People v. Smith

No. 2--97--0471
________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Lake County.
)
Plaintiff-Appellee, )
) No. 97--CF--291
v. )
)
ERNESTINE SMITH, ) Honorable
) John R. Goshgarian,
Defendant-Appellant. ) Judge, Presiding.
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JUSTICE INGLIS delivered the opinion of the court:
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 whether she was willfully absent
before proceeding without her.
An accused has a basic right guaranteed by the United States
Constitution (U.S. Const., amend. VI; Illinois v. Allen, 397 U.S. 337, 25 L. Ed. 2d 353, 90 S. Ct. 1057 (1970)) and the Illinois
Constitution (Ill. Const. 1970, art. I, 8) to be present in the
courtroom at every stage of her trial. However, an accused waives
this right when she voluntarily absents herself from her trial.
People v. Owens, 102 Ill. 2d 145, 157 (1984).
The Code of Criminal Procedure of 1963 provides that a
defendant's willful absence is a prerequisite for a trial in
absentia. 725 ILCS 5/115--4.1(a) (West 1996). The State
establishes a prima facie case of willful absence by proving that
the defendant (1) was advised that her failure to appear could
result in a trial in absentia, (2) was advised of her trial date,
and (3) did not appear for her trial. People v. Nivens, 239 Ill.
App. 3d 1, 7 (1992). When a defendant is willfully absent, whether
to proceed in the defendant's absence is within the discretion of
the trial judge. See People v. Flores, 104 Ill. 2d 40, 50 (1984).
In this case, defendant does not dispute that the State
established a prima facie case for her willful absence. Rather,
defendant contends that the trial court nonetheless abused its
discretion by proceeding with her trial in absentia. In support of
her position, defendant relies primarily on People v. Jones, 269
Ill. App. 3d 925 (1995).
In Jones, the defendant was not present when his trial, which
had been continued for closing arguments, was called for resumption
at 9 a.m. In response to the trial court's question regarding what
should be done, defendant's attorney stated, "[W]ell, go ahead."
Jones, 269 Ill. App. 3d at 928. The closing arguments began about
9:05 a.m. The defendant testified at a posttrial hearing that he
arrived at the courtroom about 9:15 on the day of the closing
arguments but that a bailiff prevented him from entering the
courtroom until the arguments were completed or were almost
completed. The defendant also testified that he was late because
he was "stressed." Jones, 269 Ill. App. 3d at 929.
The Appellate Court, Fourth District, concluded that the trial
court abused its discretion by proceeding with the defendant's
trial in absentia. The court noted that the defendant had appeared
previously, was only 15 minutes late, and that no attempt had been
made to locate the defendant. The court stated that heroic efforts
were not necessary but that "[t]he trial court should have sought
further information about defendant's situation before proceeding
with the trial." Jones, 269 Ill. App. 3d at 930.
It is not clear from the Jones opinion whether the defendant
in that case had been advised that his trial could proceed in
absentia if he failed to appear for the trial. Thus, it is not
known whether the State established a prima facie case of willful
absence in Jones. However, we disagree with Jones to the extent
that it holds that when the State has established a prima facie
case of willful absence a trial court abuses its discretion if it
proceeds with a trial in absentia unless it first tries to
determine why the defendant is absent. We believe that where a
defendant has been advised of her trial date and that her failure
to appear could result in a trial in absentia the defendant has the
burden of contacting the court to explain any failure to appear.
It is the defendant's duty to keep track of her court date, to
appear when required, and to keep the court informed of her
whereabouts. Nivens, 239 Ill. App. 3d at 7.
Of course, a trial court may decide to wait before going ahead
without the defendant when a proceeding has been called and the
defendant is not present. A court may also choose to seek further
information as to an absent defendant's whereabouts as required by
Jones. However, we disagree with Jones that a court must make such
inquiries before proceeding. We hold that if the defendant is
absent, has not contacted the court, and a prima facie case of
willful absence has been established a trial court does not abuse
its discretion if, at the State's request, it immediately begins
the proceedings without further inquiry as to the reasons for the
defendant's absence.
In this case, it is undisputed that defendant failed to appear
for her trial after she had been advised of the trial date and time
and that if she failed to appear the trial could proceed in
absentia. Thus, a prima facie case that she was willfully absent
was established. Moreover, defendant did not contact the court to
explain her absence. Under these circumstances, we cannot say that
the trial court abused its discretion when it immediately started
defendant's trial in absentia.
We also note that, after she arrived at the courtroom,
defendant did nothing to rebut the prima facie case of willful
absence. A defendant rebuts a prima facie case of willful absence
only by proving that her absence was not her fault and was due to
circumstances beyond her control. Nivens, 239 Ill. App. 3d at 7.
Here, defendant offered no specific reason for her tardiness.
Defendant's vague statement that her daughter somehow caused her to
be late was insufficient to prove that her absence was not her
fault and was due to circumstances beyond her control. See People
v. Canal, 210 Ill. App. 3d 733, 736 (1991) (neither confusion,
forgetfulness, nor inability to arrange transportation justified
failure to appear).
The judgment of the circuit court of Lake County is affirmed.
Affirmed.
THOMAS and RATHJE, JJ., concur.