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May 16, 2001

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JUSTICE LYTTON delivered the opinion of the court:

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Defendant Christopher McDonald was convicted of first degreemurder, two counts of aggravated battery with a firearm, aggravateddischarge 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 exparte hearings on material witness bonds; (2) when it denied amotion for a mistrial after prosecution testimony about bloodhoundevidence; and (3) in sentencing defendant. We affirm.

On February 9, 1999, John Gholston was driving a stolen carwith three passengers, Derrick Gholston, Lucias Byes and CourtneyWard. As Gholston parked the car, defendant came up to thevehicle, and an argument ensued. When John Gholston got out of thecar, defendant shot him; defendant then shot inside the carwounding Derrick Gholston and Lucias Byes. Courtney Ward escapedfrom the vehicle without injury. John Gholston died as a result ofthe shooting.

After defendant was indicted, the State petitioned the courtfor material witness bonds for Byes, Ward and Raymond Keyes, apotential witness to an inculpatory statement that defendantpurportedly made. Each petition alleged that the witness fearedfor his safety because Derrick Gholston had been shot and killed onFebruary 20, 1999. Byes' petition also alleged that he planned onleaving the Joliet area.

Neither defendant nor counsel received copies of the petitionsor notice of the hearings on the material witness bonds, andneither was present at the hearings. Defendant's counsel laterfound out about the hearings and filed a motion to dismiss theindictment, which the court denied. A jury found defendant guiltyof first degree murder, two counts of aggravated battery with afirearm, aggravated discharge of a firearm, and unlawful use of aweapon by a felon.

In Illinois, material witness bonds are a statutorilyauthorized procedure. 725 ILCS 5/109--3(d) (West 1998). Generally,section 109--3 concerns preliminary examinations, or hearings, forfelony defendants. If a defendant is held to answer after apreliminary hearing, the judge "may require any material witnessfor the State or defendant to enter into a written undertaking toappear at the trial." 725 ILCS 5/109--3(d) (West 1998). The courtcan then order the witness to execute a recognizance bond whichprovides for a forfeiture of a sum certain in the event the witnessfails to appear. 725 ILCS 5/109--3(d) (West 1998).

When a witness is brought before it, the court must decidewhether facts exist to warrant requiring a recognizance bond. Howard v. Grace, 18 Minn. 398, 401 (1872). Generally, if the courtdetermines that the witness is material and that there is a dangerthat 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 onenot charged with a crime, a court should be very circumspect ingranting material witness bonds. State v. Reid, 114 Ariz. 16, 25,559 P.2d 136, 145 (1976). A court must balance the need for awitness to appear at trial with the witness' constitutional rightto freedom from unnecessary restraint. Goodrich v. Warden, 137N.Y.S.2d 437, 438 (Sup. Ct. 1954).

In this case, defendant argues that his constitutional rightto be present was violated when each of the material witness bondswere issued at ex parte hearings. Neither defendant nor hisattorney had notice of the hearings. Indeed, defendant says thathe never would have known about them except for an accidentaldiscovery.

The State contends that defendant had no right to appear atthe hearings and cites several cases involving pretrial orposttrial motions to support its argument.⁽¹⁾ In all of the citedcases, however, defendant or counsel had notice, and counselattended the hearing. Here, neither counsel nor defendant receivednotice.

Defendants have the right to appear and defend themselves inperson at all stages of trial. U.S. Const., amend. XIV; Ill.Const. 1970, art. I,