APPEAL from the Circuit Court of Madison County; the Hon.
MOSES W. HARRISON, II, Judge, presiding.
MR. PRESIDING JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
Defendant, Harold Lamparter, was charged in the circuit court of Madison County with unlawful delivery of less than 30 grams of a substance containing heroin. Following a jury trial defendant was found guilty as charged and he was sentenced to a term of three to nine years imprisonment. Defendant brings this appeal.
Defendant's conviction stems from an illegal transaction made on January 26, 1976, at 6 p.m. to Gary Cammerer, a paid informant for the Metropolitan Enforcement Group (MEG). The State's evidence showed that on that date Cammerer and two agents for MEG, Dennis Joyce and Dan Hempe, drove to the apartment of Jim Skelton, defendant's brother-in-law, where three or four times in the past they had gone to buy heroin. While Hempe waited outside, Cammerer and Joyce went to the door of the apartment and were allowed in by defendant. In addition to defendant, James Jennings and an unidentified woman were inside the apartment, Skelton, however, was not present. Jennings, at that time, had a shirtsleeve rolled up and a syringe in his hand. Cammerer, with whom Jennings was acquainted, inquired about the purchase of heroin and he, Jennings and defendant went into the kitchen to discuss the purchase while Joyce and the unidentified woman remained in the living room. Joyce testified that he then went to the bathroom and as he walked through the kitchen he saw a spoon on the table and a brown bottle in the hand of Jennings, both of which he believed contained heroin. Once back in the living room, Joyce was informed by Cammerer that a purchase of one-half gram of heroin could be made for $50. Joyce gave Cammerer the money and Cammerer went back into the kitchen. Cammerer testified that he then handed Jennings the money and defendant in turn handed him a tin foil containing powder. Cammerer asked where he could, in the future, buy more heroin and he was told to go to defendant's mother's house. When Cammerer stated that he did not know where it was, he was told to come back to Skelton's home since someone would be there. Cammerer handed Joyce the tin foil packet and the two left the apartment. The packet was placed in the locked glove compartment of Joyce's car, where it remained over night, and it was eventually sent to a crime laboratory where it was identified as containing .2 grams of a substance containing heroin. Joyce explained the discrepancy in the weight of the heroin requested and that actually purchased as a result of the fact that when heroin is sold in such small amounts as here involved, it is actually sold by volume rather than weight.
Defendant presented an alibi defense. His mother testified that on the date in question she was to drive her sister, Katherine Miller, shopping but was unable to and that defendant therefore took Miller instead. Miller stated that she and defendant left around 3:20 p.m. and drove to two shopping centers in the St. Louis area. During the course of the evening they twice stopped to eat and had returned to her home around midnight. Defendant corroborated the testimony of his aunt and he denied having met Cammerer or Joyce or having heard of Jennings. Following the trial, defendant's retained counsel failed to file any post-trial motion, written or oral.
1 On appeal defendant presents four issues for review: (1) whether he was proved guilty beyond a reasonable doubt; (2) whether he was denied a fair trial because the State elicited from defendant on cross-examination his prior use of drugs and had emphasized this fact during closing arguments; (3) whether he failed to receive effective representation from defense counsel; and (4) whether his sentence is excessive. The State responds by moving to dismiss the instant appeal because of the failure to file a post-trial motion. (See People v. Hammond, 48 Ill. App.3d 707, 362 N.E.2d 1361.) Since we find plain error denying defendant a fair and impartial trial and ineffective assistance of counsel in asserting and preserving such error, the State's motion is denied.
We turn first to defendant's contention that he received ineffective assistance of counsel. The test applied by our supreme court where, as here, trial counsel had been privately retained is whether the representation was of such a low caliber as to have amounted to no representation at all or which reduced the court proceedings to a farce or a sham. (People v. Torres, 54 Ill.2d 384, 297 N.E.2d 142; People v. Redmond, 50 Ill.2d 313, 278 N.E.2d 766; People v. Somerville, 42 Ill.2d 1, 245 N.E.2d 461; but see People v. Hawkins, 23 Ill. App.3d 758, 320 N.E.2d 90 (which criticizes separate tests for retained and appointed counsel).) In the case at bar defendant primarily bases his claim upon his counsel's failure to have filed a post-trial motion for a new trial.
2, 3 It has long been well established that generally the failure to raise an issue in a motion for a new trial constitutes a waiver of that issue and a defendant cannot then urge that issue as a ground for reversal on appeal. (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.) As stated in People v. Irwin:
"Requiring defendant's written motion for a new trial to specify the errors allegedly 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." (32 Ill.2d 441, 443-444, 207 N.E.2d 76, 78.)
Moreover, the waiver rule prevents a defendant from raising on appeal that in which he has in fact acquiesced. (People v. Morgan, 44 Ill. App.3d 459, 358 N.E.2d 280; People v. Whitlow, 48 Ill. App.3d 425, 363 N.E.2d 102.) Where, as a minimum, a general oral motion for a new trial has been made without objection by the State, such has been held sufficient to preserve for appeal all errors which are properly preserved on the record. (People v. Whitehead, 35 Ill.2d 501, 221 N.E.2d 256.) On the other hand, the failure to file any post-trial motion, written or oral, has been deemed to be a waiver of the errors raised on appeal warranting a dismissal of the appeal. People v. Hammond, 48 Ill. App.3d 707, 362 N.E.2d 1361.
4 To ameliorate the harshness of the waiver rule, Supreme Court Rule 615(a) (Ill. Rev. Stat. 1975, ch. 110A, par. 615(a)) permits a reviewing court to take notice of plain errors affecting substantial rights. However, this rule does not mandate reviewing courts> to consider all errors not properly preserved involving substantial rights. Rather, under the rule, reviewing courts> may, as a matter of grace, take notice of such errors where they deprived a defendant of substantial means of enjoying a fair and impartial trial or in cases where the evidence is closely balanced. People v. Pickett.
It can thus be seen that where a defendant has a meritorious claim of error committed at trial, his trial counsel's failure to file a motion for a new trial will only serve to deny the trial court the opportunity of considering the error at a time when such consideration may be best given and of granting a new trial at a time when to do so would best serve the ends of justice. Further, the failure to file a post-trial motion will only act to waive consideration of the error except in those few cases where the reviewing court will notice the error pursuant to Supreme Court Rule 615(a), and then, a deserved new trial will only have been gained by a defendant upon the unnecessary cost of the delay and expense inherent in an appeal.
5 It follows that where a claim of ineffective assistance of counsel is based upon counsel's failure to file a post-trial motion consideration of the trial errors alleged on appeal, to determine whether any such contentions are of substantial merit, is compelled. (People v. Greenlee, 44 Ill. App.3d 536, 358 N.E.2d 649; see also, People v. Bailey, 42 Ill. App.3d 638, 356 N.E.2d 410.) In Greenlee the defendants contended that their appointed counsel were incompetent in failing to file a post-trial motion. This court stated that:
"Because no post-trial motion was filed, the defendants are deemed to have waived the numerous assignments of error they now seek to raise on appeal. While the failure to file a post-trial motion may be a factor to consider in evaluating counsel's competence, in the case at bar, actual incompetence is not shown thereby since none of the issues raised on appeal would have affected the defendants' convictions had they been raised in a post-trial motion and the effort would have been futile." 44 Ill. App.3d 536, 542, 358 N.E.2d 649, 655.
The same conclusion as in Greenlee that the filing of a post-trial motion would have been a futile effort cannot be made in the instant case since, to the contrary, we find plain error appearing on the record.
During the prosecution's cross-examination of the defendant the following ensued:
Q. Have you ever used drugs?
Q. What kind of drugs have ...