{ "id": 126374, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHRISTOPHER McDONALD, Defendant-Appellant", "name_abbreviation": "People v. McDonald", "decision_date": "2001-05-16", "docket_number": "No. 3 \u2014 99\u20140946", "first_page": "244", "last_page": "251", "citations": [ { "type": "official", "cite": "322 Ill. App. 3d 244" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "349 N.E.2d 454", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "38 Ill. App. 3d 1066", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2808135 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-app-3d/38/1066-01" ] }, { "cite": "308 N.E.2d 579", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "56 Ill. 2d 361", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5404559 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-2d/56/0361-01" ] }, { "cite": "393 N.E.2d 1291", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "75 Ill. App. 3d 477", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3273451 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-3d/75/0477-01" ] }, { "cite": "679 N.E.2d 428", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "271 Ill. App. 3d 1087", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 249355 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ill-app-3d/271/1087-01" ] }, { "cite": "679 N.E.2d 764", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "287 Ill. App. 3d 1035", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 520936 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/ill-app-3d/287/1035-01" ] }, { "cite": "487 N.E.2d 662", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1985, "opinion_index": 0 }, { "cite": "139 Ill. App. 3d 383", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3569467 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-app-3d/139/0383-01" ] }, { "cite": "368 N.E.2d 882", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "68 Ill. 2d 149", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5809665 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-2d/68/0149-01" ] }, { "cite": "566 N.E.2d 1351", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "142 Ill. 2d 13", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3236660 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-2d/142/0013-01" ] }, { "cite": "631 N.E.2d 1214", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "260 Ill. App. 3d 136", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2866474 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ill-app-3d/260/0136-01" ] }, { "cite": "491 N.E.2d 68", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "141 Ill. App. 3d 935", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3495507 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-app-3d/141/0935-01" ] }, { "cite": "643 N.E.2d 636", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "162 Ill. 2d 314", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477550 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ill-2d/162/0314-01" ] }, { "cite": "584 N.E.2d 507", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "223 Ill. App. 3d 193", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5255931 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-app-3d/223/0193-01" ] }, { "cite": "58 Wash. U. L.Q. 1", "category": "journals:journal", "reporter": "Wash. U. L.Q.", "year": 1980, "opinion_index": 0 }, { "cite": "279 U.S. 597", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3907213 ], "weight": 3, "year": 1929, "opinion_index": 0, "case_paths": [ "/us/279/0597-01" ] }, { "cite": "29 F.2d 817", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1739988 ], "year": 1928, "opinion_index": 0, "case_paths": [ "/f2d/29/0817-01" ] }, { "cite": "25 F.2d 733", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1727335 ], "year": 1928, "opinion_index": 0, "case_paths": [ "/f2d/25/0733-01" ] }, { "cite": "478 N.E.2d 262", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "pin_cites": [ { "page": "266" } ], "opinion_index": 0 }, { "cite": "106 Ill. 2d 429", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138526 ], "year": 1985, "pin_cites": [ { "page": "439" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0429-01" ] }, { "cite": "447 N.E.2d 247", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "272" }, { "page": "272" } ], "opinion_index": 0 }, { "cite": "94 Ill. 2d 437", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3105923 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "493-94" }, { "page": "493-94" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/94/0437-01" ] }, { "cite": "541 N.E.2d 161", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "185 Ill. App. 3d 208", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2648437 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-app-3d/185/0208-01" ] }, { "cite": "195 N.E.2d 687", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "30 Ill. 2d 136", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2827844 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/ill-2d/30/0136-01" ] }, { "cite": "137 N.Y.S.2d 437", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1954, "pin_cites": [ { "page": "438" } ], "opinion_index": 0 }, { "cite": "114 Ariz. 16", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 1457015 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "25" }, { "page": "145" } ], "opinion_index": 0, "case_paths": [ "/ariz/114/0016-01" ] }, { "cite": "18 Minn. 398", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 736589 ], "weight": 2, "year": 1872, "pin_cites": [ { "page": "401" }, { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/minn/18/0398-01" ] } ], "analysis": { "cardinality": 768, "char_count": 14538, "ocr_confidence": 0.761, "pagerank": { "raw": 1.2775475623580797e-07, "percentile": 0.6161965427328002 }, "sha256": "99b66f11cf713ed92feb0aa58017a56b1d20aaa3034a7d82a9a4cfdefbc76ba7", "simhash": "1:80fa3ce926712cd6", "word_count": 2421 }, "last_updated": "2023-07-14T19:05:07.459628+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHRISTOPHER McDONALD, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE LYTTON\ndelivered the opinion of the court:\nDefendant Christopher McDonald was convicted of first degree murder, two counts of aggravated battery with a firearm, aggravated discharge of a firearm, and unlawful use of a weapon by a felon. On appeal, he claims that the trial court abused its discretion: (1) when it denied his motion to dismiss the indictment after ex parte hearings on material witness bonds; (2) when it denied a motion for a mistrial after prosecution testimony about bloodhound evidence; and (3) in sentencing defendant. We affirm.\nOn February 9, 1999, John Gholston was driving a stolen car with three passengers, Derrick Gholston, Lucias Byes and Courtney Ward. As Gholston parked the car, defendant came up to the vehicle, and an argument ensued. When John Gholston got out of the car, defendant shot him; defendant then shot inside the car, wounding Derrick Gholston and Lucias Byes. Courtney Ward escaped from the vehicle without injury. John Gholston died as a result of the shooting.\nAfter defendant was indicted, the State petitioned the court for material witness bonds for Byes, Ward and Raymond Keyes, a potential witness to an inculpatory statement that defendant purportedly made. Each petition alleged that the witness feared for his safety because Derrick Gholston had been shot and killed on February 20, 1999. Byes\u2019 petition also alleged that he planned on leaving the Joliet area.\nNeither defendant nor counsel received copies of the petitions or notice of the hearings on the material witness bonds, and neither was present at the hearings. Defendant\u2019s counsel later found out about the hearings and filed a motion to dismiss the indictment, which the court denied. A jury found defendant guilty of first degree murder, two counts of aggravated battery with a firearm, aggravated discharge of a firearm, and unlawful use of a weapon by a felon.\nI. THE MATERIAL WITNESS BOND HEARINGS\nA\nIn Illinois, material witness bonds are a statutorily authorized procedure. 725 ILCS 5/109 \u2014 3(d) (West 1998). Generally, section 109 \u2014 3 concerns preliminary examinations, or hearings, for felony defendants. If a defendant is held to answer after a preliminary hearing, the judge \u201cmay require any material witness for the State or defendant to enter into a written undertaking to appear at the trial.\u201d 725 ILCS 5/109 \u2014 3(d) (West 1998). The court can then order the witness to execute a recognizance bond which provides for a forfeiture of a sum certain in the event the witness fails to appear. 725 ILCS 5/109 \u2014 3(d) (West 1998).\nWhen a witness is brought before it, the court must decide whether facts exist to warrant requiring a recognizance bond. Howard v. Grace, 18 Minn. 398, 401 (1872). Generally, if the court determines that the witness is material and that there is a danger that the testimony will be lost, the court may take security, including a recognizance bond, to insure the witness\u2019 attendance. Howard, 18 Minn, at 402. Where confinement is contemplated for one not charged with a crime, a court should be very circumspect in granting material witness bonds. State v. Reid, 114 Ariz. 16, 25, 559 P.2d 136, 145 (1976). A court must balance the need for a witness to appear at trial with the witness\u2019 constitutional right to freedom from unnecessary restraint. Goodrich v. Warden, 137 N.Y.S.2d 437, 438 (Sup. Ct. 1954).\nIn this case, defendant argues that his constitutional right to be present was violated when each of the material witness bonds were issued at ex parte hearings. Neither defendant nor his attorney had notice of the hearings. Indeed, defendant says that he never would have known about them except for an accidental discovery.\nThe State contends that defendant had no right to appear at the hearings and cites several cases involving pretrial or posttrial motions to support its argument. In all of the cited cases, however, defendant or counsel had notice, and counsel attended the hearing. Here, neither counsel nor defendant received notice.\nDefendants have the right to appear and defend themselves in person at all stages of trial. U.S. Const., amend. XIV; Ill. Const. 1970, art. I, \u00a7\u00a7 2, 8; People v. Mallett, 30 Ill. 2d 136, 195 N.E.2d 687 (1964). A defendant should have notice of every stage of trial. The State and defendant appear to agree that the material witness bond hearing was a stage of defendant\u2019s trial. There is no question that he should have had notice of the filing of the petitions and the hearings, and it was clear error not to have given him notice.\nB\nDefendant does not argue that the hearing alone was a critical stage of his trial, but he does claim that prejudice flowed from the lack of notice because the trial court was tainted by the allegations in the petitions.\nA defendant\u2019s right to be present is not absolute. People v. Jones, 185 Ill. App. 3d 208, 541 N.E.2d 161 (1989). A defendant is guaranteed the right to be present at any stage of a criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure (People v. Kubat, 94 Ill. 2d 437, 493-94, 447 N.E.2d 247, 272 (1983)) or if it involves a defendant\u2019s substantial rights (People v. Martine, 106 Ill. 2d 429, 439, 478 N.E.2d 262, 266 (1985)).\nAlthough a material witness bond hearing would not, under normal circumstances, involve defendant\u2019s substantial rights or contribute to the fairness of the outcome of the procedure, defendant argues that prejudice arose because the petitions alleged that the witnesses feared for their safety because of the subsequent murder of Derrick Gholston and that ex parte hearings afforded the prosecution an opportunity to present \u201cinflammatory\u201d conclusions to the court. Because of this claimed prejudice, he contends that he was foreclosed from opting for a bench trial since the trial court could not fairly try the case. Thus, he was locked into a jury trial, which contributed to the unfairness of the proceedings. See generally People v. Kubat, 94 Ill. 2d 437, 493-94, 447 N.E.2d 247, 272 (1989).\nDefendant has not met his burden of showing that the petitions prejudiced the trial court. The petitions simply claim that the witnesses feared for their safety and note that the murder of Derrick Gholston is under investigation. Defendant is not referenced in either allegation.\nFurthermore, our review of the record of the hearings shows no \u201cinflammatory\u201d communication concerning either the facts of the case or Derrick Gholston\u2019s murder. Instead, the very short hearings included only a statement by the court of what a material witness bond is, the amount of the recognizance bond, and a short explanation of notices for trial and the effect of subpoenas and delays. Since we find no evidence of prejudice to the trial judge, the error was harmless.\nC\nDefendant argues that without the opportunity to examine witnesses and lessen the negative impact on the court, his substantial rights were violated.\nThe reach of the Illinois material witness statute is very broad. Yet, the hearing on material witness bonds has a very narrow scope. The only issues to examine are whether: (1) the defendant has been held to answer, i.e., a finding of probable cause at the preliminary hearing; (2) the witness is material; (3) a written undertaking should be required of the witness; and (4) the witness should be required to execute a recognizance bond, and, if so, in what amount. See 725 ILCS 5/109 \u2014 3(d) (West 1998). Any examination by the defendant would be limited to these issues, and no others could have been explored at the hearings.\nA trial court has considerable discretion to issue material witness bonds. 725 ILCS 5/109 \u2014 3(d) (West 1998). See generally Cunningham v. Barry, 25 F.2d 733 (E.D. Pa. 1928), rev\u2019d on other grounds, 29 F.2d 817 (3d Cir. 1928), rev\u2019d on other grounds, 279 U.S. 597, 73 L. Ed. 867, 49 S. Ct. 452 (1929). A trial court should look at several factors in exercising its discretion, including the materiality of the testimony, the diligence required to produce the witness if no bond is issued, and the likelihood of concealment or flight. Although the Illinois statute does not require the witness to be a flight risk, flight or concealment is the ostensible reason for the use of material witness bonds in most cases. See generally R Carlson & M. Voelpel, Material Witness & Material Injustice, 58 Wash. U. L.Q. 1 (1980).\nDefendant does not claim that the witnesses were not material or that recognizance bonds of $100,000 in the event they did not appear at trial were inappropriate. We are unable to determine what defendant could have done or gained at the hearings that would have affected his claim of potential trial court prejudice. It is difficult to see how defendant\u2019s presence at the hearings could have affected the trial judge in any way. Any information gained by defendant\u2019s examination of the witnesses at the hearings would not have been helpful to defendant.\nMoreover, at the hearing on his motion to dismiss the indictment, defendant was fully aware of the petitions and had access to the record of the material witness bond hearings. At that point, he could have asked for a substitution of judge. He did not. He chose instead to adhere to his jury demand.\nSince we find no due process violation, we affirm the trial court\u2019s denial of defendant\u2019s motion to dismiss the indictment.\nII. BLOODHOUND EVIDENCE\nJoliet police officer Robert Badertscher testified that his police dog was trained to locate articles or physical evidence with human scents on them. Courtney Ward had led Officer Badertscher on the path Ward took when he ran from the shooting scene. Badertscher and other officers searched the area for firearms several times, one time with the dog.\nAt trial, when asked if he had led his dog on the path that Ward took, the officer responded that he had and began to explain the path that he had taken with the dog. At this point, defendant objected. At a conference held outside the hearing of the jury, defendant moved for a mistrial. The prosecutor argued that if the State could show that a search of Ward\u2019s path of retreat had been made without finding a gun, the defense of self-defense could be refuted. The trial judge denied the motion for mistrial, but sustained the objection and told the jury that any testimony regarding the canine was inadmissible and should be disregarded.\nDefendant argues that since the jury heard evidence of the bloodhound search, the denial of his motion to dismiss based on that evidence was error.\nOur standard of review for motions for mistrial is whether the trial court abused its discretion; a court\u2019s decision will not be disturbed unless defendant was prejudiced by the testimony. People v. Mabry, 223 Ill. App. 3d 193, 584 N.E.2d 507 (1991). In Illinois, bloodhound evidence is never admissible to establish any factual proposition in a criminal proceeding. People v. Cruz, 162 Ill. 2d 314, 643 N.E.2d 636 (1994). However, if properly admitted evidence establishes an element of the crime, erroneously admitted evidence is harmless. People v. Gomez, 141 Ill. App. 3d 935, 491 N.E.2d 68 (1986). If a trial judge properly sustains a timely objection and instructs the jury to disregard the evidence, the error is usually cured. People v. Fierer, 260 Ill. App. 3d 136, 631 N.E.2d 1214 (1994).\nAlthough the jury heard some bloodhound evidence, sustaining defendant\u2019s objection and instructing the jury to disregard the evidence were sufficient to cure the error. Moreover, the testimony concerning the search with the dog was merely cumulative of Badertscher\u2019s testimony concerning his search for a weapon with other officers, but without the dog. We cannot say that the trial court abused its discretion in denying defendant\u2019s motion for mistrial.\nIII. SENTENCE\nDefendant also argues that his sentence was excessive and the trial court failed to consider evidence in mitigation. He contends that the trial court made no specific findings on the record of factors in mitigation, citing section 5 \u2014 4\u20141(c) of the Unified Code of Corrections (730 ILCS 5/5 \u2014 4\u2014-Kc) (West 1998)).\nImposition of a sentence is discretionary with the trial judge and entitled to great deference and weight. In the absence of an abuse of that discretion, the sentence will not be altered on appeal. People v. Streit, 142 Ill. 2d 13, 566 N.E.2d 1351 (1991). A trial court\u2019s statement of the factors in mitigation or aggravation eliminates speculation regarding the basis of its decision and enables a reviewing court to more intelligently determine if the sentence was proper. People v. Perruquet, 68 Ill. 2d 149, 368 N.E.2d 882 (1977). However, the statutory requirement that the trial judge set forth on the record his reasons for a particular sentence does not obligate the judge to recite each factor. People v. Sawyer, 139 Ill. App. 3d 383, 487 N.E.2d 662 (1985). Where mitigating evidence is before the court, it is presumed that the sentencing judge considered it unless there is some indication to the contrary, other than the sentence itself. Sawyer, 139 Ill. App. 3d 383, 487 N.E.2d 662.\nIn this case, the trial judge stated on the record that he had considered all of the statutory factors including the rehabilitative potential of defendant. Although it is preferable for the trial judge to specifically state the factors in aggravation and mitigation, it is sufficient that the record reflect that he has reviewed them. We have reviewed the record in this case and find that it supports the trial judge\u2019s sentence. We cannot say the trial judge abused his discretion in imposing defendant\u2019s sentence.\nIV CONCLUSION\nThe judgment of the circuit court of Will County is affirmed.\nAffirmed.\nMcDADE and SLATER, JJ., concur.\nPeople v. Starks, 287 Ill. App. 3d 1035, 679 N.E.2d 764 (1997); People v. Patrasso, 271 Ill. App. 3d 1087, 679 N.E.2d 428 (1994); People v. Saltz, 75 Ill. App. 3d 477, 393 N.E.2d 1291 (1979); People v. Pierce, 56 Ill. 2d 361, 308 N.E.2d 579 (1974); People v. Breitweiser, 38 Ill. App. 3d 1066, 349 N.E.2d 454 (1976). None of these cases concern material witness bond hearings.", "type": "majority", "author": "JUSTICE LYTTON" } ], "attorneys": [ "Michael J. Brennan (argued), of Orland Park, for appellant.", "James Glasgow, State\u2019s Attorney, of Joliet (John X. Breslin and Terry A. Mertel (argued), 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. CHRISTOPHER McDONALD, Defendant-Appellant.\nThird District\nNo. 3 \u2014 99\u20140946\nOpinion filed May 16, 2001.\nMichael J. Brennan (argued), of Orland Park, for appellant.\nJames Glasgow, State\u2019s Attorney, of Joliet (John X. Breslin and Terry A. Mertel (argued), both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0244-01", "first_page_order": 262, "last_page_order": 269 }