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People v. Montes

Court of Appeals of Illinois, Second District

June 28, 2013

AUGUSTINE T. MONTES, Defendant-Appellant.

Held [*]

Defendant’s convictions in absentia for attempted first-degree murder and aggravated discharge of a firearm were upheld where defendant was properly admonished about a trial in absentia, the trial was scheduled when he was in court, he failed to appear for trial and offered no explanation, an audio recording of the offenses made by an informant was properly admitted as substantive evidence, the jury was properly allowed to review a transcript of the recording, and the evidence was sufficient to establish defendant’s guilt beyond a reasonable doubt.

Appeal from the Circuit Court of Kane County, No. 05-CF-2797; Review Hon. T. Jordan Gallagher, Judge, presiding.

Matthew J. Haiduk, of Geneva, for appellant.

Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M. Bauer and Joan M. Kripke, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices Hutchinson and Schostok concurred in the judgment and opinion.



¶ 1 On May 5, 2010, defendant, Augustine T. Montes, was convicted in absentia of attempted first-degree murder (720 ILCS 5/8-4(a), 9-1(a) (West 2004)) and aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2004)). Defendant filed four motions for a new trial. On February 4, 2011, the trial court denied defendant's posttrial motions and sentenced him (defendant was present at sentencing) to 26 years' imprisonment for attempted murder and a concurrent 10-year term for aggravated discharge of a firearm.

¶ 2 Defendant appealed and, on October 15, 2012, we granted the State's motion to dismiss the appeal for lack of jurisdiction. People v. Montes, 2012 IL App (2d) 111132-U. On January 30, 2013, however, the supreme court, under its supervisory authority, directed us to vacate our order and to consider defendant's appeal on the merits. People v. Montes, No. 115244 (Jan. 30, 2013). We do so now.

¶ 3 On appeal, defendant argues that: (1) the trial court erred in trying him in absentia; (2) the court erred in admitting substantively an audio recording of the crime; (3) the court erred in allowing the jury to review a transcript as an aid in understanding the audio recording; and (4) the evidence was insufficient to establish his guilt beyond a reasonable doubt. For the following reasons, we affirm.


¶ 5 A. In Absentia Admonishments

¶ 6 On February 22, 2006, an amended indictment charged that, on November 22, 2005, defendant took a substantial step toward committing murder, by personally discharging a firearm at Julian Ramos. Further, defendant was charged with aggravated discharge of a firearm, in that he discharged the firearm in Ramos's direction.

¶ 7 On December 22, 2006, defendant appeared before the court, entered a not-guilty plea, waived formal reading of the indictment, and reserved his right to a jury trial. At that time, the court admonished defendant that he had rights to trial by court, trial by jury, and counsel, as well as the right to confront the witnesses against him. The court further admonished that: "If you fail to appear at any scheduled court hearing, that would be considered as a waiver of your right to confront the witnesses against you and that hearing could proceed in your absence." When asked if he understood those rights, defendant answered, "Yes, your Honor."

¶ 8 On March 12, 2007, defendant posted bond and signed a certificate that stated that he understood that the terms and conditions of his bond included that, if, at any time prior to the final disposition of the charges, he failed to appear in court when required, the result would be a waiver of his right to confront witnesses against him and "the trial can proceed in [his] absence."

¶ 9 Thereafter, defendant appeared at the majority of scheduled court hearings, including on January 14, 2010, when the court continued the case to April 30, 2010, with a jury trial scheduled to commence three days later, on May 3, 2010. On April 30, 2010, however, defendant did not appear in court. Defense counsel informed the court that he had been meeting regularly with defendant, but that defendant did not appear at their last scheduled meeting. Counsel stated that he had sent defendant a letter, telling him to appear in court on April 30, 2010, and that he had fully expected defendant to be present. Counsel asked for a continuance, stating that he did not know where defendant was and that defendant might be in custody somewhere. Counsel further represented that defendant was not, however, in custody with the Kane County sheriff's department.

¶ 10 The assistant State's Attorney informed the court that, when defense counsel alerted her to the fact that defendant did not appear to meet with him, she ran a new "rap sheet" to learn whether defendant had been "picked up"; there was no arrest reflected thereon. She informed the court that, since defendant's last court appearance (in February 2010), a grand jury had indicted defendant for delivering, on two different occasions, cocaine to a narcotics task force officer. There was an outstanding warrant for defendant's arrest in that case; the assistant State's Attorney explained that, for more than one month, the police had been unable to arrest defendant and, so, perhaps he had left the area. The State wished to proceed with trial on May 3, 2010, even if defendant did not appear. The assistant State's Attorney showed the trial judge the transcript from defendant's arraignment, wherein he was admonished regarding a trial in absentia. The State noted that it had witnesses ready, including a witness who would be coming in over the weekend from out of state.

¶ 11 The court reviewed the transcript and stated, "[f]or the record, I guess this language would be sufficient to make a finding that [defendant] was on notice of the potentiality of a trial in absentia." Further, the court noted that defendant was present on the court date when the trial date was scheduled. Defense counsel noted that the admonishment stated only that a "hearing" could be conducted in defendant's absence and not, per section 113-4(e) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/113-4(e) (West 2004)), that a "trial" could proceed in defendant's absence. Defense counsel asked for a continuance. The court replied that it had "noticed that the language used was the word hearing as opposed to trial, but I still think that it covers the necessary admonishment about trial in absentia." Accordingly, the court denied the request for a continuance and ordered that trial would proceed, as scheduled, the following Monday.

¶ 12 B. Trial

¶ 13 On Monday, May 3, 2010, defendant did not appear, and trial proceeded in his absence.

¶ 14 1. Officer Hornback

¶ 15 Officer Danny Hornback testified that, on November 22, 2005, at around 12:30 p.m., he responded to a call that shots were fired in a residential area near 191 North Calhoun Street in Aurora. While en route to that location, Hornback was advised via radio that the intended victim, Julian Ramos, had run from the location of the shooting and was now in the area of Farnsworth and Liberty Streets. Hornback arrived there and found Ramos inside a pickup truck, hiding below the dashboard. Ramos was visibly shaken, but not injured. Ramos explained that someone shot at him three or four times. He reported seeing four people in a green, four-door Pontiac Bonneville. Only one person, the shooter, exited the vehicle. The shooter was primarily dressed in black with a white, hooded sweatshirt. Hornback and Ramos returned to the scene, but did not find any shell casings or a weapon. Hornback asked Ramos if he knew why someone might want to shoot him. Ramos replied that it might be in retaliation for a shooting that he had been involved in a couple of years prior. Hornback asked neighbors if they saw anything, and they did not. Hornback took Ramos home.

¶ 16 2. Victim Ramos

¶ 17 Ramos testified that, on November 22, 2005, he was walking to his girlfriend's house when he saw a green Pontiac Bonneville pass him. Ramos testified that he saw three Hispanic men and one African-American man in the car (although, on cross-examination, he testified that he could not tell if the vehicle's occupants were male or female). Ramos noticed someone get out of the car and, so, he began to run; shortly thereafter, when he looked over his shoulder, no one was there. Ramos believed that something was suspicious, so he kept running. Ramos said he was not paying close attention "at all" to what the person was wearing, but when he "just glanced over" he saw a black, hooded sweatshirt. Ramos continued to run and then began walking quickly down various streets.

¶ 18 Ramos came to a corner and saw the green Bonneville at a gas station. At that time, he saw only the driver, an African-American male wearing a white, hooded sweatshirt, in the car. Ramos froze, but then began running. At some point, he turned around and saw someone about 35 to 40 feet away pointing a gun at him. The person holding the gun was wearing a black "hoody"; Ramos explained that it was a baggy sweatshirt and the hood was over the person's head, so he could not see his or her face. He could not tell if the person was male or female. The person was heavyset and likely weighed around 230 pounds. Ramos agreed that he did not provide this description to Hornback at the time of the incident. Ramos saw a gun and then turned around and heard "shots fired"; he started running and screaming "I ain't no King." Ramos continued running, jumped a fence, and ran onto a busy four-lane street asking for help. A man in a white truck stopped and allowed Ramos to climb into the truck. Ramos was asked how many shots he heard, and he replied, "One. No more than one." Ramos knew the sound to be a gunshot, as he had heard gunshots before.

¶ 19 3. FBI Agent Camacho

ΒΆ 20 Special agent Larissa Camacho testified that she is employed by the FBI and is currently assigned to run the informant program at the FBI's Chicago office. In 2005, she was assigned to the West Suburban Violent Gang Task Force. In early 2005, Camacho was familiar with the Aurora Latin Kings street gang and received information about a potential cooperator named Blake Pannell. At the time, Pannell was serving a sentence in the Department of Corrections. After interviewing Pannell, the FBI decided to use him as an informant. Camacho explained that it is very difficult for an outsider to infiltrate a gang; therefore, it is useful for the FBI to have as an informant someone who is already a trusted member of the gang. Pannell's agreement to cooperate with the FBI (as well as the Aurora police department and Kane County sheriff's office) included his truthful admission to his past crimes and a willingness to testify before grand juries in federal and state courts. Further, Pannell agreed to wear a recording device and have it with him the majority of the time. Pannell was released from prison and placed on probation. Although Pannell admitted to his involvement in 16 or 17 shootings (including one wherein he was the shooter and killed someone), selling narcotics, and other gun crimes, he was essentially given immunity and was never charged with those crimes. In ...

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