Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. ALFONSE F. WELLS, Judge, presiding. Judgment
reversed and cause remanded.
MR. PRESIDING JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.
Leo Lagardo, the defendant, his wife Laura and Isaac James Oshana were indicted jointly for the crimes of theft and burglary. This is an appeal by defendant, Leo Lagardo, from a conviction for the offense of theft in a trial before a jury. On the burglary charge, the jury found defendant not guilty. Defendant was tried alone. After a guilty verdict for the offense of theft, the trial judge sentenced defendant to a term of six to ten years in the State Penitentiary. (In this regard the common-law record is in error wherein it recites the sentence to be for a term of eight to ten years.)
After the guilty verdict and entry of judgment thereon, defendant made motions for a new trial, in arrest of judgment, and to vacate the sentence imposed, all of which were denied and from which this appeal is taken.
The evidence revealed that a coach house occupied by complainant, Paul McAllister, was burglarized on November 8, 1962. Coindictee, Oshana, was subsequently arrested at 2:45 a.m. that same day at his home, where numerous items belonging to the complainant were found on his person. Oshana was then questioned by police authorities who thereafter with Oshana proceeded to the apartment occupied by defendant and his wife, Laura. Announcing their presence, the door to the Lagardo's one-room apartment was opened, revealing to the officers, certain items identified as belonging to the complainant in open view at the foot of the bed. Having been given a description of the burglarized property, the officers proceeded to seize it and to arrest defendant and his wife. The aggregate value of the goods stolen was much controverted, being in the neighborhood of $150.
It is defendant's theory of the case (1) that defendant was deprived of his constitutional right to be apprised of the nature of the charges brought against him in that the indictment recited a different form of theft from that which he was tried for and convicted, (2) that the trial judge erred in denying defendant's motion for a substitution of judges and change of venue, (3) that the State did not sustain a burden of proof sufficient to support the conviction obtained or the sentence imposed, (4) that reversible error was committed by the court in admitting certain matters into evidence and allowing the prosecutors to make prejudicial remarks regarding defendant, and (5) that the consecutive sentence imposed by the trial judge was excessive and unjust.
It is the State's theory of the case (1) that defendant has failed to preserve his objections, as to his right to remain silent, as to the alleged defective indictment, as to the ruling on his motions for substitution of judges and change of venue, and as to the severity of the sentence imposed, by his failure to raise these objections in his motion for a new trial, (2) that certain evidentiary matters were properly admitted into the trial because they were relevant, (3) that the evidence supports the verdict, and (4) that certain alleged prejudicial remarks made by the prosecutors were but responsive statements to earlier arguments by the defense counsel.
Though defendant raises many issues, this court feels that a single issue is dispositive of the relief sought by defendant in this appeal; to wit, the propriety of the ruling which denied defendant's motions for substitution of judges and change of venue without a hearing.
The State is correct in asserting that defendant has failed to include in his motion for a new trial any objection to the ruling on the pretrial motions. We do not believe, however, that he has thereby been precluded from arguing such an alleged defect before this court. Our Code of Criminal Procedure, section 121-9(a), dealing with causes on appeal, states:
Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court. [Ill Rev Stats (1963), c 38, § 121-9(a)]. *fn1
[1-4] While the general rule is that non-jurisdictional matters not included in a defendant's motion for a new trial are deemed to have been waived and therefore not subject to review, section 121-9(a) of the Code of Criminal Procedure has codified an exception to that general rule in instances where the alleged defect is patent, and it affects substantial rights to the satisfaction of the reviewing court in the exercise of their discretionary powers. Briefly, it may be said that the pivotal factors to be considered to determine whether or not an exercise of such discretion is warranted are, the closeness of the case, the conduct of the trial judge, the extent to which questionable evidence may have contributed to a guilty verdict, the fairness of the trial in general, and the magnitude of the errors alleged. People v. Bell, 61 Ill. App.2d 224, 209 N.E.2d 366 (1965). Cf. People v. Bradley, 30 Ill.2d 597, 198 N.E.2d 809 (1964), People v. DeStefano, 64 Ill. App.2d 389, 212 N.E.2d 357 (1965), and People v. Rodriquez, 79 Ill. App.2d 26, 223 N.E.2d 414. We feel that the circumstances attendant on the proceedings below warrant an exercise of such discretion to review the propriety of the trial judge's denial of a hearing on the aforementioned pretrial motions.
On January 18, 1963, after return of an indictment, defendant was arraigned, counsel appointed on his behalf and a plea of not guilty entered. The case was then assigned to Judge Harewood. On February 25, 1963, defendant's wife and Oshana made motions for a change of venue, defendant not joining in such motion. It is disputed whether or not defendant, at this point, expressly waived his right to a change of venue. The motions were sustained, and the case was reassigned to Judge Fitzgerald. On April 9, 1963, defendant obtained private counsel. On May 27, 1963, defendant violated his bond. The bond was ordered forfeited and a writ of capias issued. The case was stricken from the trial docket with leave to reinstate. On October 8, 1963, the case was reinstated upon the docket and assigned to Judge Wells. Defendant was arraigned before Judge Wells and entered a plea of not guilty by a new counsel, his third since his first arraignment. On February 20, 1964, defendant changed counsel again, retaining Mr. Basvic who eventually represented him at the trial. On March 3, 1964, defendant, by counsel, filed written motions for a substitution of judges and change of venue, together with an affidavit in support thereof.
The two motions and supporting affidavit, which were accompanied by a certificate of counsel's good faith, alleged in substance (1) that defendant fears he will not get a fair trial because of prejudice on the part of Judge Wells in that the said judge, in another cause on February 3, 1964, sentenced defendant to a term of ten to twenty years in the penitentiary, (2) that knowledge of said prejudice did not come to defendant until February 3, 1964, and (3) that appropriate relief is provided under Ill Rev Stats, c 38, § 114-5(a), (b) and (c) and Ill Rev Stats, c 146, §§ 18, 21, 25, and 26. Both motions were denied without a hearing, at which time the following took place:
The Court: I don't need a reason, Counsel. The law is my reason. I say that you are not entitled to a change of venue or a substitution of judges under the ...