People v. Collins

441 N.E.2d 935, 109 Ill. App. 3d 1076, 65 Ill. Dec. 620, 1982 Ill. App. LEXIS 2395
CourtAppellate Court of Illinois
DecidedNovember 4, 1982
Docket4-82-0060
StatusPublished
Cited by17 cases

This text of 441 N.E.2d 935 (People v. Collins) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Collins, 441 N.E.2d 935, 109 Ill. App. 3d 1076, 65 Ill. Dec. 620, 1982 Ill. App. LEXIS 2395 (Ill. Ct. App. 1982).

Opinion

JUSTICE LONDRIGAN

delivered the opinion of the court:

Robert E. Collins was convicted of theft with a prior theft conviction, following a trial by jury in absentia. He was sentenced to two years in the Department of Corrections with credit for four days previously served. He appeals from his conviction and sentence. We affirm.

Collins asserts: (1) The statute that permits the trial in absentia of defendants who wilfully absent themselves from their trials (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 4.1(a)) is unconstitutional; (2) the State did not meet its burden of establishing his wilful absence from his trial; (3) the trial court acted improperly in conducting his sentencing hearing in his absence; (4) evidence of his prior theft conviction should not have been presented to the jury; (5) the prosecutor improperly commented on his failure to testify; and (6) the State failed to prove his guilt beyond a reasonable doubt because it did not establish that the subject of a photograph introduced into evidence was the same Robert Collins who was on trial.

On August 16, 1981, Steven Henderson, Sr., security manager at the K-Mart Department Store in Urbana, saw defendant enter the store. The defendant was attired in bluejeans, a hooded sweatshirt, a plaid flannel shirt, and a T-shirt. This attracted Henderson’s attention because the outside temperature on that day was between 65 and 75 degrees. The defendant subsequently picked up a 17-piece tool set, put it inside his pants, and walked through the cash register area without paying for it. Henderson stopped Collins in the store’s vestibule area and asked him about the tool set. The defendant started to walk back into the store with Henderson but then turned and ran into the store’s parking lot. As the defendant was running across the lot, the tool set fell out from under his pants. Henderson identified People’s Exhibit No. 1 as a picture of defendant and identified the tool set that defendant took from the store. Henderson could not recollect the defendant having any unusual facial features but did remember his hairstyle and- approximate weight and height. Henderson testified that he first saw the photograph of defendant in court on the day of the trial but that he had previously been told that he might have to make a photographic identification at the trial.

Jack Hammel was the State’s second witness. He also was working at the Urbana K-Mart store on August 16, 1981. Henderson requested his help in apprehending defendant. Hammel observed Henderson’s interception of Collins as he was attempting to leave the store and saw defendant’s attempted flight from the store. He also observed something fall from under Collins’ clothing as he was fleeing. Hammel and another employee gave chase and apprehended defendant in a weed-covered lot behind a neighboring store. Hammel testified that he got a “good look” at defendant and his description of him generally conformed to the description that Henderson related. Hammel also identified People’s Exhibit No. 1 as a picture of the defendant. He saw the photograph for the first time on the day of the trial, but he likewise had previously been told that he would be asked to view a photograph when he testified. Hammel stated, however, that the latter fact did not influence his identification of the person pictured in the photograph as the person whom he captured.

The State’s final witness was Assistant State’s Attorney Don Parkinson, who testified that he prosecuted defendant in a prior case, Champaign County No. 81 — CM—328, which resulted in defendant’s conviction of theft. Parkinson also identified People’s Exhibit No. 1 as a photograph of the person whom he prosecuted in that case.

The court subsequently admitted, over defendant’s objections, People’s Exhibit No. 1 and, again over defendant’s objections, took judicial notice of the file in Champaign County case No. 81 — CM—328. Both sides then rested.

At the outset, we note that this court recently upheld the constitutionality of the trial in absentia statute (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 4.1(a)) in People v. Powell (1981), 95 Ill. App. 3d 93, 419 N.E.2d 708. The third district subsequently reached the same result in People v. Clark (1981), 96 Ill. App. 3d 491, 421 N.E.2d 590. The defendant has failed to present us with any persuasive arguments of why we should not adhere to our decision in Powell. Most of the cases cited by defendant in support of his claim that the trial in absentia statute is unconstitutional do not address the constitutionality of such a statute. Lewis v. United States (1892), 146 U.S. 370, 36 L. Ed. 1011, 13 S. Ct. 136, United States v. Gregorio (4th Cir. 1974), 497 F.2d 1253, and People v. Beck (1922), 305 Ill. 593, 137 N.E. 454, do indeed contain statements that a defendant has a right to be present at his trial, but these cases do not say that a defendant may not waive that right by wilfully failing to appear at trial after being advised that his failure to appear will result in waiver of this right. In People v. Davis (1968), 39 Ill. 2d 325, 235 N.E.2d 634, the court held that a trial in absentia violated the defendant’s constitutional rights under the facts of the case, but as we intimated in Powell, the Davis court premised its decision principally on the State’s failure to afford defendant the representation of counsel at his in absentia trial. We do not read Davis as a condemnation of in absentia trials under all circumstances. In the absence of any conclusive contrary authority, we choose to adhere to our position on this matter as set forth in Powell and hold that the statute under which defendant was tried and convicted was not per se violative of any of his constitutional rights.

As for defendant’s allegation that the State did not meet its burden of establishing his wilful absence from trial, we initially note that defendant has waived his right to have this issue considered on review because he failed to include this alleged error in his post-trial motion. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) Even if we were to consider this issue on its merits, however, we would hold that the State presented sufficient evidence that defendant was wilfully avoiding trial to sustain the court’s decision to try him in absentia. The State’s Attorney stated that his office had contacted all the local hospitals and that the defendant was at none of them, and that the Champaign County sheriff’s department had also attempted to locate defendant at his last known address. This evidence of defendant’s wilful absence from his trial is at least as great as that presented in Powell, where it was held that evidence that the police had been unable to locate defendant and that there were outstanding warrants for defendant’s arrest was sufficient proof that the defendant had wilfully absented himself from his trial.

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Cite This Page — Counsel Stack

Bluebook (online)
441 N.E.2d 935, 109 Ill. App. 3d 1076, 65 Ill. Dec. 620, 1982 Ill. App. LEXIS 2395, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-collins-illappct-1982.