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People v. Evans
State: Illinois
Court: 4th District Appellate
Docket No: 4-02-1035 Rel
Case Date: 06/04/2004

NO. 4-02-1035

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT



THE PEOPLE OF THE STATE OF ILLINOIS,
                         Plaintiff-Appellee,
                         v.
ROBERT L. EVANS, JR.,
                         Defendant,
                         and
JOHN L. BRITTON,
                         Defendant-Appellant.
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Appeal from
Circuit Court of
Macon County
No. 02MR64

The Honorable
Albert G. Webber,
Judge Presiding.


PRESIDING JUSTICE KNECHT delivered the opinion of thecourt:

Defendant, John L. Britton, appeals his October 2002conviction for indirect criminal contempt of court based on hisfailure to appear to testify in Memphis, Tennessee, pursuant to thetrial court's order under the Uniform Act to Secure the Attendance ofWitnesses from Within or Without a State in Criminal Proceedings(Act) (725 ILCS 220/1 through 6 (West 2002)). We affirm.

I. BACKGROUND

The Act permits a state other than this state, "which byits laws has made provision for commanding persons within that stateto attend and testify in this state," to obtain a summons issued by acourt of this state directing a witness here to appear and testify ina criminal prosecution or grand jury investigation in that state. 725 ILCS 220/2 (West 2002). The other state must certify under sealof its court that such an action is pending and that the person inthis state is a material witness. Upon presentation of such certificate to a court in this state in the county where the witness is, ourcourt will direct the witness to appear at a hearing. At thathearing, our court will determine whether the witness is material andnecessary, whether the witness will suffer undue hardship from beingcompelled to testify in the other state, and whether the laws of thestate where the action is pending, or any other state the witnesswould be required to travel through, will provide the witness protection from arrest and service of criminal or civil process. If thecriteria are met, our court

"shall issue a summons, with a copy of the certificate attached, directing the witness toattend and testify in the court where the prosecution is pending, or where a grand jury investigation has commenced or is about to commence[,] at a time and place specified in thesummons." 725 ILCS 220/2 (West 2002).

The Act further provides as follows:

"If the witness, who is summoned as aboveprovided, after being paid or tendered by someproperly authorized person the sum of 10 centsa mile for each mile by the ordinary travelroute to and from the court where the prosecution is pending and 5 dollars for each day thathe is required to travel and attend as a witness, fails without good cause to attend andtestify as directed in the summons, he shall bepunished in the manner provided for the punishment of any witness who disobeys a summons issued from a court in this state." 725 ILCS220/2 (West 2002).

In February 2002, the Criminal Court of Tennessee, Thirtieth Judicial District, certified that defendant, as well as two otherwitnesses not party to this appeal, was a necessary and materialwitness for the State of Tennessee and that his presence in thatcourt for the purpose of giving testimony would be required on April1, 2002, through April 3, 2002. In March 2002, the circuit courtissued a criminal subpoena for defendant, ordering him to appear at ahearing. The subpoena contained the following notice: "Your failureto appear may result in your arrest and punishment for contempt ofcourt." The circuit court held a hearing on the State of Tennessee'scertificate. Defendant attended the hearing and informed the courthe objected to being required to attend the trial in Tennessee. Jerry Kitchin, assistant District Attorney for Shelby County, Tennessee, testified at the hearing. Kitchin testified as to why defendantwas a material and necessary witness and that the State of Tennesseewould make his travel arrangements, arrange for his stay, and pay aper diem for his meals. Kitchin also testified it was his understanding that any state defendant may have to pass through was aparty to the Act and defendant would be immune from service ofprocess.

Defendant offered no testimony of undue hardship resultingfrom being required to testify in Tennessee. Defendant's onlytestimony was that he had no information regarding the case in whichhe would be called to testify. At the conclusion of the hearing, thetrial court found defendant was a material and necessary witness,that he would be immune from service of process for prior acts, andthat he would suffer no undue hardship. The court signed the orderand issued a summons directing defendant to appear and testify in thecase. On the record, Kitchin confirmed to the trial court he wasprepared to discuss travel arrangements, at which time, the followingexchange took place:

"DEFENDANT: Your Honor, I don't need no[sic] travel arrangements (inaudible) lawyers. I'll be with them. You guys wasting [sic] yourtime. I don't need any travel arrangements.

THE COURT: You can talk to Mr. Kitchin,and if you have other arrangements to getthere--

DEFENDANT: I already got [sic] a ride downthere.

THE COURT: That would be fine. You canlet them know what arrangements you have sothat they'll know when you'll be arriving andso they can insure that you'll be there whenthey need to call you to testify.

DEFENDANT: But, at the same time, RobertEvans' [(the defendant in the Tennessee case)]lawyer said I wouldn't have to come down untilthe middle of the month.

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THE COURT: They may want you to testify onbehalf of Mr. Evans and these gentlemen arehere asking you to testify on behalf of theState [of Tennessee]. So, it may be that they,the State, may call you early in the trial,and, then, the defense might not want to callyou as a witness until sometime later in themonth when they start putting on theirevidence. So, it may be there will be twodifferent times involved here."

In April 2002, the State filed a petition for adjudication ofindirect criminal contempt of court against defendant. The petitionalleged defendant was served with a copy of the court's order andsummons commanding his appearance in Tennessee, defendant failed toappear in Tennessee, and his failure to appear was willful andcontumacious.

In October 2002, the trial court conducted a jury trial onthe State's petition. Frank Campbell, an investigator for the MaconCounty State's Attorney's office, testified that he was present whenthe court ordered defendant, as well as the two other witnesses, togo to Tennessee to testify. Campbell testified that as soon as thecourt recessed, defendant left the courtroom and the courthouse, butthe two other witnesses remained behind to make travel arrangementswith the Tennessee representatives. Several days later, whendefendant returned to the courthouse on an unrelated matter, Campbellhanded a copy of the order and summons to defendant. Defendant toldCampbell defendant was going to Tennessee the next day at the requestof the defense. Defendant requested no money and expressed noproblems with getting to Tennessee. On cross-examination, Campbelladmitted he did not ask defendant how he was getting to Tennessee,did not offer him an airplane ticket, and did not ask whetherdefendant had a car or a driver's license.

James Bruce, a captain with the Germantown, Tennessee,police department, testified defendant was not present at the trialin Tennessee. Bruce testified he did not make travel arrangementswith defendant when they spoke before the March 2002 hearing. Brucetestified he and Kitchin were able to make arrangements with the twoother witnesses following that hearing, but defendant left thecourthouse before they were able to speak to him.

Defendant did not testify. The jury found defendantguilty of indirect criminal contempt of court. In November 2002,without defendant being present, the trial court sentenced defendantto 364 days in the Macon County jail. This appeal followed.

II. ANALYSIS

"The elements of the offense of indirect criminal contemptare (1) respondent violated a court order, and (2) [he] did sowilfully." In re B.J., 268 Ill. App. 3d 449, 451, 644 N.E.2d 791,793 (1994). On appeal, defendant argues the State failed to provebeyond a reasonable doubt that his violation of the trial court'sorder was willful. In support of this argument, defendant assertsthe State of Tennessee failed to make travel arrangements for him asdirected by the trial court, Tennessee failed to pay his travelexpenses in advance as required by the Act, and he did not receive asubpoena to appear in Tennessee on penalty of contempt.

"When considering a challenge to the sufficiencyof the evidence on appeal, it is not thefunction of the reviewing court to retry thedefendant. [Citation.] Rather, the relevantquestion is 'whether, after viewing theevidence in the light most favorable to thestate, any rational trier of fact could havefound the essential elements of the crimebeyond a reasonable doubt.'" People v. Milka,No. 95740, slip op. at 22 (March 18, 2004), ___Ill. 2d ___, ___, ___ N.E.2d ___, ___, quoting People v. Perez, 189 Ill. 2d 254, 265-66, 725N.E.2d 1258, 1264 (2000).

Accordingly, our inquiry is whether any rational trier of fact couldhave found beyond a reasonable doubt that defendant willfully failedto go to Tennessee to testify.

First, defendant argues the order directing him to appearwas dependent upon Tennessee providing him with travel arrangements. Assuming, arguendo, the Act requires payment of travel expenses as acondition precedent to the trial court's issuance of a summons,defendant would not escape culpability. In this case, the evidenceclearly demonstrates that Tennessee representatives were present,willing, and able to make defendant's travel arrangements when thecourt issued its order. The record also shows that defendant knew hewas being required to testify, and defendant knew that Tennesseerepresentatives were present in court to make his travelarrangements. Even after defendant informed the court he had a rideto Tennessee, the court instructed defendant that he shouldnonetheless discuss his travel arrangements with the representativesfrom Tennessee. Defendant does not dispute that he left thecourtroom before any arrangements could be made.

Defendant's argument that "Tennessee's complete failure toprovide travel arrangements as ordered was the cause of [his] failureto travel to Tennessee" is wholly disingenuous. "A person whopre[v]ents the performance of an alleged condition to a contractcannot take advantage of his conduct to claim that the resultingfailure of the condition relieves him of his obligation under thecontract." Wasserman v. Autohaus on Edens, Inc., 202 Ill. App. 3d229, 239, 559 N.E.2d 911, 918 (1990). Fundamental justice requiresthe same principle to apply equally in this context. Accordingly,defendant cannot disclaim responsibility because of the failure of analleged condition precedent he caused. Moreover, based on theoverwhelming evidence of defendant's adamant stance againsttestifying for the State of Tennessee, the jury reasonably couldconclude defendant purposely absented himself from the courtroom topurposely avoid having travel arrangements made for him.

Next, defendant argues he did not willfully disobey thetrial court's order because he was not served with a subpoenacommanding his attendance on penalty of contempt. Essentially,defendant argues because he did not know the consequences of hisactions, his actions were not willful. "A principle deeply embeddedin our system of jurisprudence is that one's ignorance of the lawdoes not excuse unlawful conduct. [Citation.] [Defendant] does notcite any provision of the Criminal Code [of 1961] or any case lawthat would require or even suggest an exception to this principleunder the facts of this case." People v. Izzo, 195 Ill. 2d 109, 115,745 N.E.2d 548, 552-53 (2001).

III. CONCLUSION

For the reasons stated, we affirm the trial court'sjudgment.

Affirmed.

COOK and MYERSCOUGH, JJ., concur.

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