The opinion of the court was delivered by: Justice Inglis
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
Appeal from the Circuit Court of Lake County.
Honorable John R. Goshgarian, Judge, Presiding.
Following a bench trial, defendant, Ernestine Smith, was convicted of unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 1996)) and sentenced to six years' imprisonment. Defendant appeals her conviction and contends that the trial court abused its discretion by starting the trial in her absence without first determining whether she was willfully absent.
At trial, two North Chicago police officers testified that they participated in the execution of a search warrant at an apartment in North Chicago on January 31, 1997. Pursuant to the execution of the warrant, defendant was handcuffed with her hands behind her. Both officers testified that while defendant was handcuffed they saw her reach into one of her pockets. One of the officers testified that defendant reached into the left front pocket of her sweat pants. The other officer testified that he could not recall which of her pockets defendant reached into but that it could have been a jacket pocket. Because defendant had not yet been searched for weapons when the officers saw her reach into her pocket, one of the officers grabbed defendant's arm and pulled her hand out of her pocket. As defendant's hand was pulled from her pocket, a plastic baggie fell from her hand. It was later determined that the baggie contained .11 gram of crack cocaine.
Defendant testified that the baggie containing the crack cocaine was not hers. Defendant theorized that the police mistakenly concluded that the baggie was hers and that it actually belonged to another occupant of the apartment. Defendant posited that she could not have reached into her front pocket while she was handcuffed with her hands behind her.
The trial court entered a finding of guilty. After denying defendant's motion for a new trial, the trial court sentenced defendant to six years' imprisonment. Defendant's timely appeal followed.
On appeal, defendant contends that the trial court abused its discretion by starting her trial in her absence. At her arraignment on February 28, 1997, the trial court advised defendant that her trial date was March 17, 1997. The court also advised defendant that she must be present at the trial or else the trial could proceed without her. The court cautioned defendant that if her trial proceeded in absentia it would mean that she would not be able to confront witnesses or cooperate with her attorney. At a pretrial hearing held on March 11, 1997, defendant waived her right to a jury trial.
At another hearing held on March 14, 1997, defendant advised the trial court that she was planning to have a tubal ligation and that she needed to do something in connection with that on the day of the trial. The Judge asked defendant if she could do it in the afternoon on that day. Defendant stated that she could do it in the afternoon. The Judge then advised defendant that her trial would begin at 9 a.m. and assured defendant that her trial would be over before noon.
On March 17, 1997, the scheduled trial date, defendant's trial was called at or soon after 9 a.m. Defendant's attorney then stated that defendant was not present. Defendant's attorney also stated that at the previous hearing defendant had mentioned a medical situation that she had to attend to. Defendant's attorney made an oral motion to continue the matter until defendant arrived.
The State objected to a continuance. The trial court then commented that the medical situation had been dealt with and denied the motion for a continuance. The trial court then asked the State if it wished to proceed with the trial in absentia. The State's attorney replied "yes." Defendant's attorney objected. The trial court then stated, "She was advised of her right to be here, that if not, she could be tried in absentia, and therefore we will proceed, if the State wishes."
Following brief opening statements, the State presented the testimony of its first witness, one of the North Chicago police officers. While that witness was giving direct testimony, defendant entered the courtroom. The record shows that defendant entered the courtroom at about 9:35 a.m. Defendant's attorney then advised the court that defendant had arrived. The court stated "Okay. Have her take a seat and we will continue with the trial." Defendant was present for the remainder of the trial, including the cross-examination of the first witness. When she entered the courtroom, defendant did not offer any explanation for her tardiness. After the trial court found defendant guilty, the State asked that defendant's bond be revoked. At that point, defendant stated that her daughter was outside of the courtroom and suggested that her daughter had somehow caused her to be late for her trial. Defendant offered no other reason for her tardiness.
On appeal, defendant contends that the trial court abused its discretion and violated her constitutional rights by proceeding with her trial in absentia. Defendant asserts that the trial court erred by failing to determine ...