Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of Rock Island
County; the Hon. Frederick P. Patton, Judge, presiding.
MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
There are two issues on this appeal: the first question relates to the propriety of the appellate court decision to consider this issue on review; the second question pertains to the soundness of the trial court decision to deny the defense motion for continuance, on the grounds of surprise, to search for surrebuttal witnesses to refute newly introduced probative rebuttal testimony.
The defendant, Freddie Lee Lott, was charged with armed robbery (Ill. Rev. Stat. 1975, ch. 38, par. 18-2) of the attendant at a service station. Following a jury trial in the circuit court of Rock Island County a verdict of guilty was returned. The Appellate Court for the Third District reversed the conviction, ruling that the denial of the motion for continuance unduly restricted the defendant's opportunity to present surrebuttal testimony in respect to a matter which was critical to the issue of guilt. 33 Ill. App.3d 779.
During the jury trial the defendant and three alibi witnesses testified that the defendant was at a party on April 18, 1973, at the time of the armed robbery. There was also testimony that the defendant was the victim of a stabbing on the 12th day of April and suffered both anterior and posterior wounds causing a collapse of his right lung for which he had been hospitalized prior to his arrest.
As a rebuttal witness to this defense testimony the State presented Richard Nitz, another resident of the county jail on similar charges. Nitz testified that on April 18 the defendant admitted to him and seven or eight people that he had committed ("done") the robbery in question as well as four others. The defense counsel asked for a recess, then approached the bench outside the presence of the jury and expressed surprise with the Nitz testimony, asking disclosure of any information the State had with respect to the subject matter of the alleged admission. Cross-examination then proceeded. The defense questioned Nitz as to the other witnesses to the admission. Nitz reiterated the fact that the admission took place in front of seven or eight other people in the cell block, identified the particular cell block, stated that he thought he could remember some of the names, but did not specifically identify anyone when asked to remember. Nitz was questioned further about a black eye he had received from an acquaintance of the defendant. The State again examined Nitz as to the names of the other witnesses, mentioning, with court permission, possible names of men in the lineup with the defendant. Nitz recognized one name, but did not definitely confirm that any of those mentioned was a witness to the admission. The defense asked for discovery of State information to help him impeach the testimony. The jury was dismissed.
Outside the presence of the jury, the court, the State, and the defense acknowledged that Nitz was a surprise witness. There was a heated discussion between adversaries as to the circumstances of the surprise testimony, and the defense proffered its intention, "in the light of the surprises," to find out who the witnesses to the admission were and to call them for rebuttal. The court advised that the motion would be denied. The defense stated that it then would move for a mistrial on the grounds that defendant was denied his only possibility to rebut the additional accusations, extremely prejudicial to him, and that he was denied a fair trial. The motion was denied. The defense moved formally for a continuance to ascertain the surrebuttal witnesses. The motion was denied. The defense then objected again, this time on sixth amendment grounds. Defense counsel reiterated the surprise circumstances and his lack of necessary information for rebuttal. Defendant then took the stand again and denied making the admission.
A written post-trial motion was submitted by the defense delineating the circumstances of the surprise testimony among other grounds for a new trial and alleging as reversible error the denial of the accused's right to due process and a fair trial with an impartial jury. A supplemental motion was filed annexing six affidavits obtained subsequent to trial from the guards and prisoners in the jail, swearing that Nitz had lied.
First we will consider the question concerning the propriety of the appellate court decision to consider the issue on review.
This court's opinion in People v. Pickett (1973), 54 Ill.2d 280, defined, in the procedural context of appeal and error, the doctrine of waiver:
"The general rule * * * is that the failure by the defendant to raise an issue in the written motion for a new trial constitutes a waiver of that issue and it cannot be urged as a ground for reversal on review. [Citations.]" 54 Ill.2d 280, 282.
From our scrutiny of the trial record we find that a substantive analysis of the post-trial motion and its supplement demonstrates that the issue of prejudice resulting from the denial of the defense motion for a continuance, on the grounds of surprise, to procure surrebuttal witnesses was sufficiently brought to the attention of the trial court and was thereby properly considered as a ground for reversal on review. The post-trial motion requesting a new trial alleged, among other points: the facts and circumstances of the surprise testimony of the inmate Nitz; the fact that the defense had no opportunity to prevent Nitz from testifying that defendant admitted the crime in question as well as other robberies; the fact that defendant's attempt to rebut the surprise testimony, which, the motion asserted, both adversaries had reason to believe was inaccurate or false, had been frustrated; the fact that he brought the circumstances and the problem before the trial court; and the fact that the court's rulings with respect to this matter prejudiced him and denied his right to due process and a trial before an impartial jury. Further, in the supplement filed to his post-trial motion, defendant alleged the prejudicial effect from the court's rulings upon the surprise testimony of Nitz and the insufficiency of his only permitted opportunity to rebut the damaging testimony by cross-examination. He attached six affidavits from guards and prisoners in the jail swearing that Nitz had admitted lying on the stand, alleging again that he had been denied a fair trial and his due process rights.
Therefore, we hold that the issue of prejudicial error in the denial of a continuance, on the grounds of surprise, to secure surrebuttal evidence was substantively preserved in the defense post-trial motion and its supplement and properly considered on appeal.
We will now consider the soundness of the trial court decision to deny the defense a continuance to search for surrebuttal witnesses to refute the surprise testimony of Nitz that the defendant had admitted to him and to ...