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People v. Hammond





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


Carney Hammond, defendant-appellant, seeks review of a judgment of conviction of burglary that was returned against him in a jury trial in Franklin County on January 21, 1975. Hammond was sentenced to the Illinois Department of Corrections for a term of from three to nine years imprisonment on February 13, 1975.

The incident on which the conviction was based occurred on October 1, 1974, in West Frankfort, Illinois. Late that evening defendant was apprehended and arrested inside a music store. A door leading into the store had been broken into and blood was found on it as well as on the ground. The defendant had a cut on his hand at the time of the arrest and the cut was bleeding.

At trial defendant sought to invoke the defense of intoxication, and indeed, much of the evidence he introduced went to this state of mind during the incident. At the close of the evidence Hammond offered instructions on criminal damage to property, but the court refused to give them because criminal damage to property is not a lesser included offense of burglary. The jury returned a verdict of guilty on the charge of burglary.

The issues presented for review are the propriety of the court's refusal to instruct the jury on the offense of criminal damage to property, and the correctness of the jury's determination that the intoxication defense was not valid.

The State argues in its brief that Hammond has waived his contentions of error by his failure to file any post-trial motion, as provided in section 116-1 of the Code of Criminal Procedure (Ill. Rev. Stat. 1975, ch. 38, par. 116-1). This section reads as follows:

"§ 116-1. Motion for New Trial

(b) A written motion for a new trial shall be filed by the defendant within 30 days following the entry of a finding or the return of a verdict. Reasonable notice of the motion shall be served upon the State.

(c) The motion for a new trial shall specify the grounds therefor."

• 1 It has been well established that the failure to raise an issue in a written post-trial motion constitutes generally a waiver of that issue. (People v. Pickett, 54 Ill.2d 280, 296 N.E.2d 856; People v. Hairston, 46 Ill.2d 348, 263 N.E.2d 840, cert. denied, 402 U.S. 972, 29 L.Ed.2d 136, 91 S.Ct. 1658; People v. Irwin, 32 Ill.2d 441, 207 N.E.2d 760.) The reasons for the waiver rule are two-fold: to inform a trial court of a possible mistake so as to give it an opportunity to correct the mistake, and to not allow a defendant to object to that which he has acquiesced in. (See People v. Morgan (5th Dist. 1976), 44 Ill. App.3d 459, 358 N.E.2d 280, leave to appeal pending.) It thus appears that the policy behind the waiver rule is broader than merely the situation where a defendant fails to include an issue in his written post-trial motion. A defendant who failed to file any post-trial motion also fails to inform the trial court of an alleged error so as to give it the opportunity to correct the error and such a failure may also have been, in fact, an acquiescence in the error alleged.

In stating the purpose behind the waiver rule, the court in Irwin stated that requiring a defendant to specify the errors entitling him to a new trial:

"* * * may save the delay and expense inherent in an appeal in those instances where the motion is meritorious. Additionally, it focuses the attention of the trial judge upon those aspects of the proceedings of which the defendant complains, and gives to the reviewing court the benefit of the judgment and observations of the trial court with reference thereto. In short, we believe this waiver rule a salutary one serving a legitimate State interest in that it tends to eliminate unnecessary reviews and reversals." 32 Ill.2d 441, 443-44.

In People v. Flynn, 8 Ill.2d 116, 133 N.E.2d 257, and People v. Prohaska, 8 Ill.2d 579, 134 N.E.2d 799, the defendants made oral motions for a new trial and for arrest of judgment. The supreme court in both cases determined that in submitting verbal motions without stating in writing the grounds therefor and without objection being made the requirements of such written motions are waived. However, the precise problem presented in this case has never been ruled upon by a reviewing court in this State.

• 2 For the above reasons, the failure of the defendant to file any post-trial motion in his case, written or oral, is deemed to be a waiver of the errors raised on appeal. Since there is nothing properly ...

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