Appeal from the Circuit Court of the 12th Judicial Circuit Will County, Illinois No. 99-CF-189 Honorable Stephen D. White Judge Presiding
The opinion of the court was delivered by: Justice Lytton
Defendant Christopher McDonald was convicted of first degree murder, two counts of aggravated battery with a firearm, aggravated discharge of a firearm, and unlawful use of a weapon by a felon. On appeal, he claims that the trial court abused its discretion: (1) when it denied his motion to dismiss the indictment after ex parte hearings on material witness bonds; (2) when it denied a motion for a mistrial after prosecution testimony about bloodhound evidence; and (3) in sentencing defendant. We affirm.
On February 9, 1999, John Gholston was driving a stolen car with three passengers, Derrick Gholston, Lucias Byes and Courtney Ward. As Gholston parked the car, defendant came up to the vehicle, and an argument ensued. When John Gholston got out of the car, defendant shot him; defendant then shot inside the car wounding Derrick Gholston and Lucias Byes. Courtney Ward escaped from the vehicle without injury. John Gholston died as a result of the shooting.
After defendant was indicted, the State petitioned the court for material witness bonds for Byes, Ward and Raymond Keyes, a potential witness to an inculpatory statement that defendant purportedly made. Each petition alleged that the witness feared for his safety because Derrick Gholston had been shot and killed on February 20, 1999. Byes' petition also alleged that he planned on leaving the Joliet area.
Neither defendant nor counsel received copies of the petitions or notice of the hearings on the material witness bonds, and neither was present at the hearings. Defendant's counsel later found out about the hearings and filed a motion to dismiss the indictment, which the court denied. A jury found defendant guilty of first degree murder, two counts of aggravated battery with a firearm, aggravated discharge of a firearm, and unlawful use of a weapon by a felon.
I. THE MATERIAL WITNESS BOND HEARINGS
In Illinois, material witness bonds are a statutorily authorized procedure. 725 ILCS 5/109-3(d) (West 1998). Generally, section 109-3 concerns preliminary examinations, or hearings, for felony defendants. If a defendant is held to answer after a preliminary hearing, the judge "may require any material witness for the State or defendant to enter into a written undertaking to appear at the trial." 725 ILCS 5/109-3(d) (West 1998). The court can then order the witness to execute a recognizance bond which provides for a forfeiture of a sum certain in the event the witness fails to appear. 725 ILCS 5/109-3(d) (West 1998).
When a witness is brought before it, the court must decide whether facts exist to warrant requiring a recognizance bond. Howard v. Grace, 18 Minn. 398, 401 (1872). Generally, if the court determines that the witness is material and that there is a danger that the testimony will be lost, the court may take security, including a recognizance bond, to insure the witness' attendance. Howard, 18 Minn. at 402. Where confinement is contemplated for one not charged with a crime, a court should be very circumspect in granting material witness bonds. State v. Reid, 114 Ariz. 16, 25, 559 P.2d 136, 145 (1976). A court must balance the need for a witness to appear at trial with the witness' constitutional right to freedom from unnecessary restraint. Goodrich v. Warden, 137 N.Y.S.2d 437, 438 (Sup. Ct. 1954).
In this case, defendant argues that his constitutional right to be present was violated when each of the material witness bonds were issued at ex parte hearings. Neither defendant nor his attorney had notice of the hearings. Indeed, defendant says that he never would have known about them except for an accidental discovery.
The State contends that defendant had no right to appear at the hearings and cites several cases involving pretrial or posttrial motions to support its argument. *fn1 In all of the cited cases, however, defendant or counsel had notice, and counsel attended the hearing. Here, neither counsel nor defendant received notice.
Defendants have the right to appear and defend themselves in person at all stages of trial. U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §§2, 8; People v. Mallett, 30 Ill.2d 136, 195 N.E.2d 687 (1964). A defendant should have notice of every stage of trial. The State and defendant appear to agree that the material witness bond hearing was a stage of defendant's trial. There is no question that he should have had notice of the filing of the petitions and the hearings, and it was clear error not to have given him notice.
Defendant does not argue that the hearing alone was a critical stage of his trial, but he does claim that prejudice flowed from the lack of notice because the trial court was ...