Opinion
Gen. No. 50,752.
May 26, 1967.
Appeal from the Circuit Court of Cook County, Criminal Division; the Hon. EDWARD E. PLUSDRAK, Judge, presiding. Affirmed.
Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall J. Hartman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
Daniel P. Ward, State's Attorney of Cook County, of Chicago (Elmer C. Kissane and Dean H. Bilton, Assistant State's Attorneys, of counsel), for appellee.
OFFENSE CHARGED
Defendant was also charged with rape and armed robbery, but was found not guilty of those offenses.
DEFENSE AT TRIAL
Alibi.
JUDGMENT
After a bench trial, the court found defendant guilty and imposed a sentence of three to ten years.
POINT RAISED ON APPEAL
Defendant did not receive a fair trial because a State witness, the investigating police officer, was excepted from a general exclusion of witnesses.
OPINION
Pursuant to a well-recognized practice in the courts of this state, the judge, in excluding witnesses at the beginning of the trial, made an exception of the investigating police officer. This was done at the request of the Assistant State's Attorney for the obvious purpose of affording him ready access to the officer's knowledge of the case throughout the conduct of the trial. This practice has been repeatedly reviewed with approval, and, in some cases, even though the officer was permitted to testify without an express exception having previously been made. People v. Washington, 81 Ill. App.2d 162, 225 N.E.2d 673; People v. Jackson, 58 Ill. App.2d 302, 305-308, 208 N.E.2d 385; People v. Walker, 50 Ill. App.2d 394, 396-397, 200 N.E.2d 26.
Determinative of the case at bar, and definitive on the subject, are the comments made by the Supreme Court in People v. Mack, 25 Ill.2d 416, 185 N.E.2d 154. The defendant in that case, as in the instant case, had sought reversal on the basis of People v. Dixon, 23 Ill.2d 136, 177 N.E.2d 206. In the Mack opinion the court said at pp 422-423:
The defendant, relying upon our recent decision in People v. Dixon, 23 Ill.2d 136, contends that the trial court committed reversible error in excepting officer Johnson from the motion to exclude witnesses. We have held that the defendant has no absolute right to have witnesses excluded (People v. Reed, 333 Ill. 397), and that the power to exclude witnesses is within the sound discretion of the trial court. (People v. Strader, 23 Ill.2d 13.) It is a common practice for a trial court, in granting a motion to exclude witnesses, to except, at the request of the State's Attorney, one witness for the People, frequently, but not always, one of the arresting officers. This practice has been upheld by this court on numerous occasions. (People v. Strader, 23 Ill.2d 13; People v. Townsend, 11 Ill.2d 30; People v. Reed, 333 Ill. 397.) Nothing in People v. Dixon, 23 Ill.2d 136, detracts from the validity of these decisions, and we have cited them with approval in a more recent decision. (People v. Chennault, 24 Ill.2d 185, 187.) In the Dixon case we reaffirmed the view that the exclusion of witnesses is a matter within the sound judicial discretion of the trial court, but added that a motion to exclude witnesses should normally be allowed, and that, in order to uphold the denial of a motion to exclude, the record should disclose a sound basis for such denial. In the Dixon case, the trial judge had flatly denied a motion to exclude witnesses with the remark, "Well, I don't like to do that." We reversed and remanded, holding, in effect, that such an arbitrary denial of a motion to exclude amounted to an abuse of discretion.
The present case involves no arbitrary denial of the motion to exclude. The motion was granted, except that the court permitted one police officer to remain. In our opinion in the Dixon case, in the same sentence in which we stated that a motion to exclude witnesses should normally be allowed, we recognized that "it may be proper in a particular case to permit one or more witnesses to remain in the courtroom, as in the Townsend and Reed cases." ( 23 Ill.2d 136, 140.) That is what was done here. When the defense attorney objected particularly to officer Johnson remaining in the courtroom, the trial judge took the position that he would allow the State to keep one police officer, and that he was not in a position to tell which officer it should be. In this we can see no abuse of discretion.
DECISION
The judgment of the Circuit Court is affirmed.
Affirmed.
DRUCKER and McCORMICK, JJ., concur.