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People v. Smith

November 18, 1999


The opinion of the court was delivered by: Justice McMORROW

Agenda 10-May 1999.

At issue in this case is whether the trial court abused its discretion by starting defendant's trial in her absence without first determining whether she was willfully absent. The 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 appealed her conviction, contending that the trial court abused its discretion and violated her constitutional rights by starting her trial in her absence. The appellate court affirmed the judgment of the circuit court, finding that the State had presented a prima facie case that defendant was willfully absent and that the trial court did not abuse its discretion by beginning proceedings in absentia. 298 Ill. App. 3d 1067. We affirm.


The evidence at defendant's trial established that, on the evening of January 31, 1997, police executed a search warrant at an apartment located in North Chicago. Defendant and three men were present in the apartment at the time the warrant was executed. All four of the apartment's occupants were handcuffed and instructed to remain on the floor. Defendant, whose hands were cuffed behind her, began screaming after she was informed that she would be searched for weapons. Defendant then began "squirming around" on the floor and succeeded in placing one of her hands in a front pocket of her sweat pants outfit. When asked by the officers what she had in her pocket, she responded, "Nothing." Suspecting that defendant might have a weapon on her person, the officers grabbed defendant's arm and pulled her hand out of her pocket, whereupon a small plastic bag fell from defendant's hand. It was subsequently determined that the bag contained 0.11 ounces of crack cocaine. A metal tube, characterized as a "crack pipe" by the officers, was also found in defendant's possession.

Defendant was released on a personal recognizance bond on February 1, 1997. On February 19, 1997, defendant was charged by indictment with unlawful possession of a controlled substance, and she was arraigned on February 28, 1997. During the arraignment proceedings, the trial court advised defendant that her trial date was March 17, 1997, and also admonished her that she must be present at that time, and that if she were not present, the trial could proceed without her. The court cautioned defendant that should her trial proceed in absentia, she would not be able to confront witnesses or assist her attorney. During a March 11, 1997, pretrial hearing, defendant waived her right to a jury trial. During another pretrial hearing held on March 14, 1997, defendant advised the trial court that she was planning to have a tubal ligation in the near future and made vague statements that she needed to do something in connection with that medical procedure on the day her trial was scheduled. The trial court Judge inquired of defendant whether she could attend to her medical needs during the afternoon of March 17. When defendant responded in the affirmative, the Judge advised defendant that her trial would begin at 9 a.m. on March 17, 1997, and assured her that the proceedings would be completed before noon.

On the morning of March 17, the scheduled trial date, defendant was not present in court when her case was called at 9 a.m. Defense counsel orally moved for a continuance, advising the court that during the March 14 pretrial hearing, defendant stated that she had planned to attend to something connected with her tubal ligation. The State objected. The trial court denied the motion, and commented that issues dealing with defendant's upcoming medical procedure had been "dealt with" during the March 14 pretrial hearing. The trial court then inquired of the State if it wished to proceed in absentia. The State's Attorney replied "yes," and defense counsel objected. The trial court then stated: "[Defendant] 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."

Both the State and defense counsel thereafter gave brief opening statements. The State was eliciting the direct testimony of its first witness when defendant entered the courtroom at approximately 9:35 a.m. At the time defendant appeared, she did not offer any explanation for her tardiness, and the trial continued. After the State rested its case, defendant testified in her own behalf that the bag containing the crack cocaine was not hers. According to defendant, the drugs belonged to another occupant of the apartment. Defendant also testified that she could not have reached into a front pocket of her clothing while her hands were cuffed behind her back.

The trial court found defendant guilty. The State then requested that the court revoke defendant's bond. At that point, defendant stated that her daughter was outside the courtroom and suggested that her daughter had somehow caused defendant to be late for her trial. Defendant offered no other reason for her tardiness. The court revoked defendant's bond. Subsequently, the trial court denied defendant's motion for a new trial and sentenced her to a six-year term of imprisonment.

The appellate court affirmed. 298 Ill. App. 3d 1067. Relying upon a long line of appellate court decisions, the court found that the State had established a prima facie case that defendant was willfully absent from the courtroom at the start of her trial. The appellate court additionally determined that defendant failed to rebut the State's prima facie case of willful absence. The court held that defendant's vague statement that her daughter had somehow caused her to be late was insufficient to show that defendant's absence was not her fault and was due to circumstances beyond her control. The appellate court held that the trial court did not abuse its discretion by commencing proceedings in absentia without further inquiry with respect to the reasons for defendant's absence.

We granted defendant's petition for leave to appeal. 177 Ill. 2d R. 315.


A criminal defendant has a constitutional right to be present at all stages of trial and to confront all witnesses against the defendant. U.S. Const., amend. VI; Ill. Const. 1970, art. I, §8. Trials conducted in the absence of a defendant are not favored, and courts are reluctant to permit a trial to proceed in a defendant's absence. People v. Partee, 125 Ill. 2d 24, 40 (1988); People v. Davis, 39 Ill. 2d 325, 330-31 (1968). However, it is well established that "[i]t is not only defendant's right to be present, but it is also [defendant's] duty, especially where [defendant] has been released on bail." People v. Steenbergen, 31 Ill. 2d 615, 618 (1964); see also People v. Davis, 39 Ill. 2d 325, 330 (1968); People v. Smith, 189 Ill. App. 3d 80, 83 (1989); People v. Johnston, 160 Ill. App. 3d 536, 541 (1987); People v. Burns, 117 Ill. App. 3d 123, 128 (1983); People v. Clark, 96 Ill. App. 3d 491, 495 (1981). A defendant waives the right to be present when the defendant voluntarily absents himself or herself from trial. People v. Owens, 102 Ill. 2d 145, 157 (1984); Davis, 39 Ill. 2d at 330; Steenbergen, 31 Ill. 2d at 618. This rule is grounded in the rationale that to allow a defendant to stop trial proceedings by his or her voluntary absence would allow a defendant to profit from his or her own misconduct. Owens, 102 Ill. 2d at 157; Steenbergen, 31 Ill. 2d at 618. A trial court's decision to proceed with a trial in absentia will not be reversed unless the trial court abused its discretion. People v. Flores, 104 Ill. 2d 40, 50 (1984).

Section 115-4.1 of the Code of Criminal Procedure (the Code) sets forth the circumstances in which a trial in absentia may be conducted. In enacting section 115-4.1(a), the "legislature's intention was to provide for a trial in absentia, within constitutional limits, if a defendant willfully and without justification absented himself from trial." People v. Maya, 105 Ill. 2d 281, 285 (1985). Section 115-4.1(a) provides in pertinent part:

"When a defendant after arrest and an initial court appearance for a non-capital felony, fails to appear for trial, at the request of the State and after the State has affirmatively proven through substantial evidence that the defendant is willfully avoiding trial, the court may commence trial in the absence of the defendant." 725 ILCS 5/115-4.1(a) (West 1996).

Defendant contends that the State failed to satisfy its burden, pursuant to section 115-4.1(a), of affirmatively proving through substantial evidence that she was willfully avoiding trial. Section 115-4.1, as amended in 1979 by Public Act 81-1066 (Pub. Act 81-1066, ยง1 (eff. September 26, 1979)), permits trials in absentia where defendants are absent ...

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