APPEAL from the Circuit Court of Champaign County; the Hon.
JOHN P. SHONKWILER, Judge, presiding.
MR. JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:
The defendant, Roy Allan Williams, was sentenced to 1 year conditional discharge upon the condition that he serve 3 days in the county jail after a Champaign County jury found him guilty of resisting or obstructing a peace officer, a violation of section 31-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 31-1).
On October 1, 1975, Clifford Cameron, a job supervisor at the Douglass Community Center construction site in Champaign, arrived at the site with two crew members who were going to place fence posts. The defendant was present at the site and told the three workers that they could not unload the posts from their pickup truck. The defendant also boarded the workers' truck and sat on the posts. Cameron then phoned for assistance from his boss, Edward Hynes, and, while the workers awaited Hynes' arrival, defendant warned Cameron that, as Cameron stated, "he would take care of me personally" if we attempted to unload the truck. Upon his arrival, Hynes called the police. Two uniformed Champaign police officers, John Schweighart and Dale Meholic, arrived and attempted to speak with the defendant, who paced back and forth next to the truck and refused to respond to the officers' inquiries. When informed that the officers might arrest him if he continued to refuse to answer, defendant asked what he could be arrested for and was told that the charge might be aggravated assault. Finally, Officer Schweighart told defendant he was under arrest and attempted to grasp defendant's left arm or elbow. Defendant then spun around and attempted to strike Schweighart in the face, but the blow was blocked by Officer Meholic.
Defendant was originally charged with disorderly conduct and obstructing or resisting a police officer. At defendant's first trial, a directed verdict was entered on the disorderly conduct charge and a mistrial was declared on the charge of obstructing or resisting a peace officer. The latter charge proceeded to a second trial at which the defendant was found guilty by the jury. At both trials and on appeal to this court, defendant represented his own interests without the aid of an attorney after he was found competent to do so and after he was fully advised of his rights.
1, 2 On appeal, three issues are raised for our review: (1) whether defendant's failure to make a written post-trial motion waived the errors alleged here; (2) whether the court abused its discretion by granting a pretrial motion in limine; and (3) whether the court erred in giving the Prim instruction to a deadlocked jury.
Section 116-1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 116-1) directs that a motion for a new trial be in written form, although this requirement may be waived by the State, thereby opening the entire record for review on appeal. (People v. Everett (1969), 117 Ill. App.2d 411, 418, 254 N.E.2d 659.) In the instant case, however, the State objected to the oral form of defendant's motion for a new trial. In People v. Pickett (1973), 54 Ill.2d 280, 283, 296 N.E.2d 856, our supreme court stated that a reviewing court may, as a matter of grace in a case involving the deprivation of life or liberty, notice errors denying a fair and impartial trial for the defendant or where the evidence is closely balanced even though the error has not been properly preserved for review in a post-trial motion. In the instant case, because we find that defendant has been denied a fair and impartial trial in that the court entered an overbroad pretrial exclusionary order, we are noticing that error even though it has not been properly preserved.
On March 30, 1976, on motion of the State and following a hearing, the court entered the following order:
"IT IS HEREBY ORDERED that the defendant, Roy Allan Williams, is prohibited from mentioning in opening statement directly or indirectly, in the above-entitled cause concerning the following subjects:
1) The substance or merits of the public discussion of the controversy surrounding the decision to raze the old Douglass Community Center and to construct a new community center.
2) The motives and goals for the defendant's presence at the Douglass Center construction site on October 1, 1975.
3) Any allegations of conspiracy on the part of the Champaign County State's Attorney's Office or any personnel of said office against the defendant, Roy Allan Williams.
4) Any allegations of conspiracy on the part of the Champaign Police Department or any personnel of said Department against the defendant, Roy Allan Williams.
5) Any allegations of misconduct on the part of the Champaign County State's Attorney's Office or persons associated with said office.
6) Any allegations of misconduct predating the alleged offense by the Champaign Police Department and officers of said Department except for evidence concerning the conduct of Officers J. Schweighart, D. Miholic [sic] ...