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People v. Edwards

OPINION FILED JUNE 8, 1977.

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

v.

RONALD EDWARDS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Peoria County; the Hon. IVAN L. YONTZ, Judge, presiding.

MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

Defendant, Ronald Edwards, was indicted in a three-count indictment charging him with one count of burglary and two counts of unlawful use of weapons. After a jury trial Edwards was convicted of all charges and sentenced to concurrent terms of imprisonment of not less than 6 2/3 nor more than 20 years and not less than 3 1/3 nor more than 10 years for the respective crimes. Defendant appeals from his convictions and requests that both his convictions be reversed and remanded for a new trial based upon the following contentions of error:

(1). The trial court erred by failing to declare a mistrial when the prosecutor while cross-examining the defendant called the jury's attention to the inadmissible fact that a co-indictee, not called to testify and whom defendant's version had exonerated, pleaded guilty;

(2). The trial court abused its discretion by allowing the prosecution to reopen its case on the last day of trial;

(3). Reversible error occurred when the prosecutor in closing argument accused defense counsel of trickery and referred to evidence which the trial court had refused to allow the prosecutor to introduce.

(4). An unlawful search of defendant's car occurred which uncovered the weapons resulting in defendant's convictions of unlawful use of weapons.

• 1, 2 Defendant filed the following written post-trial motion:

"Comes now the Defendant, RONALD EDWARDS, by his Attorney, PRESCOTT BLOOM, and moves this Honorable Court to grant to the Defendant a new trial, and as grounds thereof states as follows:

1. That the guilt of the Defendant was not proven by confident [sic] evidence beyond a reasonable doubt.

2. That the Court erred in allowing the prosecution, during closing arguments, to go beyond the bounds of fair comment on the evidence, and dwell on matters stricken or kept out of evidence as is set out in the document marked Partial Transcript of Proceedings, which is attached to the Court's file of this Motion and made a part hereof as exhibit A.

3. The Defendant further alleges any error which may appear from a reading of the entire transcript of this matter.

WHEREFORE, the Defendant prays this Honorable Court to grant him a new trial."

The main purpose served by the motion for a new trial is to provide the trial judge with an opportunity to correct alleged errors made during the trial. Consistent with this purpose errors not asserted as a ground for a new trial are waived and cannot be raised for the first time on appeal. (People v. Hairston (1970), 46 Ill.2d 348, 263 N.E.2d 840.) Only ground numbered (2) in defendant's motion for a new trial preserved any issue for appeal. The general catch all language set out in ground number (3) of defendant's motion for a new trial has been held to be ineffective to prevent unspecified errors from being waived because they were not set out in the motion for a new trial. (See People v. Rogers (1975), 32 Ill. App.3d 788, 336 N.E.2d 784, and People v. Witherspoon (1975), 33 Ill. App.3d 12, 337 N.E.2d 454, and Ill. Rev. Stat. 1973, ch. 110A, par. 366(b)(2)(iii).) Although there is an exception to this general waiver rule where the alleged defect is patent and plain error, the standard to be applied by the reviewing court in considering whether to exercise its discretionary power to review the matter was confirmed in People v. Lagardo (1967), 82 Ill. App.2d 119, 123-24, 226 N.E.2d 492, 494, 21 A.L.R.3d 1360, where the court stated, "Briefly, it may be said that the pivotal factors to be considered to determine whether or not an exercise of such discretion is warranted are, the closeness of the case, the conduct of the trial judge, the extent to which questionable evidence may have contributed to a guilty verdict, the fairness of the trial in general, and the magnitude of the errors alleged."

Though all but one of the errors argued by defendant on appeal were not preserved, and are therefore waived, because of our view of that one error, properly preserved, in the ...


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