APPEAL from the Circuit Court of St. Clair County; the Hon.
ALVIN H. MAEYS, JR., Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
This is an appeal by the defendant, Knoxell DeBoise, from a judgment of conviction entered by the circuit court of St. Clair County on a jury verdict of guilty to the charge of murder and the sentence of 40 to 90 years imposed thereunder.
On appeal the defendant raises the following contentions: (1) that "the trial court erred in denying defendant's motions to suppress evidence"; (2) that the trial court erred in permitting the State to reopen its case; and (3) that the defendant's sentence of 40 to 90 years in the penitentiary was excessive. We find that the defendant has waived his first contention.
Prior to defendant's first trial, he filed three motions to suppress. The first motion, encaptioned "Motion to Suppress Identification," alleged that the identification procedures employed by the police were "suggestive and unfair." The second motion, encaptioned "Motion to Suppress Confession," alleged that the defendant's confession was not voluntary and that the defendant was denied his fifth amendment rights as required by the Supreme Court's decision in Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602. The third motion, encaptioned "Motion to Suppress Evidence Illegally Seized," alleged that the defendant was arrested without a warrant and without probable cause and that as a result of this illegal arrest the "defendant was prevailed upon to give statements" in violation of his rights under the fourth amendment. A hearing was conducted on the defendant's motion to suppress confession. There was only one witness called to testify at this hearing, Detective Robert Henry. He testified that the defendant was advised of the Miranda warnings, that the defendant stated that he understood these warnings, and that no threats or promises were made to the defendant. At the conclusion of this hearing the trial court pronounced that,
"[The] Motion of the defendant, Knoxell DeBoise, to Suppress the Confession is denied. The Motion to Suppress the Identification will be continued."
An order to the same effect was entered the same day. Neither the pronouncement nor the order made any reference to the defendant's motion to suppress evidence illegally seized. While the record reflects that "Motions [were] heard" prior to the selection of jurors for defendant's first trial, it does not indicate either the nature or the disposition of such motions.
After the defendant's first trial ended in a mistrial, a second trial was held which ended in a jury verdict of guilty. No new motions to suppress were filed by the defendant; nor were any of the defendant's previous motions renewed. Prior to the second trial the trial court made the following inquiry: "Gentlemen, are there any Motions to be made before we proceed?" In response to this inquiry the defense counsel stated that there was a motion for a change of venue. After this motion was argued and denied, the defense counsel stated, "I believe that is the only Motion, your Honor." During the trial the State offered into evidence a statement the police had taken from the defendant. At this time the defense counsel made the following statement,
"Your Honor, there has been a pre-trial Motion heard already and objections to it. I don't want to cross examine the man at this time. I won't object to it based on the prior rulings of the Court as long as it is understood that we don't waive any objections presented at the pre-trial Motion."
After the trial court stated, "Let the record so show," it stated,
"I will show formally that People's Exhibit Number 6 is offered and accepted into evidence. Show that the record indicates that the defendant has not waived any statements or arguments previously presented as to the offering of this particular exhibit."
People's Exhibit 6 was the inculpatory statement made by defendant in which he stated that he was walking the street armed looking for someone to rob and that the decedent was shot accidentally by defendant's father's gun, which after the incident defendant returned to a file cabinet in which it was kept. Subsequently, the jury returned a verdict of guilty and the defendant filed a post-trial motion requesting a new trial, or in the alternative, a judgment notwithstanding the verdict. This post-trial motion was devoid of any reference to any of the defendant's motions to suppress. The only substantive issue raised therein, other than the State's failure to sustain its burden of proof, was that the trial court erred "in allowing the State to re-open its case."
"Where the grounds for a new trial are stated in writing, the accused is limited on review to the errors alleged therein and all other errors are deemed to have been waived." (People v. Hairston, 46 Ill.2d 348, 367, 263 N.E.2d 840, 851, cert. denied, 402 U.S. 972, 29 L.Ed.2d 136, 91 S.Ct. 1658.)
(See also People v. Pickett, 54 Ill.2d 280, 296 N.E.2d 856; People v. Hutson, 13 Ill. App.3d 775, 300 N.E.2d 305; People v. Norris, 8 Ill. App.3d 931, 291 N.E.2d 184. Furthermore, where, as in the instant case, the defendant urges a basis for suppression on appeal which was not urged in the trial court, such basis will not be entertained by a court of review. (People v. Sawyer, 42 Ill.2d 294, 251 N.E.2d 230, cert. denied, 396 U.S. 928, 24 L.Ed.2d 225, 90 S.Ct. 262; People v. Fentress, 133 Ill. App.2d 38, 272 N.E.2d 801.) While the defendant filed a motion to suppress illegally seized evidence before his first trial, which could have formed the basis for the contention now raised on appeal, he allowed this motion to remain unheard by the trial court. This motion was not renewed before the defendant's second trial. Consequently, the trial court did not consider the contention the defendant now raises on appeal. Under such circumstances the defendant has the burden to request a hearing on his motion and his failure to take any affirmative action on this motion places him in no position to assign error on appeal. See People v. Kostos, 21 Ill.2d 496, 173 N.E.2d 469.
• 2, 3 Under the facts of this case, we do not find that fundamental fairness (Supreme Court Rule 615(a), Ill. Rev. Stat. 1973, ch. 110A, par. 615(a)) requires that we relax the waiver rule in the instant case. Although we believe that the defendant may be able to demonstrate a technical violation of his constitutional rights, we do not believe that the alleged police misconduct enabled the police to obtain any evidence that would not have been obtained in the absence of the alleged violation. In other words, the evidence the defendant seeks to suppress was not obtained by exploitation of the alleged illegality of his arrest. The exclusionary rules are designed to deter the lawless action of police. (United States v. Calandra, 414 U.S. 338, 38 L.Ed.2d 561, 94 S.Ct. 613; Linkletter v. Walker, 381 U.S. 618, ...