No. 3–99–0946

_________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	THIRD DISTRICT

	A.D., 2001

PEOPLE OF THE STATE OF ILLINOIS,	) Appeal from the Circuit Court

						) of the 12th Judicial Circuit

	Plaintiff-Appellee,		) Will County, Illinois

						)

	v.					) No. 99–CF–189

						)

CHRISTOPHER MCDONALD,		) Honorable

						) Stephen D. White

	Defendant-Appellant.	) Judge Presiding

_________________________________________________________________

JUSTICE LYTTON delivered the opinion of the court:

_________________________________________________________________

	Defendant 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.

	On 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.

	After 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' petition also alleged that he planned on

leaving the Joliet area.

	Neither 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's 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.

	I.  THE MATERIAL WITNESS BOND HEARINGS

	A.

	In Illinois, material witness bonds are a statutorily

authorized procedure. 725 ILCS 5/109—3(d) (West 1998).  Generally, section 109—3 concerns preliminary examinations, or hearings, for felony defendants.  If a defendant is held to answer after a

preliminary hearing, the judge "may require any material witness

for the State or defendant to enter into a written undertaking to

appear at the trial."  725 ILCS 5/109—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—3(d) (West 1998).

	When 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' 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' constitutional right

to freedom from unnecessary restraint.  Goodrich v. Warden, 137 N.Y.S.2d 437, 438 (Sup. Ct. 1954).

	In 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.  

	The 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.1  In all of the cited cases, however, defendant or counsel had notice, and counsel

attended the hearing.  Here, neither counsel nor defendant received

notice. 

	Defendants 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, §§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's 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.

	B.

	Defendant 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. 

	A defendant's 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 (1989)), or if it involves

a defendant's substantial rights (People v. Martine, 106 Ill. 2d 429, 439, 478 N.E.2d 262, 266 (1985)).

	Although a material witness bond hearing would not, under

normal circumstances, involve defendant's 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 "inflammatory"

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).

	Defendant 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.

	 Furthermore, our review of the record of the hearings shows

no "inflammatory" communication concerning either the facts of the

case or Derrick Gholston's 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. 

	C.

	Defendant argues that without the opportunity to examine

witnesses and lessen the negative impact on the court, his

substantial rights were violated. 

	The 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—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.

	A trial court has considerable discretion to issue material

witness bonds.  725 ILCS 5/109—3(d) (West 1998).  See generally Cunningham v. Barry, 25 F.2d 733 (E.D. Pa. 1928), rev'd on other grounds, 29 F.2d 817 (3rd Cir. 1928), rev'd on other grounds, 279 U.S. 597, 73 L. Ed. 867, ___ S. Ct. ___ (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 concealmentrisk is

the ostensible reason for the use of material witness bonds in most

cases.  See generally R. Carlson and M. Voelpel, Material Witness and Material Injustice, 58 Wash. U. L.Q. 1 (1980). 

	Defendant 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's presence at the hearings could

have affected the trial judge in any way.  Any information gained

by defendant's examination of the witnesses at the hearings would

not have been helpful to defendant.

	Moreover, 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.

	Since we find no due process violation, we affirm the trial

court's denial of defendant's motion to dismiss the indictment.

	II.  BLOODHOUND EVIDENCE 

	Joliet 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.

	At 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's 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.

	Defendant argues that since the jury heard evidence of the

bloodhound search, the denial of his motion to dismiss based on

that evidence was error.

	Our standard of review for motions for mistrial is whether the

trial court abused its discretion; a court's 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). 

	Although the jury heard some bloodhound evidence, sustaining

defendant's objection and instructing the jury to disregard the

evidence was sufficient to cure the error.  Moreover, the testimony

concerning the search with the dog was merely cumulative of

Badertscher's 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's motion for

mistrial.

	III.  SENTENCE

	Defendant 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—4—1(c) of the Unified Code of Corrections (730 ILCS 5/5—4—1(c) (West 1998)).

	Imposition 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's 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.  

	In this case, the trial judge stated on the record that he had

considered all of the statutory factors including the

rehabilitative potential of defendant.  Though 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's sentence.  We cannot say

the trial judge abused his discretion in imposing defendant's

sentence.

	IV.  CONCLUSION

	The judgment of the circuit court of Will County is affirmed.

	Affirmed.

	McDFADADE and SLATER, JJ., CONCUconcur.