People v. Johnson

SECOND DIVISION
December 16, 1997

No. 1-95-3680

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. )
)
LARRY JOHNSON, ) Honorable
) Daniel J. Kelley,
Defendant-Appellant. ) Judge Presiding

PRESIDING JUSTICE McNULTY delivered the opinion of the court:
Prosecutors charged defendant, Larry Johnson, with violation of
probation. The trial court, after taking testimony from a witness
when defendant was in the hospital, found him guilty as charged.
Defendant appeals from the conviction.
In 1990 the Cook County grand jury returned three indictments
charging defendant with delivery on three separate occasions of less
than one gram of
"a substance containing a certain controlled substance, to
wit: cocaine, in violation of chapter 56-1/2, section 1401
d." (Emphasis omitted.)
The trial court, in a bench trial, found defendant guilty on all
three counts. On February 21, 1991, the court sentenced defendant
to four years' probation on each charge, with the first year being
intensive probation, and all three sentences to run concurrently.
The judge emphasized that he imposed a lenient sentence to give
defendant an opportunity to get help for his drug dependency through
Treatment Alternatives to Street Crimes.
On May 13, 1991, police arrested defendant and charged him with
possession of heroin. Prosecutors petitioned for new sentences on
the three original possession charges because defendant violated the
conditions of his probation. The charge remained pending by
agreement of the parties for four years, while defendant responded
to charges in an unrelated criminal trial which resulted in his
acquittal.
At a status hearing on June 30, 1995, prosecutors informed the
court that the heroin had been destroyed, so they needed to bring in
the original chemist who had since moved to Arizona. Defendant
demanded a speedy trial. The court set a trial date of July 27,
1995.
On the scheduled trial date defense counsel informed the court
that defendant had been admitted to the cardiac unit of Cook County
Hospital on Sunday, July 23, 1995, and doctors expected to release
him by Sunday, July 30. Counsel called prosecutors on July 26,
1995, shortly after he learned that defendant would not be available
on the scheduled trial date, but the chemist had already flown into
Chicago. Defense counsel requested a continuance until Monday, July
31, so that defendant could appear in court. The prosecutor told
the court that the State had to pay the chemist's airfare plus $100
per day and expenses. Defense counsel strenuously objected to
beginning trial without defendant.
Although the judge accepted defense counsel's representations
that defendant had been admitted to the hospital, he said:
"I don't see why the State should have to [bear] the
expense of bringing this witness in. ***
* * *
People shouldn't demand things that they're not
prepared to demand.
* * *
*** I'm going to let the State put on this witness
due to the fact that the witness has come from out of
state *** at the expense of the State.
I don't know the circumstances surrounding
[defendant's] admittance into the hospital ***. ***
[I]t's set for a date certain that he can get out, so ***
it is not a life threatening situation. He was to come to
court. I don't know under what circumstances he is in the
hospital, but I'm going to take this witness' testimony
under oath in open court subject to cross examination."
Defense counsel moved for production of the narcotics for
testing and for dismissal of the charge because the prosecutor could
not produce the narcotics. The trial court denied the motions.
The chemist testified that she received a sealed evidence
envelope containing 22 tinfoil packets. She tested two of the
packets and found they contained heroin.
Defendant came to court when trial resumed a month later.
Officer John Greco testified that on May 13, 1991, a citizen
complained about the conduct of a passenger in a car that the
citizen pointed out. Greco stopped the car and found defendant
sitting in the passenger seat with a bulge in his pants pocket. The
officer retrieved a plastic bag containing 22 tinfoil packets from
that pocket. Greco arrested defendant and inventoried the bag.
The court found defendant guilty of violating his probation.
At the sentencing hearing defense counsel agreed that defendant had
been on probation for three Class 2 felonies when Greco caught him
with the heroin. The court noted that defendant's extensive
criminal history justified a severe sentence, especially because
defendant violated probation less than three months after the court
afforded him considerable leniency. The judge said, "I see no
reason to impose concurrent sentences." The court sentenced
defendant to six years in the custody of the Department of
Corrections on each of the charges, with the sentences to run
consecutively, for a total of 18 years.
Defendant argues on appeal that the conviction for violation of
probation must be reversed because the court began trial and took
testimony from a witness in defendant's absence. The Illinois
Constitution of 1970 guarantees that all defendants in criminal
prosecutions "shall have the right to appear and defend in person
and *** to be confronted with the witnesses against him." Ill.
Const. 1970, art. I, 8. The statute governing probation revocation
proceedings expressly applies confrontation rights to such
proceedings. 730 ILCS 5/5-6-4(c) (West 1994). "[T]rials in
absentia should be abhorred because of their inherent unfairness to
the defendant." People v. Coppage, 187 Ill. App. 3d 436, 442, 543 N.E.2d 269 (1989).
A defendant may waive his confrontation right by voluntarily
failing to appear, and the court then has discretion to try the
defendant in absentia. People v. Sherrod, 279 Ill. App. 3d 383,
387, 664 N.E.2d 1066 (1996). When a defendant challenges a trial
court's decision to hold a probation revocation hearing in his
absence, "[t]he issue then becomes whether defendant voluntarily
waived his right to be present." People v. Hall, 134 Ill. App. 3d
836, 841, 480 N.E.2d 1387 (1985).
The trial court here accepted defense counsel's representation
that defendant was hospitalized on the first day of trial. Although
Illinois courts have not squarely addressed this issue, all other
state courts in which the situation has arisen have held that
hospitalization, at least in the absence of a voluntary act like a
suicide attempt, shows the defendant's absence is not voluntary, and
therefore the court must not take testimony. E.g., Godwin v. State,
501 So. 2d 154, 155 (Fla. Dist. Ct. App. 1987); People v. Valdez,
135 A.D.2d 761, 762, 522 N.Y.S.2d 666, 667 (1987); Maupin v. State,
694 P.2d 720, 723 (Wyo. 1985).
The prosecution, relying on People v. Bean, 137 Ill. 2d 65, 560 N.E.2d 258 (1990), argues that this court should affirm the
conviction because "defendant offers no evidence nor argument of how
his presence would have aided defense counsel in the cross
examination of this technical witness." In Bean the trial court
questioned six members of the venire in chambers without permitting
defendant to come into chambers. Because defendant objected neither
at trial nor in his post-trial motion, our supreme court reviewed
the issue only for plain error. The court held:
"[N]o plain error occurred because, although
defendant's broad right of presence was improperly denied
and could have affected the impartiality of the jury,
defendant's absence *** did not, in fact, have the
slightest effect on the impartiality of the jury selected.
***.
Defendant tries to support his position by citing
cases he believes established an absolute, inflexible
right of presence throughout trial in Illinois; but each
of these cases shares one significant limiting fact: The
defendants were absent when witnesses testified." Bean,
137 Ill. 2d at 81-82.
Here, by contrast, defendant properly preserved his objection
to the court's decision to receive testimony in his absence.
Because the court's decision to proceed when defendant's absence was
not voluntary violated his substantial constitutional and statutory
right to defend in person and confront the witnesses against him,
the conviction must be reversed. See People v. Fields, 255 Ill.
App. 3d 787, 629 N.E.2d 62 (1993) (sentence reversed due to
defendant's involuntary absence, without showing of prejudice).
Defendant raises two further issues which we choose to address
here because they are likely to arise again on remand. The original
indictments for the three possession counts all charged defendant
with possession of cocaine in violation of "chapter 56-1/2, section
1401 d" of the Illinois Revised Statutes. Although defense counsel
at sentencing agreed that the indictments charged him with Class 2
felonies, the section in force at the time of the offense provided:
"[I]t is unlawful for any person knowingly to *** deliver
*** a controlled or counterfeit substance or controlled
substance analog. ***
*** [A]ny person who violates this Section with
respect to:
* * *
(c) any other amount of a controlled or counterfeit
substance *** which is a narcotic drug is guilty of a
Class 2 felony. ***
(d) any other amount of a controlled or counterfeit
substance *** which is not a narcotic drug is guilty of a
Class 3 felony." Ill. Rev. Stat. 1989, ch. 56«, par.
1401.
Defendant argues that on remand the prosecution must be limited
to proving that he violated probation on three Class 3 felonies,
rather than three Class 2 felonies, and if he is found guilty the
sentence must similarly reflect the conviction for Class 3 felonies.
The court treated the indictments as charges that defendant
violated section 401(c), thereby committing Class 2 felonies, rather
than Class 3 felonies of violating section 401(d). The court
effectively amended the indictment.
"Any amendment to an indictment must originate with the grand
jury unless such amendment corrects only a formal defect in the
charge." People v. Patterson, 267 Ill. App. 3d 933, 938, 642 N.E.2d 866 (1993). Courts may permit amendment of incorrect statutory
citations in some circumstances. People v. Ryan, 117 Ill. 2d 28,
37, 509 N.E.2d 1001 (1987). "Where the language of the indictment
sufficiently informs a defendant of the charges against him, and
defendant cannot demonstrate any prejudice resulting from an
incorrect statutory citation, the defect is formal ***." People v.
Witt, 227 Ill. App. 3d 936, 944, 592 N.E.2d 402 (1992). Therefore,
"[a]mendments of statutory provisions have been allowed where the
offense which the grand jury intended to bring was clear and the
figures printed on the indictment were only misprints." People v.
Betts, 78 Ill. App. 3d 200, 202, 397 N.E.2d 106 (1979).
In Betts the grand jury charged the defendant with delivery of
"'Dexedrine, a controlled substance *** which is a narcotic ***'
([e]mphasis added)" (emphasis in original) (Betts, 78 Ill. App. 3d
at 201), in violation of the part of section 1401 applicable to
narcotics. The trial court permitted the prosecution to amend the
indictment to charge the defendant with delivery of a controlled
substance which is not a narcotic, in violation of a different part
of section 401 applicable to nonnarcotic controlled substances. The
appellate court reversed the conviction, stating:
"Because both the term 'narcotic' and the statutory
provision referring to narcotics were used, we conclude
that it was the grand jury's intention to charge an
offense involving a narcotic under par. 1401(b). Deleting
the reference to narcotics substantially changed the grand
jury's charge." Betts, 78 Ill. App. 3d at 202.
Here, on the other hand, the grand jury charged defendant with
delivering cocaine without including mention of the fact that
cocaine is a narcotic. The grand jury cited the inappropriate
statutory section applicable to nonnarcotic controlled substances.
Defense counsel and defendant at trial and at sentencing showed
their understanding that the grand jury had indicted defendant for
the Class 2 felony of possession of narcotics. The indictment
reflected the grand jury's intention to charge defendant with
cocaine possession in violation of section 401(c), and defendant
demonstrated no prejudice resulting from the incorrect citation of
section 401(d). Accordingly, on remand the trial court should treat
the three convictions for which defendant obtained probation as
Class 2 felonies.
Finally, defendant argues that the court should bar evidence of
the chemist's tests because the State destroyed the substance tested
prior to trial. In People v. Newberry, 166 Ill. 2d 310, 652 N.E.2d 288 (1995), the prosecution charged the defendant with possession of
cocaine. The defendant promptly filed a written motion to examine
all tangible objects seized from the defendant. One year later the
prosecution informed the defendant that police negligently destroyed
the substance seized. Newberry, 166 Ill. 2d at 312-13. The trial
court dismissed the indictments. Prosecutors argued on appeal that
the defendant had not shown that police acted in bad faith when they
destroyed the evidence. Our supreme court responded:
"Where evidence is requested by the defense in a discovery
motion, the State is on notice that the evidence must be
preserved, and the defense is not required to make an
independent showing that the evidence has exculpatory
value in order to establish a due process violation.
[Citation.] If the State proceeds to destroy the
evidence, appropriate sanctions may be imposed even if the
destruction is inadvertent. No showing of bad faith is
necessary." Newberry, 166 Ill. 2d at 317.
Therefore the court affirmed dismissal of the charges. Similarly,
in People v. Taylor, 54 Ill. App. 3d 454, 457-58, 369 N.E.2d 573
(1977), the appellate court held that "whenever an accused seeks by
timely motion a sample of the allegedly controlled substance, *** a
heavy burden devolves upon the State either to produce a testable
sample or to prove by clear and convincing evidence that the
destruction of all of the substance in its possession was
necessary."
In both Newberry and Taylor the courts emphasized the
importance of timely requests. When the defendant has not made such
a timely request, the defendant must present evidence that the State
acted in bad faith when it destroyed the evidence. People v. Hall,
235 Ill. App. 3d 418, 426-27, 601 N.E.2d 883 (1992). Here defendant
did not file a written request for production of the evidence until
July 27, 1995, more than four years after police seized it and he
was charged with possession. The request came less than 30 days
after prosecutors informed defendant and the trial court that the
evidence had been destroyed. We agree with the trial court that
this request is not timely, and therefore testimony concerning
testing of the seized substance is admissible on remand unless
defendant can show that acts in bad faith caused destruction of the
evidence.
Because the trial court heard testimony when defendant was
involuntarily absent, the conviction for violation of probation is
reversed and the cause is remanded for proceedings not inconsistent
with this order.
Reversed and remanded.
TULLY and FROSSARD, JJ., concur.