCULLOUGH, J., concur.

The opinion of the court was delivered by: Green

The Honorable Justice GREEN delivered the opinion of the court:

Following a jury trial on March 28, 1996, defendant, DwayneWalker, was found guilty of aggravated battery pursuant to section 12-4(b)(6) of the Criminal Code of 1961 (Code) (720 ILCS 5/12-4(b)(6) (West 1994)) in that he threw a liquid substance on two correctional employees engaged in the execution of their official duties. Defendant was sentenced to three years in the Illinois Department of Corrections (DOC) to run consecutive to the sentence he was presently serving in Fulton County case No. 92-CF-146. Defendant appeals his conviction, contending (1) he did not voluntarily waive his right to be present at trial, (2) the State failed to prove the element of "physical contact" necessary to sustain a conviction for aggravated battery, and (3) his statement made following the incident should not have been admissible. We affirm.

Following jury selection on March 27, 1996, defendant requested to return to the Pontiac Correctional Center (Pontiac) to rest over the lunch hour because he was "hurt" and "in pain." Defendant had a hip and lower back condition that required he stay in a wheelchair and take pain medication. Defendant wanted to go to Pontiac so he could receive some additional pain medication. The court advised defendant it would be impossible for him to be processed in and out of Pontiac in that short of a time period, and if defendant went to Pontiac and was late coming back, he would be waiving his right to be present during the opening stages of the trial. Defendant indicated he believed he was being punished for being ill and then stated he would just go back to the Dixon Correctional Center (Dixon) (where he was serving his present sentence).

During lunch recess, the court contacted the medical director at Dixon and the medical doctor at Pontiac. The court learned defendant was given powerful pain medication at Dixon to last the day of trial and that defendant had consumed all the medication that morning. The court was advised by the Dixon medical director that defendant had received all the pain medication necessary for his condition. The court was advised by the medical doctor at Pontiac that because defendant was already given pain medication at Dixon, he would not be prescribed more at Pontiac without a full medical exam.

Upon defendant's request, the court sent defendant back to Dixon with the writ team and stated on the writ, as follows:

"[Defendant] is to be produced tomorrow morning, March 28, 1996, at 9:00 a.m. for continuance of jury trial. [Defendant] has chosen to go back to Department of Corrections during his jury trial. He has a right to do that. The trial will continue in his absence unless *** [defendant] tells prison staff on Thursday, March 28, that he wants to go to Pontiac for the rest of his trial."

The court instructed the jurors, upon their return to thecourtroom, that defendant had a hip and back condition for which he was taking medication prescribed for him; however, defendant had decided to return to Dixon due to the pain and discomfort he was experiencing. The court further stated, "[a] defendant in a criminal case has a constitutional right to be present at [his] trial. But [he] also has a right to elect riot to be present," and the defendant has chosen not to be present. The court then instructed the jury that it should not consider defendant's absence as a factor in the case, but should make its decision based on the testimony and evidence.

The next day additional evidence was presented. Defendant did not appear. The court readmonished the jury concerning' defendant's absence. The trial was conducted that day, and the jury returned a verdict of guilty in defendant's absence.

Section 115-4.1(a) of the Code of Criminal Procedure of 1963 (Code of Procedure) (725 ILCS 5/115-4.1(a) (West 1994)) provides that "if trial [has] 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." Defendant recognizes the Supreme Court of Illinois stated in People v. Flores, 104 Ill. 2d 40, 50, 470 N.E.2d 307, 311, 83 Ill. Dec. 349 (1984), that this portion of the statute governing trials in absentia is permissive and not mandatory. Thus, it is within the trial court's discretion whether to wait or proceed to trial. Defendant contends that, here, because his pain prevented him from staying at the trial, he did not voluntarily absent himself from the trial. Thus, defendant maintains the court abused its discretion in failing to continue the trial for two days pursuant to section 115-4.1(a) of the Code of Procedure.

In People v. Owens, 102 Ill. 2d 145, 464 N.E.2d 252, 79 Ill. Dec. 654 (1984), the defendant was present during the trial and part of the sentencing proceedings but requested to be excused from that portion of the proceedings in which evidence of aggravating and mitigating factors was presented. The court informed the defendant it would take the matter under advisement, but following lunch, the defendant stated he was not returning to court and indicated he did not feel well and did not want to be present. The court proceeded without defendant being present. The Owens court upheld the actions of the trial court, reasoning that the defendant's sixth amendment right to be present at every stage of the proceedings can be waived. As a rule, the Owens court noted, "'where a defendant voluntarily absents himself from a courtroom and refuses to be present for further proceedings[,] he is deemed to have waived his right and cannot claim any advantage on account of his absence.'" Owens, 102 Ill. 2d at 157, 464 N.E.2d at 258, quoting People v. De Simone, 9 Ill. 2d 522, 533, 138 N.E.2d 556, 562 (1956).

Here, while defendant stated he wanted to be present during the trial, he placed demands on the court to ensure his presence, which would have been impossible for the court to satisfy. Essentially, defendant wanted to be prescribed more pain medication than the doctors at both Dixon and Pontiac were willing to prescribe, at least without a full examination. Initially, when defendant first complained of pain he failed to even inform the court that he had consumed that morning all the pain medication that was prescribed to last the day. Given the fact that defendant was provided with adequate pain medication to get through the day, together with his clear unhappiness about having to travel several ...

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