APPEAL from the Circuit Court of Lake County; the Hon. LLOYD
A. VAN DEUSEN, Judge, presiding.
MR. PRESIDING JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
The defendant was indicted for the murder of his sister-in-law, Lillian Walker, and the attempt to murder his brother, George Walker. The jury returned a verdict of guilty of the attempted murder of George, but could not agree on a verdict as to the charge of murdering Lillian, and a mistrial was ordered on the murder count.
Prior to a date being set for a new trial on the murder charge defense counsel and the State's Attorney entered into plea negotiations, as a result of which the defendant appeared in court on the date set for hearing his post-trial motions and tendered a plea of guilty to the murder charge. The essence of the agreement was: (1) that the defendant would be sentenced to serve not less than 15 nor more than 30 years in the penitentiary for the murder of Lillian Walker and would receive the same sentence for the crime of attempt to murder George Walker, said sentence to run concurrently with the sentence for murder; (2) that the defendant would waive his right to file post-trial motions and would waive any errors he might otherwise raise as to his conviction for attempted murder.
The defendant now appeals his conviction, both as to the murder charge to which he pleaded guilty, and the attempted murder, of which he was convicted. As to the guilty plea on the charge of murder the defendant says the court did not admonish him in compliance with Supreme Court Rule 402 inasmuch as the court did not ascertain that there was a factual basis for the guilty plea before he accepted it. As to the attempted murder (of which he was convicted), the defendant raises three issues: (1) the trial court erred in allowing the State's Attorney to read verbatim portions of the trial transcript to the jury in his closing argument; (2) the trial court erred in failing to exercise his discretion as to his right to respond to certain questions asked of the court by the jury after it had retired to deliberate; (3) the trial court erred in refusing to give the defendant's proffered instruction on involuntary intoxication.
• 1 The defendant's contention with regard to the failure of the court to ascertain that there was a factual basis for the guilty plea merits little attention. The defense attorney asked the court as far as the factual basis is concerned to consider the evidence adduced at the entire trial. The trial took three days and the testimony was voluminous. Every aspect of the crime was developed and argued over and the defendant himself testified as to the circumstances of the shooting. We agree with the trial court's finding inasmuch as the factual basis for murder was overwhelmingly established.
In considering the other assignments of error raised by the defendant we are met at the outset with the State's contention that none of them should be considered because the guilty plea waived all errors not jurisdictional which occurred at the trial. Moreover, the defendant agreed in open court that as part of the plea bargain he waived any errors arising out of the trial. The State points out that at the hearing on the plea of guilty the defendant specifically waived the filing of any post-trial motions, acknowledging in open court that the waiver was part of the plea bargain.
• 2 As strong as the logic of this position may be and as eminently fair to the defendant in view of the evidence adduced at the trial and the advantage he received in the plea bargain, we are not inclined to dispose of this case on the basis that the defendant foreclosed himself from an appeal. While the rule invoked by the State as to waiver of errors by a guilty plea is clearly applicable to the murder charge to which the defendant pleaded guilty, it has no bearing on the charge of attempted murder and the only basis for the waiver of error as to that charge was the defendant's acknowledgment in open court that this was part of the plea bargain. While we do not say that a defendant cannot, under any circumstances, effectively waive his right to appeal a criminal conviction, a coersive factor is alleged in this case through making such waiver part of the plea bargain involving another crime and we have therefore resolved to consider the issues raised here as to the errors occurring at the trial for attempt murder without consideration of the subsequent plea bargain.
It is contended by the defendant that reversible error was committed when the State's Attorney read verbatim to the jury a portion of the trial testimony at the closing argument. Although there is authority for this proposition (People v. Willy, 301 Ill. 307; People v. Hoggs, 17 Ill. App.3d 67) such improper statements or evidence must be objected to at the time of the trial to be considered on appeal and no such timely objection was made in the case before us. Unless inflammatory or grossly exaggerated so as to deprive the defendant of a fair trial, relevant evidentiary material used in the closing argument and not objected to will be waived for the purposes of appeal. (See People v. Simmons, 21 Ill. App.3d 310, 313.) In this case the testimony objected to was in no way inflammatory or exaggerated. Commenting on the justice of this rule our Supreme Court said in People v. Killebrew, 55 Ill.2d 337:
"`* * * The rationale underlying the procedural waiver doctrine is a sound one, based upon the need for timely resolution at trial of evidentiary questions. The salutary consequence of the waiver rule is that "A party cannot sit by and permit evidence to be introduced without objection and upon appeal urge an objection which might have been obviated if made at the trial." (People v. Trefonas, 9 Ill.2d 92, 98.)'" 55 Ill.2d 337, 341.
• 3 On this point we hold, therefore, that the issue was waived by failure to make timely objection. Moreover, we are of the opinion that, considering the nature of the testimony, that is, that it was largely the defendant's own statements, a reading of the exact words rather than a summary or paraphrase of them did not materially affect the issue of guilt or innocence.
We turn now to the question raised by the failure of the trial judge to respond positively to several communications from the jury after it began its deliberations. The defendant contends that the judge's negative response to these communications evidenced a failure to exercise the discretion which in such cases resides with the trial court and which was confirmed by our Supreme Court in the case of People v. Pierce, 56 Ill.2d 361. In that case, in commenting on the judge's negative response to an inquiry from the jury, the court said, after discussing various theories as to the trial court's discretion in replying to the jury:
"A third view is that it is within the discretion of the trial court to allow or refuse the request for the review of testimony. The majority of courts which have considered the question have adopted this view. (50 A.L.R.2d 176.) We consider that the position of the majority is to be preferred." (56 Ill.2d 361, 364.)
Following this case, in People v. Queen, 56 Ill.2d 560, 565, the Supreme Court held there had been a failure to exercise the trial court's proper discretion, when in answer to the jury's note reading, "`Would like the defendant's words on the stand,'" the judge replied, "`You must decide on the basis of the testimony heard in the courtroom. I cannot have any testimony of any witnesses read to you * * *.'" The Supreme Court held these words imported a mistaken belief by the trial court that it had no discretion in the matter and that its failure to answer, being based on this mistaken belief, was reversible error since the trial court had failed to exercise any discretion in a situation where he had room to do so.
We must decide, then, whether in the case before us the decision by the trial court not to respond positively to the jury's request was an abuse of discretion or a reasonable exercise of ...