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December 11, 1997



Released for Publication January 22, 1998.

The Honorable Justice South delivered the opinion of the court. Hoffman, P.j., and Hartman, J., concur.

The opinion of the court was delivered by: South

The Honorable Justice SOUTH delivered the opinion of the court:

Norman Stokes and Charles Lawrence were charged by indictment with attempted first degree murder, armed robbery, home invasion, aggravated battery, and armed violence. The State nolle-prossed the aggravated battery and armed violence counts. Defendants were found guilty on the charges of attempted first degree murder, armed robbery and home invasion. The court sentenced Stokes and Lawrence to 15 years imprisonment to be served concurrently on each count. Stokes appeals from this judgment.

On October 5, 1994, defendant's case was called for jury trial. Neither defendant nor his attorney were present and the assistant State's Attorney informed the court that defendant was incarcerated in the 7th District from an incident that occurred the night before, but he was I-bonded over and directed to be in court. The judge passed the case. When the case was recalled, defendant's attorney represented that defendant was in route, that he had been released from the 7th District at 9:30 a.m., and that his mother was bringing him to court as soon as possible. The judge indicated that he would wait for defendant, and the case was passed again.

At approximately 11:15 a.m., the court swore in the voir dire panel without any defense attorneys or defendant being present. A recess was taken after the court informed the panel that "we are waiting for everybody to arrive. I expect them any moment. In fact they are a little late now. As soon as everybody has arrived we will begin promptly."

During the recess, the court stated on the record that counsel for Lawrence and defendant Lawrence arrived at 11:44 a.m. At 11:55 a.m., the court discovered that Stokes' attorney had left the building. The court fined him $1000 in direct contempt for delaying the trial approximately 45 minutes.

When the trial resumed, both defense attorneys were present, but Stokes had not arrived. The court informed the prospective jurors:

"Regarding Mr. Stokes he is in route is my understanding. I wanted to get started. He will be with us momentarily but I will get into that also in a moment."

The court proceeded to conduct 22 voir dire examinations outside of defendant's presence. Defense counsel exercised five preemptory challenges before defendant arrived. The State challenged six prospective jurors, and two jurors were excused for cause by the court. The judge then stated on the record that defendant had arrived, but he did not state a time. Defense counsel never objected to the court proceeding with trial in defendant's absence.

On the evening of February 10, 1994, Derrick Williams, who had previously been convicted of burglary, was in his home at 2417 West 70th Street. Williams lived in the west apartment on the second floor with his girlfriend Shariba Riley, and his friends Carl Henderson and Fletch. At 10 p.m., Williams, Shariba, Carl, Tyrone, Fletch and a friend named Juice were in the apartment. Williams, Shariba and Tyrone were in the bedroom and Carl, Fletch and Juice were in the living room. Everyone was drinking beer, and Williams was smoking marijuana. As Williams sat in the bedroom, he heard a loud "boom" and someone say, "stickup." When Williams heard "stickup," he tried to hide his money in a couch in the bedroom. He then looked out the bedroom door and saw a tall man wearing a beige coat holding a silver pistol and a short man holding a sawed-off shotgun enter the apartment. These men entered the bedroom which was illuminated with an electric light and candles. The man with the shotgun left the bedroom, and the other man waved a gun and told everyone to get on the floor. Williams did not get on the floor but went toward the man with the gun. The man grabbed Williams causing him to fall over a table and to the floor. This man grabbed Williams by the neck and fired twice. One bullet struck Williams in the head. He felt a sting, passed out and then revived. He never completely lost consciousness. After the shots, the men ran out the back door.

Williams left the apartment through the front door and went to the corner of 70th and Western Avenue. The police and an ambulance came to the scene, and Williams was taken to the hospital where the bullet was surgically removed from his head. After the incident, Williams discovered he had $100 missing from his pocket. Williams did not know who took his money because he passed out for a second after he was shot. He could only say that it was the tall man who shot him. The short man had Juice and Fletcher on the living room floor and placed Henderson in the bathroom with the door shut.

At a lineup conducted a few days later, Williams could not positively identify either defendant. Shariba identified the short man with the sawed-off shotgun as Charles Lawrence, while Henderson ...

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