{ "id": 5794673, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TALMAGE J. McDONALD, Defendant-Appellant", "name_abbreviation": "People v. McDonald", "decision_date": "1992-04-10", "docket_number": "No. 2\u201490\u20140835", "first_page": "92", "last_page": "101", "citations": [ { "type": "official", "cite": "227 Ill. App. 3d 92" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "208 Ill. App. 3d 939", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2547316 ], "pin_cites": [ { "page": "941" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/208/0939-01" ] }, { "cite": "121 Ill. App. 3d 100", "category": "reporters:state", "reporter": "Ill. 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TALMAGE J. McDONALD, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE NICKELS\ndelivered the opinion of the court:\nAfter a trial in absentia, defendant was convicted of possession of a controlled substance with the intent to deliver (Ill. Rev. Stat. 1987, ch. 56V2, par. 1401) and, also in absentia, was sentenced to 10 years\u2019 imprisonment. Defendant appeals, asserting that: (1) the trial court abused its discretion in denying defendant\u2019s counsel\u2019s request for a continuance; (2) the trial court failed to comply with the statutory requirement for a trial in absentia-, (3) the trial court\u2019s explanation of defendant\u2019s absence during voir dire confused the jury in light of the trial court\u2019s later admission of evidence of defendant\u2019s absence and the State\u2019s rebuttal argument of such absence as circumstantial evidence of defendant\u2019s guilt; (4) admission of such evidence and argument violated defendant\u2019s constitutional right to remain silent; (5) the trial court abused its discretion in admitting evidence of other uncharged crimes; (6) the trial court abused its discretion in admitting into evidence defendant\u2019s photograph; (7) defendant was not proved guilty beyond a reasonable doubt; (8) defendant was denied the effective assistance of counsel; and (9) the court abused its discretion in sentencing defendant to 10 years\u2019 imprisonment. We affirm.\nOn October 27, 1989, special agents of the Du Page and Northeast Metropolitan Enforcement Groups, which are special drug enforcement units, entered defendant\u2019s apartment pursuant to a search warrant. Failing to receive a response to their knocks and identification of themselves as police officers, the agents knocked down the front door of defendant\u2019s apartment. When the agents entered the apartment, defendant was in the washroom approximately 15 feet from the living room. Defendant\u2019s wife and three children were also home.\nA closed canvas bag was on a table in the living room of defendant\u2019s apartment. The contents of the bag included a canister of 10.6 grams of a white powdery substance containing cocaine, four bags of cannabis, smoking pipes, a grinder, a catch basin, inositol, plastic bags, a portable scale, and pharmaceutical seals, all of which, with the exception of the cannabis and pipes, are commonly used in drug trafficking. Specifically, a grinder and catch basin are used to cut cocaine with inositol, which is then weighed and packaged in small bags and sealed with the pharmaceutical seals. After being \u201cMirandized,\u201d defendant admitted that he had been purchasing cocaine in half ounces for distribution to pay his debts.\nDefendant appeared in court on four occasions prior to the beginning of trial, including the scheduled trial date. However, on the scheduled trial date after the court denied defendant\u2019s counsel\u2019s motion for a continuance, trial was postponed until the following morning to insure that sufficient jurors would be available.\nWhen the case was called the following day, defendant failed to appear. During a brief recess, defendant\u2019s counsel unsuccessfully attempted to ascertain why defendant was not present. However, he failed to contact defendant, who had moved without providing his new address to the court as required. A hearing was then held, and the trial court denied defendant\u2019s counsel\u2019s motion for a continuance and granted the State\u2019s motion to proceed in absentia.\nThe court advised the prospective jurors that \u201cyou can\u2019t consider the fact that [defendant] doesn\u2019t appear or testify.\u201d However, after jury selection was complete, the State filed a motion in limine seeking to introduce defendant\u2019s absence as evidence of flight and evidence of the cannabis as other crimes evidence demonstrating intent. Over defendant\u2019s counsel\u2019s objection, the court found the other crimes evidence admissible and indicated that evidence of defendant\u2019s flight or absence was admissible as evidence of a consciousness of guilt. The trial court also ruled, over defendant\u2019s counsel\u2019s objection, that defendant\u2019s arrest photo cropped to remove any indication of its origin was admissible.\nThe State referred to the cannabis in its opening statement and called the deputy clerk to testify that an arrest warrant had been issued for defendant, who had failed to appear for trial although defendant had been present when the trial date was set. Defendant\u2019s trial counsel argued in closing that there was no evidence of the reason for defendant\u2019s absence, and, based solely on the evidence adduced, defendant\u2019s death was an equally plausible explanation. In rebuttal, the State referred to defendant\u2019s absence as \u201ca piece of circumstantial evidence that you, ladies and gentlemen [of the jury], can use in deciding whether [defendant] has a consciousness of his own guilt. Why do you think he is not here? It is circumstantial evidence but it tends to show his guilt.\u201d\nThe jury returned a guilty verdict, but defendant was not arrested until after his counsel\u2019s post-trial motion attacking the court\u2019s evidentiary rulings and the sufficiency of the evidence was denied and after defendant had been sentenced in absentia. A public defender\u2019s subsequent motion for a new trial alleging defendant\u2019s trial counsel had instructed defendant to absent himself from his trial was also denied after a hearing. The trial court found that defendant\u2019s trial counsel\u2019s denial that he gave such direction to defendant was more credible. This appeal followed.\nThe State correctly asserts that many of defendant\u2019s alleged errors have been waived by defendant\u2019s failure to assert such errors in his post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 186-87.) However, defendant asserts that the failure to preserve properly such issues in part denied him the effective assistance of counsel. We must thus consider the substance of defendant\u2019s claims to determine if defendant was prejudiced by such alleged defective performance of his trial counsel. (Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064.) In addition, defendant asserts that the \u201cplain error\u201d doctrine (134 Ill. 2d R 615(a)) allows this court to notice errors affecting substantial rights despite a defendant\u2019s failure to preserve properly such issues when \u201cthe evidence is closely balanced or where the error was of such magnitude that the accused was denied a fair trial.\u201d (People v. Lucas (1981), 88 Ill. 2d 245, 251; see also People v. Young (1989), 128 Ill. 2d 1, 47.) Therefore, we will address each of the alleged errors raised by defendant. We begin with defendant\u2019s assertion that the trial court abused its discretion in denying his trial counsel\u2019s request for a continuance on the eve of trial.\nA motion for a continuance is directed to the discretion of the trial court, which will not be reversed absent a showing of an abuse of such discretion. (Ill. Rev. Stat. 1987, ch. 38, par. 114 \u2014 4(e).) A court\u2019s refusal to grant a continuance must in some way embarrass the defendant in his defense thereby prejudicing him before such abuse will be deemed to have occurred. (People v. Wilson (1963), 29 Ill. 2d 82, 92; People v. Arbuckle (1979), 75 Ill. App. 3d 826, 832.) Defendant\u2019s trial counsel explained that his request for a continuance was for the purpose of seeking another attorney to second chair the trial due to the continuing illness of his law partner, which had been the basis of several prior requests for continuances. However, defendant\u2019s trial counsel explicitly advised the court that he was able to proceed with trial despite his request for a continuance. Thus, defendant was neither embarrassed nor prejudiced by the court\u2019s denial of his request for a continuance, and the trial court did not abuse its discretion in denying such request. We note that any alleged incompetence as a result of defendant\u2019s trial counsel\u2019s failure to obtain such continuance merged into the subsequent alleged trial errors asserted by defendant.\nDefendant next contends that the trial court failed to comply with the statutory requirements mandated for a trial in absentia. Specifically, defendant asserts that the trial court was required to notify defendant by certified mail of the trial date. (Ill. Rev. Stat. 1987, ch. 38, par. 115 \u2014 4.1(a).) However, the statute provides:\n\u201cThe court may set the case for a trial which may be conducted under this Section despite the failure of the defendant to appear at the hearing at which the trial date is set. When such trial date is set the clerk shall send to the defendant, by certified mail at his last known address indicated on his bond slip, notice of the new date which has been set for trial.\u201d (Ill. Rev. Stat. 1987, ch. 38, par. 115-4.1(a).)\nThus, notice by certified mail is required only when the defendant was not present in court when the trial date was set. (People v. Velasco (1989), 184 Ill. App. 3d 618, 628-29.) Because defendant was present when his trial date was set, no such notice was necessary, and his second asserted error is without merit.\nThe third issue raised by defendant is that the trial court\u2019s statement to the veniremen that as jurors they could not \u201cconsider the fact that [defendant] doesn\u2019t appear or doesn\u2019t testify\u201d was confusing in the face of the eventual admission of evidence of defendant\u2019s absence as circumstantial evidence of guilt. However, defendant ignores the context in which that statement was made. The court was explaining the State\u2019s burden to prove defendant guilty beyond a reasonable doubt. That comment was preceded by \u201c[t]he fact that should [defendant] not present any evidence, though he may not be present, do you still understand, and can you go along with the fact that it is still the burden of the People to prove [defendant\u2019s] guilt by evidence beyond a reasonable doubt.\u201d Such directions informed the jury that a finding of guilt could not be based on defendant\u2019s absence alone. Thus, the cases cited by defendant, which condemned the trial court\u2019s failure to give a requested jury instruction to minimize a defendant\u2019s silence or a verdict based solely on a defendant\u2019s absence, are not only inapplicable, but support the trial court\u2019s statements. See Carter v. Kentucky (1981), 450 U.S. 288, 303, 67 L. Ed. 2d 241, 252, 101 S. Ct. 1112,1120; People v. Smith (1989), 189 Ill. App. 3d 80, 85.\nThe admission of evidence of defendant\u2019s absence, as well as the State\u2019s rebuttal argument of such evidence, are the basis of defendant\u2019s fourth alleged error. A defendant has no constitutionally protected right not to appear at trial (Smith, 189 Ill. App. 3d at 85), and evidence of a defendant\u2019s absence is proper as evidence of flight, which is admissible to show consciousness of guilt (People v. Garza (1989), 180 Ill. App. 3d 820, 826). Defendant apparently asserts a distinction between circumstantial evidence that tends to show a defendant\u2019s guilt, which was the State\u2019s argument, and evidence of a defendant\u2019s consciousness of guilt as permitted in Garza. We not only fail to see such a distinction, but defendant fails to offer any authority for creating such a distinction. Absent both meaningful argument and authority, defendant has thus waived the issue. Fuller v. Justice (1983), 117 Ill. App. 3d 933, 942-43.\nAdditionally, we note that defendant\u2019s counsel argued that the State had failed to offer any evidence of the reason for defendant\u2019s absence and argued the possibility of defendant\u2019s death as one explanation for his absence from trial. Thus, defendant\u2019s trial counsel invited the State\u2019s rebuttal, and no error from such rebuttal will be found. People v. Rader (1988), 178 Ill. App. 3d 453, 466.\nDefendant also asserts that the trial court abused its discretion in admitting evidence of the cannabis found in defendant\u2019s apartment as evidence of other uncharged crimes and in admitting defendant\u2019s police photo, although cropped to remove any indication of origin. Issues of admissibility of evidence are committed to the sound discretion of the trial court, and such decision will not be reversed unless the erroneously admitted evidence manifestly prejudiced a defendant. (People v. Hayes (1990), 139 Ill. 2d 89, 130; People v. Bartall (1983), 98 Ill. 2d 294, 318.) Because both the admission of defendant\u2019s photograph and the admission of evidence of other uncharged crimes are subject to the same standard of review, we will address these issues together.\nOther crimes evidence is admissible if relevant for any purpose other than to show a defendant\u2019s propensity to commit a crime (People v. Musitief (1990), 201 Ill. App. 3d 872, 876-77), and a continuous narrative of the arrest is admissible including connected crimes as part of the res gestae (Hayes, 139 Ill. 2d at 130-32; People v. Chambers (1989), 179 Ill. App. 3d 565, 583-84; People v. Sessions (1968), 95 Ill. App. 2d 17, 24). Therefore, evidence of the smoking pipes and cannabis recovered from defendant\u2019s home was admissible as part of the narration of the sequence of events leading to defendant\u2019s arrest.\nSimilarly, defendant\u2019s assertion that the court abused its discretion in admitting his police photo, from which all indications of its origin had been removed, is without merit. To sustain a conviction, the State must prove beyond a reasonable doubt that the defendant was the perpetrator of the crime. (People v. Dante (1966), 35 Ill. 2d 538, 540; People v. Newbern (1989), 183 Ill. App. 3d 995, 997.) Because of defendant\u2019s absence, the photographic identification was highly probative of the issue of identity.\nDefendant argues, however, that the prejudice created by the introduction of such photograph into evidence outweighed its probative value. The cases relied upon by defendant are not controlling in this instance. Defendant\u2019s photograph was taken at the time of his arrest for the present charges and not at the time of a prior \"unrelated offense from which the jury could improperly infer a propensity towards crime. (See People v. Hudson (1972), 7 Ill. App. 3d 333, 336-37; People v. Hawkins (1972), 4 Ill. App. 3d 471, 473.) We have expressly rejected the per se rule of inadmissibility adopted in Hudson and Hawkins by the Appellate Court, Third District, as have other districts. (See People v. Wilson (1st Dist. 1988), 168 Ill. App. 3d 847, 851-52; People v. Smith (5th Dist. 1987), 160 Ill. App. 3d 89, 95-96; People v. Wheeler (2d Dist. 1971), 71 Ill. App. 3d 91, 97-98.) Rather, the introduction of such photos requires a balancing of the probative value against possible prejudice. (Wheeler, 71 Ill. App. 3d at 97-98.) However, prejudice from a \u201cmug shot\u201d taken at the time of a prior arrest is minimal and highly speculative. (People v. Warmack (1980), 83 Ill. 2d 112, 128-29 (exclusion of photo requires presumption that jury noticed prior date and based verdict on prior arrest rather than evidence at trial).) Thus, only when the evidence, \u201cat best, only marginally proves [a defendant\u2019s] guilt\u201d is a court required to consider the prejudice from the introduction of a defendant\u2019s \u201cmug shot.\u201d (People v. Arman (1988), 171 Ill. App. 3d 232, 241-42 (Freeman, J., dissenting from continued application of per se exclusion).) In this instance, the cropped photo, from which the jury could infer no prior arrest, had even less prejudicial impact. Therefore, the trial court did not abuse its discretion in finding that the significant probative value of defendant\u2019s police photograph outweighed any minimal and speculative prejudice.\nDefendant next asserts that the State failed to prove him guilty beyond a reasonable doubt. Defendant\u2019s assertion is based on the State\u2019s alleged failure to prove that the cocaine recovered from defendant\u2019s apartment was in fact \u201cknowingly\u201d in defendant\u2019s possession or that defendant had an \u201cintent\u201d to deliver such substance. However, the cocaine and drug paraphernalia were recovered from plain view on the table of defendant\u2019s living room in his own home, at a time when defendant was a few feet away in another room. Absent other facts or circumstances, the mere presence of narcotics in premises under the control of a defendant, such as his home, is sufficient alone to create an inference of knowledge and possession. (People v. Nettles (1961), 23 Ill. 2d 306, 308-09; People v. Torres (1990), 200 Ill. App. 3d 253, 266.) Similarly together with the quantity of narcotics, the presence of drug trafficking paraphernalia routinely used to deliver drugs will support the trier of fact\u2019s finding of the intent to deliver such drugs. (People v. Schaefer (1985), 133 Ill. App. 3d 697, 702-03.) Moreover, defendant admitted to the police that he had been selling cocaine to pay his debts. Thus, there was sufficient evidence from which the jury could find defendant guilty beyond a reasonable doubt.\nFinally, defendant asserts that the trial court abused its discretion in sentencing him to 10 years\u2019 imprisonment in the Department of Corrections. A trial court\u2019s determination of the proper sentence will not be disturbed on appeal absent an abuse of discretion. (People v. Wilson (1991), 143 Ill. 2d 236, 250.) Such determination is entitled to great weight and deference because the trial court has the benefit of observing the defendant and hearing the evidence firsthand. (People v. Streit (1991), 142 Ill. 2d 13, 18-19.) A reviewing court must proceed with great care and caution and may not substitute its own judgment for that of the trial court. (Streit, 142 Ill. 2d at 19.) As long as the trial court does not rely on improper aggravating factors or ignore mitigating factors, any sentence within the prescribed statutory range will be deemed a proper exercise of the trial court\u2019s discretion. (People v. Hernandez (1990), 204 Ill. App. 3d 732, 740.) The seriousness of the crime is not only a proper factor in aggravation; it is the most important factor. (Hernandez, 204 Ill. App. 3d at 740.) Rehabilitation must also be considered, but need not be given more weight in determining the appropriate sentence than the seriousness of the crime. (People v. Brajcki (1986), 150 Ill. App. 3d 506, 515.) Absent any indication in the record to the contrary, it is presumed that the trial court considered evidence presented in mitigation. (Torres, 200 Ill. App. 3d at 267; People v. Abrego (1986), 142 Ill. App. 3d 973, 986.) If the record contains a trial court\u2019s articulation of factors in aggravation, the reviewing court may presume factors in mitigation were considered as well. People v. Bergman (1984), 121 Ill. App. 3d 100, 109.\nEvidence presented in aggravation included defendant\u2019s prior convictions of drug-related charges indicating an unlikelihood of rehabilitation, the seriousness of the offense, and defendant\u2019s conduct since his arrest, specifically his flight and a threat made against one of the arresting officers during a chance encounter. The court also considered defendant\u2019s presentence report. Although defendant\u2019s trial counsel presented no additional evidence in mitigation, counsel argued the nonviolent nature of the crime, defendant\u2019s devotion to his family, and defendant\u2019s education as factors in mitigation.\nThe court specifically noted that defendant, whose college education was reflected in the presentence report, was in a better position to appreciate the dangers of drugs than many other offenders. So, too, contrary to counsel\u2019s assertion that this was a nonviolent crime, drug trafficking is deemed among the most serious of offenses. Bergman, 121 Ill. App. 3d at 111.\nFinally, defendant asserts the trial court ignored his family obligations as a factor in mitigation. Although the court indicated it could not consider the quality of defendant\u2019s relationship with his family, evidence of defendant\u2019s dependents was contained in defendant\u2019s presentence report. Thus, we conclude that the court properly considered the hardship to defendant\u2019s dependants. Torres, 200 Ill. App. 3d at 267; Abrego, 142 Ill. App. 3d at 986.\nDefendant\u2019s counsel\u2019s limited ability to present evidence in mitigation was the result of defendant\u2019s own willful failure to appear for trial and sentencing as well as defendant\u2019s failure to advise the court of his change in address. Such loss of the ability to challenge evidence in aggravation or provide input to his attorney is merely an additional cost of defendant\u2019s own conduct not warranting either the trial court\u2019s sympathy or ours. People v. Burcham (1991), 208 Ill. App. 3d 939, 941.\nHaving addressed the substance of each of the alleged trial errors and finding them to be without merit, we also resolve defendant\u2019s claim of ineffective assistance of counsel. Absent error, defendant suffered no prejudice from his trial counsel\u2019s alleged defective performance. Because resulting prejudice to a defendant is an essential element of any claimed denial of the effective assistance of counsel (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064), defendant\u2019s final claim as well is meritless.\nThe judgment of the circuit court is affirmed.\nAffirmed.\nUNVERZAGT and GEIGER, JJ., concur.", "type": "majority", "author": "JUSTICE NICKELS" } ], "attorneys": [ "G. Joseph Weller, of State Appellate Defender\u2019s Office, of Elgin, and James E. Wallis, of Granite City, for appellant.", "James E. Ryan, State\u2019s Attorney, of Wheaton (William L. Browers and Martin P. Moltz, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TALMAGE J. McDONALD, Defendant-Appellant.\nSecond District\nNo. 2\u201490\u20140835\nOpinion filed April 10, 1992.\nRehearing denied May 13, 1992.\nG. Joseph Weller, of State Appellate Defender\u2019s Office, of Elgin, and James E. Wallis, of Granite City, for appellant.\nJames E. Ryan, State\u2019s Attorney, of Wheaton (William L. Browers and Martin P. Moltz, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0092-01", "first_page_order": 116, "last_page_order": 125 }