*1 (No. 86423. ILLINOIS, OF Appel- OF THE STATE
THE PEOPLE SMITH, lee, Appellant. ERNESTINE Opinion 1999. November filed *2 RATHJE, J., part. took no
HEIPLE, J., concurring. specially and Thomas A. Weller, Defender, Deputy Joseph G. the State Defender, Ap- of the Office of Lilien, Assistant Dvorak, law Defender, of and James J. Elgin, pellate student, for appellant. General, Ryan, Attorney Springfield, E. of
James (Joel Waller, of D. Attorney, Waukegan J. Michael State’s General, and William L. Browers and Bertocchi, Solicitor General, Barrio, Attorneys Chicago, of Adrian J. Assistant counsel), of for People. of delivered the opinion
JUSTICE McMORROW court: in this
At issue case is whether the trial abused in her absence its defendant’s trial starting discretion determining without first whether she was Smith, convicted defendant, The Ernestine absent. (720 a controlled substance possession unlawful *3 (West 570/402(c) 1996)) years’ and to six ILCS sentenced conviction, her appealed Defendant imprisonment. that the trial court abused its discretion and contending by her her trial in rights starting violated constitutional judgment her The court affirmed the absence. of had finding presented the circuit that case that defendant was prima facie by and that the trial court did not abuse its discretion 3d in absentia. 298 Ill. 1067. beginning proceedings We affirm.
BACKGROUND that, trial The evidence at on defendant’s established 1997, a search 31, police of executed evening January De- Chicago. at an located North apartment warrant apartment and three men in the present fendant were the time the warrant was All four executed. apartment’s occupants were handcuffed and instructed to remain Defendant, on floor. whose hands were began screaming her, cuffed behind after she was weapons. informed that she would searched be for Defen- began “squirming dant then around” on floor and placing pocket succeeded in one her of hands in front sweatpants of her outfit. asked When the officerswhat pocket, responded, “Nothing.” she in her had she Suspecting might weapon that defendant have a on her person, grabbed pulled the officers defendant’s arm and pocket, whereupon plastic her of her hand out a small bag subsequently fell from hand. It defendant’s was bag determined that the contained 0.11 ounces crack pipe” by tube, cocaine.A metal characterized as a “crack possession. the officers, also found personal recognizance Defendant was on a released February February 1, 19, 1997, bond on On 1997. defen- charged by posses- dant was indictment with unlawful arraigned substance, sion of a controlled and she was on February During arraignment proceedings, 28, 1997. the trial advised trial defendant that her date was 17, 1997, March and that also admonished her she must present, time, be that if hot she were proceed the trial could without her.‘The court cautioned absentia, should her trial she would torney. be able to assist her confront witnesses or at- pretrial hearing,
During March defen- right jury During pre- dant waived her to a another hearing trial 14, 1997, held on March defendant advised planning liga- the trial court that she was to have a tubal vague tion in made the near future and statements that something she do in connection that medi- needed to procedure day cal on the her trial The was scheduled. judge inquired she could whether *4 during attend medical afternoon of to her needs the affirmative, in the responded 17. When defendant March begin that her trial would advised defendant judge the her that the 17, 1997, and assured March 9 a.m. on noon. before completed would be proceedings date, 17, the scheduled trial of March morning On the her case was court when defendant was for a con- orally counsel moved called at 9 a.m. Defense the March tinuance, during the court that advising planned that- she had defendant stated pretrial hearing, her ligation. connected with tubal something to attend to motion, trial court denied the objected. The State The dealing and commented that issues dur- had been “dealt with” procedure medical upcoming then The trial court ing pretrial hearing. the March absentia. if it of the State wished inquired and defense counsel Attorney replied “yes,” The State’s was objected. “[Defendant] The trial court then stated: here, not, that if she could be right advised of her to be absentia, if tried will proceed, therefore we State wishes.” gave
Both the State and defense counsel thereafter eliciting The State was opening brief statements. defendant testimony direct of its first witness when 9:35 a.m. At the approximately entered the courtroom any explana- defendant she did not offer appeared, time tardiness, After the tion for her and the trial continued. in her own behalf case, rested its defendant testified State crack cocaine was not hers. containing that the bag another defendant, belonged According drugs that Defendant also testified apartment. occupant her into a front pocket she could not have reached cuffed behind her back. while her hands were clothing The then guilty. The trial court found At defendant’s bond. the court revoke requested her daughter stated that point, that her daughter and suggested outside courtroom *5 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 a six-year to term of imprisonment.
The appellate court affirmed. 298 Ill. 3d App. 1067. Relying upon long line of appellate decisions, court found that the State had established a prima facie case that defendant was from the courtroom at the start of her trial. The additionally determined that defendant failed to rebut the State’s prima 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 absentia without further inquiry with to the respect reasons for defendant’s absence.
We granted defendant’s for to petition appeal. leave 177 Ill. 2d R. 315.
ANALYSIS A criminal defendant has constitutional to be right all present at trial and to stages of confront all witnesses against Const., VI; defendant. U.S. amend. Ill. Const. 1970, I, § art. 8. Trials conducted in the absence of a de favored, fendant are not and courts are reluctant a trial permit in a defendant’s absence. proceed People Partee, 24, (1988); Davis, v. 125 Ill. 2d 40 v. 39 Ill. People (1968). 325, However, 2d 330-31 it is well established only “[i]t is not but right present, be it duty, [defendant’s] is also where especially [defendant] People Steenbergen, has been released on bail.” v. 31 Ill. 615, (1964); Davis, 2d 618 People see also v. 39 Ill. 2d 325, (1968); Smith, 80, 330 v. 83 People App. 189 Ill. 3d
341
536,
Johnston,
3d
541
(1989);
App.
v.
160 Ill.
People
(1983);
Burns,
123,
3d
128
(1987);
App.
v.
117 Ill.
People
(1981).
491,
A
Clark,
Ill.
3d
495
defen
v.
96
People
the defendant
to be
when
right
dant waives
People
or herself from trial.
voluntarily absents himself
(1984); Davis,
Ill. 2d at
Owens,
Ill. 2d
v.
grounded
Ill. 2d at 618. This rule is
330; Steenbergen, 31
stop
in the rationale that
to allow defendant
allow
voluntary
his or her
absence would
proceedings
from his or her own misconduct.
profit
a defendant
157;
Section 115—4.1 of the Code of Criminal Procedure *6 (the Code) sets forth the circumstances in which of 1963 In enacting a trial in absentia be conducted. section 4.1(a), was to “legislature’s provide intention 115— limits, if absentia, for a trial in within constitutional justification and without absented from trial.” v. 105 Ill. 2d People Maya, himself 4.1(a) in provides pertinent part: Section 115— ap- and an initial court “When a defendant after arrest trial, felony, appear for pearance non-capital for a fails after the State has af- request at the of the State and firmatively that proven through substantial evidence may com- willfully avoiding the court in the defendant.” 725 ILCS mence trial the absence of 4.1(a) (West 1996). 5/115 — satisfy failed to its Defendant contends that the State 4.1(a), affirmatively burden, to section pursuant 115— that she was will- substantial evidence proving through in 4.1, as amended fully avoiding Section 115— (eff. (Pub. 1066, § 1 Act 81—1066 Act by Public 81— 26, 1979)), trials in absentia where September permits an any are time after “arrest and defendants 4.1(a) (West initial 725 ILCS appearance.” court 5/115 — 1996).
At the time amended, section 115— 4.1 was legislature (e), also added a new subsection which provides pertinent part:
“When a defendant in his who absence has been either convicted or sentenced or both convicted and sentenced ap pears before the granted he must be a new trial or sentencing hearing new if the defendant can establish appear his failure to in court was both without his fault beyond and due to circumstances his control.” 725 ILC S 4.1(e) (West 1996). 5/115 — operates This section as a safeguard prevent trials absentia in those instances where a defendant, through own, no fault of his or her is prevented from appearing in court due beyond to circumstances the defendant’s control. Willful absence is a for trial prerequisite absentia. If a defendant establishes requirements (e), subsection the trial court must the defendant a grant new trial a new sentencing hearing. and/or
Section 113— 4 of the Code was also amended to that when a defendant of not provide plea guilty, enters the trial court shall advise the defendant if he or released make required she is on bond and fails to appearances, the defendant’s failure to consti appear right tutes waiver of the to confront witnesses and that the failure also permits the defendant’s absence. 725 ILCS 5/113— 4(e) 1996). (West Partee, In 125 Ill. 2d (1988), this court observed that the 1979 amendments complex sections 115— 4.1 and 113—4 were of a “part designed series of tradeoffs to balance the defendant’s *7 right to be the State’s interest the ex present traditional peditious justice, administration and our distrust of trials in absentia.” 1979, after amended in
Shortly section 115— 4.1 was three-part our test developed a prima has determine whether the State established a defendant’s absence within the case of willful facie
343 statutory prima To establish provision. of that meaning absence, the State must demonstrate of willful case facie (2) (1) date; of the trial was advised that the defendant: result in trial that failure to could appear was advised (3) the case absentia; for trial when appear and did not 1064, Link, 291 Ill. 3d App. v. E.g., People was called. 793, Williams, Ill. 3d 803 (1997); App. v. 274 People 1066 1, (1992); Nivens, Ill. 3d 7 (1995); App. v. 239 People 436, (1989); People 187 Ill. 3d People Coppage, App. v. (1982). The 1083, appel App. v. 109 Ill. 3d Joyner, in “[o]nly if the defendant late court has also held did not act [the defendant] troduces some evidence that v. People more of the State.” wilfully required should be (1982); Watson, People 109 Ill. 3d see also App. v. 146 Ill. 3d Broyld, App. challenges
Before this use standard to establish a willful prima defendant’s facie defendant, allowing According absence from upon absentia based impermissibly of a defendant’s willful absence showing lowers the burden of the State proof imposed 4.1(a). section Defendant maintains that her fail- 115— with a will- equated ure to court should not be appear absence, that, most, merely showed ful the State case that she in court at the time her was called for trial. was Jones, 269 Ill. 3d 925
Relying upon
4.1(a)
(1995),
section
contends
115 —
a trial court
the State to take affirmative
requires
and/or
to “locate her or to determine whether she was
steps
due to a medical
or for some other rea
problem
Jones,
son—or
she
en route to court.” In
whether
closing argument
the defendant failed to
for the
appear,
of his trial. When the defendant did not
portion
position
the trial court
in Jones
requested
“well,
merely responded,
from defense counsel. Counsel
*8
go
closing arguments,
a.m.,
ahead.” The
scheduled for 9
began
during
at 9:05 a.m. Defendant arrived sometime
arguments,
completed
which were
at 9:25 a.m. Dur
ing post-trial hearing,
the defendant testified
he
a.m.,
arrived at the courthouse at 9:15
but was informed
by the bailiff that he could not enter the courtroom until
closing arguments
ap
facts,
concluded. On these
pellate court held that the trial court abused its discre
by proceeding
closing arguments
tion
with
in the
defendant’s absence. The
court noted that the
during
stages
defendant had been
the earlier
“only
closing argu
his
late”
minutes
for the
attempt
by
ments, and no
was made
the trial court to
Jones,
locate the defendant.
269 Ill.
3d at 930.
During
argument
bar,
oral
in the
counsel for
case
asserting
defendant relied
Jones in
that the trial
“duty”
the State
for an
have
wait
and/or
attempt
absent defendant and to
to locate the defendant
proceeding
response
before
In
with trial
absentia.
inquiry
long
wait,
an
a trial
as
how
court must
counsel
although
vary
case,
the time
each
stated
would
with
required
in all
the trial court
instances should be
to have
go
[de-
“some sort of recess for someone to
check where
fendant]
police
po-
is; for the State to call the
—whatever
department
lice
an officerto the
is involved—send
house
[defendant]
to see if
there or not or the defense at-
is
torney
try
phone call;
make a
of effort to
some sort
necessary
contact the defendant
in this situation.”
suggested
counsel,
bar,
that a con-
Defense
the case at
tinuance of “15 minutes to one-half hour” would have
“just
appropriate,
happened
been
as defendant
to be a
Analogizing
Jones,
little late.”
her case to
urges us to find that the trial court failed to follow sec-
4.1(a)
by proceeding
tion
and abused its discretion
115—
appeared
previously
defendant had
absentia because
shortly
proceed-
after
times, she arrived
at all court
the court
was made
commenced,
attempt
and no
ings
with the trial.
proceeding
her before
to locate
to impose
We decline
argument.
reject
We
to wait for or
the State
the trial court
duty upon
and/or
a trial
defendants before
to locate absent
attempt
the appellate
agree
commence. We
absentia
standard,
the use of a
court that without
*9
in
to
having
confront a
dilemma”
may
“logical
is
to
that a defendant
negative
a
establish
prove
highly impracti-
It would be
from his or her trial.
many
cal for the State to
with evidence
negate
to
might present
a defendant
explanations
conceivable
Under defendant’s
his or her absence from court.
excuse
rationale,
for a defendant’s absence
long
as
as the reasons
unknown,
remain
the State would be
from
prevented
trial,
uncertainty
if
lasted for
to
even
such
proceeding
hours,
months, or
defendant’s
days,
years. Accepting
could
a
burden
argument
potentially impose
crippling
system
danger
orderly
the court
and
a
to
pose
of judicial process.
administration
Further,
contrary
is
to well-
argument
reiterate that a defen
legal
established
We
principles.
dant
has
released on bail
trial has
pending
who
been
time
for trial.
duty
designated
at the
and
appear
place
Davis,
330;
31 Ill. 2d at
Steenbergen,
See
it is the responsibility of the not the court or State, to ensure his or her appearance “ designated time and of trial. place ‘[T]here can be no doubt whatever the governmental prerogative with a trial proceed not be defeated conduct of ” the accused that the trial prevents going from forward.’ States, v. United Taylor 17, 414 20, 174, U.S. 38 L. Ed. 2d Allen, v. 178, 194, (1973), 94 quoting Illinois S. Ct. 337, 349, 353, 362, 1057, 397 U.S. 25 L. Ed. 2d 90 S. Ct. (1970) (Brennan, J., concurring). If a defendant is not the time trial commence, scheduled to it is within the discretion of the trial court whether in the proceed defendant’s absence. It is a fundamental that a “trial precept judge[ ] [has] Flores, People v. authority to control his own docket.” 104 Ill. 2d In .authority, this exercising trial may, discretion, its choose to a defendant’s absence after a case of willful avoidance is “[h]eroic established. Just as efforts to ascertain a defendant’s whereabouts are not required absentia” of the State prior conducting a trial (Smith, Johnston, 84; 189 Ill. 3d at see also App. Joyner, (1987); 160 Ill. 3d App. 109 Ill. 3d *10 1088), neither are such efforts of the trial required court. sum,
In we refuse to the trial court impose upon duty for, the State the and "burden to wait or at- and/or locate, to an defendant tempt commencing before in absentia. a trial adhere the rule that the trial We discretion, upon is to exercise its sound based it, facts and circumstances before in its determination whether trial should a defendant’s absence. proceed that Jones holds otherwise, To the extent that decision is overruled. holding ap-
Defendant also contends that of the unconstitutionally a burden of pellate placed pro- duetion her upon prima to rebut the State’s case facie and present evidence that her absence was not willful. (e) Relying upon 4.1, subsection of section the ap 115— court stated that pellate prima “[a] defendant rebuts a case of willful only by proving absence that her facie absence was not her fault and was due to circumstances her beyond control.” 298 Ill. 3d at 1071. App.
An similar to that argument raised defendant was rejected by the court in People v. Broyld, (1986). Ill. 3d 693 In App. the defendant chal Broyld, lenged the appellate court’s use of the test on prima facie the basis that it a burden “place[d] on the defendant *** go forward with evidence” to show that the defen dant’s absence was not willful. Broyld, 146 Ill. 3d at 699. We with the agree reasoning Broyld that “[t]he issue of whether an accused is wilful in failing appear for trial does not bear upon accused’s or in guilt nocence. No presumption of innocence is involved and no constitutional problem results from any burden of pro evidence” ducing placed to show that his or her absence was not willful. Broyld, 146 Ill. App. 3d at 699. People Watts, 181 Ill. 2d Cf.
We find no constitutional violation in placing the burden production upon defendant to rebut the State’s case with evidence that defendant’s absence was facie not willful.
In bar, the cause at the appellate court determined that the State established a prima case that defen- dant absent at the commencement of her agree. We The record discloses that during defen- dant’s arraignment February 28, 1997, on the trial 4(e) in accordance with section Code, advised 113— that her failure at trial could result in a trial in absentia. The court stated: “You must be *** *** here or they could you trial without you which means witnesses, wouldn’t be here to confront *11 *** your attorney and could be sentenced cooperate time, the trial court also At that being present.” without March that her trial was set for informed date and time The record further indicates that the 1997. the two during defendant’s trial was discussed of Therefore, defendant was pretrial hearings. subsequent at 9 a.m. on begin on notice that her trial was set arrange had time to ample March 1997. Defendant to the courthouse and to reschedule transportation her made in or- she have any appointments previously the time and place der to assure her arrival at prompt that defendant was Finally, the record establishes called for trial. the time her case was facts, determine that the State satisfied Under these we prima case of willful for establishing the elements facie not abuse its hold that the trial court did absence. We with defendant’s trial. discretion proceeding Further, determined that properly the case of failed to rebut the State’s contention reject absence. We willful commencement shortly her in court after the arrival absent. that she was not her trial establishes in absentia proceed on whether ruling The trial court’s at the of the court perspective be viewed from the must court could not have made. The trial ruling time the in defendant’s time it decided to known at the time. within a short absence that she would courtroom, the no Further, defendant entered when note that her tardiness was offered. We for explanation was State time defendant appeared of its first wit- direct examination with the proceeding remain- ness, during and that defendant was present and the cross- examination of the direct ing portion during as witness, as well examination of this also Defendant case chief. remainder of the State’s was After all the evidence in her own behalf. testified concluded, closing arguments were defen- presented and the guilty dant found trial court *12 revoked. It requested that defendant’s bond be was at time vague this that defendant first offered a statement her that her had somehow caused to be late for daughter The of the reflects the fol- transcript proceedings trial. lowing exchange:
“THE I COURT: will revoke her bond. me, Judge, my daughter THE DEFENDANT: Excuse outside. pretrial report.
THE COURT: Get bond services just daugh- DEFENSE COUNSEL: Given she added her being ter late.
THE I why DEFENDANT: That’s I was late. never my missed court. You can look in Never.” files. note that the totality
We above statements reflect the explanation by tardiness, offered to her defendant as and that defendant does not it contend was her “medical condition” which made late. her Under the presented, facts find no error in we in absen- proceeding tia.
Finally, we no that, find error the court’s if ruling absentia, defendant wished prevent to her trial she the obligation had to contact the and explain her failure to appear. Stemming from a defendant’s well- duty settled at the time and of trial is the place concurrent obligation keep the court informed of his Nivens, or her 7; Smith, whereabouts. 239 Ill. 3d at 83-84; Burns, Ill. App. 3d at 117 Ill. App. 3d 123, 128 Requiring contact or defense counsel explain defendant’s unduly absence does not burden the defendant’s right to Further, be interest in the ef public of justice ficient administration is advanced the use of procedure. this
We hold that the State had a prima established case of willful absence from and that introduced no evidence to rebut the State’s case to show that her absence was not her fault or due beyond her We stress that the de- circumstances control. willfully absent termination of whether a defendant is a matter the sound discre- from his or her trial is within emphasize that each case must tion of the trial court. We judged exist at the time the trial be on the facts that proceed in defen- the decision whether to court makes presented in the instant dant’s absence. Under facts matter, the trial court did not abuse its we hold that proceeding defendant’s trial her discretion absence.
CONCLUSION judgment appel- foregoing reasons, the For the late court is affirmed.
Affirmed. *13 part in RATHJE took no the consideration JUSTICE or decision of this case. concurring: specially HEIPLE,
JUSTICE majority’s the trial I in conclusion that concur the properly in defendant’s trial absentia court commenced ap- showing had failed to based that defendant having pear trial after in court on her scheduled date previously of the con- advised of the trial date and been separately, appear. sequences I her failure to write majority’s disagree conten- however, I with the because prove by that the State to tion that the evidence offered willfully requirements the absent satisfied defendant was Procedure of of the Code of Criminal of section 115—4.1 1996)). 4.1(a) (West (725 Rather, I ILCS 5/115 — presented that, under the circumstances would hold judge properly proceeded a trial with case, the trial this authority to inherent exercise of his in absentia as an docket. control his own
The
that
the
majority
asserts
State
establish a
the defendant
is
prima
case that
facie
(1)
from court
defendant:
by demonstrating that the
was
(2)
date;
advised of the trial
that failure to
advised
(3)
absentia;
in
appear could result
trial in
did not
the
appear for trial when
case was called.
Despite finding statutory requirements were case, however, this I satisfied nonetheless concur in majority’s the trial judgment had the I reach authority as it did. this result *14 my agreement due to emphatic majority’s with the anal- ysis the practical consequences contrary of a rule. The majority writes: standard, prima “[W]ithout of a the use the State facie ‘logical having prove confront a a neg dilemma’ in
ative to establish absent from highly for the State impractical his or her trial. It would be negate many explanations with evidence the conceivable might present to excuse his or her absence rationale, long Under defendant’s as as from court. unknown, remain reasons for defendant’s absence if proceeding to even prevented State would be from months, hours, days, years. or uncertainty lasted for such impose a Accepting argument potentially could danger system pose the court crippling upon burden judicial process.” Ill. orderly to the administration 2d at 345. out very dangers pointed real
Accordingly, light that, I to the extent would hold majority, with a a court from prevent proceeding statute would in absentia after the State establishes absence, “unconsti the statute case of defendant’s willful judge’s authority a trial tutionally infringes Flores, Ill. 2d control his docket.” I Accordingly, concur.
(No. 86453. ILLINOIS, OF Appel- THE OF THE STATE PEOPLE JONES, JR., lant, Appellee. E. v. RONNIE 18, 1999. Opinion November filed