## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Suprem e Court

People v . Eppinger , 2013 IL 114121

Caption in S upreme Court: THE PEOP L E OF THE STATE OF I L L I NOI S, Appellant, v. DOMI NI CK EPPI

NGER, Appellee

.

Docke t No. 114121

Filed Fe bruar y 22, 2013

Held ( Note : This syl l abus

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo r t er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) T h e trial in absentia statute was not applicable and there was no plai n

err or calling for a new tria l where an ac cused who had been dissatisfied with his first two public defe nders waived his rig ht to counsel and elec ted
to p ro ce ed p ro se , but asked for new counsel when it was time for jury selec tion and, when this was ref used, rema ined in h i s ce l l and did not participate in the voir dire

.

Dec ision Under Review Ap p ea l from the Appellate Court for the Third District; heard in that
court on appea l from the Circuit Court of Peoria County
, the Hon. J ames E. Shadid, J udg e, pre siding.

J udg ment Appellate c ourt judg ment reve rsed. Circuit court judg ment aff irmed.Counsel on

Appea l L isa Madig an, Attorney Gene ral, of Springf ield, and J err

y Br ady
, State’s Attorney
, of Peoria (Michae l A

. Scodro, Solicitor Ge nera l, a nd Michae l M. Glick, Retha Stott s and Erica Sey burn, Assistant Attorney s Gene ral, of Chicag o, and Patrick Delfino, Terr y A. Mertel and Robert M. Hanse n, of the Offic e of the State’s Attorney s Appellate Prosecutor, of Ottawa, of counsel), f

or the People.

Michae l J

. Pelletier, State Appellate Def ender
, Thomas A. L ilien, Deputy Def ender
, and Fletc her P. Ha mill, Assistant Appellate Def ender
, of the Offic e of the State Appellate D efe nder, of Elg in, for appe llee.

J ustices J USTI CE THEI S delivered the judgme nt of the cour t, with opinion.
Chief J usti ce Kilbride and J ustices Thomas, Gar man, and Kar

meier

concur red in the judg ment and opinion.
J ustice B urke dissente d, with opinion, joi ned by J ustice F ree man.

OP INION

¶ 1 Following a jury trial in the circ uit court of Peoria County
, defe ndant Dominick Epping er

was found guilty of attempted murder, aggr av ated battery with a firea rm, two counts of

arme d robber

y , and u n l aw fu l p ossession of a firea rm by a felon, and was sentenc ed to 95
y ear s’ imprisonment. The appellate court reve rsed and rema nded for a new trial. 2012 I L App (3d) 100577-U. The principal issue in this appea l is whether the trial court violated section 115-4.1(a ) of the Code of Criminal Procedur e of 1963 (Code) (725 I L CS 5/115-4.1(a) (West 2010)) (sometimes ref

err ed to as the trial in absentia statute) when, following the ref usal of defe ndant pro se to leave his holding cell and participate in his trial, the court conducte d voir dire without first appointing c ounsel to repr esent de fenda nt. ¶ 2 For the rea sons discussed below, we hold that s ec t i o n 1 1 5 -4

. 1 (a ) of the Code is inapplicable under the fac ts of t his case , and thus the t rial court did not violate t he st atute. Acc ording ly , we r ever se the judg ment of the a ppellate c ourt.

¶ 3 BA CKGROUND ¶ 4 On Dec em b er 9
, 2 0 0 8, the Peoria County g rand jury enter ed a multicount indi ctment ag ainst defe ndant in connec tion with an arme d robber y ear lier that month during which one of the victims was shot multiple tim es, sustainingperma nent injuries. Def

endant e ntere d a plea of not guilty
, and the trial court appointed the public defe nder to repr esent him. Def ense counsel filed a motion to suppress defe ndant’s oral statements to police, including a videotaped statement in which defe ndant admitted his participation in the arme d robber y and

-2-shooting. The jury trial, orig inally set for Marc h 9, 2009, was co n t i n u ed t o J une 8, 2009.

Afte r an evidentiar

y hear ing, the trial court denied defe nse counsel’s suppression motion. Def endant therea fter reque sted the appointment of a differe nt public defe nder, who would keep him better informed and repr esent him “a littl e bit better.” Def ense counsel stated that communication wit h her client had “broken d o wn

. ” T h e t rial court g rante d the request for appointment of newcounsel a nd continued the tria l date to August 24, 2009. ¶ 5 De fe n d an t ’s n ew p ub l i c defe nder filed a motion to suppress the identification of defe ndant duringa photog raphic lineup. Be fore that motion could be hear d, on August 18, 2009, six day s befor e trial, defe ndant reque sted that he be allowed t o p ro ceed pro se

. Def endant stated that he felt he could defe nd himself “better than the public defe nder can.” After adm o n i shing defe ndant about the difficulties of self-r epre sentation and the possible penalties he fac ed, the trial court g rante d defe ndant’s reque st, finding defe ndant knowing ly and voluntarily waived h i s ri ght to counsel. On defe ndant’s motion, the jury trial was continued to Octobe r 19, 2009. ¶ 6 On September 11, 2009, the case was up for revie w and tender of discovery to de fenda nt. The c ourt noted, on the re cord, that defe ndant was “ cre atingquite a ruc kus in the bullpen” and that the c ourt could hea r def endant pounding. The c ourt later c autioned def endant that althoug h he had a rig ht to repr esent himself, if h e d i s ru p t ed the proce eding s, he could be

remove d, and the tria l would proce ed without him. ¶ 7 Def

endant elec ted not to proce ed on the motion to suppress identification that his former public defe nder filed, and instead filed a s er i es of pro se motions challeng ing the photogr aphic lineup. Of neces s i t y , the trial date was continued to J anuar y 11, 2010. Following an evidentiar

y hear ing on Dec ember 10, 2009, the trial court denied defe ndant’s motions. As to the J anuar y 11, 2010, trial, upon questionin g b y t h e trial court, defe ndant stated sever al times that he was rea dy for trial. Def endant further stated that he would not be callingany

witnesses and a

pretria l confe renc e wa s unnece ssary

. ¶ 8 On Dece m b er 1 2
, 2009, defe ndant s ent a letter to the t rial j udg e requesting
, inter alia
, appointment of standby counsel. At a hear ing five day s later, defe ndant indicated his continued desire to repr esent himself at trial, and that he was reque sting standby counsel to

ensure he would follow the corr ect proce dure and that none of his rig hts would be violated. The trial court denied defe ndant’s reque st. Def endant ag ain indicated he was rea dy for trial. ¶ 9 On Dec ember 26, 2009, defe ndant wrote a letter to the trial judge reg arding a discovery
matter which the court took up on J anuar y 5, 2010. At that time, the court also cover ed the particula rs of how the trial would proce ed, advising defe nda nt th a t ju ry selec tion would beg in the afte rnoon of J anuar

y 11, 2010. Def

endant agree d with the trial court that the jury would be told that counsel was available to defe ndant, and defe ndant chose to repr esent himself. Def endant a lso ag ree d to make a list of questions he would like the jur ors to be aske d. ¶ 10 Six day s later, on the morning of trial, defe ndant chang ed course

. Def endant advised the court that he no longe r wished to repr esent him self and reque sted appointment of counse l. The State objected, arguing that defe ndant’s reque st was simply a delay tactic. Def endant interjec ted: “I ’m not r epre senting my self. I don’t ca re—I don’t car e what she [the assistant State’s Attorney] say [s]

. I ’m not g oing to trial by my self. I won’t do it.” The trial court

-3-agree d with the State that defe ndant’s reque st for appointment of counsel was made for the

purpose of

delay and denie d that reque st. The cour t addre ssed def

endant:
“I don’t think any

thing has chang ed. You made an inte l l i gen t and knowing waiver of your rig ht to counsel. You’ve been throug h two public defe nders. You ref used to cooper ate with them. Yo u asked to repr esent yourself. You wer e allowed to do so afte r questioni ng

. Yo u insisted on repr esenting yourself at ever y court appear ance

. We g ave you an opportunity to say that you did not w ant to r epre sent yourself. You insisted on g oing forwa

rd even as of last Wednesday when we wer e in court. The fac t of the matter is I think today it’s simply for the purpose of delay that you ask for an attorney

. There is nothing in the rec ord to indicate that you’re g oing to cooper ate with
an attorne y . You have a—you had a rig ht to an attorne y . Attorney s were appointed for you. You chose t o give up that rig ht. You made that decision afte r leng thy questioning by me, and at this point I still believe that this is just for the purpose of delay , and your re quest now for appointment of counse l will be denied.” The followingcolloquy

then took place : “THE D EFEN DANT: I

ain’t g oing to tria l. THE COURT: Well, thi s trial is goingto start at 1:15.
THE DEF ENDAN T: Iain’t doingit.
THE COURT: How do you choose—a re you g oing to choose not to participate?
THE DEF ENDAN T: I ’m not participating , man. T HE COURT: You’ve previously been advised t hat t rial could be held in y o u r absenc e. * * *
THE DEF ENDAN T: I ’m not g oing to tria l, man.
THE COURT: I ’m g oing to have you brought back out here at 1:15. W e’ ll g o throug h questioning a g ain and—
THE DEF ENDAN T: Idon’t want to talk to you no more. THE COURT: And you can c hoose to participate or c hoose not to.
THE DEF ENDAN T: I ’m not participating

. THE COURT: You ar e not par ticipating a

t this poi nt?
THE DEF ENDAN T: I ’m not participating

. THE COURT: All rig ht. We’ll revisit thi s at 1:15.
* * *
THE COU R T : *** For the rec ord, Mr. Epping er has chosen to leave the courtroom, even though he’s in custody

. He does not—he just walked to the holding cell.”
When the court rec onvened at 1:17 p.m., defe ndant was not prese nt. The rec ord ref lects that prior to the start of

jury selec tion, the following e x chang e occ urre d:
“THE COURT: *** We’re rea dy to be g in jur y selec tion. The Court ha s handed

-4-clothes t h at M r. E p pinge r’s mother brought this morning to the guard, and it’s the
repor t of the guard from the Peoria County Sheriff’ s Depa rtment that Mr. Epping er ref used the c lothes and has r efuse d to come into the cour troom; is that correc t? THE DEPUTY: That is so correc t.
THE COURT: All right. That is consistent with his statements ea rl i er t his morning and his ref

usal to visit with his mother when the Court made that available
to her and to him at mid morning this morning

. The Court during a brea k was g oing
to clea r the courtroom and allow Mr. Epping er’ s mother, Miss Causey
, to visit with him. He re fused that visit as well.
So with that in mind then, M i s s Ho o s [assist ant State’s Attorney], rea dy to proce ed?
MS. HO OS: Ye s, J udg e. I ’m rea dy to pr ocee d. Are we e ven g oing to bring him out before we star

t jury selec tion justto ask him? THE COURT: Well, Idon’t want him to have to be forc ibly brought out, so— MS. HOOS: Okay

. THE COURT: I ’ll ask the guard if you will please g o back in and—and tell him that he’s to be brought—he’s to come into court and—and answe r if he wishes to participate, okay ? I f you’ll just say that—just bring him in. I don’t know—but I don’t
want you to use phy sical forc e to have to do so. I f he ref uses, just come back out here and re port, all rig ht?
THE DEPUTY: Ye s, sir. (Pause.)
THE DEPUTY: He ref

used to come out. THE COURT: All rig ht. Can you tell me what he sa id?
THE DEPUTY: He say s, ‘I ’m not g oing back into that courtro o m

. T h at ’s bullshit .’ ” ¶ 11 The court then proce eded with jury selec tion, advising the venire that defe ndant made a choice to repr esent himself, and made a choice that day not to participa te in the proce eding s. T h e trial court inst ructe d the venire that the principles of l aw reg arding the S tate’s bu rd en of proof, the presumption of innocenc e, and defe ndant’s decision whether to testify applied notwithstanding defe ndant’s absenc e. After the newly selec ted jury was d i s missed for the day , the cour

t ag ain took up the matter of defe ndant’s par

ticipation in his t rial:
“THE COURT: I ’m g oing to sign an order that has Mr. Epping er brought to court tomorrow morning. W e’ll m ake another attempt to see if he wants to be clothed in the clothingthat his mother brought for him and par ticipate.
It looks to m e like—is there a fur ther re port from the Sher iff’s De partment?
THE DEPUTY: Ye s. When I went back j ust befor e we started picking juror s, I let him know we wer e picking jurors and asked him ag ain if he did want to come out to participate, and he ref

used, and he said he will ref use to come to court tomorrow.
T HE C OURT: All rig ht. Well, I ’m just g oing to make a rec ord that he wil l b e

-5-brought to court, but I don’t expect any body to have to forc ibly or phy sically remove him from a cell to be brought to court or forc ibly or phy sically remove him from any holding c ell at the cour

thouse to be brought into the courtroom.” ¶ 12 The following morning, def endant was prese nt in the courtroom, dresse d for trial. The
court advised defe ndant that the jury had been selec ted, and that t h e j u ry wa s told that defe ndant had chosen to repr esent himself and also had chosen not to participate. Def endant stated that he still felt he neede d counsel, but w as choosingto participate and wa s rea dy to proce ed. ¶ 13 T h e S t at e’ s ev i d en ce included testimony from four of the victims, eac h of wh o m identified defendant as the person who had robbed him or her at gu np oint befor e shoot ing

one of the victims multipl e time s

. T h e S t ate also played for the jury a video rec ording of defe n d ant’s confe ssion. Def endant called no witnesses and did not testify
, but he made an opening statement, cross-e x amined the State’s witnesses, and made a closing argument. The jury found def

endant guilty

of attempted murde r, ag g ravated battery with a firea rm (which
merg ed with the attempted murder)
, two counts of arme d robber y , and unlawful possession of a f irea rm by a fe lon. ¶ 14 The trial court g rante d defe ndant’s reque st and appointed the public d efe nder to repre sent defe ndant posttrial. Although the public defe nder filed a posttrial motion, defe ndant filed his

own m o t i o n for a new trial, which he insisted on arguing. Def endant explained: “I didn’t
want nobody to argue. I want to argue my self. I just neede d an attorney afte r my sentenc ing to put in for my

appea l.” Afte r ar gument on both motions, the trial court denied relief

. The trial court subsequently sentenc ed defe ndant, who h ad t wo prior felony convictions, to an ag g reg ate ter

m of 95 year s’ imprisonment. ¶ 15 On appea l, defe ndant raised a single issue. Def endant claimed that the trial court violated section 115-4.1(a ) of the Code by conducting voir dire in his absenc e without the prese nce of any counsel repr esenting him. Be cause defe ndant failed to raise this issue in the trial court, defe ndant soug ht revie w under the plain-er ror doctrine, arguing that the trial court’s alleg ed

err or aff ecte d his substantial rig hts. The appellate court agree d with defe ndant and reve rsed and remanded for a new trial. 2012 I L Ap p (3 d ) 1 00577-U, ¶ 27. The appellate court held that section 1 1 5 -4

. 1 (a) of the Code require s that counsel be appointed to repr esent a defe ndant befor e trial in absentia may p roce ed, and that section 115-4.1(a ) applies even wher e a defe ndant has waived his rig ht to counsel and chooses to rema in in his holding cell rathe r than appea

r for trial. Id. ¶¶ 7
, 2 0

. The appellate court declined to follow People v. Reisinger
, 106 I ll. App. 3d 148 (1982), which, under simil ar circ umstances, held that section 115-4.1(a ) did not apply to an in-custody defe ndant. Id. ¶¶ 19-20. The appellate court further held that the trial court’s purported violation of the statute constituted structura l err or in that defe ndant was de nied a f

air trial by

an impartial jury

. Id. ¶ 25. ¶ 16 We allowed the State’s petition for leave to appea l. I ll. S. Ct. R. 315 (ef f. Fe b. 26, 2010).

¶ 17 ANALYSI S ¶ 18 The plain-er

ror doctrine permits a revie wing court to by-pass normal rules of forf eiture and consider “[p] lain err ors or defe cts aff ecting substantial rights *** althoug h they wer e not

-6-brought to the attention of the trial court.” I ll. S. Ct. R. 615(a). See also People v. Herron
,

215 I ll. 2d 1 6 7
, 1 86-87 (2005). Plain-err or revie w is appropr iate under either of two circ umstances: (1) when “a clea r or obvious err or o cc u rred and the evidenc e is so closely balanc ed that the er ro r alone threatened to tip the scale s of justice ag ainst the defe ndant,
reg ardle ss of the seriousness of the err or”; or (2) when “a clea r or obvious err or occur

red and that err or is so serious that it aff ecte d the fairne ss of the defe ndant’s trial and challeng ed the integ rity of the judicial proce ss, reg ardle ss of the cl o s en es s of the evidenc e.” People v. Piatkowski , 225 I ll. 2d 551, 565 (2007). ¶ 19 Def

endant here proce eded in the appellate court under the second prong of the plain-er ror doctrine. In order to obtain relief
, defe n d an t m u s t demonstrate not only that a clea r or obvious er ro r o ccur

red ( In re M.W

. , 232 I ll. 2d 408, 431 (2009))
, but that the err or was a structura l error

( People v

. Thompson
, 238 I ll. 2d 598, 613-14 (2010)). I f def endant f ails to
meet his bur den of persua sion on eac h of these propositions, the proce dural defa ult will be honored. People v. Lovejo y , 235 I ll. 2d 97, 148 (2009). The first step in our analy sis is to deter mine whether an err or occur red. Thompson
, 238 I ll. 2d at 613; M.W

. , 232 I ll. 2d at 431. ¶ 20 Def

endant’ s claim of err or cente rs on the court’s purported failure to appoint counsel to repr esent him at t rial. As to this claim of error, w e note that de fenda nt did not argue in the appellate court, and does not argue here
, that the trial court err ed by denying his reque st for standby counsel some three wee ks befor e trial, or by denying his reque st for appointment of

a third public defe nder on the morning of trial. Nor does defe ndant argue that he was entitled
to appointment of counsel as a matter of state or fede ral constitutional law. Indeed, defe ndant does not claim that his wai v er o f h i s constitutional rig ht to counsel was invalid for any

rea son. Rather, defe ndant argues only that he was statutorily entitled to appointment of counsel, i.e.
, once defe ndant decided not to participate in his trial by ref using to leave his holding cell, the court h ad no choice
, pursuant to section 115-4.1(a ) of the Code, but to appoint counsel befor e proce edin g with the trial. Whether the trial court violated section 115- 4.1(a) devolves into an issue of statutory construction. ¶ 21 Our primary objective in construing a statute is to asce rtain and g ive eff ect to the intent of the leg islature, bear ing in mind that the best evidenc e of such intent is the statutory languag e, g iven its plain and ordinary meaning

. People v. Baskerv ille
, 2012 I L 111056, ¶ 18. In addition to the statutory languag e, leg islative intent can be asce rtained from consideration of the statute in its entirety
, its nature and object, and the conseque nces of construing it one way or the other. Crossroads Ford Truck Sales, Inc. v. Sterling T r u ck Co rp. , 2011 I L 111611, ¶ 45. Where the statutory languag e is clea r and u n am b i gu o u s, we will apply the
statute as written. Nowak v. City of Country Club Hills
, 2011 I L 111838, ¶ 11. I f, howeve r, the statutory languag e admits of more than one rea sonabl e construction and is thus

a mb ig u o u s , w e will consider extrinsi c aids to construction. Id. Be cause statutory con s tr u c ti o n is an issue of law, our

revie w proc eeds de novo

. Baskerv ille , 2012 I L111056, ¶ 18. ¶ 22 Section 115-4.1(a ) of the Code states in its entirety :

“Abse nce of d ef

endant. (a) When a defe ndant afte r arr est and an initial court appea ranc e for a non-ca

pital felony or a misdemeanor, fails to appea r for trial, at the
reque st of the State and af ter the State ha s aff

irmatively proven through substantial

-7-evidenc e that the defe ndant is willfully avoiding trial, the court may commence trial in the absenc e of the defe ndant. Absenc e of a defe ndant as specifie d in this Sec tion shall not be a bar to indictment of a defe ndant, ret urn of information ag ainst a defe ndant, or arr aig nment of a defe nd an t fo r t he charg e for which bail has been
g rante d. I f a defe ndant fails to appea r at arr aig nment, the court may ent er a plea of ‘not guilty ’ on his behalf

. I f a defe ndant absents himself befor e trial on a capital felony
, trial may proce ed as specifie d in this Section provided that the State cer tifies that it will not seek a death sentence following conviction. Trial in the defendant’s absenc e shall be by jury unless the defe ndant had previously waived trial by jury

. The absent defenda

nt must be represe nted by re t ai n ed or appointed counsel. The court, at the conclusion of all of the proce eding s, may order the cler k of the circ uit court to pay counsel such sum a s the court de ems rea sonable, from any bond monies which

wer e posted by the defe ndant with the cler k, afte r the cler

k has first deducte d all court costs. I f trial had previous l y commence d in the prese nce of the defe ndant and the defe ndant willfully ab s en t s himself for two succe ssive court day s, the court shall
proce ed to trial. All proce dural rig hts guara nteed by the United States Constitution, Constitution of the State of I llinois
, statutes of the State of I llinois
, and rules of court shall apply to the proce eding s the same as if the defe ndant wer e prese nt in court and had not either forf

eited his bail bond or esca ped from custody

. The court may set the

case for a trial which may be conducte d under this Sec tion de spite the failure of the defe ndant to appea

r at the hear ing at which the trial date is set. When such trial date is set the cler

k shall send to the defe ndant, by cer tified mail at his last known addre ss indicated on his bond slip, notice of the ne w date which has been set for trial. Such notification shall be require d when the defe ndant was not persona lly prese nt in open court at the time when the case was set for trial.” 725 I L CS 5/115-4.1(a) (West 2010). ¶ 23 In People v. Ramirez
, 214 I ll. 2d 176, 183 (2005), we deter mined that section 115-4.1( a) is the second part of a larg er statutory scheme
, the first part of which is found in section 113- 4(e) of the Code ( 725 I L CS 5/ 113-4(e ) (West 2010)). Sec tion 113-4(e) provides:
“I f a defe ndant pleads not guilty
, the court shall advise him at that time or at any later
court date on which he is prese nt that if he esca pes from custody or is rele ased on bond and fails to appea

r in court when require d by the court that his failure to appea r would constitute a waiver of his right to confr ont the witnesses ag ainst him and trial could proc eed in his abse nce.” 725 I L CS 5/ 113-4(e ) (West 2010). Reading these provisions toge ther, we conclude d that section 115-4.1(a) direc ts how a court should proce ed wher e a defe ndant, proper ly admonished pursuant to sec tion 113-4(e ), willfully absents himself fr om trial. Ramirez , 214 I ll. 2d at 183. ¶ 24 This court has had occa sion to consider the meaning of cer tain discrete provisions of this statutory scheme

. See, e.g. , People v. Phillips
, 242 I ll. 2d 189, 199 (2011) (interpr eting section 113-4(e )’s admonish m en t re qu irement in light of the war ning, reg arding trial in absentia
, contained on the back of a bail bond slip); Ramirez
, 214 I ll. 2d at 183 (interpr eting section 115-4.1(a )’s require ment that the cler k notify an absent defe ndant of the trial date by

cer tified mail); People v. Garner
, 147 I ll. 2d 467, 475-76 (1992) (interpr eting section 113-

-8-4(e) ’s admonishment with respe ct to experience d criminals); People v. Partee
, 125 I ll. 2d 24,

41 (1988) (interpr eting section 113-4(e )’s admonishment with re s pect to a defe ndant who absconds during trial); People v. Maya
, 105 I ll. 2d 281, 287 (1985) (interpr eting section 115- 4.1(a) ’s provision for pay

ment of defe nse counsel fee s from forf eited bail bond monies). But this court has not had occa sion to addre ss whether section 115-4.1(a ) applies to an in-custody defe ndant who proce eds pro se , afte r waiving the rig ht to cou n s el, and who ref uses to participate in his own trial, thus also waiving his rig ht to be prese nt. Although the State and defe ndant both r ely on what they claim is the plain languag e of the statute, they disag ree as to which languag e is controlling

. The parties’ diverg ent views as to the proper rea ding of the statute, as well as the curr ent disag ree ment betwee n the appellate court order in this case and the appellate court’s opinion in Reisinger
, are indicative of a lack of clarity in the statutory scheme

. ¶ 25 The State focu s es o n t h e s t at u t o ry l an gu ag e which seeming ly excludes in-custody defe ndants. The State notes that the admonishments in section 113-4(e ) are expressly framed in terms of a defe ndant who either “esc apes from custody or is rele ased on bond and fails to ap p ear ” (725 I L CS 5/113-4(e) (West 2010)), and that section 115-4.1(a ) contains si m i l ar languag e: “All proce dural rig hts guara nteed by the United States Constitution, Constitution

o f t h e State of I llinois
, statutes of t he S tate of I llinois
, and rules of court shall apply to t h e proce eding s the same a s if the def endant we re pr esent in cour t and had not either forfeited his bail bond or escape d from custo d y .” (Emphasis added.) 725 I L CS 5/115-4.1(a) (West 2010). The State posits that this terminolog y “does not encompa ss in-custody defe ndants: a defe ndant i n custody has no bond to ‘for feit,’ ha s not ‘esca ped,’ a nd is not ‘absent’—he is in custody , whether

in his courthouse holdingcell or in the c ourtroom itself.” ¶ 26 The S tate maintains t hat limiti ngthe statute’s a pplicability

in this fashion is consistent with its p u

r p o s e : g u a r a nte e ing the fairne ss of proce eding s conducte d in a defe ndant’s absenc e whe re t h e defe ndant’s waiver of his rig ht to be prese nt at trial must be inferr ed from his failure to appea

r. The State argues that no uncer tainty exis ts a

nd no such infere nce need be made wher e, as here
, the defe ndant is in custody and has made a valid waiver of his rig ht to be pre sent and his rig ht to counsel. ¶ 27 The State’s c onstruction of t he st atute finds support in our appe llate cour t’s opinion in People v. Reisinger
, 106 I ll. App. 3d 148 (1982), which the appellate court here declined to follow. In Reisinger
, the in-custody defe ndant, who was repr esente d by private counsel and then succe ssive public defe nders, elec ted to proce ed pro se

. On the day of trial, unhappy with the court’s decision to defe r ruling on one of his pro se motions, the defe ndant ref used to participate. After forc ibly being brought back into the courtroom, the defe ndant voluntarily

wa i v ed h i s rig ht to be prese nt and ref used to have the public defe nder, who had been appointed as standby co u n s el, repr esent him. Trial proce eded in the absenc e of both defe ndant and standby

counsel, a

nd a jury found def

endant guilty

of theft. ¶ 28 On appea l, the defe ndant argued, inter alia
, that section 115-4.1(a ) contains an absolute prohibition ag ainst trials in absentia when the defe ndant is not repr esente d by counsel. The appellate court disag ree d, holding that the defe ndant’s absenc e from trial did not fit within the circ umstances contemplated by the statute. Reisinger
, 106 I ll. App. 3d at 1 5 3

. The appellate court discussed the defe ndant’s right to counsel:

-9-“The defe ndant had reta ined counsel[,] and two appoint ed public defe nders
repr esente d him in the instant case bef ore he elec ted to proce ed pro se

. He was obviously awa

re of his r ight to c ounsel and rig ht to repr esent himself. He exhibi ted

a fair amount of leg al sophistication and used ever y opportunity to enfor ce his rig hts. W h en i t beca

me appar ent to the defe ndant that his trial would commence , h e demande d both his own absenc e and the dismiss al of his standby counsel. The rec ord establishes that the defe ndant deliberately and knowing ly exploi ted his rig ht to

co u n sel *** and consciously soug ht delay

. As the I llinois Supreme Court rec ently observe d[,] the rig ht of repr esentation ‘may not be employ ed as a we ap on to indefinitely thwart the administrat i o n o f justice or to otherwise embar rass the eff ective prosec ution of crime.’ (P eo p l e v. Myle

s (1981), 86 I ll. 2d 260, 268, ***.)” Id. ¶ 29 Reisinge r is the only published opinion to consider the applicability of the appointment of counsel provision in section 1 1 5 -4

. 1(a) to in-custody defe ndants and has g one unchalleng ed for the past three deca des. Although d e f e n d a nt c o n c e d e s th a

t “ R e isinge r stands 1 for the proposition that the judge was not require d to appoint counsel in this case ,” he argues that Reisi n g er is contra

ry to the plain languag e of the statute. Acc ording to defe ndant, the
scope and applicability of section 115-4.1(a ) is not controlled by the ref ere nce in that section,

or in section 113-4(e ), to defe ndants who have esca ped from custody or forf

eited their bail. Rather, defe ndant maintains that the controlling languag e is found in the initial sentenc e of section 115-4.1(a ): “When a defe ndant afte r arr est and an initial court appea ranc e for a noncapital felony or a misdemeanor, fails to appea r for trial, at the reque st of the State and afte r the State has aff

irmatively proven throug h substantial evidenc e that the defe ndant is will fully avoiding trial
, the co u rt m ay commence trial in the absenc e of the defe ndant.” (Emphasis added.) 725 I L CS 5/115-4.1(a) (West 2010). Based on this language, d ef en dant m aintains that section 115-4.1(a ) applies, without limit ation, any ti me a d e f e n d a nt is “ willfully avoiding trial” e ven whe re, a s here , the def endant is in custody

but refuse s to leave his holding cell. Def endant further argues that the statute expressly require s that “[t] he absent defe ndant must be repr esente d by reta ined or appointed counsel” ( id. ), and that the statute m ak es no exception for a defe ndant who has previously waived the rig ht to counsel. Finally
, defe ndant
argues that policy considera tions favor an interpre tation of the statute requiring appointment of counsel in all trials in absentia
, notwithstanding a previous waiver of counsel, beca use “a trial with no repr esenta

tion of one of its parties is the antithesis of our adver sarial sy stem.” ¶ 30 Def

endant’ s rea ding of the statute finds at least some support in appellate court opinions which, althoug h not involving in-custody defe ndants, have spoken in a bsolute terms of the need for represe ntation at t rial of an absent defe ndant. I n People v

. Ga r g a ni
, 371 I ll. App. 3d 729, 736 (2007), for example, the appellate court held that the statute’s command that the absent defe ndant “must” be repr esente d by counsel is a mandatory obliga tion. See also People v . McCombs , 372 I ll. App. 3d 967, 971- 72 (2007) ( holding that the a ppointment of

T he app el la te cou rt ’s dec is ion in the pre sen t cas e, tho ugh par ti ng company wit h Reisi nge r , 1 was fi le d as an ord er , rath er tha n an opi nio n, and is n ot pre ced ent ia l. See I ll . S. Ct. R. 23 (ef f. J uly 1, 20 11)

.
-10-counsel provision in section 115-4.1(a ) applies notwithstanding a prior waiver of counsel).

Def endant’ s rea ding of the statute is also consistent with “our traditional distrust of trials in absentia .” Garner , 147 I ll. 2d at 483. ¶ 31 Our job of asce rtaining leg islative intent is not an easy one wher e, as here
, the statute is

n o t a m o d el of clar ity
, and the rea ding of the s tatute advocated by the S tate and defe nd an t

eac h has merit, i.e.
, both rea dings find some support in the statutory languag e and case law. Taking into acc ount the conseque nces of construing the statute one way or the other does not bring us an y closer to discerning leg islative intent. Although defe ndant’s expansive construction has the benef it of a brig ht-line rule applicable to all defe ndants who are tried in absentia
, it would permit an in-custody d ef en dant to manipulate his rig ht to counsel and benef it from his own delay

tactics. Unde r def

endant’ s rea ding, the trial court in the i nstant

case would have been require d to appoint a third public defe nder and continue the trial date while new counsel prepa

red for trial, with no assura nce that defe ndant would cooper ate with this publi c defende r, and even though defenda nt claims no err or fr om the court’s de nial of his reque st to appoint counsel on the morning of trial. The State’s less expansive construction would produce a diffe rent anomaly : a n in-custody

defe ndant who wa ives counsel a nd then

esca pes would be entitled to appointment of counsel befor e trial in absent i a , b ut an incustody defe ndant who waives counsel and ref uses to leave his holding cell would not be entitled to appointment of counsel. The State’s co n struction, howeve r, would preve nt

m anipul ation of the rig ht to counsel; in-custody pro se defe ndants would not g ain an advanta g e fr om their voluntary absenc e. ¶ 32 We conclude that both interpre tations of section 115-4.1(a ) are rea sonable, alb ei t for differ ent reasons, and that the s tatute i s thus ambiguous. Nowak
, 2011 I L 111838, ¶ 11. In such case s, we may look beyond the statutory languag e and consider extri n sic aids to construction in order to a scer tain leg islative intent. Id. One suc h extrinsi c aid is leg islative history

. County of Du Page v. I llinois Labor Relations Board , 231 I ll. 2d 593, 604 (2008). ¶ 33 This court has alre ady considere d the leg islative history of section 113-4(e ) of the Code, which contains the admonishment provision, and has rec og nized that its primary purpose “is
to preve nt ‘bail jumping’ and to promote the speedy satisfac tion of judgme nt.” Garner
, 147 I ll. 2d at 481 (citing 81st I ll. Gen. Assem., House Procee dings, May 25, 1 9 7 9
, at 151 (statements of Represe ntative Kosinski), at 153 (statements of Represe ntative McAuliffe )). As discussed below, se ction 115-4.1(a ) shar es the same purpose. ¶ 34 Section 115-4.1 was first added to the Code in 1971. Pub. Act 77 -1 4 4 6 (e ff

. Sept. 2, 1971). As orig inally adopted, the sing le

- p a r a gr a p h statute addre ssed only the situation wher e, afte r trial commence s, a defe nd an t “willfully absents himself from court for a period of 2

succe ssive d ay s.” Id. The statute provided that the absenc e of such defe ndant “shall not operate as a

bar to c oncludingthe trial.” Id. ¶ 35 In 1979, with the adoption of Public Act 81-1066, the leg islature expanded section 115- 4.1. P ub

. Ac t 81-1066 (ef f. Sept. 26, 1979). Although the leg islature would twice more amend section 115-4.1 to bring it to its prese nt form (see Pub. Act 84-945 (ef f. Sept. 25, 1985); Pub. Ac t 90- 787 (ef f. Aug . 14, 1998)), the le g islature’s 1979 amendment added the l an gu age on which the parties here primarily rely

. The 1979 amendment also added t h e

-11-corr esponding admonishment provision to section 113-4 of the Code. Pub. Act 81-1066 (ef f. Sept. 26, 1979). ¶ 36 The leg islative history of Public Act 81-1066, which beg an life as House Bill 295, reve als that the leg islature’s intent was to addre ss the problem of bail jumpers. As explained by one of the bill’s sponsors:
“House Bill 265 is the Bill that’s aimed at bail jumpers. *** It’s [ sic ] intention within Constitutional limit ations is to g et those people who deliberately jump bail to esca pe prosec ution. It’s Constitutional[ ly ] desig ned to g ive t hem every prer og ative if t h ey have cause for such bail jumping. But it’s [ sic ] intention [i s] to g et at people such as t h e p eople we’ ve experience d in our county who on posting twenty -five hundred dollars in cash on an ag g ravated rape and arme d robber y , then deliberately jump bail and are n o t h eard of beca use they fee l with overwhelming evidenc e twenty -five hundred dollars i s a cheap fee to pay for esca ping a jail sentenc e. This was particula rly evident in the ‘He rra ra’ ca s e, an alledg ed [ sic ] dope smugg ler from Mexi co in Chicag o to whom they say one hundred thousand dollar[s] has no conce rn to permit him to jump bail and return to Mexi co

. ” 8 1 s t I l l

. Gen. Assem., House Procee dings, Ma

y 25, 1979, at 151 (stateme nts of Represe ntative Kosinski). Represe ntative Kosinski elaborated:
“This [bi ll] mere ly say s that if a man deliberately
, I repe at, deliberately jumps bail to

esca pe the state’s prosec ution, the trial can proc ee d wi t h out him. *** [I ]t is the i n t en t i on of t he S ponsors of t his Bill *** [t ]o insure that for a few paltry dollars, a

man does not esca

pe justice.” 81st I ll. Gen. As s em

. , House Procee dings, May 25, 1979, at 155-56 (statements of Repre sentative Kosinski). Another repr esentative who spoke in support of the bill noted that when a defe ndant jumps bail, by the time he or she is appre hended, witnesses may be dead or may have moved, and that the bill would allow trial to proce ed while witness es are still available

. 81st I ll. Gen. Assem., House Procee dings, May 25, 1979, at 153 (statements of Rep r e s e nta ti v e M c Auliffe)

. Represe ntative Katz voiced simil ar conce rns, focusing on a perc eived unfairne ss in the thenexis ting statute:
“I f the only rig ht i n v olved wer e the rig ht of the defe ndant, it would be very easy simply to vote ‘no’. The fac t is that there is a lso the rig ht of the victim to the crime. You have the situation whe re the defe ndant has an incentive to jump bail. When he jumps bail, then it is a matter of time until all the state’s evidenc e has been lost[ ,] *** the witnesses have disappea red, the victim of the crime is no longe r there and so *** the prese nt law g ives an incentive to the bail jumper, an incentive that works contra ry to fairne ss to t h e v i ctim of the crime.” 81st I ll. Gen. Assem., House Procee dings, May 25, 1979, at 157 (stateme nts of Represe ntative Katz). ¶ 37 The leg islative debate s in the Senate simil arly ref lect that House Bill 265 was “ desig ned
to corr ect a problem *** with bail jumpers.” 81st I ll. Gen. Assem., Senate Procee dings, J une 27, 1979, at 219 (stateme nts of Senator Sang meister). Senator Sang meister explained: “[A] person can be picked up on an offe nse, post even a hug e bail, particula rly in the drug case s, and at that time, skip out of bail. And at that time under the prese nt law,

-12-unless a trial has commence d, there is no way you can try that person. So if he comes back in, commits the same crime ag ain, he’s picked up ag ain and arr ested, but he can also make bond ag ain beca use he has not been tried. This particula r bill, if it become s law, will enable the

... prosec ution to g o forwa rd and

... and try this person and there

are plenty of safegu ar d s i n the bi ll. For example, if he’s requested a j ury trial, he’s
g oing t o get a j ury trial. He has to be repr esente d by council [ sic ]. All of his constitutional rig hts are absol u t el y p reserved. But in the end, if there is a

... a deter mination of guilt, the ne x t time that person c omes bac k in the jurisdiction and is arr ested, he can be picked up *** and confine d rathe r than ag ain making bail.” Id. at 220. ¶ 38 The leg islative history of Public Act 8 1 -1 0 6 6
, wh en consi dere d in tandem with the statutory languag e, demonstrates that the Gene ral Assembly intended to targ et the problems of disappea

ring witnesses and stale evidenc e wher e prosec ution is suspended indefinitely beca use the defe ndant jumps bail befor e trial ev en commence s. Nothing in the debate s sug g ests that the leg islature intended to addre ss t h e enti rely differ ent problems that arise wher e a defe ndant, who is in custody
, essentially boycotts his or her own trial. Although such conduct may delay the trial in the short run or disrupt the court’s docket temporar ily
, it does
not raise the specte r that trial may be delayed indefinitely
, which was the i m p etus for the leg islature’s a doption of Publi c Ac t 81-1066. ¶ 39 We note, moreo v er , t h at n o t h i n g i n the leg islative history sug g ests that the Gene ral A s s e mbly intended the statute g ener ally
, or its appointm e nt- o f

- c o u n s e l p r o v is io n s p e c if

ic a ll y , to be used by in-custody defe ndants as a sword to delay trial, or that the leg islature intended
to rem o v e the trial judge ’s discretion when fac ed with an eleve nth-hour reque st for appointment of counsel. Rather, the debate s as a whole reve al that the Gene ral Assembly wanted to remove any benef it to a defe ndant who flouts t h e cr i m inal justice sy stem by jumping bail. ¶ 40 Ba sed on the l an gu age i n section 115-4.1(a ), as well as the related admonishments in section 113-4(e ), considere d in light of the leg islative history
, we hold that section 115-4.1(a ) is inapplicable to in-custody defe ndants. Acc ording ly
, the trial court here was not statutorily require d to ap p o int a third public defe nder and continue the trial date simply beca use defe ndant, afte r waiving his rig ht to counsel, decide d to waive also his rig ht to be prese nt by ref using to lea

ve his holding c ell. ¶ 41 We reje ct defe ndant’s argument that if section 115-4.1(a ) does not apply in this case , then the cour t could not have pr ocee ded with voir dire in defe ndant’s absenc e beca use no other
statute authorizes trial in absentia

. The fac t that the statu t e re gu l at es trial in absentia in

cer tain case s does not mean that trial in absentia is prohibited in all other case s. The rig ht of

a defe ndant to be prese nt at all stag es of his trial exis ts as a constitutional rig ht independe nt of section 115-4.1(a ) of the Code (U.S. Const., amend. VI ; I ll. Const. 1970, art. I
, § 8), and, there fore
, a defe ndant may waive that righ t—as defe ndant did here—independe nt of the
statute. In other words, express statutory authority is not a prerequisite to trial in absentia

. A trial, of course , must proce ed within the confine s of our fede ral and state constitutions. Def endant, howeve r, makes no constitutionally based argument that would require appointment of counsel in the fac e of a valid waiver of that right. Instead, defe ndant’s claim

-13-of err or is based en t i re l y on section 115-4.1(a ) of the Code, which we have held is

inapplicable unde r the fa cts of this case

. ¶ 42 Be cause defe ndant’s only claim of err or fails, defe ndant cannot succe ed on his claim of plain err or. Ac cording ly , defe ndant is not entitled to a new trial.

¶ 43 CONCLUSI ON ¶ 44 For the rea sons stated, we reve rse the judgme nt of the ap p el l at e co u rt t hat re verse d defe ndant’s convictions and remanded for a new trial, and affirm t he judgment of the t ri al
court.

¶ 45 Appellate c ourt judg ment reve rsed. ¶ 46 Circuit court judg ment aff irmed.

¶ 47 J USTI CE BURKE, dissenting : ¶ 48 Section 115-4.1(a ) of the C o d e o f C riminal Procedur e (Code) (725 I L CS 5/ 115-4.1(a ) (West 2010)) provides that an attorney must be appointed to repr esent a defe ndant who is tried in absentia . The majority today holds that this re quirement doe s not apply to a pro se defe ndant who ref

uses to leave his holding cell and participate in his trial. I disagree with this conclusion and the ref

ore dissent. ¶ 49 The majority initially finds that the languag e of section 1 1 5 -4

. 1 (a ) i s am b i gu o us. Acc ording to the majority
, the statute does not c learly state whether it a pplies only to those defe ndants who have esca ped from custody or have been rele ased on bond and fail to appea r for trial, or whether it may also apply t o an i n -custody defe ndant. Supra ¶ 32. Relying on leg islators’ statements during the floor debate s indicating t hat the statute was intended to addre ss the problem of defe ndants who jump bail, the majority conclude s that section 115- 4.1(a) is inapplicable to def endants who r emain in custody

. Supra ¶¶ 36- 40. ¶ 50 W h i l e I agr ee wi t h t h e m aj ority that the statute is ambiguous, I disag ree that t h e leg islative history resolves the ambiguity

. Throughout the leg islative debate s, the leg islators
repe atedly ref

er to the problem of bail jumping and indicate that the statute was intended to provide a mecha

nism, within constitutional limits, to try a defe ndant who jumps ba il in his

or her absenc e. Nowher e in the debate s do the leg islators say , howeve r, that the leg islation

was intended to apply exc lusively to bail jumpers. Stil l unresolved then is the issue raised by defe ndant in this appea l—whether the statute applies to an in-custody defe ndant who ref uses to leave his holding cell. That issue wa s n ev er raised during the leg islative debate s. “Not

ever y silence is pregnant.” State of Illinois, Departme nt of

Public Aid v. Schweike r , 707 F.2d 273, 277 (7th Cir. 1983). We cannot infer from the leg islators’ mere silence in this instance that the statute wa s not intended to apply to an in-custody

defe ndant. ¶ 51 Be cause the legi s l at i v e h i s t o ry d oes not resolve the question at hand, principles of statutory interpre tation may be employ ed to decide the issue. When int erp re ting an ambiguous statute, we may consider the conseque nces which would result from construing the statute one w ay

or the other

. Solon v. Midwest Medic al Records Ass’n , 236 I ll. 2d 433,

-14-441 (2010). In doing so, we presume that the leg islature, in enact i n g t h e s t atute, did not

intend absurd, inconvenient, or unjust results. In re Detention of Powell
, 217 I ll. 2d 123, 135 (2005). ¶ 52 S ec t i o n 1 1 5 -4.1(a ) provides that, “[w]hen a defe ndant afte r arr est and an initial court
appea ranc e for a non-ca

pital felony or a misdemeanor, fails to appea r for trial, at the reque st of the State and afte r the State has aff irmatively proven throug h substantial evidenc e that the defe ndant is wi l l fully avoiding trial, the court may commence trial in the absenc e of the defe ndant.” 725 I L CS 5/115-4.1(a) (West 2010). The statute require s that trial in the absenc e of the defe ndant “shall be by jury unless the defe ndant had previously waived trial by jury ,” and that “[t] he absent defe ndant must be repr esente d by reta ined or appointed counsel.” Id. It also provides that “[a]ll proce dural ri gh t s guara nteed by the United States Constitution, Constitution of the State of I llinois , statutes of the State of I llinois , and rule s of cour t shall apply to the proce eding s the same as if the defe ndant wer e prese nt in court and had not either forf eited his bail bond or esc aped f rom custody .” Id. ¶ 53 This court has held that the leg islature’s intention in enac ting section 115-4.1(a ) was “ to provide for a trial in absentia
, within constitutional limit s, if a defe ndant wilfully and without justification absente d himself from trial” ( People v. Maya
, 105 I ll. 2d 281, 285 (1985))
, and
to “set[ ] forth the circ umstances in which a trial in abse ntia may be conducte d” ( People v. Smith
, 188 I ll. 2d 335, 341 (1999)). We also have said that “[s] ection 115-4.1 pr ovides for trial in absentia

. It does not cre ate a kang aroo court. *** [T] he defe ndant who is absent from trial, even willfully
, reta ins some of the proce dural rig hts of a prese nt defe ndant.” People v. Partee
, 125 I ll. 2d 24, 31 (1988). Thus, the leg islature specific ally in cl u ded nece ssary safe guards in the statute in order to protect the a bsent defe ndant’s important constitutional and statutory

rig hts. See People v . Ramirez , 214 I ll. 2d 176, 184 (2005). ¶ 54 In addition, our appe l l at e court has held that the appointment-of- counsel provision in section 115-4.1(a) is a mandatory prer equisite to conducting a trial in defe ndant’s absence and that the failure to appoint counsel for a defe ndant befor e trying h i m in absentia is

reve rsible err or. People v. Gargani
, 371 I ll. App. 3d 729, 736 (2007). Fur ther, our appellate court has held that ev en wher e a defe ndant had previously waived his rig ht to an attorney , the statute entitles the defe ndant to the appointment of counsel befor e being tried in absentia. People v . McCombs , 372 I ll. App. 3d 967, 972 (2007). ¶ 55 Given this ba ckground, the majority ’s rea ding of the statute is unrea sonable. Under the majority ’s interpre tation of section 115-4.1(a ), a defe ndant who has invoked his right of selfrepr esentation prior to being rele ased on bond and who fails to appea r on his trial date would be entitled to appointment of counsel befor e a trial could be held in his absenc e, while an incustody defe ndant who invokes his right of self-r epre sentation and ref uses to le ave his c ell would not be entitled to appointment of counsel. In other words, the majority has conclude d that the leg islature intended to aff ord greater protec tions to those defe ndants who jump bail than those who re main in-custody . This cannot possibly be cor rec t. ¶ 56 M o reover, this court has held that a trial at which neither the defe ndant nor de fe n s e counsel is prese nt is unconstitutional. People v. Davis
, 39 I l l

. 2d 325, 331 (1968) (citing Gideon v. W

ainwright
, 372 U.S. 335 (1963)); Partee , 125 I ll. 2d at 39; People v. Barraza
,

-15-193 I ll. App. 3d 655, 660 (1990) (“The role of the defe ndant’s att o rney in the in absentia

proce eding s is c rucia l to insure that they are conducte d with due reg ard for the defe ndant’s rig hts. In fac t, the prese nce of counsel for the defe ndant is essential to make such proce eding s constitutional.” (citing Davis
, 39 I ll. 2d at 329-31))

. Presumably
, the leg islature was awa re of the constitutional restric tions on trials in absentia in the absenc e of defe nse counsel when it enac ted s ection 115-4.1(a). Thus, it is rea sonable to assume that the l eg islature intended the statute to apply to any defe ndant who is a bsent from trial, including one who ref uses to leave the holding c ell. ¶ 57 The majority expresses conce rn that an in-custody defe ndant might use the appointmentof-c ounsel provision in section 115-4.1(a ) to obstruct the proce eding s an d ca u se delay

. Howeve r, by ref

using to enter the courtroom and participate in his trial defe ndant waived his rig ht to repr esent himself. See, e.g. , Faretta v. Calif ornia
, 422 U.S. 806, 834 n.46 (1975) (a trial judge may terminate self-r epre sentation if a defe ndant “deliber ately eng ag es in serious and obs t ru cti onist misconduct” and may appoint standby counsel, even over defe ndant’s objection, to be available to re p resent the defe ndant in the event that termination of the defe ndant’s self-r epre s en t ati on is nece ssary ). There is no rea son, there fore
, why the judge could not have appointed counsel to repr esent defe ndant and continued on with the
proce eding s. See al s o , e.g. , Maybe rry v. Pennsylv ania
, 400 U.S. 455, 468 (1971) (Bur g er, C.J
., concur

ring ) (“A criminal trial is not a private matter; the public interest is so g reat that the prese nce and participa tion of counsel, even when opposed by the acc used, is war rante d in order to vindicate the proc ess itself.”)

. ¶ 58 T o b e sure, appointing counsel might have occa sioned further delay

. But consider t h e conseque nce of holding that the leg islature did not intend for the statute to apply to incustody defe ndants beca

use there might be some delay

. Such a holding would mean that the leg islature int en ded for a criminal trial to g o forwa rd with no defe nse counsel prese nt, no defe ndant prese nt, and the jurors place d in front of a completely one-sided, “ka ng aroo court.” Partee
, 125 I ll. 2d at 31. Ag ain, in my view, there is no possibili ty t h at this is what the Gene ral Asse mbly

intended. ¶ 59 The leg islature, in e nacting section 115-4.1(a), intended to sa feguard the constitutional rig hts of a defe ndant who is tried in abs en t i a , thus ensuring the fairne ss of the trial
proce eding s. The statute expli citly provides t h at the defe ndant must be repr esente d by
reta ined or appointed counsel. Construing the statute to exclude in-custody defe ndants leads
to absurd results: that the leg islature intended t o afford g rea ter protec tions to those defe ndants who jump bail than those who rema in in custody
, and that the leg islature intended for c riminal trials to be conduc ted in “kang aroo c ourts.” I cannot reasona bly conclude that the leg islature intended those results. Acc ording ly
, I would hold that the leg islature intended for the constitutional protec tions in section 115-4.1(a ) to apply any time a defe ndant is tried in absentia , including those instances whe n the def endant is in custody

.

¶ 60 J USTI CE FREEMAN joins in this dis sent.

-16-