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People v. Miller

OPINION FILED APRIL 5, 1977.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

MADISON

v.

MILLER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Franklin County; the Hon. F.P. HANAGAN, Judge, presiding.

MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 9, 1977.

Defendant, Madison V. Miller, was charged by indictment filed in the circuit court of Franklin County with the offense of attempt (murder). Following a jury trial, defendant was found guilty as charged. Defendant appeals the judgment entered by the trial court.

Defendant has failed to file a post-trial motion. On appeal, he presents three issues for review. He first contends that he was denied a fair trial due to a comment made by the trial judge in the presence of the jury. Next, he contends that certain testimony concerning the nature and extent of the injuries suffered by the victim was irrelevant and prejudicial. Lastly, by motion which we granted, defendant additionally contends that his indictment was insufficient.

Defendant's conviction stems from an incident in which he shot Gerald Gardner three times with a .22-caliber automatic rifle. The evidence at trial showed that while at a tavern during the course of the evening of the crime, hostility arose between defendant and Gardner. While exchanging insults, Gardner twice struck defendant, the second time causing defendant to fall from a barstool where he was sitting. At one point, a friend of defendant threatened to go to her home and get her gun to use against Gardner, but defendant told her not to do so since he had one of his own. Subsequently, defendant left the tavern with his friend and he was driven to a lounge where his car was parked. En route, defendant stated that he was going to get his gun and "get even" with Gardner and that he was going to "kill" him. Approximately 30 minutes to an hour later defendant returned to the tavern in his own car. He met Gardner in front of the tavern and there continued his argument with Gardner. Thereafter, Gardner went back inside the tavern. Defendant then entered the tavern holding his rifle at the waist and he shot Gardner three times. A physician, Dr. Fox, testified to the nature and extent of the wounds. One bullet had passed through Gardner's right thigh. Another entered at Gardner's belt line and the third bullet entered the chest in the area of the ninth rib. The physician stated that in his opinion Gardner would have died had it not been for the extensive emergency medical care given to Gardner.

At the close of the evidence the jury was given a "special interrogatory" asking them to decide whether defendant was acting under a sudden and intense passion resulting from serious provocation by Gardner at the time of the shooting. The interrogatory was answered "no" and the jury returned a verdict of guilty of attempt murder.

• 1 The law is well established that the failure to specify an issue in a post-trial motion constitutes a waiver of that issue and precludes a defendant from assigning that matter on appeal as grounds for reversal. (People v. Pickett, 54 Ill.2d 280, 296 N.E.2d 856; People v. Irwin, 32 Ill.2d 441, 207 N.E.2d 76; People v. Price, 32 Ill. App.3d 610, 336 N.E.2d 56.) Defendant's first two contentions involve the testimony of Dr. Fox. Defendant's objections to the doctor testifying to the details of the emergency surgery given Gardner were overruled. Following a statement by the doctor that Gardner's leg was amputated, defendant moved to strike the testimony. The trial judge granted the motion in so far as testimony concerning the amputation and denied the motion as to the remainder of the testimony. The trial judge then explained his reasons for his ruling. This explanation is the basis for defendant's first contention that the trial judge improperly suggested to the jury that the State had proved its case. After the court made its ruling, legal argument on the motion to strike continued outside the hearing of the jury. During the course of this argument, defense counsel raised an additional objection to the court's comments. The additional objection was not clearly brought to the court's attention and it does not appear that it was considered by the court. The record thus illustrates a primary object in applying the waiver rule; to inform the trial court of a possible mistake in order to give the court an opportunity to correct that mistake and to give the reviewing court the benefit of the trial court's ruling on the issue raised.

Defendant urges, citing People v. Sprinkle, 27 Ill.2d 398, 189 N.E.2d 295, that a less rigid application of the waiver rule is appropriate where the basis for the objection is the conduct of the trial judge. Sprinkle, however, was solely concerned with the practical problems of a trial lawyer in objecting to a trial judge's conduct, in the presence of a jury. No such similar problems can be associated with the raising of alleged errors by way of a motion for a new trial. Therefore the Sprinkle considerations do not apply to the case at bar.

• 2 Defendant also urges the application of the plain error doctrine under Supreme Court Rule 615(a) (Ill. Rev. Stat. 1975, ch. 110A, par. 615(a)). This doctrine is intended as a means of meliorating the harshness of a strict application of the waiver rule. By it, a court on review may notice errors not properly preserved which deprive the accused of substantial means of enjoying a fair and impartial trial or in which the evidence is closely balanced. (People v. Howell, 60 Ill.2d 117, 324 N.E.2d 403.) On examination of the record, we find neither of these considerations present and thus find that defendant waived the issue presented. In any event since, read in context, the statements of the trial judge were no more than an explanation of its ruling granting in part and denying in part a motion to strike, no error was committed. People v. Morgan, 28 Ill.2d 55, 190 N.E.2d 755; People v. Rojas, 68 Ill. App.2d 171, 215 N.E.2d 140.

• 3 Next defendant contends that the trial court erred in admitting the testimony of Dr. Fox. His contention on appeal is considerably broader than his objection at trial "to the bloody, gorey [sic] details of an operation." In addition to this objection defendant argues that testimony of the nature and extent of the injuries suffered was irrelevant to the issue of his intent to commit murder and was prejudicial. (Compare People v. Nickolopoulos, 25 Ill.2d 451, 185 N.E.2d 209, with People v. Pearson, 4 Ill. App.3d 462, 281 N.E.2d 422, and People v. Cunningham, 73 Ill. App.2d 357, 281 N.E.2d 827.) Since defendant failed to raise the issue in a post-trial motion we deem it waived. Nor in light of the evidence do we find the length and detail of the testimony so prejudicial as to merit consideration of the issue as plain error.

Lastly, defendant contends for the first time on appeal that the indictment failed to apprise him of the precise offense charged with sufficient specificity to allow him to prepare a defense. The indictment charged defendant with attempt murder:

"* * * in that the said defendant with the intent to commit the offense of Murder, in violation of Section 9-1a2 of Chapter 38, Illinois Revised Statutes (1973), as amended, did perform a substantial step toward the commission of that offense in that he did knowingly and without lawful justification shoot Gerald Gardner with a rifle, knowing said acts to create a strong probability of death or great bodily harm to Gerald Gardner, contrary to the form of the Statute in such case made and provided and against the peace and dignity of the People of the State of Illinois, and in violation of Paragraph 8-4a, chapter 38, Illinois Revised Statutes." (Emphasis added.)

Citing People v. Muir, 38 Ill. App.3d 1051, 349 N.E.2d 423, appeal allowed, 63 Ill.2d 561, and People v. Trinkle, 40 Ill. App.3d 730, 353 N.E.2d 18, appeal allowed, 64 Ill.2d 598, defendant's contention stems from the inclusion of the emphasized words "great bodily harm." In Muir, the court held the language "great bodily harm" in a similar indictment rendered it fatally defective as an incorrect statement of the mental element requisite for a charge of attempt murder.

In Muir the defendant twice tried to fire his weapon at a police officer but the weapon failed to discharge. The defendant first attacked the validity of his indictment in the trial court. In ...


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